Dwagfys Mfg., Inc. v. City of Topeka, Kan., Corp.

• Decision Date: 28 June 2019
• Docket Number: No. 119,269,119,269
• Citation: 443 P.3d 1052
• Parties: DWAGFYS MANUFACTURING, INC., d/b/a The Vapebar Topeka, and Puffs ‘n’ Stuff, L.L.C., Appellees, v. CITY OF TOPEKA, Kansas, a Municipal Corporation, Appellant.
• Court: Kansas Supreme Court

443 P.3d 1052

DWAGFYS MANUFACTURING, INC., d/b/a The Vapebar Topeka, and Puffs ‘n’ Stuff, L.L.C., Appellees,

v.CITY OF TOPEKA, Kansas, a Municipal Corporation, Appellant.

No. 119,269

Supreme Court of Kansas.

Opinion filed June 28, 2019.

Mary Feighny, deputy city attorney, argued the cause and was on the brief for appellant.

Robert E. Duncan II, of Topeka, argued the cause and was on the briefs for appellees.

Amanda L. Stanley, general counsel, was on the brief for amicus curiae League of Kansas Municipalities.

Jeffrey A. Chanay, chief deputy attorney general, Toby Crouse, solicitor general, Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for amicus curiae State of Kansas.

Miriam E.C. Bailey, of Polsinelli, PC, of Kansas City, Missouri, and Dennis A. Henigan, of Washington, D.C., were on the brief for amicus curiae Greater Kansas City Chamber of Commerce, The Campaign for Tobacco-Free Kids, and Certain Other Public Health, Medical, and Community Organizations.

W. Robert Alderson, of Alderson, Alderson, Conklin, Burghart, Crow & Slinkard, L.L.C., of Topeka, was on the brief for amicus curiae Petroleum Marketers and Convenience Store Association of Kansas.

The opinion of the court was delivered by Stegall, J.:

The City of Topeka passed Ordinance No. 20099, amending Uniform Public Offense Code § 5.7 (2015) making it unlawful for any person to: "(1) Sell, furnish or distribute cigarettes, electronic cigarettes, tobacco products or liquid nicotine to any person under 21 years of age; or (2) Buy any cigarettes, electronic cigarettes, tobacco products or liquid nicotine for any person under 21 years of age." The day before the Ordinance was to take effect, DWAGFYS Manufacturing, Inc., d/b/a The Vapebar Topeka, and Puffs ‘n’ Stuff, L.L.C. sued Topeka seeking to prevent enforcement of the Ordinance. Vapebar argued the Ordinance was unconstitutional under article 12, section 5 of the Kansas Constitution because it impermissibly conflicted with and was preempted by the Kansas Cigarette and Tobacco Products Act, K.S.A. 79-3301 et seq., referred to as the Act. Additionally, Vapebar argued the Ordinance exceeded Topeka's police power authority.

The district court issued a temporary restraining order and eventually a permanent injunction. Topeka appealed and moved to transfer the case to this court. Topeka asked us to consider: (1) whether the Act preempts Topeka from prohibiting retailers from selling cigarettes, electronic cigarettes, tobacco products, and liquid nicotine to persons under the age of 21 years; and (2) whether the Ordinance conflicts with the Act. We granted Topeka's motion to transfer and now hold the Ordinance is not preempted by and does not conflict with the Act. Thus, the Ordinance is a constitutionally valid exercise of Topeka's home rule power under article 12, section 5 of the Kansas Constitution.

ANALYSIS

Topeka sought to join other Kansas cities in making it unlawful for retailers to sell, furnish, or distribute cigarettes, electronic cigarettes, tobacco products, or liquid nicotine to any person under 21 years old. The Ordinance passed by Topeka provided, in part:

"(2) Section 5.7 of UPOC [Uniform Public Offense Code] 2015, relating to selling, giving or furnishing cigarettes or tobacco products to a minor is hereby deleted and the following language is substituted therefor:

"(a) It shall be unlawful for any person to:

(1) Sell, furnish or distribute cigarettes, electronic cigarettes, tobacco products or liquid nicotine to any person under 21 years of age; or

(2) Buy any cigarettes, electronic cigarettes, tobacco products or liquid nicotine for any person under 21 years of age.

"(b) It shall be a defense to a prosecution under this section if:

(1) The defendant is a licensed retail dealer, or employee thereof, or a person authorized by law to distribute samples;

(2) The defendant sold, furnished or distributed the cigarettes, electronic cigarettes, tobacco products, or liquid nicotine to the person under 21 years of age with reasonable cause to believe the person was of legal age to purchase or receive cigarettes, electronic cigarettes, tobacco products or liquid nicotine; and

(3) To purchase or receive the cigarettes, electronic cigarettes, tobacco products or liquid nicotine, the person under 21 years of age exhibited to the defendant a driver's license, Kansas non driver's identification card or other official or apparently official document containing a photograph of the person and purporting to establish that the person was of legal age to purchase or receive cigarettes, electronic cigarettes, tobacco products or liquid nicotine.

(4) For purposes of this section the person who violates this section shall be the individual directly selling, furnishing or distributing the cigarettes, electronic cigarettes, tobacco products or liquid nicotine to any person under 21 years of age or the retail dealer who has actual knowledge of such selling, furnishing or distributing by such individual or both.

"(c) It shall be a defense to a prosecution under this subsection if:

(1) The defendant engages in the lawful sale, furnishing or distribution of cigarettes, electronic cigarettes, tobacco products or liquid nicotine by mail; and

(2) The defendant sold, furnished or distributed the cigarettes, electronic cigarettes, tobacco products or liquid nicotine to the person by mail only after the person had provided to the defendant an unsworn declaration, conforming to K.S.A. 53-601 and amendments thereto, that the person was 21 or more years of age.

"(d) The words and phrases in Section 5.7 of UPOC 2015 shall have the same meanings as defined in K.S.A. 79-3301, and amendments thereto. ‘Liquid nicotine’ shall mean the active ingredient of the tobacco plant (nicotine) in liquefied form suitable for the induction of nicotine, whether by nasal spray, ingestion, smoking or other means, into the human body. ‘Sale’ shall mean any transfer of title or possession or both, exchange, barter, distribution or gift of cigarettes, electronic cigarettes, tobacco products or liquid nicotine with or without consideration.

"(f) [sic ] Violation of this section shall constitute a Class B violation punishable by a minimum fine of $200."

According to Vapebar, the Ordinance is unconstitutional because it "impermissibly conflicts with and is therefore preempted by uniform state law [the Act] under the Home Rule Amendment to the Kansas Constitution, Article 12, § 5 (b)."

The Act, in relevant part, provides:

"It shall be unlawful for any person:

....

"(l) To sell, furnish or distribute cigarettes, electronic cigarettes or tobacco products to any person under 18 years of age.

"(m) Who is under 18 years of age to purchase or attempt to purchase cigarettes, electronic cigarettes or tobacco products.

"(n) Who is under 18 years of age to possess or attempt to possess cigarettes, electronic cigarettes or tobacco products." K.S.A. 2018 Supp. 79-3321(l) - (n).

The district court found "conflicts between the city ordinance ... and state law" and enjoined enforcement of the Act on that basis. As such, the lower court declined to rule on Vapebar's police power claim and dismissed it without prejudice.

The preemption and conflict issues raised in this appeal derive from article 12, section 5 of the Kansas Constitution —also known as the home rule amendment. Taking effect in 1961, the home rule amendment empowered local governments to determine their local affairs and government by ordinance. Kan. Const. art. 12, § 5 (b); Steffes v. City of Lawrence , 284 Kan. 380, 385, 160 P.3d 843 (2007). Following the amendment, cities no longer had to rely on the Legislature to specifically authorize the exercise of a particular power or action via statute. The amendment further provided that the "[p]owers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government." Kan. Const. art. 12, § 5 (d).

Cities exercise this power through charter or "ordinary" ordinances. Kan. Const. art. 12, § 5 (b) and (c); see also Heim, Home Rule: A Primer , 74 J.K.B.A. 26, 31 (January 2005). Here, the parties agree the Ordinance is an ordinary ordinance. A city may adopt ordinary ordinances when no state law exists on the subject or when a uniform law applicable to all cities exists on the subject but the Legislature has not expressed a clear intent to preempt the field and there is no conflict between the state and local law. City of Wichita v. Hackett , 275 Kan. 848, 851-52, 69 P.3d 621 (2003).

Thus, to determine whether an ordinary ordinance is a valid exercise of home rule power courts must ask: (1) Is there a state law that governs the subject? (2) If there is a state law, is it uniformly applicable to all cities? (3) If there is a uniform state law, does it preempt further action by cities? and (4) If there is a uniform state law but there has been no preemption, does the local regulation conflict with the uniform state law? See Heim, Home Rule Power for the Cities and Counties in Kansas , 66 J.K.B.A. 26, 32 (1997).

The first two questions are not in dispute. The parties agree that the Act and the Ordinance govern the same subject—i.e., the regulation of cigarettes, electronic cigarettes, tobacco products, and liquid nicotine in Kansas. The parties also agree that the Act is a uniform state law applicable to all cities. Thus, we must resolve the latter two questions—preemption and conflict. We exercise unlimited review over constitutional challenges. Steffes , 284 Kan. at 388-89, 160 P.3d 843. To the extent this constitutional inquiry requires us to engage in statutory interpretation, our review is likewise unlimited. Hackett , 275 Kan. at 850, 69 P.3d 621.

Vapebar asks us to find that the Legislature preempted the field of tobacco regulation when it passed the Act. But there is no express statement of...