PA. ACCESSORIES TRADE ASS'N, INC. v. Thornburgh

• Decision Date: 22 June 1983
• Docket Number: Civ. A. No. 81-0126.
• Citation: 565 F. Supp. 1568
• Parties: PENNSYLVANIA ACCESSORIES TRADE ASSOCIATION, INC.; Lazy J, Ltd., A Pennsylvania Corporation; Quickdraw Accessories, Inc., a Pennsylvania Corporation; Record Outlet; Merchandising Service of America, Inc., A Pennsylvania Corporation; U.B.C. Grain Company, Inc., A Pennsylvania Corporation; David A. Talmas, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; James A. Bauer, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; Lenwood Stephens, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; Martin Paul Millmond, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; and Wayne A. Deakin, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc., Plaintiffs, v. Richard THORNBURGH, Governor of the Commonwealth of Pennsylvania and LeRoy S. Zimmerman, Attorney General of the Commonwealth of Pennsylvania, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

565 F. Supp. 1568

PENNSYLVANIA ACCESSORIES TRADE ASSOCIATION, INC.; Lazy J, Ltd., A Pennsylvania Corporation; Quickdraw Accessories, Inc., a Pennsylvania Corporation; Record Outlet; Merchandising Service of America, Inc., A Pennsylvania Corporation; U.B.C. Grain Company, Inc., A Pennsylvania Corporation; David A. Talmas, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; James A. Bauer, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; Lenwood Stephens, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; Martin Paul Millmond, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc.; and Wayne A. Deakin, Individually and as a director of the Pennsylvania Accessories Trade Association, Inc., Plaintiffs, v. Richard THORNBURGH, Governor of the Commonwealth of Pennsylvania and LeRoy S. Zimmerman, Attorney General of the Commonwealth of Pennsylvania, Defendants.

Civ. A. No. 81-0126.

United States District Court, M.D. Pennsylvania.

June 22, 1983.

COPYRIGHT MATERIAL OMITTED

Joseph M. Devecka, Robert C. Rayman, Devecka & Rayman, State College, Pa., Leonard I. Sharon, Sharon & Sharon, Pittsburgh, Pa., for plaintiffs.

Marybeth Stanton, Mary Ellen Krober, Deputy Attys. Gen., Harrisburg, Pa., for defendants.

OPINION

HERMAN, District Judge.

I. INTRODUCTION AND BACKGROUND

Drug paraphernalia statutes and ordinances are a response to the development of an extensive multi-million dollar industry that promotes and glamorizes the illegal use of drugs through the manufacture and sale of implements for preparing and using illicit drugs, primarily marijuana and cocaine. See Hearings Before the House Select Comm. on Narcotics Abuse And Control, 96th Cong., 1st Sess. (November 1, 1979) (statement of Dep. Ass't. Atty. Gen'l. Irvin B. Nathan). See also Levas and Levas v. Village of Antioch, 684 F.2d 446, 449 (7th Cir.1982); Tobacco Accessories & Novelty Craftsmen Assoc. v. Treen, 681 F.2d 378, 380 (5th Cir.1982). The Model Drug Paraphernalia Act (hereinafter referred to as "The Model Act"), drafted by the Drug Enforcement Administration of the United States Department of Justice at the request of the Drug Policy Office of the President's Domestic Policy Council, Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 919 (6th Cir.1980), vacated and remanded, 456 U.S. 968, 102 S.Ct. 2227, 72 L.Ed.2d 840 (1982), represents an attempt to write a statute that would be broad enough to deal with the problem effectively, but which would avoid the constitutional infirmities that resulted in successful challenges to various state and local drug paraphernalia laws. Stoianoff v. Montana, 695 F.2d 1214, 1217 (9th Cir.1983); Levas, 684 F.2d at 449; Tobacco Accessories, 681 F.2d at 380 & n. 3; Casbah, Inc. v. Thone, 651 F.2d 551, 555 (8th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982). Pennsylvania's Drug Paraphernalia Act of December 4, 1980, P.L. 634, No. 186, codified at 35 P.S. §§ 780-102(b), 780-113(a)(32)-(34), & 780-113(i) (Purdon Supp.1983) (hereinafter referred to as "Act 186") adopts verbatim the language of the Model Act. See Appendix.

Act 186 was to become effective as an amendment to Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-101, et seq., on February 2, 1981. Prior to the effective date, on January 26, 1981, Plaintiffs¹ filed this action attacking the statute as facially unconstitutional. After a hearing on January 30, 1981, this court granted Plaintiffs' application for a temporary restraining order. A hearing on Plaintiffs' request for a preliminary injunction was held on February 18, 1981. On February 27, 1981, we enjoined Defendants Richard Thornburgh² and LeRoy Zimmerman³ from enforcing Act 186 until a decision could be rendered on the merits of Plaintiffs' constitutional challenge. The Parties then proceeded to conduct discovery.

On March 3, 1982, the United States Supreme Court handed down its unanimous decision in Village Of Hoffman Estates v. Flipside, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Although the ordinance in Flipside was not patterned after the Model Act, the lower courts have considered pre-enforcement, facial challenges to versions of the Model Act in light of the analytical framework set forth in Flipside. But see B. Gerson, "Head Shops: A Legal Haze," Nat'l L.J. at 8 (Aug. 23, 1982) (Flipside provides little guidance). To date, nine circuit courts have upheld statutes based on the Model Act. In seven of the circuits the cases were decided after the Supreme Court rendered its decision in Flipside.⁴ Consequently, on November 2, 1982, Defendants moved for summary judgment on the basis that Plaintiffs' facial challenge involves only the legal question of whether or not Act 186 conflicts with the United States Constitution, which question Defendants assert should be resolved in their favor. Supporting and opposing memoranda were duly filed. We held oral argument on March 28, 1983. After careful review of the extensive case law in this area, the briefs and arguments of counsel, we now grant Defendants' motion for summary judgment for the reasons set forth below.

II. DISCUSSION

A. Overbreadth and Vagueness

The Supreme Court in Flipside enunciated the following analysis to be used in resolving facial challenges 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 others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.

455 U.S. at 494-95, 102 S.Ct. at 1191. The Supreme Court also noted that in evaluating a state law a federal court must consider any limiting construction that a state court or enforcement agency has proffered. Id. at 494 n. 5, 102 S.Ct. at 1191 n. 5.

We will follow this scheme in our examination of Act 186. The volume of recent case law in which versions of the Model Act have been subjected to scrutiny for overbreadth and vagueness, and upheld,⁵ makes our task an easier one. We will not repeat the analysis, therefore, with the same depth of detail that appears in other discussions. We will, however, attempt to highlight those areas in which Plaintiffs claim this case is distinguishable from decisions adverse to their position by the various appellate courts.

1. Overbreadth

In considering an overbreadth challenge to a statute, the concern is not with a law's uncertainty, but with its potential for punishing constitutionally protected conduct. "A law is facially overbroad if it does not aim specifically at evils within the allowable area of government control, but ... sweeps within its ambit other activities that constitute an exercise of constitutionally protected rights." Tobacco Accessories & Novelty Craftsmen Assoc. v. Treen, 681 F.2d 378, 382 (5th Cir.1982), quoting Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). The concepts of vagueness and overbreadth are interrelated, however. The Supreme Court has recognized that ambiguous meanings cause citizens to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked." Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1322, 12 L.Ed.2d 377 (1964), quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). Thus, a court should evaluate the ambiguous as well as the unambiguous scope of the enactment to determine if it is overbroad. Flipside, 455 U.S. at 494 n. 6, 102 S.Ct. at 1191 n. 6.

Plaintiffs in this case complain that Act 186 is overbroad because it inhibits speech encouraging change in the marijuana laws. They point to the provision in the definition of drug paraphernalia in which the court and law enforcement officials are directed to consider the following factors as circumstantial evidence that an item is drug paraphernalia:

statements by an owner or by anyone in control of the object concerning its use ... descriptive materials accompanying the object which explain or depict its use ... the manner in which the object is displayed for sale ... expert testimony concerning its use.

35 P.S. § 780-102(b). We fail to see the relationship between "statements," "descriptive materials," or "expert testimony" concerning an object's use and expressions of disagreement with the current drug laws. The only factor that might possibly implicate such expressions would be "the manner in which the object is displayed for sale." The context in which the phrase appears, however, indicates that it was intended to apply to display relating to the use of the object, and not to display in proximity to expressive materials legitimately encouraging the legalization of marijuana. Moreover, this provision does not, by its terms, directly prohibit or otherwise regulate literature advocating change in the drug laws. A statute that imposes indirect restrictions on speech is not unconstitutionally overbroad unless there is a substantial potential for its application to protected speech. The fact that some unconstitutional applications of the law can be imagined is insufficient to invalidate the statute on overbreadth grounds. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). See also Flipside, 455 U.S. at 496, 102 S.Ct. at 1192; The General Stores, Inc. v. Bingaman, 695 F.2d 502, 504 (10th...