Bambu Sales, Inc. v. Gibson

• Decision Date: 06 August 1979
• Docket Number: Civ. No. 79-2195.
• Citation: 474 F. Supp. 1297
• Parties: BAMBU SALES, INC., Plaintiff, v. Kenneth GIBSON, Mayor and Charles M. Zizza, Chief of Police, respectively, of the City of Newark, Defendants.
• Court: U.S. District Court — District of New Jersey

474 F. Supp. 1297

BAMBU SALES, INC., Plaintiff, v. Kenneth GIBSON, Mayor and Charles M. Zizza, Chief of Police, respectively, of the City of Newark, Defendants.

Civ. No. 79-2195.

United States District Court, D. New Jersey.

August 6, 1979.

Maurice Bitner, Parsippany, N.J., Noel C. Hauser, New York City, of counsel, for plaintiff.

Salvatore Perillo, Corp. Counsel, by Jonathan Irons, Asst. Corp. Counsel, Newark, N.J., for defendants.

OPINION

BIUNNO, District Judge.

This is a civil rights case grounded on 42 U.S.C. § 1983 and § 1985, with jurisdiction arising under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343(3) and (4) (civil rights claims).

The remedies sought are a declaratory judgment, 28 U.S.C. § 2201 and § 2202, and injunctive relief.

The controversy arises from the enactment of Ordinance 6S and FD by the City of Newark on June 20, 1979, the ordinance thereafter having been delivered to Mayor Gibson on June 21, 1979 and returned without veto on June 22, 1979.

The ordinance is captioned as one "prohibiting the sale or display of paraphernalia relating to controlled dangerous substances." The major provision here is section 1:

"No person shall advertise, display, sell or offer to sell any type of syringe, needle, eye dropper, spoon, pipe, testing kit, rolling paper, or other paraphernalia or appliance designed for or ordinarily used in smoking, testing, weighing, measuring, injecting, cooking or sniffing marijuana, cocaine, opium, hashish or other controlled dangerous substances as defined by N.J.S.A. 24:21-1, et seq."

Section 2 is also involved to the extent that the maintenance of any building, conveyance or premises resorted to by persons for the distribution of any of the articles listed in section 1 is declared to constitute a common nuisance.

The penalty for violation is set at a fine of $500. or a jail term of 90 days or both, section 4.

The matter first came before the court on application (on notice) for an order to show cause why a preliminary injunction should not issue to restrain enforcement of the ordinance. That order issued July 25, 1979, with temporary restraint. On its return date, on August, 2, 1979, the court invited the parties' views on the question whether the case was one suitable for application of F.R.Civ.P. 65(a)(2), for advancement of the trial on the merits and consolidation with the application for preliminary injunction. After discussion, the parties agreed that the facts needed for resolution of the issues were not in dispute, and that what remained were matters of law.

The facts set out in the moving affidavit of Harry Gurewitz, plaintiff's president, filed July 24, 1979, but not those parts of the affidavits as are in the nature of inferences, charges, argument or conclusion, could be employed by the court as they were not in dispute. Other fact items were enumerated in the hearing record as also not in dispute and available for consideration.

Briefly, Bambu Sales, Inc. is a New York corporation with offices and warehouse in Westbury, N.Y. It is the sole distributor in the United States for cigarette paper manufactured by a Spanish company, although the same kind of product is sold throughout this country by others, some of which are manufacturers of leading brands of cigarettes. Plaintiff's merchandise, essentially its only item, is marketed under the name "Bambu", registered as a federal trademark under the Lanham Act.

Plaintiff sells only to wholesalers (one of whom is in Newark, N.J.) who, in turn, supply jobbers and sub-jobbers from whom retail merchants obtain their supplies. Some number of these retail merchants are in the City of Newark and possess inventories of Bambu cigarette paper.

It is agreed that "cigarette paper" as distributed by plaintiff, and "rolling paper" as used in the ordinance, are one and the same, namely, a rectangle of very thin paper, with a thin gummed line along one long edge, which is used to form the outer tube or container of a cigarette either by rolling it by hand or in a machine. The use of this paper for the purpose is as old as the cigarette, the Bambu brand itself having been sold in this country for at least 50 years.

The traditional and conventional form of cigarette is that containing tobacco. Tobacco itself is said to have originated in Mexico about 5,000 B.C., its earlier use being by smoking as cigars or cigarettes, and later in pipes. It was also chewed, or, in a finely divided form known as snuff, inhaled. Tobacco is said to have been the primary product of the "New World" to have achieved the immediate and worldwide acceptance it did once the explorers were followed by merchants and traders. It is said to have reached Spain and Portugal by 1558, France by 1559, Italy by 1561, England in 1565, Turkey in 1605, Russia by 1634 and Arabia by 1663. Spanish traders took it to the Philippines, from where it went to China, Siberia and back to America among the Eskimos. It was traded to the Pacific islands and to Africa, and its worldwide use is said to have been adopted within a hundred years. See, "Lincoln Library of Essential Information" 34th Ed. (Frontier Press, 1971), pp. 2133-2134.

While most cigarettes are no doubt those sold as a finished product, there has been and still is both a demand and a market for its components, i. e., loose tobacco and cigarette or rolling paper as marketed by Bambu and its competitors so that ultimate consumers who prefer to roll their own may do so. Bambu's trade is both in foreign commerce (being imported from Spain) and interstate commerce (being distributed down the line to the eventual retailer).

On its face, the ordinance does not purport to deal with cigarette paper in conjunction with tobacco, which is not a controlled dangerous substance either under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.Code § 801, et seq., or the N.J. Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq. (essentially the Uniform Act) adopted as N.J.P.L. 1970, c. 226, whose purpose it is to suppress illegal traffic in narcotic drugs enumerated in it, State v. De Carlo, 67 N.J. 321, 338 A.2d 809 (1975). Either the Uniform Controlled Dangerous Substances Act (in most instances) or the Uniform Narcotic Drug Act has been adopted in 47 states, the District of Columbia, the Virgin Islands and Puerto Rico. See table preceding N.J.S.A. 24:21-1 (1979 pocket part, p. 96).

Marijuana, however, is listed as a Schedule I controlled dangerous substance, N.J. S.A. 24:21-5(e)(10) (where it is spelled "marihuana"). And, like tobacco, corn silk or other combustible substance, it may be employed as the substance rolled into a paper tube to form a cigarette. It is at least this use at which the ordinance is aimed, so far as pertinent here.

The Complaint

The complaint presents challenges to the validity of the ordinance in seven counts:

1. The ordinance places an impermissible burden on interstate commerce (U.S. Const. Art. I, § 8, par. 3); invades an area preempted, pursuant to the Supremacy Clause, by virtue of the enactment of the Food, Drug and Cosmetic Act, Title 21 U.S.C., and preempted by the State of New Jersey by the enactment of N.J.S.A. 24:21-1, et seq. See, e. g., Summer v. Teaneck, 53 N.J. 548, 251 A.2d 761 (1969).

2. The ordinance impairs the obligation of contracts contrary to U.S.Const. Art. I, § 10, cl. 1 (and see N.J.Const., 1947, Art. 4, § 7, par. 3).

3. The ordinance deprives plaintiff of due process of law contrary to U.S.Const. Amend. 14 for lack of a rational relation between the provisions of the ordinance and the seeming objective of reducing the use of marijuana in cigarette form, and because the means selected to that end present an unreasonable, burdensome and unworkable method of control (i. e., arbitrariness). The ordinance also violates plaintiff's procedural due process rights due to the effect of precluding its (lawful) business operations.

4. The ordinance is overly broad and vague, arbitrary and capricious, and thus contrary to U.S.Const. Amend. 14 (due process).

5. The ordinance violates the privacy rights of prospective users of plaintiff's product (for tobacco?) contrary to U.S. Const. Amends. 1, 4 and 9.

6. The ordinance deprives plaintiff of equal protection of the laws contrary to U.S.Const. Amend. 14 by invidiously discriminating against plaintiff by arbitrary and capricious treatment having no rational relation to any legitimate government purpose.

7. The ordinance deprives plaintiff and the public of rights of free speech and press, contrary to U.S.Const. Amend. 1, insofar as it prohibits advertising.

The Pre-emption issue

A. Federal Law.

The claim that the subject of the ordinance is pre-empted by the federal statute on controlled dangerous substances (which include marijuana, cocaine, opium and hashish among others), 21 U.S.C. § 801, et seq. cannot be sustained.

In the first place, that Act recognizes that many of the drugs dealt with have a useful and legitimate medical purpose and are needed for health and general welfare, while illegal flow and improper use of controlled substances have a substantial and detrimental effect on health and general welfare, 21 U.S.C. § 801(1) and (2).

In the second place, the design of the Act is to regulate, channel and permit the manufacture, distribution and dispensing of controlled substances through a system of control by registration, labeling and packaging, quotas, record keeping and prescription requirements, 21 U.S.C. §§ 821-829.

The major forms of prohibited conduct are aimed at the knowing or intentional manufacture, distribution, or possession with the intent to engage therein, of controlled dangerous substances (or their counterfeits) "except as authorized by this title," 21 U.S.C. § 841(a). Thus, the manufacture, distribution and dispensing of these items within the regulatory framework is recognized as lawful, while the same activities outside the regulatory...