A & B Cattle Co. v. City of Escondido

• Decision Date: 17 June 1987
• Citation: 192 Cal.App.3d 1032,238 Cal.Rptr. 580
• Court: California Court of Appeals Court of Appeals
• Parties: A & B CATTLE COMPANY OF NEVADA, INC., Plaintiff and Respondent, v. CITY OF ESCONDIDO, Defendant and Appellant. D004807.

Page 580

238 Cal.Rptr. 580

192 Cal.App.3d 1032

A & B CATTLE COMPANY OF NEVADA, INC., Plaintiff and Respondent, v. CITY OF ESCONDIDO, Defendant and Appellant.

D004807.

Court of Appeal, Fourth District, Division 1, California.

June 17, 1987.

Thomas F. Homann, San Diego, for plaintiff and respondent.

David R. Chapman, John H. Serrano and Jeffrey R. Epp, Office of the City Atty., Escondido, for defendant and appellant.

WORK, Associate Justice.

City of Escondido (City) appeals an order granting judgment on the pleadings permanently enjoining it from enforcing a licensing ordinance regulating the sale of materials designed or marketed for use with illegal drugs (Escondido Municipal Code (EMC), § 16-190). We affirm because state law (HEALTH & SAF. CODE, §§ 11364.7¹, 11014.5) has preempted this regulatory field.

FACTUAL AND PROCEDURAL BACKGROUND

On April 28, 1982, the City enacted Ordinance No. 82-41, adding section 16-190 to the EMC, ² declaring it "unlawful for any person or persons as principal, clerk, agent or servant to sell any items, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal drugs, as defined by the laws of the State of California, without obtaining a license therefor". (EMC, § 16-190, subd. (a).) The ordinance requires applications for this license to be accompanied by affidavits by applicant and each employee authorized to sell such items verifying they have never been convicted of a drug-related offense. The ordinance prohibits the sale or giving of the items described in subdivision (a) to any minor, while requiring the maintenance of detailed records pertaining to every sale of such items. A violation of any provision of EMC section 16-190 is a misdemeanor, punishable by a fine not exceeding $500 or imprisonment not exceeding six months, or both.

Later in 1982, the Legislature enacted Senate Bill No. 341, effective January 1, 1983, adding sections 11014.5 and 11364.7. (Stats.1982, ch. 1278, §§ 1, 2 respectively, pp. 4725-4728.) Section 11014.5 defines "drug paraphernalia" ³ and establishes criteria for courts to consider when determining what constitutes drug paraphernalia. Section 11364.7 makes it a misdemeanor for anyone to deliver, furnish, transfer, possess, manufacture with intent to deliver, furnish, or transfer drug paraphernalia; provides those who are over 18 years of age and violate these provisions by delivering, furnishing or transferring paraphernalia to a minor at least 3 years their junior may be punished by a fine of not more than $1,000 or by imprisonment of not more than one year, or both; declares the violation of its provisions is cause to revoke any business or liquor license; and, specifies that all drug paraphernalia defined by section 11014.5 is subject to forfeiture and seizure by any peace officer. ⁴

Four years after enacting its drug paraphernalia ordinance, the City decided to begin enforcing it. The City "alerted" A & B Cattle Company of Nevada, Inc. (A & B), which operates the F Street Bookstore, of its intention. Forewarned, A & B obtained an injunction preventing enforcement of the ordinance on the ground it is preempted by sections 11014.5 and 11364.7. ⁵

GOVERNING LAW ON PREEMPTION

"Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law." (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885, 218 Cal.Rptr. 303, 705 P.2d 876.) More specifically, Article 11, section 7 of the California Constitution provides: "A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." Where local legislation conflicts with general law, it is void. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290, 219 Cal.Rptr. 467, 707 P.2d 840; People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484, 204 Cal.Rptr. 897, 683 P.2d 1150; Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807, 100 Cal.Rptr. 609, 494 P.2d 681.) "Apart from this limitation, the 'police power [of a county or city] under this provision ... is as broad as the police power exercisable by the Legislature itself.' " (Candid Enterprises, Inc. v. Grossmont Union High School Dist., supra, 39 Cal.3d at p. 885, 218 Cal.Rptr. 303, 705 P.2d 876, quoting Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 140, 130 Cal.Rptr. 465, 550 P.2d 1001.)

A local legislative enactment will be invalidated when it duplicates, contradicts, or infringes upon an area completely occupied by general law, either expressly or by legislative implication. Moreover, where the subject matter of the local legislation has been entirely occupied by state general law, supplementary or complimentary local legislation, even pertaining to matters otherwise properly characterized as municipal in character, is prohibited. (Cohen v. Board of Supervisors, supra, 40 Cal.3d at pp. 290-291, 219 Cal.Rptr. 467, 707 P.2d 840; People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 484, 204 Cal.Rptr. 897, 683 P.2d 1150; Lancaster v. Municipal Court, supra, 6 Cal.3d at pp. 807-808, 100 Cal.Rptr. 609, 494 P.2d 681.)

STATE LAW HAS PREEMPTED THE REGULATORY FIELD REGARDING DRUG PARAPHERNALIA TO THE EXCLUSION OF LOCAL LEGISLATION

Preliminarily, we note the Legislature has not expressly prohibited local regulations within its statutory scheme governing the manufacture and distribution of drug paraphernalia. Moreover, no state law appears to explicitly regulate the licensing of drug paraphernalia retailers. However, a plain reading of these enactments shows each seeks to regulate the sale and distribution of paraphernalia designed or marketed for use with illegal drugs by imposing penal sanctions. Because the only "illegal" drugs are those so designated by state law and both the City and State purport to regulate the sale of identical materials, the enactments are identical in purpose. The enactments are duplicative because each makes it unlawful to distribute drug paraphernalia to minors. They are contradictory insofar as a violation of that provision under the ordinance is simply punishable as a misdemeanor by a fine not exceeding $500 or imprisonment not exceeding six months, or both, where subdivision (b) of section 11364.7 provides that persons who are 18 years of age or older and unlawfully distribute drug paraphernalia to a minor at least three years their junior is guilty of a misdemeanor punishable by a fine not exceeding $1,000 or imprisonment for more than one year, or both. Moreover, section 11364.7, subdivision (a) makes it unlawful for any person to distribute or manufacture drug paraphernalia, knowing or under circumstances where one reasonably should know, it will be employed to introduce into the human body a controlled substance. In comparison, by implication through the requirement of licensing and no express prohibition as to sale to adults, the City appears to be sanctioning the sale of drug paraphernalia to adults.

In fact, it is difficult to believe the City is serious in its attempt to defend this ordinance which, on its face, purports to permit businesses to sell goods which are completely banned by state law, so long as the City issues a special local business license. The general rule is that conduct or activities which are unlawful or criminal in nature may not be made the subject matter of municipal licensing. (9 McQuillin, Municipal Corporations (3d ed. rev.) §§ 26.23b, 26.51, pp. 61, 138.) On the other hand, even where there is preemption, a municipality may be entitled to collect license fees for the right to engage in lawful activities relating to the subject matter preempted. (See Lancaster v. Municipal Court, supra, 6 Cal.3d at p. 809, 100 Cal.Rptr. 609, 494 P.2d 681.) ⁶ Indeed, local law enforcement officers must enforce state and local laws alike, and any sale or distribution of unlawful drug paraphernalia subjects the seller or distributor to arrest and fine under state law regardless whether licensed by the City. (9 McQuillin, Municipal Corporations, supra, § 26.23b, at p. 61.)

The City challenges this assessment, contending its ordinance neither contradicts nor duplicates section 11364.7 because the latter is completely silent with regard to licensing and record keeping; in light of section 11364.5, subdivision (g), the State's statutory scheme specifically contemplates licensing by local governmental bodies; and, finally, because section 11364.7, subdivision (a) requires a distributor to know or be constructively aware the drug paraphernalia will be used for its "intended" purpose, it clearly implies the general laws do not make all sales of drug paraphernalia unlawful. However, upon examining underlying legislative history, we conclude the Legislature's modification of its general statutory scheme through the addition of sections 11014.5 and 11364.7 shows its intent to establish a total ban on the manufacture and distribution of drug paraphernalia in California, so as to occupy the entire regulatory field to the exclusion of local legislation.

The governing standard for determining whether an area has been fully occupied on the basis of legislative implication is settled. "In determining whether the Legislature has preempted by implication to the exclusion of local regulation we must look to the whole purpose and scope of the legislative scheme. There are three tests: '(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the...