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September 16, 1980

Hope & Walter HOETZER, Jr., d/b/a The Marrakesh, Kathleen Sue Godwin, d/b/a Suzie's Cloud Nine; Janice Walleshauser, d/b/a Starseed Enterprise; Leo M. Becker, Jr., d/b/a Popeye's Headquarters; Robert C. Pochedley, d/b/a Buffalo Headquarters, Inc. & The Echo Stores, Inc.; Judy Reshen, d/b/a J.E.M. Jewelry Dis-Trib. Co., Plaintiffs,
The COUNTY OF ERIE; Edward Rutkowski; and Kenneth Braun and The State of New York and Robert Abrams, Defendants

The opinion of the court was delivered by: ELFVIN


Plaintiffs initially commenced this action under 42 U.S.C. § 1983 to declare Erie County Local Law No. 4-1980 ("Local Law 4-1980" ) unconstitutional as violative of the due process clause of the Fourteenth Amendment and to enjoin defendants the County of Erie, Edward Rutkowski and Kenneth Braun (herein sometimes "the County defendants" ) from enforcing the same. Plaintiffs and the County defendants appeared before me May 27, 1980 pursuant to my order to show cause why defendants should not be enjoined preliminarily from enforcing Local Law 4-1980. Toward the close of oral argument I inquired whether there was any need for the taking of proof. The responses of counsel indicated that material questions of fact do not exist. With their consent I consolidated the hearing on preliminary relief with a trial on the merits pursuant to Fed.R.Civ.P. rule 65(a)(2) and ordered that memoranda of law regarding the issue of permanent relief should be submitted no later than May 30, 1980. Such memoranda were submitted and the case was taken under advisement by me for final adjudication. Several events then took place. The Senate and Assembly of New York State enacted and Governor Carey signed Chapters 811 and 812 of the laws of New York of 1980, adding a new Article 39 or thirty-nine (consisting of sections 850 through 853) to New York's General Business Law ("the State law" ) which deals with generally the same subject matter as does Local Law 4-1980 and, according to plaintiffs, suffers from many of the same constitutional infirmities. Accordingly, plaintiffs on July 25, 1980 filed an Amended Complaint adding a similar constitutional challenge to the State law, which was scheduled to become effective July 30, 1980, and naming The State of New York and Robert Abrams (herein "the State defendants" ) as additional defendants. On or about July 29, 1980 a suit was commenced in the United States District Court for the Southern District of New York by two New York City residents also seeking declaratory and injunctive relief against enforcement of the State law on grounds similar to those asserted before me. A temporary restraining order enjoining enforcement was issued July 29th by the Hon. Vincent L. Broderick, Judge of the United States District Court for the Southern District of New York. *fn1" Argument on plaintiffs' motion for a preliminary injunction in the latter action was initially scheduled for August 5, 1980 before the Hon. John M. Cannella, a judge of that court, but has been adjourned several times on consent of counsel and has now been adjourned by Judge Cannella until a decision shall have been rendered by the Hon. Charles S. Haight, Jr., a judge of said court, in a similar but unconnected action challenging a Westchester County drug paraphernalia ordinance. I am advised that Judge Haight is now conducting a trial or evidentiary hearing in the action. To avoid the possibility of inconsistency with the decisions, past and prospective, of Judges Broderick and Cannella, and because the temporary injunctive relief granted in the Southern District action already restrains the State defendants herein, plaintiffs' suit, insofar as it seeks injunctive and declaratory relief against the State law, should be stayed and held in abeyance pending final resolution of the action before Judge Cannella. If plaintiffs in the future demonstrate a realistic threat of enforcement of the State law (despite the Southern District proceedings) by the County defendants, they may renew their motion for preliminary injunctive relief.

 The following constitute my Findings of Fact and Conclusions of Law in accordance with Fed.R.Civ.P. rule 52(a) relating to plaintiffs' challenge to Local Law 4-1980.

 The pertinent facts may be summarized as follows. Each of the plaintiffs owns a wholesale or retail business in Erie County, N.Y. and in the operation of such business sells a variety of items including "smoking accessories" and "snuff accessories." Said smoking accessories and snuff accessories comprise between 30 and 75 percent of the inventory of each of such businesses.

 In response to the growing use of marijuana and other drugs by residents, especially minor residents, of Erie County, the Erie County Legislature passed Local Law 4-1980 April 17, 1980. Said law, which is based in part on a "model act" drafted by the Drug Enforcement Administration of the United States Department of Justice, bans the use, possession, manufacture, delivery and sale of drug paraphernalia and purports to ban the sale of smoking accessories and smoking herbs to minors. Local Law 4-1980 was signed into law by defendant Rutkowski May 6, 1980 and took effect May 27, 1980 pursuant to New York's Municipal Home Rule Law § 27. Subsequent to the commencement of this suit and on June 5, 1980, a manager of "Echo II," one of the stores owned by plaintiff Pochedley, was arrested and charged with a violation of Local Law 4-1980. It does not appear that any person connected with any of the other plaintiffs herein has been charged with any such violation.

 The so-called "Younger doctrine" (announced in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), and its companion cases) permits federal courts to interfere with the enforcement of state and local laws only in situations where the principles of equity, comity and federalism are not offended. Inasmuch as this suit was instituted prior to the commencement of any criminal prosecutions against any of the plaintiffs, such principles are not offended by the issuance from this court of declaratory or injunctive relief. Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1976) (declaratory relief); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (1975) (injunctive relief).

 The power to grant such relief is conditioned, of course, upon the existence of an Article III case and controversy and of standing by these plaintiffs. Defendants argued initially that plaintiffs have not surmounted this hurdle because none of them has been arrested or threatened with prosecution under Local Law 4-1980. The arrest of the manager of one of the stores operated by plaintiff Pochedley for sale of an item of drug paraphernalia moots this argument as to him. I find that the affidavits submitted by each of the other plaintiffs demonstrate that the threat of prosecution under sections IIC and IID of Local Law 4-1980 is real rather than speculative. Thus, the instant case presents an Article III case and controversy; plaintiffs have standing to contest the constitutionality of these sections of Local Law 4-1980. This, however, does not follow as to sections IIA and IIB of Local Law 4-1980. Plaintiffs are all retail distributors, not users for their own consumption, or manufacturers, of items potentially within Local Law 4-1980's prohibitions of possession for personal use or manufacture. They have no standing to challenge sections IIA and IIB. Additionally, plaintiffs herein levy no challenge against Section IV of Local Law 4-1980 (prohibiting sales of smoking accessories and "smoking herbs" to minors) presumably because of the failure of said section to provide any penalties for its violation. The County defendants' counsel at oral argument conceded that Section IV was unenforceable.

 Defendants argue that, if this case presents a justiciable controversy, I should abstain from reaching the merits of plaintiffs' challenges to Local Law 4-1980 because state courts' interpretations in individual criminal prosecutions under said law may avoid the need for this court to rule on the constitutional claims presented herein. In Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), the Court held that where a federal constitutional claim is premised on an unsettled question of state law the federal court should stay its hand to provide the state courts the opportunity to settle such question and thereby avoid the possibility of unnecessarily deciding a constitutional claim, or of reaching a necessarily tentative resolution on an issue of state law, subject to displacement by a definitive state holding. However, because of the delays inherent in invoking the so-called Pullman doctrine and the danger that valuable federal rights might be lost if such rights are not adjudicated expeditiously in federal court, such abstention must be invoked only in special circumstances and upon careful consideration of the facts. See, Harris County Comm'rs Court v. Moore, 420 U.S. 77, 95 S. Ct. 870, 43 L. Ed. 2d 32 (1975).

 As will be discussed herein, I have concluded that Local Law 4-1980 has been preempted by the State law. It is true that the state courts could, in due course, authoritatively resolve this issue. However, until such issue was decided, *fn2" plaintiffs would remain subject to Local Law 4-1980, with which they claim they are able to be certain of complying only by ceasing entirely sales of smoking accessories with potentially disastrous effects on their businesses and livelihoods and a real possibility of infringement of their rights under the Constitution. Under these circumstances I need not abstain and I decline to do so. See, e.g., Baggett v. Bullitt, 377 U.S. 360, 375-80, 84 S. Ct. 1316, 1324, 12 L. Ed. 2d 377 (1964).

 The text of Local Law 4-1980 provides as follows: *fn3"

 "Section 1 (sic)


 "A. "Controlled substance' means any controlled substance as defined by subdivision five of Sec. 220.00 of the New York State penal law (Penal Law).

 "B. The term "Drug Paraphernalia' shall mean all equipment, products and materials of any kind which are primarily used, adapted for use, or designed for use, in 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 or marijuana as defined by Section 220.00 (subd. 5. and 6.) of the New York Penal Law. The term "Drug Paraphernalia' as used herein does not include any item or substance of which knowing possession thereof would constitute a crime under Section 220.50 of the Penal Law.

 "C. "Marihuana' means marihuana or concentrated cannabis as defined by subdivision six of Sec. 220.00 of the New York State penal law.

 "D. "Minor' means a person who has not attained the age of eighteen years.

 "E. "Unlawfully' means in violation of Article thirty-three of the Public Health Law.

 "F. "Deliver' means to give or dispose of to another, or to offer or ...

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