638 F.2d 916 (6th Cir. 1980), 80-3308, Record Revolution No. 6, Inc. v. City of Parma
|Docket Nº:||The CITY OF PARMA et al., Defendant-Appellee, (80-3308).|
|Citation:||638 F.2d 916|
|Party Name:||RECORD REVOLUTION NO. 6, INC., Plaintiff-Appellant, v.|
|Case Date:||December 08, 1980|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Argued June 20, 1980.
[Copyrighted Material Omitted]
Fred P. Schwartz and Armond D. Budisch, Cleveland, Ohio, for plaintiff-appellant in Nos. 80-3352 and 80-3308.
Anthony Glassman, Glassman & Browning, Inc., Beverly Hills, Cal., for amicus curiae.
William E. Blackie, Lakewood, Ohio, for defendant-appellee in No. 80-3352.
David C. Weiner and Eric Zagrams, Hahn, Loeser, Freedheim, Dean & Wellman, Cleveland, Ohio, for plaintiff-appellant in Nos. 80-3353 and 80-3308.
Dan Ryan, North Olmsted, Ohio, for defendant-appellee in No. 80-3353.
Andrew Boyko, Stephen P. Bond, Parma, Ohio, for defendant-appellee in No. 80-3308.
Before EDWARDS, Chief Circuit Judge, and BOYCE F. MARTIN, Jr., and JONES, Circuit Judges.
NATHANIEL R. JONES, Circuit Judge.
Business owners in the cities of Parma, Lakewood, and North Olmsted, Ohio have challenged the constitutionality of ordinances prohibiting the use, sale and manufacture of "drug paraphernalia." 1 The district court, in a very thoughtful and well written opinion, sustained the constitutionality of the ordinances after severing certain phrases and construing the meaning or scope of other language. Being convinced that parts of the ordinances are vague and overbroad, in violation of the First Amendment right to free speech and the Fourteenth Amendment right of due process, we reverse and enjoin enforcement of the ordinances.
Rationale for Model Act
The "drug paraphernalia" ordinances in Parma, Lakewood, and North Olmsted are based almost verbatim on the Model Drug Paraphernalia Act drafted by the Drug Enforcement Administration of the United States Department of Justice. At the request of the Drug Policy Office of the President's Domestic Policy Council, DEA prepared the Model Act as an amendment to the Uniform Controlled Substances Act. In the Prefatory Note to the Model Act, DEA describes graphically the severity of the national problem to which the Model Act responds:
(T)he availability of Drug Paraphernalia has reached epidemic levels. An entire industry has developed which promotes, even glamorizes, the illegal use of drugs by adults and children alike. Sales of Drug Paraphernalia are reported as high as three billion dollars a year. What was a small phenomenon at the time the Uniform Act was drafted has now mushroomed into an industry so well-entrenched that it has its own trade magazines and associations.
The Justice Department determined that the law enforcement campaign against businesses selling drug paraphernalia should be fought mainly by state and local officials. Statement of Irvin B. Nathan, Deputy Assistant Attorney General, Criminal Division, before the H. R. Select Com. on Narcotics and Drug Abuse Control, November 1, 1979. The Model Act attempts to avoid or minimize the constitutional problems of previous statutes and municipal ordinances, yet to provide an effective law to curb the sale of drug paraphernalia.
Mr. Nathan strongly espoused the enactment of the Model Act by states and cities in his statement to the House Committee on Narcotics and Drug Abuse Control. He stated:
The positive features of such a bill are apparent. Outlawing the open advertisement and sale of drug paraphernalia will send a clear message to impressionable adolescents and others that society does not condone the use of drugs. Governmental authority will present a more consistent and reasoned face to the community by refusing to let the paraphernalia industry mock the law by thriving off the wide spread (sic) use of illegal drugs. Communities will no longer be offended by the presence of open symbols of illegal activity in their midst.
In closing, Mr. Nathan added several cautionary remarks on the potential problems of constitutionality and feasibility. First, he noted that "enforcement of such an act by state and local authorities may prove difficult and may divert scarce resources from more pressing drug concerns." Mr. Nathan further warned:
Even if there were resources to permit vigorous enforcement, there is a significant potential for mistakes and abuse by local authorities. There may be additional invasions of privacy if law enforcement personnel need see only an implement such as a pipe, rather than any actual evidence of the drug itself, in order to make an arrest and conduct a search. Moreover, the prevalence of drug paraphernalia may leave law enforcement personnel in the difficult position of having to engage in selective enforcement, with the potential for disparate treatment of similarly situated individuals.
He was concerned about the possibility of "increased public corruption" resulting from enforcement of the Act. He also questioned the potential effectiveness of drug paraphernalia statutes. Finally, Mr. Nathan listed several options in lieu of the comprehensive prohibition against the use, sale or manufacture of drug paraphernalia, such as licensing, zoning, forbidding sales to minors, and regulating the form of advertising.
Structure of Model Act 2
The Model Act contains two main sections. The first section sets forth at great
length the definition of "drug paraphernalia." In the first subsection, drug paraphernalia is defined as anything which is "used, intended for use, or designed for use" in introducing controlled substances into the body. A number of specific examples are then given, each described by the phrase "used, intended for use, or designed for use." One example of drug paraphernalia is "testing equipment used, intended for use or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances." The list of examples concludes with the catchall category of "objects used, intended for use, or designed for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body," followed by another list of thirteen items, such as water pipes, roach clips, chillums, and bongs.
The second subsection of the first main section of the Model Act delineates fourteen factors that a "court or other authority should consider, in addition to all other logically relevant factors," "in determining whether an object is 'drug paraphernalia.' " These factors include the statements by an owner about the item's use, prior convictions of the owner, national or local advertising and the existence of lawful uses for the item.
In sum, the Model Act uses three techniques to define "drug paraphernalia." First, it uses the repeated phrase "used, intended for use, or designed for use." Second, it lists by way of example a number of objects that could be drug paraphernalia. Third, the Model Act sets forth numerous factors to be considered in determining whether or not an object is drug paraphernalia.
Following the extensive definition of "drug paraphernalia," the second main section of the Model Act defines the substantive criminal offenses. The use, or the possession with intent to use, of drug paraphernalia is prohibited. Also proscribed is the delivery or manufacture of "drug paraphernalia," when the deliverer or manufacturer knows or should reasonably know that the drug paraphernalia will be used with controlled substances. The Model Act makes criminal the placing of any advertising in the print media promoting the sale of objects designed or intended for use as drug paraphernalia, when the person placing the advertising knows or should reasonably know the purpose of the advertisement. The Model Act provides for the civil forfeiture of all drug paraphernalia and a special offense for the delivery of drug paraphernalia to a minor. Finally, the Act states that its sections or subsections are severable; in the event that any part is declared unconstitutional the remaining parts can still be given effect.
City of Parma Ordinance No. 242-79
The City of Parma, Ohio, has long expressed its desire to curb drug abuse in its community. In 1977, the Parma City Council enacted a resolution urging that the possession and private use of marihuana not be legalized. In 1978, Doris Krawczyk, Councilwoman in Parma, received a copy of a petition addressed to the manager of Parmatown Shopping Mall from constituents who were angry at the sale of novelty items, called drug paraphernalia, by the plaintiff in this case, Record Revolution No. 6, Inc. Krawczyk requested the city law department in April, 1978, to draft legislation to ban the sale of drug paraphernalia, but the law department advised her that "no basis or foundation" for legislation then existed. Krawczyk's interest in drug paraphernalia legislation revived in October, 1979, when she read an article on an ordinance enacted in Lakewood, California that banned the sale of drug paraphernalia to minors. Then on November 14, 1979, an editorial in The Cleveland Press informed her of the Model Drug Paraphernalia Act. She obtained a copy of the Model Act and requested the city law department to draft similar legislation.
On January 7, 1980, the Parma City Council enacted Ordinance No. 242-79, 3 which is almost identical to the Model Act. 4 The ordinance was passed as an emergency measure and became effective immediately upon the mayor's signature on...
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