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INFORMATION MGMT. SERVS. v. BOROUGH OF PLEASANT HI

April 23, 1981

INFORMATION MANAGEMENT SERVICES, INC., a Pennsylvania corporation trading and doing business as The Sound Wave, Plaintiff,
v.
The BOROUGH OF PLEASANT HILLS, a political corporation and subdivision, and the Members of the Borough Council of the Borough of Pleasant Hills, Warren F. Bourgeois, Jerry Koechel, W. Fred Mooney, Lewis A. Ondis II, William F. Steffen, Russell E. Webb, Norma K. Wright, President, individually and collectively, and the Mayor of the Borough of Pleasant Hills, Eldon D. Snyder, an individual and the Chief of Police of the Borough of Pleasant Hills, Stanley A. Smith, an individual, Defendants



The opinion of the court was delivered by: TEITELBAUM

The matter sub judice represents another in the nationwide series of challenges to "drug paraphernalia" legislation. The instant case challenges a municipal ordinance, Ordinance No. 571 (hereinafter sometimes Ordinance), enacted on October 15, 1980 by the Borough of Pleasant Hills, Pennsylvania *fn1" This litigation was begun by the plaintiff as the operator of a novelty store in Pleasant Hills on November 7, 1980. The jurisdiction of this Court was invoked under 28 U.S.C. §§ 1331 and 1343(3) and (4) for violation of 42 U.S.C. §§ 1983 and 1985.

When the complaint in this action was filed, the plaintiff also sought a temporary restraining order. Upon the representation of counsel for the defendants that the Ordinance would not be enforced pendente lite, the motion for a temporary restraining order was denied. Thereafter, the parties by virtue of the admission of facts in the answer and by stipulation of the exact terms of Ordinance No. 571 presented a justiciable controversy to this Court *fn2" Moreover, the parties agreed that consideration of the request for permanent relief could be accelerated for disposition with the request for preliminary relief pursuant to Fed.R.Civ.P. 65(a)(2). Having studied the merits of this case and having taken particular care to consider the severability clause of Ordinance No. 571, this Court finds, for the reasons set forth below, that the Ordinance is so incomprehensible as to be unconstitutionally vague. Since a declaratory judgment issued pursuant to 28 U.S.C. § 2201 is a final appealable order and because this Court has no reason to believe that any attempt will be made to enforce Ordinance No. 571, no injunctive relief appears necessary at this time.

 I.

 Before considering the Ordinance in great depth, it is helpful to review the origins of the Ordinance and its relationship to the Model Drug Paraphernalia Act *fn3" ; the Uniform Controlled Substances Act *fn4" ; the Pennsylvania Controlled Substance, Device and Cosmetic Act, (hereinafter Pa.Cont.Sub.Act) 35 P.S. §§ 780-101 to 780-144; and a recent untitled amendment to the Pa.Cont.Sub. Act, Act No. 186, 1980 Pa.Leg.Serv., (hereinafter Pa. Paraphernalia Amendment). As previously noted this is one of a nationwide series of actions challenging the constitutionality of various "drug paraphernalia" enactments. This wave of litigation appears to be the aftermath of the widely distributed Model Drug Paraphernalia Act drafted in August of 1979 by the Drug Enforcement Administration of the United States Department of Justice. In drafting the Model Drug Paraphernalia Act, the Drug Enforcement Administration apparently hoped to eliminate what was described as a parasitic industry glamorizing drug abuse *fn5"

 As originally contemplated, the Model Act was a compilation of suggested amendments to the Uniform Controlled Substances Act which had been prepared by the National Conference of Commissioners of Uniform Laws. The Model Drug Paraphernalia Act provides language for enactment in any jurisdiction with an occasional blank space and instructions on how best to fill the blank space to accommodate a specific jurisdiction. Given this background, the Model Drug Paraphernalia Act appears to have been designed to be compatible with the Uniform Controlled Substances Act.

 In 1972, the Commonwealth of Pennsylvania adopted the Pa.Cont.Sub. Act as the Pennsylvania version of the Uniform Controlled Substances Act. *fn6" On October 15, 1980, the Ordinance in the instant case was adopted using almost precisely the language contained in the Model Drug Paraphernalia Act. *fn7" On December 4, 1980, Pennsylvania adopted the Pa. Paraphernalia Amendment effective in sixty days, following the exact language suggested by the Model Drug Paraphernalia Act, as an amendment to the Pa.Cont.Sub. Act. *fn8" These substantial interrelationships suggest that some legitimate sources of legislative history for Ordinance No. 571 may be found in the Prefatory Note and Comments to the Model Drug Paraphernalia Act. Additionally, the compatibility of the Model Drug Paraphernalia Act to the Uniform Controlled Substances Act may provide assistance in determining how Ordinance No. 571 relates to the Pa.Cont.Sub. Act. Moreover, the Ordinance and the Pa. Paraphernalia Amendment, with their common language and antecedents, should also be subject to similar interpretations since the same Pennsylvania courts are obliged to interpret both. *fn9"

 II.

 Having taken notice of the relationships of the Ordinance to the other materials, it is necessary to consider the language of the Ordinance in greater detail. Article I of the Ordinance contains its sole definition, the definition of drug paraphernalia. Article I can sensibly be divided into three parts: (1) the first sentence giving the one sentence general definition of drug paraphernalia; (2) the words "(i)t includes, but is not limited to:" and the accompanying twelve part list; and, (3) the remainder of Article I consisting of the fourteen factors to be considered in determining whether an object is drug paraphernalia. These three parts do not appear to have been intended as three alternative or cumulative definitions. *fn10" Instead, part one appears to be the definition while parts two and three are guides to the interpretation of part one. Thus, the first sentence of Article I, when considered in light of the assistance in the remainder of the article, must stand or fall on its own terms.

 III.

 A clear definition of drug paraphernalia is essential since this term is used repeatedly throughout the Ordinance. If it is unclear what drug paraphernalia encompasses then it would be equally unclear what was prohibited conduct with respect to such paraphernalia. For this reason it is essential to consider the language of that first sentence closely. It reads:

 
The term "Drug Paraphernalia" means 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 in violation of 35 P.S. §§ 780-101 to 780-144 ((the Pa.Cont.Sub. Act)).

 Upon consideration of this definitional language, this Court cannot conceive why after devoting extensive efforts to defining "drug paraphernalia", no definition of the words used to define drug paraphernalia appears in Ordinance No. 571. While many of the words used to define drug paraphernalia are common words and have their ordinary meaning, *fn11" one phrase is a term of legal art; that phrase is "controlled substance." If Ordinance No. 571 is not to be unconstitutionally vague, then controlled substance must be defined by reference to some other definition of that phrase.

 The origin of the Ordinance suggests one source of a definition. Because the Model Drug Paraphernalia Act was intended by its drafters to be enacted as an amendment to a state's Controlled Substance Act, they logically could have assumed that the terms used in the Model Drug Paraphernalia Act to define drug paraphernalia were already adequately defined in the Controlled Substances Act which was being amended and thus, it would be unnecessary to define terms like "controlled substance" in their proposal. Having already explored the relationship of Ordinance No. 571 to the Model Drug Paraphernalia Act and the Pa.Cont.Sub. Act, the inference can be drawn that Pleasant Hills intended to avoid this problem by absorbing the definitions of the Pa.Cont.Sub. Act, the legislation referred to in the Ordinance. In the Pa.Cont.Sub. Act, "controlled substance" is defined very specifically; see 35 P.S. §§ 780-102(b) and 780-104. However, if this is the correct definition of "controlled substance," then the definitions of other words in the Pa.Cont.Sub. Act would be shared by Ordinance No. 571.

 There is another reason to assume that Ordinance No. 571 borrows the definitions of the Pa.Cont.Sub. Act. Since the Pa. Paraphernalia Amendment amended the Pa.Cont.Sub. Act, the Pa. Paraphernalia Amendment shares the definitions of the Pa.Cont.Sub. Act. Since Ordinance No. 571 and the Pa. Paraphernalia Amendment use the same language, i. e. the language of the Model Drug Paraphernalia Act, and since identical language should be construed identically, it would appear that Ordinance No. 571 borrows the definitions contained in the Pa.Cont.Sub. Act. While this analysis demonstrates with considerable strength that the term "controlled substance" in the Ordinance is not undefined, and that therefore the Ordinance is not unconstitutionally vague in this respect, the extension of this ...


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