Bravo Vending v. City of Rancho Mirage
Decision Date | 08 June 1993 |
Docket Number | No. E009290,E009290 |
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. |
Court | California Court of Appeals |
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.
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
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?
In evaluating the extent, if any, to which section 308 preempts the City's ordinance, we must interpret both pieces of legislation. (Burnsed v. State Bd. of Control (1987) 189 Cal.App.3d 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.)
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:
The ordinance considered by the trial court differed in some respects. 4 However, (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 [ ]; Building Industry Assn. v. City of Oxnard (1985) 40 Cal.3d 1, 3, 218 Cal.Rptr. 672, 706 P.2d 285 [ ].) 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) 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").
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 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:
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Appendix E
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