Brache v. County of Westchester

• Decision Date: 28 January 1981
• Docket Number: 80 Civ. 4228-CSH.
• Citation: 507 F. Supp. 566
• Parties: Robert BRACHE and Edna Franza, Plaintiffs, v. COUNTY OF WESTCHESTER, Alfred Del Bello, Kenneth Hale, Samuel S. Yasgur, Thomas Delaney, Jerome Herlihy and Terrence Shames, Defendants.
• Court: U.S. District Court — Southern District of New York

507 F. Supp. 566

Robert BRACHE and Edna Franza, Plaintiffs, v. COUNTY OF WESTCHESTER, Alfred Del Bello, Kenneth Hale, Samuel S. Yasgur, Thomas Delaney, Jerome Herlihy and Terrence Shames, Defendants.

80 Civ. 4228-CSH.

United States District Court, S. D. New York.

January 28, 1981.

Gerald B. Lefcourt, New York City, for plaintiffs; Richard Ware Levitt and Randye S. Retkin, New York City, of counsel.

Samuel S. Yasgur, Westchester County Atty., White Plains, N. Y., for defendants, Del Bello, Hale & Delaney; Jonathan Lovett, Deputy County Atty., Jane Bilus Gould, Asst. County Atty., New York City, of counsel.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Plaintiff Robert Brache owns a retail store, designated a "boutique," called the Elephant's Trunk, in Mount Kisco, Westchester County, New York State. Plaintiff Edna Franza owns the East of the Sun Boutique in Scarsdale, Westchester County. They commenced this action to challenge Local Law No. 5-1980, promulgated by the Westchester County Board of Legislators (hereinafter the "ordinance"), which amends Westchester's Consumer Protection Code to add a new Article IX entitled "Sale and Display of Drug Accessories." The defendants are the County, the county executive, and officials charged with the enforcement of county laws. Plaintiffs sought a declaration that the ordinance violated the United States Constitution in several respects; and also that Article 39 of the New York State General Business Law, effective July 30, 1980 and dealing with "Drug-Related Paraphernalia," preempted the field. Plaintiffs prayed for a preliminary and permanent injunction of the ordinance's enforcement.

This Court entered a temporary restraining order, and scheduled an evidentiary hearing on plaintiffs' request for a preliminary injunction. That hearing was consolidated with trial on the merits. Rule 65(a)(2), F.R.Civ.P. Defendants consented to a continuance of the restraining order pending decision, a voluntary maintenance of the status quo which the Court appreciates. The case has been tried, and ably briefed and argued. The following constitutes the Court's Findings of Fact and Conclusions of Law under Rule 52(a).

I.

The Ordinance

The Westchester County ordinance provides as follows:

"ARTICLE IX — SALE AND DISPLAY OF DRUG ACCESSORIES

"Section 863.221. LEGISLATIVE FINDINGS. It is hereby declared and found that the sale of items used to aid the storage, use, concealment and test the strength or purity of illegal drugs is a widespread and growing practice which is contrary to the public interest. Many parent and teacher organizations, such as the New York State Congress of Parents and Teachers, as well as Local P.T.A. groups have recognized the problem and have encouraged and endorsed legislation that would prohibit the sale of drug-related paraphernalia. Therefore, public safety, health, welfare and morals would be best served by discontinuing the sale of such items.

"Section 863.222. Definitions. a) The term `drug paraphernalia' means all equipment products and materials of any kind which are used, intended for use, or desinged sic for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of the laws of the State of New York. It includes, but is not limited to:

"1. Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

"2. Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances;

"3. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;

"4. Testing equipment used, intended for use, or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances;

"5. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;

"6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances;

"7. Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining marihuana;

"8. Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;

"9. Capsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances;

"10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances;

"11. Hypodermic syringes, needles and other objects used, intended for use or designed for use in parenterally injected controlled substances in the human body;

"12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introduced sic marihuana, cocaine, hashish, or hashish oil into the human body, such as:

"a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes; with or without screens, permanent screens, hashish heads, or punctured metal bowls;

"b. Water pipes;

"c. Carburetion tubes and devices;

"d. Smoking and carburetion masks;

"e. Roach clips; meaning objects used to hold burning material such as marahuana sic cigarette, that has become too small or too short to be held in the hand;

"f. Miniature cocaine spoons and cocaine vials;

"g. Chamber pipes;

"h. Carburetor pipes;

"i. Electric pipes;

"j. Air-driven pipes;

"k. Chillums;

"l. Bongs;

"m. Ice pipes or chillers;

"13. `Cocaine Spoon': A spoon with a bowl so small that the primary use for which it is reasonably adopted or designed is to hold or administer cocaine, and which is so small as to be unsuited for the typical, lawful uses of a spoon. A cocaine spoon may or may not be labeled as a `cocaine' spoon or `coke' spoon.

"14. `Marijuana or Hashish Pipe': A pipe characterized by a bowl which is so small that the primary use for which it is reasonably adopted or designed is the smoking of marijuana or hashish, rather than lawful smoking tobacco, and which may or may not be equipped with a screen.

"In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:

"1. Statements by an owner or by anyone in control of the object concerning its use;

"2. Prior convictions, if any, of an owner, or of anyone in control of the object, under any State or Federal law relating to any controlled substance;

"3. The proximity of the object, in time and space, to a direct violation of this Act;

"4. The proximity of the object to controlled substances;

"5. The existence of any residue of controlled substances on the object;

"6. Direct or cirucmstantial sic evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he knows, or should reasonably know, intend to use the object to facilitate violation of this Act; the innocence of an owner, or of anyone in control of the object, as the direct violation of this Act should not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

"7. Instructions, oral or written, provided with the object concerning its use;

"8. Descriptive materials accompanying the object which explain or depict its use;

"9. National and local advertising concerning its use;

"10. The manner in which the object is displayed for sale;

"11. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

"12. Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise;

"13. The existence and scope of legitimate uses for the object in the community;

"14. Expert testimony concerning its use.

"Section 863.223. SALE AND DISPLAY OF DRUG ACCESSORIES. It shall be a violation of this code for any merchant or other person to knowingly sell, offer for sale, or display any cocaine spoon, marijuana pipe, hashish pipe, or any other drug-related paraphernalia.

"Section 863.224. PENALTIES. Notwithstanding any provision in the Westchester County Charter, the Westchester County Administrative Code or any other local laws, a person who violates any provision of this article is guilty of a misdemeanor.

"Section 863.225. SEVERABILITY. If any clause, sentence, paragraph or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or part thereof directly involved in the controversy and in which such judgement sic shall have been rendered.

"Section 863.226. EFFECTIVE DATE. This Local Law shall take effect on the sixtieth day after it shall have become a law."

Westchester's law is one of many recent state and local enactments aimed at drug paraphernalia. They are prompted by considerations summarized in the statement of United States Deputy Assistant Attorney General Irvin B. Nathan to the House of Representatives' Select Committee on Narcotics and Drug Abuse Control (November 1, 1979), concerning the Model State Drug Paraphernalia Act (the "Model Act") drafted by the Department of Justice:

"The Department of Justice

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