FLORIDA BUSINESSMEN, ETC. v. State of Fla.

• Decision Date: 30 September 1980
• Docket Number: No. 80-0954.,80-0954.
• Parties: FLORIDA BUSINESSMEN FOR FREE ENTERPRISE, an unincorporated association, High Quality Headquarters, Inc., a Florida Corporation, Three Guys Distributors, Inc., a Florida Corporation, and Correct Count Co., Inc., a New York Corporation, Plaintiffs, v. The STATE OF FLORIDA, Jim Smith as Attorney General of the State of Florida, Kenneth Katsaris, as a representative of the class of Defendants being the sixty-seven duly elected Sheriffs of the State of Florida, Harry Morrison, as a representative of the class of Defendants being the duly elected State Attorneys of the State of Florida, Defendants.
• Court: U.S. District Court — Northern District of Florida

499 F. Supp. 346

FLORIDA BUSINESSMEN FOR FREE ENTERPRISE, an unincorporated association, High Quality Headquarters, Inc., a Florida Corporation, Three Guys Distributors, Inc., a Florida Corporation, and Correct Count Co., Inc., a New York Corporation, Plaintiffs, v. The STATE OF FLORIDA, Jim Smith as Attorney General of the State of Florida, Kenneth Katsaris, as a representative of the class of Defendants being the sixty-seven duly elected Sheriffs of the State of Florida, Harry Morrison, as a representative of the class of Defendants being the duly elected State Attorneys of the State of Florida, Defendants.

No. 80-0954.

United States District Court, N. D. Florida, Tallahassee Division.

September 30, 1980.

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COPYRIGHT MATERIAL OMITTED

Tobias Simon, Miami, Fla., for plaintiffs.

Richard A. Hixson and Paul M. Eakin, Tallahassee, Fla., for defendant Katsaris.

MEMORANDUM OPINION AND PERMANENT INJUNCTION

HIGBY, District Judge.

It is often said that differences of opinion underlie the sale of inferior land and the marriage of ugly people. To this list we may add the question of the constitutionality of Florida's "Head Shop" law.¹ The law in broadly sweeping language prohibits possession, delivery, possession with intent to deliver, and manufacture of drug paraphernalia. Agreeing partially with each side, I declare the portion of the "Head Shop" law prohibiting possession of "paraphernalia" unconstitutional and enjoin its enforcement. The remainder of the law I find constitutional.²

The Facts

The facts are simple and undisputed. The Plaintiffs are a manufacturer, a distributor, and a retailer of items arguably outlawed by Chapter 80-30. Plaintiff, Florida Businessmen for Free Enterprise, is an unincorporated association of manufacturers, distributors, and retailers of the arguably outlawed items. Selling these items is Plaintiffs' primary business, and they will suffer financial loss from enforcement of Chapter 80-30. Also, the law requires them to unwillingly alter their conduct. The Defendants are the State of Florida; Jim Smith, Attorney General for the State of Florida; Harry Morrison, State Attorney for the Second Judicial Circuit of Florida; and Kenneth Katsaris, Sheriff of Leon County. The Defendants intend to enforce the law.

Preliminary Matters

Jurisdiction

The Plaintiffs seek to prevent denial by State action of their constitutional rights. They ask for a judgment declaring Chapter 80-30 unconstitutional and enjoining the Defendants from enforcing it. There is an actual controversy among the parties. I have jurisdiction. 28 U.S.C. § 2201; 28 U.S.C. § 1331; 28 U.S.C. § 1343; 42 U.S.C. § 1983; High Ol' Times, Inc. v. Busbee, 621 F.2d 135 (5th Cir. 1980).

Class Action

The Plaintiffs have sued under Federal Rule of Civil Procedure 23 as class representatives and sued Defendants Morrison and Katsaris as class representatives. By bringing this suit as a class action Plaintiffs have created complications, probably unnecessarily. Ordinarily the propriety of a class action should be resolved before the merits of a case are resolved. See, 7A, Wright and Miller, Federal Practice and Procedure: Civil § 1785 (1972). Under the peculiar facts of this case and upon stipulation of the parties, Katsaris and Morrison are certified as class representatives for purpose of restraint by injunction only.³ All other class certification issues will be resolved at a later date.

State of Florida's Motion to Dismiss

The State has moved to dismiss the action against it on the ground that it is not a person within the meaning of Title 42, United States Code, Section 1983, the statute Plaintiffs sue under. The State is correct, and its motion is granted. See, Cheramie v. Tucker, 493 F.2d 586 (5th Cir. 1974), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 107 (1974).⁴

The Merits

The Vagueness Challenge

Chapter 80-30 adds four crimes to the Florida Statutes. Section 893.147 defines them as follows:

§ 893.147 Possession, manufacture, delivery, or advertisement of drug paraphernalia.

(1) Possession of drug paraphernalia.—It is unlawful for any person to possess drug paraphernalia. Any person who violates this section is guilty of a misdemeanor of the first degree, punishable as provided for in s. 775.082, s. 775.083, or s. 775.084.

(2) Manufacture or delivery of drug paraphernalia.—It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of this act. Any person who violates this section is guilty of a felony of the third degree, punishable as provided for in s. 775.082, s. 775.083, or s. 775.084.

(3) Delivery of drug paraphernalia to a minor.—Any person 18 years of age or over who violates subsection (2) by delivering drug paraphernalia to a person under 18 years of age is guilty of a felony of the second degree, punishable as provided for in s. 775.082, s. 775.083, or s. 775.084.

(4) Advertisement of drug paraphernalia. It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this section is guilty of a misdemeanor of the first degree, punishable as provided for in s. 775.082, s. 775.083, or s. 775.084.

Drug paraphernalia, the "Head Shop" law defines as:

all equipment, products, and materials of any kind which are used, intended for use, or designed 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 this chapter. Drug paraphernalia is deemed to be contraband which shall be subject to civil forfeiture.

§ 893.145, Fla.Stat. (Supp.1980). The law goes on to list generic examples of drug paraphernalia and some relevant factors to evaluate in determining if an object is drug paraphernalia. §§ 893.145, 893.146, Fla. Stat. (Supp.1980).

The Plaintiffs level a barrage of constitutional challenges at the statute. They say it denies (1) Due Process because it creates mandatory presumptions of guilt, (2) denies Due Process because it is too vague, (3) denies Due Process because it is overbroad, (4) violates the First Amendment right to freedom of expression, (5) creates an impermissible burden upon interstate commerce in violation of Article I, Section 8, of the United States Constitution, (6) denies Due Process because it has no rational basis, and (7) denies equal protection because it affects only certain kinds of stores. Plaintiffs have concentrated on their vagueness argument, and it is the only one of merit.

The Fourteenth Amendment's guarantee of Due Process prohibits vague statutes:

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that 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.

Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227 (1972) (footnotes omitted). Simple fundamental fairness requires a statute to set out prohibited conduct in terms people of ordinary intelligence can readily understand. Id. See also, Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Bambu Sales, Inc. v. Gibson, 474 F.Supp. 1297 (D.N.J.1979). The parties agree upon and unanimously laud the Fourteenth Amendment's protections against vagueness. They all quote Grayned v. City of Rockford, supra, in support of their contradictory positions. They even all agree upon what is required to make the "Head Shop" law constitutional. It must, they all say, require proof that the defendant used the paraphernalia, intended the paraphernalia to be used, or knew it would be used illegally. Their differences of opinion are over the statute's meaning.

Florida's "Head Shop" law, with a few deviations one of which is critical, is copied from the Model Drug Paraphernalia Act drafted by the Drug Enforcement Administration of the United States Department of Justice (August, 1979) (hereinafter MDPA or Model Act). Other courts have considered ordinances and statutes based upon the MDPA, construed them to require proof of a defendant's criminal intent, and found them constitutional. See, Florida Businessmen for Free Enterprise v. City of Hollywood, Case No. 80-6157-Civ-NCR (S. D.Fla. Aug. 29, 1980); Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. 289 (D.Del.1980); Record Revolution No. 6, Inc. v. City of Parma, 492 F.Supp. 1157 (N.D. Ohio 1980). The Defendants rely on these cases as showing the...