Record Head Corp. v. Sachen

Decision Date30 September 1980
Docket NumberCiv. A. No. 80-C-639.
Citation498 F. Supp. 88
PartiesRECORD HEAD CORPORATION, Plaintiff, v. Michael SACHEN, Individually and in his official capacity as Attorney for the City of West Allis, Wisconsin; Floyd Andrich, Individually and in his official capacity as Chief of Police of the City of West Allis, Wisconsin; and the following individually and in their official capacity as Aldermen and members of the Common Council of the City of West Allis, Wisconsin: John Turck, Charles Wolf, Lester Trudell, Jr., Ralph West, Steve Barczak, Richard Germershausen, Norbert Boeder, Thomas Lajsic, Fred Cashmore and James Sengstock, Defendants.
CourtU.S. District Court — Eastern District of Wisconsin

Paul E. Sicula, Atinsky, Kahn, Sicula & Teper, Milwaukee, Wis., for plaintiffs.

Curt R. Meitz, Asst. City Atty., West Allis, Wis., for defendants.

DECISION and ORDER

TERENCE T. EVANS, District Judge.

This action for declaratory and injunctive relief challenges the constitutionality of a recently enacted municipal ordinance. The ordinance, No. 4812, created § 6.026 of the Revised Municipal Code of West Allis. It became effective on July 30, 1980.

The ordinance prohibits the following:

§ 6.026(3)
(a) It shall be unlawful for any person, firm or corporation to sell, offer to sell, dispense, give away or display any instrument, simulated controlled substance or simulated drug in or upon any premises which:
(i) Are premises open to minors, unless the instruments, simulated controlled substances or simulated drugs are kept in such part of the premises that is not open to minors or to which minors do not have access, unless accompanied by a parent or legal guardian.
(ii) Are premises in close proximity to a school.

Record Head Corporation operates a business in West Allis. Its business arguably falls within the proscribed purview of the ordinance and West Allis intends to enforce the ordinance against it.

At a hearing on August 1, 1980, West Allis agreed not to enforce the ordinance until its constitutionality was tested in this court. Its action mooted the plaintiff's request for a restraining order and permitted an expedited briefing schedule on the merits.

The jurisdiction of this court has not been challenged. Despite the lack of challenge, the court specifically notes the presence of its jurisdictional requirements and the inapplicability of abstention to the issue at hand. With the filing of the briefs, the matter is ripe for a decision on the merits of the controversy.

Section 6.026(2)(d) of the ordinance in question defines "instrument" as "a device designed for use or intended for use in ingesting, smoking, administering or preparing any controlled substance." The ordinance lists five factors to be considered in determining whether an item constitutes an "instrument":

(i) Whether a person or business establishment is a licensed distributor or dealer of tobacco products under Chapter 139 of the Wisconsin Statutes.
(ii) Expert opinion as to the principal use of the devices, articles or contrivances claimed to be instruments.
(iii) The total business of a person or business establishment and the types of devices, articles, contrivances or items involved in the business.
(iv) National and local advertising concerning the use of devices, articles or contrivances claimed to be instruments.
(v) Advertising concerning the nature of the business establishment.

The seller's intent determines whether the instrument has been "intended for use" in an unlawful manner. § 6.026(2)(d).

I

If the unrestricted pursuit of a business adversely affects the public health, safety, morals or general welfare, a municipality may legitimately exercise its police power to regulate that business. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934). A statute enacted pursuant to the police power is presumed valid. McGowan v. Maryland, 366 U.S. 420, 425-6, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Without question, therefore, West Allis may legitimately seek to curb drug use among its children. It has done so by enacting this ordinance aimed at "drug paraphernalia" and directed toward the plaintiff, an operator of what is commonly called a "head shop." However, "more is required of legislation by the Due Process Clause than merely a permissible goal. It is also a requirement that `... the means selected shall have a real and substantial relation to the object sought to be attained.'" Nebbia, supra, at 525, 54 S.Ct. at 510. The question is whether West Allis may ban the sale of items which have both legal and illegal uses, especially if the seller "intended" the items for illegal use but did not himself use them illegally.

Similar ordinances banning the sale of "drug paraphernalia" have spawned lawsuits across the country. The courts have differed as to their constitutionality, but cases involving ordinances with language like that in Ordinance No. 4812-defining "instruments" or "paraphernalia" as devices "designed for use or intended for use" in ingesting, smoking, administering or preparing any controlled substance—have usually been declared void for vagueness.1 A vague ordinance violates the right to due process guaranteed in the Fifth and Fourteenth Amendments to the U.S. Constitution. As the U.S. Supreme Court has stated:

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws often offend several important values. First, because we assume that a man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned v. City of Rockford, 408 U.S. 104, 108-9, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972).

In Tobacco Road v. City of Novi, 490 F.Supp. 537 (E.D.Mich., 1979), relied on by West Allis, the district court quoted McGowan, which involved a statute that exempted from Sunday closing laws retail sales at beaches and amusement parks. In McGowan, the court observed:

"We believe that business people of ordinary intelligence in the position of appellant's employer would be able to know what exceptions are encompassed by the statute either as a matter of ordinary commercial knowledge or by simply making a reasonable investigation at a nearby bathing beach or amusement park within the county." 366 U.S. at 428, 81 S.Ct. at 1106 (emphasis added).

While the observation in McGowan may be true, it is obvious that business people will find it more difficult to determine whether an otherwise innocent item will be used by another for illegal purposes. See Bambu Sales, Inc. v. Gibson, 474 F.Supp. 1297, 1305 n.3 (D.N.J.1979).

The Tobacco Road court (see Footnote 1) held the "paraphernalia" seller to a higher standard of knowledge, based on McGowan, but most other courts dealing with "drug paraphernalia" laws, including a later one in the same district, have not. In Music Stop, Inc. v. City of Ferndale, 488 F.Supp. 390 (E.D.Mich.1980), the court overturned an ordinance virtually identical to that in Tobacco Road. In so doing, it did not reject the higher standard McGowan established for business people, but instead held that the disputed ordinance—considerably more specific than that passed by West Allis—was too vague because "no fixed extrinsic reference point appears to exist which could be relied upon to alert the potential retailer of ordinary intelligence and prudence, or provide a sliding scale for measurement of primary and secondary design intent." Music Stop, 488 F.Supp. at 393. While the Tobacco Road and Music Stop ordinances described the offending items as "cocaine spoons," "marijuana or hashish pipes" and the like, the West Allis ordinance does not even go that far. Thus, it cannot be seen as giving the would-be seller proper guidance.

In NORML v. Sendak, No. TH 75-142-C (S.D.Ind., 2/4/80) (Swygert, Cir. J., presiding), a three-judge court held void for vagueness an ordinance greater in detail than the one under consideration here. Though the case was later declared moot and remanded for dismissal,2 its words seem equally applicable to this case:

"It is unclear what is meant by an instrument `designed' for drug use. The term `designed' could signify only devices that have no use or function other than as a means to ingest a controlled substance. Alternatively, `designed' could include any devices that have a legitimate function but could be used for ingestion of drugs. That is, the term `designed' could sweep into the definition of paraphernalia any device that could be altered from its normal function to become a make-shift drug device, such as a paper clip, tie bar, hand mirror, spoon, or piece of aluminum foil. The definition `designed for drug use' gives no hint to those attempting to comply with the ordinance what is included in the definition.
"The definition of paraphernalia also fails to answer the question, `"designed" by whom?' The statute may be limited to instruments designed by the manufacturer for drug use. The crucial problem is that objects arguably within the scope of the statute include many instruments that can be used for legitimate purposes as well as for the ingestion of drugs....
"... One cannot tell in advance whether a paper clip, hand mirror, teaspoon or corncob pipe will be labeled paraphernalia. Whether an item is paraphernalia will depend on the characterization given by the arresting officer, deputy prosecutor, or judge. In addition to the lack of notice given to those subject to
...

To continue reading

Request your trial
10 cases
  • Casbah, Inc. v. Thone
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • July 9, 1981
    ...See, e. g., statutes which have been held unconstitutional in Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980); Record Head Corp. v. Sachen, 498 F.Supp. 88 (E.D.Wis.1980); Magnani v. City of Ames, Ia., 493 F.Supp. 1003 (S.D.Ia.1980); Music Stop, Inc. v. City of Ferndale, 488 F.Supp. 390......
  • Kansas Retail Trade Co-op. v. Stephan, Civ. No. 81-1265.
    • United States
    • U.S. District Court — District of Kansas
    • September 18, 1981
    ...such as mirrors, spoons, smoking pipes and clips. See, e. g., Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980); Record Head Corp. v. Sachen, 498 F.Supp. 88 (E.D.Wis.1980); Magnani v. City of Ames, Iowa, 493 F.Supp. 1003 (S.D. Iowa 1980); Music Stop, Inc. v. City of Ferndale, 488 F.Supp.......
  • Franza v. Carey
    • United States
    • U.S. District Court — Southern District of New York
    • July 17, 1981
    ...(1981); Gasser v. Morgan, 498 F.Supp. 1154 (N.D.Ala.1980); Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980); Record Head Corp. v. Sachen, 498 F.Supp. 88 (E.D.Wis.1980); Music Stop, Inc. v. City of Ferndale, 488 F.Supp. 390 (E.D.Mich.1980); Knoedler v. Roxbury Township, 485 F.Supp. 990 (......
  • Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estates, 80-1462
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 5, 1981
    ...criminally liable under the statute or ordinance. See Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980); Record Head Corp. v. Sachen, 498 F.Supp. 88 (E.D.Wis.1980); Hejira Corp. v. MacFarlane, No. 80-F-824 (D.Colo. Sept. 5, 1980); Magnani v. City of Ames, 493 F.Supp. 1003 (S.D.Iowa July ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT