UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
July 17, 1981
Edna FRANZA and Robert Brache, Plaintiffs,
Hugh L. CAREY, as Governor of New York State, Robert Abrams, as Attorney General of New York State, and Richard Berman, as Director of New York State Health Systems Management, Defendants
The opinion of the court was delivered by: CANNELLA
After consolidating a hearing on plaintiffs' motion for a preliminary injunction with a trial on the merits of the complaint, the Court finds for plaintiffs. New York State's drug paraphernalia law, Article 39 of the General Business Law §§ 850-853 (McKinney Supp. 1980-1981) (the "Statute" or "Article 39"), is hereby declared to be impermissibly vague and its enforcement is permanently enjoined.
This action presents the latest judicial challenge to the constitutionality of legislation adapted from the Drug Enforcement Administration's ("DEA") Model State Drug Paraphernalia Act (the "Model Act"). Plaintiffs Robert Brache and Edna Franza,
owners of retail establishments selling novelty items and smoking accessories, seek declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, alleging that the Statute
suffers from six constitutional infirmities. The defendants are Hugh L. Carey, as Governor of the State of New York, Robert Abrams, as Attorney General of the State of New York, and Richard Berman, as Director of New York State Health Systems Management.
The Model Act
The DEA published the Model Act in August 1979 as a proposed amendment to the Uniform Controlled Substances Act. Prior to that time, a number of state and local governments enacted legislation that attempted to prohibit the sale and possession of drug paraphernalia due to the rapid growth of an industry which many perceived to condone and glamorize illegal drug use, especially among adolescents.
The Model Act is divided into four articles.
The first article, which contains two subsections, sets forth a lengthy definition of drug paraphernalia. The first subsection defines drug paraphernalia as anything "used, intended for use, or designed for use" in growing, processing or ingesting a controlled substance. The general definition is followed by twelve specific examples, each described by the phrase "used, intended for use, or designed for use." The list of examples concludes with the category "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," followed by a list of thirteen items that could be used for that purpose, such as bongs, miniature cocaine spoons, vials and roach clips. The second subsection contains fourteen factors or guidelines that "should be considered" by courts and law enforcement authorities when determining whether an item is drug paraphernalia.
The second article defines the activities that constitute a criminal offense: (1) the use of or possession with intent to use drug paraphernalia; (2) the delivery or manufacture of drug paraphernalia by a person who knows or reasonably should know that the drug paraphernalia will be used with controlled substances; (3) the delivery of drug paraphernalia to minors, and (4) the advertisement of drug paraphernalia in the print media. The third article of the Model Act authorizes civil forfeiture of all drug paraphernalia and the fourth article provides that each section is severable in the event that any part of the Model Act is declared unconstitutional.
The definition of drug-related paraphernalia in section 850 is less comprehensive than in Article I of the Model Act since it omits any general definition and adopts only eight of the Model Act's twelve specific examples. Each example is described by the phrase "used or designed for the purpose of" growing, processing or ingesting controlled substances. Section 850, moreover, omits the Model Act's list of thirteen items in the category of "objects used or designed for the purpose of ingesting, inhaling, or otherwise introducing" certain illegal drugs into the human body as well as the fourteen enforcement guidelines.
Under section 851, it is a violation "for any person, firm or corporation to possess with intent to sell, offer for sale, or purchase drug-related paraphernalia under circumstances evincing knowledge that the paraphernalia is possessed, sold or purchased for one or more of the drug-related purposes" stated in section 850(2). Unlike the Model Act, however, the Statute does not impose criminal sanctions for violations. Rather, section 852(2) declares the possession with intent to sell or the offering for sale of drug paraphernalia to be a "nuisance" and sections 852 and 853 provide for civil penalties, including (1) the revocation, following an administrative hearing, of the vending license or permit of any person or corporation that sold or offered to sell merchandise in violation of the Statute, see N.Y.Gen.Bus.Law § 852(1), and (2) injunctive relief and the assessment of a fine in an amount of $ 1,000 to $ 10,000 per violation following judicial proceedings commenced by any one of a number of enforcement officers designated in section 853.
In addition, section 852(2) provides for civil forfeiture of drug paraphernalia. Thus, the major differences between the Statute and the Model Act are that the Statute (1) imposes civil rather than criminal penalties for its violation, (2) defines a violation solely in terms of the alleged violator's apparent rather than actual knowledge of an item's drug-related purpose, (3) does not contain a severability clause, (4) omits the Model Act's general definition of drug paraphernalia and fourteen enforcement guidelines, (5) does not prohibit the advertisement of drug paraphernalia, and (6) does not create a special violation for the sale of drug-related paraphernalia to minors.
Plaintiff Brache owns the "Elephant's Trunk," located in Mount Kisco, New York and plaintiff Franza owns "East of the Sun," located in Scarsdale, New York. Both stores sell assorted clothing, jewelry and gift items and contain a separate "smoking accessories" section. Sales from these smoking accessories sections account for approximately thirty percent of each store's profits. Items sold in these sections include, among other things, a variety of pipes, rolling papers, bongs, scales, spoons, clips, grooved and ungrooved mirrors, mannitol, marihuana test kits, power hitters, the Cocaine Consumers Handbook and the Marijuana Growers Guide. No tobacco products are sold in the smoking accessories sections and plaintiffs concede that certain items have only one conceivable use the preparation or ingestion of controlled substances. These items will be referred to as "single-use items."
Other items sold, such as pipes, rolling papers and clips, may or may not be used for drug-related purposes and will be referred to as "dual-use items."
The parties produced expert testimony regarding one of the most obvious dual-use items pipes. The testimony of these witnesses indicates that while certain pipe features may be preferable for smoking tobacco,
the physical characteristics of a pipe, such as the material it is made from, the bowl size, and the presence or absence of a screen, stem or chamber, are not determinative of what substance the pipe user will smoke. In the last analysis, the individual can smoke any substance in any pipe if he desires to do so. Similarly, the use to which rolling papers and other dual-use items can be put is limited only by the user's imagination.
The Court, however, does not credit plaintiffs' testimony that their sole purpose in selling both the single-use and dual-use items is to make a profit and that they never intended any items to be used for a drug-related purpose. Plaintiffs' awareness of the drug-related purpose of at least certain items sold in their smoking accessories sections is amply demonstrated by the evidence presented at trial, including the manufacturers' catalogs from which some of the items were ordered,
the instructions accompanying certain items, the conversations between plaintiffs' sales personnel, including plaintiff Franza, and Westchester County undercover investigators, as well as the variety and arrangement of the items offered for sale in the smoking accessories sections. Therefore, the Court concludes that plaintiffs intended certain items sold in their smoking accessories sections to be used for a drug-related purpose and that the Statute clearly informed them that such conduct would constitute a violation.
Although plaintiffs assert six constitutional claims in their complaint, they have pressed only three in their post-trial memorandum: (1) the Statute is not rationally related to any legitimate legislative goal and therefore violates the due process clause of the fourteenth amendment, (2) the Statute is impermissibly vague in violation of the due process clause of the fourteenth amendment, and (3) the Statute's civil forfeiture provision violates the fourth and fourteenth amendments by sanctioning warrantless seizure and confiscation of property without a hearing.
Although the defendants have not raised the issue, the Court finds that plaintiffs have demonstrated a genuine threat that Article 39 will be enforced against them by state or local enforcement officials. Therefore, the Court possesses subject matter jurisdiction since an actual case or controversy exists as required by Article III, § 2 of the Constitution. See Steffel v. Thompson, 415 U.S. 452, 458-59, 94 S. Ct. 1209, 1215-16, 39 L. Ed. 2d 505 (1974); Record Revolution No. 6 v. City of Parma, 638 F.2d 916, 924 (6th Cir. 1980), vacated and remanded, 451 U.S. 1013, 101 S. Ct. 2998, 69 L. Ed. 2d 384, (1981) ("Record Revolution").
Moreover, the Court adheres to its decision, made when the Court denied defendants' motion to dismiss the complaint, that abstention pursuant to Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), is inappropriate in this case. Federal courts that have considered the constitutionality of drug paraphernalia laws have uniformly refused to abstain since the issues raised in such litigation are predominantly questions of federal constitutional law and because such statutes have not been found susceptible to a construction by state courts that would avoid or modify the necessity of reaching the federal constitutional questions. See Record Revolution, supra, 638 F.2d at 925; High Ol' Times, Inc. v. Busbee, 621 F.2d 135 (5th Cir. 1980). Since the language of the Statute, in the Court's opinion, is not susceptible to a saving construction by state courts, abstention is not warranted.
In arguing that the Statute is not rationally related to a legitimate governmental interest because it will not decrease illegal drug use, plaintiffs rely upon the testimony of Dr. Norman Zinberg, Clinical Professor of Psychiatry at Harvard Medical School and an expert on the relationship between laws and effective social restraint, particularly in the area of controlled substances. It is Dr. Zinberg's opinion that prohibiting the sale of drug paraphernalia will not lessen drug use but may indeed increase the deleterious use of drugs by destroying an industry that helps create social rituals and controls for drug use and provides a source of information that encourages moderate drug use.
Transcript of Proceedings at 424-25, Brache v. Westchester County, 80 Civ. 4228 (CSH) (hereinafter "Tr."). In support of his opinions, Dr. Zinberg refers to the unsuccessful attempts to prohibit the use of alcohol earlier in this century. Rather than a total prohibition of paraphernalia, Dr. Zinberg states that other forms of regulation, such as the imposition of age-limits, would be more effective. He recognizes, however, that other experts in the field do not share his views.
Defendants' expert, Dr. Mitchell Rosenthal, a psychiatrist and the President of Phoenix House Foundation, disagrees with Dr. Zinberg, basing his opinions upon interviews with drug users and observations of the activities of numerous "head shops," stores where drug paraphernalia is sold. In Dr. Rosenthal's opinion, the paraphernalia industry, which has experienced tremendous growth in the last five years, both in terms of the variety of available items and the profits generated by their sale, serves to legitimize and condone the use of illegal drugs. He does not agree that the industry is a moderating influence on drug use although he acknowledges that no studies have been conducted which link the sale of drug paraphernalia to increased drug use.
When passing upon substantive due process claims, the judiciary must not substitute its judgment for that of the legislature or demand legislation that remedies all aspects of a given social problem. Mid-Atlantic Accessories Trade Ass'n v. Maryland, 500 F. Supp. 834, 848 (D.Md.1980). All that due process requires is that the legislation bear a rational relationship to a legitimate governmental purpose. See Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-25, 98 S. Ct. 2207, 2213-14, 57 L. Ed. 2d 91 (1978). Since it is obvious that the desirability and efficacy of laws that regulate the sale and use of drug paraphernalia is a subject that generates conflicting opinions and sentiments, the Court declines to hold that the New York State legislature, which has carefully considered the state's drug abuse problem, acted irrationally in finding that the growing availability and variety of drug paraphernalia leads to increased drug use, especially among young people. In short, the Court agrees that a state or local government "has the power through a properly drawn (statute) to discourage the availability of drugs and the acceptance of drug use by prohibiting the sale of drug-related devices." Geiger v. City of Eagan, 618 F.2d 26, 28 (8th Cir. 1980); accord, Brache v. County of Westchester, supra, 507 F. Supp. at 581; New England Accessories Trade Ass'n v. Browne, 502 F. Supp. 1245, 1254 (D.Conn.1980); World Imports v. Woodbridge Township, 493 F. Supp. 428, 433 (D.N.J.1980); Housworth v. Glisson, 485 F. Supp. 29, 38 (N.D.Ga.1978), aff'd mem., 614 F.2d 1295 (5th Cir. 1980). Having found that the subject matter of the Statute is rationally related to the state's legitimate interest in prohibiting the use of illegal drugs, the Court must, therefore, determine whether Article 39 is properly drawn to achieve the legitimate goal of prohibiting the sale and use of drug-related devices.
As their principal attack on the constitutionality of the Statute, plaintiffs contend that (1) the Statute's definition of "drug-related paraphernalia" lacks sufficient detail to warn reasonable retailers of the type of items that may not be sold or offered for sale, and (2) the Statute lacks sufficient guidelines to avoid arbitrary and discriminatory enforcement by enforcement officials and the courts.
In particular, plaintiffs argue that the Statute's definition of drug-related paraphernalia is not as comprehensive as that contained in the Model Act because section 850 omits examples of items that may be used to ingest controlled substances and the fourteen enforcement guidelines. Moreover, several courts have found the "designed for use" portion of the Model Act's definition to be vague and overbroad despite the "actual knowledge" requirement in the Act's substantive offense clauses. See Record Revolution, supra, 638 F.2d at 930-31; Weiler v. Carpenter, 507 F. Supp. 837, 843 (D.N.M.1981). See also The Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estates, 639 F.2d 373, 380-81 (7th Cir. 1981) (non-Model Act ordinance requiring licensing of persons selling drug paraphernalia held to be unconstitutionally vague), prob. juris. noted, 452 U.S. 904, 101 S. Ct. 3028, 69 L. Ed. 2d 404, (1981). Plaintiffs contend that since section 851 requires only constructive knowledge to sustain a violation, there can be no doubt that the Statute is unconstitutional.
Defendants attempt to defuse plaintiffs' vagueness challenge by relying upon the principle that such challenges must be considered in the factual context of each case since a "party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights." Ulster County Court v. Allen, 442 U.S. 140, 154-55, 99 S. Ct. 2213, 2223, 60 L. Ed. 2d 777 (1979); Broadrick v. Oklahoma, 413 U.S. 601, 610-11, 93 S. Ct. 2908, 2914-15, 37 L. Ed. 2d 830 (1973). In essence, defendants argue that since the factual record in this case amply demonstrates that plaintiffs are aware that their conduct is prohibited by the Statute, plaintiffs lack standing to challenge the vagueness of the Statute as applied to them.
The Court agrees that if the record demonstrated that plaintiffs knew the full extent of the Statute's prohibitions in regard to their conduct, they would not have standing to challenge its alleged vagueness even though it may arguably be vague as applied to the conduct of other retailers. The difficulty with defendants' argument in this case, however, is that the evidence indicates that plaintiffs are engaging in a course of conduct only part of which they know is prohibited by the Statute. There is no question that plaintiffs are aware of the drug-related purpose of single-use and certain dual-use items and that their conduct in selling or offering to sell such items is prohibited. Unfortunately, the record does not reveal plaintiffs' intended purpose for other dual-use items that are sold in their smoking accessories sections. Moreover, the testimony of a state enforcement official demonstrates that the threat of enforcement is substantial even if plaintiffs sold only the dual-use items for which the record does not reveal their knowledge or intent.
Therefore, this is not a case like Broadrick in which all of plaintiffs' conduct that could conceivably constitute a violation of the state statute fell within the constitutionally permissible "core area" of regulation. In such a case, a claim of unconstitutionality necessarily rests upon the assertion of the constitutional rights of third persons.
Here, on the other hand, the Statute clearly seeks to regulate the sale of both single-use and dual-use items, leading plaintiffs to contend that they are uncertain of the circumstances under which they can sell certain dual-use items. In the absence of actual enforcement against plaintiffs, the Court agrees with Judge Haight that an insufficient factual basis exists to adjudicate the constitutionality of the Statute as applied in this context. See Brache v. County of Westchester, supra, 507 F. Supp. at 573 (citing Hejira Corp. v. MacFarlane, Crim. Action No. 80-F-824 (D.Colo. Sept. 15, 1980) (oral opinion at Tr. 9), rev'd on other grounds, -- - F.2d -- , No. 80-2062 (10th Cir. May 5, 1981)). Therefore, the Court finds that plaintiffs have standing to challenge the facial validity of the Statute. In so ruling, the Court is in accord with the other federal courts that have considered the constitutionality of drug paraphernalia legislation, with the exception of Tobacco Road v. City of Novi, 490 F. Supp. 537 (E.D.Mich.1979), with which the Court respectfully disagrees.
In advancing standards by which to measure the alleged vagueness of the Statute, the parties have engaged in considerable debate concerning whether the Statute is "civil" or "quasi-criminal" in nature.
Regardless of such characterizations, however, when legislation provides the state with procedures to deprive an individual of constitutionally protected rights, the enactment must meet due process standards:
It (is) not the criminal penalty that was held invalid, but the exaction of obedience to a rule or standard which was so vague and indefinite as really to be no rule or standard at all. Any other means of exaction, such as declaring the transaction unlawful or stripping a participant of his rights under it, was equally within the principle of (vagueness).
A. B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 239, 45 S. Ct. 295, 297, 69 L. Ed. 589 (1925); accord, Giaccio v. Pennsylvania, 382 U.S. 399, 402, 86 S. Ct. 518, 520, 15 L. Ed. 2d 447 (1966). Since enforcement of the Statute would deprive violators of protected property rights through the revocation of business licenses and the imposition of fines, the due process principles enunciated by the Supreme Court in Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222 (1972), are relevant in this case:
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Id. (footnotes omitted). Therefore, in the context of the present case, due process requires that the Statute (1) make reasonably clear to persons affected what conduct constitutes a violation, and (2) provide sufficient enforcement standards to prevent arbitrary and discriminatory enforcement. See The Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estates, supra, 639 F.2d at 377-79, 383; Housworth v. Glisson, supra, 485 F. Supp. at 36-38.
With the above principles in mind, the Court turns to plaintiffs' vagueness arguments. Plaintiffs contend that the "designed for the purpose" language in section 850(2) is impermissibly vague since that phrase refers to unspecified physical characteristics of an item or the intended purpose of its designer or manufacturer. Defendants, however, contend that the words "designed" and "purpose" are equivalent to "intent" and therefore that drug-related paraphernalia is defined by the alleged violator's intent for the item to be used for one of the drug-related purposes enumerated in section 850(2). They further argue that this scienter requirement provides both an ascertainable standard of liability and fair notice to those affected by the Statute of the prohibited conduct.
The Court agrees that a statute which is otherwise vague may be saved by the inclusion of such a scienter or mens rea requirement. See United States v. International Minerals & Chemical Corp., 402 U.S. 558, 91 S. Ct. 1697, 29 L. Ed. 2d 178 (1971); United States v. National Dairy Products Corp., 372 U.S. 29, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1963); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S. Ct. 329, 96 L. Ed. 367 (1952); Record Revolution, supra, 638 F.2d at 934. Moreover, a statute need not use the word "intent" since knowledge as an element of the violation may be deemed the equivalent of intent. Brache v. County of Westchester, supra, 507 F. Supp. at 575; Gasser v. Morgan, 498 F. Supp. 1154, 1159 (N.D.Ala.1980). Therefore, the Court must determine whether the "designed for the purpose" definition indeed creates such a scienter requirement when considered together with the "circumstances evincing knowledge" standard of section 851.
Courts that have considered the Model Act's similar "designed for use" language are divided as to its constitutionality. Some courts, having determined that "designed" refers to the physical characteristics of an item, have found the definition impermissibly vague since it does not include specific design characteristics that distinguish drug-related from non-drug-related items. See, e.g., Record Revolution, supra, 638 F.2d at 930; Weiler v. Carpenter, supra, 507 F. Supp. at 843. See also The Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estates, supra, 639 F.2d at 380-81. Other courts adopt the subjective, intentional sense of the word "designed." See, e.g., The Casbah, Inc. v. Thone, 651 F.2d 551, at 560 (8th Cir. 1981); Brache v. County of Westchester, supra, 507 F. Supp. at 577; New England Accessories Trade Ass'n v. Browne, supra, 502 F. Supp. at 1251; Mid-Atlantic Accessories Trade Ass'n v. Maryland, supra, 500 F. Supp. at 845; Delaware Accessories Trade Ass'n v. Gebelein, 497 F. Supp. 289 (D.Del.1980).
The reasoning of two decisions is illustrative of the basis for these different opinions. In Record Revolution, the Sixth Circuit considered the constitutionality of three local ordinances which were almost identical to the Model Act. See 638 F.2d at 921-22. In discussing plaintiffs' vagueness challenge, the Court of Appeals found that the statutory terms "used" or "intended for use" are not vague or overbroad. Id. at 929. The Court, however, reached the opposite conclusion with respect to the phrase "designed for use":
"The term "designed' could signify only devices that have no use or function other than as a means to ingest a controlled substance. Alternatively, "designed' could include any devices that have a legitimate function but could be used for ingestion of drugs. That is, the term "designed' could sweep into the definition of paraphernalia any device that could be altered from its normal function to become a makeshift drug device, such as a paper clip, tie bar, hand mirror, spoon, or piece of aluminum foil...."
Vagueness enters in our case once the ordinances begin to define drug paraphernalia in terms of the primary adaption or dominant purpose of the design. Then the definition begins to depend upon the ingenuity or purpose of the purchaser rather than the seller and upon the current practices of the clandestine society of drug users.
The major ambiguity in defining drug paraphernalia in terms of the "design" of items is the lack of any design characteristics that distinguish lawful purposes from unlawful purposes. The type of object that can become, or be used as, drug paraphernalia is limited only by the imagination of the user. The record in our cases established the absence of any unique design characteristics.
Id. at 930-31 (citations and footnote omitted) (quoting Indiana Chapter, NORML, Inc. v. Sendak, No. TH 75-142-C, slip op. at 13 (S.D.Ind. Feb. 4, 1980) (3-judge district court), vacated as moot at the time of appeal, No. 80-1305 (7th Cir. July 22, 1980)).
The district court in Mid-Atlantic Accessories Trade Association v. Maryland, however, gave a contrary interpretation to the same language in the Model Act:
"Design" connotes an intentional act as well as an objective set of characteristics. When considered in the context of this statute, it is clear that it is the subjective, intentional sense in which "designed" is used.
The fact that "designed for use" and "intended for use" are used in the disjunctive throughout the Act does not necessarily indicate that each of the two phrases means something entirely different. Rather, it is apparent from a reading of the Act in its entirety that all three verbs (i. e. used, designed and intended) were included in the definition of drug paraphernalia so that the terms would be applicable to all the kinds of conduct barred in the Act's substantive sections. A seller will "intend" an item for use, while a manufacturer is more likely to "design" an item for use, and a user will simply "use" the item.
500 F. Supp. at 844-45.
Having carefully considered the reasoning of both interpretations as well as the distinctive features of the Statute when compared to the Model Act, the Court finds that "designed for the purpose" refers to the subjective intent of the alleged violator rather than to the physical characteristics of a particular item. Even though scienter requirements are not as prevalent in civil statutes as in criminal enactments and section 850 omits the fourteen enforcement guidelines that clearly focus upon the intent of the alleged violator, the Statute's definition of drug-related paraphernalia is obviously adapted from the Model Act. Therefore, the following comments of the Model Act's drafters are relevant in determining the intended meaning of the definition adopted by the New York legislature:
To insure that innocently possessed objects are not classified as drug paraphernalia, Article I makes the knowledge or criminal intent of the person in control of an object a key element of the definition. Needless to say, inanimate objects are neither "good" nor "bad," neither "lawful" nor "unlawful." Inanimate objects do not commit crimes. But, when an object is controlled by people who use it illegally, or who intend to use it illegally, or who design or adapt it for illegal use, the object can be subject to control and the people subjected to prosecution....
Consider the application of Article I to a spoon, a hypodermic syringe, and a length of surgical tubing. Each object has legitimate uses in the community. None is specifically designed for illegal use. Thus, when these objects are manufactured, delivered and possessed in lawful commerce, they are not considered paraphernalia. But, if these same objects are assembled and used by an addict to illegally melt heroin and inject it into his body, they become drug paraphernalia....
Actual use of an object to produce, package, store, test or use illicit drugs need not always be shown. An object is considered to be drug paraphernalia whenever the person in control intends it for use with illicit drugs.... It should be noted that the person in immediate control of an object need not intend to use it personally in connection with drugs. It is enough if he holds the object with the intent to make it available to persons whom he knows will use it illegally....
Comments at 6-7, Model Drug Paraphernalia Act (August, 1979) (citations omitted).
Although in the context of the Model Act "designed" may have been intended to refer to the subjective intent of a manufacturer of drug paraphernalia,
in the context of the Statute, which does not seek directly to regulate the activities of manufacturers, the conclusion that "designed for the purpose" refers to the subjective intent of the person charged with a violation is consistent with the ordinary meaning of "designed."
Moreover, section 850 does not utilize "designed for the purpose" in the disjunctive with "intended for the purpose" or "intended to be used," which might have suggested that "designed" was used in a sense other than referring to subjective intent. This interpretation is consistent with a prior version of Article 39 which defined drug-related paraphernalia as items "used or intended to be used" for one of a number of drug-related purposes. See 1980 N.Y.Laws, c. 811, § 850. Similarly, Governor Carey's statements upon signing the bill creating Article 39 indicate that the legislature considered the intent of the person charged to be a critical element:
These bills would add a new Article 39 to the General Business Law to prohibit the possession and sale of paraphernalia intended to be used for growing, manufacturing, ingesting or enhancing the use of controlled substances or marijuana.
In order to meet constitutional standards, the legislation seeks not to regulate mere possession or sale of such paraphernalia, but rather is directed at possession and sale thereof with the intention that such items be used for a drug-related purpose. Violations would result in civil sanctions, including forfeiture of the violator's license to do business and imposition of a penalty of between $ 1,000 and $ 10,000.
Executive Memorandum on Approving 1980 N.Y.Laws, cs. 811 and 812 (June 30, 1980) (emphasis added). Having found that the phrase "designed for the purpose" is used in the subjective, intentional sense, the Court concludes there is no merit to plaintiffs' argument that the definition of drug-related paraphernalia refers to the "design" or intent of a remote manufacturer, seller or purchaser rather than the individual or entity charged with a violation. See Record Revolution, supra, 638 F.2d at 928-29; New England Accessories Trade Ass'n v. Browne, supra, 502 F. Supp. at 1251; Mid-Atlantic Accessories Trade Ass'n v. Maryland, supra, 500 F. Supp. at 844.
Given the fact that many forms of drug paraphernalia have legitimate as well as drug-related uses, the Court further concludes that it would be futile to attempt to define drug paraphernalia by reference to the specific physical attributes of the item. Therefore, the Court perceives no constitutional impediment to defining drug paraphernalia in terms of the alleged violator's subjective intent that the item be used for a drug-related purpose since the individual is no doubt aware of his own intentions and thus has reasonable notice that his conduct falls within the prohibition of the Statute.
Unfortunately, notwithstanding the conclusion that section 850(2)"s definition of drug-related paraphernalia is not vague since an element thereof is the alleged violator's drug-related purpose for the item's use, the Court finds that the protection afforded thereby is vitiated by section 851's standard of liability. Under section 851, a violation occurs when a person possesses with intent to sell, offers for sale, or purchases drug-related paraphernalia "under circumstances evincing knowledge that the paraphernalia is possessed, sold or purchased" for one of the drug-related purposes listed in section 850(2). Plaintiffs and defendants agree that a person is liable under this standard if the circumstances indicate that a "reasonable person" would know the drug-related purpose of the item's sale or purchase.
Therefore, unlike the definition of drug-related paraphernalia which depends upon the alleged violator's subjective intention that the item be used for a drug-related purpose, a violation occurs if the circumstances of the sale indicate that the individual reasonably should have known of the item's drug-related purpose. Since a violation does not depend upon the alleged violator's subjective awareness of his own drug-related purpose and the Statute does not include enforcement guidelines which define the "circumstances" in which a person reasonably should know the drug-related purpose of an item's sale or purchase, for the reasons stated below, the Court is constrained to find that section 851's standard of liability is void for vagueness. Needless to say, section 851's definition of a violation is the heart of the Statute's regulatory scheme, and thus the defect found by the Court cannot be cured judicially by severance or otherwise.
Plaintiffs contend section 851's standard of liability invites arbitrary and discriminatory enforcement. Defendants respond that this standard is commonly employed in the context of criminal statutes
and that the Model Act includes a similar constructive knowledge standard that has been upheld by several courts that have considered its constitutionality in the context of criminal statutes. Defendants therefore argue that such a standard of liability is clearly permissible in the context of a civil statute such as Article 39.
In advancing these arguments, the parties assume that section 851's standard of liability that it is a violation for any person to possess with intent to sell, offer for sale or purchase drug-related paraphernalia "under circumstances evincing knowledge that the paraphernalia is possessed, sold or purchased for one or more" of the drug-related purposes stated in section 850(2) is equivalent to the Model Act's constructive knowledge standard, namely, that "(it) shall be unlawful for any person to ... possess with intent to deliver ..., drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, ... ingest ..., or otherwise introduce into the human body a controlled substance in violation of this Act." Model Act, Art. II, § (B). This assumption, however, is unfounded.
Under the Model Act, a seller is liable when he possesses with intent to deliver or delivers an item if (1) he intends the item to be used for a drug-related purpose and (2) he knows or reasonably should know that the purchaser will ultimately use the item for a drug-related purpose. See Delaware Accessories Trade Ass'n v. Gebelein, supra, 497 F. Supp. at 294. Thus, the seller's intent that an item be used for a drug-related purpose defines drug paraphernalia while his actual or constructive knowledge that the sale or potential sale will facilitate illegal drug use defines the offense. Under this standard of liability, a seller who intended an item to have a drug-related purpose would not violate the Model Act if he sold it to an individual who he knew would not use it for a drug-related purpose.
Unlike the Model Act, section 851's standard of liability refers to the seller's intended purpose in selling the item rather than to the ultimate use to which the purchaser will put the item.
Therefore, a violation occurs when: (1) the seller possesses paraphernalia with intent to sell it under circumstances evincing his knowledge that he possesses the paraphernalia for a drug-related purpose; (2) the seller offers to sell paraphernalia under circumstances evincing his knowledge that he is selling the paraphernalia for a drug-related purpose; or (3) a purchaser purchases paraphernalia under circumstances evincing his knowledge that the paraphernalia is purchased for a drug-related purpose.
Thus, although section 850(2) defines paraphernalia in terms of the alleged violator's actual subjective intent that the item be used for a drug-related purpose, the violation itself may occur if, under the circumstances, it objectively appears that the alleged violator knows of his own drug-related purpose for a particular item.
Under this standard, the numerous state and local officials charged with enforcing the Statute
are told that a violation occurs when the "circumstances" indicate that the seller reasonably should know the drug-related purpose of an item rather than when the seller actually intends the item to be used for a drug-related purpose or knows of its ultimate drug-related use. The problems in enforcing such a standard are amply demonstrated by the testimony of David A. Solomon, one of the state officials responsible for enforcing Article 39. See R. at 10. Solomon, an attorney, reviewed defendants' pre-trial memorandum and several recent court decisions dealing with drug paraphernalia legislation prior to testifying. Although he stated that the definition of drug-related paraphernalia includes the seller's intent to sell an item for a drug-related purpose, when shown a particular exhibit and asked if it was drug paraphernalia, Solomon replied that he would have to consult an expert. Solomon later explained that although an expert cannot definitively state that a particular item is or is not drug paraphernalia since that finding depends on the seller's intent, an expert could testify that an item is commonly used for a drug-related purpose and such evidence would be very pertinent in adducing the seller's intent. See R. at 73. He further testified that although magazines and books sold in a store may be probative evidence of the seller's intent, such items alone cannot be considered drug-related paraphernalia. See R. at 61-63.
Solomon's testimony demonstrates that the Statute lacks any guidelines upon which enforcement officers may rely in determining what circumstances sufficiently evince the seller's knowledge that his possession or sale of an item is for a drug-related purpose.
At one point in his testimony, Solomon stated that if a person sold rolling papers without tobacco, that circumstance alone would indicate that the rolling papers are sold for a drug-related purpose. See R. at 27. Nevertheless, he subsequently testified that if a seller sold rolling papers, clips and pipes, or some combination of three or four or five such dual-use items, he would be in danger of violating the Statute. See R. at 33-34, 50. As the Statute is presently written, Solomon was obviously uncertain as to where the line of enforcement would be drawn. Thus, unlike the Model Act, the Statute contains no enforcement guidelines to aid enforcement officials in assessing the seller's actual intent, much less the circumstances that evince his knowledge of the drug-related purpose of the sale.
The Court has no doubts that in enacting Article 39 the legislature sought to achieve the legitimate goal of discouraging drug use through constitutional means. No court, however, state or federal, can disregard the clear meaning of statutory language. While the definition of drug paraphernalia focuses on the intent of the individual charged, thereby giving him notice of the prohibited conduct, a violation of Article 39 depends upon undefined circumstances that leave enforcement officials and courts free to find violations on an ad hoc basis. Since drug paraphernalia legislation of necessity must seek to regulate the sale of items that have both legitimate and drug-related uses, such legislation must specify the limited circumstances in which the sale of such items is unlawful. The Court reluctantly concludes that Article 39 has not done so. Since plaintiffs have demonstrated that they are clearly threatened with prosecution under Article 39 that would deprive them of substantial portions of their businesses, the Court finds that they have sufficiently established irreparable injury and are thus entitled to both declaratory and injunctive relief preventing the enforcement of Article 39. See Record Revolution, supra, 638 F.2d at 937-38.
Plaintiffs also contend that the forfeiture provisions of section 852(2) violate the fourth and fourteenth amendments by authorizing the warrantless seizure and automatic forfeiture of drug-related paraphernalia without notice or a hearing. Section 852(2) provides in pertinent part:
The possession with intent to sell or offering for sale of drug-related paraphernalia as defined herein is hereby declared to be a nuisance, and where any such drug-related paraphernalia shall be taken from the possession of any person, the same shall be surrendered and forfeited to the sheriff of the county wherein the same shall be taken ....
N.Y.Gen.Bus.Law § 852(2) (McKinney Supp. 1980-1981).
Defendants contend that the forfeiture provisions do not threaten unconstitutionally to deprive plaintiffs of their property rights in their inventories for two reasons. First, defendants note that the Statute does not authorize anyone to seize the paraphernalia. They claim that the legislature is in the process of reconsidering this "legislative oversight," and contend that, in the meantime, the Court need not be concerned with the forfeiture provision since it cannot be utilized without a prior seizure.
Second, assuming the power to seize paraphernalia is found by implication, defendants contend that a judicial or administrative hearing must precede seizure and forfeiture under this section.
In this regard, defendants rely upon Solomon's testimony that although section 852(2)"s forfeiture provisions are "hanging there fairly loosely," see R. at 66, he would read that section in conjunction with section 852(1) or section 853 as requiring pre-seizure litigation of the forfeiture issue either at an administrative hearing held to consider the revocation of the seller's business license or at a judicial hearing when injunctive relief or fines are sought. Id. It is his understanding of the Statute's intended enforcement mechanisms that (1) the local or municipal authorities who issue business licenses are authorized by section 852(1) to institute administrative proceedings to revoke that license upon a finding that the seller has sold or possessed with intent to sell merchandise in violation of section 851; (2) section 852(2) authorizes those same local or municipal authorities to seize and forfeit paraphernalia, presumably after their administrative proceedings have established that a public nuisance exists, and (3) the Attorney General, state or local health officers, or municipal attorneys or chief executives may seek injunctive relief and/or fines of $ 1,000 to $ 10,000 per violation in judicial proceedings. In addition, Solomon contends that New York courts may interpret the Statute to permit the Attorney General, state or local health officers, or municipal attorneys or chief executives to seek forfeiture as a remedy for contempt of an injunction order issued in judicial proceedings. R. at 68-69, 76.
Although the resolution of the forfeiture issue is not necessary in view of the Court's conclusion that section 851's standard of liability is impermissibly vague, the Court notes that there are several major problems with the forfeiture provisions as they are now written.
First, as defendants correctly point out, the Statute does not specifically authorize any of the enforcement officials mentioned in section 852(1) or section 853 to seize the paraphernalia. Although the Statute may be interpreted implicitly to authorize some or all of those officials or the police to seize paraphernalia, there is no indication as to the procedures that would be followed in making such a seizure. Even though Article 39, unlike many other drug paraphernalia statutes,
does not impose criminal penalties, there is no doubt that searches and seizures during the course of administrative or civil proceedings must comply with the requirements of the fourth amendment. See Marshall v. Barlow's Inc., 436 U.S. 307, 325, 98 S. Ct. 1816, 1827, 56 L. Ed. 2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 534, 87 S. Ct. 1727, 1733, 18 L. Ed. 2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 545, 87 S. Ct. 1737, 1740, 18 L. Ed. 2d 943 (1967); United States v. Gordon, 493 F. Supp. 808, 813-14 (N.D.N.Y.1980); Drug Purchase, Inc. v. Dubroff, 485 F. Supp. 887, 891 (S.D.N.Y.1980); Reyes v. Edmunds, 472 F. Supp. 1218, 1222-23 (D.Minn.1979); Bormann v. Tomlin, 461 F. Supp. 193, 196-98 (S.D.Ill.1978), aff'd mem., 622 F.2d 592 (7th Cir. 1980); United States v. Articles of Hazardous Substance, 444 F. Supp. 1260, 1264-66 (M.D.N.C.), modified, 588 F.2d 39 (4th Cir. 1978); dOilan v. Yee Loy Loong, 69 Misc.2d 108, 329 N.Y.S.2d 531 (N.Y.Civ.Ct.1972); Finkenberg Furniture Corp. v. Vasquez, 67 Misc.2d 154, 324 N.Y.S.2d 840 (N.Y.Civ.Ct.1971). See also Case Comment, Warrantless Administrative Searches Permissible Under the Federal Mine Safety and Health Act of 1977: Marshall v. Stoudt's Ferry Preparation Co., 64 Minn.L.Rev. 1076 (1980). Therefore, if the legislature intends to authorize seizure prior to notice and an adversarial hearing, the seizure, at the very minimum, should be made expressly conditional upon a finding of some form of probable cause that the seller has violated section 851 by selling or offering to sell the particular items seized. The legislature is clearly capable of drafting legislation that specifically designates the seizing officials and describes the procedures they should follow to ensure reasonable searches and seizures. See, e.g., N.Y.Educ.Law §§ 6813(1), 6823 (McKinney 1972); N.Y.Pub. Health Law § 3388 (McKinney 1977 & Supp. 1980-1981).
Second, the requirements of procedural due process apply whenever the state deprives a person of "liberty" or "property" interests within the meaning of the fourteenth amendment. There is no question that sellers of alleged drug paraphernalia have a vital property interest in their inventories. It is also clear, however, that the state, in the exercise of its police power, may seize and forfeit articles that are intended to facilitate illegal drug use. See, e.g., New England Accessories Trade Ass'n v. Browne, supra, 502 F. Supp. at 1256. The question therefore becomes what form of process is due before a seller permanently forfeits drug paraphernalia.
The language of section 852(2) does not support defendants' argument that the legislature intended pre-seizure notice and an adversarial hearing, even when read in conjunction with sections 852(1) and 853. Moreover, the Court seriously doubts whether due process requires pre-seizure notice and a hearing. Although the deprivation of private property without a prior hearing is suspect, it is equally true that "extraordinary" circumstances may justify a brief postponement of notice and the opportunity for a hearing. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 677-80, 94 S. Ct. 2080, 2088-90, 40 L. Ed. 2d 452 (1974); Mitchell v. W. T. Grant Co., 416 U.S. 600, 611-20, 94 S. Ct. 1895, 1902-06, 40 L. Ed. 2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 91, 92 S. Ct. 1983, 1999, 32 L. Ed. 2d 556 (1972); Eagle v. Koch, 471 F. Supp. 175, 178-79 (S.D.N.Y.1979). Indeed, even when sensitive first amendment interests are involved, due process does not require an adversarial proceeding prior to the initial seizure as long as a prompt judicial determination is available. See United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971). See also Heller v. New York, 413 U.S. 483, 93 S. Ct. 2789, 37 L. Ed. 2d 745 (1973). But when, as here, the Statute neither provides for pre- or post-seizure notice and an adversarial hearing, it is clear that the requirements of due process have not been met.
In accordance with the foregoing, after consolidating a hearing on plaintiffs' motion for a preliminary injunction with a trial on the merits of the complaint, the Court finds for plaintiffs. Article 39 of the New York General Business Law is hereby declared to be impermissibly vague and its enforcement is permanently enjoined.
These are the Court's findings of fact and conclusions of law. Fed.R.Civ.P. 52(a).
Submit Judgment on Notice.
The Model Act provides:
SECTION (insert designation of definitional section) of the Controlled Substances Act of this State is amended by adding the following after paragraph (insert designation of last definition in section):
"( ) The term "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 Act (meaning the Controlled Substances Act of this State). 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 injecting controlled substances into the human body;
(12) 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:
(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 a marihuana 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;
(m) Ice pipes or chillers;
"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 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 Act; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this Act shall 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 or depict its use;
(9) National and local advertising concerning its use;
(10) The manner in which the object is displayed for sale;
(11) 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;
(12) Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise;
(13) The existence and scope of legitimate uses for the object in the community;
(14) Expert testimony concerning its use."
(Offenses and Penalties)
SECTION (designation of offenses and penalties section) of the Controlled Substances Act of this State is amended by adding the following after (designation of last substantive offense):
"SECTION (A) (Possession of Drug Paraphernalia)
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 Act. Any person who violates this section is guilty of a crime and upon conviction may be imprisoned for not more than ( ), fined not more than ( ), or both."
"SECTION (B) (Manufacture or Delivery of Drug Paraphernalia)
It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, 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 Act. Any person who violates this section is guilty of a crime and upon conviction may be imprisoned for not more than ( ), fined not more than ( ), or both."
"SECTION (C) (Delivery of Drug Paraphernalia to a Minor)
Any person 18 years of age or over who violates Section (B) by delivering drug paraphernalia to a person under 18 years of age who is at least 3 years his junior is guilty of a special offense and upon conviction may be imprisoned for not more than ( ), fined not more than ( ), or both."
"SECTION (D) (Advertisement of Drug Paraphernalia)
It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this section is guilty of a crime and upon conviction may be imprisoned for not more than ( ), fined not more than ( ), or both."
SECTION (insert designation of civil forfeiture section) of the Controlled Substances Act of this State is amended to provide for the civil seizure and forfeiture of drug paraphernalia by adding the following after paragraph (insert designation of last category of forfeitable property):
"( ) all drug paraphernalia as defined by Section ( ) of this Act."
If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.