United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge
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.
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.
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
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
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