California Grocers Assn. v. City of Los Angeles
| Citation | 176 Cal.App.4th 51,98 Cal. Rptr. 3d 34 |
| Decision Date | 30 July 2009 |
| Docket Number | No. B206750.,B206750. |
| Court | California Court of Appeals |
| Parties | CALIFORNIA GROCERS ASSOCIATION, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant; LOS ANGELES ALLIANCE FOR A NEW ECONOMY, Intervener and Appellant. |
Schwartz, Steinsapir, Dohrmann & Sommers and Henry M. Willis for Intervener and Appellant.
Jones Day, Richard S. Ruben, Craig E. Stewart and Nathaniel P. Garrett for Plaintiff and Respondent.
A trade association of grocery store operators and suppliers brought an action challenging an ordinance enacted by the City of Los Angeles that required purchasers of large grocery stores to employ the prior store's workforce for 90 days. The trial court found the ordinance was preempted by the California Retail Food Code (CRFC), Health and Safety Code section 113700 et seq.,1 based on the Legislature's express intent to fully occupy the field of health and sanitation standards for retail food facilities. Defendant City of Los Angeles (City) and intervener Los Angeles Alliance for a New Economy (LAANE) appeal from the judgment enjoining enforcement of the ordinance. The City and LAANE contend that the purpose of the ordinance is to provide job security to grocery workers in the event of a change in ownership, and the provisions are unrelated to health and sanitation standards. We conclude that the ordinance requires successor grocery employers to employ experienced workers in order to maintain health and safety standards at the store during the transition to new management. As such, the ordinance enters into a field fully occupied by state law and is preempted. In addition, we conclude that the ordinance is preempted by the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.). Therefore, we affirm.
The CRFC is a comprehensive statutory scheme regulating health and sanitation standards for retail food facilities. The CRFC encompasses a wide range of provisions regulating food facilities, including building plan review (§ 114380), employee knowledge (§ 113947 et seq.), food storage (§ 114047 et seq.), and sanitation practices for equipment and utensils (§ 114095 et seq.).
In section 113705, the Legislature expressly declared that
Under section 113709, local governing bodies are permitted to adopt an evaluation or grading program for food facilities, to prohibit any type of food facility, to adopt an employee health certification program, to regulate consumer toilet and handwashing facilities, and to adopt public safety requirements concerning vending from vehicles.
The CRFC contains several provisions regulating employee knowledge of food safety. Food facilities that provide nonprepackaged potentially hazardous food must have an owner or employee who has passed an accredited food safety certification examination. (§ 113947.1, subd. (a).) "A food facility that commences operation, changes ownership, or no longer has a certified owner or employee pursuant to this section shall have 60 days to comply with this subdivision." (Id., subd. (e).)
In addition to the requirements for a certified owner or employees, all food employees must have adequate knowledge and be properly trained in food safety as it relates to their assigned duties. (§ 113947.) The certified owner or employee is responsible for ensuring that all employees who handle nonprepackaged foods have (§ 113947.1, subd. (f).) A local government program that requires employees of a food facility to obtain approved food safety training or certification is enforceable only if the program existed prior to January 1, 1998, and only in the form that the program existed prior to January 1, 1998. (§§ 113794.1, 113947.5.)
The Los Angeles City Council adopted the Grocery Worker Retention Ordinance on December 21, 2005. The purpose of the ordinance was stated expressly in Los Angeles Municipal Code (L.A.M.C.) section 181.00:
The ordinance applies to "grocery establishments," including (1) retail stores over 15,000 square feet that sell primarily household foods for offsite consumption; and (2) retail stores with sales floors over 100,000 square feet that sell personal and household merchandise and use more than 10 percent of their sales floors for the sale of nontaxable merchandise. (L.A.M.C., §§ 181.01E, 12.24U.14.a.) Businesses that sell primarily bulk merchandise and require customers to pay a periodic fee are excluded from the regulation. (L.A.M.C., § 12.24U.14.a.)
When control of a grocery establishment changes due to the sale or transfer of the assets or controlling interest, the ordinance requires the successor grocery employer to hire employees from a list of employees who worked at the store prior to the change in control, other than managerial, supervisory, or confidential employees. (L.A.M.C., §§ 181.01, 181.02B.) If the successor employer needs fewer employees than its predecessor, the employees must be hired based on seniority or pursuant to the terms of a relevant collective bargaining agreement. (L.A.M.C., § 181.03B.)
For 90 days after the establishment is fully operational and open to the public, the successor employer cannot discharge the employees hired under the ordinance except for cause. (L.A.M.C., § 181.03A, C.) At the end of the 90-day period, the employer must provide a written performance evaluation as to each employee. (L.A.M.C., § 181.03D.) If the employee's performance was satisfactory, the employer must consider offering the worker continued employment. (L.A.M.C., § 181.03D.) Workers may bring an action against the predecessor or successor employer, as appropriate, for violations of the ordinance, seeking reinstatement, front pay and backpay, value of lost benefits, and attorney fees. (L.A.M.C., § 181.05.)
Parties subject to the ordinance may execute a collective bargaining agreement that supersedes requirements of the ordinance. (L.A.M.C., § 181.06.)
In July 2005, the city council requested that the city attorney prepare an ordinance that would extend existing permitting requirements and standards for public venues to supermarkets and provide for transitional worker retention to assure the maintenance of these standards when supermarket establishments change ownership. Ultimately, the ordinance focused solely on transitional worker retention.
The city attorney presented a report to the city council along with the draft of the grocery worker retention ordinance. The report concluded that the ordinance was not preempted by state or federal labor laws and discussed the rational basis for the ordinance. The report did not mention any state laws governing health and safety standards.
At a city council hearing on the proposed ordinance on December 14, 2005, the city attorney's representative explained that the City could use its police powers to regulate private industry in order to promote the health, welfare, and safety of its residents. The proposed transitional period for grocery store workers addressed the City's concern for sanitary procedures, the proper handling of food, and possibly the unique clientele of a specific store.
During the discussion of the ordinance, Councilmember Alex Padilla emphasized the importance of maintaining stability in the workforce that ensures food is safe and sanitary. Councilmember Janice Hahn approved of the ordinance's protection for grocery store workers. Her view was that the City should eventually protect workers in all industries that are commonly subject to buyouts and mergers.
Councilmember Dennis Zine expressed concern that 90 days did not allow employees sufficient time to rearrange their lives and find other jobs. In response, the city attorney's representative explained that the ordinance was focused on health, safety, and welfare. The 90-day period in the ordinance was designed to ensure that workers employed during the transition would have ...
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