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Keck v. City of Manitowoc

United States District Court, E.D. Wisconsin

July 18, 2018

JASON KECK, d/b/a BIG JAY'S SMOKE SHOP, Plaintiff,
v.
CITY OF MANITOWOC, Defendant.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge

         The City of Manitowoc enacted an ordinance prohibiting the sale, manufacture, delivery, possession, and advertisement of drug paraphernalia. Plaintiff Jason Keck, doing business as Big Jay's Smoke Shop, initially challenged the ordinance as unconstitutional on its face and as applied. An earlier motion for a preliminary injunction against the City was denied upon a finding that in light of the Supreme Court's decision in Posters ‘N' Things, Ltd. v. United States, 511 U.S. 513 (1994), Keck had failed to show a likelihood of success. Keck thereafter amended his complaint to assert a class-of-one equal protection claim against the City related to its enforcement of the drug paraphernalia ordinance against his business. This matter comes before the court on the City's motion for summary judgment. For the reasons below, the motion will be granted and the case dismissed.

         BACKGROUND

         Keck has owned Big Jay's Smoke Shop located in Manitowoc, Wisconsin since June 2015. Big Jay's sells pipes, hookahs, rolling papers, hand rollers, grinders, scales, vapes, e-cigarettes, and novelty items such as posters and banners, as well as herbal blends that could be used in the smoking devices it offered for sale.

         In September 2016, the City passed an ordinance that prohibited the sale, manufacture, delivery, possession, and advertisement of drug paraphernalia. § 14.300. The Ordinance defines “drug paraphernalia” as

all equipment, products and materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, selling, distributing, delivering, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance . . . .

§ 14.300(1). The Ordinance contains a non-exhaustive list of items deemed to be drug paraphernalia, including metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes “used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marijuana . . . into the human body;” scales and balances used, intended for use or designed for use in weighing or measuring controlled substances; and blenders, bowls, containers, spoons and mixing devices used, intended for use or designed for use in packaging small quantities for controlled substances. § 14.300(1)(a)-(1). In determining whether an item meets the definition of drug paraphernalia, the Ordinance instructs City officials to consider the following fourteen factors:

1. Statements by an owner or by anyone in control of the object concerning its use.
2. Prior convictions, if any, of an owner or of anyone in control of the object under any village, municipal, state or federal law relating to any controlled substances.
3. The proximity of the object in time and space to a direct violation of this chapter.
4. The proximity of the object to controlled substances.
5. The existence of any residue of controlled substance on the object.
6. Direct or circumstantial evidence of the intent of an owner or of anyone in control of the object to deliver it to persons whom the person knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter. The innocence of the owner or of anyone in control of the object as to a direct violation of this chapter shall not ...

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