High Ol'Times, Inc. v. Busbee

• Decision Date: 14 April 1978
• Docket Number: Civ. A. No. 78-628.
• Citation: 449 F. Supp. 364
• Parties: HIGH OL' TIMES, INC., Atlantis Distributing, Inc., Windfaire, Inc., Bananas, Limited, a proprietorship of Pat Gibson, Star Blaze, a partnership, O'Connell's Coins & Novelties, a proprietorship of Joseph H. O'Connell, Jr., Shoppers Products East, a proprietorship of Fred Hudspeth, Frogs, Inc., Hollow Earth, a partnership, Steven Swimmer, John B. McLaughlin; Lynn Griggs and Leonard A. D'Orland v. George BUSBEE, Governor of Georgia, Arthur K. Bolton, Attorney General of Georgia, Randall Peek, District Attorney of the Stone Mountain Judicial Circuit, John R. Thompson, Solicitor for the State Court of DeKalb County, Robert T. Johnston, Solicitor for the State Court of Muscogee County, Hinson McAuliffe, Solicitor for the State Court of Fulton County and Herbert A. Rivers, Solicitor of the State Court of Cobb County.
• Court: U.S. District Court — Northern District of Georgia

449 F. Supp. 364

HIGH OL' TIMES, INC., Atlantis Distributing, Inc., Windfaire, Inc., Bananas, Limited, a proprietorship of Pat Gibson, Star Blaze, a partnership, O'Connell's Coins & Novelties, a proprietorship of Joseph H. O'Connell, Jr., Shoppers Products East, a proprietorship of Fred Hudspeth, Frogs, Inc., Hollow Earth, a partnership, Steven Swimmer, John B. McLaughlin; Lynn Griggs and Leonard A. D'Orland v. George BUSBEE, Governor of Georgia, Arthur K. Bolton, Attorney General of Georgia, Randall Peek, District Attorney of the Stone Mountain Judicial Circuit, John R. Thompson, Solicitor for the State Court of DeKalb County, Robert T. Johnston, Solicitor for the State Court of Muscogee County, Hinson McAuliffe, Solicitor for the State Court of Fulton County and Herbert A. Rivers, Solicitor of the State Court of Cobb County.

Civ. A. No. 78-628.

United States District Court, N. D. Georgia, Atlanta Division.

April 14, 1978.

COPYRIGHT MATERIAL OMITTED

Reber Boult, The Law Project, Atlanta, Ga., for plaintiffs.

G. Stephen Parker, Asst. Atty. Gen., Atlanta, Ga., for defendants.

ORDER

RICHARD C. FREEMAN, District Judge.

Plaintiffs bring this action seeking injunctive and declaratory relief and assailing the constitutionality of three newly-enacted Georgia criminal statutes: (1) Ga.Code § 79A-811.1, proscribing the sale or offer of "drug-related objects" to anyone; (2) Ga. Code § 26-9913, prohibiting the sale or providing of such objects to minors; and (3) Ga.Code § 26-9912, outlawing the sale or providing of any "restricted drug-related printed material" to minors.¹ Full text of the three Georgia statutes is appended hereto. The complaint identifies the statutes' challengers as a distributor, several retailers, and two occasional customers in the so-called "head shop" trade.² Plaintiffs' claims are alleged to arise under the United States Constitution Art. I, § 8, cl. 3; Art. I, § 9, cl. 3; Art. IV, § 2, cl. 1; the First, Fifth, Ninth, and Fourteenth Amendments; and 42 U.S.C. §§ 1983 and 1988. Jurisdiction of the court is invoked under 28 U.S.C. §§ 1331, 1343(3) and (4).

Presently before the court is plaintiffs' motion for a temporary restraining order, Rule 65(b), Fed.R.Civ.P., which motion came on for hearing by this court on April 11, 1978. At the conclusion of the hearing on the motion, plaintiffs' motion was DENIED as to Ga.Code §§ 79A-811.1 and 26-9913; and was taken UNDER ADVISEMENT as to Ga.Code § 26-9912.

ARTICLE III REQUIREMENTS

Before proceeding to the merits of the motion, the justiciability of plaintiffs' action, particularly plaintiffs' standing to sue, must be examined. In order to avoid rendering advisory opinions, the court must evaluate the substance of plaintiffs' claimed "injury in fact" and alleged position within the "zone of interests." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Clearly the law does not require, nor even allow, under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), that plaintiffs await and suffer ongoing state criminal prosecutions under the challenged acts to evidence the necessary injury and interest. Threatened harm which is real, not "imaginary", "speculative", id. at 42, 91 S.Ct. 746, or "chimerical", Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), will satisfy the standing prerequisites. Steffel v. Thompson, 415 U.S. 452, 458-59, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Doran v. Salem Inn, Inc., 422 U.S. 922, 930-31, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Wooley v. Maynard, 430 U.S. 705, 712, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977).

Plaintiffs herein have not yet been charged with violation of the disputed statutes but have demonstrated an actual threat of imminent prosecution if they continue in their trade or purchases not knowing which objects and which printed material in the shops' inventories fall within the ambit of these statutes. Individual plaintiff retailers have been subjected to business license revocations pursuant to county ordinance enforcement preceding enactment of the new state statutes. They have been subjected to arrests described as harassing when the officials failed to prosecute the charged criminal conduct. Testimony of Daniel Thomas Lackey. Counsel for plaintiffs, alarmed that his present clients were to be the enforcement targets of these three statutes, telephoned his concern to the respective, responsible enforcement chiefs. Counsel's alarm, rather than being allayed, was heightened by the officials' strong response of intended arrests and prosecution. The officials, defendants in this action, failed at the hearing on plaintiffs' motion for a temporary restraining order to deny or to refute the perceived and demonstrated threat of plaintiffs' imminent state prosecutions. See Penthouse International Limited v. McAuliffe, 436 F.Supp. 1241, 1247 & n. 14 (N.D.Ga.1977). The combination of plaintiffs' past history of suffering harassing arrest and their present sense of unrefuted impending prosecutions if they continue doing business, appears to constitute the concrete harm and imminence which the court must require.

If the plaintiff distributor and retailers remove items which are potentially identifiable as "drug-related" under the statutes, they contend that they will deplete their inventories by approximately 80%. To further document their threatened harm, these same plaintiffs testified of their present inability to retain a full complement of sales personnel with the constant foreboding of possible arrests. In this instance, measured against the circumstances of Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) and Carey v. Population Services International, 431 U.S. 678, 683 & n. 3, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), the three Georgia "head shop" statutes inflict on these plaintiffs the:

`injury in fact' that satisfies Art. III's case or controversy requirement, since `the legal duties created by the statutory sections under challenge are addressed directly to vendors such as these plaintiffs. They are obliged either to heed the statutory prohibition, thereby incurring a direct economic injury through constriction of their market, or to disobey the statutory command and suffer' legal sanctions.

Carey v. Population Services International, supra, at 683, 97 S.Ct. at 2015 quoting Craig v. Boren, supra, 429 U.S. at 194, 97 S.Ct. 451. Plaintiffs have demonstrated the qualifying personal stake and adversity of interests to overcome the court's constitutional limitations and prudential restraints, see Barrows v. Jackson, 346 U.S. 249, 255-57, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), in this litigation.

ABSTENTION

GA.CODE §§ 79A-811.1 and 26-9913

The court, ruling from the bench at the April 11, 1978, hearing, denied plaintiffs' motion for a temporary restraining order as to Ga.Code §§ 79A-811.1 and 26-9913, proscribing transactions involving "drug-related objects." An explication of our denial of plaintiffs' motion upon grounds of abstention is now in order. Our examination will begin with a presentation of relevant clauses of the statutes and an example of plaintiffs' constitutional challenge and will follow with a statement of our rationale for abstention.

Briefly, Ga.Code §§ 79A-811.1 and 26-9913 declare that it is unlawful "to sell, offer to sell, exchange, or offer to exchange any drug-related object. . . ." Two definitions of "drug-related objects" are pronounced. In Ga.Code § 79A-811.1,

`Drug-related object' means any instrument, device or object which is primarily intended for one or more of the following purposes: (1) to inject, ingest, inhale or otherwise introduce into the human body marijuana or a controlled substance; (2) to enhance the effect on the human body of marijuana or a controlled substance; (3) to test the strength, effectiveness, or purity of marijuana or a controlled substance. Emphasis added.

In Ga.Code § 26-9913 prohibiting sales to minors,

`Drug-related objects' means any machine, instrument, tool, equipment, contrivance or device which an average person would reasonably conclude is intended to be used for one or more of the following purposes:

(A) to introduce into the human body any dangerous drug or controlled substance under circumstances in violation of the laws of this State.

(B) to enhance the effect on the human body of any dangerous drug or controlled substance . . ..

(C) to conceal any quantity of any dangerous drug or controlled substance . . ..

(D) to test the strength, effectiveness or purity of any dangerous drug or controlled substance . . .. Emphasis added.

Plaintiffs' primary constitutional claim challenges the statutes as void for vagueness. Plaintiffs explain in one vagueness attack that their wares, for example an array of pipes for smoking, may be "primarily intended", Ga.Code § 79A-811.1, by some purchasers for licit purposes, while the same objects may be "primarily intended" by other buyers for drug-related uses. The plaintiffs contend that this statute fails to establish whether the "primary intention" is to be located in the mind of the purchaser or is to be concluded in the estimation of an average person, see Ga.Code § 26-9913, or is to be determined by the intention of transferor who may be prosecuted under the statute. Ga.Code § 26-9913 offers plaintiffs minimal, but possibly improper, guidance; Ga.Code § 79A-811.1 offers no present assistance to the wary. This described difficulty illustrates one of plaintiffs' many void for vagueness concerns.

With this brief illustration in mind, the court's decision to abstain may now be considered. The availability to the court of abstention, a "judge-made" doctrine, is severely circumscribed and limited to challenges posing "special circumstances." Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 91 L.Ed.2d...