Lindsey v. Tacoma-Pierce County Health Dept.
| Decision Date | 06 November 1997 |
| Docket Number | No. C97-5076 RJB.,C97-5076 RJB. |
| Citation | 8 F.Supp.2d 1213 |
| Parties | James R. LINDSEY and Sun Cha Lindsey, and their marital community, et al., Plaintiffs, v. TACOMA-PIERCE COUNTY HEALTH DEPARTMENT, a combined City-County Health Department, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Bradley S. Keller, Byrnes & Keller, Seattle, WA, for plaintiffs.
Clifford D. Allo, Tacoma-Pierce County Health Dept., Tacoma, WA, for defendants.
ORDER GRANTING DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT; DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
This matter comes before the court on Defendants' First Motions for Partial Summary Judgment (Dkt.# 34), and Plaintiff's Motion for Summary Judgment on Federal Preemption, State Preemption and Agency's Exceeding the Scope of its Delegated Authority (Dkt. # 36). The court has considered the pleadings filed in support of and in opposition to the motions and the file herein.
The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir.1987).
The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at trial — e.g., the preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, 106 S.Ct. 2505; T.W. Elec. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Service, 809 F.2d at 630 ( Anderson, supra). Conclusory. non-specific statements in affidavits are not sufficient, and "missing facts" will not be "presumed." Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
The plaintiffs are the owners of five convenience stores located throughout Pierce County, Washington. They hold valid cigarette retailers' licences issued by the State of Washington. Prior to March 1, 1997, they displayed cigarette advertising on the outside and the inside of their stores. The plaintiffs received financial compensation tied to the volume of cigarette sales, the display of advertisements, and the participation in promotional programs.
The defendants comprise the Tacoma-Pierce County Health Department, its Board of Health, board members, the City of Tacoma and individual city and county officials (hereinafter referred to collectively as "the Board of Health"). The Board of Health is empowered by law to enact and enforce local rules and regulations "to preserve, promote, and improve the public health" of the City of Tacoma and greater Pierce County. RCW 70.05.060, .60(3).
Incidental to those duties, the defendants held two hearings regarding the rising incidence of cigarette smoking by children since the initiation of the so-called "Joe Camel" advertising campaign. In response to those hearings, on December 4, 1996, the Board of Health enacted the "Truth in Outdoor Tobacco Advertising Regulation" (hereinafter referred to as "TOTAR"), Resolution No. 96-1997, effective March 1, 1997. Attachment to Defendants' Brief on First Motions for Summary Judgment. TOTAR contains a detailed statement of "Authority" (Id., Sec. 1, 1.1-1.3) and specific "Findings" regarding the significant threat to the health of children and adults resulting from the use of tobacco products. Id., Sec. 2, 2.1-2.7. TOTAR places certain limitations on outdoor advertising of tobacco and tobacco products as follows:
3 Limitations
3.1 Except as stated below, outdoor advertising of tobacco and tobacco products is prohibited within the jurisdiction of the Tacoma-Pierce County Health Department Board of Health.
3.1.1 For the purposes of the prohibition, "outdoor advertising" means advertising that can be seen from the street.
3.1.2 Advertising in sports stadiums or other enclosed outdoor spaces is not within this ban if it cannot be seen from outside the enclosure.
3.13 Advertising within buildings or other enclosures shall be considered outdoor advertising if it can be seen from outside the building or enclosure through windows, doors, or other apertures or if it can be seen on television.
3.2 Except as provided below, licensed retailers of tobacco and tobacco products may post price and availability information outside their premises in tombstone formats.
3.2.1 For the purposes of this prohibition, a tombstone format means a format in which truthful, factual information appears in clear, plain black type on a white field without adornment and unaccompanied by color, opinion, artwork, or logos.
3.2.2 No tombstone advertising shall be visible from a school, school bus stop, bus stop, or sidewalk regularly sued by minors to get to school.
3.2.3 No tombstone advertising shall be placed within one thousand (1,000) feet of a school, playground, or public park.
3.3 Advertising that is within premises licensed to sell tobacco and tobacco products but not visible from the street may be in any format and present any information or images not otherwise prohibited by law.
Id. TOTAR also includes monitoring, appeal procedures, and penalties. Id. Sec. 4.4, 4.4.1-4.5.
After the effective date of the enactment, the plaintiffs allege that they were forced to remove all of their exterior advertisements and much of their interior advertising and promotional materials. They claim that they have suffered significant monetary losses.
The defendants have moved for summary judgment on the plaintiffs' first, fourth and fifth claims. Essentially, the defendants argue the TOTAR is within the legislative authority granted to the Board of Health by state law and is not preempted by federal and/or state law. The plaintiffs' cross motion is for a determination that TOTAR is preempted by federal and/or state law, that the Board of Health acted beyond its delegated powers, and that TOTAR is therefore invalid.
The issues raised in the motions are:
1. Whether TOTAR is within the legislative authority granted to the Board of Health by RCW 70.05.060?
2. Whether TOTAR is preempted by the Federal Cigarette Labeling and Advertising Act of 1965 ("Federal Act"), 15 U.S.C. § 1331 et seq?
3. Whether TOTAR is preempted by Washington's Tobacco — Access to Minors Act ("State Act"), RCW 70.155 et seq?
In the plaintiffs' fourth claim for relief, they allege that the Board of Health had no authority to enact TOTAR. The defendants seek summary dismissal of this claim, arguing that they acted well within their statutory authority as expressed, and liberally construed, in RCW 70.05.060. The defendants contend that their jurisdiction includes measures aimed to prevent nicotine addiction in minors, and that controlling advertising accessible to minors is a reasonable means of protecting them from the deleterious impact nicotine has on their health. Alternatively, the defendants urge the court to abstain pursuant to Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), if the court concludes that they have exceeded their statutory authority. The defendants argue that a ruling in favor of the plaintiffs on this issue has the effect of determining that TOTAR is unconstitutional, and that determination is more properly made by the Washington state courts.
The plaintiffs argue that the Board of Health exceeded its legislative authority and engaged in impermissible legislation and decision making which, under the doctrine of separation of powers, is reserved for the Legislature. The plaintiffs also argue that the Board of Health's regulation can be found to be in excess of its authority because TOTAR has the effect of extending or conflicting with the Board's enabling statute; RCW 70.05.060. The plaintiffs distinguish the decision of Spokane County Health Dist. v. Brockett, 120 Wash.2d 140, 839 P.2d 324 (1992), relied on by the defendants, on many grounds, particularly that the case dealt with the disease of AIDS, which the plaintiffs characterize as a far different health concern than the prevention of nicotine addiction. The plaintiffs cite authorities in other jurisdictions which support their position; City of Roanoke Rapids v. Peedin, 124 N.C.App. 578, 478 S.E.2d 528 (1996) and Boreali v. Axelrod, 71 N.Y.2d 1, 523 N.Y.S.2d 464, 517 N.E.2d 1350 (1987). They seek summary judgment on their fourth claim based on excess exercise of legislative authority.
The Washington State Constitution provides that "Any county, city, town or township may...
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Lindsey et al v. Tacoma-Pierce Cnty. Health Dept. et al
...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 a......