*1 contend, as Finally, Commissioners below, inherent
they did the “court’s independent
equitable powers provide an attorneys’ fees.” Id. Commis
ground for they fall within one of
sioners contend exceptions express where
the few “[a]bsent federal courts still have
statutory authority, power’ in a federal [equitable]
‘inherent attorneys’ ... to award fees
question case order as
for ‘willful disobedience court
рart of the fine to be levied on defend losing party ... has acted
ant or when faith, vexatiously, wantonly,
in bad or for National
oppressive reasons Letter v. U. Postal
Associationof Carriers S.
Services, (D.C.Cir.1978) 590 F.2d
(citation omitted). The district court found government did not act in such a justify
manner as would an award of attor
neys’ fees. A review of the record satisfies
us that the district court’s conclusion was
correct.3 reasons, foregoing
For the the decision of
the district court is Affirmed. LEVAS, AND Levas
LEVAS d/b/a
T-Shirts, Plaintiffs-Appellants, ANTIOCH, ILLINOIS,
VILLAGE OF et
al., Defendants-Appellees.
No. 80-1675. Appeals,
United States Court Circuit.
Seventh
Argued June July 7,
Decided government 3. The contends that the award of Court White v. New attorneys’ 59(e) precluded by Hampshire Department Employment fees is Rule since Securi- judg- ty, such an award would alter or amend the 71 L.Ed.2d damages application (1982), attorneys’ ment was which holds that fees are days entry judg- part judgment and, hence, 59(e) made more than ten after of the Rule ment, 59(e). contrary applicable. to Rule We need not is not tarry argument disposed over this since it was *2 Pritzker, Ill.,
Michael L. Chicago, plaintiffs-appellants. Nash, Chicago, Ill.,
Michael B. for defend ants-appellees. CUMMINGS, PELL,
Before Chief Judge, EAST, Judge, Circuit Senior District Judge.* CUMMINGS, Judge. Chief Levas, Peter and Ernest doing business as T-Shirts, brought Levas suit in federal dis- challenge court to the facial constitu- trict tionality paraphernalia of a drug ordinance by enacted Village the trustees of the Antioch, They sought Illinois. declaratory injunctive relief based on Fourteenth Amendment process equal protec- due claims, challenges tion under the First and Eighth incorporated Amendments as into Amendment, the Fourteenth conten- and a tion the ordinance violated the Com- merce Clause. The district judge denied all relief, finding infirmity no constitutional appeal- ordinance. The Levas brothers ed, argument and we heard oral on June 1981. Thereafter the case was held for decision pending Court’s reso- case, Village lution a related of Hoffman Flipside,-U.S.-, Estates v.
1186, 71 Court, L.Ed.2d 362 This sponte, parties sua ordered the to submit concerning simultaneous memoranda the ef- fect of the Hoffman Estates decision. In- original argument, formed the Su- decision, preme Court’s and the additional * East, dеsignation. The Honorable William G. Senior District Judge Oregon, sitting by for the District of Co., F.Supp. (E.D.Tenn. judgment affirm the of Glass
briefing, we now 1978), citing Wright & Miller the district court. Federal and Procedure 2951. There was Practice § Procedure in the District Court I. judge no reason for the to hold a second matter, the Levases As a threshold evidentiary hearing, explicitly denominated by the district procedures employed *3 a hearing on the Levases’ motion for a appeared The Levases had before judge. preliminary injunction, when the first hear- 16,1980, April seeking a Judge Leighton on ing had already served that function. (TRO); restraining the de- temporary order Perhaps objecting, the Levases are some- the close of the opposed it. At fendants inartfully, what problem: to different the that he would hearing, judge the indicated judge’s deny relief, trial decision to all rath- Instead, April 28. he issued his rule on just injunctive rеlief, er than preliminary decision, days’ with two notice and no fur- April when he ruled on objec- To that hearing, April on In his decision ther tion, too, appropriate there is an temporary, preliminary response. judge denied 65(a)(2) Rule injunctive of the Federal Rules permanent and also declara- of Civil The Procedure allows the court tory relief. 4/22/80 Tr. at 18-20. to advance a merits, evidentiary that different trial on the consolidating Levases maintain it with the hearing proof apply application standards and burdens of to on the for a preliminary temporary restraining prelimi- injunction. orders and * * * nary injunctions, judge’s and that the trial quite It is clear that no notice [of proceedings consolidation of the on short given need be prior to the consolidation] deprived oppor- adequate notice them of an hearing, provides since the rule in terms tunity to make their case. Br. 15-17. that advancement may and consolidation be ordered after the commencement of
A review of the record convinces us that hearing. What is required is that the judge properly. the trial acted When a parties given opportunity a full to notice, parte is ex TRO issued and without * * * present evidence the case. A applicant must show “that immediate plaintiff putting on tempo- his case for loss, irreparable injury, damage will rary may evidence, or, relief hold back applicant result to the before the adverse indeed, his case fully not be devel- attorney party oppo- his can be heard in oped. it is sition,” important Thus for him give that he has to tried to notice puts know when he on his special why has reasons evidence that notice should be having he his final “day in court.” excused. Federal Rules of Civil Procedure 65(b). parte The trade-off for ex issuance 7.2 Moore’s Federal Practice 65.04[4] H is that the TRO has a limited life.1 Thus a (emphasis original; footnotes omit- party might satisfy fail to the criteria for ted) parte an ex TRO and still be entitled to a concededly put Here the Levases had on all injunction. preliminary position This is the their evidence. At the beginning of the put the Levases claim to have been in. hearing, they said, honor, April 16 “Your fact, agreed probably we have there are no fac- being sought no TRO was disputes tual that would parte: require ex testimo- defendants had notice and ny.” 4/16/80 Tr. at 2. The appeared hearing at the to contest the mo issues had been briefed, fully and in the hearing they tion. The Levases were therefore not re had quired higher showing opportunity to make the had an to develоp legal contem all the plated by 65(b). arguments support Rule The court could and facial their attack application pre did treat as one for a judge on the ordinance. When the issued liminary injunction. MLZ Inc. v. Fourco his April final decision on the Levases’ days, longer good 1. A TRO cannot last for than 10 strates cause. It can also be extended for days longer period party against but it can be extended for an additional 10 if the whom it is party seeking 65(b). if the an extension asks for it issued consents. Fed.R.Civ.P. period before first run and demon- drugs. drafting problem The attorney sought points clarification of some inherent ordinances, however, objection procedure. is that few raised no items acting solely implements, his as judge explained reasons for useful The astonishing variety ordinary “Your clients are entitled an expeditiously: articles рossible promptly as and that to drug be converted use. The Model know Drug Paraphernalia Act, here you today I asked to come instead drafted why Administration, waiting Monday.” Drug until next The attor- Enforcement an at- response you, your tempt “Thank Hon- write a ney’s was: statute that will be broad May 7 deal Finally enough problem 4/22/80 Tr. at 24. on with the or.” effective- Levases, again ly, dis- appeared yet impinges before the so broad that' on judge, injunction pending constitutionally protected to ask trict conduct or so request was Le- appeal. vague targets denied. The that neither the law’s nor its then, either, objection made no know what vases enforcers it means.2 The dis- *4 22 April procedure. tinctive of features the Model Act are two: give it to attempts content to necessari- prejudice Levases’ of in the The claim general ly definition of drug paraphernalia development case is with of their therefore by listing examples and factors to be con- See, Par e.g., out merit. Workers Socialist sidered; it and intent require- contains an Elections, Illinois of 566 ty v. State Board ment is meant to mitigate defini- (7th 1977),aff’d, 173, 586 Cir. 440 F.2d U.S. uncertainty. tional (no prejudice 59 230 to 99 L.Ed.2d permanent injunction when is defendants Village The of Antioch has enacted the hearing application pre after sued on for Drug Paraphernalia Act, Model with some liminary injunction); City Cousins v. Coun modification, as its ordinance. The full City Chicago, 322 428 F.Supp. cil of of text of the Antioch ordinance is set out in (N.D.Ill.1971) (permanent relief denied at the Appendix. Antioch taken over has ver- hearing preliminary close of in which in batim the Model Act’s: against junction sought Chicago was redis (1) drug definition of paraphernalia, which tricting ordinance), grounds, on other rev’d general paragraph, consists fol- (7th 1972), F.2d de 466 830 Cir. certiorari by illustrative, lowed exhaus- nied, 409 34 L.Ed.2d tive, examples; of list concrete (2) list of factors “a other court or authori- The II. District Court’s Decision that ty should consider in to all addition oth- Antioch Ordinance Is Constitutional logically er deciding relevant factors” in a particular qualifies whether A. The Terms of the Ordinance drug paraphernalia; years In recent communities across the (3) prohibition on delivery the sale or of country have come believe to that criminal drug paraphernalia; and prohibiting possession, sale, laws and severability provision. broad drugs distribution of do not adequately de- use, drug particularly among Act, ter young. Like the Model the Antioch ordinance states, Accordingly, counties, mu- many and has a requirement, though scienter nicipalities have drug pаrapherna- enacted differently drafted in the two statutes. designed lia stop ordinances to or control The Model Act intent require- includes an equipment of drug parapherna- the sale can be used ment in the definition of store, ingest, inhale, inject lia,3 grow, purify, repeats slightly it in a different history use, Drug Paraphernalia “[Ujsed, designed use, 2. The of the Model intended for for Note, planting, Drug propagating, cultivating, growing, is set out in “The Act Model Para- phernalia Shops— harvesting, manufacturing, compounding, Act: Can We Outlaw Head verting, producing, processing, preparing, A And Should We?” 16 Ga.L.Rev. test- complete ing, analyzing, packaging, repackaging, storing, text of the Model Act can be found containing, concealing, injecting, ingesting, n. 52. in- haling, introducing or otherwise into the hu- in Record Revolution No. Judge Manos The Antioch offense section.4 form Parma, F.Supр. a scienter sets out Inc. v. ordinance drug parapherna- only in the definition 1980).8 (N.D.Ohio We think therefore that the offense incorporates it into lia5 to em- Judge Leighton meant his decision “drug para- referring to the term by section Judge body the same modifications phernalia.” uphold the necessary Manos deemed addition, added lan- village in the Parma provisions same Model Act banning (apparently on a its own guage of These are: ordinance. delivery of cocaine basis)7 the sale or per se “used, language, intended The intent pipes. or hashish use, designed for us'e” must be for is a violating ordinance penalty The understood as a somewhat awkward at- $500, day of viola- and each fine of $25 tempt assign appropriate scienter separate offense. tion is treated as a category to each of offender within the Act’s enacted the Model Antioch has not The Parma ordi- Model Act’s ambit. drug manufacture or use ban on the (“de- nance reached manufacturers use although actual paraphernalia, use”), (“intended signed for distributors is relevant to his paraphernalia purveyor (“used”). use”), possessors does the Antioch ordinance intent. Nor applies Antioch ordinance advertising on the Model Act’s ban contain distributional level. We need not strike degree encourages illegal that in some “designed for use” or “used” from the penalties for sales to or its enhanced use *5 (although they Antioch ordinance will certain minors. any application have rarely to the head shop proprietor), long clearly so as it is B. The District Court’s Decision understood that no one can constitution- order, April judge 22 the district In his ally be conviсted on the basis of some- claims appellants’ found all constitutional else’s F.Supp. one intent. See 492 except vagueness insubstantial. On 1168-1169. issue, judge’s holding vagueness the district “easily the short definitions are un- is that Wherever the Model Act allows intent clear, concise, derstood, lucid and under- charged to be inferred from what the standable,” 4/22/80 Tr. at and that party reasonably knew or “should have drug paraphernalia, though it definition of known,” quoted language must be elaborate; long is “definite and and (In the phrase excised. the Model Act clear,” id. at 11. (Offenses occurs four times in Article II Penalties) and However, once Article I’s Judge Leighton opin- based his reasoning explicitly may ion on the and result of enumeration of factors a court * * * away any body spoon, marijuana pipe, man a controlled substance or can- cocаine hash- * * pipe, any drug paraphernalia.” nabis ish deliver, any person pos- for 4. “It is unlawful 7. See IV.B infra. deliver, manufacture sess with intent to with deliver, drug paraphernalia, knowing, intent to incorporates by 8. “The Court reference hereto reasonably or under circumstances where one * * Judge opinion Manos’ memorandum *.” know, plant, it will be used to should Judge Leighton 4/22/80 Tr. at 10. further ex- cultivate, harvest, grow, propagate, manufac- cite, plained: going “I’m it be let under- ture, convert, compound, produce, process, pre- citing opinion Judge I stood am the entire test, store, contain, analyze, pack, repack, pare, Manos in Record Revolution No. Inc. v. inhale, conceal, inject, ingest, or otherwise in- Parma, Ohio, entirety, No. C 80-38 in its body into the human a controlled sub- troduce * * * * * every Judge with reservation that Manos made stance or cannabis Judge spent good because I think Manos deal language quoted in 3 Identical note analyzing subject of time this and there is no supra. my going ground.” need in over the same Id. at 21. sell, any person 6. “It shall be unlawful sale, furnish, supply give display, offer for
451 -, particular deciding sider in whether a L.Ed.2d 362 drug paraphernalia. In the An- item has on either the methodology of re- our tioch ordinance it occurs once in view or our final par- determination. The factors.) If an intent re- the list argued, ties have in predictable cursory compensate quirement fashion, that Hoffman Estates mandates vagueness that inheres in the definition validation or invalidation of the ordinance. (see infra), IV.A Given that Hoffman Estates dealt with a knowledge must be based on licensing ordinance, not based on the Model strong probabilities of facts or all, Act at we appellees —rather cannot treat it —as negligent than on failure to know. 492 suggest precedent. direct But Hoff- —as 1171, n.7; F.Supp. at man important Estates also sets limits on (3) Among the factors a court or other au- facial constitutional attacks in drug
thority may consider is whether
paraphernalia area, and is therefore not so
particu-
owner or
in control of a
distinguishable
appellants
would have us
“legitimate supplier
lar
is a
of believe.
community,
like or related items to the
We have recently had occasion to
Such as
licensed distributor or dealer
describe the nature of the inquiry under
products.” Judge
of tobacco
Manos sev-
Hoffman Estates. Record
Corp.
Head
factor,
posed
ered that
because
a seri-
Sachen,
Amendment context, that conduct, the canons construction complainant “the must protected ‘ would a statute to avoid constitu- “not narrow vague prove that the enactment at-, problems place. no Id. tional have requires person a con the sense that n. n. 6. The statute S.Ct. at imprecise his tо an com form conduct give any must be construed to full effect to standard, but rather normative prehensible Here, however, that possible ambiguities. conduct no standard of in the sense that proposition requires last qualification. some v. of Cincin specified at all.” Coates challenged party Neither has the district 611, 614, 1686, 1688, nati, 402 U.S. judge’s interpretation require- of the intent provision 29 L.Ed.2d Such ment, or the severances one factor Goguen, simply no core.’ Smith reasonably the “should have known” lan- 566, 578, 94 1242, 1249,39 L.Ed.2d U.S. S.Ct. guage. appellants The that these Estates, argue supra, (1974).” Hoffman curative, ap- modifications are not but the at-, n. n. pellees apparently are ordinance, content with them. below, explained The Antioch this vague is not sense. statute, it, The as we now view has an makes offense section that it “unlawful for Appeal The Issues on IV. sell, salе, any person display, offer furnish, give any supply away cocaine Estates, virtually ap- all Under Hoffman pipe, pipe, spoon, marijuana arguments pellants’ constitutional paraphernalia.” offense section pre-enforcement, in a facial bound to fail explicit requirement. has no How- challenge. Only require two extended dis- ever, the drug paraphernalia definition vagueness argument, because cussion: clear whether makes an item is in significant differs in Antioch’s ordinance class of or not —and ways licensing the Hoffman Estates from therefore whether the offense section is provision; argument and the the vil- called into play depends on the intent lage’s ban on cocaine — with a charged violation that the impermissibly creates pipes or hashish item be “planting, propagating, used for liability strict offense —an issue cultivating, growing, harvesting, manufac- no occasion Hoffman Estates Court had turing, compounding, converting, produc- address.
ing, processing, preparing,
analyz-
testing,
ing, packaging, repackaging, storing, con-
Vagueness
A.
taining, concealing, injecting, ingesting, in-
deciding
whether the ordinance
*7
haling, or
introducing
otherwise
into the
vague
strong
which
is
sense in
the
* * *
body
human
a controlled substance
term is
in
v.
of
City
used
Coates
Cincinnati
cannabis.” The
defini-
supra,
Goguen,
or Smith v.
we cannot use a
categories
drug
tion also lists eleven
of
test, mechanically
simple
applied. We start
paraphernalia (the eleventh with its own
two,
premise
from
that
there are
co
the
examples),
list of twelve
and the
additional
equal dangers
vague
inherent
enact
list,
exhaustive,
while
sub-
gives
not
some
ments:
to potential
lack of notice
offenders
“drug
stance tо
paraphernalia.”
the term
Grayned
and standardless enforcement.
104, 108,
Rockford,
City
large,
of
there is a
entire
U.S.
Thus
but not
2294, 2298,
ly amorphous
L.Ed.2d 222. We also note
of
class
items that can be
searchingly
paraphernalia,
that
are
an
requirement
criminal laws
more
ex
intent
vagueness,
amined
the
that
for
because
conse
differentiates
innocent
transfers of
severe,
quences
imprecision
multi-purpose
are
than are
items from illegal
of
transfers
(with
pure
regulation
drug paraphernalia.
either
economic
of
That combination
aspect
without
or civil
satisfies
quasi-criminal penalties)
vague
the fair notice
of the
Estates,
test,
supra,
legislation. Hoffman
ness
even in its strictest
form.
In
at-,
holding
9.
v.
660 F.2d
language,
but for
for use”
(10th
1981) (construing
overbroad,
vague,
Cir.
stat-
unseverable).
Colorado
which is
and
slightly
Act);
ute that differed
from Model
Casbah,
Thone,
551,
Inc.
F.2d
559-560
recognized
10. “[T]he Court has
scienter
(8th
1981),
denied,-U.S.-,
Cir.
certiorari
requirement may mitigate
vagueness,
a law’s
1642,
(construing
102 S.Ct.
455
antique
spoon
assumed
apply
legislation
could
salt
or a
that criminal
can dis-
a
pipe
require
finding
(a)
woman’s
does not
of
with
rea if
pense
mens
the conduct at
vagueness.
Supreme
the
As
Court
indi-
prohibition
which the
is
squarely
aimed lies
cated,
adequate safeguard
it is an
that a within the
police powers;
state’s traditional
prosecution
selling
spoon
a
salt
be
(b) there
legislative
is a
determination that
statutory
defended on
or constitutional
curbed;
the conduct
be drastically
(c)
must
grounds.
Estates, supra,-U.S.
Hoffman
the relevant
prove;
(d)
intent
hard to
at-,
1192,
9;
9,
102
n.
n.
S.Ct. at
are,
here,
the
imposed
sanctions
relative-
1196,
21,
n.
102
n. 21.
S.Ct.
ly
Scott,
mild. W. LaFave and A.
Hand-
book on the Criminal Law 31 at 218-222
§
objection
Appellants’
is rather
the
Code,
Even the Model Penal
which
marijua-
statutе
cocaine
spoons
makes
generally disapproves of strict
liability
pipes per
illegal.
na or hashish
se
As a
crimes,
permit
would
them for “offenses
construction,
statutory
appellants
matter of
violations,” i.e.,
which constitute
for of-
The intent requirement,
correct.
as we
punishable only
fenses
by fine, forfeiture,
seen,
have
its
the
way
finds
into
offense
other
penalty.15
or
civil
The Antioch ordi-
only indirectly
section
it
because
per
provisions
nance’s
se
seem to fit both
tained in the
definition.
the
the
traditional and
reform criteria. At
comparable
No
recurs in
most, there is an outside chance that
the
marijuana
the
or
spoon
cocaine
provisions
might
found to violate the
pipe
surely
because
the
definitions14 —
Due Process Clause.
drafters thought
basically
these items were
single-purpose
implements
and did nоt
Moreover, we have found no case in
present
problem Judge
Manos illustrat-
potential
which the
unconstitutionality of a
clip
ed with
in
paper
analogy
his
liability
strict
offense has
successfully
been
Parma, supra.
urged in
challenge.
a facial
All the Su
difficulty
preme
Court
appel
is that even if
cases
which the issue has
right,
lants are
argument
see,
their
will
been raised have been as-applied
not
cases:
support
e.g.,
a
challenge
Freed,
facial
United
v.
601,
Antioch
States
401 U.S.
ordinance.
place, making
1112,
356;
first
91
S.Ct.
28 L.Ed.2d
Powell v.
Texas,
sale of
marijuana
514,
cocaine
or
or
2145,
hash
392 U.S.
88 S.Ct.
20
ish pipes per
illegal may
1254;
se
well not
California,
offend L.Ed.2d
Robinson v.
370
660,
Constitution. The
1417,
Court “has
758;
U.S.
82 S.Ct.
8 L.Ed.2d
never
a
California,
articulated
constitutional doctrine
147,
Smith
361
80
U.S.
S.Ct.
rea,”
Texas,
514,
205;
of mens
215,
Powell v.
892 California,
L.Ed.2d
Lambert v.
535,
2145, 2156,
88 S.Ct.
225,
which it is or V cocaine, or is to hold administer and which typical, as to be so small unsuited for the We hold that the Antioch spoon. spoon lawful uses A cocaine ordinance, (1) construed paraphernalia may may or not be оn a chain merchandised transferred preclude convictions based on may or not may be as “co- intent, (2) rather than require knowledge labeled or spoon spoon. caine” “coke” permit negligent ignorance, (3) strict liability enforcement in limited circum (2) Any drug, “Controlled Substance”: stances, is on its not unconstitutional face. precursor substance immediate enumer- constitutional We intimate no views about 1-5, 56V2, Chapter ated in Schedules PA may context of issues arise in the Stat[ut]es, the Illinois 79-454 of Revised attempts the ordi particular to enforce (commonly amended known as Con- nance. Act). trolled Substances judgment The of the district court is af- (3) As “Cannabis”: defined in Section appellees. Costs to firmed.16 561/2, Chapter 703 of PA 79-1465 of the Statutes, Illinois Revised as amended. PELL, Judge, concurring. Circuit “Marijuana A pipe”: pipe concur in the in the fore- I result reached characterized a bowl so small which is opinion. going primary that the use for which it reason- ably adapted designed smoking is the APPENDIX hashish, marijuana or rather lawful than AN ORDINANCE CHAPTER AMENDING tobacco, smoking may and which OFFENSES, GENERAL OF THE equipped with a screen. OF CODE OF THE ORDINANCES term “Drug Paraphernalia” VILLAGE OF ANTIOCH equipment, products means all and materi- ITBE ORDAINED BY THE MAYOR used, kind which als of intended for BOARD AND OF OF THE TRUSTEES use, designed use, planting, propa- ILLINOIS, ANTIOCH, VILLAGE OF as gating, cultivating, growing, harvesting, follows: manufacturing, compounding, converting, 130, entitled, Chapter producing, 1: That processing, preparing, testing,
SECTION Offenses”, of Ordi- analyzing, packaging, “General of the Code repackaging, storing, Antioch, Illinois, containing, of the Village concealing, nances injecting, ingesting, parties questions opinion. 16. Since have in this not raised cussed standing, of abstention or issue is dis- neither *11 (j) inhaling, introducing or otherwise into the objects used, Containers and other in- use, tended for body designed human a controlled substance or as use stor- ing concealing or 1-5, 56V2, controlled substances or Chapter defined Schedules PA cannabis; Statutes, 79-454 of the Illinois Revised or cannabis as amended defined in Section (k) Objects used, use, intended for or de- 56%, Chapter 703 of PA 79-1465 of the signed for ingesting, use in inhaling, or Statutes, Illinois Revised as amended. It otherwise introducing marijuana, cocaine, includes, but is not limited to: hashish, or hashish oil into the body, human such as: (a) used, use, Kits intended for or de- (l) Metal, wooden, stone,
signed acrylic, glass, planting, for use in propagating, cul- plastic, or pipes ceramic with or without tivating, growing harvesting or any spe- screens, permanent screens, heads, plant cies of which is a controlled substance bowls; punctured or metal or cannabis or from which a controlled sub- stance or cannabis can be derived. (2) Water pipes; used, (3)
(b) use, devices; Kits Carburetion intended for or de- tubes and signed for use in manufacturing, compound- (4) Smoking masks; and carburetion ing, converting, producing, processing, or (5) clips: Roach meaning objects used to preparing controlled or canna- substance[s] burning material, hold as a bis; cigarette, that has become too small or too
(c) used, Isomerization devices hand; intended short to be held in the use, designed or increasing for use in (6) pipes; Chamber potency any species plant which is (7) pipes; Carburetor cannabis; a controlled substance or (8) pipes; Electric (d) used, Testing equipment intended for (9) pipes; Air-driven use, designed identifying, or for use in or in Chillums; analyzing strength, pu- effectiveness or cannabis; rity of controlled substances or (11) Bongs; chillers; (e) used, pipes Ice or and balances Scales intended for use, designed weighing or for use in or In determining object whether Drug measuring controlled substances or canna- paraphernalia, a court or authority other bis; should consider in logi- addition to all other cally factors, relevant the following:
(f) adulterants, Diluents qui- such as mannite, manitol, dex- hydrochloride, nine (a) Statements by anyone an owner or lactose, used, trose and use, intended for object use; or in control of the concerning its designed cutting for use in controlled sub- (b) convictions, owner, Prior if any, of an cannabis; stances or anyone or of object, control of the under any or relating State Federal law any (g) Separation gins used, and sifters in- substance; controlled designed tended for use or for use in remov- from, ing twigs and seeds or in otherwise (c) The proximity object, of the in time cleaning refining marijuana; or space, Act; to a direct viоlation of this (d) (h) Blenders, bowls, containers, The proximity object of the to con- substances; trolled mixing used, use, devices intended for designed or compounding for use in (e) The any existence of residue of con- cannabis; trolled substances or trolled object; substances on the
(i) Capsules, ball[o]ons, envelopes and (f) Direct or circumstantial evidence of used, use, other containers intended for owner, the intent of an anyone or of designed packaging for use in quanti- small control object, of the persons deliver it to cannabis; ties of controlled substances or knows, whom he know, -reasonably should duties, object persons nor suffering intend to use the to facilitate a viola- from diabe- Act; owner, tes, asthma, the innocence of an any tion of this other medical condition object, anyone requiring injection. or of in сontrol of the as to a self prevent violation of this Act shall not direct (D) Penalties. A who violates use, finding that the is intended for provision provisions Ordinance, of this designed Drug paraphernalia; for use as conviction, upon punished shall be with a *12 Instructions, written, (g) provided oral or exceeding ($500.00) fine not Five Hundred use; object concerning with the its Dollars and not less than Twenty Five ($25.00) Dollars. Each day of the violation (h) Descriptive accompanying materials shall be separate considered a offense. use; object explain depict which or its Construction; (E) Severability. It is the (i) advertising National and local legislative provisions intent that all and sec- use; cerning its tions, clauses and sentences of the Ordi- (j) object The manner in which the construed, liberally nance be any and should sale; displayed for section, provision, clause or sеntence be held (k) owner, anyone-in-con- Whether the invalid, unconstitutional or holding n trol-of-the-objectyis-a-legitimate supplier of shall not be construed affecting the va- like or related items to the co[m]munity7 lidity any of the remaining provisions, such as-a licensed distributor or dealer of sections, clauses, sentences, it being the tobacco-products; this Ordinance shall stand not- (7) Direct or circumstantial evidence of withstanding of the validity any provi- object(s) the ratio of sales of the sion, section, clause or sentence. total sales of the business enterprise; SECTION 2: All parts Ordinances or (m) scope The existence and legitimate Ordinances in conflict express- herewith are community; uses for the in the ly repealed. (n) Expert testimony concerning its 3: SECTION This Ordinance shall be in “use.” full force and effect after passage, ap- its proval publication pamphlet individual, form. “Person”: An corporation, government governmental subdivision or trust, estate, trust,
agency, business part-
nership or association.
(C) It shall be unlawful any
sell, sale, furnish, offer display, supply give away spoon, marijuana cocaine pipe, pipe, any drug parapherna- OLDSMOBILE, JACK THOMPSON lia. INC., Petitioner, prohibition contained this section manufacturers, apply shall not wholesal- NATIONAL LABOR RELATIONS ers, jobbers, technicians, licensed medical BOARD, Respondent. technologists, nurses, hospitals, research teaching institutions, laboratories, No. 81-2013. clinical doctors, medical osteopathic physicians, den- United Appeals, States Court of tists, veterinarians, chiropodists, pharma- Seventh Circuit. cists, or embalmers in the normal lawful respective pro- Argued April course of their businesses or fessions, nor to common carriers or ware- July Decided employees engaged houses or their in the transportation parapherna- lawful of such
lia, public employees nor to officers or while
engaged performance of their official