Allied Vending, Inc. v. City of Bowie

• Citation: 332 Md. 279,631 A.2d 77
• Decision Date: 01 September 1992
• Docket Number: No. 108,108
• Parties: , 62 USLW 2202 ALLIED VENDING, INC. et al. v. The CITY OF BOWIE, Maryland et al. ,
• Court: Court of Appeals of Maryland

Page 279

332 Md. 279

631 A.2d 77, 62 USLW 2202

ALLIED VENDING, INC. et al. v. The CITY OF BOWIE, Maryland et al.

No. 108, Sept. Term, 1992.

Court of Appeals of Maryland.

Sept. 17, 1993.

As Corrected on Denial of Reconsideration Oct. 29, 1993.

Bruce C. Bereano, argued and on brief (Kevin Reynolds, on brief), Annapolis, for petitioner.

Angus R. Everton, argued (Roy L. Mason and Terrence C. McAndrews, Mason, Ketterman & Morgan, on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

KARWACKI, Judge.

We issued a writ of certiorari in this case to determine the validity of ordinances enacted by two municipalities which restrict the placement of state-licensed cigarette vending machines to locations which are not generally accessible to minors. The Circuit Court for Prince George's County determined that the ordinances were valid. We shall hold that the municipal ordinances are pre-empted by state law, more specifically, the cigarette licensing scheme provided by Maryland Code (1957, 1991 Cum.Supp.), Article 56, §§ 607 through 631, and therefore, shall reverse.

I.

On July 23, 1990, the City of Takoma Park enacted Ordinance No. 1990-39, which repealed and reenacted with amendments, Chapter 10B of the Takoma Park Code ("Takoma Park ordinance"). As enacted, § 10B-15(a) provides that "[n]o person shall sell tobacco products through a vending machine without first obtaining a permit for the placement of a cigarette vending machine in compliance with the provisions of [this ordinance]." ¹ Section 10B-16 provides:

"(a) No permit shall be issued for placement of a cigarette vending machine except in locations which are not generally accessible to or frequented by minors, such as bars, cocktail lounges, liquor stores, and private clubhouses for members of fraternal or civic organizations not operated as public businesses or open to the general public.

"(b) Notwithstanding the foregoing, no permit shall be issued for a cigarette vending machine which is:

(1) Located in a coat room, restroom, unmonitored hallway, outer waiting area, or similar unattended or unmonitored area of a bar, cocktail lounge, liquor store, private clubhouse or other place to which minors are not generally permitted access; or

(2) Accessible to the public when the establishment is closed.

"(c) The burden of showing that a location is not generally accessible to or frequented by minors shall be on the person who is seeking a permit for a cigarette vending machine."

Section 10B-17 requires the permit to be posted on, or conspicuously in the immediate vicinity of, the cigarette vending machine. Under Section 10B-34(f), a violation of the Takoma Park ordinance by either the cigarette vending machine vendor or the person in charge of any area in which a cigarette vending machine is located, subjects the violator to a $75.00 fine for the first day there is a violation and to a $150.00 fine for each subsequent day there is a violation.

The purposes for the enactment of these provisions were set forth in the ordinance's preamble as follows:

"WHEREAS, the Council wishes to discourage minors from experimenting with smoking and to make tobacco products less accessible to minors by restricting where cigarette vending machines are placed ... and ...

"WHEREAS, smoking by minors is detrimental to the public health and contrary to public policy; and ...

"WHEREAS, smoking has been linked to lung cancer, respiratory disease and heart disease; and ...

"WHEREAS, the Surgeon General has determined that smoking is the leading cause of preventable death; and ...

"WHEREAS, nicotine in tobacco has been found by the Surgeon General to be a powerfully addictive drug and it is therefore important to prevent minors from using nicotine until they are mature and capable of making an informed and rational decision; and

"WHEREAS, everyday more than 3,000 minors begin smoking; and

"WHEREAS, one-half of all smokers began smoking before the age of 18; and

"WHEREAS, Article 27, Section 404 of the Annotated Code of Maryland prohibits the sale of tobacco products to minors; and

"WHEREAS, despite the Maryland state law, access by minors to tobacco products is a major problem; and

"WHEREAS, cigarette vending machines are often located in unattended or unmonitored areas where minors can readily purchase tobacco products; and

"WHEREAS, a City permit requirement which would allow the placement of cigarette vending machines only in establishments which are not generally accessible to or frequented by minors or are not open to the general public would help restrict the access of minors to tobacco products; and

"WHEREAS, a City cigarette vending machine permit is necessary for regulatory purposes to more effectively restrict the access of minors to tobacco products in the interest of public health."

On April 15, 1991, the City of Bowie enacted ordinance 0-1-91 ("Bowie ordinance"), which added a new section, § 11-4, to the City of Bowie Code and which is nearly identical to the Takoma Park ordinance. After stating the purposes for its enactment, which are similar to those provided in the preamble to the Takoma Park ordinance, § 11-4(D)(1) of the Bowie ordinance provides that a cigarette vending machine "shall not be placed or permitted to remain in the city in a public place unless a license for its location has been obtained from the city." ² Section 11-4(E) provides:

"(E) License Restrictions.

(1) No license shall be issued for placement of a vending machine except in locations which are not generally accessible to or frequented by minors, including by way of example, bars, cocktail lounges, and private clubhouses for members of fraternal or civic organizations not operated as public businesses or open to the general public.

(2) Notwithstanding the foregoing, no license shall be issued for a vending machine which is:

(a) located in an unmonitored coat room, restroom, outer waiting area, or similar unattended or unmonitored area of such establishments; or

(b) accessible to the public when the establishment at which the vending machine is located is closed.

(c) located in an area which is less than twenty five (25) feet from any point of public ingress to or public egress from the establishment."

Under § 11-4(H), the City Manager may revoke or refuse to renew a license for repeated distributions of cigarettes to minors from a vending machine or for placing a vending machine in a public place without a license. Under the Bowie ordinance, the failure to obtain or renew a license, placing a vending machine in an unlicensed location, or the failure to properly display the license is a violation punishable by a fine of $100.00 for the first offense and $400.00 for each subsequent offense. §§ 11-4(I) and 11-5.

II.

On September 12, 1991, appellants, Allied Vending, Inc. ("Allied") and D.C. Vending Co., Inc. ("D.C. Vending") filed a declaratory judgment action in the Circuit Court for Prince George's County against the City of Bowie, City of Takoma Park, and Alexander Williams, Jr., the State's Attorney for Prince George's County, ³ seeking declaratory relief that the ordinances were invalid and requesting both interlocutory and permanent injunctive relief prohibiting the enforcement of the ordinances. ⁴ In their complaint, the vendors asserted that the ordinances were invalid for the following reasons: 1) they are pre-empted by state law; 2) they are in conflict with state law; 3) they affect the entire state and thus are not local laws; 4) they were not enacted pursuant to any express authority granted to a municipal corporation; 5) they are pre-empted by federal law; 6) they are in conflict with federal law; 7) they impair the vendor's contracts; 8) they deny the vendors equal protection of the law; and 9) they are void for vagueness and violate other due process guarantees.

Following a two-day trial, the circuit court filed an extensive written opinion rejecting each of the vendors' arguments and ruling that both ordinances were valid and enforceable. After appealing to the Court of Special Appeals, the vendors petitioned this Court for a writ of certiorari, which we issued prior to any consideration of the case by the intermediate appellate court, 328 Md. 741, 616 A.2d 904.

Because we shall hold that the ordinances are pre-empted by state law, we will not address any of the vendors' other arguments. Before we discuss pre-emption, however, it would be useful to explain the background behind this dispute and the state laws governing the licensing of cigarette vending machines.

A.

The vendors, Allied and D.C. Vending, own and operate cigarette vending machines. The vendors are licensed by the State of Maryland to operate cigarette vending machines in the Cities of Bowie and Takoma Park. At the time of the trial, Allied was licensed by the State to operate cigarette vending machines in several locations in Bowie, including Bob's Big Boy Restaurant, Bowie Golf and Country Club, and Pizza Cafe. The cigarette vending machines were operated in each location pursuant to an oral agreement with the owners of each of the premises, terminable at the will of either party. Under the agreement, Allied was required to pay the owners a monthly commission on each pack of cigarettes sold, varying from 5 cents per pack at the Bowie Golf and Country Club, 17 cents per pack at the Pizza Cafe, and 37 cents per pack at Bob's Big Boy Restaurant. Allied's President, Paul Oh, testified that its profit from a pack of cigarettes is approximately 50 cents and that approximately 63 percent of Allied's total business is derived from sales through cigarette vending machines.

D.C. Vending operates a cigarette vending machine at the New Hampshire Motor Inn in Takoma Park under a similar oral agreement. William John Deoudes, D.C. Vending's Vice President, testified that it pays the owner a monthly...