639 F.2d 373 (7th Cir. 1981), 80-1462, Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estates

Docket Nº:80-1462.
Citation:639 F.2d 373
Party Name:The FLIPSIDE, HOFFMAN ESTATES, INC., an Illinois Corporation, Plaintiff- Appellant, v. VILLAGE OF HOFFMAN ESTATES et al., Defendants-Appellees.
Case Date:January 12, 1981
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 373

639 F.2d 373 (7th Cir. 1981)

The FLIPSIDE, HOFFMAN ESTATES, INC., an Illinois

Corporation, Plaintiff- Appellant,

v.

VILLAGE OF HOFFMAN ESTATES et al., Defendants-Appellees.

No. 80-1462.

United States Court of Appeals, Seventh Circuit

January 12, 1981

Argued Oct. 22, 1980.

Rehearing Denied Feb. 5, 1981.

Page 374

Michael L. Pritzker, Chicago, Ill., for plaintiff-appellant.

Richard N. Williams, Village Atty., Hoffman Estates, Ill., for defendants-appellees.

Before SPRECHER and WOOD, Circuit Judges, and TEMPLAR, Senior District Judge. [*]

SPRECHER, Circuit Judge.

This appeal involves the validity of an ordinance of the Village of Hoffman Estates, Illinois ("village") purporting to regulate merchants who sell items designed or marketed for use with illegal cannabis or drugs. Plaintiff, a Hoffman Estates record store, appeals the district court's denial of plaintiff's motion for a permanent injunction and declaratory relief.

I

On February 20, 1978, the Village of Hoffman Estates Board of Trustees enacted Ordinance No. 969-1978, entitled "an Ordinance Amending the Municipal Code of the Village of Hoffman Estates by Providing for Regulation of Items Designed or Marketed for Use with Illegal Cannabis or Drugs," to be effective May 1, 1978. The ordinance requires that any person within the village who sells any "item, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs" must obtain a license for $150.00, file affidavits averring that the applicant and each employee authorized to sell such items has never been convicted of a drug-related offense, and keep records, to be open for police inspection, of every covered item sold, along with the name and address of the purchaser. The ordinance prohibits sale to minors of any covered items. Any violation of the ordinance is punishable by a fine of not less than $10.00 nor more than $500.00, and each day that a violation continues is deemed a separate offense. In addition, the village attorney prepared "license guidelines" which define certain terms relevant to the ordinance.

Plaintiff Flipside Records ("Flipside") for more than three years prior to May 1, 1978, sold a wide variety of merchandise including smoking accessories, jewelry, novelty devices, and literature. Among these items were clamps, "alligator clips," mirrors, pipes of various types and sizes, and a large number of cigarette rolling-papers in a variety of colors. Soon after enactment of the ordinance, plaintiff was notified that Flipside appeared to be marketing items that would be covered by the ordinance. Alleging that it was unable to determine which items would be covered by the ordinance, and wishing to avoid a violation and arrest which might preclude Flipside's access to a

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federal forum for adjudication of its constitutional claims, Flipside removed from its shelves a wide variety of merchandise. 1 On May 30, 1978, Flipside initiated proceedings in the United States District Court for the Northern District of Illinois, seeking a declaratory judgment that the ordinance violated the First, Fourth, Fifth, Eighth and Fourteenth Amendments, Article I, Section 8, Clause 3 and Article I, Section 10 of the United States Constitution. Plaintiff also sought temporary, preliminary and permanent injunctive relief to restrain enforcement of Ordinance No. 969-1978, and damages pursuant to 42 U.S.C. § 1983 for the actions of the village and its agents, 2 which allegedly caused Flipside to be deprived of rights secured to it by the United States Constitution.

On May 30, 1978, Judge Leighton denied plaintiff's motion for a temporary restraining order. On September 1, 1978, a hearing on the motion for a preliminary injunction was held, and Judge Leighton denied the motion. The trial for a permanent injunction and declaratory judgment was held on March 23, 1979. On February 11, 1980, the trial court entered a Memorandum Order awarding judgment to the defendants. Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estates, 485 F.Supp. 400 (N.D.Ill.1980). Plaintiff appeals that order on several constitutional grounds, alleging that Ordinance No. 969-1978 is impermissibly vague in violation of the due process clause of the Fourteenth Amendment and violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

II

Since this case began in the district court, and indeed, since the district court's opinion was published in February, 1980, there has been an explosion of litigation concerning so-called drug paraphernalia laws. Most of the cases involve statutes or ordinances which make the sale, manufacture, or possession of drug paraphernalia a crime, usually a misdemeanor. 3 There have been a variety of results in the district courts, even within the same district. 4 As of this writing none of these paraphernalia law cases has been decided by a court of appeals on the merits, [**] although in Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980), in entering a preliminary injunction restraining enforcement of an ordinance the court flatly stated that the challenged ordinance was unconstitutionally vague on its face. 618 F.2d at 28. 5

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The challenges to drug paraphernalia statutes often involve a number of constitutional claims, as here where the village ordinance is attacked on due process, equal protection, and first amendment grounds. The successful attacks usually have won on the issue of due process: drug paraphernalia statutes have been found impermissibly vague in violation of the due process clause of the Fourteenth Amendment. 6

In August, 1979, the Drug Enforcement Administration of the United States Department of Justice published the "Model Drug Paraphernalia Act" ("Model Act"). According to the comments published with the Model Act, it was drafted to enable states and local jurisdictions to cope with the paraphernalia problem and is intended to be enacted as an amendment to the Uniform Controlled Substance Act, which has been adopted by Illinois and many other states. 7 District courts have recently upheld laws based on the Model Act, although a few have found it necessary to sever some parts. 8 These courts agree that criminal statutes, prohibiting the manufacture, sale, or possession of items determined to be drug paraphernalia, must be carefully drafted in order to focus on the drug-related intent of the person charged. 9

III

The ordinance at issue here differs from the type of statutes at issue in the above-cited cases. Hoffman Estates Ordinance No. 969-1978 does not attempt to criminalize the sale or possession of drug-related devices. In fact, the preamble to the ordinance states, "it is recognized that such items are legal retail items and that their sale cannot be banned ...." Yet one of the purposes of the ordinance obviously must be to do indirectly what it claims it

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cannot do directly to effectively ban the sale of a broad class of items, some of which may be used with illegal drugs. After all, few retailers are willing to brand themselves as sellers of drug paraphernalia, and few customers will buy items with the condition of signing their names and addresses to a register available to the police. But the legal issue here does not depend on the covert purpose of de facto banning certain items. Even if the ordinance does discourage the sale of some "innocent" items, the ordinance would be constitutional so long as it carefully defined the items sought to be regulated so that a person in plaintiff's position could determine whether, and to which items, the license requirement applied. 10

As stated in Geiger v. City of Eagan, 618 F.2d 26, 28 (5th Cir. 1980), a city "clearly has the power through a properly drawn ordinance to discourage the availability of drugs and the acceptance of drug use by prohibiting the sale of drug-related devices." 11 Thus the village may, with a properly drawn ordinance, regulate drug paraphernalia. The type of regulation chosen here bears a rational relation to the village's interest in preventing drug abuse. It prevents convicted drug dealers and users from selling paraphernalia and thereby gaining contacts with a ready market, and it forbids the sale of paraphernalia to minors. But sympathetic as we are with the village's attempt to fight drug abuse through this novel licensing scheme, the village must do so in a constitutional manner.

IV

The critical issue here is whether this ordinance is so vague as to violate the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution. In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), the Supreme Court set out the policies behind the due process doctrine of vagueness. In a passage cited in virtually every opinion dealing with vagueness challenges to statutes or ordinances, the Court stated:

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws often offend several important values. First, because we assume that a man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Id. at 108-09, 92 S.Ct. at 2298-99 (footnotes omitted). See also Smith v. Goguen, 415 U.S. 566, 572, 94 S.Ct. 1242, 1246, 39 L.Ed.2d 605 (1974); Connally v. General Construction Co., ...

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