Full opinion text
MEMORANDUM OF OPINION MANOS, District Judge. On January 10, 1980 the plaintiff, Record Revolution No. 6, Inc., filed this action under 42 U.S.C. § 1983 challenging the constitutionality of City of Parma Ordinance No. 242-79, an ordinance regulating the distribution, advertisement and use of “drug paraphernalia.” The plaintiff’s verified complaint seeks declaratory as well as injunctive relief. This court’s subject-matter jurisdiction is based upon 28 U.S.C. §§ 1331, 1343(3), 2201, and 2202. On January 11, 1980 a hearing was held on the motion for a temporary restraining order filed by the plaintiff with its complaint. At the hearing the defendants agreed not to pursue enforcement of the Ordinance until a decision in this case could be reached on the merits. By agreement of the parties, the court then ordered the preliminary and permanent injunction to be consolidated for hearing. See Rule 65(a)(2), Fed.R.Civ.P. On January 28 and 30, 1980 the hearing on the permanent injunction was held and thereafter, in accordance with the schedule set by the court, the plaintiff submitted its post-trial brief on February 15, 1980 and the defendants submitted theirs on February 25, 1980. On February 29, 1980 the City of Lakewood, Ohio, which enacted an ordinance substantially identical to Parma’s No. 242-79 on January 21, 1980, filed an amicus curiae brief. On March 3, 1980 the plaintiff filed its reply brief. For the reasons discussed below, the court concludes that Parma Ordinance No. 242-79 is constitutional as it is construed herein. I. Record Revolution No. 6, Inc. is an Ohio corporation which operates a retail business at 7703 West Ridgewood Drive, Parmatown Mall, Parma, Ohio. The plaintiff displays and advertises various items including recorded and taped music as well as “miscellaneous novelty items.” (Complaint, ¶ 1). The defendants are: the City of Parma (a municipal corporation organized' under the laws of Ohio), John Petruska (the Mayor of Parma), Andrew Boyko (the Director of Law and Chief Prosecutor of Parma), Francis Szabo (Chief of the Parma Police Department), as well as Kenneth Kuczma, Victor Labutta, Frank Houdek, Joseph Molodec, Evelyn Kopchak, Gerald Boldt, Edward Lonjak, Doris Krawczyk and William Obuch (the members of the Parma City Council). On January 7, 1980 the Council of the City of Parma, Ohio enacted Ordinance No. 242-79: “An Ordinance Enacting New Sections 620.01(dd) and 620.04 To The Codified Ordinances of The City of Parma, Prohibiting the Sale of Drug Related Paraphernalia.” On January 9,1980 the Ordinance was signed into law by the city’s Mayor, defendant Petruska. Ordinance No. 242-79 provides as follows: “WHEREAS, this Council has become aware of and is concerned over the general proliferation of ‘head shops’ engaged in the sale of paraphernalia associated with drug use; and WHEREAS, this Council finds that such establishments serve only to entice young people to abuse substances which are known to be harmful and unsafe for human consumption; and WHEREAS, this Council finds that this situation has created a problem of such large proportion as to necessitate further legislation on the subject; Now, Therefore, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PARMA, STATE OF OHIO: Section 1. That Codified Ordinance 620.-01, as enacted by Ordinance 228-75, passed February 2, 1976, is hereby amended by adding the following language: 620.01 DEFINITIONS. (dd)(l) ‘Drug Paraphernalia’ means 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, 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 in violation of this Chapter. It includes, but is not limited to: (A) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived; (B) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances; (C) Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance; (D) Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances; (E) Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances; (F) Diluents and adulterants, such as quinine hydrochloride, mannitol, man-nite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances; (G) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana; (H) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances; (I) Capsules, balloons, envelopes or other containers used, intended for use, or designed for use in packaging small quantities of controlled substances; (J) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances; (K) Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body; (L) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body, such as: (i) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; (ii) Water pipes; (iii) Carburetion tubes and devices; (iv) Smoking and carburetion masks; (v) Roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; (vi) Miniature cocaine spoons, and cocaine vials; (vii) Chamber pipes; (viii) Carburetor pipes; (ix) Electric pipes; (x) Air-driven pipes; (xi) Chillums; (xii) Bongs; (xiii) Ice pipes or chillers; 2. In determining whether an object is ‘Drug paraphernalia,’ a court or other authority should consider, in addition to all other logically relevant factors, the following: (A) Statements by an owner or by anyone in control of the object concerning its use; (B) Prior convictions, if any, of an owner, or of anyone in control of the object, under any City, State, or Federal law relating to any controlled substance; (C) The proximity of the object, in time and space, to a direct violation of this Chapter; (D) The proximity of the object to controlled substances; (E) The existence of any residue of controlled substances on the object; (F) Director circumstantial evidence of the intent of an owner, or of anyone in control of the object to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this Chapter; the innocence of an owner or of anyone in control of the object, as to a direct violation of this Chapter shall not prevent a finding that the object is intended for use, or designed for use as ‘Drug paraphernalia;’ (G) Instructions, oral or written, provided with the object concerning its use; (H) Descriptive materials accompanying the object which explain or depict its use; (I) National and local advertising concerning its use; (J) The manner in which the object is displayed for sale; (K) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products; (L) Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise; (M) The existence and scope of legitimate uses for the object in the community; (N) Expert testimony concerning its use. Section 2. That there is hereby enacted a new section 620.04 of the Codified Ordinances of the City of Parma which shall read as follows: 620.04 POSSESSION, MANUFACTURE, AND SALE OF DRUG PARAPHERNALIA. (a) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this Chapter. (b) It is unlawful for any person to deliver, sell, possess with intent to deliver or sell, or manufacture with intent to deliver or sell, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this Chapter. (c) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. (d) Any person 18 years of age or over who violates paragraph (b) by delivering drug paraphérnalia to a person under 18 years of age who is at least 3 years his junior is guilty of a special offense. (e) This section does not apply to manufacturers, practitioners, pharmacists, owners of pharmacies and other persons whose conduct was in accordance with Ohio R.C. Chapters 3719, 4715, 4729, 4731 and 4741. This section shall not be construed to prohibit any possession, manufacture, or use of hypodermics made lawful by Section 620.09 of the Codified Ordinances. (f) Any drug paraphernalia used in violation of this section shall be seized and forfeited to the Municipality. (g) If any provision of this section or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the section which can be given effect without the invalid provision or application, and to this end the provisions of this section are severable. (h) Whoever violates any of the provisions of paragraphs (a), (b), or (c) is guilty of a misdemeanor of the second degree. If the offender has previously been convicted of a violation of paragraphs (a), (b), or (c), any subsequent violation of the same paragraph is a misdemeanor of the first degree. Whoever violates any of the provisions of paragraph (d) is guilty of a misdemeanor of the first degree.” Section 3. That Section 620.04 of the Codified Ordinances, as enacted by Ordinance 228-75, passed February 2, 1976, be, and hereby it is, repealed. Section 4. That this Ordinance is hereby declared to be an emergency measure necessary for the immediate preservation of the public health, safety and welfare of the City of Parma, and for the further reason that sale and use of drug paraphernalia is a presently-existing and serious danger to youths which requires immediate regulation, and this Ordinance shall become immediately effective upon receiving the affirmative vote of two-thirds of all members elected to Council and approval of the May- or, otherwise from and after the earliest period allowed by law.” The parties have stipulated that this Ordinance is based upon the “Model Drug Paraphernalia Act” (hereinafter MDPA) drafted by the Drug Enforcement Administration of the United States Department of Justice. The MDPA is supplemented by comments which explain its provisions in terms of the drafters’ intent. Specifically, the comments indicate that the MDPA was promulgated at the behest of state authorities to enable them to “cope” with the proliferation of drug paraphernalia. Since it was clearly the intent of the Parma City Council to enact the MDPA, the court will use these comments to interpret the language of the Ordinance. The plaintiff seeks to have the Ordinance declared invalid and unconstitutional. Its contentions are: (1) that the enactment is inconsistent with the Due Process Clause of the Fourteenth Amendment because it is overbroad (it prohibits commercial speech protected by the First Amendment) and vague; (2) that it is inconsistent with the Equal Protection Clause of the Fourteenth Amendment because it invidiously discriminates against so-called “head shops” and because it is not reasonably related to any legitimate governmental objective; and (3) that it is inconsistent with the Commerce Clause of the Constitution (Article I, Section 8, Clause 3) because it imposes an impermissible burden on interstate commerce. The court will first address the vagueness and overbreadth claims, and then separately evaluate the equal protection and commerce clause arguments. II. VAGUENESS AND OVERBREADTH In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), the Supreme Court defined the due process doctrine commonly referred to as “void for vagueness” as follows: It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of those freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone’ than if the boundaries of the forbidden areas are clearly marked.” Id. at 108-09, 92 S.Ct. at 2298-99 (citations omitted). Accordingly, to pass constitutional muster an ordinance must provide notice of the conduct which it proscribes in terms which a person of ordinary intelligence can understand, see, e. g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and provided clear guidelines for law enforcement officers, judges and juries to follow; see, e. g., Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1971); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214. Moreover, if First Amendment interests are affected, a precise ordinance “evincing a legislative judgment that certain specific conduct be proscribed,” Edwards v. South Carolina, 372 U.S. 229, 236, 83 S.Ct. 680, 684, 9 L.Ed.2d 697 (1963), assures the court that the city council has weighed the ordinance’s impact upon First Amendment interests and determined that other governmental policies compel regulation. Garner v. Louisiana, 368 U.S. 157, 200, 202, 82 S.Ct. 248, 271-72, 7 L.Ed.2d 207 (1961) (Harlan, J., concurring). See Grayned v. City of Rockford, 408 U.S. at 109, n.5, 92 S.Ct. at 2299. The vagueness doctrine does not invalidate every ordinance that could have been drafted more precisely. The Flipside, Hoffman Estates v. Village of Hoffman Estates, 485 F.Supp. 400 (N.D.Ill.1980). Reasonableness, not absolute certainty of draftsmanship, is required. Tobacco Road v. City Of Novi, (E.D.Mich.; Slip Op. No. C79—71000, 6/21/79). Many ordinances are inherently ambiguous, because “[i]n most English words and phrases there lurk uncertainties.” Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). As the Court noted in Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952): [F]ew words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line. The test is whether the ordinance presents “ascertainable standards of guilt.” Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). In United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947), the Court stated: That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is not sufficient reason to hold the language too ambiguous to define a criminal offense. [T]he Constitution does not require impossible standards. The doctrines of vagueness and overbreadth are related: “overbroad laws, like vague ones, deter privileged activity.” Grayned v. City of Rockford, 408 U.S. at 114, 92 S.Ct. at 2302. However, “[a] clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” Id. The plaintiff claims that subsection 620.04(c) of the Ordinance is overbroad because it unduly interferes with commercial speech protected by the First Amendment. As this court noted in Kucinich v. Forbes, 432 F.Supp. 1101, 1115 (N.D.Ohio 1977), in order for a statute or ordinance to be unconstitutionally overbroad it must, on its face: (1) restrict speech or other conduct protected by the Constitution of the United States; and (2) the municipalities’ interest in restricting the conduct must be insufficient in comparison to the encroachment on the constitutional right involved or, if a legitimate municipal interest exists to justify the restriction, the ordinance must fail to employ the narrowest means consistent with the furtherance of that interest. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973). The crucial question, then, is whether the Ordinance sweeps within its prohibitions protected speech which may not be punished. To determine whether a legislative enactment meets these constitutional requirements the same rules of construction apply whether it is a statute or an ordinance. The Flipside, Hoffman Estates v. Village of Hoffman Estates, supra (citing Martin v. King, 417 F.2d 458, 461 (10th Cir. 1969)). Among the rules of construction is the rebuttable presumption that legislative enactments are valid unless it is shown that the statute or ordinance in question bears no rational relationship to a legitimate legislative purpose. United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973), cert. denied, 414 U.S. 831, 94 S.Ct. 62, 38 L.Ed.2d 65. However, a stricter standard of review is required if the enactment infringes upon the exercise of a fundamental right. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The court must also bear in mind that “[t]he Office of Judges is always to make such construction as to suppress the Mischief and advance the Remedy; and to suppress subtle Inventions and Evasions for Continuance of the Mischief.” United States v. Second National Bank of North Miami, 502 F.2d 535, 541 (5th Cir. 1974), cert. denied 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975) (quoting Heydon’s Case, 3 Co. 7a, 7b; Magdalon College Case, 11 Co. 666, 736b). Moreover, the court should favor an interpretation of the enactment which supports constitutionality. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). Finally, all laws should receive a sensible construction. United States v. Ryan, 284 U.S. 167, 52 S.Ct. 65, 76 L.Ed. 224 (1931). As the Court held in United States v. Ryan, supra at 175, 52 S.Ct. at 68: A literal application of a statute which would lead to absurd consequences is to be avoided whenever a reasonable application can be given which is consistent with the legislative purpose. Id. at 175, 52 S.Ct. at 68 (citations omitted). A. DEFINITION The„key to the Parma Ordinance is the definition of drug paraphernalia contained in section 620.01(dd)(l). Each of the criminal offenses defined in subsections 620.04(a)-(d) refer to “drug paraphernalia,” thereby incorporating the definition by reference. The court finds that this definition is not vague. As the Court of Appeals for the Eighth Circuit observed in United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976), the term “ ‘paraphernalia’ has become a standard vocabulary word in the vernacular of the drug community . . . .” However, drug paraphernalia is difficult to define in constitutionally adequate terms because nearly every item that is used with illegal narcotics also has a more customary and innocent use. The use, manufacture and sale of all such items could not be prohibited constitutionally. Cf. United States v. Brunnet, 53 F.2d 219 (W.D.Mo.1931). Rather, such a blanket prohibition would be so imprecise as to lead to selective enforcement which would be unconstitutional. The Parma Ordinance avoids any such wholesale prohibition by defining drug paraphernalia in terms of the intent of the individual or entity charged with one of the offenses described in § 620.04. As the drafters of the MDPA noted, criminal intent is what distinguishes the paper clip which holds the pages of this memorandum of opinion from an identical clip which is used to hold a marijuana cigarette. The drafters of the Model Act commented as follows: To insure that innocently possessed objects are not classified as drug paraphernalia, [the definition] makes the knowledge of criminal intent of the person in control of an object a key element of the definition. Needless to say, inanimate objects are neither “good” nor “bad,” neither “lawful” nor “unlawful.” Inanimate objects do not commit crimes. But, when an object is controlled by people who use it illegally, or who intend to use it illegally, or who design or adapt it for illegal use, the object can be subject to control and the people subjected to prosecution. [The definition] requires, therefore, that an object be used, intended for use, or designed for use in connection with illicit drugs before it can be controlled as drug paraphernalia. MDPA, Comment pp. 6-7 (1979) (emphasis added). As a general rule, a crime consists of two elements: (1) an act or omission, and (2) a state of mind — mens rea. Although the mens rea of an offense may differ from crime to crime, the general state of mind required is an intent to perform the criminal act. Of course, the mens rea and the act must occur simultaneously and the intent must be that of the criminal defendant. Because the definition of drug paraphernalia is referenced in each of the criminal offenses described in this Ordinance, it is an element of each of these offenses. Specifically, the criminal intent used to define drug paraphernalia is an element of the mental state required to convict under this Ordinance. Therefore, the pertinent intent must be that of the individual charged with having committed one of the offenses described in section 620.04(a)-(d). The court concludes that “black-letter” criminal law and the intent of the MDPA draftsmen compel the conclusion that the definition of drug paraphernalia must be interpreted in terms of the criminal defendant’s intent and that this construction is reasonable and sensible. Citing the testimony of Councilwoman Krawczyk, the plaintiff contends that the intent referenced in the definition is that of the purchaser of the item and that the Ordinance is unconstitutionally vague because a person could, for example, be convicted of dealing in drug paraphernalia if the buyer of his product, or a prospective user several times removed from the transaction, intends to use the item to administer illegal drugs. See NORML v. Sindak, Slip Op. 16-17, Civil Action No. TH75-142 (S.D. Ind., 2/4/80). Parma, on the other hand, argues that the Ordinance provides adequate notice of its proscriptions because the relevant intent is that of the seller of the item. The city bases this construction upon cases involving the sale of ingredients used to illegally manufacture liquor which it argues are analagous to regulation of drug paraphernalia since both the ingredients of liquor and the items used to administer drugs have innocent and lawful uses. The court finds that neither of these suggested constructions can be constitutionally applied to all of the offenses defined in the Ordinance. Whether this Ordinance is vague on its face is a question of law which is exclusively the responsibility of the court to determine. Cf. United States v. Garber, 589 F.2d 843, 849 (5th Cir. 1979). As the court stated during the hearing, defendant Krawczyk’s interpretation of the Ordinance is not binding on it. As the Supreme Court noted in Bouie v. City of Columbia, 378 U.S. 347, 355, n. 5, 84 S.Ct. 1697, 1703, 1704 n. 5, 12 L.Ed.2d 894 (1964): The determination whether a criminal statute provides fair warning of its prohibitions must be made on the basis of the statute itself and the other pertinent law, rather than on the basis of an ad hoc appraisal of the subjective expectations of particular defendants. See also Castaneda-Gonzalez v. Immigration & Naturalization Serv., 564 F.2d 417, 424 (D.C.Cir.1977); Financial Indemnity Co. v. Cargile, 32 Ohio Mise. 103, 106, 288 N.E.2d 861, 863 (1972) (“We believe that the meaning of the act must be determined from the words of the statute itself. The court cannot consider what an individual legislator, even the author of the bill, states he understood them to mean.”). Defining all drug paraphernalia in terms of the state of mind of the seller of the item, does not solve the problem of transferred criminal intent. For example, if a manufacturer is prosecuted under section 620.04(b) and the term “drug paraphernalia” is defined in terms of the seller’s intent, as Parma suggests, the manufacturer of an innocent item would be subject to criminal punishment because the seller intends it to be used with illegal drugs. The Ordinance regulates the following categories of conduct: use of paraphernalia with illegal drugs, possession of paraphernalia with intent to so use, placement of certain drug paraphernalia advertisements, and manufacture of paraphernalia for sole use with drugs. Therefore, defining all drug paraphernalia in terms of the intent of an individual clássifiable in any one of these categories would cause a transferred intent problem whenever the definition was applied to the allegedly criminal conduct of individuals in one of the other categories. For this reason, the court’s construction, defining drug paraphernalia in terms of the intent of the individual charged with violating the Ordinance, is more reasonable and sensible. There are three forms of state of mind on which the definition of drug paraphernalia turns: “[A]ll equipment, products and materials of any kind which are (1) used, (2) intended for use, or (3) designed for use in . introducing into the human body an [illegal] controlled substance.” § 620.-01(dd)(l) (emphasis added). The court construes each of these three elements as implying and requiring the existence of general criminal intent by the defendant. Thus, the criminal defendant’s voluntary and intentional use of an item with illegal drugs makes it drug paraphernalia within the meaning of this Ordinance. Similarly, if the defendant intends an item for use with illegal drugs or designs it for that use the item is drug paraphernalia. Adding the element of general intent not only narrows the scope of the ordinance, it insures that no one will be convicted because of mistake, accident or other innocent reason. For example, if a person smokes marijuana from a pipe believing it contains tobacco, he could not be convicted of using drug paraphernalia under section 620.04(a); the pipe is not drug paraphernalia because it was not intentionally used with marijuana. Similarly, if a person smokes tobacco in a water pipe which was designed for use with marijuana, he is not subject to prosecution for using drug paraphernalia because he did not intend to use the pipe to ingest an illegal controlled substance. As a general rule, if words are not defined in an ordinance and there is “no accumulation of jurisprudence on [their] actual meaning,” the court must assume that the legislators used them as they are commonly and ordinarily understood. United States v. Porter, 591 F.2d 1048, 1053 (5th Cir. 1979). The only phrase defined in the Ordinance is drug paraphernalia. Moreover, there is no accumulation of jurisprudence applicable to this Ordinance because this is a case of first impression. Therefore, the court concludes that the words “equipment, products or materials,” and the words describe the uses with illegal drugs to which an item can be put (planting, propagating, cultivating, etc.) should be interpreted according to their ordinary dictionary definitions. The definition of drug paraphernalia, § 620.01(dd)(l)A-L, also includes a description of items which might be intentionally used, intended for use, or designed for use with an illegal substance. Again, it is important to note that the scope of this Ordinance is narrowed because none of the items listed is drug paraphernalia per se; only if one of the three forms of the criminal defendant’s intent is present, can an item, for purposes of that defendant’s prosecution, be drug paraphernalia within the meaning of this Ordinance. Section 620.01(dd)(2) lists fourteen indicia which law enforcement authorities may use to determine whether an object is “drug paraphernalia.” With one exception the court finds that these enforcement guidelines are not vague. The single exception is subpart (K) which provides: In determining whether an object is “Drug paraphernalia,” a court or authority should consider, in addition to all other logically relevant factors, the following: (K) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products. . . . Section 620.01(dd)(2)(K) (emphasis added). This portion of the Ordinance fails the second test of vagueness; the reference to “legitimate” suppliers creates a danger of arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, supra. Because the provisions of this Ordinance apply to all who use, distribute or advertise even an innocent item with the requisite intent, the term “legitimate” supplier is imprecise and misleading. Accordingly, sub-part (K) is severed from the Ordinance pursuant to section 620.04(g), the severability clause. The other subparts of section 620.-01(dd)(2) provide useful guidelines that policemen may use to make a probable cause determination, and that the trier of fact may use, to the extent the applicable rules of evidence permit, to determine whether the elements of an offense have been proved. B. OFFENSES The court concludes that the offenses described in section 620.04 are neither vague nor overbroad, except for the “reasonably should have known” standards of knowledge which must be severed from subsections (b) and (c). 1. SECTION 620.04(a) This subsection proscribes the intentional use of drug paraphernalia with illegal drugs as well as the possession of such items with the intent to use them with illegal drugs. To convict an individual of using drug paraphernalia is violation of 620.04(a), the City of Parma must prove each of the following elements beyond a reasonable doubt: (1) that the defendant used a piece of equipment, a product or material to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body an illegal controlled substance; and (2) that the defendant acted with the general intent to do the act and not because of mistake, accident or any other innocent reason. These elements are based upon the definition of drug paraphernalia which is incorporated by reference into subsection (a). As previously described, the pertinent definitional intent in this instance is that of the alleged user. To convict an individual of the offense of possessing drug paraphernalia with intent to use it with illegal narcotics, the City of Parma must prove each of the following elements beyond a reasonable doubt: (1) that the defendant possessed a piece of equipment, a product or material; and (2) that the defendant intended to use the item he possessed to plant, propagate, cultivate, grop', harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body an illegal controlled substance. In accordance with the rules of construction regarding undefined words, the court concludes that the word “possess,” as it is used in this Ordinance, means: The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one’s use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. Black’s Law Dictionary, p. 1325 (4th ed. 1968). It is clear that this subsection requires more than innocent possession of an object which could be used as drug paraphernalia. For example, although the definition of the word possess is broad enough to include items displayed by a retailer, merely holding an item in inventory is not a violation of subsection (a). Such a retailer would not be subject to prosecution for the possession offense defined in this subsection unless he intended to use the displayed item with illegal drugs himself. “Possession with intent to use” requires that the possessor be the individual who intends to use the item with illegal drugs, not some third party. Moreover, innocent possessors of ordinary items that could be used with illegal drugs are not subject to prosecution under subsection (a). The court concludes that this subsection gives persons of average intelligence fair notice of the conduct which is forbidden, United States v. Harriss, supra, and that it is drawn narrowly enough to avoid arbitrary arrests. Grayned v. City of Rockford, supra. 2. SECTION 620.04(b) This subsection applies to individuals who facilitate the use of controlled substances by distributing an item knowing that it will be used with illegal drugs. There are two standards of knowledge used in the Ordinance: (1) actual, and (2) constructive knowledge. The court finds that the “reasonably should have known” standard of constructive knowledge is unconstitutionally vague and that it must be severed from this subsection. The remaining portion of the subsection proscribes, in constitutionally adequate terms, the intentional delivery and sale of drug paraphernalia, as well as its manufacture and possession with intent to deliver or sell, by individuals with knowledge that the item will be used with illegal drugs. Criminal intent has traditionally been defined to include actual knowledge: one is said to intend a consequence if (a) he desires that his act causes certain consequences, or (b) he actually knows that the consequences are substantially certain to result from his acts. La Fave & Scott, Criminal Law, § 28 (1st ed. 1972) (citing Williams, Criminal Law: The General Part, §§ 16, 18 (2d ed. 1961)). This subsection reflects the legislative judgment that an individual who acts (distributes drug paraphernalia) intends the result of his act (that the item actually be used with illegal drugs) when he knows that that result is practically certain to follow from his conduct; whether or not the defendant desires that result is irrelevant. Clearly, the element of actual knowledge adequately protects a criminal defendant’s due process rights. For example, to commit the offense of selling paraphernalia under this subsection an individual must act purposely to sell drug paraphernalia and he must act with knowledge that it will be used with illegal drugs. On the other hand, it is constitutionally impermissible to impute to a criminal defendant knowledge of the illegal use of items which are normally and innocently used every day by a variety of individuals. Construing a drug paraphernalia ordinance that proscribed the sale of items which the seller “had reason to believe” would be used with certain illegal drugs, Judge Sarokin of the District of New Jersey aptly described the problem caused by this standard as follows: [T]he seller faced with the Roxbury ordinance has to determine what the customer intends to do with the items of purchase. Certainly in a case where the purchaser announces his or her intention to utilize the paraphernalia purchased for an illegal purpose, the seller would be placed in no dilemma; however, the question arises as to what would create a reasonable belief in the mind of the seller in the absence of such an unlikely announcement by the purchaser. Does the purchaser’s age, sex, mannerisms or dress afford to a seller reason to believe that the paraphernalia will be used for an illegal purpose? Or should the nature of the purchaser’s companions or the items he or she carries be determinative? These questions indicate the difficulty that a merchant, as well as a law enforcement officer, would have, in the absence of an admission by the purchaser, in determining what gives rise to a reasonable belief that a purchaser intends to utilize the paraphernalia for an illegal purpose. An additional concern is whether it is proper to charge an owner of a department store, or any other store, with responsibility for a sales clerk’s determination as to whether the person purchasing an item, especially an innocuous one such as a weight scale or a spoon, intends to utilize it for some improper and illegal purpose. Knoedler v. Roxbury Township, 485 F.Supp. 990 (D.N.J.1980). Accordingly, the court concludes that the standard of constructive knowledge as applied in this Ordinance is unconstitutionally vague. Defining the offense of knowingly distributing drug paraphernalia in terms of the weakness of an individual’s ability to perceive rather than his criminal intent provides insufficient guidance to the distributors covered by this subsection and to those persons charged with the responsibility of enforcing it. The court further finds that the constructive knowledge standard is distinct from the other portions of this subsection and therefore severable from it pursuant to section 620.04(g), the severability clause. See Champlin Refining Co. v. Corporation Commission, supra. It is important to note, that this holding does not restrict the introduction of relevant evidence from which the trier of fact can determine knowledge. The fact of knowledge, just as any other fact in a case, may be proved by any admissible evidence which the court finds relevant. See, e. g., Reisman v. United States, 409 F.2d 789 (9th Cir. 1969). If the applicable rules of evidence so provide, state of mind may be shown by circumstantial evidence. United States v. Jewell, 532 F.2d 697 (9th Cir.), cert, denied 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976); United States v. Bright, 517 F.2d 584 (2d Cir. 1975). For example, the indicia of drug paraphernalia listed in section 620.01(dd)(2), as previously construed by the court, may also be relevant evidence of knowledge. Moreover, the element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately disregarded or consciously ignored knowable facts. United States v. Callahan, 588 F.2d 1078 (5th Cir.), reh. denied 591 F.2d 1343 (5th Cir. 1979); United States v. Gentile, 530 F.2d 461 (10th Cir.), cert. denied 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976). Therefore, to convict an individual charged with delivering, or selling, drug paraphernalia in violation of section 620.-04(b) the City of Parma must prove each of the following elements beyond a reasonable doubt: (1) that the defendant delivered (sold) a piece of equipment, a product or material; (2) that the defendant delivered (sold) the item (a) intending it for use with illegal narcotics, (b) having designed it himself for use with illegal narcotics, or (c) having intentionally used it himself with illegal narcotics; and (3) that the defendant delivered (sold) the item with knowledge that it would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body an illegal controlled substance. The offenses of possession and manufacture with intent to deliver or sell defined in subsection 620.04(b) include an additional element: the intent to deliver or sell. The court finds that these offenses have the following essential elements: (1) that the defendant manufactured (possessed) a piece of equipment, a product or material; (2) that the defendant manufactured (possessed) the item (a) intending that it be used with illegal drugs, (b) having designed it for use with illegal drugs, or (c) having intentionally used it himself with illegal narcotics; (3) that the defendant intended to deliver or sell this item; and (4) that the defendant manufactured (possessed) the item with knowledge that it would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body an illegal controlled substance. The first element of each offense is the act portion of the crime. The court finds that the terms used to describe the proscribed acts (delivery, sale, manufacturing and possession) are clear. Subsection (b) of the MDPA refers only to the offenses of delivering drug paraphernalia, and possessing or manufacturing it with intent to deliver. The offenses of selling drug paraphernalia, and possessing or manufacturing it with intent to sell which appear in the Ordinance represent a modification of the Model Act. The MDPA comments indicate that its authors intended the term “deliver” to have the same meaning it has in the Uniform Controlled Substances Act: the actual, constructive or attempted transfer from one person to another, whether or not there is an agency relationship. MDPA, Comment, p. 11 (1979). Because the term “sell” is not defined in the Ordinance, the court must assume that the Council intended it to have the commonly understood meaning. United States v. Porter, 591 F.2d 1048,1053 (5th Cir. 1979); Sheehan v. Scott, 520 F.2d 825, 829 (7th Cir. 1975). Therefore, the court finds that Parma used the term in its general sense to describe a barter transaction made by any person, whether as principal, proprietor, agent, servant, or employee. In the absence of any relevant testimony or argument, the court finds that the term “deliver” encompasses the sale of drug paraphernalia and that Parma added the term “sale” to express clearly its legislative judgment that such transactions be covered. The overlap of these terms is not a constitutional defect. Each term provides adequate notice of the proscribed conduct and clear enforcement guidelines. The act of manufacturing refers to the entire process by which an object is readied for sale in open commerce, “including designing, fabricating, assembling, packaging and labeling.” MDPA, Comment, p. 11 (citing Danovitz v. United States, 281 U.S. 389, 50 S.Ct. 344, 74 L.Ed. 923 (1930)). Possession has already been defined. See p. 13, supra. The second element of each offense expresses the requirement that the item which the defendant delivered, sold, possessed or manufactured be drug paraphernalia. As previously discussed, this element is not unconstitutionally vague. The court concludes that the means chosen by Parma to regulate the distribution of drug paraphernalia in this subsection are narrow and clear. Two forms of drug paraphernalia distribution are proscribed: actual and intended distribution. The offenses of delivering and selling drug paraphernalia regulate the actual distribution of such items. The offenses of possession and manufacture of drug paraphernalia with intent to deliver or sell regulate its intended distribution. Mere possession or manufacture of items which could constitute drug paraphernalia is not a crime. The final element of each of the offenses, that the actual or intended distribution be done knowingly, further limits the impact of this subsection. The element of actual knowledge and the definition of drug paraphernalia minimize the impact of this subsection on innocent distribution of items. As a general rule, an act is done knowingly if it is done voluntarily and intentionally. Requiring proof beyond a reasonable doubt that an act was done knowingly insures that no one will be convicted for an act done because of mistake, or accident, or other innocent reason. See, e. g., Devitt & Blackmar, Federal Jury Practice and Instructions § 14.04 (3d ed. 1977) (citations in annotation). For example, convicting an individual of selling drug paraphernalia under the Ordinance requires proof of distribution of an item by an individual who intends it for use with illegal drugs knowing that it will be so used. Clearly, this is not an innocent transaction. The court is unpersuaded by the plaintiff’s argument that the Ordinance is vague because it does not distinguish the innocent sale of ordinary items from their sale as drug paraphernalia. As the Fourth Circuit noted in Backun v. United States, 112 F.2d 635 (4th Cir. 1940): To say that the sale of goods is a normally lawful transaction is beside the point. The seller may not ignore the purpose for which the purchase is made if he is advised of that purpose, or wash his hands of the aid that he has given the perpetrator of a felony by the plea that he has merely made a sale of merchandise. One who sells a gun to another knowing that he is buying it to commit a murder, would hardly escape conviction as an accessory to the murder by showing that he received full price for the gun; and no difference in principle can be drawn between such a case, and any other case of a seller who knows that the purchaser intends to use the goods which he is purchasing in the commission of a felony. In any such case, not only does the act of the seller assist in the commission of the felony, but his will assents to its commission, since he could refuse to give the assistance by refusing to make the sale. 112 F.2d 635 (4th Cir. 1940). The Ordinance does not define the degree of proof required to establish knowledge that a distributed item will be used with illegal drugs. However, the MDPA comments provide, in pertinent part, as follows: The knowledge requirement of Section [620.04] is satisfied when [a defendant]: (i) has actual knowledge an object will be used as drug paraphernalia; [or] (ii) is aware of a high probability an object will be used as drug paraphernalia. " Therefore, to prove knowledge it is not necessary for the prosecution to prove that the defendant was absolutely certain that the item he sold would be used with narcotics; proof beyond a reasonable doubt of substantial certainty of the result is all that is required. See also Williams, Criminal Law: The General Part §§ 16, 18 (2d ed. 1961); Perkins, A Rationale of Mens Rea, 52 Harv.L.Rev. 905, 910-11 (1939). As the Fifth Circuit noted in United States v. Stephens, 569 F.2d 1372, 1374 (5th Cir. 1978): It is not necessary for the prosecution to perform the impossible task of obtaining a print-out of the defendant’s state of consciousness at the moment of sale. But, however proved, actual knowledge itself must be shown beyond a reasonable doubt. Although proof of absolute certainty is not necessary, it is not sufficient to show that the defendant may have suspected or thought that the item would be so used. 3. SECTION 620.04(c) Subsection 620.04(c) proscribes placing printed advertisements which promote the sale of drug paraphernalia. The court finds that this subsection, as it is construed herein, is neither vague nor over-broad. As previously noted, subsection (c) incorporates the definition of drug paraphernalia previously construed by the court. Because the offense applies to the conduct of placers of advertisements, it is the advertiser’s intent which must be examined to determine whether the item advertised is drug paraphernalia. However, unlike the references in subsections (a) and (b), subsection (c) refers specifically to only two of the three general mens rea elements of the definition of drug paraphernalia; “designed for use” and “intended for use” are referenced but “used” is not. In this manner, the definition of drug paraphernalia in the context of advertising is more narrowly drawn than the general definition set forth in section 620.01(dd)(l). Accordingly, the essential elements of the offense of placing drug paraphernalia advertisements are: (1) the defendant placed an advertisement in a newspaper, handbill, or other publication; (2) the purpose of the advertisement, in whole or in part, is to promote the sale of equipment, products, or materials which the defendant designed or intends for use with illegal drugs; and (3) the defendant knew at the time he placed the advertisement that its purpose was to promote the sale of equipment, products or materials which he designed or intends for use with illegal drugs. The MDPA comments indicate that the terms “any person” and “place” in the Ordinance refer to “anyone who prints or publishes paraphernalia advertisements, and to anyone who causes these advertisements to be printed or published.” For example, if the requisite intent of each can be proved, both the retailer who places the advertisement and the publisher of it are subject to prosecution under the Ordinance. Of course, the impact of this Ordinance is limited by the implicit jurisdictional limitations imposed upon municipalities: “Municipal ordinances are necessarily local in their application. Usually they operate only in the territory of the municipality and can have no force beyond it.” McQuillan, 5 Municipal Corporations, § 15.30, p. 108 (3d ed.). Specifically, the Ohio Constitution provides that the exercise of Parma’s governmental powers cannot extend beyond its geographical limits: “Municipalities shall have the authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary, and other similar regulations, as are not in conflict with general laws.” Ohio Constitution, Article 18, Section 3. City of Cincinnati v. Alexander, 54 Ohio St.2d 248, 375 N.E.2d 1241 (1978); Prudential Co-Operative Realty Co. v. City of Youngstown, 118 Ohio St. 204,160 N.E. 695 (1928); State, ex rel. Kahler-Ellis Co., 69 Ohio L.Abs. 305, 125 N.E.2d 222 (1954). A further limitation on the scope of this Ordinance is that Par-ma lacks authority to regulate the jurisdiction of its municipal courts which are established by state law. Cupps v. City of Toledo, 170 Ohio St. 144, 163 N.E.2d 384 (1959). The plaintiff alleges that the ban on advertising imposed by subsection (c) is unconstitutionally overbroad because it prohibits the dissemination of information regarding lawfully sold products in violation of the First Amendment. The court finds that the speech which the Ordinance restricts is not protected by the Constitution because it solicits illegal conduct. Since constitutionally protected speech is not prohibited, the Ordinance is not overbroad. Subsection (c) proscribes certain commercial speech by making it a crime for any person to place a printed commercial advertisement which he knows is designed to promote the sale of drug paraphernalia. The advertisements affected by this subsection are purely commercial. Neither subsection (c) nor any other provision of the Ordinance proscribes dissemination of factual material of clear public interest. Communication of information, expression of opinions, and recitation of grievances are not regulated. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Expression which assails controlled substance laws, extolls the attractions of unlawful substances, or glorifies the drug culture is not restricted. Cf. High OT Times v. Busbee, 456 F.Supp. 1035 (N.D.Ga.1978). Since the Supreme Court’s decision in Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), it has been clear that speech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346 (1976). Speech which is conveyed in a form that is sold for profit is also protected even if it involves a solicitation to purchase or otherwise pay or contribute money. Id. However, speech, commercial or otherwise, which solicits illegal activity is not protected by the First Amendment. Pittsburgh Press Company v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973). In Pittsburgh Press the Supreme Court sustained an ordinance that had been construed to prohibit newspapers to carry “purely commercial” help-wanted advertisements in sex-designated columns except where the distinction is based upon a bona fide occupational exemption. The Court discussed the illegality of the advertised activity in the following terms: Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity. Id. at 389, 93 S.Ct. at 2561. In this case the commercial activity is the sale, use, possession and manufacture of drug paraphernalia, which is illegal by operation of subsections 620.04(a) and (b), as construed by this court. Moreover, the court is fully aware of the serious problems caused by rampant drug abuse and that the ready availability of drug paraphernalia is an inducement to illegal drug use. For these reasons, the Parma Ordinance is a reasonable exercise of that municipality’s “inherent power” to provide for the health, safety, morals, and welfare of its people. See Poe v. Ullman, 367 U.S. 497, 539, 81 S.Ct. 1752, 1775, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting). Therefore, the court concludes that subsection (c) is constitutional; the printed advertisements are unprotected by the First Amendment because their restriction is incidental to a valid limitation on illegal economic activity. Despite the illegality of the commercial speech regulated, the plaintiff argues that subsection (c) is overbroad because it proscribes advertisement of drug paraphernalia. which is available outside of Parma and therefore legal. The plaintiff relies upon Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). In Bigelow the Court reversed a conviction for violation of a Virginia statute that made the circulation of any publication which encouraged or promoted the processing of an abortion in Virginia a misdemeanor. The defendant had published in his newspaper an advertisement announcing that abortions were legal in New York and offering the services of a referral agency in that state. The constitutionality of statutes or ordinances may be determined from the law “as written, or authoritatively construed.” See, e. g., Miller v. California, 413 U.S. 15, 24-25, 93 S.Ct. 2607, 2614-2615, 37 L.Ed.2d 419 (1973). In light of Bigelow, this court construes subsection (c) to proscribe only the placement of advertisements which indicate that drug paraphernalia is available in Parma, Ohio. The subsection is therefore constitutional, as construed herein. 4. SECTIONS 620.04(d), (e), (f), and (h). These four subsections cover (1) the special offense of delivering drug paraphernalia to a minor (§ 620.04(d)), (2) the inapplicability of the Ordinance to dentists, pharmacists, medical doctors and veterinarians acting pursuant to Ohio law (§ 620.-04(e)), (3) the forfeiture of drug paraphernalia (§ 620.04(f)), and (4) the penalties which may be imposed for violating the provisions of this Ordinance. The court finds that each of these provisions is valid. (1) The special offense described in section 620.04(d) contains the same elements as the offense of knowingly delivering drug paraphernalia (§ 620.04(b)) which the court previously construed to be constitutional, plus the additional element that the deliverer of the item be 18 or over and the recipient be 18 or under. If construed as the court interpreted section 620.04(b), this provision is neither vague nor overbroad. (2) Although subsection (e) exempts individuals pursuing a profession according to state law, it does not absolve them from liability under the Ordinance if they violate it by acting outside their authorized practices. The court finds that this limitation is rational and that this offense is not vague. (3) Subsection 620.04(f) authorizes Parma to retain and destroy drug paraphernalia seized during a criminal investigation. This civil forfeiture provision, which entails a proceeding against property independent of any criminal proceedings against individuals, is also constitutionally valid. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080 (1974). (4) Fixing punishment is a legislative function with which the court will not interfere unless the punishment prescribed is manifestly cruel and unusual or grossly disproportionate to the offense. Kasper v. Brittain, 245 F.2d 92 (6th Cir. 1957), cert, denied 355 U.S. 834, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957); Kreiling v. Field, 431 F.2d 502 (9th Cir. 1970). The court finds that the potential punishment provided in subsection 620.04(h) is reasonable and that it is neither so arbitrary nor severe as to constitute cruel and unusual punishment. III. EQUAL PROTECTION The plaintiff argues that the Ordinance violates the Equal Protection Clause of the Fourteenth Amendment because it is directed only at “head shops,” and not the many other establishments in Parma which distribute, sell or advertise items which are identical or functionally equivalent to the merchandise sold by it. The