New England Accessories Trade Ass'n v. Browne

• Decision Date: 02 December 1980
• Docket Number: Civ. No. B-80-424.
• Citation: 502 F. Supp. 1245
• Court: U.S. District Court — District of Connecticut
• Parties: NEW ENGLAND ACCESSORIES TRADE ASSOCIATION, INC. et al., Plaintiffs, v. Donald A. BROWNE et al., Defendants.

502 F. Supp. 1245

NEW ENGLAND ACCESSORIES TRADE ASSOCIATION, INC. et al., Plaintiffs, v. Donald A. BROWNE et al., Defendants.

Civ. No. B-80-424.

United States District Court, D. Connecticut.

December 2, 1980.

COPYRIGHT MATERIAL OMITTED

Emanuel Margolis, David M. Cohen, Wofsey, Rosen, Kweskin & Kuriansky, Stamford, Conn., James M. Smith, Denver, Colo., for plaintiffs.

Raymond B. Rubens, Bridgeport, Conn., for Joseph A. Walsh.

Cornelius F. Tuohy, Asst. Atty. Gen., Carl R. Ajello, Atty. Gen., Hartford, Conn., for Donald J. Long.

Ernest J. Diette, Jr., Asst. State's Atty., Wallingford, Conn., for defendants.

John M. Looney, Jr., Robert M. Langer, Asst. Attys. Gen., State of Connecticut, Hartford, Conn., for Mary M. Nestrand, Commissioner of the Dept. of Consumer Protection.

Nora Engel, South Norwalk, Conn., for Joseph W. Berenstein.

MEMORANDUM OF DECISION

EGINTON, District Judge.

This is an action for declaratory and injunctive relief, in which plaintiffs challenge the constitutionality of a recently enacted Connecticut statute, Public Act No. 80-224, regulating the use and distribution of "drug paraphernalia." Jurisdiction is founded on 28 U.S.C. §§ 1331, 1343(b), 2201, and 2202.

On September 29, 1980, two days before the Act was to become effective, the Court held a hearing on plaintiffs' motion for a temporary restraining order. The Court granted the motion, enjoining defendants from enforcing the statute pending a hearing on plaintiffs' motion for a preliminary injunction. On October 8, 1980, a hearing was held. By agreement of the parties the Court ordered that trial of the action on the merits be advanced and consolidated with the hearing on the preliminary injunction, pursuant to Fed.R.Civ.P. 65(a)(2). At the hearing, the state defendants agreed not to commence enforcement of the statute pending a final determination on the merits. In accordance with a schedule established by the Court, defendants submitted their posttrial brief on October 17, 1980 and plaintiffs filed theirs on October 24, 1980. The matter is now ripe for decision and the following constitutes this Court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).¹

I BACKGROUND

Plaintiffs in this action are a trade association and manufacturers, distributors, and retailers of various gifts and novelty items, euphemistically referred to as smoking accessories. Defendants are the Chief State's Attorney, the State's Attorney in each county in which a Connecticut plaintiff is located, the Connecticut Commissioner of Public Safety, the Connecticut Commissioner of Consumer Protection, and the Chief of Police in each community in which a Connecticut plaintiff is located.

Public Act 80-224 was passed by the Connecticut General Assembly on April 16, 1980 and signed into law by Governor Grasso on May 14, 1980. As noted, it was to have become effective October 1, 1980. See Conn. Gen. Stat. § 2-32. The Act amends various sections of Connecticut's Uniform Controlled Substances Act, Conn. Gen. Stat. §§ 19-443 et seq., and provides as follows:

Section 1. (a) "Drug paraphernalia" refers to 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 or concealing, or injecting, ingesting, inhaling or otherwise introducing into the human body, any controlled substance contrary to the provisions of this chapter including, but not limited to: (1) kits intended for use or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived; (2) kits used, intended for use or designed for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances; (3) isomerization devices used, intended for use in increasing the potency of any species of plant which is a controlled substance; (4) testing equipment used, intended for use or designed for use in identifying or analyzing the strength, effectiveness or purity of controlled substances; (5) dilutents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose used, intended for use or designed for use in cutting controlled substances; (6) separation gins and sifters used, intended for use or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana; (7) capsules and other containers used, intended for use or designed for use in packaging small quantities of controlled substances; (8) containers and other objects used, intended for use or designed for use in storing or concealing controlled substances; (9) hypodermic syringes, needles and other objects used, intended for use or designed for use in parenterally injecting controlled substances into the human body; (10) 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, such as: metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with screens, permanent screens, hashish heads or punctured metal bowls; water pipes; carburetion tubes and devices; smoking and carburetion masks; roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; miniature cocaine spoons, and cocaine vials; chamber pipes; carburetor pipes; electric pipes; air-driven pipes; chillums; bongs or ice pipes or chillers.

Section 2. In determining whether any object or material listed in section 1 of this act shall deemed "drug paraphernalia", a court or other authority shall, in addition to all other logically relevant factors, consider the following:

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

(2) The proximity of the object to any controlled substances;

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

(4) Direct 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;

(5) Instructions, oral or written, provided with the object concerning its use with a controlled substance;

(6) Descriptive materials accompanying the object which explain or depict its use with a controlled substance;

(7) National and local advertising concerning its use;

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

(10) Direct evidence of the ratio of sales of the object to the total sales of the business enterprise;

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

(12) Expert testimony concerning its use.

Section 3. (a) No person shall use or possess with intent to use drug paraphernalia, as defined in ... section 1 of this act, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal, or to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance.... Any person who violates any provision of this subsection shall be guilty of a class C misdemeanor.

(b) No person shall deliver, possess with intent to deliver or manufacture with intent to deliver 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 or conceal, or to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance. Any person who violates any provision of this subsection shall be guilty of a class C misdemeanor.

Section 4. The commissioner of consumer protection may receive, take into custody or destroy any drug paraphernalia as defined ... in section 1 of this act. Said commissioner shall keep a full and complete record of all drug paraphernalia received and disposed of, showing the exact kinds, quantities and forms of such drug paraphernalia, the persons from whom received, by whose authority received, and destroyed, and the dates of the receipt, or destruction. Drug paraphernalia held by law enforcement agencies or court officials as evidence in criminal proceedings, or drug paraphernalia seized or held as contraband shall be destroyed upon order of the court by the seizing authority or delivered to the commissioner of consumer protection as soon as possible upon termination of the proceedings or resolution of the case.

Section 5. If any section, part, clause or phrase in sections 1 to 5, inclusive, of this act, is for any reason held to be invalid or unconstitutional, sections, parts, clauses and phrases in said sections not held to be invalid or unconstitutional shall not be affected and shall remain in full force and effect.

The Act is patterned after, though more restrictive in scope than, the Model Drug Paraphernalia Act "Model Act". The Model Act was drafted by the Drug Enforcement Administration of the United States Department of Justice and was promulgated in August, 1979 at the behest of state authorities to enable them to "cope" with the proliferation of drug paraphernalia.

Plaintiffs attack the constitutionality of Public Act 80-224 on several grounds. They contend: (1) that the Act is unconstitutionally vague and overbroad under the due process clause of the Fourteenth Amendment because it does not provide fair warning of the conduct that is...