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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, *fn1" 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 *fn2" 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. *fn3"

 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. *fn4" The Model Act is divided into four articles. *fn5" 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 Statute

 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. *fn6" 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.

 Plaintiffs' Boutiques

 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." *fn7" 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, *fn8" 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, *fn9" 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. *fn10"


 Preliminary Issues

 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. *fn11" 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. *fn12" 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. *fn13"

 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. *fn14" 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. *fn15" 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 ...

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