Alabama Recycling Ass'n v. Montgomery

• Decision Date: 22 May 2009
• Docket Number: 1070670.
• Citation: 24 So.3d 1085
• Parties: ALABAMA RECYCLING ASSOCIATION, INC. v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

24 So.3d 1085

ALABAMA RECYCLING ASSOCIATION, INC. v. CITY OF MONTGOMERY.

1070670.

Supreme Court of Alabama.

May 22, 2009.

James S. Ward of Ward & Wilson, LLC, Birmingham; and D. Patrick Harris of Harris & Harris, L.L.C., Pike Road, for appellant.

Wallace D. Mills and Walter R. Byars, City of Montgomery Attorney's Office, for appellee.

PER CURIAM.

Alabama Recycling Association, Inc., appeals from the trial court's judgment in favor of the City of Montgomery ("the City") in this action by Alabama Recycling seeking a judgment declaring the existence of a conflict between a statute and an ordinance adopted by the City and injunctive relief.

Facts and Procedural History

On June 14, 2007, the Governor approved Act No. 2007-451, Ala. Acts 2007, enacted by the Alabama Legislature to regulate secondary metals recycling and now codified at § 13A-8-30 et seq., Ala. Code 1975 ("the Act"). The Act applies to both ferrous metals (defined as those metal containing significant quantities of iron or steel, § 13A-8-30(1)) and nonferrous metals (defined as metals not containing significant amounts of iron or steel, such as copper, § 13A-8-30(2)). The Act places restrictions on secondary metals recyclers. A secondary metals recycler is defined as a person "who is engaged ... in the business of paying compensation for ferrous or nonferrous metals that have served their original economic purpose." § 13A-8-30(8).

The Act requires secondary metals recyclers to maintain records of "all purchase transactions to which the secondary metals recycler is a party." § 13A-8-31(a). Those records are to include: (1) the name and address of the secondary metals recycler; (2) the date of the transaction, (3) the amount and a description of the type of metal purchased; (4) the amount paid for the metal; (5) a signed statement from the seller stating that he or she is the rightful owner of the metal or is entitled to sell the metal; (6) the name and address of the seller; (7) the number from some form of identification from the seller; and (8) the license tag number of the vehicle used to deliver the metal to the secondary metals recycler.

Section 13A-8-31(b) provides as follows:

"(b)(1) For three years following September 1, 2007 [the effective date of the Act], the secondary metal[s] recycler shall not enter into any cash transactions in excess of one hundred dollars ($100) for copper or in excess of one thousand dollars ($1,000) for all other metals in payment for the purchase of the metal property. The check shall be payable to the name and address of the seller of the metal and mailed to the recorded address of the seller or picked up in person by the seller. At the end of three years, this subdivision shall be repealed and subdivision (2) shall apply.

"(2) Commencing three years and one day following September 1, 2007, the secondary metal[s] recycler shall not enter into any cash transaction in excess of one thousand dollars ($1,000) for any metals in payment for the purchase of the metal property. Payment shall be made by check issued to the seller of the metal. The check shall be payable to the name and address of the seller or picked up in person by the seller [sic]."

A law-enforcement official may issue a hold notice to a secondary metals recycler who the law-enforcement official reasonably believes is in possession of stolen metal property when the official has an affidavit from the rightful owner describing the stolen property. § 13A-8-33(a)(1). If the secondary metals recycler contests an allegedly rightful owner's claim to the metal property, the rightful owner may file an action in the circuit court in the county in which the secondary metals recycler is located. § 13A-8-34(a). Certain classes of sellers are exempt from the Act. § 13A-8-35. The Act criminalizes giving false statements regarding ownership or a false or altered identification or vehicle tag number in connection with the sale of metal property. § 13A-8-36. A secondary metals recycler who knowingly and intentionally violates the Act is guilty of a misdemeanor, but if there is a pattern of such practices by the secondary metals recycler, then the recycler is guilty of a Class C felony. § 13A-8-37(b). The Act provides that in cases where the acts prohibited by the Act also constitute violations of "any other provision of law," then the provisions of law that carry the stricter penalty will be applied. § 13A-8-38. Section 13A-8-39 provides that the Act applies to all businesses regulated under the Act without regard to the location of the business within the State and that the Act shall take precedence over any and all local ordinances to the contrary.

On January 15, 2008, the City enacted Ordinance No. 3-2008, which was to become effective February 7, 2008 ("the ordinance"). In enacting the ordinance, the City Council specifically found "that copper thefts and illegal trade in stolen copper have had and continue to have a significant detrimental impact on the citizens and economy of the City of Montgomery by way of both the increase in illegal activity in the community and the cost of damages to the victims of copper theft." § 1. The ordinance was enacted "to supplement and compliment [sic] the state law regarding the theft and purchase of copper, and the record keeping and reporting requirements imposed upon purchasers of copper thereby." § 2. The ordinance defines a metals recycler as any person or entity that enters into a transaction to purchase salvaged copper. The ordinance identifies "copper" as "the element listed in the periodic table bearing the atomic number 29 and classified as a metal," and "salvaged copper," under the ordinance, includes "copper tubing, copper wire—bare and insulated, all brasses and bronzes, copper solids, auto radiators, copper and aluminum radiators."

The ordinance provides, in pertinent part, that each metals recycler who purchases salvaged copper within the City shall be required to:

"1) Hold all payments for purchases of Salvaged Copper for a minimum of twenty-four hours after the said purchase; payment to be picked up by seller or mailed to seller.

"2) Pay for all purchases of Salvaged Copper by check made payable to the seller of copper "3) Capture and maintain by electronic means, a frontal, head and shoulders color photograph of the person from whom they purchase any quantity of Salvaged Copper in a form which is capable of transmission and delivery via computer to the person or entity designated by the Chief of Police of the Montgomery Police Department; said electronic photograph shall be maintained by the Metals Recycler for a period of at least one year from the date of the purchase of the Salvaged Copper and in the same manner which those records required to be kept by Ordinance 45-2006; said photograph and records shall viewable by any law enforcement officer upon request and shall be provided to the Chief's designee by electronic means by request thereof."

On January 31, 2008, Alabama Recycling, an incorporated association composed of businesses in the City engaged in the purchase of ferrous and nonferrous metals, sued the City, seeking a judgment declaring that the ordinance conflicts with the Act. Alabama Recycling also sought relief in the form of a temporary restraining order, a preliminary injunction, and a permanent injunction, to prohibit the ordinance from taking effect on February 7, 2008. On February 4, 2008, the trial court held a hearing, following which it refused to enter a temporary restraining order. On February 6, 2008, Alabama Recycling filed a motion to stay the enforcement of the ordinance to the extent it conflicts with the Act; it also filed a notice of appeal from the denial of its request for a temporary restraining order. On February 8, 2008, the trial court entered an order stating that, "having considered complaint for Declaratory an Injunctive Relief, and after hearing testimony, the submission of documents, and argument of counsel, and for cause shown it is hereby ordered that [Alabama Recycling's] relief sought is denied." The trial court granted the motion to stay. On February 22, 2008, the City filed a motion to alter, amend, or vacate the order staying the enforcement of the ordinance. This Court remanded the case to the trial court for the sole purpose of considering the City's motion to alter, amend, or vacate. On February 26, 2008, the trial court denied the City's motion. On February 29, 2008, Alabama Recycling filed a motion to reinstate its appeal, which this Court granted.

Standard of Review

The question presented on appeal involves a pure question of law; thus, our review is de novo. See Barber v. Jefferson County Racing Ass'n, 960 So.2d 599 (Ala. 2006) (holding that review of a declaratory judgment is ordinarily governed by the ore tenus standard, but when the facts are undisputed or uncontroverted and the questions presented are purely legal ones, the review is de novo).

Discussion

Alabama Recycling argues that the Act and the ordinance are inconsistent. "`"Whether an ordinance is inconsistent with the general law of the State is to be determined by whether the municipal law prohibits anything which the State law specifically permits."'" Gibson v. City of Alexander City, 779 So.2d 1153, 1155 (Ala. 2000) (quoting Lanier v. City of Newton, 518 So.2d 40, 43 (Ala.1987), quoting in turn Congo v. State, 409 So.2d 475, 478 (Ala. Crim.App.1981)). In Lanier v. City of Newton, this Court addressed "inconsistency" with regard to a conflict between a statute and an ordinance, stating: "`Inconsistent' is defined by Black's Law Dictionary (5th ed.1979) as `mutually repugnant or contradictory; contrary, the one to the other, so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other.' It implies `contradiction—qualities which cannot coexist—not merely a lack of uniformity in details.' City of Montgomery v....