Franza v. Carey

• Decision Date: 24 August 1982
• Citation: 115 Misc.2d 882,454 N.Y.S.2d 1002
• Parties: Edna FRANZA, Rafael Brache, and Jerry Schneiderman, Plaintiffs, v. Hugh L. CAREY, as Governor of New York State, Robert Abrams, as Attorney General of New York State, and Richard Berman, as Director of New York State Health Systems Management, Defendants.
• Court: New York Supreme Court

Page 1002

454 N.Y.S.2d 1002

115 Misc.2d 882

Edna FRANZA, Rafael Brache, and Jerry Schneiderman, Plaintiffs, v. Hugh L. CAREY, as Governor of New York State, Robert Abrams as Attorney General of New York State, and Richard Berman, as Director of New York State Health Systems Management, Defendants.

Supreme Court, New York County.

Aug. 24, 1982.

Gerald B. Lefcourt, New York City, for plaintiff; Joshua Dratel, New York City, of counsel.

Robert Abrams, Atty. Gen., for defendant; Judith Kramer, Asst. Atty. Gen., New York City, of counsel.

EVE PREMINGER, Justice:

Plaintiffs seek a preliminary injunction to prevent the enforcement of Article 39 of the New York State General Business Law, the so-called "Head Shop Act", claiming that it violates the Federal and State constitutions. Defendants oppose the motion for preliminary relief and move to dismiss the action asserting that it is barred by res judicata and that the complaint fails to state a cause of action.

Article 39, adapted from the Drug Enforcement Administration's Model State Drug Paraphernalia Act (the "Model Act"), prohibits the possession and sale of drug related paraphernalia. It authorizes the seizure and forfeiture of such goods (Section 852) and the revocation of retail licenses and permits (Section 852). The statute also authorizes local authorities to file suit to enjoin proscribed activity and provides for penalties ranging from one thousand to ten thousand dollars upon a finding that a violation has occurred (Section 853).

Plaintiffs are owners of boutiques and novelty stores which also sell certain smoking accessories that they concede could be considered drug paraphernalia. In a prior federal action, plaintiff Franza joined with one Robert Brache to contest the constitutionality of Article 39. Although these plaintiffs were initially successful in obtaining an order declaring the statute unconstitutional (Franza v. Carey, 518 F.Supp. 324 ), a subsequent appellate decision in a related case put the validity of that decision in question. (Brache v. Westchester, 658 F.2d 47 cert. den. 455 U.S. 1005, 102 S.Ct. 1643, 71 L.Ed.2d 874.)

In Brache, in determining the facial validity of a similar Westchester ordinance, the court divided drug paraphernalia into two major categories: single-use items--those with no possible function other than the preparation or ingestion of drugs--such as free base kits, cocaine kits, toke-o-matic bong hitters, and marijuana test kits; and multi-use items, such as rolling paper and pipes which concededly have other legal uses. It held that the Westchester ordinance has a "core meaning" (658 F.2d at 51) that gave plaintiffs fair notice that their sales of single-use items were prohibited. The plaintiffs were therefore barred, under traditional rules of standing (U.S. v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 ) from litigating their claims as to multi-use items also sold.

At that time the Franza plaintiffs were selling single and multi-use items. Since the Brache holding would clearly apply to their case, in March of this year plaintiffs and defendants entered into a stipulation vacating the federal court order and dismissing the action.

As a preliminary matter, this court rejects defendants' contention that the plaintiffs are barred from litigating claims which were raised or which could have been raised in the prior federal action. The stipulation in Franza is clearly not a final judgment against plaintiffs on the merits. In fact, the judgment dismissed by the stipulation was a judgment (subject to appeal) in favor of plaintiffs on the merits. Even if the stipulation had not been executed, and the judgment reversed on appeal for lack of standing (Brache v. Westchester, supra), such a dismissal would also not be a judgment on the merits. Accordingly, plaintiffs are not barred from litigating their claims in this court.

Turning to the substance of plaintiffs' claims, they first assert that Article 39 is void for vagueness. Section 850 of the statute defines "drug related paraphernalia" as including those items "used or designed for the purpose of" growing, processing, or ingesting controlled substances (as defined by the Public Health Law). Plaintiffs contend that this definition is impermissibly vague because it forces a seller to guess as to the use or design contemplated by purchasers and manufacturers. Further, plaintiffs assert that Article 39's standard of liability--the intent to sell, offer for sale, or purchase drug related paraphernalia "under circumstances evincing knowledge that the paraphernalia is possessed, sold or purchased for one or more of the drug related purposes" (Section 851)--would permit a finding of liability upon less than actual knowledge. Plaintiffs claim that such a constructive knowledge standard is constitutionally impermissible.

With respect to violations of the federal constitution, these contentions have been considered and rejected by the Supreme Court in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) where the Court upheld a drug paraphernalia statute containing similar language against a pre-enforcement attack. The Court noted that a statute may be struck on facial vagueness grounds only when "impermissibly vague in all of its applications," --- U.S. ---- at ----, 102 S.Ct. 1186, at 1191, 71 L.Ed.2d 362, at 369. Since certain items of drug paraphernalia were clearly proscribed and defined by the statute, the statute was not void for vagueness.

The ordinance in Hoffman required that the retailer obtain a license to sell "any items, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs, as defined by the Illinois Revised Statutes." The Court held that even if the ordinance were construed as quasi criminal, the "designed or marketed for use" standard was sufficiently clear as:

A business person of ordinary intelligence would understand that this term refers to the design of the manufacturer, not the intent of the retailer or customer. It is also sufficiently clear that items which are principally used for non drug purposes, such as ordinary pipes, are not "designed for use" with illegal drugs. 455 U.S. at ----, 102 S.Ct. at 1195, 71 L.Ed.2d at 373.

While noting that the ordinance and accompanying guidelines contained some ambiguities, the Court held that the "designed for use" standard is not vague with respect to at least some of the items sold, such as "roach clips" and colored rolling paper. Moreover, "marketed for use" is a "transparently clear" standard which "describes a retailer's intentional display and marketing of merchandise." 455 U.S. at ----, 102 S.Ct. at 1195, 71 L.Ed.2d at 374. Since Article 39 contains substantially the same language as the Hoffman ordinance, it is clear that the statute does not violate the Federal Constitution.

No different result is reached when applying the New York State Constitution. Even assuming that New York affords litigants a stricter due process standard, see People v. Adams, 53 N.Y.2d 241, 250, 440 N.Y.S.2d 902, 423 N.E.2d 379, (1980); People v. Settles, 46 N.Y.2d 154, 161, 412 N.Y.S.2d 874, 385 N.E.2d 612 (1978), the principle, relied upon in Brache, supra, that if a statute clearly prohibits and defines certain conduct, a facial vagueness claim is defeated, applies with equal force under New York laws. See, e.g., People v. Ferber, 96 Misc.2d 669, 409 N.Y.S.2d 632 (1978).

Article 39 has the same core meaning as the Westchester ordinance analyzed in Brache. It provides fair warning as to certain prohibited items and therefore cannot be struck on facial vagueness grounds. Plaintiffs recognized this by entering into a stipulation dismissing the federal court order in Franza. Plaintiffs demonstrated their understanding of what was prohibited under the Brache category of single use items by removing free base kits, cocaine purification kits, marijuana and cocaine testing kits, "concert kits", marygins, Marijuana Grower's Guides and Cocaine User's Handbooks from sale or display.

Other courts considering similar drug paraphernalia legislation have also rejected facial challenges. These decisions issued prior to Hoffman and Brache, did not discuss coverage of single and multi use items. Instead, they held that the definitional phrases "designed for use" and "intended for use" applied to the subjective intent of the alleged violator of the statute, and thus provided fair notice. See, e.g., Franza v. Carey, Brache v. County of Westchester, 507 F.Supp. 566 (S.D.N.Y.1981); Casbah v. Thone, 651 F.2d 551 (9th Cir. 1981); New England Accessories Trade Association v. Browne, 502 F.Supp. 1245 (D.Conn.1980); Mid Atlantic Accessories Trade Association v. Maryland, 500 F.Supp. 834 (D.Md.1980); Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. 289 (D.Del.1980); World Imports v. Woodbridge Township, 493 F.Supp. 428 (D.N.J.1980); and Nova Records v. Sendak, 504 F.Supp. 938 (S.D.Ind.1980). See also People v. Taylor, 70 Misc.2d 970, 418 N.Y.S.2d 726, (1972) (upholding Section 220.50 of the Penal Law, "criminally using drug paraphernalia in the second degree," against a vagueness challenge); Penal Law, Sections 140.35, Criminal Possession of Burglar's Tools, and 170.40, Criminal Possession of Forgery Devices (containing "designed for use" language). ¹

The New Jersey Supreme Court recently held similarly in declaring that:

"the phrase 'used or intended for use' .... can refer to any person's use or intended use. That construction, however, does not create a danger that a defendant can be convicted solely for another's use or intended use since the substantive offenses, as presently discussed, clearly require scienter of the person charged." The Town Tobacconist v. Kimmelman, 91 N.J.2d 248, 450 A.2d 566.

Examining Article 39 in the same light, I hold that the term "designed for use" applies to the...