JOE HEATON, District Judge.

Micheal C. Salem, Salem Law Offices, Norman, OK, for Plaintiffs.

Matthew P. Anderson, U.S. Attorney's Office, Oklahoma City, OK, for Defendants.

ORDER

JOE HEATON, District Judge.

This case arises out of law enforcement actions taken by the Drug Enforcement Administration (“DEA”) and others against certain smoke shops operating in Oklahoma. Businesses known generally as “Ziggy's” or “Ziggy's Smoke Shops” have operated in multiple locations in Oklahoma for many years. On April 22, 2015, the DEA seized a substantial portion of the inventory of those shops, on the basis the seized property was “drug paraphernalia” used or acquired as a result of violation of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq. The seized items included various types of glass pipes, plastic pipes, rolling papers, scales, bongs, and similar items.

Plaintiffs here (“Ziggy1 Corporation” and “Ziggy2 Corporation”) are newly created corporations, established after the April 22 seizure. Chelsey Davis appears to be the organizer and principal shareholder of these entities, and an officer of them. According to the plaintiffs, they were established as a vehicle to acquire the inventory of the various Ziggy's locations remaining after the seizure—what plaintiffs allege to be, or what Mr. Davis believed to be, the legal assets of the businesses—and to continue business operations under some variation of the Ziggy's name. According to Mr. Davis, he operated an unrelated business near one of the Ziggy's locations, was acquainted with the owner/principal of the Ziggy's stores (Johnny Ren), and, soon after the seizure, negotiated a deal with Mr. Ren for acquisition of the remaining assets. He indicates he began efforts, through the two plaintiff corporations, to re-staff the stores, establish relationships with the various landlords, and take other steps necessary to the operation of the stores.

While the exact timing of subsequent events is somewhat uncertain, it appears that DEA became aware of efforts by Mr. Davis to continue the operations of the various smoke shop locations. So far as appears from the current submissions to the court, DEA made no effort to contact Mr. Davis directly or to challenge his operation of the various locations. Rather, on May 19, 2015, the DEA's Assistant Special Agent in Charge (Richard W. Salter) sent letters to the landlords of the various Ziggy's locations, advising them that the DEA had received information “there is, or may be, probable cause to believe” that their leased premises were being used in violation of the Controlled Substances Act (“CSA”). The letters further stated that “the property has also been used, or is being used” to distribute synthetic marijuana and drug paraphernalia and that “continued use of this property to distribute synthetic cannabinoids and/or drug paraphernalia may further subject the property to forfeiture....” The letters warned that continued use of the property in violation of federal law might result in the landlord's loss of “innocent owner” status under the law, loss of the property, and other serious consequences.

Plaintiffs' evidence is that the various landlords then began heading for the exits. Notices to quit were served by some, and plaintiffs indicate several of the locations were shut down by the time of the preliminary injunction hearing. The responses of some of the landlords, through their counsel or other representatives, led to at least one meeting with the DEA and other agents at which Mr. Davis was present. He indicates he told the DEA he was seeking to sell only legal products through the businesses and that the inventory he acquired from Mr. Ren or his entities was the inventory not already seized by the DEA. Plaintiffs allege that Davis invited the various agents onto the properties to verify his claims, but they declined. He indicates he sought guidance from the agents as to what of the remaining inventory they viewed as drug paraphernalia and that they replied “all of it” or words to that effect.

Plaintiffs then filed this case seeking declaratory and injunctive relief. Although the complaint's description of the various claims and relief sought is not entirely clear, it appears plaintiffs seek essentially the following: (1) a declaration that the Controlled Substances Act is unconstitutionally vague as applied to the plaintiffs, (2) a declaration stating whether the particular items and substances they are selling are or are not legal, and (3) injunctive relief preventing the defendants from instituting, or threatening to institute, forfeiture proceedings or other prosecution against the plaintiffs or their landlords.

The court held a hearing on July 10, 2015, which it treated as a hearing on the motion for temporary restraining order (“TRO”). It granted plaintiffs' motion in part, enjoining defendants from pursuing any civil or other forfeiture proceedings, or issuing any further warnings or letters, directed at the landlords, pending a further hearing on the request for preliminary injunction. Order, July 10, 2015 [Doc. # 10]. The order did not restrain any actions by the defendants directed to or at the plaintiffs, as opposed to the third-party landlords. At the July 28, 2015, preliminary injunction hearing, the court received evidence, heard further argument from the parties, and continued the TRO in effect pending the court's decision on the request for preliminary injunction. In the meantime, defendants moved to dismiss this case on jurisdictional and other grounds. That motion is now also at issue.

The court concludes the motion to dismiss should be denied and the motion for preliminary injunction granted to the extent stated in this order.

Motion to Dismiss

As the motion to dismiss raises issues going to the subject matter jurisdiction of the court, it is addressed first. In resolving the 12(b)(1) motion, the court has considered the evidence offered at the hearing, in addition to the complaint's allegations. See Holt v. U.S., 46 F.3d 1000, 1003 (10th Cir.1995).

Defendants contend there is no “case or controversy” here within the meaning of U.S. Const. art. III, § 2. They challenge plaintiffs' standing to bring the claims involved here, arguing that no injury has occurred or is imminent and that plaintiffs have no legally protected interest in the continued operation of these businesses such as might be the basis for a claim. Standing is a constitutional prerequisite to the court's jurisdiction. Bishop v. Smith, 760 F.3d 1070, 1088 (10th Cir.2014). In order to have standing, plaintiffs must show (1) that they have suffered an injury in fact, (2) that the injury is fairly traceable to the challenged action of the defendants, and (3) that it is likely that the injury will be addressed by a favorable decision. Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir.2012) (quotations omitted); see also Davis v. FEC, 554 U.S. 724, 733, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). The “injury in fact” must involve a concrete and particular injury that is either actual or imminent. Bishop, 760 F.3d at 1088.

The court concludes plaintiffs have shown the existence of a “case or controversy” and that they have standing to pursue their claims here. With respect to the request for a declaration as to the applicability of the CSA to their operations, plaintiffs have alleged that the statutory scheme does not afford them fair notice of what conduct is prohibited, in a manner that would discourage arbitrary enforcement. Further, plaintiffs are actually engaged in activity potentially covered by the statutory scheme. The allegations and evidence indicate that the DEA, and perhaps others, are focused on the activities of these plaintiffs and others who are in the same business, that the DEA and its agents have declined to provide guidance as to the potential application of the statutes to plaintiffs, and that some agents have endorsed an expansive reach of the statutes (i.e., what is “paraphernalia”) that puts plaintiffs' continued operations at risk. This showing is sufficient to make out the necessary “injury in fact” as to the vagueness claim. See Aid for Women v. Foulston, 441 F.3d 1101, 1110 (10th Cir.2006).

IT IS SO ORDERED.