Mid-Atlantic Accessories Trade v. State of Md.

• Citation: 500 F. Supp. 834
• Decision Date: 11 November 1980
• Docket Number: Civ. No. H-80-1343.
• Parties: MID-ATLANTIC ACCESSORIES TRADE ASSOCIATION; Simplified Systems; Progressive Plastics; and Joint Possession, Plaintiffs, v. STATE OF MARYLAND, Defendant.
• Court: U.S. District Court — District of Maryland

500 F. Supp. 834

MID-ATLANTIC ACCESSORIES TRADE ASSOCIATION; Simplified Systems; Progressive Plastics; and Joint Possession, Plaintiffs, v. STATE OF MARYLAND, Defendant.

Civ. No. H-80-1343.

United States District Court, D. Maryland.

November 11, 1980.

COPYRIGHT MATERIAL OMITTED

Burt M. Kahn, Fred R. Joseph, Shelly E. Mintz and Baskins & Sears, Hyattsville, Md., for plaintiffs.

Dennis M. Sweeney, Paul F. Strain and Linda H. Lamone, Asst. Attys. Gen., Baltimore, Md., for defendant.

ALEXANDER HARVEY, II, District Judge:

This civil action is another in a long series of constitutional challenges to state and local legislation outlawing the manufacture, distribution and use of drug paraphernalia.¹ Within the past several years, many different communities throughout the United States have become concerned that the unrestricted sale of drug paraphernalia glamorizes and promotes the use and abuse of illegal drugs both by adults and children. To aid in controlling the increasing illegal use of narcotics within their jurisdictions, many states and municipalities have enacted legislation banning the sale of drug paraphernalia. Early legislation of this sort often did not survive constitutional challenge in the courts because of problems of vagueness and overbreadth. See Opinion No. 80-035 of the Attorney General of Maryland, 184 The Daily Record 6 (April 21, 1980).

More recently, state and local governments have turned to the Model Drug Paraphernalia Act drafted by the Drug Enforcement Administration of the Department of Justice. When that Act recently became law in Maryland, this civil action challenging its constitutionality was filed by a number of affected entities within the State.

The Model Act was introduced in the Maryland Legislature as Senate Bill No. 63 (hereinafter "SB 63" or "the Act"), was enacted as emergency legislation² and was signed into law by the Governor on May 27, 1980. SB 63 has been codified as § 287A and § 297, Art. 27, Crimes and Punishment, Ann.Code of Md. (1976 Repl.Vol. and 1979 Supp.). On May 28, 1980, plaintiffs filed this civil action seeking declaratory and injunctive relief.

Plaintiffs are a trade association and three retail distributors which are engaged in the manufacture, distribution or sale of various products which may be considered to be drug paraphernalia as defined by the Act.³ Following a hearing on May 28, 1980, a Temporary Restraining Order was entered by the Court, restraining the State from enforcing the Act. The essential purpose of this Order was to maintain the status quo during the time necessary for hearing and deciding plaintiffs' motion for a preliminary injunction. By agreement of counsel, a further Order was entered on June 17, 1980, extending the restraining Order until such time as the Court could rule upon plaintiffs' motion for a preliminary injunction.

Following extensive discovery by the parties, an evidentiary hearing was held on October 2, 3 and 6, 1980.⁴ By agreement of the parties, the trial of the action on the merits was consolidated with the hearing of the motion for a preliminary injunction, pursuant to Rule 65(a)(2), F.R.Civ.P.

The parties have submitted extensive briefs and have presented to the Court thorough arguments, numerous exhibits and abundant expert testimony. This opinion constitutes the Court's findings of fact, whether specifically so designated or not. Rule 52, F.R.Civ.P.

I The Statute

SB 63 amends the Maryland Uniform Controlled Substances Act by adding a new Section, § 287A, to Article 27 of the Annotated Code of Maryland. The new Section reads as follows:

§ 287A

(A) As used in this Section, the term "drug paraphernalia" means 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 dangerous substance in violation of this subheading. It includes but is not limited to:

(1) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled dangerous substance or from which a controlled dangerous substance can be derived;

(2) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled dangerous substances;

(3) Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled dangerous substance;

(4) Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of controlled dangerous substances;

(5) Scales and balances used, intended for use, or designed for use in weighing or measuring controlled dangerous substances;

(6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled dangerous substances;

(7) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;

(8) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled dangerous substances (9) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled dangerous substances;

(10) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled dangerous substances;

(11) Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injecting controlled dangerous substances into the human body;

(12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:

(I) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

(II) Water pipes;

(III) Carburetion tubes and devices;

(IV) Smoking and carburetion masks;

(V) Roach clips: meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;

(VI) Miniature cocaine spoons, and cocaine vials;

(VII) Chamber pipes;

(VIII) Carburetor pipes;

(IX) Electric pipes;

(X) Air-driven pipes;

(XI) Chillums;

(XII) Bongs;

(XIII) Ice pipes or chillers.

(B) In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:

(1) Statements by an owner or by anyone in control of the object concerning its use;

(2) Prior convictions, if any, of an owner or of anyone in control of the object, under any state or federal law relating to any controlled dangerous substance;

(3) The proximity of the object, in time and space, to a direct violation of this Act or to a controlled dangerous substance;

(4) The existence of any residue of controlled dangerous substances on the object;

(5) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this Act; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this Act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia;

(6) Instructions, oral or written, provided with the object concerning its use;

(7) Descriptive materials accompanying the object which explain or depict its use;

(8) National and local advertising concerning its use;

(9) The manner in which the object is displayed for sale;

(10) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(11) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;

(12) The existence and scope of legitimate uses for the object in the community;

(13) Expert testimony concerning its use.

(C) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal a controlled dangerous substance in violation of this subheading. Any person who violates this Subsection is guilty of a misdemeanor and upon conviction for a first offense may be fined not more than $500. A person who is convicted of a subsequent violation of this Section may be imprisoned for not more than 2 years or fined not more than $2,000 or both. Any person convicted of violating this Section who previously has been convicted of violating Subsection (D)(2) shall be subject to the same penalties specified for subsequent violations of this Section.

(D)(1) It is unlawful for any person to deliver or sell, possess with intent to deliver or sell, or manufacture with intent to deliver or sell 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 dangerous substance in violation of this Act. Any person who violates this Subsection

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