Holt's Cigar Co., Inc. v. City of Philadelphia

• Decision Date: 19 January 2011
• Citation: 10 A.3d 902
• Parties: HOLT'S CIGAR COMPANY, INC., Black Cat Cigar Company, Altadis USA, Inc., Swisher International, Inc., John Middleton, Inc., Cigar Association of America, Inc., and Pennsylvania Distributors Association, Inc., Appellees and Cross-Appellants v. The CITY OF PHILADELPHIA and Robert D. Solvibile, in his Official Capacity as Acting Commissioner of the Department of Licenses and Inspections of the City of Philadelphia, Appellants and Cross-Appellees.
• Court: Pennsylvania Supreme Court

10 A.3d 902

HOLT'S CIGAR COMPANY, INC., Black Cat Cigar Company, Altadis USA, Inc., Swisher International, Inc., John Middleton, Inc., Cigar Association of America, Inc., and Pennsylvania Distributors Association, Inc., Appellees and Cross-Appellants
v.
The CITY OF PHILADELPHIA and Robert D. Solvibile, in his Official Capacity as Acting Commissioner of the Department of Licenses and Inspections of the City of Philadelphia, Appellants and Cross-Appellees.

Supreme Court of Pennsylvania.

Argued March 9, 2010.
Decided Jan. 19, 2011.

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John S. Summers, John Stephen Stapleton, Mark Alan Aronchick, Matthew Aaron Hamermesh, Hangley Aronchick Segal & Pudlin, P.C., for Holt's Cigar Co., Black Cat Cigar Co., Altadis USA, Inc., Swisher Intern., Inc., John Middleton Inc., Cigar Assn. of America Inc. and Pennsylvania Distributors Assn., Inc.

Jane Lovitch Istvan, City of Philadelphia Law Dept., Richard Feder, for City of Philadelphia and Robert D. Solvibile.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Justice McCAFFERY.

The issue presented in this case is whether a municipal ordinance regulating the sale of certain tobacco items and other potential drug paraphernalia is preempted by state law. We conclude that the ordinance is inconsistent with the Controlled

10 A.3d 905

Substance, Drug, Device and Cosmetic Act, and, accordingly, is preempted.

On January 23, 2007, the Philadelphia City Council enacted an ordinance to

[a]mend[ ] Chapter 9-600 of The Philadelphia Code, entitled "Service Businesses," to add new provisions to prohibit the sale, from certain retail establishments, of "blunts," "loosies," cigarette papers, cigars and other items that may be otherwise legal but that are commonly used as drug paraphernalia, under certain terms and conditions.

City of Philadelphia Bill No. 060345-AAA, as amended on 11/30/06, at 1.

The ordinance was designed "to correct and control a[ ] growing trend among Philadelphia youth and others to purchase cigars, empty the tobacco from those cigars, and substitute marijuana and/or stronger illegal drugs into the cigar wrapping." Memorandum of Law of the City of Philadelphia and Robert Solvibile in Opposition to Plaintiffs' Motion for a Preliminary Injunction, dated 2/21/07, at 2 (hereinafter "2/21/07 City Memorandum of Law"). To this end, the ordinance banned the sale of flavored cigars and other tobacco products that are preferred by illicit drug users as vehicles for smoking marijuana and other illegal drugs, and also banned the sale of cigars and other tobacco products in quantities of less than three. No mens rea provision was included in the above ordinance; hence, the mere sale of the listed items constituted a violation, without regard to the seller's intent or knowledge. In addition, the ordinance prohibited the sale of single or flavored tobacco products or of drug paraphernalia within 500 feet of a school, recreation center, day care center, church, or community center, "regardless of the intent as to use of the item." Philadelphia Code §§ 9-622(5)(a) and 9-629(2); see also 2/21/07 City Memorandum of Law at 2-3. Violators of the ordinance were subject to a fine of up to $2,000, and to revocation of their business privilege license. Philadelphia Code §§ 9-622(6)(f) and 9-629(4).

On January 30, 2007, Holt's Cigar Company and other tobacco retailers, manufacturers, and trade associations (hereinafter collectively "Holt's Cigar") challenged the ordinance by filing a complaint against the City of Philadelphia and Robert D. Solvibile, in his official capacity as acting commissioner of the Department of Licenses and Inspections (hereinafter the "City"). Holt's Cigar sought, inter alia, a preliminary injunction against enforcement of the ordinance and a declaratory judgment that the ordinance was preempted by the drug paraphernalia provisions of the Controlled Substance, Drug, Device and Cosmetic Act (hereinafter the "Act") ¹ which bars the delivery of drug paraphernalia under circumstances where the offender knew or reasonably should have known that the paraphernalia would be used to introduce a controlled substance into the human body in violation of the Act. See 35 P.S. § 780-113(a)(33). The trial court issued a consent order granting a preliminary injunction against enforcement of the ordinance, and the parties agreed to submit the case on the pleadings and certain stipulated facts and documents. On March 9, 2007, the court issued its final disposition, holding that the ordinance was preempted by the Act. See Trial Court Order, dated 3/9/07. More specifically, the trial court concluded that the ordinance was inconsistent with the Act because the ordinance

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"converts a specific intent offense into a strict liability one." Trial Court Opinion, dated 3/9/07, at 9.

The City filed a timely appeal to the Commonwealth Court. On June 23, 2008, a divided Commonwealth Court issued its ruling in a published opinion, affirming in part and reversing in part. Holt's Cigar Company, Inc. v. City of Philadelphia, 952 A.2d 1199 (Pa.Cmwlth.2008) ( en banc ).² The Commonwealth Court affirmed the trial court's order insofar as it deemed preempted the ordinance provisions banning the sale of single or flavored cigars or other tobacco product. Id. at 1205-06. However, the Commonwealth Court further concluded that the ordinance's provision banning the sale of certain tobacco products or other potential drug paraphernalia within 500 feet of a school or other community building was a zoning regulation, and hence was not preempted pursuant to the preemption clause of the Act. Id. at 1207-08; see text, infra.

Both parties petitioned this Court for allowance of appeal, and the petitions were granted and consolidated, with the City designated as Appellants and Cross-Appellees, and Holt's Cigar designated as Cross-Appellants and Appellees. The sole issue was rephrased by this Court for clarity as follows:

Does the General Assembly's inclusion of a scienter requirement in the crimes established by 35 P.S. § 780-113(a)(33) preempt Philadelphia Code §§ 9-622(5)(a) and 9-629(2), which impose civil penalties for the sale of enumerated products without requiring a showing of seller's intent?

Holt's Cigar Company, Inc. v. City of Philadelphia, 601 Pa. 572, 975 A.2d 1081 (2009).

This case presents a pure question of law, for which our standard of review is de novo and our scope is plenary. See Nutter v. Dougherty, 595 Pa. 340, 938 A.2d 401, 412 n. 20 (2007). We must first consider the source of authority under which Philadelphia may exercise self-governance.

Municipalities "possess only such powers of government as are expressly granted to them and as are necessary to carry the same into effect." Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont, 600 Pa. 207, 964 A.2d 855, 862 (2009) (quoting City of Philadelphia v. Schweiker, 579 Pa. 591, 858 A.2d 75, 84 (2004)). As a city of the first class pursuant to the First Class City Home Rule Act,³ Philadelphia "may exercise all powers and authority of local self-government and shall have complete powers of legislation and administration in relation to its municipal functions." 53 P.S. § 13131. Under the concept of home rule, the ability of a locality to exercise municipal functions is limited only by its home rule charter, the Pennsylvania Constitution, and enactments of the General Assembly. Schweiker, supra at 84; 53 Pa.C.S. § 2961. In addition, grants of municipal power to a home rule municipality are to be "liberally construed in favor of the municipality." 53 Pa.C.S. § 2961. Thus, in analyzing a home rule municipality's exercise of power, we resolve ambiguities

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in favor of the municipality. Nutter, supra at 411.

Notwithstanding the principle that a home rule municipality's exercise of local authority is not lightly intruded upon, we have recently explained that there are three closely related forms of state preemption of local lawmaking authority. Nutter, supra at 404. In express preemption, "a statute specifically declares it has planted the flag of preemption in a field." Id. (citing Department of Licenses and Inspections, Board of License and Inspection Review v. Weber, 394 Pa. 466, 147 A.2d 326, 327 (1959)). In field preemption, a "statute is silent on supersession, but proclaims a course of regulation and control which brooks no municipal intervention." Id. (citing Weber, supra ).

Finally, pursuant to the doctrine of conflict preemption, which is the only form of preemption at issue in the instant case, a local ordinance that contradicts, contravenes, or is inconsistent with a state statute is invalid. Id.; Mars Emergency Medical Services, Inc. v. Township of Adams, 559 Pa. 309, 740 A.2d 193, 195 (1999) (citing Western Pennsylvania Restaurant Association v. City of Pittsburgh, 366 Pa. 374, 77 A.2d 616, 620 (1951)). For conflict preemption to be applicable, the conflict between the statute and the ordinance must be irreconcilable. City Council of the City of Bethlehem v. Marcincin, 512 Pa. 1, 515 A.2d 1320, 1326 (1986). Further, the ordinance in question must be considered in light of the objectives of the General Assembly and the purposes of the relevant statute. A local ordinance may not stand as an obstacle to the execution of the full purposes and objectives of the Legislature. Huntley, supra at 863. But "it has long been the established general rule, in determining whether a conflict exists between a general and local law, that where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation with subordinate power to act in the matter may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable." Mars Emergency, supra at 195 (citation omitted).

A relevant example of this Court's...