High Gear and Toke Shop v. Beacom
| Decision Date | 22 October 1984 |
| Docket Number | 83SA287,Nos. 82SA525,s. 82SA525 |
| Citation | 689 P.2d 624 |
| Parties | HIGH GEAR AND TOKE SHOP; Shadowfax, Inc., a Colorado corporation d/b/a Krackers Tapes & Records # 24; Wayne L. Stansbury d/b/a Budget Tapes and Records # 17, Plaintiffs-Appellants, v. Paul Q. BEACOM in his official capacity as District Attorney for the County of Adams; Bert Johnson in his official capacity as Sheriff for the County of Adams; Kenneth Huck in his official capacity as Chief of Police for the City of Westminster, Defendants-Appellees. Deborah MARKS, and Thomas A. Marks, d/b/a Independent Records # 3; Independent Records of Cinderella City, Inc., a Colorado corporation d/b/a Independent Records # 1; James Brothers, Inc., a Colorado Corporation d/b/a Krackers Tapes & Records # 1 and Krackers Tapes and Records # 2; L.E.L., Inc., a Colorado corporation d/b/a Mom's Place, Plaintiffs-Appellants, v. Nolan L. BROWN in his official capacity as District Attorney for the County of Jefferson; Harold Bray in his official capacity as Sheriff for the County of Jefferson, Defendants-Appellees. |
| Court | Colorado Supreme Court |
Arthur M. Schwartz, P.C., Arthur M. Schwartz, Kay J. Rice, Bradley J. Reich, Denver, for plaintiffs-appellants.
Paul Q. Beacom, Dist. Atty., Steven L. Bernard, Chief Trial Deputy Dist. Atty., Brighton, for defendants-appellees.
The appellants challenge the constitutionality of the "Control of Drug Paraphernalia" Act (the Act), section 12-22-501 to 506, 5 C.R.S. (1983 Supp.). They present two grounds for invalidating the Act as unconstitutional: (1) it violates the due process clause of the United States Constitution and the Colorado Constitution due to overbreadth and vagueness; and (2) it violates their rights to a public trial and a jury trial in violation of the sixth amendment of the United States Constitution and section 16 of Article II of the Colorado Constitution. We hold that the Act is constitutional and thus affirm the decision of the trial courts.
In 1980, the Colorado legislature passed the Act, which was to become effective July 1, 1980. The impetus behind the legislature's action was the belief that the possession, sale, manufacture, delivery, and advertisement of drug paraphernalia encourage and glamorize the illegal use of controlled substances, as well as increase the public's acceptance of such use. The legislature felt that by regulating drug paraphernalia, it could promote the public welfare and deter the use of controlled substances. Section 12-22-501(1), 5 C.R.S. (1983 Supp.).
The appellants are owners of retail stores which sell records, tapes, t-shirts, and smoking accessories. In their line of accessories they sell water pipes, alligator clips, hookas, chillums, mirrors, razor blades, straws of various sizes, and different sizes of scales. 2
In July 1981, the appellants filed complaints seeking declaratory and injunctive relief in two district courts: Adams County and Jefferson County. The Adams County District Court granted a preliminary injunction, but the Jefferson County District Court denied a preliminary injunction. Both courts refused to grant a permanent injunction.
The appellants in both cases appealed the court orders denying permanent injunctive relief. Having consolidated the cases, we now review the appellants' pre-enforcement facial challenge.
In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the Supreme Court reviewed a drug paraphernalia licensing ordinance to determine whether or not the ordinance was unconstitutionally vague or overbroad. In deciding Flipside, the Supreme Court established guidelines for reviewing facial pre-enforcement overbreadth and vagueness challenges:
In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.
Id. 455 U.S. at 494, 495, 102 S.Ct. at 1191 (footnotes omitted).
In following Flipside, the Act must first be reviewed to determine whether it reaches a substantial amount of constitutionally protected conduct. Thus, we must determine whether the enactment infringes upon the appellants' first amendment rights, or is overbroad because it inhibits first amendment rights of others. 3 Flipside, 455 U.S. at 495, 102 S.Ct. at 1191.
The appellants contend that section 12-22-506, 5 C.R.S. (1983 Supp.), governing the advertisement of drug paraphernalia, Any person who places an advertisement in any newspaper, magazine, handbill, or other publication and who intends thereby to promote the sale in this state of equipment, products, or materials designed and intended for use as drug paraphernalia commits a class 2 misdemeanor and shall be punished as provided in section 18-1-106, C.R.S.
violates their first amendment rights to free speech. 4 That section provides:
In determining the state's power to regulate speech, a distinction must be made between commercial and noncommercial speech since the "Constitution ... accords a lesser protection to commercial speech than to other constitutionally guaranteed expression." Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 2349-50, 65 L.Ed.2d 341 (1980). The statute prohibits "advertisement" by persons who intend to "promote the sale" of items intended for use as drug paraphernalia. Thus, the statute regulates only commercial speech: "expression related solely to the economic interests of the speaker and its audience." Central Hudson, 447 U.S. at 561, 100 S.Ct. at 2349. 5
"Although speech which merely 'propose[s] a commercial transaction' is entitled to first amendment protection, the government may regulate or ban entirely commercial speech related to an illegal activity." Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213, 1217 (11th Cir.1982) (citing Virginia State Board of Pharmacy v. Virginia Citizens Council, 425 U.S. 748, 761, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346 (1976); Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563-64, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980); Pittsburgh Press Co. v. Human Relations Commission, 413 U.S. 376, 388, 93 S.Ct. 2553, 2560, 37 L.Ed.2d 669 (1973)). See also Flipside, 455 U.S. at 496, 102 S.Ct. at 1192.
The appellants contend that the statute does not merely regulate commercial speech related to illegal activities but that it also regulates the advertisement of items which are "commonly regarded as drug paraphernalia" but which are not illegal "so long as there is no intent by the seller that the items be used with controlled substances." Basically, the appellants argue that if they place an advertisement in a newspaper stating they have water pipes for sale, and if they do not intend the items to be used with controlled substances, then the statute unconstitutionally prohibits their advertisement because it prohibits speech related to a legal activity, i.e., the use of a water pipe with a legal substance.
The appellants have misconstrued the statute. The statute only prohibits a person from placing an advertisement when that person intends to promote the sale of items designed and intended for use as drug paraphernalia. Thus, there are three elements to the crime: (1) placing an advertisement; (2) intending the advertisement to promote the sale of the advertised item; and (3) intending the advertised item to be used as drug paraphernalia. If the
person placing the advertisement intends the advertised items to be used only with legal substances, as opposed to intending it to be used as drug paraphernalia, his advertisement is not prohibited by section 12-22-506, 5 C.R.S. (1983 Supp.).
The appellants also argue that the statute is overbroad, stating: "So long as an advertiser cannot completely cut off the State of Colorado from its distribution zone, he risks criminal punishment for every printed advertisement that promotes the sale in Colorado of what Colorado determines to be 'drug paraphernalia,' notwithstanding that such items are perfectly legal in the city or state where the advertisement is placed."
We have already decided, in part IV A of this opinion, that the enactment only regulates commercial speech. Therefore, "it is irrelevant whether the ordinance has an overbroad scope encompassing protected commercial speech of other persons, because the overbreadth...
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