Record Head Corp. v. Sachen
Decision Date | 30 September 1980 |
Docket Number | Civ. A. No. 80-C-639. |
Citation | 498 F. Supp. 88 |
Parties | RECORD 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. |
Court | U.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
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:
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":
The seller's intent determines whether the instrument has been "intended for use" in an unlawful manner. § 6.026(2)(d).
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, 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:
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:
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