HomeMy WebLinkAbout7.9 Drug Paraphernalia Legislation , 0
' ( THE CITY OF DUBLIN
(4151829-3543
P.O.Box 2340 5(.Q O .-C( 0
Dublin.CA 94566
TO:
Councilmembers and City Manager
FROM: City Attorney
DATE:
March 29 , 1982
RE: DRUG PARAPHERNALIA LEGISLATION;
DESIRABILITY OF ORDINANCE
ion has been raised as to the status of legislation
A quest paraphernalia to minors.
effecting the sale of drug p
past several years , there has been much activity on
� In the pa prohibition of sales ed
is to minors . Typically , such items are displayed
A state and locaallevels directed toward the p in demand by minors such
drug paraphernalia
and cigarettes. These stores are
for sale in stores which merchandise items
as records and tapes or candy The word "head" refers to
a user referred to as "headshop s . noted by the U.S. Supreme
a user of drugs , a definition recently side, Hoffman Estates,
Court in Village of Hoffman Estates-
--
v. Flip
side,
I Inc. (Ma rch 3 T 82 , U.S.
adopted "Lakewood" ordinances
Many California cities have adop paraphernalia
which prohibit the sale or display for sale of drug p The City
minors unless accompanied by a parent or legal guardian.
to numerous other
on Lakewood ordinance was one of the fihetsamebformhbysale or display ,
and was then adopted in substantially
cities.
While a constitutional attack on atLakewoofoordinanc was
W eal ,
pending He the California Code Court
Section 11364 which is substantially
ri s des that ally i��n
enacted to and Safety 11364 .5 p by grounds for
similar to a Lakewood nsdlnbutethatevi lation p 11gr4 .5 grounds is revocation a criminal a business offense , permit . Section an ordinance
revocation of a business t license ribit any city from adopting
provides that it shall not prohibit
drug paraphernalia to minors. Thus,
regulating the sale ur display g
until such time as Dublin determiaewill provide enact a control .if it will
1 un the state la
phernalia ordinance ,
f completely ban the sale
a As of this date, mo��aPttempts to comp Y
for sale of drug paraphernalia have failed constitutional
or display The fO of Sacramento has enacted an ordinance banning
tests . The County held the ban,
la A trial court up the ban,
yet for an outright
was not ppd display . there is no legal precedent was not appealed.
J ban.
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TO: Councilmembers and City Manager
FROM: City Attorney
DATE: March 29 , 1982
RE: DRUG PARAPHERNALIA LEGISLATION;
DESIRABILITY OF ORDINANCE
In the recent case of Village Of Hoffman Estates v.
Flipside, Hoffman Estates, Inc. , the United States Supreme
Court upheld the constitutionality of a drug paraphernalia
ordinance which regulated the sale of paraphernalia by
(1) requiring a special license to sell drug paraphernalia,
(2) prohibiting the sale to minors , and, (3) requiring
a licensee to keep records, open to inspection at any time by
a police officer, which contain the name and address of the
purchaser, the name and quantity of the product purchased,
and the date and time of sale.
The record keeping provision has not been adjudicated
in California. However, the approval , without comment, of
this provision by the U.S. Supreme Court should be a sufficient
reason to include it in any ordinance Dublin may choose to enact.
Notwithstanding the existence of Health and Safety Code
Section 11364 .5 , there are certain advantages to adoption o a local
ordinance. As indicated above, a record keeping provision may be
inclUded. This would arguably inhibit the sale of drug paraphernalia.
Not everyone would care to identify himself as a paraphernalia
purchaser. Secondly, provision for a separate license, in addition
to a regular business license, which would require a record free
of drug-related offenses, would be more restrictive than the state
law. Lastly, but of great importance, is the fact that provision
could be made for abatement of a drug paraphernalia store as a public
nuisance in the event of a violation of the local ordinance. The
nuisance abatement procedure avoids due process and freedom of
speech problems.
The mechanics of the abatement procedure are as follows:
In each case the city could by inspection determine those
stores which might be in violation and the business proprietor advised
of the violation. If such violations were not satisfactorily resolved
the City Attorney could then proceed by filing a civil complaint for
an injunction to abate the same as a public nuisance. California
Code of Civil Procedure #731 authorized the City Attorney to abate
public nuisances, and the court to issue an injunction on the complaint
of the City Attorney to abate a public nuisance in an appropriate case.
At the trial of such an action, either a hearing for preliminary
injunction or permanent injunction, expert testimony could be elicited
to determine what objects are drug paraphernalia within the meaning
of the statute. Drug paraphernalia could be presented to the court
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TO: Councilmembers and City Manager
FROM: City Attorney
DATE: March 29, 1982
RE: DRUG PARAPHERNALIA LEGISLATION;
DESIRABILITY OF ORDINANCE
for the court' s own determination on the facts, and the business
proprietor would have a full hearing and opportunity to protect
himself. •
The advantage of this procedure is that no one is arrested
or placed in jeopardy, and no injunction would be issued until the
court had determined the law itself was valid, and being reasonably
and validly applied to the paraphernalia in question. All of the
arguments pertaining to due process and freedom of speech would be
overcome.
Dated: March 29 , 1982 .
City Attorney
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