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Town Tobacconist v. Kimmelman

Decided: July 19, 1983.

THE TOWN TOBACCONIST, A PROPRIETORSHIP, A SHOP CALLED EAST OF CHERRY HILL, INC., A NEW JERSEY CORPORATION, ANNIE HULL'S, A PROPRIETORSHIP, EASTWEST, A PROPRIETORSHIP, FOREVER CHANGES, A PARTNERSHIP, HIGH OL' TIMES, A PROPRIETORSHIP, HIGH SUPPLY, INC., A NEW JERSEY CORPORATION, INDIAN COTTAGE, INC., A NEW JERSEY CORPORATION, INNER CIRCLE, A PROPRIETORSHIP, INNER DIMENSIONS, A PROPRIETORSHIP, INNER EYE, A PROPRIETORSHIP, JACK'S MUSIC, A PROPRIETORSHIP, MA-RAJA, INC., A NEW JERSEY CORPORATION, NATURE'S HEAD, A PROPRIETORSHIP, SMUGGLER'S ATTIC OF WILLOWBROOK, INC., A NEW JERSEY CORPORATION, AMSUN WORLD IMPORTS, INC., A NEW JERSEY CORPORATION, AHEAD OF OUR TYME, A PROPRIETORSHIP, TURNTABLE, A PROPRIETORSHIP, GEORGE DICKINSON, SANDY WILSON, MICHAEL SAITZ, MIKE HULL, ANNIE HULL, ALEX SUVINO, RICHARD COOK, BRUCE KESSLER, BRUCE SHORE, LARRY WARD, VIJAY GUPTA, JOSEPH ASERO, BARBARA ASERO, GLORIA BUBBLO, GLORIA KIRKPATRICK, JACK ANDERSON, CHAMP TAILOR, ERIC KNOEDLER, SOL INSPECTOR, TOM BAHMER, PAT BAHMER, KEN TERSTEN, JESSIE ROE, JOHN SMITH, A FICTITIOUS NAME, MARY SMITH, A FICTITIOUS NAME, AND XYZ CORPORATION, A FICTITIOUS NAME, PLAINTIFFS-APPELLANTS,
v.
IRWIN I. KIMMELMAN, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 186 N.J. Super. 449 (1982).

For Affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock and Garibaldi. For reversal -- None. The opinion of the Court was delivered by Wilentz, C.J.

Wilentz

[94 NJ Page 92] The statute before us, New Jersey's Drug Paraphernalia Act, N.J.S.A. 24:21-46 to -53, seeks to criminalize "head shops," to put them out of business. It has never been enforced, the

parties having consented to an injunction against such enforcement pending the outcome of this appeal. Given the illegal conduct on which these stores thrive, the attainment of the goal of the statute is clearly within the power of the Legislature. The question is whether the means selected by the Legislature to achieve that goal are constitutional. We hold that, measured against plaintiffs' attack, this drug paraphernalia law is constitutional; that the typical "head shop" operation implicitly assumed in this opinion (since the record does not supply the complete details of an actual "head shop" operation) is criminal; and we suspect that, in fact, the conduct of most New Jersey "head shops" could be found by a jury to constitute a crime.

We are aware, as the Legislature undoubtedly was, that many people smoke or have smoked marijuana, and have used "drug paraphernalia" in doing so. Given that fact, there is obviously some question about the effectiveness of laws aimed, directly or indirectly, at preventing such conduct, especially when the methods of distribution are so diverse. The effectiveness of such a law, however, is not within the courts' province; the judiciary's sole function here is to decide whether the law is constitutional and within the power of the Legislature.

I.

On October 29, 1980, the Legislature passed a bill, commonly referred to as the Drug Paraphernalia Act (the Act), N.J.S.A. 24:21-46 to -53 (L. 1980, c. 133), supplementing the New Jersey Controlled Dangerous Substances Act. N.J.S.A. 24:21-1 to -53. The Act imposes criminal penalties for dealing in various ways with drug paraphernalia.

Plaintiffs are a group of retail merchants whose businesses fall within the statute's proscriptions. They operate "head shops." They claim the Act is void for vagueness, is unconstitutionally overbroad and chills their First Amendment rights. On the effective date of the Act, plaintiffs filed a complaint challenging its constitutionality and sought a permanent injunction.

A consent order issued enjoining enforcement of the Act pending trial.

The only witness to testify at trial was the owner of a New Jersey retail establishment called "Inner Dimensions." She admitted that in her store she sold bongs, waterpipes, rolling papers, and other implements specifically listed as drug paraphernalia.*fn1 She claimed, however, the statute was vague and incomprehensible, primarily because she could not be certain whether the items she sold were covered by the Act.

The trial court ruled that the statute was unconstitutionally vague, specifically holding that the statute's definition of drug paraphernalia is unclear. That definition, essentially, is: any item "used or intended for use" in connection with certain activities (e.g., smoking marijuana) that violate the controlled dangerous substances laws. N.J.S.A. 24:21-1 to -53. The trial court stated:

The phrase "used or intended for use", that appears a dozen times renders the definition of drug paraphernalia unlawfully vague. It is impossible for any retailer to know whose use or whose intention he must be aware of.

The Attorney General appealed to the Appellate Division, which reversed. 186 N.J. Super. 449 (1982). In between the trial court and Appellate Division decisions, the Supreme Court of the United States decided Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982), upholding the constitutionality of an ordinance requiring businesses to obtain licenses before selling any item "designed or marketed for use with illegal cannabis or drugs." The Appellate Division, relying, in part, on Hoffman Estates,

rejected the trial court's finding that the statute's definition of drug paraphernalia was vague and concluded that none of its challenged substantive provisions violated the Constitution. We granted certification. 91 N.J. 248 (1982).

We affirm and hold the Act free of the asserted constitutional infirmities.*fn2

II.

The use of marijuana and cocaine is clearly illegal in New Jersey. N.J.S.A. 24:21-20. Given that fact, it is somewhat astonishing to observe the open operation of stores -- "head shops" -- that specialize in the sale of drug paraphernalia, namely, items that are commonly used with controlled dangerous substances and are clearly intended by the store owner to attract those who would so use them. This litigation, along with similar litigation in other states that have passed laws prohibiting the sale and use of drug paraphernalia, arises not because there is any doubt about the Legislature's power to criminalize conduct so clearly designed to facilitate or encourage other illegal conduct. The litigation arises rather from the asserted difficulty in distinguishing with sufficient clarity the sale of the same article, a pipe, for instance, by two different merchants -- and making one sale criminal and the other not.

Generally speaking it is both legally permissible and, through careful drafting, entirely feasible to criminalize this kind of conduct only where the actor intends that the goods be used in connection with the illegal use of drugs or knows that it is highly probable that they will be so used. The perception of difficulty in drawing this distinction stems both from the earlier

statutory attempts to do so as well as from the most recent attempts of which the Act is typical. The principal deficiency of the earlier laws was their failure to require explicitly that such intention or knowledge was a pre-condition to criminal responsibility. See, e.g., ordinances held unconstitutional in Music Stop, Inc. v. City of Ferndale, 488 F. Supp. 390 (E.D.Mich.1980); Knoedler v. Roxbury Twp., 485 F. Supp. 990 (D.N.J.1980); Bambu Sales, Inc. v. Gibson, 474 F. Supp. 1297 (D.N.J.1979). The deficiency of the more recent statutes, including those patterned after the Model Act referred to infra at 99, is that they may have over-corrected the deficiency of the earlier statutes by not only explicitly requiring such criminal intent but by repeating the requirement so many times as to lend some credibility to the claim that the statute is unclear.*fn3

To the extent that the Act's language does not clearly differentiate those activities that are legal from those that have been criminalized, its purpose and history supply whatever clarity is needed, as we point out later in this opinion. This differentiation based on the actor's intent or knowledge is not required by any constitutional mandate or other fundamental principle (or at least no one is so arguing, nor do we believe such an argument would have any force): the Legislature presumably could criminalize the sale of any article that facilitates the illegal use of marijuana or cocaine regardless of the actor's state of mind. For example, the Legislature could presumably absolutely prohibit the sale of pipes, concluding that while the article has nonobnoxious uses, its potential criminal uses call for its total

abolition in our society.*fn4 The value judgment has been made differently, however, the Legislature having concluded that a differentiation better serve societal interests. The problem that the differentiation causes is not one of prohibiting some kind of activity that is constitutionally protected, but rather one of not setting forth that which is prohibited with sufficient clarity to give fair warning to those affected.

Since the major thrust of plaintiffs' attack is their contention that the law is impermissibly vague, our task is to construe those provisions whose clarity is at issue. Within limits, our construction may provide some clarity of meaning that may not have been there initially. We begin by examining the Act's purpose and legislative history. With the Act construed in that light, we then measure it against the constitutional challenges asserted by plaintiffs. In this connection Hoffman Estates, though involving a significantly different "head shop" regulation (a municipal ordinance licensing the sale of drug paraphernalia), is helpful in reminding us of some applicable constitutional principles:

In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. [455 U.S. at 494-95, 102 S. Ct. at 1191, 71 L. Ed. 2d at 369 (footnotes omitted)].

That case also provides further guidance for us in deciding whether the Act is unconstitutionally vague, for that was precisely the contention made there (and rejected by the United States Supreme Court) concerning a drug paraphernalia ordinance.

We shall confine our inquiry into the validity of the Act to its impact on retailers. We do so for three reasons: first, because all of the plaintiffs are retailers; second, because there is no need to go further since a pre-enforcement attack on vagueness grounds generally fails if the Act is clear in one of its applications (and we find it clear in its application to retailers); and, third, because we know of no doctrine that requires a court to consider and determine the validity of every hypothetical application of legislation when a pre-enforcement vagueness attack is involved. Hoffman Estates, 455 U.S. at 494-95, 102 S. Ct. at 1186, 71 L. Ed. 2d at 369. We note, however, without deciding, from the analysis that follows, that the Act appears sufficiently clear in all of its other major applications to withstand a similar constitutional attack.

III.

The New Jersey drug paraphernalia law, N.J.S.A. 24:21-46 to -53, is closely patterned after the Model Drug Paraphernalia Act (Model Act), which was drafted by the Drug Enforcement Agency of the United States Department of Justice at the request of state and other federal authorities. Because of the close parallel between New Jersey's statute and the almost identical Model Act, we begin our analysis with an examination of the Model Act and its legislative history and purpose. See GATX Terminals Crop. v. New Jersey Dep't of Envtl. Protection, 86 N.J. 46, 53 (1981); Galloway Twp. Bd. of Ed. v. Association of Educ. Secretaries, 78 N.J. 1, 10 (1978).

Much of the impetus for the drafting of the Model Act is attributable to the recognition that, over the past decade, an extensive industry has developed that concentrates on the manufacture and sale of paraphernalia used with illegal drugs, primarily marijuana and cocaine. Sales of drug paraphernalia have reached major proportions, with estimates of total sales ranging from several hundred million to several billion dollars annually. Drug Paraphernalia: Hearing Before the House of

Representatives Select Committee on Narcotics Abuse and Control, 96th Cong., 1st Sess., 95 (Statement of Irvin Nathan, Deputy Assistant Attorney General, U.S. Department of Justice) (1979) (hereafter cited as Hearing); Prefatory Note, Model Act.

The Model Act explicitly reflects the belief that the unregulated sale and advertising of drug paraphernalia contributes to the widespread use of illegal drugs. The Model Act's drafters felt that the drug paraphernalia industry "promotes, even glamorizes, the illegal use of drugs by adults and children alike," Prefatory Note, Model Act, and others suggested that the unrestricted sale of drug paraphernalia "leads children to believe that the controlled substances they are designed to administer are equally accepted and legal." Hearing, at 1 (Remarks of Cong. Evans).

The drafters of the Model Act noted that the Uniform Controlled Substances Act, which has been enacted in most states, does not control the manufacture, sale, advertisement or use of drug paraphernalia, and that state laws designed to control paraphernalia proliferation were often too limited in coverage to be very effective. Prefatory Note, Model Act. To remedy these perceived deficiencies, the drafters attempted to formulate a model statute that was extremely broad in scope.

This can be seen initially in the Model Act's definition of drug paraphernalia. Recognizing that the variety of items used in conjunction with illicit drugs is limitless, the drafters did not confine the Model Act's definition of drug paraphernalia to an item-by-item delineation of proscribed devices. Instead, the Model Act defines drug paraphernalia as

all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance . . . . [Model Act, Article I].

The Model Act provides that this general definition of drug paraphernalia "includes, but is not limited to," and there then

follow 12 more or less specific examples of drug paraphernalia (each one of which is qualified by the "used, intended for use, or designed for use" language), the 12th itself including 13 more specific examples. Finally, the definitional section lists factors ("in addition to all other logically relevant factors") that "a court or other authority should consider" in determining "whether an object is drug paraphernalia." This tabulation functions merely as a guide and was not intended as either a mandatory or an inclusive list of factors to be considered. Comment to Model Act, Article II. As noted later, we have concluded that these factors, to the extent appropriate in a particular ...


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