Lindsey et al v. Tacoma-Pierce Cnty. Health Dept. et al

• Citation: 195 F.3d 1065
• Decision Date: 11 August 1999
• Docket Number: CRUZ-URIB,No. 98-35416,TACOMA-PIERCE,D,98-35416
• Parties: (9th Cir. 1999) JAMES R. LINDSEY; SUN CHA LINDSEY, and and their marital community, Plaintiffs-Appellants, MBA, INC., a Washington corporation; F I T S, LLC, a Washington limited liability corporation; SAN JUNG CORPORATION, a Washington corporation, Plaintiffs, v.COUNTY HEALTH DEPARTMENT, a combined City-County Health Department; its Board of Health;COUNTY BOARD OF HEALTH; FEDERICOirector of Health for the Tacoma-Pierce County Health Department in his official capacity; BRIAN EBERSOLE, in his official capacity; FRANCEA McNAIR, in her official capacity; WENDELL BROWN, in his official capacity; KAREN BISKEY, in her official capacity; LEONARD E. SANDERSON, in his official capacity; DAVID SPARLING, in his official capacity; ROBERT W. EVANS, in his official capacity, Defendants-Appellees, and COUNTY OF PIERCE; CITY OF TACOMA, a municipal corporation, Defendants
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1065

195 F.3d 1065 (9th Cir. 1999)

JAMES R. LINDSEY; SUN CHA LINDSEY, and and their marital community, Plaintiffs-Appellants, MBA, INC., a Washington corporation; F I T S, LLC, a Washington limited liability corporation; SAN JUNG CORPORATION, a Washington corporation, Plaintiffs, v. TACOMA-PIERCE COUNTY HEALTH DEPARTMENT, a combined City-County Health Department; its Board of Health; TACOMA-PIERCE COUNTY BOARD OF HEALTH; FEDERICO CRUZ-URIBE, Director of Health for the Tacoma-Pierce County Health Department in his official capacity; BRIAN EBERSOLE, in his official capacity; FRANCEA McNAIR, in her official capacity; WENDELL BROWN, in his official capacity; KAREN BISKEY, in her official capacity; LEONARD E. SANDERSON, in his official capacity; DAVID SPARLING, in his official capacity; ROBERT W. EVANS, in his official capacity, Defendants-Appellees, and COUNTY OF PIERCE; CITY OF TACOMA, a municipal corporation, Defendants.

No. 98-35416

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 11, 1999--Seattle, Washington

Filed November 19, 1999

Floyd Abrams, Cahill, Gordon & Reindel, New York, New York, Bradley & Keller, Karen V. Chiu, Byrnes & Keller, LLP, Seattle, Washington, for the plaintiffs-appellants.

Clifford D. Allo, Tacoma-Pierce City Health Department, Tacoma, Washington, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-97-05076-RJB

Before: William C. Canby, Jr., Melvin Brunetti, and Diarmuid F. O'Scannlain, Circuit Judges.

BRUNETTI, Circuit Judge:

In 1996, the Tacoma-Pierce County Health Department Board of Health adopted a resolution that bans outdoor tobacco advertising within Pierce County, Washington. The Board adopted the ban in an attempt to reduce underage tobacco use in the county. The Lindseys, owners of convenience stores who are licensed to sell tobacco products in the State of Washington, filed this action against the Board of Health and other defendants alleging that the Board's resolution was (1) an unconstitutional regulation of commercial speech under the First Amendment; (2) preempted by the Federal Cigarette Labeling and Advertising Act; (3) preempted by the Washington Tobacco Access to Minors Act; and (4) beyond the Board's statutory authority. The district court granted the Board's motion for summary judgment and entered a judgment in its favor. The Lindseys appeal from the district court's final judgment in favor of the Board. We have jurisdiction under 28 U.S.C. S 1291 and reverse because a local ban on outdoor tobacco advertising is preempted by the Federal Cigarette Labeling and Advertising Act.

I.

James Lindsey and Sun Cha Lindsey--plaintiffs-appellants --are husband and wife and the owners of neighborhood convenience stores located in Tacoma, Washington. The Lindseys hold a cigarette retailers' license issued by the State of Washington and sell cigarettes and other tobacco products at their stores. Prior to March 1, 1997, the Lindseys displayed tobacco advertisements inside and outside their stores and received compensation from tobacco companies based on the volume of their tobacco sales, their participation in promotional programs, and their utilization of brand advertisements. On March 1, 1997, the Tacoma-Pierce County Health Department Board of Health's Resolution No. 96-1997 went into effect banning all "outdoor advertising of tobacco and tobacco products . . . within the jurisdiction of the Tacoma-Pierce County Health Department Board of Health." As a result of the Board's resolution, the Lindseys were forced to discontinue their use of outdoor tobacco advertisements.

The Tacoma-Pierce County Health Department Board of Health ("Board")--defendant-appellee--is a combined citycounty health department created by the City of Tacoma and Pierce County. Under the Washington Revised Code, the Board has the authority to "[e]nact such local rules and regulations as are necessary in order to preserve, promote and improve the public health and provide for the enforcement thereof." Wash. Rev. Code S 70.05.060. Pursuant to this authority, the Board adopted Resolution No. 96-1997, the Truth in Outdoor Tobacco Advertising Regulation ("Resolution"), on December 4, 1996, banning outdoor tobacco advertising in Pierce County.

The Board justified its adoption of the Resolution based on its findings that "[t]obacco advertising, whether intended to promote tobacco use or only compete for market share, has the consequence of promoting tobacco use" and that "[t]obacco advertising induces children to initiate tobacco use." The Board specifically targeted all outdoor tobacco advertisements because it believed that outdoor advertisements intrude into public spaces and induce minors to use tobacco. The Board, therefore, banned all tobacco advertisements that can be seen from the street unless the advertisements are presented in a tombstone format.

Under the Resolution's tombstone exception, licensed tobacco retailers can post price and availability information outside their businesses so long as the advertisements are in plain black type on a white field without adornment, color, opinion, artwork, or logos. The Resolution does not otherwise regulate the content of tobacco advertisements. No tombstone advertisement can be displayed, however, if it is visible from a school, school bus stop, bus stop, or sidewalk regularly used by minors to get to school or within one thousand feet of a school, playground, or public park. The Resolution does not regulate tobacco advertisements located inside retail establishments unless the advertisements can be seen from the street. A retailer who violates the Resolution can be fined one hundred dollars per day for each advertisement that violates the regulation.

The Lindseys filed this action against the Board and various other defendants alleging that the Resolution is invalid because it is: (1) preempted by the Federal Cigarette Labeling and Advertising Act; (2) an unconstitutional regulation of commercial speech under the First Amendment of the United States Constitution; (3) preempted by Washington's Tobacco Access to Minors Act; and (4) an impermissible exercise of legislative authority beyond the Board's statutory authority. The Lindseys and the Board filed cross-motions for summary judgment and partial summary judgment on the federal preemption, state preemption, and scope of authority claims. The district court, in a published order, denied the Lindseys' motion for summary judgment, granted the Board's motion for partial summary judgment, and dismissed the Lindseys' federal preemption, state preemption, and scope of authority claims. See Lindsey v. Tacoma-Pierce County Health Dep't, 8 F. Supp. 2d 1213 (W.D. Wash. 1997). The district court reasoned that: (1) the Resolution was not preempted by the Federal Cigarette Labeling and Advertising Act because the Resolution only regulates the location and not the content of cigarette advertisements; (2) the Resolution was not preempted by state law because the Resolution does not directly regulate indoor advertising; and (3) the Board did not exceed its authority when it adopted the Resolution because the Resolution is reasonably related to the Board's authority to enact regulations that promote and improve public health.

The Lindseys and the Board subsequently filed another round of summary judgment motions on the Lindseys' First Amendment claim. The district court, in another published order, denied the Lindseys' motion, granted the Board's motion, and dismissed the Lindseys' First Amendment claim concluding that the Resolution was a constitutional regulation of commercial speech under Central Hudson. See Lindsey v. Tacoma-Pierce County Health Dep't, 8 F. Supp. 2d 1225, 1226 (W.D. Wash. 1998). The district court reasoned that the Resolution was constitutional because it was sufficiently related to its purpose of reducing underage tobacco use and because non-speech alternatives to the regulation did not exist. The Lindseys appeal from the district court's final judgment entered in favor of the Board. We have jurisdiction under 28 U.S.C. S 1291 and now reverse.

II.

We review a grant of summary judgment de novo. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). We must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See Margolis, 140 F.3d at 852; Bagdadi, 84 F.3d at 1197. In regard to the relevant substantive law at issue in this case, a district court's decision regarding federal preemption is reviewed de novo, see Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1186 (9th Cir. 1998), as is a district court's interpretation and construction of a federal statute. See Alexander v. Glickman, 139 F.3d 733, 735 (9th Cir. 1998); Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426, 1428 (9th Cir. 1998).

III.

Under the Supremacy Clause of the United States Constitution, the laws of the United States are "the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." Art. VI, cl. 2. Issues of federal preemption arising under the Supremacy Clause, however, "start with the assumption that the historic police powers of the States [are] not to be superseded by . . . [a] Federal Act unless that [is] the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp. , 331 U.S. 218, 230 (1947). Congressional intent is, therefore, the" `ultimate touchstone' of preemption analysis." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (quoting Malone v. White Motor Corp., 435 U.S. 497, 504 (1978)); see also Morales v. Trans...