Bamboo Brothers v. Carpenter

• Decision Date: 28 June 1982
• Citation: 183 Cal.Rptr. 748,133 Cal.App.3d 116
• Parties: BAMBOO BROTHERS, a General Partnership, Plaintiff and Respondent, v. John CARPENTER, in his Capacity as Sheriff of the County of Santa Barbara, George Kading, in his Capacity as County Counsel for the County of Santa Barbara, Stanley M. Roden, in his Capacity as District Attorney for the County of Santa Barbara, Defendants and Appellants. Civ. 63380.
• Court: California Court of Appeals Court of Appeals

Page 748

183 Cal.Rptr. 748

133 Cal.App.3d 116

BAMBOO BROTHERS, a General Partnership, Plaintiff and Respondent, v. John CARPENTER, in his Capacity as Sheriff of the County of Santa Barbara, George Kading, in his Capacity as County Counsel for the County of Santa Barbara, Stanley M. Roden, in his Capacity as District Attorney for the County of Santa Barbara, Defendants and Appellants.

Civ. 63380.

Court of Appeal, Second District, Division 4, California.

June 28, 1982.

Robert D. Curiel, Acting County Counsel, Eureka, and John M. Cohan, Deputy County Counsel, San Rafael, for defendants and appellants.

Kitchen & Turpin and David C. Turpin, Santa Barbara, for plaintiff and respondent.

ASHMANN, Associate Justice. ^*

This is an appeal from a permanent injunction issued by the Santa Barbara Superior Court, enjoining enforcement of Ordinance No. 3194 ¹ of the County of Santa Barbara (hereinafter ordinance). Appellants are representatives of the County, charged with the responsibility of enforcing the ordinance. Respondents are the owners of a retail store which sells, among other items, clothing, jewelry, posters, and smoking accessories.

On December 1, 1980, the Board of Supervisors of the County of Santa Barbara enacted the ordinance which regulates the use, possession, delivery, and manufacture of drug paraphernalia; and advertisements promoting the sale of drug paraphernalia. Respondent's complaint for declaratory and injunctive relief alleged that the ordinance is in conflict with and preempted by the general laws of the state of California; is vague and overbroad; and violates respondent's rights under the First Amendment. The trial court ruled in favor of the respondent, without reaching the issue of vagueness or overbreadth. We disagree with the decision of the trial court, and reverse.

SUMMARY OF THE ORDINANCE

The ordinance was passed due to the concern of the Board of Supervisors over the proliferation of what are commonly referred to as "head shops," and other establishments engaged in the sale of drug paraphernalia. ² The Board found that these places of business entice young people to abuse harmful and unsafe substances.

The ordinance begins with a definitions section (13A-2) which includes within the meaning of the phrase "controlled substance" marijuana, hashish, PCP and any controlled substances as defined by the Controlled Substances Act (Health and Saf. Code § 11000 et seq. ³ ). That section also defines drug paraphernalia as including all equipment, products and materials of any kind which are used, intended for use, or designed for use, in activities such as planting, cultivating, manufacturing, testing, analyzing, packaging, injecting, inhaling, or otherwise introducing into the human body a controlled substance in violation of the Controlled Substances Act. Twelve examples are provided, such as kits, scales, syringes and pipes, all of which include the requirement that the item be "used," "intended for use," or "designed for use" for specified activities involving controlled substances. It then lists 14 factors to be considered by the court or "other authority" in determining whether an object is indeed drug paraphernalia.

The substantive offenses appear in the next three sections which prohibit the following: Use or possession with intent to use drug paraphernalia, a violation of which is declared to be an infraction, punishable by fine (13A-3); the delivery, possession with intent to deliver, or the manufacture with intent to deliver drug paraphernalia, knowing, or under circumstances where one reasonably should know that it will be used to do such things as plant or ingest a controlled substance in violation of state law (13A-4); and finally, the advertisement of drug paraphernalia when one knows or reasonably should know the purpose is to promote the sale of drug paraphernalia (13A-5). Violation of sections 13A-4 or 13A-5 is declared to be a misdemeanor.

The paraphernalia is subject to civil forfeiture (13A-6), and an interpretative section sets forth the requirement that each defendant charged must have general intent before a violation may be deemed to have occurred (13A-7). ⁴

Punishment for use of drug paraphernalia in connection with possession or sale of under one ounce of marijuana (Health & Saf. Code § 11357 subd. (b) and § 11360 subd. (b)) is limited to the maximum punishment that may be imposed for those state law violations (13A-8), and section 13A-9 provides for severability.

PREEMPTION

Appellant first contends that contrary to the ruling of the trial court, the ordinance is not preempted by state law. The trial court, in its intended decision concluded that State law "completely and fully" covered the subject matter except in the advertising area, and, since in 1975 the legislature removed drug paraphernalia for the use of marijuana from the prohibitions of section 11364 (relating to unlawful possession of devices used for smoking certain substances), this indicated an intent to make lawful marijuana related items.

Fundamental to the county's authority to enact this ordinance is article XI, section 7 of the California Constitution, which 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." It is well settled, however, that any local regulation that directly conflicts with a provision of state legislation is to that extent void. (Galvan v. Superior Court (1969) 70 Cal.2d 851, 856, 452 P.2d 930.) "Conflicts exist if the ordinance duplicates [citations], contradicts [citations], or enters an area fully occupied by general law, either expressly or by legislative implication [citations]. If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject were otherwise one properly characterized as a 'municipal affair.' [Citations.]" Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807-808, 494 P.2d 681.

The state statutes which regulate drug paraphernalia are sections 11364, ⁵ 11364.5 ⁶ and Penal Code section 308. ⁷ Both section 11364.5 and Penal Code section 308 permit further local regulation.

In our review of these statutes, we find no direct conflict between them and the ordinance. As set forth above, section 11364 regulates the use of drug paraphernalia by adults, but excludes marijuana; section 11364.5 prohibits minors from being in places where drug paraphernalia is displayed; and Penal Code section 308 prohibits the sale of paraphernalia for tobacco or marijuana ingestion to minors. The ordinance, however, attempts to broaden the scope of the state laws by prohibiting use, possession and display to all persons, and includes drug paraphernalia relating to marijuana. The obvious intent of the ordinance is to prohibit the entire citizenry from use of drug paraphernalia and to prevent its distribution by those who know the purpose for which it is sold.

We next consider whether the state has established a general scheme that fully occupies the field. As set forth in In re Hubbard (1964) 62 Cal.2d 119, 396 P.2d 809, the following factors must be considered: "(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 subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality." (In re Hubbard, supra, 62 Cal.2d at 128, 396 P.2d 809.)

As recognized in Music Plus Four, Inc. v. Barnet (1980) 114 Cal.App.3d 113, 123, 124, 170 Cal.Rptr. 419: "... although there was once almost complete proscription of the possession, sale, and use of drug paraphernalia, including the kind of paraphernalia described in the ordinance, the amendments to the Uniform Controlled Substances Act decriminalizing the possession of small amounts of marijuana and the possession and sale of paraphernalia for the use of marijuana and certain other substances, has removed every vestige of coverage of the subject matter of the ordinance."

The inclusion in the ordinance of drug paraphernalia for use with marijuana, the display of it to all persons, and its promotion by advertisement are not within the subject matter of any state law and therefore the subject matter has not been fully covered by general law. Nor do we find an intent on the part of the legislature to occupy the entire field of use, possession and distribution of drug paraphernalia. We cannot say that the legislature so intended "unless we adopt the negative type of argument inherent in defendants' contention, that is, that by making specific acts illegal the Legislature intended all other acts of similar character to be of such innocent character that no local authority might adopt a contrary view. To adopt such a view ... would be to fly in the face of the well-settled doctrine that the use of specific words and phrases connotes an intent to exclude that which is not specifically stated. By limiting the general statutes to regulation or prohibition of specifically enumerated activities, the Legislature did not intend to prevent local authority from legislating on those subjects in regard to which the former are silent." (In re Hubbard, supra, 62 Cal.2d at 126-127, 396 P.2d 809.)

Moreover, we do not believe the general laws that partially cover the subject matter clearly indicate a paramount state concern that will not tolerate further or additional local legislation. We find nothing in the language of such laws to so indicate; nor do w...