On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1898-04.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Skillman, Grall and Chambers.
This appeal involves the validity of a municipal ordinance which establishes a needle exchange program that authorizes municipal health officials to distribute sterile hypodermic syringes to drug addicts for their use in injecting drugs. We conclude that this ordinance conflicts with the provisions of the Code of Criminal Justice that prohibit persons from using or assisting others in using controlled dangerous substances. Therefore, we affirm the judgment of the trial court declaring the ordinance to be invalid.
On June 16, 2004, the City Council of Atlantic City passed an ordinance entitled "Ordinance Establishing a Sterile Syringe Access Program in the City of Atlantic City." This ordinance declares that "the City of Atlantic City is facing a public health crisis due to the spread of injection-related HIV and hepatitis C in its communities;" that "60% of HIV infections in the City of Atlantic City are related to injection drug use;" and that "six reputable government studies and numerous clinical studies have proven sterile syringe access programs to be effective in reducing the spread of HIV, hepatitis C, and other blood-borne diseases, without increasing drug abuse, or other social harms." The ordinance also asserts that such a municipal needle exchange program would not violate the Code of Criminal Justice. Based on these and other findings, the City Council delegated authority to the Director of the Atlantic City Department of Health and Human Services "to establish a Harm Reduction Program with Sterile Syringe Access as part of the Department's HIV prevention program, and create guidelines and procedures for such a program." The Mayor of Atlantic City approved the ordinance on June 21, 2004.*fn1
Shortly after the ordinance's adoption, the Atlantic County Prosecutor brought this action in lieu of prerogative writs challenging its validity. The trial court signed an order to show cause that temporarily restrained the ordinance's implementation. After briefing and oral argument, the trial court concluded in a written decision that the ordinance conflicts with and therefore is preempted by the provisions of the Code of Criminal Justice that prohibit the possession and distribution of drug paraphernalia. Accordingly, the court entered final judgment declaring the ordinance invalid and permanently enjoining its implementation. Atlantic City appeals from the judgment.
In 1987, the Legislature amended the Code of Criminal Justice by enactment of the Comprehensive Drug Reform Act of 1987. L. 1987, c. 106. This amendment included two new chapters of the Code: chapter 35 dealing with the possession, use, manufacture and distribution of controlled dangerous substances, L. 1987, c. 106, § 1, and chapter 36 dealing with the possession, use, advertising and distribution of drug paraphernalia, L. 1987, c. 106, § 2. Chapter 36 was formerly contained in N.J.S.A. 24:21-46 to -53, enacted in 1980, L. 1980, c. 133, which was closely patterned after the Model Drug Paraphernalia Act drafted by the Drug Enforcement Agency of the United States Department of Justice. Model Drug Paraphernalia Act (1979). Our Supreme Court upheld the constitutionality of the former drug paraphernalia law in Town Tobacconist v. Kimmelman, 94 N.J. 85 (1983).
Although the New Jersey drug paraphernalia law generally tracks the provisions of the Model Act, it departs from that law by inclusion of a separate section prohibiting the possession or distribution of a "hypodermic syringe," "hypodermic needle" or other similar instrument. N.J.S.A. 2C:36-6.*fn2 This section was amended in 1999 to add an exemption for physicians and other persons and entities that use hypodermic needles and syringes for legitimate purposes. L. 1999, c. 90, § 2; N.J.S.A. 2C:36-6(c).*fn3
Atlantic City's argument that the ordinance establishing a needle exchange program does not violate the Code of Criminal Justice rests entirely on N.J.S.A. 2C:36-6. Therefore, we quote the pertinent parts of this section:
a. Except as authorized by subsection
b., c. or other law, it shall be unlawful for a person to have under his control or possess with intent to use a hypodermic syringe, hypodermic needle or any other instrument adapted for the use of a controlled dangerous substance or a controlled substance analog as defined in chapter 35 of Title 2C of the New Jersey Statutes or to sell, furnish or give to any person such syringe, needle or instrument.
b. A person is authorized to possess and use a hypodermic needle or hypodermic syringe if the person obtains the hypodermic syringe or hypodermic needle by a valid prescription issued by a licensed physician, dentist or ...