Tobacco Road v. City of Novi

• Court: U.S. District Court — Western District of Michigan
• Writing for the Court: David M. Fried, Monica F. Linkner, Lampert, Fried & Levitt, P. C., Southfield, Mich., for defendant
• Citation: Tobacco Road v. City of Novi, 490 F.Supp. 537 (W.D. Mich. 1980)
• Decision Date: 12 March 1980
• Docket Number: No. 79-71000.,79-71000.
• Parties: TOBACCO ROAD, a Michigan Corporation, Plaintiff, v. CITY OF NOVI, Defendant.

490 F. Supp. 537

TOBACCO ROAD, a Michigan Corporation, Plaintiff, v. CITY OF NOVI, Defendant.

No. 79-71000.

United States District Court, E. D. Michigan, S. D.

Memorandum Opinion June 21, 1979.

On Motion For New Trial March 12, 1980.

COPYRIGHT MATERIAL OMITTED

Michael L. Stefani, Frank & Stefani, Troy, Mich., for plaintiff.

David M. Fried, Monica F. Linkner, Lampert, Fried & Levitt, P. C., Southfield, Mich., for defendant.

MEMORANDUM OPINION

PATRICIA J. BOYLE, District Judge.

Plaintiff, Tobacco Road, Inc., a Michigan corporation, seeks declaratory and injunctive relief from the enforcement of an allegedly unconstitutional ordinance of the City of Novi, Michigan, defendant herein.

Plaintiff is operated by Bruce Hoffman and Steve Gilbert. Each has engaged in the business of operating tobacco shops for some years. On January 20, 1979, Tobacco Road leased premises in the City of Novi.

On February 20, 1979, shortly after Tobacco Road's arrival in Novi, Ordinance No. 79-84 was passed and given immediate effect. This action was then filed on April 9, 1979.

Pursuant to Rule 65(a)(2), Fed.R.Civ.P., the hearing on the preliminary injunction and the trial on the merits were consolidated. This Opinion shall constitute the findings of fact and conclusions of law required of the Court under Rule 52(a), Fed.R.Civ.P.

The Court has jurisdiction under 28 U.S.C. §§ 1331(a), 1343(3), and 42 U.S.C. § 1983. Further, plaintiff has presented an actual controversy and has met the requirement of Article III of the Constitution and the express terms of the Federal Declaratory Judgment Act, 28 U.S.C. § 2201. Testimony that plaintiff's operators felt threatened with a citation, that 30 to 40 percent of plaintiff's business was small-bowl smoking pipes, that much, if not most, of plaintiff's other stock arguably was within the ambit of the ordinance, that plaintiff leased the premises, modified the interior, and entered stock purchase contracts for a total investment of thirty-five thousand dollars ($35,000.00), and that the ordinance's being passed and given emergency effect coincided with plaintiff's moving into the city show that plaintiff's concern with prosecution is not speculative or chimerical. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). In Steffel the Court stated:

In the instant case, principles of federalism not only do not preclude federal intervention, they compel it. Requiring the federal courts totally to step aside when no state criminal prosecution is pending against the federal plaintiff would turn federalism on its head. When federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3)—as they are here—we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights. But exhaustion of state remedies is precisely what would be required if both federal injunctive and declaratory relief were unavailable in a case where no state prosecution had been commenced.

415 U.S. at 472-473, 94 S.Ct. at 1222 (citations omitted).

Thus, declaratory relief is appropriate.

The challenged ordinance is entitled the "Paraphernalia Ordinance of the City of Novi." In pertinent part, Section 3.01 of the ordinance reads:

"It shall be unlawful for any person to sell, offer for sale, display, furnish, supply or give away any . . . cocaine spoon, marijuana pipe, hashish pipe, or any other instrument, implement or device which is primarily adapted or designed for the administration or use of any controlled substance as enumerated in Schedules 1-5, Chapter 2, 1971 PA 196, as amended, (commonly known as the Controlled Substances Act of 1971)."¹

Section 2.01 of the ordinance is entitled "Definitions." It defines unlawful items for purposes of the ordinance and for this litigation as follows:

"(1) `Cocaine spoon': A spoon with a bowl so small that the primary use for which it is reasonably adapted or designed is to hold or administer cocaine, and which is so small as to be unsuited for the typical, lawful uses of a spoon. A cocaine spoon may or may not be merchandised on a chain and may or may not be labeled as a `cocaine' spoon or `coke' spoon.

"(2) `Controlled substance': Any drug, substance, or immediate precursor enumerated in Schedules 1-5, Chapter 2, 1971 PA 196, as amended (commonly known as the Controlled Substances Act of 1971).

"(3) `Marijuana or hashish pipe': A pipe characterized by a bowl which is so small that the primary use for which it is reasonably adapted or designed is the smoking of marijuana or hashish, rather than lawful smoking tobacco, and which may or may not be equipped with a screen.

"(4) `Paraphernalia': An empty gelatin capsule, hypodermic syringe or needle, cocaine spoon, marijuana pipe, hashish pipe, or any other instrument, implement, or device which is primarily adapted or designed for the administration or use of any controlled substance."

Section 4.01 of the ordinance provides that "each day of the violation shall be considered a separate offense" and penalizes each violation with up to 90 days imprisonment, or a five hundred dollar ($500.00) fine, or both.

The ordinance further provides:

"Section 5.01. Construction; Severability.

It is the legislative intent that all provisions and sections, clauses and sentences of the Ordinance be liberally construed, and should any provision, section, clause or sentence be held unconstitutional or invalid, such holding shall not be construed as affecting the validity of any of the remaining provisions, sections, clauses or sentences, it being the intent that this Ordinance shall stand notwithstanding the validity of any provision, section, clause or sentence."

Plaintiff contends that the ordinance violates the prohibition against cruel and unusual punishment of the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Commerce Clause, and the First Amendment. Plaintiff also contends that the ordinance is so vague and overbroad as to violate the Due Process Clause of the Fourteenth Amendment.

Cruel and Unusual Punishment

Plaintiff asserts that the ordinance violates the Eighth Amendment prohibition against cruel and unusual punishment made applicable to the States by the Fourteenth Amendment because other jurisdictions impose either no sanctions, or lesser sanctions, for similar behavior and because the ordinance permits each day of violation to be considered as a separate offense.

The Eighth Amendment does not require uniformity of sanctions, nor does it preclude the legislative determination that succeeding days of violation will be considered a separate crime. The fixing of punishment is a legislative function with which the Court will interfere only where the punishment prescribed is manifestly cruel and unusual or grossly disproportionate to the offense. Kasper v. Brittain, 245 F.2d 92 (6th Cir. 1957), cert. denied, 355 U.S. 834, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957); Kreiling v. Field, 431 F.2d 502 (9th Cir. 1970). See also, Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978).

While the ordinance apparently is intended to punish each day as a separate offense, rather than to punish a continuing course of conduct, cf., United States v. Jones, 533 F.2d 1387 (6th Cir. 1976), cert. denied, 431 U.S. 964, 97 S.Ct. 2919, 53 L.Ed.2d 1059 (1977) (question whether continuing offense exists is one of statutory construction), the potential punishment is neither so "arbitrary" nor "severe" as to constitute cruel and unusual punishment.²

Equal Protection

Plaintiff argues that the ordinance violates the Equal Protection Clause of the Fourteenth Amendment in that it is directed to retailers who sell, display, or distribute the proscribed items and exempts manufacturers, medical personnel, and other described classifications "in the normal lawful course of their respective businesses or professions."

Where a statute has an impact on a fundamental interest, such as voting, Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), or involves a suspect classification, such as race, Regents of the University of California v. Bakke, 436 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), the Court must carefully scrutinize the legislation to determine whether the state has a compelling interest in the end to be attained and whether the means used are closely congruent to the ends sought. See e. g., In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973).

Where, as here, neither a fundamental right nor a suspect classification is involved, traditional equal protection analysis is the standard of review. Thus, as the Supreme Court recently stated in New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-2517, 49 L.Ed.2d 511 (1976):

Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. . . . In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.

The defendant's authority to regulate the administration, sale, prescription, and use of controlled substances in the interest of the public health and welfare "`is too firmly established to be successfully called in question.'" Robinson v. California, 370 U.S. 660, 664, 82 S.Ct. 1417, 1419, 8 L.Ed.2d 758 (1962) (citation omitted). Moreover, federal courts "are not...