Jurisdictional Statement — Hoffman Estates v. Flipside, Hoffman Estates, Inc.

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O-1681

Office-Supreme Court, U.S.

=——FSE D

APR 3 1961

ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the Gnited States

OcTOBER TERM, 1980

VILLAGE OF HOFFMAN ESTATES,

ILLINOIS, ET. AL.

Appellants,

THE FLIPSIDE, HOFFMAN ESTATES,

INC., AN ILLINOIS CORPORATION

Appellees.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JURISDICTIONAL STATEMENT

RICHARD N. WILLIAMS

Village Attorney

1200 North Gannon Drive

Hoffman Estates, IL 60196

(312) 882-9100

Pandick Press Midwest, Inc., Chicago © 454-7600

QUESTION PRESENTED BY THE APPEAL

1. The Village’s Drug Paraphernalia Licensing Ordinance

defines the licensed goods as “any items, effect, paraphernalia,

accessory or thing which is designed or marketed for use with

illegal cannabis or drug”. The question presented is whether

such phrase is so vague or overbroad as to render the definition

unconstitutional.

PARTIES TO THE PROCEEDING BELOW:

Appellant is the Village of Hoffman Estates, Illinois, a

Municipal Corporation; Virginia M. Hayter, Individually and in

her official capacity as President of the Village of Hoffman

Estates, Illinois; Richard Williams, Individually and in his

official capacity as Attorney for the Village of Hoffman Estates,

Illinois; John O’Connell, Individually and in his official capacity

as Chief of Police for the Village of Hoffman Estates, Illinois;

and the following, Individually and in their official capacity as

Trustees for the Village of Hoffman Estates, Illinois: William

W. Cowin, William A. Palmer, Bruce C. Lind, Ralph H. Lyerla,

Thomas W. Taylor and Lee Dodgion.

Appellee is The Flipside, Hoffman Estates, Inc., an Illinois

Corporation.

TABLE OF CONTENTS

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Appendix:

Opinion of the Seventh Circuit Court of Appeals.....

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iii

TABLE OF AUTHORITIES

Cases

PAGE

Colten v. Kentucky, 92 S. Ct. 1953, 407 U.S. 104

CN GEEE Fiiicncsccumitesinicnaliasisnlhanmbianiatericntesennincinnnieneni 5,6

Grayned v. City of Rockford, 92 S. Ct. 2294, 408

a WFD sceabscnidadcrnsssttscesinicecbinnsiginvneerenn 5,6

Leary v. United States, 89 S. Ct. 1532, 395 U.S. 6

McGowan v. Maryland, 81 S. Ct. 1101, 366 U. S.

hg) Se SiR aT Serr S aciemnatabdinns 3,7

Rose v. Locke, 96 S. Ct. 243, 423 U.S. 48 (1975)... 6

IN THE

Supreme Court of the United States

OcToBErR TERM, 1980

VILLAGE OF HOFFMAN ESTATES,

ILLINOIS, ET. AL.

Appellants,

THE FLIPSIDE, HOFFMAN ESTATES,

INC., AN ILLINOIS CORPORATION

Appellees.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JURISDICTIONAL STATEMENT

This appeal is prosecuted by the Village of Hoffman

Estates, and its respective officials, from a final judgment of the

United States Court of Appeals for the Seventh Circuit, re-

versing a judgment entered in its favor by the United States

District Court for the Northern District of Illinois.

THE OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Seventh Circuit has not been officially reported but appears in

the Appendix, p. la.

The opinion of the United States District Court, Northern

District of Illinois, is officially reported at 485 F. Supp. 400

(1980), and further appears in the Appendix, page 28a.

GROUNDS ON WHICH JURISDICTION IS INVOKED

On February 20, 1978, the Board of Trustees of the Village

of Hoffman Estates, Illinois, enacted its Ordinance No. 969-

1978:

The initial action was filed in the District Court for the

Northern District of Illinois by The Flipside, Hoffman Estates,

Inc. against the Village of Hoffman Estates and its officials,

pursuant to 28 USC, 1331, 2201, 2202 and 28 USC 1343 and 42

USC 1983; it challenged the constitutionality of the ordinance

and sought damages and declaratory and injunctive relief

against enforcement of the Village of Hoffman Estates Ordi-

nance. Following hearings on the requests for preliminary and

permanent injunctions, the District Court concluded that the

Village of Hoffman Estates Ordinance 969-1978 was con-

stitutional and it entered final judgment for the defendant

Village and officials.

An appeal was taken by Plaintiff to the United States Court

of Appeals for the Seventh Circuit. The Appeals Court reversed

the District Court in a judgment entered January 12, 1981. A

petition for rehearing was filed in the Court of Appeals for the

Seventh Circuit. On February 5, 1981, the Court of Appeals

denied the petition for rehearing (Appendix p. 46a). A notice

of appeal to this Court was filed on March 19, 1981, in the

Court of Appeals for the Seventh Circuit (Appendix p. 47a).

The jurisdiction of this Court is invoked pursuant to 28

USC § 1254(2).

CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED

Fourteenth Amendment, United States Constitution:

Section 1. * * * No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person of life,

liberty, or property, without due process of law ....

Village of Hoffman Estates Ordinance 969-1978 is set forth

in the Appendix, at p. 48a.

STATEMENT OF THE CASE

In February of 1978, the Village of Hoffman Estates

passed the subject ordinance in an effort to cope with the drug

paraphernalia problem by licensing the sale to adults and

banning the sale to minors. Eighteen months later, the Drug

Enforcement Administration of the United States Department

of Justice published a “Model Act” to deal with the problem

which has been passed by many states and local jurisdictions

and is the subject of much litigation throughout the country.

The “Model Act” creates criminal penalties for possession of

drug paraphernalia. The ordinance herein only licenses the

business selling such items and does not criminalize the use or

possession of such items.

The original complaint of Appellee Flipside requested

damages and injunctive relief because, among other claims, it

was alleged the ordinance was “void for vagueness”. The

United States District Court upheld the ordinance against all

constitutional attacks including “void for vagueness”.

The Court found that the ordinance was narrowly drawn

and recognized that “paraphernalia” has become a standard

vocabulary word in the vernacular of the community, (38a) F.

Supp. 407. It found that the terms were sufficiently clear to give

a reasonably clear idea of what the law requires, (39a).

The Seventh Circuit Court of Appeals limited its opinion to

only the “void for vagueness” issue finding the ordinance

violative of the Fourteenth Amendment since a retailer “is

unable to determine what the law expects of him” (26a). The

Court recognized that “in the field of regulatory statutes

governing business activities ... greater ieeway is allowed” but

stated that said standard “does not fit in this case” (20a).

The Court also found no rational connection between

testimony that the items had been found to be used with illegal

drugs (fact proved ) and that therefore, said items were market-

ed for use with illegal drugs (fact presumed) (18a).

THE QUESTION IS SUBSTANTIAL

As the United States Court of Appeals for the Seventh

Circuit stated in this case: “There has been an explosion of

litigation concerning so-called drug paraphernalia laws” (4a).

Such litigation is the result of a three billion dollar industry

(according to DHEW Pub. No. 80-963) that has heretofore

conducted its business without local or state regulation despite

the fact the product line glamourizes the use of controlled

substances.

Two types of regulation have emerged; licensing as in the

case herein, and criminal prohibition based upon the Model

Drug Paraphernalia Act drafted by the Drug Enforcement

Administration. Said Model Act has been adopted by twelve

states and by numerous municipalities throughout the nation.

One such case is presently on appeal to this court, City of Parma

et. al. v. Record Revolution, No. 6, Inc., as Case Number 80-

1507.

Cases of the past two years are cited in the Appendix at p.

51a and are cited and narrated, not for the points of law, but to

give foundation to the term “explosion” and to demonstrate the

need of this court to take jurisdiction of this case to clarify the

numerous conflicts so the nation’s municipalities and states may

more effectively deal with the problem of drug abuse.

The magnitude of the problem and wide splits of authority

in the Federal Courts demonstrate that this case is of such

importance as to warrant plenary consideration by this court.

The issue in this case is substantial in its own right.

Three United States Supreme Court Opinions were consid-

ered in the Uniied States District Court and the United States

Court of Appeals review of the matter, Grayned v. City of

Rockford, 92 S. Ct. 2294, 408 U.S. 104 (1972); Leary v. United

States, 89 S. Ct. 1532, 395 U. S. 6 (1969); and McGowan v.

Maryland, 81 S. Ct. 1101, 366 U. S. 420 (1960). The United

States Court of Appeals accepted the applicability of Grayned

but rejected Leary and McGowan.

The purpose and theory of the ordinance was based upon

three known and trustworthy legal facts: 1) the Leary test that

“there must be a rational connection between the facts proved

and the fact presumed”; 2) Ch. 23, Section 2357 of the Illinois

Revised Code which provides that tobacco cannot be sold to

persons under the age of 18; and 3) Ch. 56%, Section 1312 of

the Illinois Revised Code which provides that purchasers sign

for Class V controlled substances.

The approach was regulatory in the same manner the

Village regulates milk (Hoffman Estates Municipal Code Sec-

tion 8-5-8), flowers (Hoffman Estates Municipal Code Section

8-7-7) and 68 other activities requiring licensing.

In Grayned, it was said by Justice Marshall that given the

specific context of the ordinance, a school situation:

“The ordinance gives ‘fair notice to those to whom it is

directed’. Although the Rockford ordinance may not be as

precise as the statute upheld in Cameron .. . the ordinance

here clearly ‘delineates its reach in words of common

understanding’”. 408 U. S. at 112, 113.

In the same month as Grayned, Justice White said in Colten

v. Kentucky, 92 S. Ct. 1953, 407 U. S. 104 (1972):

“The root of the vagueness doctrine is a rough idea of

fairness. It is not a princip!e designed to convert into a

constitutional delemma the practical difficulties in drawing

criminal statutes both general enough to take into account

a variety of human conduct and sufficiently specific to

provide fair warning that certain kinds of conduct are

prohibited. We agree with the Kentucky court when it

said: ‘We believe that citizens who desire to obey the statute

will have no difficulty in understanding it...” ” (Emphasis

added), 407 U. S. at 110.

In a 1975 decision, Rose v. Locke, 96 S. Ct. 243, 423 U.. 48

(1975), the Per Curiam decision stated when a statute for

“crimes against nature” was claimed to be vague:

“All the Due Process Clause requires is that the law give

sufficient warning that men may conduct themselves so as

to avoid that which is forbidden.

Viewed against this standard, the phrase ‘crimes against

nature’ is no more vague than many other terms used to

describe criminal offenses at common law and now codi-

fied in state and federal penal codes”, 423 U. S. at 50.

They further said:

“But this prohibition against excessive vagueness does not

invalidate every statute which a reviewing court believes

could have been drafted with greater precision. Many

statutes will have some inherent vagueness, for [i]n most

English words and phrases there iurk uncertainties”, 423

U. S. at 50.

It is again noted that the ordinance in question is a

licensing ordinance for regulation purposes only and that, like

Grayned, it gives fair notice to whom it is directed, the retailer.

It is not an ordinance prohibiting possession of items by citizens

of the community who may or may not be appraised or aware

of said ordinance, such as an ordinance based upon the “Model

Act”, but a regulatory ordinance for specific retailers who have

the opportunity of clarification prior to license application.

The McGowan case said:

“We believe that business people of ordinary intelligence in

the position of appellant’s employer would be able to know

what exceptions are encompassed by the Statute either as a

matter of ordinary commercial knowledge or by simply

making a reasonable investigation at a nearby bathing

beach or amusement park within the county. . .” (empha-

sis added ), McGowan v. Maryland, 366 U. S. at 428.

While it can be argued that persons in the industry which is

to be regulated can know or should know what pipes are

designed for marijuana and what pipes are designed for regular

tobacco, either through their own expertise or by making

reasonable investigations, the Village nonetheless would rely on

Leary and would have the burden of proof to prove the

marketing intenf in any licensing violation hearing.

By failing to follow the dictates of this court, enforcement

powers of states and municipalities by means of licensing or any

other means against purveyors of drug paraphernalia are being

held in abeyance. Because of fears of “unconstitutional pol-

icies” and damage suits under 42 USC, Section 1983, there is a

chilling effect on government to attempt any regulation in this

area and, therefore, this substantial issue warrants the court’s

full review.

CONCLUSION

The question presented by this appeal is substantial and of

broad public importance. Probable jurisdiction should there-

fore be noted.

Respectfully submitted,

RICHARD N. WILLIAMS

Village Attorney

1200 North Gannon Drive

Hoffman Estates, IL 60196

(312) 882-9100

APPENDIX

in the

United States Court of Appeals

Bor the Seventh Cirrntt

No. 80-1462

THE FLIPSIDE, HOFFMAN ESTATES, INC.,

an Illinois Corporation,

Plaintiff-Appellant,

VILLAGE OF HOFFMAN ESTATES, et al.,

Defendants-A ppellees.

Appeal froin the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78 C 2114—George N. Leighton, Judge.

ARGUED OCTOBER 22, 1980—DECIDED JANUARY 12, 1981

Before SPRECHER and Woop, Circuit Judges, and

TEMPLAR, Senior District Judge.*

SPRECHER, Circuit Judge. This appeal involves the

validity of an ordinance of the Village of Hoffman

Estates, Illinois (“village”) pu porting, to to oe

merchants who sell items designed or marketed for use

with illegal cannabis or drugs. Plaintiff, a Hoffman

fe ge record store, appeals t e district court’s denial

yc poe motion for a permanent injunction and

aratory relief.

* Senior District Judge George Templar from the District of

Kansas is sitting by designation.

No. 80-1462

On February 20, 1978, the Village of Hoffman Estates

Board of Trustees enacted Ordinance No. 969-1978, en-

titled “an Ordinance Amending the Municipal Code of

the Village of Hoffman Estates by Providini; for Regula-

tion of Items Designed or Marketed for Use with Illegal

Cannabis or Drugs,” to be effective May 1, 1978. The or-

dinance requires that any person within the village who

sells any “item, effect, paraphernalia, accessory or thing

which is designed or marketed for use with illegal can-

nabis or drugs” must obtain a license for $150.00, file af-

fidavits averring that the applicant and each employee

authorized to sell such items has never been convicted of

a drug-related offense, and keep records, to be open for

police inspection, of every covered item sold, along with

the name and address of the purchaser. The ordinance

prohibits sale to minors of any covered items. Any viola-

tion of the ordinance is punishable by a fine of not less

than $10.00 nor more than $500.00, and each mm that a

violation continues is deemed a separate offense. In addi-

tion, the village attorney prepared “license guidelines”

which define certain terms relevant to the ordinance.

Plaintiff Flipside Records (“Flipside”) for more than

three years prior to May 1, 1978, sold a wide variety of

merchandise including smoking accessories, jewelry,

novelty devices, and literature. Among these items were

clamps, “alligator clips,” mirrors, pipes of various types

and sizes, and a large number of cigarette rolling-

papers in a variety of colors. Soon after enactment of the

ordinance, plaintiff was notified that Flipside appeared

to be marketing items that would be covered by the or-

dinance. Alleging that it was unable to determine which

items would be covered by the ordinance, and wishing to

avoid a violation and arrest which might preclude Flip-

side’s access to a federal forum for adjudication of its

constitutional claims, Flipside removed from its shelves

a wide variety of merchandise.! On May 30, 1978, Flip-

' Larry Rosenbaum, one of Flipside’s officers, consulted

Richard Williams, the village attorney, about which items at

(Footnote continued on following page)

No. 80-1462

side initiated proceedings in the United States District

Court for the Northern District of Illinois, seeking a

declaratory judgment that the ordinance violated the

First, Fourth, Fifth, Eighth and Fourteenth

Amendments, Article I, Section 8, Clause 3 and Article

I, Section 10 of the United States Constitution. Plaintiff

also sought temporary, preliminary and permanent in-

junctive relief to restrain enforcement of Ordinance No.

969-1978, and damages pursuant to 42 U.S.C. § 1983 for

the actions of the village and its agents,? which allegedly

caused Flipside to be deprived of rights secured to it by

the Uni States Constitution.

On May 30, 1978, Judge Leighton denied plaintiff's

motion for a temporary restraining order. On Septem-

ber 1, 1978, a hearing on the motion for a preliminary

injunction was held, «nd Judge Leighton denied the

motion. The trial for a permanent injunction and declar-

atory judgement was held on March 23, 1979. On Febru-

ary 11, 1980, the trial court entered a Memorandum

Order awarding judgment to the defendants. Flipside,

Hoffman Estates, Inc. v. og of Hoffman Estates, 485

F.Supp. 400 (N.D.IIl, 1980). Plaintiff appeals that order

on several constitutional grounds, alleging that Ordi-

nance No. 969-1978 is impermissibly vague in violation

of the due process clause of the Fourteenth Amendment

and violates the First Amendment and the Equal Pro-

tection Clause of the Fourteenth Amendment.

1 continued

Flipside would be covered by the ordinance. Williams advised

nbaum to use the police register for all items, for his

protection. (Transcript of March 23, 1979 at 87-88)

? Defendants are the village, an Illinois home rule munici-

pality with a population of approximately 37,000; and, in their

individual as well as official capacities, Virginia W. Hayter,

village president; Richard Williams, village attorney; John

O'Connell, village chief of police; William W. Cowin, William

Palmer, Bruce C. Lind, san allay Lyerla, Thomas W.

Taylor, Lee Dodgion, village trustees.

No. 80-1462

Since this case began in the district court, and indeed,

since the district court’s opinion was Published in

February, 1980, there has been an explosion of litigation

concerning so-called drug paraphernalia laws, Most of

sale, manufacture, or possession of dru paraphernalia a

crime, usually a misdemeanor 3 There ave been a varie-

¥ of results in the district courts, even within the same

istrict.’ As of this jeting none of these paraphernalia

law cases has been decid

* In Housworth v, Glisson, 485 F.Supp. 29 (N.D.Ga. 1978),

affd, 614 F.2d 1295 (5th Cir, 1980), as here, there was not a

criminal drug para hernalia law at issue, but rather a

licensing ordinance. {n Housworth plaintiffs’ business licenses

were revoked for selling crag paraphernalia. The court found

the licensing ordinance voi Or vagueness because it gave

paintitts no adequate warning of the activity which would

vocal.on,

‘ Identical! worded statutes were treated different] ithin

district in Tobacco Road v. City o Novi, 490 F Supp

on vagueness unds). In Magnani v, Ci of Ames, 493

F-Supp., 1003 (S.D.lowa 1980), an identical o x also was

struck down for vagueness.

* See note 32.

* Also, with respect to rinted matter rather than a-

phernalia, the Fi Circuit found unconstitutional a statute

prohibitin sale of drug-related rinted material to minors.

Ol . v. Bushee 6B Fad Tater t0 3 1980)

rming, 456 F.Su Pp. 1085 (N.D.Ga. 1978). While many of

above mentioned challenges to paraphernalia laws allege

first amendment Violations, none of these statutes or

ordinances ban sale of literature outright,

No. 80-1462

The eee to drug paraphernalia statutes often

involve a number of constitutional claims, as here where

the village ordinance is attacked on due — equal

protection, and first amendment grounds. The successful

attacks usually have won on the issue of due process:

drug paraphernalia statutes have been found imper-

missibly vague in violation of the due process clause of

the Fourteenth Amendment.®

In August, 1979, the Drug Enforcement Administra-

tion of the United States Department of Justice publish-

ed the “Model Drug Paraphernalia Act” (“Model Act”).

According to the comments published with the Model

Act, it was drafted to enable states and local jurisdic-

tions to cope with the paraphernalia problem and is in-

tended to be enacted as an amendment to the Uniform

Controlled Substance Act, which has been adopted by II-

linois and many other states.’ District courts have

‘recently upheld laws based on the Model Act, although a

6 In general, those cases striking down paraphernalia laws

(1) have found the definition of “dru paraphernalia” to be too

vague to give adequate notice of what is prohibited and (2)

have found inadequate the degree of intent or knowledge that

an item is drug-related necessary to hold a defendant criminal-

liable under the statute or ordinance. See Geiger v. City of

agan, 618 F.2d 26 (pth Cir. 1980); Record Head Corp. ».

hen, No. 80-C-639 (E.D.Wis. Rept. 30, 1980); Henra Corp.

v. MacFarlane, No. 80-F-824 (D.Colo. Sept. 5, 1980); Magnani

v, City of Ames, 493 P Supp: 1003 (S.D.Iowa July 21, 1980);

S i (S.D.W.Va. May 13, 1980); Music

Stop, Ine. v. City erndale, 488 F.Supp. 390 (E.D.Mich.

(D.N.J. March 5, 1980); Indiana Chapter, N.O.R.M.L. v.

Sendak, No, TH 75-142-C (S.D.Ind. Feb. 4, 1980); Record

Museum v. Lawrence, 481 F.Supp. 768 (D.N.J. Dec. 11, 1979).

See also, Bambu Sales, Inc. v. Gibson, 474 F SUR. 1297

(D.N.J. Aug. 6, 1979) pereaenee not vague, but struck down

on overbreadth grounds).

7 The Uniform Controlled Substance Act was enacted by

Illinois in 1971. Ill.Stat.Ann. ch. “56%, § 1100 et seq. The

Justice Department's Model Act is the model for Senate Bill

1505, introduced in the Illinois legislature but not as yet

finally acted upon by both houses.

No. 80-1462

few have found it necessary to sever some parts." These

courts agree that criminal statutes, prohibiting the

manufacture, sale, or possession of items determined to

be drug paraphernalia, must be carefully drafted in

order to focus on the drug-related intent of the person

charged.°

Ill

The ordinance at issue here differs from the type of

statutes at issue in the above-cited cases. Hoffman Es-

tates Ordinance No. 969-1978 does not attempt to

criminalize the sale or ssession of drug-related

devices. In fact, the preamble to the ordinance states, “it

is recognized that such items are legal! retail items and

that their sale cannot be banned . ” Yet one of the

purposes of the ordinance obviously must be to do in-

* Mid A pantie Accessories Trade Ass'n v. Maryland, No. H-

80-1343 (D.Md. pte 11, 1980); Tobacco Accessories v. Treen

HO. os 72 (E.D.La, Oct, 28 a eee: Florida Businessmen for

Enterprise v. Florida, TC 54 fy ry Sept. 30,

1980) (paling those Kiny of law based odel Act,

but | striking sectipne, t a oir ¢ from the Mode Act by

punjen ng possession, rather than “possession with inten

poragnernel’ The Casbah, Inc. v. Thone, No. 80-0-271

(D.N eb 80} (ordinance constitutional after

excising *Fensonably Hed d know” constructive knowledge/

intent section and “legitimate su ony eveqentiat factor

armas whether no onal is ~y wi ermal a); sures

usinessmen Ar for Free E No. 80-

6157-Civ-NCR (S.D.Fla. “AME 28 35 1980) Boren Accessories

Trade Ass'n v. Godetesn, N * 80-285 ( Del. ane, Je 15, 1980);

World * rts f Stag Township, ;

D.N.J. 1980); Levas Va of An Sock, No. -1574

SD. i, Ap ril 22, 1980) (definition of paraphernalia based on

* See comments to Model Act and cases cited in note 8,

supra. Most of these cases explain that the laws upheld escape

vagueness because they require defendant's spec! ic intent oF

knowledge that the items in question are used with ille

drugs. A statute is not roy oy ee vague if item =

a syecitig haga to virlate © — a. araee Meter TA tor Lines, Inc. v.

United Sta 2 (1952); Screws

342 U.S v. United

States, 325 ‘i's, 91, 101 * ipab)

No. 80-1462

directly what it claims it cannot do directly—to effec-

tively ban the sale of a broad class of items, some of

which may be used with illegal drugs. After all, few

retailers are willing to brand themselves as sellers of

drug paraphernalia, and few customers will buy items

with the condition of signing their names and addresses

to a register available to the police. But the legal issue

here does not depend on the covert purpose of de facto

banning certain items. Even if the ordinance does dis-

courage the sale of some “innocent” items, the ordinance

would be constitutional so long as it carefully defined

the items sought to be regulated so that a person in

plaintiff's position could determine whether, and to

which items, the license requirement applied.'®

As stated in Geiger v. City of Eagan, 618 F.2d 26, 28

(5th Cir. 1980), a city “clearly has the power through a

properly drawn ordinance to discourage the availability

of drugs and the acceptance of drug use by prohibiting

the sale of drug-related devices.”'' Thus the village may,

with a properly drawn ordinance, regulate drug

paraphernalia. The type of regulation chosen here bears

a rational relation to the village’s interest in preventin

drug abuse. It prevents convicted drug dealers an

users from selling IF spi co bg and thereby gaining

contacts with a ready market, and it forbids the sale of

paraphernalia to minors. But sympathetic as we are

with the village's attempt to fight drug abuse through

this novel licensing scheme, the village must do so in a

constitutional manner.

10 See discussion of vagueness in Part IV of this opinion.

The court in Geiger went on to enter a preliminary

injunction restraining enforcement of an ordinance which pro-

hibited the “possession, sale, transfer or display for sale or

transfer” of “drug related devices.” While the grant of a

reliminary injunction does not decide the merits, the court

‘ocused on the veqepnens of the ordinance's definition of the

term “drug-related device” and flatly declared “[wJe consider

Loy arcinaines unconstitutionally vague on its face.” 618 F.2d

at 28.

No. 80-1462

The critical issue here is whether this ordinance is so

vague as to violate the due process clause of the Fifth

and Fourteenth Amendments to the United States Con-

stitution. In Grayned v. City of Rockford, 408 U.S. 104

(1972), the Supreme Court set out the policies behind the

due process doctrine of vagueness. In a passage cited in

virtually every opinion dealing with vagueness

challenges to statutes or ordinances, the Court stated: ~

It is a basic principle of due process that an enact-

ment is void for vagueness if its prohibitions are not

clearly defined. Vague laws often offend several im-

portant values. First, because we assume that a

man is free to steer between lawful and unlawful

conduct, we insist that laws “ge the person of ordi-

nary intelligence a reasonable opportunity to know

what is prohibited, so that he may act accordingly.

Vague laws ma es the innocent by not providing

fair warning. Bin . if arbitrary and discrimina-

tory enforcement is to be prevented, laws must pro-

vide explicit standards for those who apply them. A

vague law impermissibly delegates basic policy

matters to policemen, judges, and juries for resolu-

tion on an ad hoc and subjective basis, with the at-

tendant dangers of arbitrary and discriminatory

application.

Id. at 108-09 (footnotes omitted). See also Smith v.

Goguen, 415 U.S. 566, 572 (1974); Connally v. General

Construction Co., 269 U.S. 385, 391 (1926).

This ordinance is subject to attack for vagueness

despite the fact that it is an ordinance, not a statute, and

it purports to license,’ not prohibit, sale of “items

2 A more typical type of vagueness challenge to a licensing

statute involves an attack on the standards for denying or

revoking, rather than requiring, a license. See Housu v.

Glisson, 485 ting? 29, 36-39 (N.D.Ga. 1978), affd, 614

F.2d 1295 (5th Cir. 1980). Housworth, like this case, involved

attempted lation of retail stores which sold items which

could be used with illegal drugs. Plaintiffs’ business licenses

(Footnote continued on following page)

| No. 80-1462

designed or marketed for use with illegal cannabis or

drugs.” A law may run afoul of the vagueness doctrine

even though it does not impose criminal sanctions,

because the fundamental defect is not the penalty but

rather “the exaction of obedience to a rule or standard

. . » 80 vague and indefinite as really to be no rule or

standard at all.” A. B. Small Co. v. American Sugar

Refining Co., 267 U.S. 233, 239 (1925). The lack of a

criminal penalty in the ordinance does not excuse

vagueness where the effect is to ne a persons of con-

stitutional rights. Giaccio v. Pennsylvania, 382 U.S. 399,

402 (1966) (“this state Act whether labeled ‘penal’ or not

must meet the challenge that it is unconstitutionally

were) See also Bence v. Breier, 501 F.2d 1185, 1188

(7th Cir. 1974), cert. denied, 419 U.S. 1121 (1975); Soglin

v. Kauffman, 418 F.2d 163, 166-67 (7th Cir. 1969).

Furthermore, in determining whether a civil or

criminal enactment is sufficiently clear that persons

affected can determine what the law requires of them,

the same rules of construction apply whether it is a

statute or an ordinance. Martin v. King, 417 F.2d 458,

461 (10th Cir. 1969).

_In order to analyze plaintiff's facial attack on this or-

dinance, we set out the entire ordinance adopted by the

2 continued

were revoked based on a local ordinance which allowed the

county director of finance to revoke the license of any business

found to be a “hazard to the health, safety and welfare of the

citizens of the county,” 485 F.Supp. at 36. The court applied

the Grayned standards, found the ordinance unconstitutionally

vague, and preliminarily enjoined enforcement against

plaintiffs. See also Aladdin's Castle, Inc. v. City of Mesquite,

434 F.Supp. 473 (N.D.Tex. 1977) (invalidating ordinance

prohibiting issuance of license for coin-operated amusement

— i anyone having a “connection with criminal

elements”).

There are obvious differences between revoking a license on

he basis of inadequately defined conduct and requiring a

license in order to en in the conduct. But in both cases,

ecause of the retailer’s constitutionally protected interest in

his business, the ordinance must be drawn clearly enough to

warn a retailer of what the law requires.

10a

No. 80-1462

village, as well as the license guidelines which became

an integral part of the ordinance.

ORDINANCE No. 969-1978

AN ORDINANCE AMENDING THE MUNICIPAL CODE OF

THE VILLAGE OF HOFFMAN ESTATES BY PROVIDING

FOR REGULATION OF ITEMS DESIGNED OR

MARKETED For USE ree ILLEGAL CANNABIS OR

RUGS

WHEREAS, certain items designed or marketed for

use with illegal drugs are being retailed within the

cae of Hoffman Estates, Cook County, Illinois,

WHEREAS, it is recognized that such items are

legal retail items and that their sale cannot be

banned, and

WHEREAS, there is evidence that these items are

designed or marketed for use with illegal cannabis

or drugs and it is in the best interests of the health,

safety and welfare of the citizens of the Village of

Hoffman Estates to regulate within the Village the

sale of items designed or marketed for use with il-

legal cannabis or drugs.

Now THEREFORE, BE IT ORDAINED by the Presi-

dent and Board of Trustees of the Village of Hoff-

man Estates, Cook County, Illinois as follows:

Section 1: That the Hoffman Estates Municipal

Code be amended by adding thereto an additional

section, Section 8-7-16, which additional section

shall read as follows:

Sec. 8-7-16—ITEMS DESIGNED OR MARKETED

For USE WITH ILLEGAL CAN-

NABIS OR DRUGS

A. License Required:

It shall be unlawful for any person or per-

sons as principal, clerk, agent or servant to

sell any items, effect, paraphernalia,

No. 80-1462

lla

accessory or thing which is designed or

marketed for use with illegal cannabis or

drugs, as defined by Illinois Revised

Statutes, without ge oy Se a_ license

therefor. Such licenses shall be in addition

to any or all other licenses held by appli-

cant.

Application:

Application to sell any item, effect,

paraphernalia, accessory or thing which is

designed or marketed for use with illegal

eannabis or drugs shall, in addition to re-

cuirements of Article 8-1, be accompanied

by affidavits by applicant and each and

every employee authorized to sell such

items that such person has never been con-

victed of a drug-related offense.

Minors:

It shall be unlawful to sell or give items as

described in Section 8-7-16A in any form

to any male or female child under eighteen

years of age.

Records:

Every licensee must keep a record of every

item, effect, paraphernalia, accessory or

thing which is designed or marke for

use with illegal cannabis or drugs which is

sold and this record shall be open to the in-

pcan pan of any police officer at any time

uring the hours of business. Such record

shall contain the name and address of the

purchaser, the name and quantity of the

product, the date and time of the sale, and

the licensee or agent of the licensee's

signature, such records shall be retained

for not less than two (2) years.

Regulations:

The ap licant shall comply with all

applicable regulations of the Department

l2a

No. 80-1462

of Health Services and the Police Depart-

. ment.

Section 2: That the Hoffman Estates Municipal

ode be amended by adding to Sec. 8-2-1 Fees:

—— (Products) the additional language as

ollows:

Items designed or marketed for use with

illegal cannabis or drugs $150.00

Section 3: Angew 5 Any person violating any

provision of this ordinance shall be fined not less

than ten dollars ($10.00) nor more than five hun-

dred dollars ($500.00) for the first offense and

succeeding offenses during the same calendar year,

and each day that such violation shall continue shall

be deemed a separate and distinct offense.

LICENSE GUIDELINES For Items, EFFECT,

PARAPHERNALIA ACCESSORY OR THING WHICH Is

DESIGNED OR MARKETED For USE WITH ILLEGAL

CANNABIS OR DRUGS

Paper—-white ap tod or tobacco oriented paper not

necessarily designed for use with illegal can-

nabis or drugs may be displayed. Other paper

of colorful design, names oriented for use with

illegal cannabis or drugs and displayed are

covered.

Roach Clips—designed for use with illegal cannabis

or drugs and therefore covered.

Pipes—if displayed away from the proximity of

nonwhite paper or tobacco oriented paper, and

not displayed within proximity of roach clips,

or literature encouraging illegal use of can-

nabis or illegal drugs are not covered;

otherwise, covered.

Paraphernalia—if displayed with roach clips or

iterature encouraging illegal use of cannabis

or illegal drugs it is covered.

-As noted above, in order to survive a vagueness at-

tack, an ordinance must give persons a reasonably clear

13a

No. 80-1462

idea of what the law expects of them. We agree with the

district court that “[i]t is obvious that this ordinance is

not a model of legislative clarity; defendants do not

claim that it is.” 485 F.Supp. at 406. Of course, in deter-

mining whether a statute or ordinance is vague, a court

cannot invalidate every ordinance which could have

been drafted more precisely, since “[{i]Jn most English

words and phrases there lurk uncertainties.” Robinson v.

United States, 324 U.S. 282, 286 (1945). But the inherent

vagueness of the English language, coupled with the ad-

mirable intention of stemming drug abuse, cannot save

an ordinance which fails to give fair notice of what it

prohibits.

According to the district court, the plaintiff should be

able to tell what the ordinance requires of it by looking

to the common, ordinary, dictionary meanings of the

words “items”, “effect”, “paraphernalia”, “accessory”,

and “thing”."’ But the fact that these five words have or-

dinary dictionary meanings does not sufficiently clarify

the scope of the licensing requirement, which applies to

any person who sells any “items, effect, paraphernalia,

accessory or thing which is designed or marketed for use

with illegal cannabis or drugs.” The italicized phrase is

the key to triggering application of the statute. The

words “designed”, “marketed”, “cannabis”, and “drugs”

‘8 The district court noted that plaintiff removed a total of 72

items from its shelves, and that thereafter defendants

conceded that plaintiffs were in compliance with the

ordinance because they no longer sold any “.. . thing which is

Coslgned or marketed for use with illegal cannabis or drugs.”

485 F.Supp. at 407, The court stated that the removal of these

items by — demonstrates that “plaintiff was not

hampered any vagueness in the words of the subject

ordinance.” /d. Plaintiff vigorously denies that its actions

represent any acknowledgment that it scld drug-related para-

phernalia. Rather, a wide variety of items were removed from

the shelves in order to ensure that no violation of the

ordinance could be found. Plaintiff wished to avoid the initia-

tion of local proceedings that might cause a federal court to

abstain from considering plaintiff's constitutional claims until

of pate remedies had been exhausted. Younger v. Harris, 401

l4a

No. 80-1462

may also have common, ordinary meanings which can

be found in a dictionary, but the entire phrase is more

than the sum of the meanings of the individual terms

used. Unless the license guidelines give additional clari-

ty to this phrase, we must agree with plaintiff that the

ordinance is so vague that it does not give sufficient

notice to merchants as to whether they are required to

obtain a license, and for which items the name and ad-

dress of the purchaser must be recorded and sale to

minors prohibited.

Turning first to the words of the ordinance, the

primary words to be interpreted are “designed” and

“marketed”, since these words link the innocuous terms

“item”, “effect”, “paraphernalia”.’* “accessory”, and

“thing” to illegal drugs, thereby triggering the

regulatory purpose.” The phrase “designed for use with

drugs” was held to be one of the fatal flaws, in an or-

dinance far more detailed than the one at issue here, by

a three-judge district court in Indiana. In Indiana

Chapter, N.O.R.M.L. v. Sendak, No. TH _75-142-C

(§.D.Ind. Feb. 4, 1980) (Swygert, Cir. J. presiding)'*® the

court stated:

* The district court treated the term “paraphernalia” in the

ordinance as having its non-technical meaning, namely

“articles of equipment.” 485 F.Supp. at 407, citing Webster's

Third New International Dictionary (Unabridged ed. 1971) at

1638. But “paraphernalia” is also ming a standard term

to refer to the whole class of allegedly drug-related items

which this ordinance attempts to regulate.

8 The pur of the regulation is found in the preamble of

Ordinance No. 969-1978, which provides in part, “it is in the

best interest of the health, safety, and welfare of the citizens

of the Village of Hoffman Estates to regulate within the

Village the sale of items designed or marketed for use with

illegal cannabis or drugs.”

remanded for dismissal because the Indiana Legislature had

repealed the statute held to be unconstitutional, and the

successor statute was the subject of new litigation. Indiana

ape: N.O.R.M.L. v. Sendak, No. 80-1305 (7th Cir. July 22,

lSa

No. 80-1462

It is unclear what is meant by an instrument

Bs eel for drug use. The term “designed” could

signify only devices that have no use or function

other than as a means to ingest a controlled sub-

stance. ~ cao oni “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. The definition

“designed for drug use” gives no hint to those

attempting to comply with [the ordinance] what is

included in the definition. The definition fails to

make clear what items are included in the statutory

prohibition and what items are not.

Id., slip op. at 12-13.

The license guidelines imply that items “designed” for

use with drugs mean those items which are inherently

suited only for drug use, and are thus covered by the or-

dinance regardless of the manner of dispiay or avowed

intent of the retailer. For example, the guidelines state

that “roach clips” are “designed for use with illega! can-

nabis or drugs and therefore covered,” (emphasis added).

But the guidelines do not define “roach clip.” Conse-

—: oe any item that could possibly be used as

a roach clip, such as an alligator clip or bobby pin, could

subject a retailer to the licensing requirement. In reali-

ty, it is inconceivable that sale of these innocent items

would subject a hardware store or drugstore to the

burdens of the license fee and sales register, as well as

to the label of “drug yg, Meg orn store.” Perhaps the

village wishes to draw a line between items which in-

herently are roach clips and “innocent” items merely

used as roach clips. But neither the ordinance nor the

guidelines draws this distinction, and we are uncertain

l6a

No. 80-1462

as to whether any definition of a roach clip could draw

such a distinction based on design alone."

Another item which the guidelines say is inherently

drug related is “paper of colorful design, names oriented

for use with illegal cannabis or drugs and displayed.”

But the guidelines also say that “white paper or tobacco

oriented paper not necessarily designed for use with il-

legal cannabis or drugs may be displayed.” This

guideline attempts to tel! the retailer which rolling

papers are covered and which are not, but the definition

is circular because it puts the burden back on the

retailer to decide what is “tobacco oriented” peor not

necessarily designed for use with drugs and what is

“drug oriented” paper. Is all white rolling paper outside

the ordinance, even if there is an advertisement for a

water pipe on the package? Does “paper of colorful

design” mean that brown or beige paper is covered, or

could some colored paper be considered “tobacco

oriented”?

The following exchange took place at the March 23, 1979,

trial during Leavitt's questioning of Williams, the village

attorney who drafted the ordinance and guidelines:

By Mr. LEAVITT:

Q_ What design differential between the alligator cli

ap ng in Exhibit No. 6 and the alligator clip display

in No. 80?

A The design and marketing of the—

I asked only about design. Is there any design

differential?

A No.

_ Q Now if I were to tell you that Exhibit No. 6 was sold

in a Flipside Records without any signs but merely there

where literature was displayed, where the literature that

contained, The Child’s Garden of marionte or whatever

other literature they displayed, would it then be a

regulated item?

A_ It would be if an officer could tell me that it can be

=e or is presumed to be used for illegal cannabis and

rugs.

Transcript of March 23, 1979 at 77-78.

17a

No. 80-1462

An additional element of vagueness in the “designed

for use with drugs” standard is added by the fact that

the manufacturer, not the retailer, designs the items

sold. Consequently, the design intent of the manufac-

turer, not of the regulated seller, triggers the retailer's

duty to obtain a license and the customer’s obligation to

sign a register available to the police.'*

Next, we examine the phrase “marketed .. . for use

with illegal cannabis or drugs” to determine whether

the vagueness already noted can be eliminated. Defen-

dants argue that the ordinance’s reference to the

marketing approach used by a retailer makes possible an

inference abvut the seller’s intent to sell a given item for

use with illegal drugs.’ Defendants argue that presum-

ing that an item is intended for use with drugs from a

retailer's marketing approach satisfies the test for the

validity of a statutory presumption, specifically that

18 If this were a criminal ordinance, subjecting retailers and

customers to prosecution based solely on the design intent of a

third party, the manufacturer, there would be little question

as to the law’s invalidity. See note 9, supra.

'* The following exchange took place during plaintiff's

examination of Williams:

_Q Does your ordinance contemplate control or regula-

tion of those things which you have defined in the guide-

lines under your words as “roach clips”?

A The ordinance regulates paraphernalia, accessory or

thing which is designed or marketed for use with illegal

mong or drugs. It does not specifically state roach

clips.

Q I was referring to the guidelines which specifically

says—

A Those that are designed for use with illegal cannabis

and drugs are therefore covered.

°. What I am asking is how do you know what you are

selling is a roach clip? The design you have agreed is the

same. How does the individual, without the benefit of a

policeman monitoring each and every item he sells, know

whether or not it is a glove stretcher or a roach clip?

A This is where the marketing concept enters in.

Transcript of March 23, 1979 at 78-79.

18a

No. 80-1462

“there be a rational connection between the facts proved

and the fact presumed.” Leary v. United States, 395 U.S.

6, 33 (1969), quoting Tot v. United States, 319 U.S. 463,

467 (1943). Defendants’ reliance on Leary is misplaced.

In Leary the Court struck down a presumption that a

person in — of marijuana knows that the mari-

juana is of foreign origin.*® The court held that despite

the fact that most domestically consumed marijuana

comes from abroad, 395 U.S. at 39-44, “it would be no

more than speculation were we to say that even as much

as a majority of rs ‘knew’ the source of their

marijuana.” 395 U.S. at 53. The issue in — was

whether the “fact proved,” (marijuana possession), and

“fact presumed,” (knowledge of importation), were

rationally connected. But the issue here is whether the

“fact proved,” (marketing scheme), is too vague a stan-

dard to give rise to the “fact presumed,” (drug-

relatedness)?! This vagueness issue is quite different

from the “rational connection” issue in Leary.

20 Leary was convicted of violating 26 U.S.C. § 176a, which

provided in relevant part:

Notwithstanding any other provision of law, whoever,

knowingly, with intent to defraud the United States,

imports or brings into the United States marihuana

contrary to law, or smuggles or clgnceerneyy introduces

into the United States marihuana which should have been

invoiced, or receives, conceals, buys, sells, or in any

manner facilitates the transportation, concealment, or sale

of such marihuana after being imported or brought in,

wing the same to have been imported or brought into the

United States contrary to law, or whoever conspires to do

any of the foregoing acts, shall be imprisoned... .

Whenever on trial for a violation of this subsection, the

defendant is shown to have or to have had the marihuana

in his possession, such possession shall be deemed sufficient

evidence to authorize conviction unless the defendant

explains his possession to the satisfaction of the jury.

395 U.S. at 10 (emphasis added).

1 Since we find that defendants have not adequately defined

their “marketin concept 80 as to give retailers fair notice of

what the licensing ordinance requires of them, we do not

reach the issue of whether, or what kind of, marketing factors

can give rise to a presumption of intent for use wi drugs.

19a

No. 80-1462

The license guidelines purport to define the type of

marketing approach that is indicative of the sale of

items for use in conjunction with illegal drugs. For ex-

ample, the guidelines indicate that ordinary pipes can

be distinguished from drug-related pipes according to

the pipes’ proximity to nonwhite paper, roach clips, or

literature encouraging illegal use of cannabis or drugs.”

Similarly, “paraphernalia” is covered “if displayed with

roach clips or literature encouraging illegal use of can-

nabis or illegal drugs.” The word “paraphernalia” is

nowhere defined, but, as discussed earlier, the district

court found that the word should be given its ordinary

meaning of “articles of equipment.” Thus, it appears

that displaying almost any item in the proximity® of

“literature encouraging illegal use of ... drugs” re-

quires the store to obtain a license and have purchasers

sign the register. This means that paper clips sold next

to Rolling Stone magazine conceivably could trigger the

requirements of the ordinance. Perhaps the village

would not construe the ordinance in this manner. But

the pojiit is that there is no way for a seller to determine

which particular items or arrangement of merchandise

will require a license.

Defendants argue that the phrase “items, effect,

paraphernalia, accessory or thing which is designed or

marketed for use with illegal cannabis or drugs” ade-

quately defines that has become known as drug

paraphernalia,™ so that a retailer in plaintiff's position

# The guidelines state in part:

Pipes—if displayed away from nonwhite paper or tobacco

oriented paper, . . . are not covered;

(emphasis added). We assume that the guidelines mean that

pipes are not covered if displayed away from non-tobacco

oriented paper. This would be consistent with the guidelines

on paper, However, read literally, the guidelines imply that

pipes are “covered” if displayed near tobacco oriented paper,

yet not covered if displayed only near white paper, even if it is

wae pperer with “names oriented for use with illegal

*% The guidelines do not define “proximity”.

™ See note 14, supra.

20a

No. 80-1462

can determine whether the ordinance applies to him.

Defendants cite McGowan v. Maryland, 366 U.S. 420,

428 (1961), for the proposition that when a regulatory

ordinance applies to a retailer, who has an opportunity

for clarificat'on prior to license application, problems of

interpretation which might confuse ordinary citizens do

not arise. In McGowan, which involved a statute that ex-

empted from Sunday closing laws retail sales of

“merchandise essential to, or customarily sold at, or in-

cidental to, the operation of” bathing beaches and

amusement parks, the Court stated:

We believe that business people of ordinary in-

re in the position of appellant’s employer

would be able to know what exceptions are encom-

passed by the statute either as a matter of ordinary

commercial knowledge or by simply making a

reasonable investigation at a nearby bathing beach

or amusement park within the county.

366 U.S. at 428 (emphasis added).

Despite the fact that “{iJn the field of regulatory

statutes governing business activities where the acts

limited are in a narrow category. procter —, is

allowed,” Papachristou v, City , acksonville, 405 U.S

156, 162 (1972), this ordinance fails to satisfy the prin-

ciples behind the vagueness doctrine. The greater

leeway allowed when an ordinance is applied to a

retailer, who supposedly is familiar with his industry,

does not fit this case. The McGowan standard allows “or-

dinary commercial knowledge” or “reasonable investiga-

tion” to clarify the standards of an ordinance.” But to

*® In Tobacco Road v, City of Novi, 490 F.Supp. 537

(E.D.Mich. 1980), a retailer was held to a higher standard of

nowledge of paraphernalia than others, on the P

from McGowan cited supra, and the court found that the

ordinance was not vague as applied to retailers. 490 F.Supp.

at 545-48. But an identical ordinance enacted in the city of

Ferndale was later struck down in the same district in Music

Stop, Ine. v. City of Ferndale, 488 F.Supp. °90 (E.D.Mich.

1980). In M the McGowan standard was also cited,

and the court concluded that even if it imposed McGowan's

“reasonable investigation” requirement on retailers, the

ordinance was impermissibly vague. 488 F.Supp. at 393.

2la

No. 80-1462

apply the McGowan analysis here would beg the ques-

tion in issue. To apply that standard as defendants

suggest would presup that the business the retailers

are engaged in is the business of selling items “designed

or marketed for use with illegal cannabis or drugs.” The

laintiff vigorously contests that characterization of its

usiness.

A further element of vagueness in the marketing con-

cept arises from the danger of arbitrary an dis-

criminatory enforcement by those charged with enforce-

ment of the ordinance. See Grayned, 408 U.S. at 108-09.

Since, as discussed above, the ordinance and guidelines

are vague as to what constitutes items designed for use

with illegal — the ordinance is equally vague as to

which supposedly designed-for-drug items will bring

other items under the ordinance through the marketing

proximity standard. If an item is not considered drug-

related per se, then the subjective factors that enter into

interpreting a retailer's marketing scheme make possi-

ble the dangers noted in Housworth v. Glisson, 485

Gin Rach 38 (N.D.Ga. 1978), affd, 614 F.2d 1295 (5th

ir. 3

Most peowie may agree that selling devices which

have no obvious purpose other than to facilitate the

use of dangerous drugs threatens the community’s

health, welfare and safety. But the decision of

which devices fit this category becomes more dif-

ficult when something as innocuous and susceptible

of legal or merely decorative use as a “marijuana

pipe is involved. Whether selling this merchandise

alls within the ordinance’s prohibition is a

debatable question, particularly when ne fo

lifestyles and political views suffuse the decision

maker's perception of what buyers will do with the

product.

(Emphasis added).

We find that there does exist a ~—_ danger that

enforcement of this ordinance will be used to harass in-

dividuals choosing lifestyles and views different from

those of the majority culture. Defendants may argue

22a

No. 80-1462

that “conflicting lifestyles and political views” will not

affect enforcement of the ordinance, but defendants

—. demonstrate a certain bias when they state in

their brief “[djefendant Village does expect that the

marketing approach that encourages drug use by youth

will be eliminated by responsible businesses and con-

ducted under reasonable regulation by other businesses.”

Appellees’ Brief at 11. Defendants obviously have con-

cluded that no business which must be licensed under

the ordinance is a “responsible business.” Thus the or-

dinance is not, as the village argues, the same as the

village’s regulation of milk, flowers, and other activities

requiring a license. Rather, the ordinance brands

licensees as irresponsible businesses, a stigma which

should not be applied according to the tastes of village

officials who may be offended by a retailer’s marketin

approach. Thus, with regard to both the design an

marketing standards, the ordinance Bacon jeer ape

delegates basic policy matters to [those charged with ad-

ministering the ordinance] for resolution on an ad hoc

and subjective basis.” Grayned, 408 U.S. at 108-09.76

Another aspect of the ordinance which creates the

danger of arbitrary enforcement, as well as failing to

notify retailers of what the law expects of them, is Sec-

tion 1(D) of the ordinance which provides:

Every licensee must keep a record of every item,

effect, paraphernalia, accessory or thing which is

designed or marketed for use with illegal cannabis

or drugs which is sold and this record shall be

open to the inspection of any police officer at any

time during the hours of business. Such record shall

contain the name and address of the purchaser, the

name and quantity of the product, the date and

time of the sale, and the licensee or agent of the

licensee’s signature, such records shall be retained

for not less than two (2) years.

%* The possibility that the enforcement standards may be

clarified in the future by proceedings under the village’s Ad-

ministrative Procedures Ordinance does not cure the

leness found here. See discussion in Part V of this

opinion.

23a

No. 80-1462

Defendants argue that this record-keeping requirement

is supported by Illinois Revised Code ch. 56’, Section

1312, which requires that purchasers sign for Schedule

V controlled substances.27 But since possession or dis-

tribution of Schedule V substances is in itself illegal, ex-

cept as authorized for medical purposes,?* the Section

1312 register serves to detect illegal, non-medical use by

urchasers or pharmacists. In the ordinance before us,

owever, the items to be regulated are, according to the

ordinance itself, “legal retail items,” unlike Schedule V

substances. Nevertheless, the record-keeping section im-

plies that a customer who — an item “designed

or marketed for use with illegal cannabis or drugs” in-

tends to use the item with illegal cannabis or drugs. A

further implication could be that a customer is subject

to police scrutiny or even to a search warrant on the

basis of the purchase of a legal item.

The potential for abuse in inferring use or possession

of drugs from purchase or possession of certain items

was noted by the Eighth Circuit in Geiger v. City of

Egan, 618 F.2d 26 (8th Cir. 1980). In Geiger, the court

struck down a statute which made possession of a “drug-

related device” a misdemeanor. The court stated:

Where definite guidelines for enforcement officials

are not present, use of the ordinance to expand

arrest opportunities and justify searches magnifies

pi potential harm from enforcement of the or-

inance.

618 F.2d at 29 (footnote omitted). The danger here is

similar to the danger in Geiger. Here the danger of

abuse arises from use of the police register, while in

Geiger the danger arose from use of an arrest for posses-

sion of drug-related items as a basis for a search for con-

trolled substances. While the ordinance here does not

* Schedule V substances affected by Section 1312 include

codeine, dihidrocodeine, and ethylmorphine. See ch. 56,

§ 1212. There is no vagueness in the definition of th

substances, unlike the definitions of the items to be regulated

in the village’s ordinance.

2% See Ill.Rev.Stat. ch. 56%, §§ 1401, 1402, 1406.

24a

No. 80-1462

make purchase of drug-related devices a criminal

offense, the underlying problem of potential enforcement

abuse arising from the registration requirement

remains.”°

Finally, defendants contend that the “licensing

guidelines” represent only a beginning in clarifyin

what are “items, . . . designed or marketed for use wit

illegal cannabis or drugs.” Defendants point to the

village’s Administrative Procedures Ordinance, No. 932-

1977, which provides procedures for rule-making, in-

cluding provisions for public comment on proposed

rules, petition for adoption of new rules, and appeal

of the adoption, amendment, or repeal of rules.%

2 On May 29, 1979, the parties entered a stipulation which

provided in part:

The primary purpose of that part of the challenged Or-

dinance, which requires that merchants maintain a police

regulated, is to discourage persons in the Hoffman Es-

tates community from purchasing those items. That the

requirement that all purchasers of items sought to be

regulated sign a police record, open to police inspection,

serves to discourage customers, much the same way that

requiring patrons of a motel to sign a guest register dis-

courages certain persons from using the services of that

type of establishment.

While the primary purpose of the registration requirement

may well be to discourage purchase of certain items, we are

not convinced that the danger of unjustified searches and

arrests noted in Geiger is not present here.

% The relevant sections of the Administrative Procedures

Ordinance deal with the procedures for rule-making, petition

for adoption of rules, ana appeal, and are set out as follows:

Sec. 5-8-4—Procedure for rule-making:

(A) Prior to the adoption, amendment or repeal of any

rule, each Department shall:

W) Give at least 10 days’ notice of its intended action.

e notice shall include a statement of either the terms

or substance of the intended action or a description of

(Footnote continued on following page)

25a

No. 80-1462

Presumably speaking of rules the village may adopt in

the future pursuant to its Administrative Procedures

Ordinance, defendants state, “[wJhile speculative, it is

likely the guidelines in the Model Act ... would be

used to identify the design and marketing intent.”

% continued

the subjects and issues involved, and the time, place and

manner in which interested persons may present their

views concerning the intended action. The notice shall

be mailed to each person who has made timely request

of the Department for advance notice of its rule-making

proceedings.

(2) Afford all interested persons reasonable opportuni-

y to submit data, views or arguments, which may, in

e discretion of the Department be submitted either

orally or in writing or both. The Department shall con-

sider fully all submissions respecting the proposed rule.

Sec. 5-8-6—Petition for adoption of rules: Any interested

person may petition a Department requesting the

presauigation, amendment or repeal of a rule. Each

ment shall prescribe by rule the form for petitions

and the procedure for their submission, consideration and

disposition. If, within 30 days after submission of a peti-

tion, the Department has not initiated rule-making

proceedings in accordance with Section 5-8-4 of this Arti-

cle, the petition shall be deemed to have been denied.

Sec. 5-8-7—Appeals: Any person aggrieved by the ado

tion, amendment or repeal of any rule under the

procedures herein may request that the Village Manager

lace the issue before the appropriate committee of the

illage Board. There shall an eppertunty for the

aggrieved person or persons and the Department to pre-

sent the merits of the issue before the Committee. The

Committee shall make a recommendation to the Villa

. Village Board shall resolve the issue by

lution or Ordinance, as appropriate.

% As discussed in Part II, the Model Act is a criminal

statute. In addition to providing guidelines for determining

whether an ran is drug paraphernalia, the Model Act re-

quires proof of intent or knowlea y a seller that an item

will be used as drug paraphernalia. Furthermore, while the

Model Act has been approved by some courts, its con-

stitutionality is not before this court

26a

No. 80-1462

Appellees’ Br. at 7. But the mere possibility that the

vagueness in this ordinance might later be corrected by

additional guidelines certainly cannot be a sound basis

for holding it constitutional.

As discussed in Part IV, this ordinance is imper-

missibly vague on its face. Therefore, it does not

provide an administrative body with adequate stan-

dards to guide and limit the administrators’ discretion

in drawing guidelines. “Further, where, as here, a rule

contains no ascertainable standards for enforcement, ad-

ministrative and judicial review can be only a

meaningless gesture.” Bence v. Breier, 501 F.2d 1185,

1190 (7th Cir. 1974), cert. denied, 419 U.S. 1121 (1975).

In addition, the possibility that plaintiff itself may

appeal or propose new guidelines under the Ad-

ministrative Procedures Ordinance does not shift the

burden to plaintiff to ensure that the village adopts

rules with ascertainable standards.

As stated in Grayned, “[i]t is a basic principle of due

process that an enactment is void for vagueness if its

rohibitions are not clearly defined.” 408 U.S. at 108.

his ordinance and the existing guidelines fail to ade-

quately define the items to be regulated, and thus a

retailer in plaintiff's position is unable to determine

what the law expects of him. Thus, this ordinance must

be declared void for vagueness.** Since we find this or-

dinance void for vagueness, it is unnecessary to reach

plaintiff's other constitutional claims, and we express no

opinion on them.

® After this opinion was written, but before it was released,

the Sixth Circuit issued its spas in Record Revolution No. 6,

Inc. v. City of Parma, No. 80-3308 (6th Cir. Dec. 8, 1980). The

Sixth Circuit held three ordinances based on the Mode! Act to

be unconstitutional. That opinion, like our opinion here, found

the “designed for use” standard unconstitutionally vague.

27a

No. 80-1462

The order of the district court is

REVERSED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 4969—Midwest Law Printing Co., Inc., Chicago—1-12-81—350

28a

OPINION OF THE DISTRICT COURT

Seller of records, tobacco-use related items, etc., sued

village and others seeking declaration that village drug para-

phernalia ordinance was unconstitutional. The District Court,

Leighton, J., held that: (1) considering contemporaneously

adopted guidelines, together with terms used, operative words

of the ordinance, which regulated the sale of an item, effect,

paraphernalia or thing which is designed or marketed for use

with illegal cannabis or drugs, were not unconstitutionally

vague; (2) ordinance, which required a license, which, inter

alia, prohibited employment of anyone convicted of drug-

related offenses and which required seller to record to whom

subject items were se'd and prohibited sales to minors, did not

violate First Amendment rights; (3) ordinance was not over-

broad, and (4) ordinance did not violate equal protection as it

bers a rational relationship to legitimate governmental purpose

of controlling use of cannabis and other illegal drugs.

Judgment for defendants.

Memorandum

LEIGHTON, District Judge

This suit is against a village, several of its officials, and its

trustees, for injunctive relief, damages, and a judgment declar-

ing that a certain village ordinance is unconstitutional. Jurisdic-

tion of this court is invoked under 28 U.S.C. §§ 1331, 1343(3)

and (4). The ordinance in question requires that any person

who, within the village, sells an item, effect, paraphernalia or

thing which is designed or marketed for use with illegal

cannabis or drugs must obtain a license for $150.00, file

affidavits averring that the intended licensee and its employees

have never been convicted of a drug related offense, and keep

records which on inspection will disclose to the police each item

sold and to whom. The sale of such items to minors is

prohibited; and the ordinance provides for a fine of not less

than $10.00 and up to $500.00 for any violation of its terms.

29a

Plaintiff alleges in its complaint that this ordinance is

vague, overbroad, capable of being arbitrarily enforced, and

not reasonably related to any legitimate governmental objective

of the village in controlling drug abuse. It claims that

enactment and enforcement of the ordinance will deprive

plaintiff of rights guaranteed by the due process and equal

protection clauses of the Fourteenth Amendment to the United

States Constitution, and that the terms of the ordinance when

applied to the plaintiff violate the First Amendment and the

commerce clause of the Constitution. On filing of its suit,

plaintiff moved for a preliminary injunction which after a

hearing the court denied. Then the cause was tried without a

jury on the presented evidence and stipulated testimony. The

following are the material facts.

The plaintiff in this case is Flipside, Hoffman Estates, Inc.,

an Illinois corporation engaged in interstate commerce as

Flipside Records, 2348 West Higgins Road in the village of

Hoffman Estates, Illinois. Defendants are the village, an Illinois

home rule municipality that has a population of approximately

37,000; and in their individual as well as official capacities,

Virginia M. Hayter, village president; Richard Williams, village

attorney; John O'Connell, village chief of police; William W.

Cowin, William A. Palmer Bruce C. Lind, Ralph H. Lyerla,

Thomas W. Taylor, Lee Dogion, village trustees.

For more than three years prior to May 1, 1978, plaintiff

sold phonograph records, tapes, record accessories, novelty

devices, and jewelry. In addition, it sold literature that included

“A Child's Garden of Grass”, “Marijuana Grower’s Guide”,

and magazines such as “National Lampoon”, “Rolling Stone”,

and “High Times”. The novelty devices and tobacco-use

related items plaintiff displayed and sold in its store ranged

30a

from small commodities such as clamps, chain ornaments, and

earrings through cigarette holders, scales, pipes of various types

and sizes, to large water pipes, some designed for individual

use, some which as many as four persons can use with flexible

plastic tubes. Plaintiff also sold a large number of cigarette

rolling papers in a variety of colors. One of plaintiff's displayed

items was a mirror, about seven by nine inches with the word

“Cocaine” painted on its surface in a purple color. Plaintiff sold

cigarette holders, “alligator clips”, herb sifters, vials, and a

variety of tobacco snuff.

The defendant village, for a long time prior to the date of

this controversy, regulated more than 80 items or businesses,

including florists, grocers and other merchants. Licensing of the

sale of these items was governed by a municipal code which on

October 3, 1977 was amended to provide for an administrative

review procedure within the village. Under this amendment,

the action of any village department could on request of an

aggrieved person be placed on the agenda of an appropriate

committee for review.

On February 20, 1978, an authorized quorum of the village

trustees acted on the following proposal.

ORDINANCE NO. 969—1978

AN ORDINANCE AMENDING THE MUNICIPAL

CODE OF THE VILLAGE OF HOFFMAN ESTATES

BY PROVIDING FOR REGULATION OF ITEMS

DESIGNED OR MARKETED FOR USE WITH

ILLEGAL CANNABIS OR DRUGS

WHEREAS, certain items designed or marketed for

use with illegal drugs are being retailed within the Village

of Hoffman Estates, Cook County, Illinois, and

WHEREAS, it is recognized that such items are legal

retail items and that their sale cannot be banned, and

3la

WHEREAS, there is evidence that these items are

designed or marketed for use with illegal cannabis or drugs

and it is in the best interests of the health, safety and

welfare of the citizens of the Village of Hoffman Estates to

regulate within the Village the sale of items designed or

marketed for use with illegal cannabis or drugs.

NOW THEREFORE, BE IT ORDAINED by the

President and Board of Trustees of the Village of Hoffman

Estates, Cook County, Illinois as follows:

Section 1; That the Hoffman Estates Municipal Code

be amended by adding thereto an additional section,

Section 8—7—16, which additional section shall read as

follows:

Sec. 8—7—16—ITEMS DESIGNED OR MARKET-

ED FOR USE WITH ILLEGAL CANNABIS OR

DRUGS

A. License Required:

It shall be unlawful for any person or persons as

principal, clerk, agent or servant to sell any items,

effect, paraphernalia, accessory or thing which is

designed or marketed for use with illegal cannabis or

drugs, as defined by Illinois Revised Statutes, without

obtaining a license therefor. Such licenses shall be in

addition to any or all other licenses held by applicant.

B. Application:

Application to sell any item, effect, paraphernalia,

accessory or thing which is designed or marketed for

use with illegal cannabis or drugs shall, in addition to

requirements of Article 8—1, be accompanied by

affidavits by applicant and each and every employee

authorized to sell such items that such person has

never been convicted of a drug-related offense.

C. Minors:

32a

It shall be unlawful to sell or give items as described in

Section 8—7—16A in any form to any male or female

child under eighteen years of age.

D. Records:

Every licensee must keep a record of every item,

effect, paraphernalia, accessory or thing which is

designed or marketed for use with illegal cannabis or

drugs which is sold and this record shall be open to

the inspection of any police officer at any time during

the hours of business. Such record shall contain the

name and address of the purchaser, the name and

quantity of the product, the date and time of the

licensee’s sale, and the licensee or agent of the licen-

see’s signature, such records shall be retained for not

less than two (2) years.

The applicant shall comply with all applicable regu-

lations of the Department of Health Services and the

Police Department.

Section 2: That the Hoffman Estates Municipal Code

be amended by adding to Sec. 8—2—1 Fees: Merchants

(Products) the additional language as follows:

Items designed or marketed for use with illegal cannabis or

drugs $150.00

Section 3: Penalty. Any person violating any provi-

sion of this ordinance shall be fined not less than ten

dollars ($10.00) nor more than five hundred dollars

($500.00) for the first offenses and succeeding offenses

during the same calendar year, and each day that such

violation shall continue shall be deemed a separate and

distinct offense.

The ordinance was adopted, effective May 1, 1978. To it

was attached the form of affidavit which an applicant for the

required license was to execute concerning absence of any

conviction of a drug related offense. The form of record which

had to be kept showing sales of items designed or marketed for

33a

use with illegal cannabis or drugs was also attached to the

enactment. A short time later, before the suit in this case was

filed, the village attorney prepared a set of license guidelines

which became an integral part of the ordinance.

LICENSE GUIDELINES FOR ITEMS, EFFECT, PARA-

PHERNALIA ACCESSORY OR THING WHICH IS

DESIGNED OR MARKETED FOR USE WITH

ILLEGAL CANNABIS OR DRUGS

Paper—white paper or tobacco oriented paper not neces-

sarily designed for use with illegal cannabis or drugs

may be displayed. Other paper of colorful design,

names oriented for use with illegal cannabis or drugs

and displayed are covered.

Roach Clips—designed for use with illegal cannabis or

drugs and therefore covered.

Pipes—if displayed away from the proximity of nonwhite

paper or tobacco oriented paper, and not displayed

within proximity of roach clips, or literature encouraging

illegal use of cannabis or illegal drugs are not covered;

otherwise, covered.

Paraphernalia—if displayed with roach clips or literature

encouraging illegal use of cannabis or illegal drugs it is

covered.

Soon after the enactment of the ordinance, plaintiff was

notified that it was subject to the terms of the ordinance, and

that sales of the items covered without complying with the

terms would be a violation and subject plaintiff to its penalties.

A copy of the ordinance and the guidelines were available to

the plaintiff and those who protected its interests. Plaintiff

chose not to apply for the license required. Instead, acting

through its agents and employees, it elected to remove from the

shelves of its store more than eighty items which were believed

to fall within the terms of the ordinance. Then plaintiff, on May

30, 1978, filed this suit alleging that the ordinanace in question

34a

was vague and thus void; that its terms violated Article I of the

Constitution of the United States in that it interferred with the

plaintiffs business; that the ordinance violated the commerce

clause of the federal Constitution and deprived plaintiff of

rights secured to it by the First, Fourth, Fifth and Fourteenth

Amendments to the Constitution of the United States. Plaintiff

prayed that this court restrain defendants from enforcing

Ordinance No. 969—1978, Section 8—7—16, and that this

court declare in a judgment that the ordinance was violative of

the constitutional protections alleged by plaintiff and thus was

void and unenforceable. Defendants’ answer denied plaintiff's

allegations and its claims for relief. In post-trial briefs, the

parties have submitted their arguments and contentions on the

issues presented.

II.

The first issue is whether the ordinance in question is

vague, and thus its application to the plaintiff and its business

violates the due process clauses of the Fifth and Fourteenth

Amendments to the Constitution. Vague laws offend several

important values in our society. Grayned v. City of Rockford,

408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). They may

trap the innocent by not providing fair warning; they may fail

to provide explicit standards for those who apply them; they

impermissibly delegate basic policy matters for resolution on an

ad hoc and subjective basis, with attendant dangers of arbitrary

and discriminatory application. /d. at 108, 92 S.Ct. at 2298.

A law may run afoul of the vagueness doctrine even

though it does not impose criminal sanctions because the

fundamental defect is not the penalty but rather “the exaction

of obedience to a rule or standard . . . so vague and indefinite as

really to be no rule or standard at all.” A. B. Small Co. v.

American Sugar Refining Co., 267 U.S. 233, 239, 45 S.Ct. 295,

297, 69 L.Ed. 597 (1925); see Horn v. Burns and Roe, 536 F.2d

35a

251 (8th Cir. 1976). Accordingly, the due process clause of the

federal Constitution requires that civil and criminal enactments,

and regulations promulgated pursuant thereto, be sufficiently

clear that persons who are affected can gain a reasonably clear

idea of what the law requires of them. Franklin v. First Money,

Inc., 427 F.Supp. 66, 67 (E.D.La.1976), aff'd, 599 F.2d 615

(Sth Cir. 1979). In determining whether a legislative enact-

ment meets these requirements the same rules of construction

are used whether it is a statute or ordinance. Martin v. King,

417 F.2d 458, 461 (10th Cir. 1969).

This prohibition against vagueness does not invalidate

every ordinance which a court believes could have been drafted

with greater precision. Many ordinances will have some

inherent vagueness, for “[i]n most English words and phrases

there lurk uncertainties”. Robinson v. United States, 324 U.S.

282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). All the due

process clause requires is that a law should give warnings

sufficient to enable a person, in the conduct of his or her affairs,

to avoid that which is forbidden. Rose v. Locke, 423 U.S. 48,

50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). Therefore, a statute

or ordinance is unconstitutionally vague when it fails to give fair

notice of what it prohibits. State v. Zwicker, 41 Wis.2d 497,

164 N.W.2d 512, appeal dismissed 396 U.S. 26, 90 S.Ct.199, 24

L.Ed.2d 147 (1969).

However, in determining whether a statute or ordinance is

vague, a court should bear in mind that “[t}he Office of Judges

is always to make such construction as to suppress the Mischief

[which is the object of the law] and advance the Remedy; and

to suppress subtle Inventions and Evasions for Continuance of

the Mischief.” Heydon’s Case, 3 Co. 7a, 7b Magdalon College

Case, 11 Co. 66b, 73b, quoted in United States v. Second

National Bank of North Miami, 502 F.2d 535, 541 (Sth Cir.

1974), cert. denied 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777

(1975); see Mason v. Cutkomp, 15 Ill.App.2d 378, 146 N.E.2d

382 (1957). When faced with the question whether words of a

36a

statute or ordinance are of sufficient clarity, a court must first

look to the language of the law itself. Higgins v. Marshall, 190

U.S.App.D.C. 54, 584 F.2d 1035, 1037 (D.C. Cir. 1978), cert.

denied, 441 U.S. 931, 99 S.Ct. 2051, 60 L.Ed.2d 659 (1979).

All laws should receive a sensible construction. Cartledge v.

Miller, 457 F.Supp. 1146, 1158 (S.D.N.Y.1978). Where there

is no accumulation of jurisprudence on the actual meaning of

the words used in an enactment, and the terms are not defined,

a court must assume that those who used the words did so

intending them to have the meaning commonly and ordinarily

understood. United States v. Porter, 591 F.2d 1048, 1053 (Sth

Cir. 1979).

In the case at hand, the parties agree that the ordinance

with which they are concerned is a regulation enacted by an

Illinois home rule municipality, and that the subject matter

sought to be regulated is properly within the municipal police

power. The required annual license fee of $150.00 is a charge

calculated to furnish funds necessary to administer the ordi-

nance. It is expected that fines which will range from $10.00 to

$500.00 for each violation will effectuate its enforcement. By its

terms, the ordinance applies only to the sale of “any items,

effect, paraphernalia, accessory or thing which is designed or

marketed for use with illegal cannabis or drugs, as defined by

the Illinois Revised Statutes ...”. The statutes referred to are

ch. 56% §§ 703(a), 1102(g), Ill. Rev. Stat. (1977).

It is obvious that this ordinance is not a model of legislative

clarity; defendants do not claim that it is. Its purpose,

nonetheless, is evident. It prohibits the sale or gift of the items

covered to any minor; and it appears from the evidence that

when it was adopted, those who drafted it, proposed it, and

voted on it, intended it as a means of coping with the social

problem of drug abuse in this small community located within

the greater Chicago metropolitan area. The operative words

are not defined, but there is no indication that the crucial words

“items,” “effect,” “paraphernalia,” “accessory,” or “thing” are

37a

to be given a technical meaning; they are, in fact, ordinary

words. In the construction of statutes and ordinances, absent

some established technical definition, the words used must be

given their common ordinary meaning, Sheehan v. Scott, 520 F.

2d 825, 829 (7th Cir. 1975), unless the clear intent of the

enacting body requires otherwise. Schreibman v. L. I. Combs &

Sons, Inc., 337 F.2d 410, 412 (7th Cir. 1964); 82 C.J.S. Statutes

§ 329; 73 Am.Jur.2d Statutes § 206.

There is no guidance from court decisions, no accumula-

tion of jurisprudence, on the actual meaning of the crucial

words of this ordinance, particularly in the context of what is

now known as drug paraphernalia enactments. See Note,

Paraphernalia for Marijuana and Hashish Use: Possession

Statutes and Indiana’s Pipe Dream, \0 Val. Univ.L.Rev. 353

(1976). However, reference can be made to a dictionary. See

Heyen v. Willis, 94 Ill. App.2d 290, 236 N.E.2d 580 (1968);

Nomura (America) Corp. v. United States, 299 F.Supp. 535

(Cust. Ct. 1969), aff'd, 435 F.2d 1319, 58 CCPA 82 (1969); 73

Am.Jur.2d Statutes § 223. When this is done Webster’s Third

New International Dictionary ( Unabridged ed. 1971) tells us

at p. 1203, that “item” (the ordinance uses the plural) means

“something produced by manufacturing or manual labor or in

some other way: a piece of goods ...”; at p. 724, that “effect”

means “movable property: goods (such as clothing, jewelry,

and other personal property)”; at p. 11, that “accessory” means

“‘an object or device that is not essential in itself but that adds to

the beauty, convenience or effectiveness of something else . . .”;

and at p. 2376, that “thing” means “possessions, goods:

whatever may be possessed or owned or be the object of a right;

such as equipment or utensils especially for a particular pur-

pose.”

As to the word “paraphernalia”, one court has said that it

“is not a technical word in the law of crimes, although it may be

in the law of property. The word is a word in common usage.

Roget’s Thesaurus defines it as a noun, plural, meaning belong-

38a

ings, equipment, accessories.” People v. Watkins, 126 Cal.

App.2d 199, 271 P.2d 641, 64% (1954). To those persons who

would purchase “paraphernalia ... designed or marketed for

use with illegal cannabis or drugs . . .”, within the meaning of

the subject ordinance, the word “paraphernalia” is becoming

an accepted term. The Court of Appeals for the 8th Circuit has

had occasion to observe that “in recent years ‘paraphernalia’

has become a standard vocabulary word in the vernacular of

the drug community, including both drug users and drug

enforcement personnel.” United States v. Johnson, 541 F.2d

1311, 1315 (8th Cir. 1976). Webster tells us, at p. 1638 that

“paraphernalia” means “articles of equipment . . .”.

Plaintiff attaches importance to the testimony of the village

attorney who drafted the subject ordinance. It points to several

of his statements and argues that they show that not even he

knew the meaning of the words used in the village enactment.

For example, plaintiff calls attention to the fact that in explain-

ing whether he thought any specific article fell within the

ordinance, the attorney said, “[I]t would be up to a police

Officer to tell me whether they had been designed or used .. .”.

In this court’s judgment, these portions of the village attorney’s

testimony are taken out of context. At the time he answered the

question referred to, he was explaining his dependence on

police officers telling him in what manner items potentially

within the terms of the ordinance were displayed in a particular

store. Thus, the village attorney was explaining his views

concerning enforcement of the ordinance, and his dependence

on the report of a police officer.

Reliance is also placed on the testimony of the village

president, who, the plaintiff contends, revealed an inability to

define or describe what items were regulated or prohibited by

the subject ordinance. However, the complete testimony of this

witness shows she was not an expert on the questions involved.

As she explained, her actions in this matter were based on

knowledge of drug paraphernalia she acquired from people

39a

who knew the subject. It is obvious from the testimony of this

witness that when she voted to adopt the subject ordinance she

and her fellow trustees relied on the knowledge of persons

acquainted with the problem about which they were legislating.

More important, however, is the fact that the time plaintiff was

told the ordinance was in effect, there was a set of guidelines

which could be used in determining whether it applied to a

particular business. In addition, the village trustees had

enacted an administrative review ordinance which furnished a

means by which any applicant for a license could have a

hearing if there was any disagreement about the applicability of

the ordinance to a particular item or business.

The guidelines adopted almost contemporaneously with

the ordinance, together with the terms used, lead this court to

conclude that the operative words of the ordinance under «ttack

are not vague. They are common, ordinary expressions, the

meaning of which is known to everyone familiar with the

English language. They are sufficiently clear that ali persons

that acted for and on behalf of the plaintiff could gain a

reasonably clear idea of what the ordinance required of anyone

who desired, within the village, to sell “any items, effect,

paraphernalia, accessory or thing which is designed or market-

ed for use with illegal cannabis or drugs .. .”.

Proof that these conclusiozs are valid is best shown by the

conduct of those who acted on plaintiffs behalf. As soon as

they were advised that the subject ordinance was in force, they

unerringly went to the shelves in plaintiff's store and removed

all items they thought fell within the ban of the new law, a total

of 72. The court has examined each; they are described in the

record of this case. Their removal from the shelves of plaintiff's

store successfully placed it in compliance with the ordinance.

Defendants concede that plaintiff no longer is selling any

“items, effect, paraphernalia, accessory or thing which is de-

signed or marketed for use with illegal cannabis or drugs, as

defined by the Illinois Revised Statutes ...”. Obviously,

40a

plaintiff was not hampered by any vagueness in the words of

the subject ordinance.

The second issue is whether, as plaintiff contends, the

ordinance in question is violative of rights protected by the First

Amendment to the federal Constitution. In an extensive brief,

citing the leading First Amendment decisions of the United

States Supreme Court, plaintiff argues that enforcement of this

ordinance against it will have a chilling effect on its sale and

distribution of literature, and that enforcement of the ordinance

will restrict its design and marketing strategies which plaintiff

contends constitute protected commercial speech.

These arguments are highly sophisticated, indeed inge-

nious, but defendants meet them with the blunt assertion that

the subject ordinance does not present any First Amendment

question. In no way, they argue, does this ordinance speak to

matters of literature or speech. Defendants point out that as an

aid to identification of marketing intent, the village attorney

provided guidelines which made it clear that if the items

covered by the ordinance were displayed with drug oriented

literature, the marketing intent would be evident; and therefore,

the presumption applied in Leary v. United States, 395 U.S. 6,

89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) would be stronger. Even

then, say defendants, neither the ordinance nor the guidelines

are intended to regulate or limit plaintiff's First Amendment

rights.

This court agrees with defendants. The ordinance in

question does not purport to prohibit advertisement or the

expression of commercial ideas as in Record Museum v. Law-

rence Township, 481 F.Supp. 768 (D.N.J.1979), and in Bambu

Sales, Inc. v. Gibson, 474 F.Supp. 1297 (D.N.J.1979). Even in

the case of a state criminal statute, the mere allegation of a

“chilling effect” on First Amendment rights is not sufficient to

4la

warrant the exercise of this court’s equitable powers to restrain

enforcement of an ordinance. Younger v. Harris, 401 U.S. 37,

42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Record Head Inc. v.

Olson, 476 F.Supp. 366, 372 (D.N.D.1979).

The ordinance defines the scope of the items regulated by

the manner in which they are designed or marketed. As

plaintiff points out, recent Supreme Court decisions establish

that commercial speech is not “wholly outside the protection of

the First Amendment.” Virginia Pharmacy Board v. Virginia

Citizens Consumer Council, 425 U.S. 748, 761, 96 S.Ct. 1817,

1825, 48 L.Ed.2d 346 (1976). However, these same decisions

emphasize that commercial speech that is false, deceptive, or

proposes illegal activity may be regulated or prohibited. Pitts-

burgh Press Co. v. Pittsburgh Commission on Human Relations,

413 US. 376, 388, 93 S.Ct. 2553, 2560, 37 L.Ed.2d 669 (1973)

(““We have no doubt that a newspaper constitutionally could be

forbidden to publish a want ad proposing a sale of narcotics

...”.) See Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59

L.Ed.2d 100 (1979); Bates v. State Bar of Arizona 433 US.

350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Linmark Associates

v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52

L.Ed.2d 155 (1977). The ordinance presented here is narrowly

drawn to limit only the sale of items “marketed for use with

illegal cannabis or drugs.” Thus, even assuming that marketing

is a form of advertising entitled to some degree of First

Amendment protection, the restriction applied by this ordi-

nance does not infringe on any protected First Amendment

activity. Even if it did, the area of First Amendment freedoms

can within narrow limits be subjected to regulation imposed by

a reasonable licensing ordinance. Universal Film Exchanges,

Inc. v. City of Chicago, 288 F.Supp. 286 (N.D.Ill. 1968); Pent-

R-Books, Inc. v. United States Postal Service 328 F.Supp. 297

(E.D.N.Y. 1971).

42a

Nor is the subject ordinance overbroad, as plaintiff claims.

The concept of “overbreadth” applies where the language of a

statute or ordinance, given its normal meaning, is so broad that

its sanctions may apply to conduct protected by the Con-

stitution. Landry v. Daley, 280 F.Supp. 938, 951 ( N.D.II1.1968 )

appeal dismissed, 393 U.S. 220, 89 S.Ct. 455, 21 L.Ed.2d 392,

rev'd 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971);

Overstock Book Co. v. Barry, 305 F.Supp. 842 (E.D.N.Y.1969),

aff'd, 436 F.2d 1289 (2nd Cir. 1970); Medrano v. Allee, 347

F.Supp. 605 (S.D.Tex.1972) affirmed in part, vacated in part,

and remanded, 416 U.S. 802, 94 S.Ct. 802, 40 L.Ed.2d 566

(1974). The doctrine embodies the constitutional principle that

governmental purpose to control or prevent activities may not

be achieved by means which sweep unnecessarily broadly and

thereby invade areas of protected freedoms. People v. Domi-

nick, Co.Ct., 326 N.Y.S.2d 466, 472 (1971). As discussed

above, this ordinance does not invade any areas protected by

the First Amendment. Also, the ordinance is not a criminal

ordinance, unlike the one considered in Bambu Sales, Inc. v.

Gibson, 474 F.Supp. 1297 (D.N.J.1979); see Annot. 92 A.L.R.

47. As further pointed out below, in the discussion of the equal

protection issues raised by the plaintiff, the village does have a

legitimate interest in controlling the growing use of illegal

drugs, and regulating the sale of drug paraphernalia is a

rational way of furthering that interest. Considering this, the

language of the ordinance is carefully designed to reach only

that activity which the village may legitimately regulate—the

sale of paraphernalia designed or marketed for use with illegal

drugs. Plainly, by no construction of the Constitution has the

plaintiff any right to sell, either in the village of Hoffman

Estates or anywhere else, any “items, effect, paraphernalia,

accessory or thing which is designed or marketed for use with

illegal cannabis or drugs .. .”. The ordinance does not regulate

any activity beyond this, and thus is not overbroad.

43a

The final issue to be resolved is whether the subject

ordinance, as claimed by plaintiff, is violative of the equal

protection clause of the Fourteenth Amendment. Plaintiff

argues that the ordinance infringes on the fundamental right of

free speech without the showing of a compelling state interest

justifying its enforcement; that on its face, the ordinance is

arbitrary and irrational in that the classification it creates has no

rational relation to a legitimate governmental purpose dela-

gated to the enacting village; and that the ordinance violates

the equal protection clause because its terms promote dis-

criminatory enforcement with attendant dangers of arbitrary

application.

Defendants agree with plaintiff that the objectives of their

ordinance must bear a rational relationship to a legitimate state

purpose; and that discriminatory enforcement of the law can

result in violation of equal protection since administrative

classifications can give rise to equal protection claims. They

point, however, to plaintiff's concession that the village, within

its jurisdiction, has an interest in preventing the use of cannabis

and other illegal drugs. They disclaim the belief that such

prevention will be accomplished merely through enforcement

of an ordinance; but they express the expectation that enforce-

ment of this ordinance will prevent convicted drug dealers and

users from selling drug paraphernalia within the village, and

thereby gaining contacts with a ready market. Defendants

argue that the marketing approach and the sale of drug

paraphernalia both encourage drug use by youths and that this

encouragement will be tempered by the ordinance through the

requirement that responsible businesses be conducted under a

reasonable license requirement. These objectives, defendants

insist, are rational interests, consistent with the health and

safety concerns of the village community. To this end, the

regulation imposed on plaintiff by the ordinance comports with

44a

the same reasonableness that justifies the licensing and regu-

lation of 80 other businesses by the Village of Hoffman Estates.

Again, the court is constrained to agree with defendants.

Legislative enactments are presumed valid unless it is shown

that the statute or ordinance in question bears no rational

relationship to a legitimate legislative purpose. Williamson v.

Lee Optical, Inc., 348 U. S. 483, 75 S. Ct. 461, 99 L. Ed. 563

(1955); United States v. Kiffer, 477 F. 2d 349 (1973), cert.

denied, 414 U. S. 831, 94S. Ct. 62, 38 L. Ed. 2d 65. Of course,

a stricter standard of review is required where the enactment

infringes upon the exercise of a fundamental right. Roe v.

Wade, 410 U. S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).

However, as decided above, the ordinance does not infringe on

any First Amendment right of the plaintiff. Furthermore, there

is no conceivable colorable claim of a fundamental con-

stitutional right to sell items which facilitate and encourage the

use of illegal drugs. Thus, the ordinance does not violate the

equal protection clause if it bears a rational relationship to a

legitimate governmental purpose.

Controlling the use of cannabis and other illegal drugs is

clearly a legitimate, even compelling, interest of the village of

Hoffman Estates. The objectives of the defendants in enacting

this ordinance, to prevent convicted drug dealers and users

from selling drug paraphernalia and gaining contacts with a

ready market, to prevent a marketing approach which encour-

ages and facilitates illegal drug use, and to require that these

items be sold by responsible businesses which are reasonably

licensed, are rationally related to the compelling interest in

controlling drug abuse, well within the proper health and safety

concerns of the village.

Ill.

For these reasons, it is this court's judgment that on its face

and in its application to the plaintiff in this case, the Flipside,

45a

Hoffman Estates, Inc., an Illinois corporation, Ordinance No.

969-1978, Municipal Code of the Village of Hoffman Estates, is

a valid and constitutional municipal enactment. Therefore,

plaintiff is not entitled to injunctive relief, damages, nor to a

declaration that the ordinance is unconstitutional. Judgment

will be entered in favor of the defendants, each of them; and

against the plaintiff. The clerk is ordered to make an appropri-

ate judgment entry in accordance with Rule 58(1), Federal

Rules of Civil Procedure.

46a

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

February 5, 1981.

Before

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. GEORGE TEMPLAR, Senior District Judge*

THE FLIPSIDE, HOFFMAN ES-

TATES, INC., an Illinois Corpo-

ration, Plaintiff-Appellant,

No. 80-1462 VS.

VILLAGE OF HOFFMAN ES-

TATES, et al., Defendants-Appellees.

ORDER

Appeal from __ the

United States Dis-

trict Court for the

Northern District of

Illinois, Eastern Di-

vision.

No. 78 C 2114

George N. Leighton,

Judge.

On consideration of the petition for rehearing filed in the

above-entitled cause by defendants-appellees, all of the judges

on the original panel having voted to deny the same,

IT IS HEREBY ORDERED that the aforesaid petition for

rehearing be, and the same is hereby, DENIED.

*Senior District Judge George Templar from the District of

Kansas is sitting by designation.

47a

NOTICE OF APPEAL TO THE UNITED STATES

SUPREME COURT FROM AN ORDER OF THE UNITED

STATES COURT OF APPEALS

for the Seventh Circuit

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

File Number 80-1462

The Flipside, Hoffman Estates, Inc.,

an Illinois corporation,

Plaintiff-Appellant,

a Notice of Appeal

Village of Hoffman Estates, et al.,

Defendants-Appellees.

Notice is hereby given that Village of Hoffman Estates, et

al, defendants above named, hereby appeal to the United

States Supreme Court from the order entered by the United

States Court of Appeals for the Seventh Circuit in this action on

the 5th day of February, 1981, and the opinion rendered by

said Court on the 12th day of January, 1981, upon the basis

that said order and opinion was contrary to the Fourteenth

Amendment of the Constitution of the United States.

RICHARD N. WILLIAMS

Richard N. Williams

1200 North Gannon Drive

Hoffman Estates, IL 60196

(312) 882-9100

Attorney for Village of Hoffman Estates

48a

ORDINANCE NO. 969-1978

AN ORDINANCE AMENDING THE MUNICIPAL CODE

OF THE VILLAGE OF HOFFMAN ESTATES BY

PROVIDING FOR REGULATION OF ITEMS DE-

SIGNED OR MARKETED FOR USE WITH ILLEGAL

CANNABIS OR DRUGS

WHEREAS, certain items designed or marketed for use

with illegal drugs are being retailed within the Village of

Hoffman Estates, Cook County, Illinois, and

WHEREAS, it is recognized that such items are legal retail

items and that their sale cannot be banned, and

WHEREAS, there is evidence that these items are de-

signed or marketed for use with illegal cannabis or drugs and it

is in the best interests of the health, safety and welfare of the

citizens of the Village of Hoffman Estates to regulate within the

Village the sale of items designed or marketed for use with

illegal cannabis or drugs.

NOW THEREFORE, BE IT ORDAINED by the Presi-

dent and Board of Trustees of the Village of Hoffman Estates,

Cook County, Illinois as follows:

Section 1; That the Hoffman Estates Municipal Code be

amended by adding thereto an additional section, Section 8-7-

16, which additional section shall read as follows:

Sec. 8-7-16— ITEMS DESIGNED OR MARKETED

FOR USE WITH ILLEGAL CANNABIS

OR DRUGS

A. License Required:

It shall be unlawful for any person or persons as

principal, clerk, agent or servant to sell any items,

effect, paraphernalia, accessory or thing which is

ing a license therefor. Such licenses shall be in

addition to any or all other licenses held by applicant.

49a

B. Application:

Application to sell any item, effect, paraphernalia,

accessory or thing which is designed or marketed for

use with illegal cannabis or drugs shall, in addition to

requirements of Article 8-1, be accompanied by affi-

davits by applicant and each and every employee

authorized to sell such items that such person has

never been convicted of a drug-related offense.

C. Minors:

It shall be unlawful to sell or give items as described in

Section 8-7-16A in any form to any male or female

child under eighteen years of age.

D. Records:

Every licensee must keep a record of every item,

effect, paraphernalia, accessory or thing which is

designed or marketed for use with illegal cannabis or

drugs which is sold and this record shall be open to

the inspection of any police officer at any time during

the hours of business. Such record shall contain the

name and address of the purchaser, the name and

quantity of the product, the date and time of the sale,

and the licensee or agent of the licensee’s signature,

such records shall be retained for not less than two

(2) years.

E. Regulations:

The applicant shall con:ply with all applicable regu-

lations of the Department of Health Services and the

Police Department.

Section 2: That the Hoffman Estates Municipal Code be

amended by adding to Sec. 8-2-1 Fees: Merchants ( Products)

the additional language as follows:

Items designed or marketed for

use with illegal cannabis or

drugs $150.00

50a

Section 3: Penalty. Any person violating any provision of

this ordinance shall be fined not less than ten dollars ($10.00)

nor more than five hundred dollars ($500.00) for the first

offense and succeeding offenses during the same calendar year,

and each day that such violation shall continue shall be deemed

a separate and distinct offense.

Section 4: That the Village Clerk be and is hereby

authorized to publish this ordinance in pamphlet form.

Section 5: That this ordinance shall be in full force and

effect May |, 1978, after its passage, approval and publication

according to law.

PASSED this 20th day of February, 1978

APPROVED this 20th day of February, 1978.

VOTE: AYES 3 NAYS 3 ABSENT 0

President Hayter voted aye.

APPROVED:

)), Mager

Village President Y

ATTEST:

: 2 Geck

oy)

Deputy Village Clerk

S5la

RECENT DRUG PARAPHERNALIA CASES

Four recent decisions have upheld the Model Act in its

entirety. Mid-Atlantic Accessories Trade Assoc. v. Maryland,

500 F. Supp. 834 (D. Md.—1980); Florida Businessmen for

Free Enterprise v. City of Hollywood, No. 80-6157-Civ-NCR

(S. D. Fla. Aug. 29, 1980); Delaware Accessories Trade Assoc.

v. Gebelein, No. 80-285 (D. Del. Aug. 15, 1980); and World

Imports, Inc. v. Woodbridge Township, No. 80-1414 (D. N. J.

June 8, 1980). One other decision has also found the Model

Act to be constitutional. The Casbah, Inc. v. Thone, No. 80-

0271 (D. Neb. Sept. 26, 1980). Very recently, the Louisiana

statute, which is derived in substantial part from the Model Act,

was found to be constitutional. Tobacco Accessories v. Treen,

Civil No. 80-3372 (E. D. La. Oct. 28, 1980). Thus, there are

six recent Federal District Court decisions which have upheld

the constitutionality of the Model Act in its entirety or in

substantial part.

In addition, there are many reported decisions upholding

drug paraphernalia statutes which were not based on the Model

Act. These include Record Head Inc. v. Olson, supra; Florida

Businessmen for Free Enterprise v. State of Florida, No. TCA

80-0954 (N. D. Fla. Sept. 30, 1980); Levas v. Village of

Antioch, No. 80-C-1574 (N. D. Ill. Apr. 22, 1980); Magnani v.

City of Ames, No. 80-229A (S. D. lowa—1980); Cardarella v.

City of Overland Park, No. 86246 (Johnson County, Kans.,

Dist. Ct. Dec. 3, 1979), and Tobacco Road v. City of Novi, No.

79-71000 (E. D. Mich. June 21, 1979).

Other decisions have held state statutes not based on the

Model Act to be unconstitutional in whole or in part. These

include Geiger v. City of Eagen, 618 F. 2d 26 (8th Cir. 1980);

High Ol’ Times, Inc. v. Busbee, 621 F. 2d 135 (5th Cir. 1980);

Knoedler v. Roxbury Township, 485 F. Supp. 990 (D. N. J.

1980); Record Museum v. Lawrence Township, 481 F. Supp.

52a

768 (D. N. J. 1979); Bambu Sales, Inc. v. Gibson, 474 F. Supp.

1297 (D. N. J. 1979); Record Head Corp. v. Sachen, No. 80-C-

639 (E. D. Wisc. Sept. 30, 1980); Smith v. Roark, No. 80-2110

(S. D. W. Va., May 13, 1980); Hejira Corp. v. Mac Farlane,

No. 80-F-824 (D. Colo. Sept. 5, 1980) ; Florida Businessmen

Sor Free Enterprise v. Pinellas County, No. 80-482 (M. D. Fila.

May 15, 1980); Music Stop, Inc. v. City of Ferndale, 488 F.

Supp. 390 (E. D. Mich, 1980); and Jndiana Chapter, NORML,

Inc. v. Sendak, No. TH 75-142-C (S. D. Ind. Feb. 4, 1980).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.