use or to possess with intent to use, drug paraphernalia to do various things with respect to a controlled dangerous substance. That seems clear enough.
Section 3 makes it unlawful for any person to distribute or dispense, or possess with intent to distribute or dispense, or manufacture with intent to distribute or dispense drug paraphernalia knowing, or under circumstances where one reasonably will know, that it will be used to do various things with respect to a controlled dangerous substance.
Judge Manos concluded that the "reasonably should have known" standard was unconstitutionally vague and that it must be severed from the section, holding that the balance of the section met constitutional standards.
A similar conclusion as to the "reasonably should have known" standard was reached by New Jersey District Court Judge Sarokin in Knoedler v. Roxbury Township, 485 F. Supp. 990 (D.N.J.1980).
With some trepidation I reach a different conclusion from that arrived at by Judge Manos and by Judge Sarokin. It is my opinion that a "reasonably should have known" standard is not sufficiently different from an actual knowledge standard to require that it be held void for vagueness.
Unless a defendant admits that he knew something, his knowledge can only be established by evidence upon the basis of which the trier of facts could conclude that he must have known.
Even if someone testifies that he told a defendant something, the defendant's knowledge may be inferred only if the trier of facts concludes that the defendant heard, understood, and believe what he was told.
Exactly the same evidence must be employed to establish that a defendant reasonably should have known something. I do not believe that the "reasonably should have known" basis for conviction must be severed in order to have a valid ordinance. It is susceptible of proof in substantially the same way as actual knowledge.
Similarly, § 4 of the ordinance appears to me to be sufficiently precise to withstand a challenge for vagueness and overbreadth. It prohibits placing in any publication any advertisement, knowing, or under the circumstances where one reasonably should know, that the purpose of the advertisement in whole or in part is to promote the sale of objects designed or intended for use as drug paraphernalia.
The free speech implication of this section will be discussed subsequently, but the terms of the provisions do not seem vague. The fact that Detective Alexander's interpretation of the ordinance seems flawed, that if his interpretation were correct the ordinance might present constitutional problems, and that if he in fact ordered World Imports to remove all advertising, displays and merchandise which were supposed to be covered by the ordinance, he was exceeding his authority under the ordinance, would not require invalidation of the ordinance. Other remedies would be available to attend to that kind of conduct, if it were unlawful.
Plaintiffs contend that the ordinance is not rationally related to any legitimate state purpose and that regulating the accountrements of drug abuse cannot rationally be found to have a bearing upon the prevention of drug abuse itself.
I certainly cannot say that there is no rational basis for the conclusion of Woodbridge Township that preventing the sale and use of drug paraphernalia will help prevent unlawful use of drugs. Defendants cite in their brief a number of respectable authorities who view the sale and distribution of drug paraphernalia as a significant factor in increased drug abuse, particularly among the young and the susceptible. This view has received judicial recognition, Flipside, Etc. v. Village of Hoffman Estates, supra, at 409, 410.
The classification of this case is rationally related to a legitimate governmental interest and should be sustained. New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976).
Plaintiffs assert that § 4 of the ordinance, relating to advertising, violates the plaintiffs' and the public's rights under the First Amendment of the United States Constitution. Section 4 prohibits placing an advertisement in a newspaper, handbill or other publication, a purpose of the advertisement being to promote the sale of products which the person placing the advertisement designed or intended for use with illegal drugs, and the person placing the advertisement knowing of such purpose at the time he placed the advertisement, or placing it under such circumstances he should have known of such purpose.
I reviewed in my opinion in the Record Museum case the First Amendment protections to which commercial speech or communication is entitled. The subject as it relates to the instant ordinance has been dealt with extensively in Judge Manos' opinion. The kind of speech contemplated in § 4 goes beyond protected commercial speech. It prohibits advertisements which tout illegal products and activities and which, therefore, are not entitled to First Amendment protection. Pittsburgh Press Company v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93 S. Ct. 2553, 37 L. Ed. 2d 669 (1973).
Next, plaintiffs contend that the portion of the ordinance which enumerates various considerations and the evidential factors which may be considered by the Court and other authorities in determining whether an object is drug paraphernalia is pre-empted by the New Jersey Constitution and the New Jersey Evidence Act. This is a state law question and should be left to the state courts to decide.
If any particular criteria raise constitutional questions, state court treatment of the criteria might obviate the need to adjudicate the constitutional claims. These are issues as to which the Court should abstain under the principles announced in Railroad Commission v. Pullman Company, 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), and applied in D'Iorio v. County of Delaware, 592 F.2d 681 (3d Cir. 1979).
Finally, plaintiffs contend that Ordinance 80-20 violates the commerce clause of the United States Constitution in that it imposes a heavy burden on the flow of commerce for illusory public purposes.
I find the ordinance serves the legitimate public purpose of attempting to limit the illegal use of drugs; its effect on commerce is only incidental the curtailment of sales of a product designed or intended for illegal purposes. The legitimate purpose of this ordinance justifies its impact in interstate commerce. See Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S. Ct. 844, 25 L. Ed. 2d 174 (1970).
The foregoing will constitute my findings of fact and conclusions of law, and since, with the consent of the parties, this hearing has been consolidated with the trial of the action, a judgment will be entered denying the relief requested by the plaintiffs and for defendants on the merits.
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