Town Tobacconist v. Kimmelman

• Decision Date: 14 May 1982
• Citation: 186 N.J.Super. 449,453 A.2d 209
• Parties: The TOWN TOBACCONIST, a Proprietorship, a Shop Called East of Cherry Hill, Inc., a New Jersey Corporation, Annie Hull's, a Proprietorship, East-West, a Proprietorship, Forever Changes, a Partnership, High Ol' Times, a Proprietorship, High Supply, Inc., a New Jersey Corporation, Indian Cottage, Inc., a New Jersey Corporation, Inner Circle, a Proprietorship, Inner Dimensions, a Proprietorship, Inner Eye, a Proprietorship, Jack's Music, a Proprietorship, Ma-Raja, Inc., a New Jersey Corporation, Nature's Head, a Proprietorship, Smuggler's Attic of Willowbrook, Inc., a New Jersey Corporation, Amsun World Imports, Inc., a New Jersey Corporation, Ahead of Our Tyme, a Proprietorship, Turntable, a Proprietorship, George Dickinson, Sandy Wilson, Michael Saitz, Mike Hull, Annie Hull, Alex Suvino, Richard Cook, Bruce Kessler, Bruce Shore, Larry Ward, Vijay Gupta, Joseph Asero, Barbara Asero, Gloria Bubblo, Gloria Kirkpatrick, Jack Anderson, Champ Tailor, Eric Knoedler, Sol Inspector, Tom Bahmer, Pat Bahmer, Ken Tersten, Jessie Rose, John Smith, a Fictitious Name, Mary Smith, a Fictitious Name, and XYZ Corporation, a Fictitious Name, Plaintiffs-Respondents, v. Irwin I. KIMMELMAN, Attorney General of the State of New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 449

186 N.J.Super. 449

453 A.2d 209

The TOWN TOBACCONIST, a Proprietorship, a Shop Called East

of Cherry Hill, Inc., a New Jersey Corporation, Annie

Hull's, a Proprietorship, East-West, a Proprietorship,

Forever Changes, a Partnership, High Ol' Times, a

Proprietorship, High Supply, Inc., a New Jersey Corporation,

Indian Cottage, Inc., a New Jersey Corporation, Inner

Circle, a Proprietorship, Inner Dimensions, a

Proprietorship, Inner Eye, a Proprietorship, Jack's Music, a

Proprietorship, Ma-Raja, Inc., a New Jersey Corporation,

Nature's Head, a Proprietorship, Smuggler's Attic of

Willowbrook, Inc., a New Jersey Corporation, Amsun World

Imports, Inc., a New Jersey Corporation, Ahead of Our Tyme,

a Proprietorship, Turntable, a Proprietorship, George

Dickinson, Sandy Wilson, Michael Saitz, Mike Hull, Annie

Hull, Alex Suvino, Richard Cook, Bruce Kessler, Bruce Shore,

Larry Ward, Vijay Gupta, Joseph Asero, Barbara Asero, Gloria

Bubblo, Gloria Kirkpatrick, Jack Anderson, Champ Tailor,

Eric Knoedler, Sol Inspector, Tom Bahmer, Pat Bahmer, Ken

Tersten, Jessie Rose, John Smith, a Fictitious Name, Mary

Smith, a Fictitious Name, and XYZ Corporation, a Fictitious

Name, Plaintiffs-Respondents, v. Irwin I. KIMMELMAN, Attorney General of the State of New

Jersey, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 18, 1982.

Reargued April 26, 1982.

Decided May 14, 1982.

Daniel Louis Grossman, Deputy Atty. Gen., for defendant-appellant (Irwin I. Kimmelman, Atty. Gen., attorney pro se; John DeCicco, Asst. Atty. Gen., of counsel; James R. Zazzali, former Atty. Gen., Robert E. Rochford, Deputy Atty. Gen., and Daniel Louis Grossman on the brief).

Roger A. Lowenstein, Newark, for plaintiffs-respondents (Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, Newark, attorneys; Podvey, Sachs, Catenacci & Silber, P.C., Abbott S. Brown, H. Richard Chattman, Zulima V. Farber, Newark, and Roger A. Lowenstein on the brief).

Before Judges MICHELS, JOELSON and GAULKIN.

The opinion of the court was delivered by

GAULKIN, J. A. D.

The Attorney General appeals from a final judgment which declared unconstitutional N.J.S.A. 24:21-48, 49 and 50; those sections make unlawful certain use, possession, distribution and advertising of "drug paraphernalia." We find the sections to satisfy constitutional requirements and accordingly reverse.

Plaintiffs describe themselves as retailers of novelty items "which are, or may be, included as proscribed items" under the statute. Their claims were presented to the trial court on a largely agreed record. The parties stipulated that all plaintiffs would testify, as one plaintiff did, that they did not know the meaning of the statute, "including specifically as to how the intent aspects operated"; that they did not know which objects were paraphernalia per se and that they did not understand the definition of drug paraphernalia or how an item can become drug paraphernalia. The trial court found that it "must declare the definition [i.e., 'drug paraphernalia'] unlawfully vague and, with it, the sections of the statute governing the plaintiffs' conduct, namely [ N.J.S.A. 24:21-48, 49 and 50]." The judgment declares those three sections unconstitutional and enjoins the Attorney General from enforcing them "as against any retail merchant, distributor or other person or entity similarly situated."

The statutory sections invalidated by the trial court are portions of a recent supplement (L. 1980, c. 133; N.J.S.A. 24:21-46 et seq.) to the New Jersey Controlled Dangerous Substances Act ( N.J.S.A. 24:21-1 et seq.). Based in substantial part on a Model Drug Paraphernalia Act drafted by the Drug Enforcement Administration of the United States Department of Justice, the supplemental act defines "drug paraphernalia" ( N.J.S.A. 24:21-46) and declares that "it shall be unlawful for any person" to engage in certain kinds of conduct with respect to drug paraphernalia. N.J.S.A. 24:21-48 thus makes it unlawful

... to distribute or dispense, or possess with intent to distribute or dispense, or manufacture with intent to distribute or dispense, drug paraphernalia, knowing that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale or otherwise introduce into the human body a controlled dangerous substance in violation of the provisions of the act to which this act is a supplement.

N.J.S.A. 24:21-49 declares it to be unlawful

... to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing that the purpose of the advertisement in whole or in part, is to promote the sale of objects intended for use as drug paraphernalia.

N.J.S.A. 24:21-50 simply transforms a section 48 violation from a fourth degree crime to a third degree crime where the actor delivers drug paraphernalia to a person under 18 years of age who is at least three years his junior.

"Drug paraphernalia" is defined in N.J.S.A. 24:21-46 as

all equipment, products and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, ingesting, inhaling, or otherwise introducing into the human body a controlled dangerous substance in violation of the provisions of the act to which this act is a supplement. It shall include, but not be limited to: [here follows a lengthy listing of items.] ¹

The Attorney General has promulgated guidelines for enforcement of these sections, which include directions that N.J.S.A. 24:21-48 and 50 may be enforced only by the Attorney General or county prosecutors; that no prosecution may be instituted thereunder with respect to items "which are commonly used for lawful purposes and are merely adaptable for use as drug paraphernalia" unless "they are displayed or otherwise offered for sale in conjunction with or in close proximity to other kinds of drug paraphernalia," and that N.J.S.A. 24:21-49 may be enforced only by the Attorney General.

Although the judgment does not declare N.J.S.A. 24:21-46 unconstitutional, the trial judge found its definition to be unconstitutionally vague and thus to infect the three sections here at issue. The core of the analysis expressed in his written opinion of March 12, 1981 is this:

The phrase "used or intended for use", that appears a dozen times renders the definition of drug paraphernalia unlawfully vague. It is impossible for any retailer to know whose use or whose intention he must be aware of. If it is "frequent" use, he can not tell how frequent it must be, or among what groups of people. If it is the customer's intention, then, before the customer arrives, the retailer can not tell if he is unlawfully stocking drug paraphernalia. The prior act of putting the item on his shelves would become unlawful only later, after the intentions of the yet unidentified customer are revealed.

[ N.J.S.A. 24:21-48] outlaws a retailer's possessing drug paraphernalia with intent to sell it, "knowing that it will be used" in connection with unlawful CDS.

It is impossible to determine the lawfulness of the retailer's possession of multi-use items based on the prediction how many of tomorrow's customers will take items home and use them unlawfully. A retailer therefore can not decide whether to stock an item on the basis of its lawfulness, because its status as drug paraphernalia is not determinable until someone comes in to buy it.

An example may help. One of the statutory examples of drug paraphernalia is "containers ... used or intended for use in storing ... controlled dangerous substances". Any container of any shape or material or almost any size is included, if it is used or intended for storing CDS. Plastic sandwich bags may be and, I am told, frequently are so used. May a retailer other than a food store safely stock them? They are not designed for unlawful use or, in all likelihood, principally so used. But, a retailer whose customers are of a certain age or who stocks the trappings of youth may not confidently stock an item routinely sold in the supermarket down the street. There are probably other multipurpose items whose main use is in connection with CDS, and whose display and sale as multipurpose items may be more cynical. It may not be realistic to repeat loftily, as the plaintiff's witness did here, that one does not speculate what one's customers do with their purchases. That expresses an attitude best accompanied by a knowing wink. But the statutory definition does not distinguish between the ash tray, the baggie and the cigarette rolling paper, all true multipurpose items, and others whose market is more narrowly focused.

I must declare the definition unlawfully vague and, with it, the sections of the statute governing the plaintiffs' conduct, namely [ N.J.S.A. 24:21-48, 49 and 50].

We find this analysis to be insufficiently supported by reason or persuasive authority.

I

Plaintiffs assert that N.J.S.A. 24:21-46 is impermissibly vague, as found by the trial judge, and that it is overbroad.

The proper approach to such a dual challenge was most recently stated by the United States Supreme Court in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (Hoffman Estates v. Flipside):

In a facial challenge 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...