Both Sides Like Court Ruling : Escondido Says Drug Paraphernalia Law Clarified

In a ruling that released an Escondido adult bookstore from a Catch-22 and left the loser of the appeal happy, the 4th District Court of Appeal has ruled that the City of Escondido has no right to regulate the sale of drug paraphernalia because the state has banned the sale of paraphernalia altogether.

Escondido city officials said they were glad they lost the appeal and promised to now more aggressively try to stop the sale of novelty items commonly associated with illicit drug use.

At issue was a 1982 city ordinance that ordered persons who sell drug paraphernalia and accessories to register with the city and to log each sale for city inspection.

Later that year, the state Legislature declared it a misdemeanor for anyone to sell or furnish drug paraphernalia, period. Drug paraphernalia was defined as items “designed for use or marketed for use” with illegal drugs, such as items specifically intended to inject, ingest or inhale illegal drugs into the body.

Escondido officials insisted on still wanting local retailers to be licensed to sell such items, and the attorney for the F Street Bookstore, an adult-only novelty store in Escondido’s downtown, balked.

For salesmen to register with the city, said attorney Thomas Homann, would be tantamount to admitting the store engaged in the sale of such items--and therefore admitting it was violating the state law. The store does not sell drug paraphernalia, Homann said, and when the city informed the store that it was going to be targeted for enforcement of the municipal law, Homann took the matter to court.

Helped Draft Law

Homann successfully argued his case before Vista Superior Court Judge Lawrence Kapiloff--who as a former state legislator help draft the law, and who ruled that the city’s statute was preempted by the state law.

The city appealed Kapiloff’s ruling, and the court of appeal on Wednesday affirmed Kapiloff’s decision.

Whereas the state law outright banned the sale of such items, “In comparison, by implication through the requirement of licensing and no express prohibition as to sale to adults, the City (of Escondido) appears to be sanctioning the sale of drug paraphernalia to adults,” the court wrote.

“In fact, it is difficult to believe the city is serious in its attempt to defend this ordinance which, on its face, purports to permit businesses to sell goods which are completely banned by state law, so long as the city issues a special local business license,” the appellate court ruled.

Escondido police, the court noted, would be in a difficult position of trying to enforce a state law and a local city law that were contrary.

Said Homann, “It was foolish of the city to pursue the case as intensely as it did, and more foolish to appeal it. I suggested to them that the enforcement of the local law would be irrational and foolish and requested that they voluntarily not enforce it, but I was ignored.”

Escondido City Atty. David Chapman said the city pursued the matter not so much to win the right to license sellers of drug paraphernalia but to clarify what he said was ambiguous state law on the sale of such items.

“One of our major concerns was what the state law really meant. There had been no published appellate court ruling clarifying the law, and as we read the words of the state statute, we couldn’t be sure,” Chapman said.

One of the gray areas, Chapman said, was whether some drug paraphernalia was legal, in which case the sales of such items could be regulated by he city.

‘Aggressive Action’

“If the opinion makes it clear that state law absolutely prohibits the sale of any and all drug paraphernalia, we’re more than happy. That means we don’t need our local ordinance, and now we will be very interested in looking at what kinds of commodities are for sale in several businesses in Escondido.

“If the material is contraband, we’ll take aggressive action very quickly to resolve that problem, and with much more power behind us than we had with the local ordinance,” Chapman said.

Homann said the sale of water pipes, roach clips and other items usually associated with drug use is illegal because they are not directly marketed, sold or linked with drug use.

“You’ll find that people engaged in the retail sale of water pipes market them only for legal uses,” Homann said. “If an item is ambiguous and can be used for legal purposes, then it is not drug paraphernalia.”

The City of Escondido and the F Street Bookstore are not uncommon rivals in court; another appeal currently is pending on whether more than 50% of the store’s inventory is sexually oriented and therefore a violation of another Escondido city ordinance.

The city has maintained that the operators of the 24-hour bookstore have purposely overstocked the store with a large amount of merchandise not sexually oriented in order to comply with the city law, although its real business purpose is as a retail outlet for sexually explicit material.