Ventura v. City of San Jose

• Decision Date: 16 February 1984
• Docket Number: No. 53708,53708
• Court: California Court of Appeals Court of Appeals
• Parties: Anthony VENTURA, et al., Plaintiffs, Cross-Defendants and Appellants, v. CITY OF SAN JOSE, et al., Defendants, Cross-Complainants and Respondents. Civ.

Page 216

199 Cal.Rptr. 216

151 Cal.App.3d 1076

Anthony VENTURA, et al., Plaintiffs, Cross-Defendants and Appellants, v. CITY OF SAN JOSE, et al., Defendants, Cross-Complainants and Respondents.

Civ. No. 53708.

Court of Appeal, First District, Division 3, California.

Feb. 16, 1984.

Hearing Denied May 3, 1984.

Pillsbury, Madison & Sutro, Walter R. Allan, Thomas P. O'Donnell, Bruce E. Ericson, San Francisco, for plaintiffs, cross-defendants and appellants.

Robert J. Logan, City Atty., William B. Mayfield, Deputy City Atty., San Jose, for defendant, cross-complainant and respondent City of San Jose.

Selby Brown, Jr., County Counsel, Richard K. Abdalah, Deputy County Counsel, San Jose, for defendants, cross-complainants and respondents County of Santa Clara and Santa Clara Bd. of Sup'rs.

WHITE, Presiding Justice.

Plaintiffs and appellants, licensed sellers of "safe and sane" ¹ fireworks (Ventura, et al.) and a licensed manufacturer and distributor of "safe and sane" fireworks (Pyrotronics) appeal from the judgment of the Superior Court of Santa Clara County upholding San Jose Municipal Code section 17.12.260 and Santa Clara County Ordinance Code section 12.102.5, which in effect ban the selling of fireworks. The trial court held that the laws do not conflict with the State Fireworks Law (Health & Saf.Code, § 12500 et seq.) and that the state Legislature has not preempted the field of fireworks regulation to preclude a local ordinance banning the sale of fireworks. We disagree.

The authority of local government to make and enforce ordinances for the protection of the public health and safety is unquestionable. (Cal. Const., art. XI, § 7.) This police power is as broad as the police power exercisable by the state Legislature itself. (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 140, 130 Cal.Rptr. 465, 550 P.2d 1001.) However, if the field of legislation has been fully occupied by the state, preemption exists and there is no room for supplementary or complementary local legislation. (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807-808, 100 Cal.Rptr. 609, 494 P.2d 681.)

In the instant case, the issue is whether fireworks regulation " '... has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern....' " (Galvin v. Superior Court (1969) 70 Cal.2d 851, 859, 76 Cal.Rptr. 642, 452 P.2d 930; quoting from In re Hubbard (1964) 62 Cal.2d 119, 41 Cal.Rptr. 393, 396 P.2d 809; see also Gates v. Municipal Court (1982) 135 Cal.App.3d 309, 317, 185 Cal.Rptr. 330; Doe v. City and County of San Francisco (1982) 136 Cal.App.3d 509, 512, 186 Cal.Rptr. 380.) We turn therefore to an examination of the State Fireworks Law (Health & Saf.Code, §§ 12500-12723). The State Fireworks Law contains a thorough guide for the state-wide administration and regulation of the manufacture, transportation, licensing, sale and use of fireworks. It also specifically allows for certain local regulations and ordinances supplementary to the state law.

Sections 12522, 12640 and 12642-12649 all deal with the local authority's right to issue or deny permits "for the purposes of establishing and maintaining a place where fireworks are manufactured, constructed, produced, packaged, stored, sold, exchanged, discharged, or used...." (§ 12522) The state law thus indicates that cities and counties are to share jurisdiction with the state over the regulation of fireworks in a limited way. Anyone wanting to sell or manufacture fireworks must have a license from the state and a permit from the city or county government.

Health and Safety Code section 12541 states "Nothing in this part shall authorize the use or discharge of fireworks in any city or county in which such use or discharge is otherwise prohibited or regulated by law or ordinance." ² (Emphasis added.) This is in effect a disclaimer of preemption in the area of use and discharge.

But, while the law obviously provides for the limited participation of local authority in the general field, it seems clear that a local regulation that would totally ban the sale of fireworks is inconsistent with state law provisions.

This conclusion is supported by the legislative history of the current State Fireworks Law, and of section 12541 in particular.

The state provisions pertinent to the instant case are the result of a revision and recodification in 1973. Former section 12754 read, "Nothing in this part ... shall authorize the manufacture, sale, use or discharge of fireworks in any city or county in which such manufacture, sale, use or discharge, is otherwise prohibited by law or ordinance." (Emphasis added.) Many California cities had banned the sale of fireworks before the 1973 recodifications. Respondents point out that as late as June 1976--more than a year after the "manufacture" and "sale" language had been deleted, the California Administrative Code mentioned that "in many cities and counties the sale of all types of fireworks is prohibited." Also, the state Fire Marshal during the relevant time period testified that his staff never thought that the recodification altered the power of local governments to prohibit the sale of fireworks. However, no reference to prohibitions on sales now appears in the Administrative Code, indicating that the state Fire Marshal no longer defers to local power in this area.

In fact, the most persuasive evidence of the Legislature's intent to preempt this field is the 1978 opinion of the Attorney General, given in response to a request by the state Fire Marshal. The specific question was whether a fire protection district could prohibit the sale of safe and sane fireworks when there was a county ordinance allowing such sales. (61 Ops.Cal.Atty.Gen., 61, 61.) The Attorney General considered the comprehensive scheme set out in the State Fireworks Law, the legislative history of the general scheme and of section 12541, and the Fire Protection District Law of 1961. (Id., at p. 63.) The Attorney General concluded that, "the Legislature intended to fully occupy the field of fireworks regulation except for local participation in the regulatory scheme both in the permit process ... [and] in the regulation of the use and discharge of fireworks within local jurisdictions ... both of which are expressly allowed under the statute." (Id., at p. 65.)

We can presume that this five-year-old opinion has come to the attention of the Legislature, and that if it were a misstatement of the legislative intent, "some corrective measure would have been adopted...." (Meyer v. Board of Trustees (1961) 195 Cal.App.2d 420, 432, 15 Cal.Rptr. 717.)

In addition, appellants point to Assemblyman Ernest Mobley's unsuccessful attempt in 1974 to reinstate the wording which specifically recognized local power to ban the manufacture and sale of fireworks (AB 227.) When the bill was finally adopted as section 12541 the words "manufacture" and "sale" had been deleted although local power to prohibit "use" or "discharge" was clearly affirmed. Following the principle that the Legislature is presumed to intend a substantive change in the law when it deletes an express provision (People v. Dillon (1983) 34 Cal.3d 441, 467, 194 Cal.Rptr. 390, 668 P.2d 697; see also Louisiana-Pacific Corp. v. Humboldt Bay Mun. Water Dist. (1982) 137 Cal.App.3d 152, 159, 186 Cal.Rptr. 833), appellants contend that the Legislature intended not to "restore" the power of cities and counties to prohibit the sale of fireworks. The courts have repeatedly concluded that when the Legislature has rejected a specific provision which was part of an act when originally introduced, the law as enacted should not be construed to contain that provision. (Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688, 692, 193 Cal.Rptr. 511; Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 607, 45 Cal.Rptr. 512.) The maxim "expressio unius est exclusio alterius" also supports appellants' position.

The legislative history of the Mobley bill and contemporaneous administrative construction further convince us that the legislative intent was to narrow the provision. (See Pennisi v....