Record Revolution No. 6 v. City of Parma, Ohio

• Decision Date: 14 April 1980
• Docket Number: No. C80-38.,C80-38.
• Citation: 492 F. Supp. 1157
• Parties: RECORD REVOLUTION NO. 6, INC., Plaintiff, v. CITY OF PARMA, OHIO, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

492 F. Supp. 1157

RECORD REVOLUTION NO. 6, INC., Plaintiff, v. CITY OF PARMA, OHIO, et al., Defendants.

No. C80-38.

United States District Court, N. D. Ohio, E. D.

April 14, 1980.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David C. Weiner, Eric H. Zagrans, Fred P. Schwartz, Pat E. Morganstern-Claren, Hahn, Loeser, Freedheim, Dean & Wellman, Cleveland, Ohio, Michael L. Pritzker, Pritzker & Glass, Ltd., Chicago, Ill., for plaintiff.

Andrew Boyko, Law Director, Stephen P. Bond, Asst. Law Director, Parma, Ohio, for defendant.

William E. Blackie, Director of Law, Lakewood, Ohio, amici curiae.

MEMORANDUM OF OPINION

MANOS, District Judge.

On January 10, 1980 the plaintiff, Record Revolution No. 6, Inc., filed this action under 42 U.S.C. § 1983 challenging the constitutionality of City of Parma Ordinance No. 242-79, an ordinance regulating the distribution, advertisement and use of "drug paraphernalia." The plaintiff's verified complaint seeks declaratory as well as injunctive relief. This court's subject-matter jurisdiction is based upon 28 U.S.C. §§ 1331, 1343(3), 2201, and 2202. On January 11, 1980 a hearing was held on the motion for a temporary restraining order filed by the plaintiff with its complaint. At the hearing the defendants agreed not to pursue enforcement of the Ordinance until a decision in this case could be reached on the merits. By agreement of the parties, the court then ordered the preliminary and permanent injunction to be consolidated for hearing. See Rule 65(a)(2), Fed.R.Civ.P. On January 28 and 30, 1980 the hearing on the permanent injunction was held and thereafter, in accordance with the schedule set by the court, the plaintiff submitted its post-trial brief on February 15, 1980 and the defendants submitted theirs on February 25, 1980. On February 29, 1980 the City of Lakewood, Ohio, which enacted an ordinance substantially identical to Parma's No. 242-79 on January 21, 1980, filed an amicus curiae brief.¹ On March 3, 1980 the plaintiff filed its reply brief. For the reasons discussed below, the court concludes that Parma Ordinance No. 242-79 is constitutional as it is construed herein.

I.

Record Revolution No. 6, Inc. is an Ohio corporation which operates a retail business at 7703 West Ridgewood Drive, Parmatown Mall, Parma, Ohio. The plaintiff displays and advertises various items including recorded and taped music as well as "miscellaneous novelty items." (Complaint, ¶ 1). The defendants are: the City of Parma (a municipal corporation organized under the laws of Ohio), John Petruska (the Mayor of Parma), Andrew Boyko (the Director of Law and Chief Prosecutor of Parma), Francis Szabo (Chief of the Parma Police Department), as well as Kenneth Kuczma, Victor Labutta, Frank Houdek, Joseph Molodec, Evelyn Kopchak, Gerald Boldt, Edward Lonjak, Doris Krawczyk and William Obuch (the members of the Parma City Council).

On January 7, 1980 the Council of the City of Parma, Ohio enacted Ordinance No. 242-79: "An Ordinance Enacting New Sections 620.01(dd) and 620.04 To The Codified Ordinances of The City of Parma, Prohibiting the Sale of Drug Related Paraphernalia." On January 9, 1980 the Ordinance was signed into law by the city's Mayor, defendant Petruska. Ordinance No. 242-79 provides as follows:

"WHEREAS, this Council has become aware of and is concerned over the general proliferation of `head shops' engaged in the sale of paraphernalia associated with drug use; and

WHEREAS, this Council finds that such establishments serve only to entice young people to abuse substances which are known to be harmful and unsafe for human consumption; and

WHEREAS, this Council finds that this situation has created a problem of such large proportion as to necessitate further legislation on the subject; Now, Therefore, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PARMA, STATE OF OHIO:

Section 1. That Codified Ordinance 620.01, as enacted by Ordinance 228-75, passed February 2, 1976, is hereby amended by adding the following language:

620.01 DEFINITIONS.

. . . . .

(dd)(1) `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 substance in violation of this Chapter. It includes, but is not limited to:

(A) 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 substance or from which a controlled substance can be derived;

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

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

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

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

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

(G) 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;

(H) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;

(I) Capsules, balloons, envelopes or other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;

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

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

(L) 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:

(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 marihuana 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;

2. 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:

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

(B) Prior convictions, if any, of an owner, or of anyone in control of the object, under any City, State, or Federal law relating to any controlled substance;

(C) The proximity of the object, in time and space, to a direct violation of this Chapter;

(D) The proximity of the object to controlled substances;

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

(F) Director 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 Chapter; the innocence of an owner or of anyone in control of the object, as to a direct violation of this Chapter shall not prevent a finding that the object is intended for use, or designed for use as `Drug paraphernalia;'

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

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

(I) National and local advertising concerning its use;

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

(K) 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;

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

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

(N) Expert testimony concerning its use.

Section 2. That there is hereby enacted a new section 620.04 of the Codified Ordinances of the City of Parma which shall read as follows:

620.04 POSSESSION, MANUFACTURE, AND SALE OF DRUG PARAPHERNALIA.

(a) 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, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this Chapter.

(b) It is unlawful for any person to deliver, 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 substance in violation of this Chapter.

(c)

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