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Public Health Law Sec. 3387(3).

A Suffolk Criminal Possession of Marijuana Lawyer said that, this action was commenced by plaintiffs seeking a declaratory judgment that Local Law No. 23 of 1983 of the City of New York (“the ordinance”) is unconstitutional. Local Law 23 amended Chapter 22 of the Administrative Code of the City of New York. Plaintiffs moved before this court on August 4, 1983 for a preliminary injunction enjoining enforcement of the ordinance pending determination of the action. The ordinance was to go into effect on August 5, 1983. A temporary restraining order was granted by this court pending the hearing of the motion for a preliminary injunction on August 9, 1983 which was adjourned at the defendant’s (“City”) request. The City then stipulated with the plaintiffs not to enforce the ordinance pending the adjourned date of the hearing. In the interim the City has moved, and the plaintiffs cross-moved for summary judgment.

A Suffolk Marijuana Possession Lawyer said that, the ordinance at issue prohibits the sale of drug paraphernalia. It is criminal in nature and provides that anyone who knowingly sells, offers for sale or displays any cocaine spoon, marijuana pipe, hashish pipe or other drug related paraphernalia is guilty of a Class A misdemeanor. The ordinance is based upon the Model State Drug Paraphernalia Act drafted by the Department of Justice. Plaintiff is the owner of “Out of Our Drawers” and Plaintiff owns “The Village Smoke Shop” both located in Greenwich Village. Plaintiffs challenge the ordinance on a number of constitutional grounds. First, they allege that the ordinance is preempted by New York State Law, in particular Article 39 of the General Business Law, Penal Law Secs. 220.45 and 220.50 and Public Health Law Sec. 3387(3). Plaintiffs contends that these State statutes evidence an intent on the part of the State Legislature to occupy the entire field of drug paraphernalia regulation and thereby preempt local legislation in that area.

A Suffolk Criminal Lawyer said that, plaintiffs also assert that the ordinance is void for vagueness and therefore violative of Article I, Section 6 of the New York State Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The ordinance is also challenged on the ground that it infringes upon protected speech in violation of Article I, Section 8 of the New York State Constitution and the First and Fourteenth Amendments to the United States Constitution. Plaintiffs also assert an equal protection argument and, finally, contend that the ordinance is not rationally related to a legitimate government purpose.

The issue in this case is whether Local Law No. 23 of 1983 of the City of New York is unconstitutional.

In addressing the first argument, that Local Law No. 23 is preempted by the New York State regulatory scheme, the court notes that the New York State Constitution (Art. IX, Sec. 2(c)(ii)(10)), the Municipal Home Rule Law (Art. 2, Sec. 10(1)(ii)(a)(12)), and the New York City Charter (Sec. 27) vest the New York City Council with “broad power to provide by local law for the good government of the cities and the preservation and promotion of the health, safety and general welfare of its inhabitants”. This power may, however, be limited by the enactment of State police power legislation. When the State has evidenced a desire to occupy the entire field to the exclusion of local law, a municipality is powerless to act. That an ordinance has some connection with a subject upon which a State statute exists does not automatically vitiate it on that account. If the Legislature of the State is found to have intended to preempt the field of drug paraphernalia in its police power then Article IX (Sec. 2, subd. (c) par. (ii)) of the New York State Constitution prevents the City of New York from the passage of a local law inconsistent with the State statute on burglary.

Here there is concededly no express intent on the part of the Legislature to preempt localities from enacting drug paraphernalia legislation. However, plaintiffs argue that a desire to preempt can be implied from both the declaration of State policy in this area and the comprehensive and detailed regulatory scheme provided by Article 39 of the General Business Law and Penal Law Secs. 220.45 and 220.50 and Public Health Law Sec. 3387(3).

With regard to whether a desire to preempt can be implied from declarations of State policy, plaintiffs point to statements contained in the legislative history of Article 39 of the General Business Law. The drafters of the legislation noted that local communities had passed ordinances relating to drug paraphernalia. However, no further mention of the ordinances was made and there is no statement that Article 39 was enacted to complement or supplement local acts. Plaintiffs urge that it can be inferred from the “brushing aside” of these local ordinances that the Legislature intended to preempt local legislation in this area.

The City on the other hand directs the court’s attention to a letter from the minority whip of the New York State Senate to the Governor of New York wherein the Senator urges that the measure would be “one more weapon needed to wage an all-out attack on this most serious problem. In dealing with the wellbeing of our youth we cannot overlook any measure which can be useful to insure their safety”. Defendants also contend that the statement of legislative intent attached to the enactment of Article 39 indicates a determination by the Legislature that the sale of drug paraphernalia is a legitimate concern of all levels of government and that control of the industry can best be accomplished through a concerted effort on the part of State and local governments.

The criminal court does not infer from these declarations by the Legislature an intent to occupy the entire area of drug paraphernalia regulation and preempt local legislation. The legislative history of Article 39 indicates a concern on the State level with the growth of so-called head shops and the potential harm to the youth of New York State. However, the court does not infer from the legislative declaration that localities were prohibited from going further than the civil penalties contained in Article 39 and enact an ordinance criminal in nature in an attempt to curtail the operation of head shops. The declarations indicate to the court a desire that there be at least a statewide statute with civil penalties aimed at head shops and a recognition that localities may also wish to regulate the operation of head shops.

Plaintiffs’ arguments that when one considers the criminal penalties included in Penal Law Secs. 220.45 and 220.50 and Public Health Law Sec. 3387(3) one can infer an intent to preclude criminal penalties at the local level is without merit since these statutes are not directed solely at head shops as Article 39 and the City’s Local Law 23 are.

Plaintiffs argue that Article 39 of the General Business Law, Secs. 220.45, 220.50 of the Penal Law and Public Health Law Sec. 3387(3) constitute such a regulatory scheme in the area of drug paraphernalia.

If a certain statue is unconstitutional, seek the help of a Suffolk Drug Possession Attorney and Suffolk Marijuana Possession Defense Attorney at Stephen Bilkis and Associates in order to defend your case.

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