The opinion of the court was delivered by: SAROKIN
Plaintiff seeks declaratory and injunctive relief from the enforcement of Roxbury Township Ordinance 23-79, which prohibits the sale and offering for sale of drug paraphernalia. Jurisdiction is based upon 42 U.S.C. § 1983, 28 U.S.C. § 2201 and § 2202.
The plaintiff instituted the action by filing a verified complaint with an application for an order to show cause and temporary restraints. On January 29, 1980, the Court considered and granted the application for a temporary restraining order and two days later, delivered an oral opinion granting the requested relief. Both parties waived submission of additional proof, and pursuant to Fed.R.Civ.P. 65(a)(2), the hearing on the preliminary injunction and the trial on the merits were consolidated. This opinion shall constitute the Court's findings of fact and conclusions of law. Fed.R.Civ.P. 52(a).
Plaintiff, Eric Knoedler, owns Nature's Head, a business located at 1045 Route # 46 in Roxbury Township. All of the individual defendants have been dismissed from this action with plaintiff's consent. The remaining defendant is Roxbury Township, a municipal corporation duly founded and chartered under the laws of the State of New Jersey. Plaintiff alleges that Nature's Head sells merchandise identified in and prohibited by Ordinance 23-79, entitled "An Ordinance to Amend and Supplement Chapter 3 of the Revised General Ordinances of the Township of Roxbury (1978) Concerning Police Regulations" (Complaint P III(4))
Said ordinance provides:
3-12.1 No person shall sell, or offer to sell any type of syringe, needle, eye dropper, spoon, pipe testing kit, weighing device, packaging device, bagging device, cutting device, diluent, or any other paraphernalia or appliance if he has reasonable cause to believe that the product sold or offered for sale, will be used in conjunction with any controlled dangerous substance as defined by N.J.S.A. 24:21-1 et seq. and in violation of any provisions of N.J.S.A. 24:21-1 et seq.
That ordinance further provides:
3-12.2 No person shall maintain any building, conveyance or premises if he has reasonable cause to believe that sales or offers to sell as proscribed in Section 1 hereof are taking place at such building, conveyance, or premises.
Due process requires that a criminal ordinance inform those who are subject to it, what conduct on their part will render them liable to its penalties. Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939). As the Supreme Court stated in Grayned v. City of Rockford, 408 U.S. 104, 108, 109, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222 (1972):
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 enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut(s) upon sensitive areas of basic First Amendment freedoms,' it "operates to inhibit the exercise of (those) freedoms.' Uncertain meanings inevitably lead citizens to "steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.'
The Roxbury ordinance insufficiently warns the plaintiff of the contemplated conduct it proscribes. Lanzetta, supra.
Initially, the Court recognizes that many if not all of the items described in the ordinance have numerous legitimate uses. Therefore, the sale of such items could not be prohibited for all purposes. The ordinance provides that the sale of the proscribed items is prohibited only if the seller has reason to believe that such items will be used in conjunction with certain drugs enumerated in and in violation of any provisions of the New Jersey Controlled Dangerous Substances Act, N.J.Stat.Ann. § 24:21-1 et seq. (West Cum.Supp.1979-1980).
The question before this Court is whether or not such standard is sufficient to guide sellers of merchandise and those persons charged with the responsibility for enforcing the ordinance. There are criminal statutes which utilize expressions such as "reason to know", "reason to believe" and similar standards which require the actor, in such circumstances, to make a mental determination regarding the acts of someone else. E. g., N.J.Stat.Ann. § 2A:170-25.12 (West 1971 & Cum.Supp.1979-1980) (sale of chemicals which release toxic vapors prohibited, if seller has reasonable cause to suspect they will be used for a specific purpose); 18 U.S.C. § 792 (crime to harbor or conceal any person, if reasonable grounds to believe or suspect he has committed certain offenses).
The Court is unable to find a case in which the constitutionality of this subsection of 18 U.S.C. § 922 has been questioned and its validity upheld.
However, 18 U.S.C. § 922(d)(3) and the challenged ordinance are distinguishable despite the fact that each requires a seller of merchandise to assess the drug-using intention of the purchaser. Firearms are inherently dangerous items sold by those specially licensed to engage in that activity. Such circumstances may mandate that a greater duty of ...