Appeal from the United States District Court for the Central District of Illinois. No. 81-4051 -- Robert D. Morgan, Senior Judge.
Pell, Cudahy, Circuit Judges, and Bartels, Senior District Judge.*fn*
Camille Corporation (Camille), doing business as "Sight and Sound," retails merchandise such as T-shirts, records, tobacco, cigarette papers, and smoking accessories in East Moline, Illinois. Camille sought declaratory and injunctive relief below, claiming that the City of East Moline's drug paraphernalia ordinance is facially unconstitutional. The district court granted summary judgment in favor of the defendants, who were named both individually and in their capacity as officials of East Moline.
At issue on appeal are: (1) whether the ordinance is violative of the First Amendment right to commercial speech; (2) whether the ordinance is violative of the Equal Protection Clause; (3) whether the ordinance constitutes an impermissible interference with interstate commerce; and (4) whether the ordinance violates the Due Process Clause by reason of its claimed vagueness and overbreadth.
In December, 1980, the City of East Moline, Illinois (East Moline) amended its police regulations by enacting an ordinance entitled "Drug Paraphernalia" (East Moline ordinance). The enactment is based on the Model Drug Paraphernalia Act, drafted by the Drug Enforcement Administration of the United States Department of Justice (Model Act).*fn1
Section 1(A)(1) of the East Moline ordinance defines drug paraphernalia. The definition refers to "all equipment, products and materials of any kind which are used, intended for use, or designed for use" with substances that are controlled pursuant to Illinois law. This general definition is followed by a list of twelve non-exhaustive examples of drug paraphernalia. East Moline ordinance, § 1(A)(1)(a)-(1). Each of the objects listed in the twelve examples is characterized as drug paraphernalia if it is "used, intended for use, or designed for use" with controlled substances. Id. The twelfth example, "Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marihuana, hashish, or hashish oil into the human body" is followed by a similarly nonexhaustive list of thirteen examples. Id. § 1(A)(1)(1)(1)-(13).
Section 1(A)(2) of the ordinance lists fourteen factors that "a court or other authority should consider, in addition to all other logically relevant factors" in determining whether an object is classifiable as drug paraphernalia. These factors, which are challenged by Camille, are discussed in detail, infra.
Sections 1(B), (C), (D), and (E) state the substantive prohibitions of the ordinance: possession of drug paraphernalia, § 1(B), manufacture or delivery of drug paraphernalia, § 1(C), delivery of drug paraphernalia to a minor, § 1(D), and advertisement of drug paraphernalia, § 1(E). Camille's First Amendment claim specifically challenges Section 1(E). The only other substantive section to which Camille's brief refers even indirectly is Section 1(C) which makes possession with intent to deliver or delivery of drug paraphernalia an offense if it occurs where one "know[s] or under circumstances where one reasonably should know" that the paraphernalia be used in connection with controlled substances.
Section 1(F), denominated "Penalty" refers to Section 1-4-1 of the City Code which in turn provides for a fine of not less than ten dollars or greater than five hundred dollars. An offense punishable by this section is denominated a misdemeanor and further permits "incarceration in a penal institution other than the penitentiary not to exceed six (6) months in addition to any fine that may be imposed." East Moline City Code, § 1-4-1. Section 1(G) provides for forfeiture, pursuant to Illinois law, of any drug paraphernalia, as defined by the ordinance.
Trivial differences in organization aside, the East Moline ordinance parallels precisely the Model Act with one exception: the model legislation includes a severability clause which is absent in the East Moline ordinance.
The plaintiff brought suit in the Rock Island, Illinois circuit court seeking a declaratory judgment that the ordinance was violative of the First, Fifth, Eighth, and Fourteenth Amendments, as well as the Commerce Clause, of the United States Constitution. Camille sought a temporary restraining order and preliminary and permanent injunctive relief. On the defendants' petition, the cause was removed to the United States District Court for the Central District of Illinois. Following the filing of pre-trial memoranda by both parties and subsequent motions for summary judgment, the district judge entered summary judgment for the defendants.
Following the filing of the parties' initial briefs, this court issued its decisions in Record Head Corp. v. Sachen, 682 F.2d 672 (7th Cir. 1982) (Record Head), and Levas v. Village of Antioch, 684 F.2d 446 (7th Cir. 1982) (Antioch). The parties submitted supplemental memoranda, pursuant to court order, analyzing the impact of those two cases and of the Supreme Court disposition in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S. Ct. 1186, 72 L. Ed. 2d 476 (1982) (Hoffman Estates).
II. IMPACT OF SUPREME COURT AND SEVENTH CIRCUIT PRECEDENT
In Hoffman Estates, the Supreme Court upheld the constitutionality of an ordinance requiring the licensing of businesses that sold any items "designed or marketed for use with illegal cannabis or drugs." Two Seventh Circuit cases, Record Head and Antioch, have discussed the impact of Hoffman Estates on the method of analysis to be employed in evaluating the constitutionality of drug paraphernalia legislation. That general discussion will not be repeated here.
A majority of the panel in Record Head upheld the finding of the judge below that the ordinance at issue was unconstitutionally vague. The ordinance involved in Record Head differed significantly from the Model Act. See 682 F.2d at 675. By contrast, the legislation challenged in Antioch was based on the model legislation. The Antioch district court had deleted some aspects of the ordinance pursuant to the severability clause contained in that enactment. Those deletions were not challenged on appeal. The ordinance, as reviewed by this court, was found constitutional.
Record Head and Antioch directly answer several of the arguments raised by Camille in this case. First, Antioch noted that, under Hoffman Estates, the only First Amendment rights affected by drug paraphernalia legislation are commercial speech rights. 684 F.2d at 451. Unless the plaintiff is an advertiser, however, he is precluded from challenging a prohibition such as that contained in Section 1(E) of the East Moline ordinance on these grounds because one cannot assert the commercial speech rights of others. Id. (citing Hoffman Estates, 455 U.S. at 496-97); accord, Record Head, 682 F.2d at 676. Camille has not claimed that it is engaged in advertising; therefore, its First Amendment claim must fail.*fn2
Second, the Antioch court noted that the definition of drug paraphernalia included in the Model Act, which appears as Section 1(A)(1) in the East Moline ordinance, "satisfied the fair notice aspect of the vagueness test, even in its strictest form." 684 F.2d at 452; see also id. at 453 n.9 (citing other courts that have found variations of the Model Act's definitional section to be constitutional); Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213, 1218-19 (11th Cir. 1982) (rejecting claims that "designed for use" is unconstitutional and that definitional section permits conviction based on transferred intent).
The Antioch court also recognized that the scienter requirement common to the model legislation, the Antioch ordinance, and the East Moline legislation precludes a conviction premised on the mental state of someone other than the violator. 684 F.2d at 453; accord, Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213, 1218-19 (11th Cir. 1982). The Sixth Circuit, in Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 928-29 (6th Cir. 1980), vacated and remanded, 451 U.S. 1013, 69 L. Ed. 2d 384, 101 S. Ct. 2998 (1981),*fn3 the decision on which Camille principally relies, similarly concluded that the definitional section of the model legislation was not vulnerable to the claim that it permitted a conviction based on transferred intent. To the extent, therefore, that Camille's vagueness challenge is premised on Section 1(A)(1) of the East Moline ordinance, Antioch fully supports our rejection of the appellant's argument.
Fourth, Antioch has predetermined in large part the result of Camille's claim that the factors "a court or other authority should consider," East Moline ordinance, § 1(A)(2), in determining whether an object constitutes drug paraphernalia are impermissible. The factors challenged in Antioch that are similarly challenged in the instant case are:*fn4
(a) Statements by an owner or by anyone in control of the objects concerning its use;
(b) Prior convictions, if any, of any owner, or of anyone in control of the object, under any State or Federal law relating to any controlled substance;
(c) The proximity of the object, in time and space, to a direct violation of [Illinois law];
(d) The proximity of the object to controlled substances;
(l) Direct or circumstantial evidence of the ratio of sales of the objects to the total sales of the business enterprise;
(m) The existence and scope of legitimate uses for the object in the community; . . . [and]
(n) Expert testimony concerning its use.
The Antioch court found (a) and (d) to be "highly probative," 684 F.2d at 454; (b) and (c) to be "probative, provided their possible prejudicial impact is adequately weighed against applicable evidentiary rules," id.; (l) and (m) to be "less probative, but still relevant," id.; and (i) and (n), although of minimal probative value, to be acceptable because the "chance that the weaker [factors would] be relied on is too remote to sustain a facial vagueness attack," id. (distinguishing Record Head, 682 F.2d at 677). Antioch therefore supports the conclusion of the judge below that the considerations enumerated in Section 1(A)(2)(a), (b), (c), (d), (i), (l), (m), and (n) of the East Moline ordinance are impervious to constitutional attack.
Camille also claims that the East Moline ordinance is violative of the Equal Protection Clause.*fn5 In Record Head, this court recognized that under Hoffman Estates, the "rational basis" test must be applied in scrutinizing equal protection challenges to drug paraphernalia legislation. 682 F.2d at 674-75. The Record Head panel applied this standard in rejecting the district judge's finding that factors similar or identical to subsections 1(A)(2)(k), (l) and (n) in the East Moline ordinance violated the Equal Protection Clause. Id. at 678-79. The majority stated: "'It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.'" Id. at 679 (quoting Williamson v. Lee Optical Co., 348 U.S. 483, 487-88, 99 L. Ed. 563, 75 S. Ct. 461 (1955)).
As in Record Head, the problem of drug abuse is the evil at which the East Moline ordinance is directed. We have no doubt that the legislation drafted by East Moline is at least a "rational" response to this problem. Consistent with Record Head, therefore, we conclude that the appellant's equal protection claim against the instant ordinance must fail.
We turn therefore to those claims raised by the appellant that are not clearly foreclosed by Hoffman Estates, Antioch, and Record Head.
Camille claims that the ordinance violated the Commerce Clause of the United States Constitution. Art. I, § 8, cl. 3. The Stipulated Facts in the instant case establish that the plaintiff-appellant both receives merchandise through interstate commerce and sells an unidentified volume of goods to out-of-state customers.
The factors to be considered in analyzing whether legislation poses an unconstitutional interference with interstate commerce are as follows:
1. The local legislation must serve a legitimate local public interest;
2. The local legislation must affect interstate commerce only ...