Opinion
Docket No. 59841.
November 18, 1981.
Appeal from Superior Court of Los Angeles County, No. C 281370, Robert I. Weil, Judge.
COUNSEL
Frank R. Manzano, City Attorney, and Dennis H. Schuck, Assistant City Attorney, for Defendants and Appellants.
Todd Siegel and John Sanford Todd, City Attorney (Lakewood), as Amici Curiae on behalf of Defendants and Appellants.
Caton Glazer, Gilbert C. Caton, Luke McKissack, Glassman Browning, Anthony Michael Glassman, Jane D. Saltsman and Frederic M. Smith for Plaintiff and Respondent.
MEMORANDUM CASE
OPINION
The City of Glendale appeals from a judgment declaring that Glendale Ordinance No. 4439 is unconstitutional and permanently enjoining its enforcement.
The ordinance in question regulates the display to minors of drug paraphernalia for sale. In pertinent part it states: "No owner, manager, proprietor, or other person in charge of any room in any place of business selling or displaying for the purpose of sale any device, contrivance, instrument or paraphernalia designed principally or which may be used for smoking or injecting or consuming marijuana, hashish, PCP or any controlled substance as defined in the Health and Safety Code of the State of California (other than prescription drugs and devices to ingest or inject prescription drugs) including but not limited to roach clips, and cigarette papers and rollers designed or commonly used for smoking of the foregoing, shall allow or permit any person under the age of eighteen (18) years to be in, remain in, enter or visit such room unless such minor person is accompanied by one of his parents or his legal guardian." (Art. IV, § 11-80.)
The ordinance in its entirety is attached as an appendix to this opinion.
The trial court held the ordinance unenforceable in its entirety upon the ground that it violates due process of law by being impermissibly vague.
In Music Plus Four, Inc. v. Barnet (1980) 114 Cal.App.3d 113, 125-129 [ 170 Cal.Rptr. 419], the court held that an essentially similar ordinance of the City of Westminster was not void for vagueness.
A minor difference between the Glendale ordinance and the ordinance upheld in Barnet is that whereas the Westminster ordinance refers to paraphernalia "for smoking or injecting" and roach clips, cigarette papers and rollers "designed for the smoking" of certain substances, the Glendale ordinance refers to paraphernalia "designed principally or which may be used for smoking or injecting" and roach clips, cigarette papers and rollers "designed or commonly used for smoking" of the substances. (Italics added.)
This difference in language is insignificant when the statute is interpreted to include a knowledge requirement, as was done in Barnet. ( Id., at p. 128.)
Respondent also contends that the injunction may be upheld on the alternative grounds that the ordinance impermissibly infringes upon speech protected by the First Amendment and violates due process because it is not rationally designed or reasonably related to achieving a permissible state purpose. These arguments were also rejected in Barnet. ( Id., at pp. 129-132.) The Barnet court also rejected arguments based upon equal protection and preemption by state law. ( Id., at pp. 129-132.) The Supreme Court denied hearing. For all the reasons indicated in Barnet, we find the Glendale ordinance constitutional.
The judgment is reversed.
Stephens, Acting P.J., and Hastings, J., concurred.
Respondent's petition for a hearing by the Supreme Court was denied January 13, 1982. Kaus, J., did not participate therein.
APPENDIX
"ORDINANCE NO. 4439
"AN ORDINANCE OF THE CITY OF GLENDALE ADDING ARTICLE IV TO CHAPTER 11 OF THE GLENDALE MUNICIPAL CODE, 1964, RELATING TO EXCLUSION OF MINORS FROM ANY ROOM OR PLACE OF BUSINESS WHERE DEVICES, CONTRIVANCES, INSTRUMENTS OR PARAPHERNALIA FOR THE SMOKING OR INJECTION OF MARIJUANA, HASHISH, PCP, OR ANY CONTROLLED SUBSTANCE IS DISPLAYED OR OFFERED FOR SALE, AND PROHIBITING THE GIFT, SALE OR DELIVERY OF SUCH DEVICES TO MINORS.
"BE IT ORDAINED BY THE COUNCIL OF THE CITY OF GLENDALE:
"SECTION 1. Article IV is hereby added to Chapter 11 of the Glendale Municipal Code 1964, by adding thereto the following:
"ARTICLE IV. Section 11-80.
"Sec. 11-80. Sale and display of narcotic and other paraphernalia — Minors.
"No owner, manager, proprietor, or other person in charge of any room in any place of business selling or displaying for the purpose of sale any device, contrivance, instrument or paraphernalia designed principally or which may be used for smoking or injecting or consuming marijuana, hashish, PCP or any controlled substance as defined in the Health and Safety Code of the State of California (other than prescription drugs and devices to ingest or inject prescription drugs) including but not limited to roach clips, and cigarette papers and rollers designed or commonly used for smoking of the foregoing, shall allow or permit any person under the age of eighteen (18) years to be in, remain in, enter or visit such room unless such minor person is accompanied by one of his parents or his legal guardian.
"Sec. 11-81. Persons excluded — Minors.
"A person under the age of eighteen (18) years shall not be in, remain in, enter or visit any room in any place of business used for the sale or displaying for sale, device, contrivance, instrument or paraphernalia designed principally or which may be used for smoking, injecting, or consuming marijuana, hashish, PCP, or any controlled substance (other than prescription drugs and devices to ingest or inject prescription drugs) including but not limited to roach clips, and cigarette papers and rollers designed or commonly used for smoking the foregoing, unless such person is accompanied by one of his parents or his legal guardian.
"Sec. 11-82. Sale and display rooms.
"Sec. 11-83. Same — Nuisance.
"SECTION 2. The City Council hereby declares that it would have passed this ordinance sentence by sentence, paragraph by paragraph and section by section, and does hereby declare that the provisions of this ordinance are severable and, if for any reason any sentence, paragraph, or section of this ordinance shall be held invalid, such decision shall not affect the validity of the remaining parts of this ordinance.
"Passed by The Council of the City of Glendale on the 13th day of March , 1979.
"ATTEST: ___________________________ Mayor
____________________________ ___________________________ City Clerk CITY ATTORNEY
"DATE ______________________"