Appellants Brief — Hoffman Estates v. Flipside, Hoffman Estates, Inc.

Office -Supreme Gourt, U.S.

No. 80-1681 FILED

JUL 17 1981

IN THE ron

Hupreme Court of the Anited States

Octoser Term, 1980

VILLAGE OF HOFFMAN ESTATES,

ILLINOIS, et al.

Appellants,

vs.

THE FLIPSIDE, HOFFMAN ESTATES,

INC., an Illinois Corporation

Appellees.

ON APPEAL FROM THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE APPELLANTS

RICHARD N. WILLIAMS

Village Attorney

1200 North Gannon Drive

Hoffman Estates, IL 60196

July, 1981 (312) 882-9100

APPEAL DOCKETED APRIL 3, 1981

PROBABLE JURISDICTION NOTED JUNE 1, 1981

Pandick Press Midwest, Inc., Chicago © (312) 454-7600

i

QUESTION PRESENTED

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 drugs”. The question presented is whether

such phrase is so vague as to render the ordinance uncon-

stitutional.

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 N. 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

PC PURDDNNE BOMBING is scsisccncsssvrtsnsecccborsesoseesobedessbesnoovensenceses

Parties to the Proceeding Below... af

Table of Authorities

The Opinions Below .....................sse0se000 : 3

Ground on Which Jurisdiction is Invoked ....................006.

MINI ancdicdidilsissnh ina tiSbivainlinatbcccsouisdéesscoasbesbabodosuadelibectsocess

Summary of Argument.....................+.

Argument:

I. The Hoffman Estates Drug Paraphernalia Ordi-

nance that licenses items which are “designed or

marketed for use with illegal cannabis or drugs”

is a valid and constitutional enactment.................

A. The Ordinance provides sufficient warning to

avoid that which is forbidden.......................

1. Standard of Review of “sufficient warn-

ing Wasuecileadlinveciantntiietecdioebsie.

2. “Sufficient warning” is provided by

words “designed for use” and “mar-

keted for use” ;

3. The phrases “designed for use” and

“marketed for use” connote the re-

Quisite scienter required

B. The Ordinance provides adequate guidelines

to prevent arbitrary and discriminatory

enforcement................0.+.

Conclusion

14

21

23

26

TABLE OF AUTHORITIES

Cases

PAGE

Grayned v. City of Rockford, 408 U. S. 104, 92

Bie: Sods TRIE © CUTER Daccelibentecsncunsesccceseccnvyeescoasobbinetants 9,23

Smith v. Goguen, 415 U. S. 566, 94 S. Ct. 1242

(1974) Le ideas eieeniaasatalebeaaboes ecciaces 9, 23

A. B. Small Co. v. American Sugar Refining Co.,

267 U.S. 233, 45S. Ct. 295 (1925) ...cccccccceceeeee 10

Jordan v. DeGeorge, 341 U.S. 223, 71 S. Ct. 703

ee cinctnpiabcladhencodshalinebranshiesccesesnsecécseccanccbonianites 10

Giaccio v. State of Pennsylvania, 382 U. S. 399, 86

aE Se REET BPO Diisccladipibadstskcecccecscesoccpeneqniontbionaiions 11,23

Barenblatt v. United States, 360 U. S. 109, 79

Bae Cts EEE BOP Betpink dissaeiiilaveceesscnesencinvesicusenstans ll

United States v. National Dairy Products Corp.,

372 U.S. 29, 83 S. Ct. 594 (1963).............. 12

Hynes v. Mayor and Council of Borough of Oradell,

425 U.S. 610, 96S. Ct. 1755 (1976)... eee 12

Winters v. New York, 333 U.S. 507, 68 S. Ct. 665

Spf CORNER 0 AEE ToC RC 12

United States v. Powell, 423 U.S. 87, 96 S. Ct. 316

(1975) 12

United States v. Mazurie, 419 U. S. 544, 95 S. Ct.

pi Np 7b) atte COTRGRPRE ARS Neer 12

McGowan v. Maryland, 366 U. S. 420, 81 S. Ct.

1101 (1961) 12, 13

Hygrade Provision Co. v. Sherman, 266 VU. S. 497,

45S. Ct. 141 (1925) 13

Connally v. General Construction Co., 269 U. S.

Fae ts AO (BIRO DP visdsensskccivonsnrsosioscorsecssotnate 13

Moore Ice Cream Co. v. Rose, 289 U. S. 373, 53

S. Ct. 620 (1933) 14

Aptheker v. Sec. of State, 278 U. S. 500, 84 S. Ct.

1659 (1964) 14

Robinson v. United States, 324 U.S. 282, 65 S. Ct.

666 (1945) 14

iv

Boyce Motor Lines v. United States, 342 U. S. 337,

Fe ET liar dsceinssiecesacevevinecccccctsscesesibee

Papachristou v. City of Jacksonville, 405 U.S. 156

Os We BESET GES Sac a

Record Revolution No. 6, Inc. v. City of Parma, 638

F. 2d 916 (6th Cir.— 1980) .........ccccccccesecseeseeseeeees

Hejira Corp. d/b/a Budget Records & Tapes, Inc.

v. J. D. McFarlane, No. 80-2062, May 5, 1981,

ee F. 2d. (10th Cir. — 1981 )..........ccccccesee

The Casbah, Inc. v. Thone, 80-2033, June 8, 1981,

scene We BD Renin, ( GENS COP. ISBT) ..ncccorcveseriveiscere

New England Accessories Trade Association, Inc. v.

Browne, 502 F. Supp. 1245 (D. Conn.— 1980) ...

Mid-Atlantic Accessories Trade Association v.

Maryland, 500 F. Supp. 834 (D. Md.—1980).....

Delaware Accessories Trade Association v. Gebe-

lein, 497 F. Supp. 289 (D. Del. —1980)...............

Brache v. County of Westchester, 507 F. Supp. 566

SRNL EMG Os: em EID ED saseictarcttecsesusanbeseducsaemsasecseaacten

Screws v. United States, 325 U.S. 91, 65 S. Ct.

I SN ithe eth inn csncstwnccascacepsinseecovncevecs<

Backun vy. United States, 112 F. 2d 635 (4th

Rea rOW EPID TT is chsndeitadsatethistbbaseccepudsndeseouessiosabeseciacesee

World Imports v. Woodbridge Township, 493

F. Supp. 428 (D. N. J.— 1980)... ee ceeetceeeeeeeee

Israel v. United States, 63 F. 2d 345 (3rd

A ae

Record Museum v. Lawrence Township, 481

F. Supp. 768 (D. N. J.—1979)....ccccccceceeceeeeeeees

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

(1969)

County Court of Ulster County v. Allen, 442 U. S.

140, 99S. Ct. 2213 (1979)

Barnes v. United States, 412 U. S. 837, 93 S. Ct.

BRUNT CEP PON itachi icetiinseredneparteieecsescscesvstanemeseuansors

United States v. Petrillo, 332 vu. S. 1, 67S. Ct. 1538

(1947)

PAGE

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15, 18, 21,

22

15

15, 16, 22

16

16, 18, 24

16, 22

16

16

17

18, 20, 25

19

19

20, 21, 23

20

21

25

IN THE

Supreme Court of the United States

OctToser Term, 1980

VILLAGE OF HOFFMAN ESTATES,

ILLINOIS, et al.

Appellants,

vs.

THE FLIPSIDE, HOFFMAN ESTATES,

INC., an Illinois Corporation

Appellees.

ON APPEAL FROM THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE APPELLANTS

THE OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Seventh Circuit is officially reported at 639 F. 2d 373 (1981)

and further appears in the Appendix to the Jurisdictional

Statement at page 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 to the Jurisdic-

tional Statement at page 28a.

2

GROUNDS ON WHICH JURISDICTION IS INVOKED

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

of Hoffman Estates, Illinois, a home rule municipality, 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 U.S. C. 1331, 2201, 2202 and 28 U.S. C. 1343

and 42 U. S. C. 1983; it challenged the constitutionality of the

ordinance and sought damages and declaratory and injunctive

relief against enforcement of the Village of Hoffman Estates

Ordinance. 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 on April 4, 1980.

An appeal was taken by Plaintiff to the United States Court

of Appeals for the Seventh Circuit by filing Notice of Appeal on

April 7, 1980. 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. A notice of appeal to this Court was filed on March

19, 1981, in the Court of Appeals for the Seventh Circuit.

The Jurisdictional Statement was filed with this Court on

April 3, 1981 requesting review pursuant to 28 U. S. C. Sec.

1254(2). This Court noted probable jurisdiction on June 1,

1981.

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

3

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 to the Jurisdictional Statement at 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 licenses the business

selling such items and forbids the sale to minors and does not

criminalize the use or possession of such items.

The ordinance provides that persons engaged in the busi-

ness of retailing any “item, effect, paraphernalia, accessory or

thing which is designed or marketed for use with illegal

cannabis or drugs” must obtain a license in order to do so. An

applicant must pay a $150 fee and also provide affidavits

establishing that every employee authorized to sell such items

has never been convicted of a drug related offense. The

ordinance requires a licensee to maintain records containing the

name and address of every purchaser, the time and date of

purchase, and the signature of the selling licensee or his agent.

The register must be kept available for police inspection during

business hours for two years following the respective dates of

purchase. The ordinance bans the transfer of items so deemed

to persons under eighteen years of age. A violation of the

ordinance is punishable by a fine of not less than $10 or more

than $500.

4

The Village also issued preliminary guidelines defining the

terms of the ordinance which were intended to be read in

conjunction with it (JA 68). The guidelines provide that

cigarette rolling papers that are of “colorful design” (as

opposed to white cigarette rolling papers), cigarette rolling

papers with trade names “oriented for use with illegal cannabis

or drugs”, and all “roach clips” are per se within the purview of

the ordinance. Pipes and “paraphernalia” fall within the

coverage of the ordinance when they are displayed in “proxi-

mity” to “literature encouraging illegal use of cannabis or

illegal drugs” or “roach clips” (Juris. St. 33a).

Flipside is an Illinois corporation that owns and operates a

business known as Flipside Records in the Village of Hoffman

Estates. Since opening in 1976, Flipside Records has sold

phonograph records, recording tape, clothing, jewelry, novelty

devices, as well as a variety of literature, but does not acknowl-

edge it sells drug related paraphernalia (JA 40).

Flipside initiated proceedings in the United States District

Court for the Northern District of Illinois, Eastern Division, on

May 30, 1978, seeking a declaratory judgment that the ordi-

nance violated the First, Fourth, Fifth, Eighth and Fourteenth

Amendments, Article I, § 8, Clause 3 and Article I, § 10 of the

United States Constitution pursuant to 42 U. S. C., § 1983 and

28 U.S. C. §§ 2201 and 2202; and further seeking temporary,

preliminary and permanent injunctive relief and damages

pursuant to 42 U. S. C., § 1983 for the actions of the Village

and its agents, under color of law, which caused Flipside to be

deprived of rights secured to it by the United States Con-

stitution.

On May 30, 1978, the Honorable George N. Leighton

denied Flipside’s emergency motion for a temporary restraining

order; and on September 1, 1978 denied Flipside’s motion for

preliminary injunction.

5

The trial for permanent injunction and declaratory judg-

ment was held on March 23, 1979. The evidence and stipulated

testimony established that no expert reports or statistics had

been submitted to either the Committee on Health, Safety and

Welfare or the Board of Trustees prior to passage of the

ordinance (JA 55). A Hoffman Estates police officer testified to

facts indicating in his experience, items of the type sold by

Flipside were generally found in police related experiences to

be used with illegal drugs (JA 51-52). Neither the Village

Attorney, who drafted the ordinance and guidelines, nor the

Village President, who cast the tie-breaking vote enacting the

ordinance, could specifically state which of the myriad exhibits

in evidence at trial were covered by the ordinance, and both

admitted they would have to rely on police opinion to inform

them which objects were presumed to be “designed or market-

ed for use with illegal cannabis or drugs” if presented the items

(JA 67 & 84). The intended impact of the ordinance was

shown instead to be a merchant’s “manner of marketing”.

Under the ordinance and guidelines the proximity of literature

deemed to encourage the “illegal use of cannabis or illegal

drugs” to items not otherwise covered activates the requirement

of a license, the register and other attendant penalties.

The Village Administrative Procedures Act (Juris. St. 24a)

had not been implemented as no establishment had applied for

a license (JA 68).

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 (Juris. St.

38a). It found that the terms were sufficiently clear to give a

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

6

On February 15, 1980, the trial court entered a Memo-

randum Order awarding judgment to the Village (JA 88).

After a Petition for Rehearing (JA 89) and Petition to Recon-

sider (JA 96), a timely notice of appeal was filed (JA 110) and

after full briefing and oral argument, the United States Court of

Appeals for the Seventh Circuit, on January 12, 1981, reversed

the judgment of the District Court.

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” (Juris. St.

26a). The court recognized that “in the field of regulatory

statutes governing business activities ... greater leeway is

allowed” but stated that said standard “does not fit in this case”

(Juris. St. 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 ) (Juris. St. 18a).

The Village’s petition for rehearing was denied on Febru-

ary 12, 1981 (Juris. St. 46a). The Village’s Jurisdictional

Statement was filed in this Honorable Court on April 3, 1981

and docketed as Case No. 80-1681.

SUMMARY OF ARGUMENT

It has not been in controversy that the subject Ordinance

must pass the two-pronged vagueness test set out by Grayned v.

City of Rockford, 408 U. S. 104. That test ~equires that laws

give a person of ordinary intelligence a reasonable opportunity

to know what is prohibited and must provide explicit standards

to those who must enforce the laws. A lesser standard of

scrutiny, however, applies to a law that does not proscribe

criminal activity or regulate First Amendment conduct. Since

7

the subject Ordinance only regulates the conduct of retailers, it

is therefore recognized that the vagueness test of this licensing

Ordinance would apply to a retailer with commercial! knowl-

edge of the subject matter as stated in McGowan v. Maryland,

336 U. S. 420.

The words of the Ordinance, “designed for use” with

illegal drugs referring to items regulated have been interpreted

to connote an intentional act in drug paraphernalia cases in the

U. S. Courts of Appeal and District Courts and such inter-

pretation should be made here as an intent standard ought to

be read into the law where possible to save its constitutionality,

Screws v. United States, 325 U.S. 91.

The words of the Ordinance “marketed for use” with

illegal drugs eliminate the need to determine item by item

which generally innocent items must be regulated. Such items

need only be regulated when the retailer determines to retail

them in a peculiar arrangement or amongst other apparently

innocent items whose only common denominator would be use

with controlled substances. Judicial notice of such drug para-

phernalia marketing techniques has been taken by the lower

Federal Courts and should specifically be taken here. The

manner of marketing, the fact proved, creates a Leary v. United

States, 395 U. S. 6, presumption that there is a “rational

connection” that such items will be used with illegal drugs as

the evidence in this case shows this is “more likely than not” to

occur. This proof would require a showing of scienter by the

retailer who chooses to market in such a manner.

The second prong of Grayned calls for standards of

enforcement. Although the Village has an Administrative

Procedures Act for such purposes, since no retailer had applied

for a license at the time of the complaint, no hearings had been

held but guidelines for enforcement had been issued by the

Village prior to the effective date of the law. Such guidelines

were not unlike those of the Drug Enforcement Agency's Model

Act which was drafted some eighteen months after the Village’s

Ordinance. Such guidelines of the Model Act, a law that

creates criminal penalties for mere possession of drug para-

phernalia have been upheld by the Eighth Circuit, Tenth

Circuit (rejected by the Sixth Circuit) and numerous Federal

Courts. Under the standard of lesser scrutiny, the Village's

guidelines in conjunction with the Ordinance and the Adminis-

trative Procedures Act availability provide fair standards to

retailers in the community.

9

ARGUMENT

L

The Hoffman Estates Drug Paraphernalia Ordinance That

Licenses Items Which Are “Designed or Marketed for Use

with llega! Cannabis or Drugs” Is a Valid and Con-

stitutional Enactment.

Hoffman Estates is an Illinois home rule community of

38,000. This ordinance was drafted in February, 1978 before

any published opinions on drug paraphernalia had been issued.

At the broad direction of the Village Board, the Village

Attorney wrote it as a licensing ordinance to avoid the stricter

scrutiny of a criminal prohibition and to minimize the intrusion

of the necessary regulation to cope with a most serious problem

(JA 55).

In the history of this litigation, it was recognized by

Appellant, Village of Hoffman Estates (“Village”) and Ap-

pellee, Flipside, Inc. (“Flipside”) as well as the United States

District Court and Seventh Circuit Court of Appeals that the

Grayned v. City of Rockford, 408 U. S. 104, 92 S. Ct. 2294

(1972) standard applied to the issue of vagueness.

This standard has also been deemed settled by this Court

when it cited Grayned and predecessor cases in Smith v.

Goguen, 415 U. S. 566, 94 S. Ct. 1242 (1974) and said in

regard to the due process doctrine of vagueness:

“The settled principles of that doctrine require no extensive

restatement here. The doctrine incorporates notions of fair

notice or warning. Moreover, it requires legislatures to set

reasonably clear guidelines for law enforcement officials

and triers of fact in order to prevent “arbitrary and

discriminatory enforcement.”

The Grayned standard upon which the Seventh Circuit

issued their opinion and upon which this argument is framed is

as stated by this Court at 408 U.S. 104, 108-09, 92 S. Ct. 2294,

2298-99 as follows:

10

“It is a basic principle of due process that an enactment is

void for vagueness if its prohibitions are not clearly

defined. Vague laws offend several important values.

First, because we assume that man is free to steer between

lawful and unlawful conduct, we insist that laws give the

person of ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act accordingly.

Vague laws may trap the innocent by not providing fair

warning. Second, if arbitrary and discriminatory enforce-

ment is to be prevented, laws must provide explicit stan-

dards for those who apply them. A vague law impermis-

sibly delegates basic policy matters to policemen, judges,

and juries for resolution on an ad hoc and subjective basis,

with the attendant dangers of arbitrary and discriminatory

application.”

A. The Ordinance provides sufficient warning to avoid that

which is forbidden.

1. Standard of Review of “sufficient warning”.

Significant issues in reviewing the standard of “sufficient

warning” are: 1) how stringent a requirement is required, and

2) to whom is the “sufficient warning” directed.

The ordinance herein is a licensing ordinance upon the

retailer and civil in nature. It is recognized that the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution applies to both civil and criminal matters.

This Court, in A. B. Small Co. v. American Sugar Refining

Co., 267 J. S. 233, 45 S. Ct. 295 (1925) found that whether

portions of the Lever Act were civil or criminal, they were

subject to the exaction of obedience to a vague or indefinite

rule. Further, this Court said in relation to a civil provision of

the Immigration Act in Jordan v. DeGeorge, 341 U. S. 223, 230-

31, 71 S. Ct. 703, 707 (1951):

“This Court has repeatedly stated that criminal statutes

which fail to give due notice that an act has been made

criminal before it is done are unconstitutional deprivations

of due process of law. .. . Despite the fact that this is not a

criminal statute, we shall nevertheless examine the appli-

cation of the vagueness doctrine of this case. We do this in

view of the grave nature of deportation.”

This language would seem to imply that if the regulation

was not “grave”, the Court would not examine the statute. This

implication is remedied by the clear language in Giaccio v.

State of Pennsylvania, 382 U. S. 399, 86 S. Ct. 518 (1966)

wherein a civil statute that assessed court costs with a total lack

of standards was examined. The Court said*at 382 U. S. 399,

402, 86 S. Ct. 518, 520:

“Both liberty and property are specifically protected by the

Fourteenth Amendment against any state deprivation

which does not meet the standards of due process, and this

protection is not to be avoided by the simple label a State

chooses to fasten upon its conduct or its statute. So here

this state Act whether labeled ‘penal’ or not must meet the

challenge that it is unconstitutionally vague.”

That the Due Process Clause applies to civil regulation

appears settled, but as stated above, how stringent a require-

ment is required or what due process is due is an important

issue. An answer was supplied in Barenbiatt v. United States,

360 U. S. 109, 137, 79 S. Ct. 1081, 1098 (1959) wherein it was

stated:

“It goes without saying that a law to be valid must be clear

enough to make its commands understandable. For

obvious reasons, the standard of certainty required in

criminal statutes is more exacting than in noncriminal

statutes. This is simply because it would be unthinkable to

convict a man for violating a law he could not understand.

This Court has recognized that the stricter standard is as

much required in criminal contempt cases as in all other

criminal cases, and has emphasized that the “vice of

vagueness” is especially pernicious where legislative power

over an area involving speech, press, petition and assembly

is involved.”

12

The United States District Court in the instant case found

that the Village’s ordinance was not overbroad and did not

regulate areas protected by the First Amendment and that it

was not a criminal ordinance ( Juris. St. 42a) and, therefore, the

more stringent requirements were not applied. The Seventh

Circuit Court of Appeals did not reach the overbreadth issue

since it found the ordinance unconstitutional on vagueness

grounds.

Further, less stringent requirements have been applied in

vagueness cases dealing with economic regulation. E.g. United

States v. National Dairy Products Corp., 372 U.S. 29, 83 S. Ct.

594 (1963), dealing with the Robinson-Patman Act; and see

Smith v. Goguen, 415 U.S. 566, 94S. Ct. 1242 (1974), footnote

10. Also supportive to the less stringent test by negative

implication are cases calling for a greater degree of precision

when a statute defines criminal offenses or impinges on activi-

ties protected by the First Amendment, Hynes v. Mayor and

Council of Borough of Oradell, 425 U. S. 610, 620, 96 S. Ct.

1755, 1760 (1976); Winters v. New York, 333 U. S. 507, 515, 68

S. Ct. 665, 670 (1948).

As to whom the “sufficient warning” is directed, it is settled

that, absent an intrusion upon fundamental constitutional liber-

ties, vagueness challenges to statutes must be examined strictly

on the basis of the statute’s application to the particular facts at

hand. United States v. Powell, 423 U. S. 87, 96 S. Ct. 316

(1975); United States v. Mazurie, 419 U.S. 544, 95 S. Ct. 710

(1975).

The facts at hand are that a retailer of certain items

questions whether an ordinance provides a sufficient warning.

The law here does not apply to a manufacturer or a consumer

but only a retailer. It is at this point that the language of

McGowan v. Maryland, 366 U. S. 420, 81 S. Ct. 1101 (1961)

must be taken into consideration. The Court said at 366 U. S.

420, 428-429, 81 S..Ct. 1101, 1106: °

13

“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 .. .”

It is argued that the McGowan case is controlling, and the

law is good law and has not changed since the opinion was

written by Chief Justice Warren in 1961.

Therefore, in the Village’s case herein, persons in the

industry which is to be regulated will know what items are

designed for marijuana use and what items are designed for

regular tobacco, either through their own expertise or by

making reasonable investigations.

Under the McGowan theory, and the less stringent exam-

ination of a licensing ordinance, the ordinance does provide

sufficient notice to the retailer of the mischief intended to be

remedied.

It is settled that the law must be clear to the “average

man” or to “men of common intelligence”, and that the rule

should be more properly qualified to require fair warning to

those potentially subject to it. For example, if a penal statute is

addressed to those in a particular trade or business, the terms

used in the statute should be sufficiently defined to enable one

in that trade or business to apply it correctly. This Court first

recognized this application of the rule in Hygrade Provision Co.

v. Sherman, 266 U. S. 497, 45 S. Ct. 141 (1925), where the

court upheld the constitutionality of a law prohibiting the sale

of falsely labeled kosher meats. In the next term, they

generalized the rule in Connally v. General Construction Co.,

269 U. S. 385, 391, 46 S. Ct. 126, 127 (1926) and stated in

relation to a minimum wage statute directed at employers:

“... it will be enough for present purposes to say generally

that the decisions of the court, upholding statutes as

sufficiently certain, rested upon the conclusion that they

14

employed words or phrases having a technical or other

special meaning, well enough known to enable those

within their reach to correctly apply them .. .”

It seems superfluous to state, but nonetheless necessary,

that the Court in applying a “sufficient warning” standard that

is less stringent must as well be mindful of the duty to seek an

interpretation which supports constitutionality of legislation,

Moore Ice Cream Co. v. Rose, 289 U. S. 373, 53 S. Ct. 620

(1933) (Justice Cardozo); see also Aptheker v. Sec. of State,

278 U. S. 500, 84S. Ct. 1659 (1964).

2. “Sufficient warning” is provided by words “designed for

use” and ‘ marketed for use”.

Many statutes are inherently vague, since “in most English

words and phrases there lurk uncertainties”. Robinson v.

United States, 324 U. S. 282, 286, 65 S. Ct. 666, 668 (1945). In

Boyce Motor Lines v. United States, 342 U. S. 337, 340, 72

S. Ct. 329, 330, 331 (1952), this Court observed that:

“Few words possess the precision of mathematical sym-

bols, most statutes must deal with untold and unforeseen

variations in factual situations, and the practical necessities

of discharging the business of government inevitably limit

the specificity with which legislators can spell out prohibi-

tions. Consequently, no more than a reasonable degree of

certainty can be demanded. Nor is it unfair to require that

one who deliberately goes perilously close to an area of

proscribed conduct shall take the risk that he may cross the

line.”

The Court below recognized the less stringent standard but

found the ordinance still failed. They said at Jurisdictional

Statement 20a:

“Despite the fact that ‘in the field of regulatory statutes

governing business activities where the acts limited are in a

narrow category, greater leeway is allowed,’ Papachristou

v. City of Jacksonville, 405 U. S. 156, 162 (1972), this

ordinance fails to satisfy the principles behind the vague-

ness doctrine.”

15

In the present case, this Court should find that the ordi-

nance meets constitutional muster if a person of common

intelligence engaged in the business of selling the type of

merchandise regulated by the ordinance could examine the

ordinance and not be confused by its requirements. The trial

Judge in this case found that Flipside, by its conduct, indicated

its understanding of the ordinance by removing 72 items from

its shelves that were entered as Exhibits ( Juris. St. 39a).

The words “designed for use” are not new words in

statutes, e.g. 18 U. S. C. 1706, but those words in the drug

paraphernalia usage context have been interpreted by three

Circuits of the United States Courts of Appeal in the past year

with differing conclusions. The three cases are: Record Revolu-

tion No. 6, Inc. v. City of Parma, 638 F. 2d 916 (6th

Cir.— 1980), vacated and remanded, 49 U.S. L. W. 3882 (May

26, 1981); Hejira Corp. d/b/a Budget Records & Tapes, Inc. v.

J. D. McFarlane, No. 80-2062, May 5, 1981, _.. F. 2d —___

(10th Cir.— 1981); The Casbah, Inc. v. Thone, 80-2033, June 8,

1981, __. F. 2d — _._ (8th Cir.— 1981).

The three cases were based upon what is known as the

Drug Enforcement Agency Model Act, a model prepared

eighteen months after the Village’s passage of its ordinance

purportedly to assist states and municipalities in combatting the

glamourization of drug use (see: Corwin, Anti-Drug Para-

phernalia Laws: Void for Vagueness? 61 Boston University Law

Review 453 (1981) for discussion of the industry and the DEA

Model Act). The Parma Court invalidated the term “designed

for use” by finding no intent or scienter element is incorporated

in the language, 638 F. 2d 916, 930. The Hejira Court found

that “designed” had a clear meaning indicating the item was

predetermined for a particular use, Slip Opinion 80-2062 at p.

11. They specifically upheld the term and distinguished the

language from Parma in that the Colorado statute was written

in the conjunctive and required that the item be “designed and

intended” and, therefore, the term “designed” was no longer

16

vague even as it applied to possessor or seller, Slip Opinion 80-

2062 at p. 23. The Casbah Court rejected the reasoning of the

Parma Court finding the term “designed for use” not vague

over Casbah’s claim that it, not being responsible for the

design, cannot be liable under a theory of transferred intent.

The Court said: “We cannot agree that the term ‘designed’

refers to the structure of an object.” Slip Opinion 80-2033, p.

14. They found that the comments to the Model Act expressly

stated that the items are innocent until coupled with the

intentional act of design. In accord with this view are four

United States District Court opinions: New England Accessories

Trade Association, Inc. v. Browne, 502 F. Supp. 1245 at 1251

(D. Conn.— 1980); Mid-Atlantic Accessories Trade Association

v. Maryland, 500 F. Supp. 834 at 844-45 (D. Md.—1980);

Delaware Accessories Trade Association v. Gebelein, 497 F.

Supp. 289 at 291-92 (D. Del.—1980); Brache v. County of

Westchester, 507 F. Supp. 566 at 577 (S. D. NY—1981).

Specifically, Judge Harvey said in the Maryland case,

“ ‘Design’ connotes an intentional act as well as an objective set

of characteristics. When considered in the context of this

statute, it is clear that it is the subjective, intentional sense in

which ‘designed’ is used.” 500 F. Supp. 834 at 844.

The Court below made no attempt whatsoever to apply

such reasoning to the words “designed for use” even though the

Maryland case was submitted prior to its opinion. They did not

discuss or distinguish the Screws requirement that the presence

of a specific intent standard saves what otherwise might be a

vague statute and that such a standard ought to be read into a

law where possible to preserve its constitutionality. Screws v.

United States, 325 U.S. 91, 65 S. Ct. 1031 (1945). The Court

below found that items “designed for use with drugs” could

only apply to the manufacturer (Juris. St. 17a) and makes no

further discussion of transferred intent or the type of logic used

by the District Courts cited above.

Sellers cannot ostrich-like ignore the consequences of their

intent and make illogical denials of what persons of common _

17

intelligence know. The owner of Flipside, Lawrence Rosen-

baum, testified he sold rolling papers, pipes, jewelry (JA 42-44)

but because of the ordinance, the store may “cease to exist”

without that profit (JA 45) implying from his view, that these

items at his record store are mere tobacco accessories and the

tobacco accessory business must be good. He refused to

acknowledge he was selling drug related paraphernalia (JA

46). This is not unlike the analogy made over 40 years ago in

the Fourth Circuit:

“To say that the sale of goods is a normally lawful

transaction is beside the point. ... One who sells a gun to

another knowing that he is buying it to commit a murder,

would hardly escape conviction as an accessory to the

murder by showing that he received full price for the gun;

and no difference in principle can be drawn between such a

case and any other case of a seller who knows that the

purchaser intends to use the goods which he is purchasing

in the commission of a felony. In any such case, not only

does the act of the seller assist in the commission of the

felony, but his will assents to its commission, since he could

refuse to give the assistance by refusing to make the sale.”

Backun v. United States, 112 F. 2d 635 at 637 (4th

Cir.-—— 1940).

It is urged the Court specifically consider the Village’s

phrase “designed for use” in conjunction with the Courts of

Appeal and District Court rulings as the finding here will be

significant in relation to the many Model Act state statutes that

employ this language.

The second phrase questioned by the Court below was

“marketed for use” with illegal drugs. It was recognized by the

District Court and stated in Flipside’s Motion to Affirm filed

with the Court that “the intended impact of the ordinance was

shown instead to be a merchant’s ‘manner of marketing’

(Motion to Affirm, p. 5). The guidelines for enforcement

clearly indicate that the manner of marketing would be scruti-

nized (JA 14). Because the ordinance is a licensing law aimed

at retailers only and not a law creating criminal penalties to

possessors, manufacturers or retailers, Flipside’s offer of evi-

dence at trial and argument ( Motion to Affirm, p. 12, f. n. 2)

that identical merchandise sold in different stores will be

unscathed in one and condemned in another is irrelevant. The

second “Whereas” of the subject ordinance recognizes that the

“items” are legal retail items (JA 10). This offer of evidence

and argument is made consistently in Model Act cases and has

relevancy there since the Model Act makes it a crime to possess

such items. Examples of this are: Record Revolution No. 6 v.

City of Parma, 638 F. 2d at 931, “Detective Rutt would arrest a

retailer operating a ‘head shop’ if it sold alligator clips or

cigarette papers, but not a drug store owner selling the same

items.”; Mid-Atlantic Accessories Trade Association v. State of

Maryland, 500 F. Supp. at 846-349:

“Unquestionably, there are items which are drug para-

phernalia but which likewise may have innocent uses. But

the innocent uses are not so related that the same array of

items could reasonably be expected to be found in the

same store unless the intention was that they be used as

drug paraphernalia. For instance, an alligator clip, scales

and a pipe might logically be sold together in one store

catering to the drug trade, but would hardly all be sold

together in a store catering to customers who might want to

use these items innocently. ... As a part of their case,

plaintiffs presented the testimony of one Robert De Grazia,

an ex-police chief, who purported, as an expert, to support

the proposition that police could not be trained to enforce

SB 63 evenhandedly.”;

See also, World Imports v. Woodbridge Township, at 493 F.

Supp. 430, 431 (D. NJ—1980); Brache v. County of West-

chester, 507 F. Supp. 579, 580 (S. D. NY—1981) wherein the

Court found Deputy Commissioner Fulgenzi’s testimony vir-

tually identical to Detective Rutt’s in Parma:

“Perhaps most revealing was Commissioner Fulgenzi's

position that at some point a store becomes so saturated

with ‘head shop’ items that sale or display of virtually any

19

dual-use or multi-use product would constitute a crime. . . .

When, however, a book section was added with 100 book

titles, including The Marijuana Grower's Guide and The

Cocaine Consumer’s Handbook, the store had ‘definitely’

crossed the line. But, if the store were larger and the scale

were moved to a jewelry section, you might be safe.”

Admittedly, this testimony is not unlike the testimony in the

instant case including the Police Chief's stipulation (JA 33).

The point that makes this testimony irrelevant to the issue

is that the ordinance’s marketing concept is not aimed at the

items per se, but the presumed knowledge that said items will

be used with illegal drugs. There is no rational basis to believe

that a hardware dealer intends the alligator clips he sells are to

be used with illegal drugs, but there is a rational basis to believe

that a retailer who sells alligator clips amongst rolling papers,

exotic pipes and the like intends or has knowledge they will be

used with illegal drugs. Long before the advertising and

marketing industry became what it is today, it was recognized

that the peculiar arrangement of a large number of suspected

objects may be relevant factors as to their intended use. /srae/

v. United States, 63 F. 2d 345, 346 (3rd Cir.—1933).

Judicial notice of marketing techniques in the drug para-

phernalia industry has been taken. Those establishments that

exercise such techniques are known as “head shops”. Citing

Fed. R. Evid. 201 Judge Debevoise in Record Museum v.

Lawrence Township, 481 F. Supp. 768, 771 (D. N. J.—1979)

said:

“Further, plaintiffs own evidence establishes that in addi-

tion to their many innocent and beneficient uses, syringes,

needles, eye droppers, spoons, “bongs” or other pipes,

testing kits, roach clips and rolling papers are sometimes

the means used for taking drugs and collectively are to

many the symbol and mark of the drug culture. It is not

without significance that retail establishments which sell

these items as a distinct line of trade are commonly known

as ‘head shops’.”

20

The ordinance herein applies to any and all retailers but

those who specifically market items with knowledge that they

are most likely to be used with illegal drugs are likely to be the

“head shops”. This is no different than the fact that retailers

who must obtain a license to sell milk will most likely be dairy

stores, convenience stores and grocery stores.

Judge Debevoise had a second opportunity to review a

drug paraphernalia law (having found the Lawrence Township

ordinance vague ) and expanded his remarks. He said in World

Imports v. Woodridge Township, 493 F. Supp. 428, 431 (D. N.

J.—1980):

“A number of retail stores commonly called head shops

specialize in selling drug paraphernalia. Only the naive or

duplicitous would contend that sales of drug paraphernalia

by head shops are intended primarily for such innocent

purposes as making a lamp from a water pipe, fashioning

an article of personal adornment from a coke spoon, or

feeding wounded birds with syringes and eyedroppers.

The purpose of a head shop is to capitalize upon, to

perpetuate and to augment the current interest, particularly

among the young, in items which are obviously intended

for use with illegal drugs.”

The “marketed for use” phrase was based upon the

standards of presumption stated in Leary v. United States, 395

U. S. 6, 36, 89 S. Ct. 1532, 1548 (1969) that there is a “rational

connection” between the basic facts that the prosecution proved

and the ultimate fact presumed, and the latter is “more likely

than not to flow from” the former. This ordinance being a civil

regulation rather than a criminal law, the unsuccessful argu-

ment such as that made in the criminal case of County Court of

Ultster County v. Allen, 442 U.S. 140, 99 S. Ct. 2213 (1979)

that the “more likely than not” standard violated due process of

law is not applicable. It is recognized that the Leary case

involved statutory presumptions and that presumption is not

written into the subject ordinance in so many words as in Leary,

21

but the Leary language has been cited as the test for con-

stitutionality of criminal law inferences in general. Barnes v.

United States, 412 U. S. 837, 842, 93 S. Ct. 2357, 2361 (1973).

It is indeed possible that an item marketed in the manner stated

by the ordinance may be used innocently but the Court has

never required that a presumption be accurate in every imag-

inable case, Leary v. United States, 395 U. S. 6, 53, 89 S. Ct.

1532, 1557.

This case in relation to the term “marketed for use” differs

from Model Act cases since it is not the items that are presumed

at the outset to be subject to the licensing (“we agree with the

District Court that the listed items are not presumed to be drug

paraphernalia”, Record Revolution No. 6 v. City of Parma, 638

F. 2d 916, 932) but the items when marketed in such manner

that a retailer of common intelligence would have knowledge

that such items are more likely than not to be used with illegal

drugs.

The Court below summarily rejected the offer of the “fact

proved”, the manner of marketing (Juris, St. 18a), and there-

fore, did not reach the issue of the “fact presumed”, the use of

such marketed items with drugs. This rejection ignores the

reality of life in the 1980's, the reality of the existence of the

drug paraphernalia industry, the reality of the marketing and

advertising industry, and the findings of other courts, as above,

in relation to this industry and retailers in particular. The

District Court found that the guidelines gave clear standards as

to the marketing intent making the Leary presumption even

“stronger” (Juris. St. 40a).

3. The phrases “designed for use” and “marketed for use”

connote the requisite scienter required.

Some of the Drug Enforcement Agency Model Act cases

have been decided upon the issue of scienter as scienter may

save a statute from vagueness by providing fair notice of

proscribed conduct and by distinguishing lawful from unlawful

22

conduct, (Record Revolution No. 6 v. City of Parma, 638 F. 2d

at 934), but as recognized in that case, it is not a term or finding

that would avoid a vagueness problem in all cases.

Circuit Judge Henley in The Casbah, Inc. v. Thone, 80-

2033 at 9 (8th Cir.—1981) first stated:

“Two considerations are basic to our decision on the

merits. The first is our belief that we are empowered to

articulate the meaning of the drug paraphernalia statute in

a manner which supports a finding of constitutionality.

The second is our conclusion that the element of intent

saves the Nebraska statute from unconstitutional vague-

ness. On each matter, after careful consideration, we reach

a different conclusion from that of the Sixth Circuit, the

only other Court of Appeals to have considered the Model

Act.”

and then adopted the “cogent reasoning” of Delaware Trade

Accessories v. Gebelein, 497 F. Supp. 289 (D. Del.— 1980), 80-

2033 at 17-18:

“So-called constructive knowledge thus has significance only

in a situation where the defendant is selling or delivering

items that he intends to be used to produce or consume

illicit drugs in the first place. The legitimate merchant who

sells innocuous items need make no judgment about the

purpose of the Buyer based upon the surrounding circum-

stances. The dealer, on the other hand, who sells in-

nocuous items with the intent that they be used with drugs

is, in effect, put on notice by the illicit nature of his activity

that he must be careful to conform his conduct to the law.

Even the illicit dealer, however, is not held legally respon-

sible, as plaintiffs would suggest, for guessing what is in the

mind of the buyer. The seller is safe as long as he does not

acutally know the buyer’s purpose and as long as the

objective facts that are there for him to observe do not give

faiv notice that illegal use will ensue.”

(emphasis added )

It is precisely the significance of the situation cited that

permits the constructive knowledge.

23

The Village ordinance deals only with the merchant and

places no responsibility upon the merchant to know the buyer’s

intent as was the concern in the Delaware and Nebraska cases,

both of which upheld the Model Act.

As argued above, “design” connotes an intentional act and

“marketed for use” clearly requires a scienter element to carry

the Leary presumption. The terms are disjunctive and each

would place the burden of proof upon the Village to prove the

scienter or knowledge of the retailer. Constructive knowledge

must be read into the ordinance since its terms connote

knowledge and intent.

B.The Ordinance provides adequate guidelines to prevent

arbitrary and discriminatory enforcement.

The second branch of the Grayned standard calls for

explicit standards of enforcement. It has long been recognized

that the law-making function shall not be delegated to the

whim of the policeman on the beat or the predilections of the

prosecutor.

This Court was very clear when it stated the need for

standards in Giaccio v. State of Pennsylvania, 382 U. S. 399,

403, 86 S. Ct. 518, 521 (1966):

“The Act, without imposing a single condition, limitation

or contingency on a jury which has acquitted a defendant

simply says the jurors ‘shall determine, by their verdict,

whether [etc.] ... Certainly one of the basic purposes of

the Due Process Clause has always been to protect a

person against having the Government impose burdens

upon him except in accordance with the valid laws of the

land. Implicit in this constitutional safeguard is the

premise that the law must be one that carries an under-

standable meaning with legal standards that courts must

enforce.”

The argument is restated that the scrutiny to be given civil

commercial behavior guidelines and standards is, to some

degree, less than that given to criminal noncommercial behav-

ior. This Court said in Smith v. Goguen, 415, U. S. 566, 574, 94

S. Ct. 1242, 1248 (1974):

24

“We recognize that in a noncommercial context behavior

as a general rule is not mapped out in advance on the basis

of statutory language. In such cases, perhaps the most

meaningful aspect of the vagueness doctrine is not actual

notice, but the other principle element of the doctrine—the

requirement that a legislature establish minimal guidelines

to govern law enforcement. It is in this regard that the

statutory language under scrutiny has its most notable

deficiencies.” (emphasis added )

The Village’s guidelines were given great weight by the

District Court leading the Court to find that reading the

ordinance and guidelines together results in a conclusion that

the operative words of the ordinance were not vague (Juris. St.

39a). Further, there existed in the Village, as with the Federal

Government and most states, an Administrative Procedures Act

(JA 20-24) for the purpose of setting more specific regulatory

standards which was referenced in Section E of the ordinance

(JA 11) and discussed in the testimony at JA 68. The District

Court found this of importance (Juris. St. 39a). The Seventh

Circuit Court of Appeals, however, was not impressed as any

rule-making would be “speculative” (Juris. St. 26a). It must be

noted that Flipside’s initial complaint was filed during the first

month of the ordinance’s effect (JA 9 & 12) and before any

licensee had applied for a license. Nonetheless, until it was

necessary to provide standards, preliminary guidelines were

promulgated by the Village Attorney (JA 14 and discussion at

79 and 68 to 73). These guidelines were issued eighteen

months prior to the Drug Enforcement Agency Model Act and

guidelines. The Model Act guidelines (e.g. Mid-Atlantic Acces-

sories Trade v. State of Maryland, 500 F. Supp. at 838) contain

guidelines to assist in identifying a possessor or manufacturer

but as to a retailer, they include among others “(9) the manner

in which the object is displayed for sale”, “(12) the existence

and scope of legitimate uses for the object in the community”

and “(7) descriptive materials accompanying the object which

explain or depict its use”. The similarities to the Village’s

25

guidelines are apparent and both promulgations of guidelines

are based upon logically relevant factors to give notice to the

retailer of the manner of marketing and design with which the

ordinance is concerned.

The presence of guidelines, as in the Model Act, caused the

New Jersey District Court to comment that the Model Act is

significantly different than prior ordinances since it listed “in-

dicia to aid a court or other authority in determining whether an

object is drug paraphernalia. Persons of common intelligence

should be able to ascertain whether under all the circumstances

an object is or is not drug paraphernalia under ordinance”.

World Imports, Inc. v. Woodbridge Township, 481 -F. Supp. 428

at 432.

A cursory reading of the seemingly myriad number of

cases (see Juris. St. 5la-52a) finds the Courts bogged down in

sorting out testimony regarding sizes of “cocaine spoons”,

meerschaum pipes, scaies and the like. The Village’s ordinance

and guidelines avoid the “close case” situation and simply place

the test primarily on the retailer’s manner of marketing and

permit the retailer to make the choice of his livelihood subject

only to a license and control of minors in the same way one who

chooses to operate a tobacco store must obtain a license and

limit sales to minors and one who chooses to operate a tavern

must obtain a license and limit sales to minors.

This Court in United States v. Petrillo, 332 U.S. 1, 7; 67

S. Ct. 1538, 1541 (1947) said:

“That there may be marginal cases in which it is difficult to

determine the side of the line on which a particular fact

situation falls is no sufficient reason to hold the language

too ambiguous to define a criminal offense. ... The

constitution does not require impossible standards.

It is abundantly clear that the Hoffman Estates ordinance,

Guidelines and Administrative Procedures Act provide retailers

with a rough idea of fairness.

26

CONCLUSION

The Judgment of the Seventh Circuit Court of Appeais,

insofar as it reversed the decision of the United States District

Court, should be reversed.

Respectfully submitted,

RICHARD N. WILLIAMS

Village Attorney ¢

1200 North Gannon Drive

Hoffman Estates, IL 60196

(312) 882-9100

July, 1981