City of Tacoma v. Luvene

Decision Date16 April 1992
Docket NumberNo. 57591-6,57591-6
PartiesCITY OF TACOMA, Respondent, v. John LUVENE, Petitioner.
CourtWashington Supreme Court

Dino G. Sepe, Dept. of Assigned Counsel, Tacoma, for petitioner.

William J. Barker, Tacoma City Atty. and Cheryl F. Carlson, Asst. City Atty., Tacoma, for respondent.

Sheryl Gordon McCloud, Seattle, amicus curiae for petitioner on behalf of Washington Ass'n of Crim. Defense Lawyers and the American Civ. Liberties Union.

Richard A. White and Perkins Coie, Seattle, Andrew N. Vollmer, Gary B. Born and Robert F. Hoyt, Wilmer, Cutler & Pickering, Washington, D.C., amicus curiae for respondent on behalf of American Alliance for Rights and Responsibilities.

Richard A. White, Andrew N. Vollmer, Gary B. Born, Robert F. Hoyt, Roger Conner, and Robert Teir, on behalf of American Alliance for Rights and Responsibilities and Together! Thurston Communities for a Drug Free Youth, Washington, D.C., amicus curiae.

Mark H. Sidran, Seattle City Atty. Richard Greene, Asst. City Atty., Seattle, amicus curiae for respondent on behalf of City of Seattle.

John W. Ladenburg, Pierce County Prosecutor and Chris Quinn-Brintnall, Sr. Appellate Deputy Prosecutor, Tacoma, amicus curiae for respondent on behalf of Washington Ass'n of Prosecuting Attys.

UTTER, Justice.

This is an appeal from a criminal conviction for drug loitering. Petitioner John Luvene seeks review of his conviction for drug loitering under Tacoma Municipal Code (TMC) 8.72.010. He challenges the ordinance as being unconstitutionally overbroad and vague, as well as challenging the sufficiency of the evidence to convict him of the crime of drug loitering. Finally, he claims the Tacoma ordinance is unconstitutional as being preempted by RCW 69.50.608. As construed, we find the Tacoma drug loitering ordinance to be both constitutional and not preempted by state law. The conviction is affirmed.


At 8:09 p.m. on Friday, August 26, 1988, a Tacoma police officer was near the intersection of 14th and "J" Streets in Tacoma. The Tacoma Police Department had received phone calls and complaints from citizens who lived in that area about persons flagging down vehicles and pedestrians to make drug deals.

From a distance of about 30 feet, the officer watched three men in their mid-twenties standing on the southeast corner of 14th and "J" Streets. They were pacing two to three steps in all directions and continually surveying their surroundings. Petitioner was one of the three. The police officer did not know the petitioner.

The men stood in the middle of the intersection waving at and trying to flag down vehicles, several of which stopped. Luvene flagged down a car and then, with a wave of his arm, beckoned one of his companions to come over to the stopped car. Once the car stopped, Luvene ran up to it and then again waved for this same man to come over. As the man walked to the stopped car, the police officer saw him reach into his pants pocket and pull out a clear plastic bag containing what appeared to be 10 or more pieces of rock cocaine. Upon entering the passenger's seat, this companion of Luvene's gave the driver what appeared to be some of the rock cocaine and the driver gave him paper money. During this transaction, Luvene was standing next to his companion watching the transaction and surveying the street scene. A short time after this transaction the police saw Luvene walking on the sidewalk with someone who appeared to be smoking a crack pipe.

At approximately 8:50 p.m., a car arrived at the intersection, sounded its horn, and stopped to converse with a number of persons at the intersection, including the petitioner. After the car pulled out of the intersection, the police observed the driver making exchanges with a number of persons. At this time the police officers approached and arrested five persons, including Luvene, for drug loitering. Luvene was given Miranda warnings. A pipe of glass tubing, commonly used to smoke crack cocaine, was found on one of the persons arrested. The car contained a plastic bag of white powder and two additional glass tube pipes. No drugs or drug paraphernalia were found on Luvene.

Luvene raised his overbreadth and vagueness challenges in a motion to dismiss the charges, which was denied by the Tacoma Municipal Court on October 21, 1988. Luvene stipulated to the facts contained in the police report and was found guilty of drug loitering.

Luvene filed a notice of appeal to the Pierce County Superior Court pursuant to RALJ 2.4(c) and 2.6. On September 21, 1990, the Pierce County Superior Court held that the drug loitering ordinance was not overbroad or vague and affirmed Luvene's conviction. The judge's memorandum decision indicates he declined to consider the petitioner's claim that the Tacoma drug loitering ordinance was facially overbroad. This denial was based on the theory that petitioner lacked standing because his conduct fell within the valid reach of the ordinance.

Luvene then sought direct review of the superior court decision under RAP 4.2(a)(4). Because this case raises fundamental and urgent issues of broad public import, we accepted review.


Luvene argues that Tacoma's drug loitering ordinance is preempted by various statutes dealing with controlled substances. See RCW 69.50.608. He suggests that the Tacoma ordinance and sections of RCW 69.50 prohibit the same conduct but that the Tacoma ordinance punishes this conduct as a misdemeanor while RCW 69.50.401 through .410 punish this conduct as a felony. This conflict of the penalty provisions, petitioner argues, requires that the Tacoma ordinance be preempted by the state controlled substance statutes.


Neither the petitioner nor respondent in this case argued the preemption issue. Rather, this issue was raised and briefed by amicus. Respondent City of Tacoma has argued that these circumstances preclude this court from addressing the preemption issue.

While we ordinarily only consider issues that have been raised by the parties, there are exceptions. Siegler v. Kuhlman, 81 Wash.2d 448, 502 P.2d 1181 (1972), cert. denied, 411 U.S. 983, 93 S.Ct. 2275, 36 L.Ed.2d 959 (1973). It is proper to do so when there is no dispute about the law to be applied. See Alverado v. WPPSS 111 Wash.2d 424, 429-30, 759 P.2d 427 (1988), cert. denied, 490 U.S. 1004, 109 S.Ct. 1367, 104 L.Ed.2d 153 (1989).

The preemption doctrine of Const. art. 11, § 11 is a well-settled area of law. See Brown v. Yakima, 116 Wash.2d 556, 807 P.2d 353 (1991). The parties here do not raise questions about the effect or contours of the preemption doctrine itself. Rather, they raise questions about its application to the Tacoma drug loitering ordinance.

Many local governments have enacted similar drug loitering ordinances, and this issue will frequently come before the court. The fact that the issue here concerns an application of the preemption doctrine rather than a dispute over its substantive principles makes it appropriate to consider the preemption question presented in this case.


Under Const. art. 11, § 11, cities have the right to enact ordinances prohibiting the same acts prohibited by state law so long as the state enactment was not intended to be exclusive and the city ordinance does not conflict with the general law of the state. See Brown, at 559, 807 P.2d 353. An ordinance must yield to a statute on the same subject on either of two grounds: if the statute preempts the field, leaving no room for concurrent jurisdiction, or if a conflict exists between the two that cannot be harmonized. Brown, at 559, 807 P.2d 353.

Preemption occurs when the Legislature states its intention expressly, or by necessary implication, to preempt the field. Brown. There is here no expressly stated intention to preempt the field. In such situations:

[T]he court may look to the purposes of the statute and to the facts and circumstances upon which the statute was intended to operate. If, however, the Legislature "affirmatively expresses its intent, either to occupy the field or to accord concurrent jurisdiction, there is no room for doubt."

(Citations omitted.) Brown, at 560, 807 P.2d 353 (quoting Lenci v. Seattle, 63 Wash.2d 664, 670, 388 P.2d 926 (1964)).

Tacoma contends that RCW 69.50.608 expresses the Legislature's intent to allow a measure of concurrent jurisdiction in the field of criminalizing drug-related activity. The statute states:

The state of Washington fully occupies and preempts the entire field of setting penalties for violations of the controlled substances act. Cities, towns, and counties ... may enact only those laws and ordinances relating to controlled substances that are consistent with this chapter. Such local ordinances shall have the same penalties as provided for by state law. Local laws and ordinances that are inconsistent with the requirements of state law shall not be enacted and are preempted. ...

RCW 69.50.608. While the statute expressly preempts the field of setting penalties for violations of the Uniform Controlled Substances Act 1 (hereinafter UCSA), it nonetheless expressly contemplates the existence of "ordinances relating to controlled substances that are consistent" with the UCSA. RCW 69.50.608. No intent to preempt local government authority to enact "ordinances relating to controlled substances" is expressed here inasmuch as the statute expressly grants some measure of concurrent jurisdiction to municipalities. Brown, at 560, 807 P.2d 353.

Because RCW 69.50.608 grants concurrent jurisdiction to local governments, reliance on the comprehensive nature and structure of the UCSA to show preemption is misplaced. Once an affirmative expression of intent to allow concurrent jurisdiction or, conversely, to occupy the field is shown, arguments based on the necessary implication of statutory language and structure lose their force in the face of the express language of the statute. Brown, at 560, 807 P.2d 353....

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