Franza v. Carey, No. 80 Civ. 4311 (JMC).

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: CANNELLA
• Citation: 518 F. Supp. 324
• Parties: Edna FRANZA and Robert Brache, 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.
• Docket Number: No. 80 Civ. 4311 (JMC).
• Decision Date: 17 July 1981

518 F. Supp. 324

Edna FRANZA and Robert Brache, 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.

No. 80 Civ. 4311 (JMC).

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

July 17, 1981.

518 F. Supp. 325

COPYRIGHT MATERIAL OMITTED

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

Robert Abrams, Atty. Gen. of N. Y., New York City (Patricia C. Armstrong and Judith T. Kramer, Asst. Attys. Gen., New York City, of counsel), for defendants.

OPINION

CANNELLA, District Judge:

After consolidating a hearing on plaintiffs' motion for a preliminary injunction with a trial on the merits of the complaint, the Court finds for plaintiffs. New York State's drug paraphernalia law, Article 39 of the General Business Law §§ 850-853 (McKinney Supp. 1980-1981) the "Statute" or "Article 39", is hereby declared to be impermissibly vague and its enforcement is permanently enjoined.

FACTS

This action presents the latest judicial challenge to the constitutionality of legislation adapted from the Drug Enforcement Administration's "DEA" Model State Drug Paraphernalia Act the "Model Act". Plaintiffs Robert Brache and Edna Franza,¹ owners of retail establishments selling novelty items and smoking accessories, seek declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, alleging that the Statute² suffers from six constitutional infirmities.

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The defendants are Hugh L. Carey, as Governor of the State of New York, Robert Abrams, as Attorney General of the State of New York, and Richard Berman, as Director of New York State Health Systems Management.³

The Model Act

The DEA published the Model Act in August 1979 as a proposed amendment to the Uniform Controlled Substances Act. Prior to that time, a number of state and local governments enacted legislation that attempted to prohibit the sale and possession of drug paraphernalia due to the rapid growth of an industry which many perceived to condone and glamorize illegal drug use, especially among adolescents.⁴ The Model Act is divided into four articles.⁵ The first article, which contains two subsections,

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sets forth a lengthy definition of drug paraphernalia. The first subsection defines drug paraphernalia as anything "used, intended for use, or designed for use" in growing, processing or ingesting a controlled substance. The general definition is followed by twelve specific examples, each described by the phrase "used, intended for use, or designed for use." The list of examples concludes with the category "objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body," followed by a list of thirteen items that could be used for that purpose, such as bongs, miniature cocaine spoons, vials and roach clips. The second subsection contains fourteen factors or guidelines that "should be considered" by courts and law enforcement authorities when determining whether an item is drug paraphernalia

The second article defines the activities that constitute a criminal offense: (1) the use of or possession with intent to use drug paraphernalia; (2) the delivery or manufacture of drug paraphernalia by a person who knows or reasonably should know that the drug paraphernalia will be used with controlled substances; (3) the delivery of drug paraphernalia to minors, and (4) the advertisement of drug paraphernalia in the print media. The third article of the Model Act authorizes civil forfeiture of all drug paraphernalia and the fourth article provides that each section is severable in the event that any part of the Model Act is declared unconstitutional.

The Statute

The definition of drug-related paraphernalia in section 850 is less comprehensive than in Article I of the Model Act since it omits any general definition and adopts only eight of the Model Act's twelve specific examples. Each example is described by the phrase "used or designed for the purpose of" growing, processing or ingesting controlled substances. Section 850, moreover, omits the Model Act's list of thirteen items in the category of "objects used or designed for the purpose of ingesting, inhaling, or otherwise introducing" certain illegal drugs into the human body as well as the fourteen enforcement guidelines.

Under section 851, it is a violation "for any person, firm or corporation to possess with 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" stated in section 850(2). Unlike the Model Act, however, the Statute does not impose criminal sanctions for violations. Rather, section 852(2) declares the possession with intent to sell or the offering for sale of drug paraphernalia to be a "nuisance" and sections 852 and 853 provide for civil penalties, including (1) the revocation, following an administrative hearing, of the vending license or permit of any person or corporation that sold or offered to sell merchandise in violation of the Statute, see N.Y.Gen.Bus.Law § 852(1), and (2) injunctive relief and the assessment of a fine in an amount of $1,000 to $10,000 per violation following judicial proceedings commenced by any one of a number of enforcement officers designated in section 853.⁶ In addition, section 852(2) provides for civil forfeiture of drug paraphernalia. Thus, the major differences between the Statute and the Model Act are that the Statute (1) imposes civil rather than criminal penalties for its violation, (2) defines a violation solely in terms of the alleged violator's apparent rather than actual knowledge of an item's drug-related purpose, (3) does not contain a severability clause, (4) omits the Model Act's general definition of drug paraphernalia and fourteen enforcement guidelines, (5) does not prohibit the advertisement of drug paraphernalia, and (6) does not create a special violation for the sale of drug-related paraphernalia to minors.

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Plaintiffs' Boutiques

Plaintiff Brache owns the "Elephant's Trunk," located in Mount Kisco, New York and plaintiff Franza owns "East of the Sun," located in Scarsdale, New York. Both stores sell assorted clothing, jewelry and gift items and contain a separate "smoking accessories" section. Sales from these smoking accessories sections account for approximately thirty percent of each store's profits. Items sold in these sections include, among other things, a variety of pipes, rolling papers, bongs, scales, spoons, clips, grooved and ungrooved mirrors, mannitol, marihuana test kits, power hitters, the Cocaine Consumers Handbook and the Marijuana Growers Guide. No tobacco products are sold in the smoking accessories sections and plaintiffs concede that certain items have only one conceivable use — the preparation or ingestion of controlled substances. These items will be referred to as "single-use items."⁷ Other items sold, such as pipes, rolling papers and clips, may or may not be used for drug-related purposes and will be referred to as "dual-use items."

The parties produced expert testimony regarding one of the most obvious dual-use items — pipes. The testimony of these witnesses indicates that while certain pipe features may be preferable for smoking tobacco,⁸ the physical characteristics of a pipe, such as the material it is made from, the bowl size, and the presence or absence of a screen, stem or chamber, are not determinative of what substance the pipe user will smoke. In the last analysis, the individual can smoke any substance in any pipe if he desires to do so. Similarly, the use to which rolling papers and other dual-use items can be put is limited only by the user's imagination.

The Court, however, does not credit plaintiffs' testimony that their sole purpose in selling both the single-use and dual-use items is to make a profit and that they never intended any items to be used for a drug-related purpose. Plaintiffs' awareness of the drug-related purpose of at least certain items sold in their smoking accessories sections is amply demonstrated by the evidence presented at trial, including the manufacturers' catalogs from which some of the items were ordered,⁹ the instructions accompanying certain items, the conversations between plaintiffs' sales personnel, including plaintiff Franza, and Westchester County undercover investigators, as well as the variety and arrangement of the items offered for sale in the smoking accessories sections. Therefore, the Court concludes that plaintiffs intended certain items sold in their smoking accessories sections to be used for a drug-related purpose and that the Statute clearly informed them that such conduct would constitute a violation.

Although plaintiffs assert six constitutional claims in their complaint, they have pressed only three in their post-trial memorandum: (1) the Statute is not rationally related to any legitimate legislative goal and therefore violates the due process clause of the fourteenth amendment, (2) the Statute is impermissibly vague in violation of the due process clause of the fourteenth

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amendment, and (3) the Statute's civil forfeiture provision violates the fourth and fourteenth amendments by sanctioning warrantless seizure and confiscation of property without a hearing.¹⁰

DISCUSSION

Preliminary Issues

Although the defendants have not raised the issue, the Court finds that plaintiffs have demonstrated a genuine threat that Article 39 will be enforced against them by state or local enforcement officials. Therefore, the Court possesses subject matter jurisdiction since an actual case or controversy exists as required by...