City of Tucson v. Rineer

• Court: Arizona Court of Appeals
• Writing for the Court: ESPINOSA; PELANDER, P.J., and HOWARD
• Citation: City of Tucson v. Rineer, 193 Ariz. 160, 971 P.2d 207 (Ariz. App. 1998)
• Decision Date: 27 August 1998
• Docket Number: No. 2CA-CR97-0407,2CA-CR97-0407
• Parties: , 276 Ariz. Adv. Rep. 16 The CITY OF TUCSON, Appellee, v. Kenneth Roy RINEER, Appellant.

Page 207

971 P.2d 207

193 Ariz. 160, 276 Ariz. Adv. Rep. 16

The CITY OF TUCSON, Appellee, v. Kenneth Roy RINEER, Appellant.

No. 2CA-CR97-0407.

Court of Appeals of Arizona Division 2, Department B.

Aug. 27, 1998.

Review Denied Jan. 12, 1999.

Thomas J. Berning, Tucson City Attorney, by R. William Call, William F. Mills, and Dennis McLaughlin, Tucson, for Appellee.

David T. Hardy and Edmund Kahn, Tucson, for Appellant.

OPINION

ESPINOSA, Judge.

¶1 After entering Himmel Park with a handgun, appellant Kenneth Rineer was cited for violating Tucson City Code § 21-3(5)(2), which prohibits using or possessing firearms within Tucson city parks. Rineer moved to dismiss the complaint, arguing the ordinance is preempted by A.R.S. §§ 13-3102, 13-3107, and 13-3108(A) and violates his constitutional right to bear arms under article II, § 26 of the Arizona Constitution. The city court granted Rineer's motion, finding the ordinance "unconstitutional in that the state has preempted the control of firearms within the state." The City of Tucson appealed the ruling to Pima County Superior Court, which reversed the city court's ruling, concluding that the city parks firearms prohibition is not preempted by state law and does not violate the Arizona Constitution. This appeal followed. We have jurisdiction pursuant to article VI, § 16 of the Arizona Constitution and A.R.S. § 22-375. State v. Holland, 153 Ariz. 536, 738 P.2d 1143 (App.1987). Because we find the ordinance neither conflicts with state law nor violates Rineer's constitutional rights, we affirm the superior court's ruling.

Preemption

¶2 The City of Tucson is a charter or "home rule" city organized pursuant to article XIII, § 2 of the Arizona Constitution which, in pertinent part, provides, "Any city containing, now or hereafter, a population of more than three thousand five hundred may frame a charter for its own government consistent with, and subject to, the Constitution and the laws of the State...." Accordingly, the city may exercise all powers granted by its charter, provided that the exercise is not inconsistent with either the constitution or general laws of the state. Jett v. City of Tucson, 180 Ariz. 115, 882 P.2d 426 (1994). Whether state law preempts a city ordinance is a question of law that we review de novo. See Kadish v. Arizona State Land Dep't, 177 Ariz. 322, 868 P.2d 335 (App.1993).

¶3 Our supreme court has said that, in Arizona,

"Both a city and state may legislate on the same subject when that subject is of local concern or when, though the subject is not of local concern, the charter or particular state legislation confers on the city express power to legislate thereon; but where the subject is of statewide concern, and the legislature has appropriated the field by enacting a statute pertaining thereto, that statute governs throughout the state, and local ordinances contrary thereto are invalid."

Flagstaff Vending Co. v. City of Flagstaff, 118 Ariz. 556, 559, 578 P.2d 985, 988 (1978), quoting Phoenix Respirator & Ambulance Serv., Inc. v. McWilliams, 12 Ariz.App. 186, 188, 468 P.2d 951, 953 (1970). For this court to conclude that state legislation has completely occupied a particular field, " '[t]he existence of a preempting policy must be clear. Also, the assertedly competing provisions in question must be actually conflicting, rather than capable of peaceful coexistence. Mere commonality of some aspect of subject matter is insufficient....' " Jett, 180 Ariz. at 121, 882 P.2d at 432, quoting City of Prescott v. Town of Chino Valley, 163 Ariz. 608, 616, 790 P.2d 263, 271 (App.1989), vacated in part on other grounds, 166 Ariz. 480, 803 P.2d 891 (1990).

¶4 As we understand a number of overlapping and sometimes recondite arguments, Rineer contends that the regulation of firearms is exclusively a matter of statewide concern that the legislature has both expressly and implicitly preempted, citing A.R.S. § 13-3108(A) as evincing the legislature's intent as well as "express command" to completely occupy the field. That statute states: "Ordinances of any political subdivision of this state relating to the transportation, possession, carrying, sale and use of firearms in this state shall not be in conflict with this chapter." Rineer argues "it is not necessary to assess the traditional standards of preemption" because "Title 13 forbids a range of personal conduct, and by omission, permits the remainder;" therefore, any local regulation not expressly authorized by the legislature is necessarily "in 'conflict with' these commands." ¹ We cannot agree with this broad premise or conclusion. Under Rineer's logic, preemption of local laws might be similarly read into virtually any state statutory scheme. The test for preemption, however, is not one of negative inference. Rather, the policy of preemption must be clear. Jett; Town of Chino Valley. Here, no preemptive inference is warranted because on its face, the statute recognizes that there may be parochial legislation in the broad areas enumerated. Compare State v. Loughran, 143 Ariz. 345, 693 P.2d 1000 (App.1985) (no legislative intent to appropriate field in statutory language that cities and towns not prohibited from enacting and enforcing prostitution ordinances at least as stringent as statute); City of Seattle v. Ballsmider, 71 Wash.App. 159, 856 P.2d 1113 (Wash.App.1993) (although Washington statute preempted field of firearms regulation, it expressly permitted consistent local laws and additional statute allowed local governments broad authority to regulate firearms discharge in areas where people or property would be endangered). See also Op. Att'y Gen. I78-274 (1978) ² (§ 13-3108 "clearly indicates that the legislature did not intend totally to preempt the field of firearms regulation").

¶5 Rineer argues, however, that "[t]he question here is purely one of statutory construction," and the statute's history shows "a legislative purpose of moving localities out of the business of firearms regulation," particularly the 1983 addition of subsection B to § 13-3108, which prohibits political subdivisions of the state from requiring "the licensing or registration of firearms or prohibit[ing] the ownership, purchase, sale or transfer of firearms." We find this argument without merit for several reasons. First, subsection B is specific in its prohibitions and does not forbid local regulation of possessing or carrying weapons, something that the legislature could have easily included had it so intended. Jett. Indeed, when the legislature has intended to preclude local legislation, it has done so expressly. See A.R.S. §§ 3-377 (article governing pesticide control "not subject to further local regulation"); 5-412 (taxation of bingo "preempted by the state"); 20-226(B) (with certain enumerated exceptions, "the state preempts the field" imposing taxes upon insurers and their agents); 33-1329(A) ("the power to control rents on private residential property is preempted by the state").

¶6 Second, if § 13-3108(A) was truly "an express command" or an expression of the legislature's "objective" to "be the last word on the matter, precluding further regulation by localities except as it might expressly allow," as Rineer argues, then the addition of subsection B would make little sense. That provision would be superfluous in removing specified areas from the reach of local regulation when § 13-3108(A) already accomplished that result. See Vega v. Morris, 184 Ariz. 461, 910 P.2d 6 (1996) (the legislature generally does not include statutory provisions that are redundant, inert, superfluous or contradictory). To the contrary, the addition of subsection B is entirely consistent with and reflects the legislature's intent to allow local firearms regulation except in areas where it has specifically spoken.

¶7 Finally, no construction or interpretation of § 13-3108(A) as urged by Rineer is necessary, or even permissible, because under a straightforward reading of the statute it requires only that local government's firearms regulations not be in conflict with those of the state. "If the language of the statute is plain, the court looks no further." State v. Jones, 188 Ariz. 388, 392, 937 P.2d 310, 314 (1997), cert. denied, --- U.S. ----, 118 S.Ct. 705, --- L.Ed.2d ---- (1998).

¶8 Rineer additionally contends that preemption is implied because "the State has comprehensively regulated the field," citing several statutes governing "person, type, manner, time and place of arms possession and use." ³ The "mere fact" that a legislative body has enacted a detailed regulatory scheme, however, "does not by itself imply preemption." Kadera v. Superior Court, 187 Ariz. 557, 560, 187 Ariz. 557, 931 P.2d 1067, 1070 (App.1996). Moreover, this argument ignores the plain language of § 13-3108(A) and the implication of subsection B, which evince the legislature's intent not to exclusively occupy the field, but rather to permit local ordinances "relating to the transportation, possession, carrying, sale and use of firearms" provided they do not conflict with title 13, chapter 31, A.R.S. See Hernandez-Gomez v. Leonardo, 185 Ariz. 509, 917 P.2d 238 (1996) (no implied federal preemption of plaintiff's state common law claim when statute indicated Congress did not intend to exclusively occupy field, no conflict existed between state and federal law, it was possible to comply with both state and federal requirements, and state law no obstacle to congressional objectives).

¶9 Because Rineer has not shown, and we do not find, any legislative intent, either express or implied, to prohibit all local firearms regulation, we turn to the question whether Tucson City Code § 21-3(5)(2) nevertheless conflicts with any of the provisions of title 13, chapter 31, A.R.S. See Ariz. Const. article XIII, § 2; Jett; see also State ex rel. Baumert v. Phoenix Mun. Court, 124 Ariz. 159, 602 P.2d 827 (App.1979) (if no conflict with state statute on same...