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BRACHE v. COUNTY OF WESTCHESTER

January 28, 1981

Robert BRACHE and Edna Franza, Plaintiffs,
v.
COUNTY OF WESTCHESTER, Alfred Del Bello, Kenneth Hale, Samuel S. Yasgur, Thomas Delaney, Jerome Herlihy and Terrence Shames, Defendants



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

Plaintiff Robert Brache owns a retail store, designated a "boutique," called the Elephant's Trunk, in Mount Kisco, Westchester County, New York State. Plaintiff Edna Franza owns the East of the Sun Boutique in Scarsdale, Westchester County. They commenced this action to challenge Local Law No. 5-1980, promulgated by the Westchester County Board of Legislators (hereinafter the "ordinance"), which amends Westchester's Consumer Protection Code to add a new Article IX entitled "Sale and Display of Drug Accessories." The defendants are the County, the county executive, and officials charged with the enforcement of county laws. Plaintiffs sought a declaration that the ordinance violated the United States Constitution in several respects; and also that Article 39 of the New York State General Business Law, effective July 30, 1980 and dealing with "Drug-Related Paraphernalia," preempted the field. Plaintiffs prayed for a preliminary and permanent injunction of the ordinance's enforcement.

This Court entered a temporary restraining order, and scheduled an evidentiary hearing on plaintiffs' request for a preliminary injunction. That hearing was consolidated with trial on the merits. Rule 65(a)(2), F.R.Civ.P. Defendants consented to a continuance of the restraining order pending decision, a voluntary maintenance of the status quo which the Court appreciates. The case has been tried, and ably briefed and argued. The following constitutes the Court's Findings of Fact and Conclusions of Law under Rule 52(a).

 I.

 The Ordinance

 The Westchester County ordinance provides as follows:

 "ARTICLE IX SALE AND DISPLAY OF DRUG ACCESSORIES

 "Section 863.221. LEGISLATIVE FINDINGS. It is hereby declared and found that the sale of items used to aid the storage, use, concealment and test the strength or purity of illegal drugs is a widespread and growing practice which is contrary to the public interest. Many parent and teacher organizations, such as the New York State Congress of Parents and Teachers, as well as Local P.T.A. groups have recognized the problem and have encouraged and endorsed legislation that would prohibit the sale of drug-related paraphernalia. Therefore, public safety, health, welfare and morals would be best served by discontinuing the sale of such items.

 "Section 863.222. Definitions. a) The term "drug paraphernalia' means all equipment products and materials of any kind which are used, intended for use, or desinged (sic) 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 the laws of the State of New York. It includes, but is not limited to:

 "1. 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;

 "2. Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances;

 "3. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;

 "4. Testing equipment used, intended for use, or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances;

 "5. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;

 "6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances;

 "7. 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;

 "8. Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;

 "9. Capsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances;

 "10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances;

 "11. Hypodermic syringes, needles and other objects used, intended for use or designed for use in parenterally injected controlled substances in the human body;

 "12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introduced (sic) marihuana, cocaine, hashish, or hashish oil into the human body, such as:

 "a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes; with or without screens, permanent screens, hashish heads, or punctured metal bowls;

 "b. Water pipes;

 "c. Carburetion tubes and devices;

 "d. Smoking and carburetion masks;

 "e. Roach clips; meaning objects used to hold burning material such as marahuana (sic) cigarette, that has become too small or too short to be held in the hand;

 "f. Miniature cocaine spoons and cocaine vials;

 "g. Chamber pipes;

 "h. Carburetor pipes;

 "i. Electric pipes;

 "j. Air-driven pipes;

 "k. Chillums;

 "l. Bongs;

 "m. Ice pipes or chillers;

 "13. "Cocaine Spoon': A spoon with a bowl so small that the primary use for which it is reasonably adopted 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 labeled as a "cocaine' spoon or "coke' spoon.

 "14. "Marijuana or Hashish Pipe': A pipe characterized by a bowl which is so small that the primary use for which it is reasonably adopted 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.

 "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:

 "1. Statements by an owner or by anyone in control of the object concerning its use;

 "2. Prior convictions, if any, of an owner, or of anyone in control of the object, under any State or Federal law relating to any controlled substance;

 "3. The proximity of the object, in time and space, to a direct violation of this Act;

 "4. The proximity of the object to controlled substances;

 "5. The existence of any residue of controlled substances on the object;

 "6. Direct or cirucmstantial (sic) evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he knows, or should reasonably know, intend to use the object to facilitate violation of this Act; the innocence of an owner, or of anyone in control of the object, as the direct violation of this Act should not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

 "7. Instructions, oral or written, provided with the object concerning its use;

 "8. Descriptive materials accompanying the object which explain ...


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