Bravo Vending v. City of Rancho Mirage, E009290

• Court: California Court of Appeals
• Writing for the Court: McKINSTER; DABNEY, Acting P.J., and TIMLIN
• Citation: 20 Cal.Rptr.2d 164,16 Cal.App.4th 383
• Parties: BRAVO VENDING, Plaintiff and Appellant, v. CITY OF RANCHO MIRAGE, Defendant and Respondent.
• Docket Number: No. E009290,E009290
• Decision Date: 08 June 1993

Page 164

20 Cal.Rptr.2d 164 16 Cal.App.4th 383 BRAVO VENDING, Plaintiff and Appellant,
v.
CITY OF RANCHO MIRAGE, Defendant and Respondent. No. E009290. Court of Appeal, Fourth District, Division 2, California. June 8, 1993.

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[16 Cal.App.4th 390] Munger, Tolles & Olson, Mark B. Helm, Gary D. Roberts, Los Angeles, and Lynn D. Crandall, Palm Desert, for plaintiff and appellant.

Jean Leonard Harris, City Atty., for defendant and respondent.

Louise H. Renne, City Atty. (San Francisco), Burk E. Delventhal and Karen B. Konigsberg, Deputy City Attys., as amici curiae on behalf of defendant and respondent.

OPINION

McKINSTER, Associate Justice.

Appellant Bravo Vending (Bravo) appeals from a judgment against it on its action for declaratory relief and a permanent injunction and its petition for a writ of mandate, both of which sought to prevent the enforcement of an ordinance adopted by the City of Rancho Mirage ("City"). We affirm.

16 Cal.App.4th 391

FACTUAL AND PROCEDURAL BACKGROUND

On December 6, 1990, the City adopted its Ordinance No. 488, which: forbade the retail sale of "any cigarette or any tobacco product or cigarette paper or cigarette wrapper ¹ at any place in the City without a license";- established an annual license fee; prohibited sales of cigarettes to minors; and forbade the sale of cigarettes "through the use of a vending machine."

Bravo operates cigarette vending machines in various business locations within the City. On February 20, 1991, Bravo filed an action for declaratory and injunctive relief against the City. It sought a declaration that the portion of Ordinance No. 488 which prohibited the use of cigarette vending machines was preempted by Penal Code section 308, ² and thus invalid on its face. For the same reason, it prayed for the issuance of preliminary and permanent injunctions, restraining the City from enforcing that portion of the ordinance. Simultaneously, Bravo filed a separate petition for a writ of mandate, seeking the issuance of a peremptory writ preventing the enforcement of the ban on cigarette vending machines.

Two days later, both actions were consolidated, and an alternative writ of mandate was issued. At the hearing, the trial court found that section 308 did not preempt the City's prohibition of cigarette vending machines. Since the determination of that legal issue was dispositive of both the petition for a writ of mandate and the action for declaratory and injunctive relief, the trial court entered a judgment against Bravo on both actions. This timely appeal followed. ³

DISCUSSION

This case presents only one issue: Does section 308 preempt that portion of the City's ordinance which forbids the sale of cigarettes through vending machines?

A. STANDARD OF REVIEW

In evaluating the extent, if any, to which section 308 preempts the City's ordinance, we must interpret both pieces of legislation. "[T]he construction of statutes and the ascertainment of legislative intent are purely questions of law. This court is not limited by the interpretation of the statute [16 Cal.App.4th 392] made by the trial court...." (Burnsed v. State Bd. of Control (1987) 189 Cal.App.3d

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213, 218, fn. 3, 234 Cal.Rptr. 316.) Nor are we limited to the evidence presented on the question in the trial court. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856.)

B. THE CITY'S ORDINANCE

Following the adoption of Ordinance No. 488, its operative provisions were codified as chapter 5.24 of the City's municipal code. On July 25, 1991, the City adopted Ordinance No. 502, which amended Rancho Mirage Municipal Code sections 5.24.020 and 5.24.030. As thus amended, that chapter provides:

"5.24.010 License required--Application--Issuance. No person shall keep for retail sale, sell at retail or otherwise dispose of any cigarette or any tobacco product or cigarette paper or cigarette wrapper at any place in the city without a license. Application for a license shall be made to the city on a form supplied by the city. The application shall state the full name and address of the applicant, the location of the building and part intended to be used by the applicant under the license, the kind of business conducted at such location and such other information as shall be required by the application form. Upon the filing of an application with the department of economic development, it shall be presented to the department head for consideration. If granted by the department head, a license shall be issued by the city upon payment of the required fee. (Ord. 488 § 1, 1990).

"5.24.020 License--Fee. A. The annual license fee for a cigarette vending license shall be twenty-five dollars.

"B. No person shall be licensed to sell cigarettes through a vending machine. (Ord. 502, § 1, 1991: Ord. 488, § 2, 1990).

"5.24.030 Prohibited sales. No person shall sell or dispense any cigarettes or tobacco product, a cigarette paper or cigarette wrapper through the use of a vending machine. (Ord. 502 § 2, 1991: Ord. 488 § 3, 1990)."

The ordinance considered by the trial court differed in some respects. ⁴ However, "[u]nder settled principles, the version of the ordinance in force at present is the relevant legislation for purposes of this appeal. 'It is [16 Cal.App.4th 393] ... an established rule of law that on appeals from judgments granting or denying injunctions, the law to be applied is that which is current at the time of judgment in the appellate court.' " (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 306, fn. 6, 138 Cal.Rptr. 53, 562 P.2d 1302, quoting from Callie v. Board of Supervisors (1969) 1 Cal.App.3d 13, 18, 81 Cal.Rptr. 440.) The same rule applies in an appeal from mandamus proceedings. (Callie, supra, at p. 19, 81 Cal.Rptr. 440.)

Because the current version of an ordinance controls, the issues raised by an appeal may be rendered moot by an amendment which either repeals or significantly modifies the portion of the ordinance to which the challenge is directed. (Callie, supra, at pp. 18-19, 81 Cal.Rptr. 440 [reversing judgment and directing the trial court to dismiss the action where the portion of the ordinance which it attacked had been repealed]; Building Industry Assn. v. City of Oxnard (1985) 40 Cal.3d 1, 3, 218 Cal.Rptr. 672, 706 P.2d 285 [reversing the judgment for the trial court's reconsideration of the modified ordinance].) That is not the case here, because the only sentence of the ordinance which Bravo challenges ("No person shall sell or dispense any cigarettes or tobacco product, cigarette paper or cigarette wrapper through the use of a vending machine.") was reenacted without change. ⁵ (Cf. In re Dapper (1969)

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71 Cal.2d 184, 189, 77 Cal.Rptr. 897, 454 P.2d 905.)

For these reasons, in evaluating the validity of the City's regulations, we shall apply the language of chapter 5.24 of its municipal code as amended on July 25, 1991 ("Chapter 5.24").

C. SECTION 308

The sale of cigarettes to minors has been a criminal offense in this state since at least 1892, when section 308 first took effect. (Stats.1891, ch. 70, § 1, p. 64.) Following an amendment in 1983, that section consisted primarily of three elements: (1) it proclaimed the knowing sale of cigarettes to minors to be a misdemeanor; (2) it required that any cigarette dealer post a copy of that law, and described the penalties to be imposed for the failure to do so; and (3) it declared that local governments were free to further regulate [16 Cal.App.4th 394] the sale or display of cigarettes to minors. (Stats.1983, ch. 1092, § 265, p. 4034.) ⁶

As the result of the passage of Senate Bill No. 1960 (1987-1988 Reg.Sess.), ⁷ authored by Senator Petris, section 308 was revised again in 1988. As amended, it now provides:

"(a) Every person, firm or corporation which knowingly sells, gives, or in any way furnishes to another person who is under the age of 18 years any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, is subject to either a criminal action for a misdemeanor or to a civil action brought by a city attorney, a county counsel, or a district attorney, punishable by a fine of two hundred dollars ($200) for the first offense, five hundred dollars ($500) for the second offense, and one thousand dollars ($1,000) for the third offense.

"Notwithstanding Section 1464 or any other provision of law, 25 percent of each civil and criminal penalty collected pursuant to this subdivision shall be paid to the office of the city attorney, county counsel, or district attorney, whoever is responsible for bringing the successful action, and 25 percent of each civil and criminal penalty collected pursuant to this subdivision shall be paid to the city or county for the administration and cost of the community service work component provided in subdivision (b).

"Proof that a defendant, or his or her employee or agent, demanded, was shown, and reasonably relied upon evidence of majority shall be defense to [16 Cal.App.4th 395] any action brought pursuant to this subdivision. Evidence of majority of a person is a facsimile of or a reasonable likeness of a document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, a motor vehicle operator's license, a registration certificate issued under the Federal

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Selective Service Act, or an identification card issued to a member of the armed forces.

"For purposes of this section, the person liable for selling or furnishing tobacco products to minors by a tobacco vending machine shall be the person authorizing the installation or placement of the tobacco vending machine upon premises he or she manages or otherwise controls and...