McMann v. City of Tucson

• Decision Date: 30 May 2002
• Docket Number: No. 2 CA-CV 2001-0082, No. 2 CA-CV 2001-0163.
• Citation: 202 Ariz. 468,47 P.3d 672
• Parties: Pat MCMANN and Joan McMann, husband and wife, dba McMann's Roadrunner, Plaintiffs/Appellees, v. CITY OF TUCSON, a municipal corporation, Defendant/Appellant. Pat McMann and Joan McMann, husband and wife, dba McMann's Roadrunner, Plaintiffs/Appellants, v. City of Tucson, a municipal corporation, Defendant/Appellee.
• Court: Arizona Court of Appeals

47 P.3d 672

202 Ariz. 468

Pat MCMANN and Joan McMann, husband and wife, dba McMann's Roadrunner, Plaintiffs/Appellees, v. CITY OF TUCSON, a municipal corporation, Defendant/Appellant.

Pat McMann and Joan McMann, husband and wife, dba McMann's Roadrunner, Plaintiffs/Appellants, v. City of Tucson, a municipal corporation, Defendant/Appellee.

Nos. -0082, -0163.

Court of Appeals of Arizona, Division 2, Department B.

May 30, 2002.

Rusing & Lopez, P.L.L.C., by Michael J. Rusing and Sean E. Brearcliffe, Tucson, for Pat and Joan McMann.

Gabroy, Rollman & Boss?, P.C., by Richard M. Rollman and Richard A. Brown, Michael D. House, Tucson City Attorney, by David L. Deibel, Tucson, for City of Tucson.

OPINION

HOWARD, Presiding Judge.

? 1 These consolidated appeals arise from the trial courts' rulings on Pat and Joan McMann's declaratory judgment actions in cause numbers C-20011696 (first case) and C-20012065 (second case). In both cases, the McManns sought a declaration that A.R.S. ? 13-3108 preempts the City of Tucson's "ordinance"¹ requiring instant background checks for prospective gun purchasers during gun shows held at the Tucson Convention Center (TCC). The trial court dismissed the first case without prejudice, concluding that the McManns had failed to present a justiciable case or controversy. The McManns challenge that ruling. In the second case, the trial court declared that ? 13-3108 preempts the City's ordinance, granted the McManns' request to enjoin the City from enforcing the ordinance, and awarded attorney's fees to the McManns. The City challenges that ruling. We dismiss as moot the McManns' appeal in the first case. And, because we do not discern a clear legislative intent to preempt the City's ordinance, we vacate the trial court's ruling in the second case. We deny the City's request for fees.

BACKGROUND

? 2 In 2000, the legislature enacted ? 13-3108 in its present form and set forth the following statement of its intent:

It is the intent of the legislature to clarify existing law relating to the state's preemption of firearms regulation in this state. Firearms regulation is of statewide concern. Therefore, the legislature intends to limit the ability of any political subdivision of this state to regulate firearms and ammunition. This act applies to any ordinance enacted before or after the effective date of this act.

2000 Ariz.Sess.Laws, ch. 376, ? 4. Section 13-3108 states in pertinent part:

A. Except as provided in subsection C of this section, a political subdivision of this state shall not enact any ordinance, rule or tax relating to the transportation, possession, carrying, sale or use of firearms or ammunition or any firearms or ammunition components in this state.

Subsection B prevents a political subdivision from enacting local licensing or registration requirements and from prohibiting firearms sales and transfers. Subsection C enumerates certain exceptions to the general prohibition on local firearm regulations.

? 3 In February 2001, the City, a charter city, voted to condition the use of its commercial property, specifically the TCC,² for gun shows on the show's promoter's agreement to require instant background checks for prospective gun purchasers. The City understood that ? 13-3108 prevented it from directly regulating the sale of firearms within its city limits, but reasoned that, as the proprietor of the TCC, it could, nonetheless, impose restrictions on the TCC's use for gun shows.

? 4 In March 2001, the McManns, who had promoted gun shows in the TCC for several years, paid a deposit to the City to reserve the TCC for a gun show in June. After the City presented the McManns with a use permit that included the background check requirement, the McManns filed the first case. The trial court concluded that, because the McManns had not executed the use permit, there was no justiciable controversy to resolve. Accordingly, the trial court dismissed the first case. Thereafter, the McManns executed the use permit and then filed the second case, claiming the City's action was preempted by ? 13-3108. The trial court agreed, enjoined the City from enforcing the background check requirement, and subsequently awarded the McManns their attorney's fees. The McManns timely appealed from the dismissal of the first case, and the City appealed from both the judgment and fee award in the second.

PREEMPTION

? 5 Because the resolution of the appeal of the second case substantially affects the appeal of the first case and the City's appeal of the award of attorney's fees, we address the appeal of the second case first. The City concedes that, by amending ? 13-3108, the legislature preempted the City from using its police power to enact any ordinance or rule regulating firearms, but contends the legislature did not preempt it from acting as a proprietor to impose conditions on the use of its commercial property, even when the condition relates to firearms. Preemption is an issue of law that we review de novo. City of Tucson v. Rineer, 193 Ariz. 160, ? 2, 971 P.2d 207,? 2 (App.1998).

? 6 Whether the state has preempted local legislation is "a question of legislative intent." Babe's Cabaret v. City of Scottsdale, 197 Ariz. 98, ? 11, 3 P.3d 1018, ? 11 (App.2000). That intent may be express or implied, but in either event, it "must be clear; a negative inference is insufficient." City of Tucson v. Consumers for Retail Choice Sponsored by Wal-Mart, 197 Ariz. 600, ? 7, 5 P.3d 934, ? 7 (App.2000). As in issues of general statutory interpretation, we discern legislative intent to preempt by first examining the language of the allegedly preemptive legislative act. See id. at ?? 11-13, 5 P.3d 934. If the language is "inconclusive" as to preemptive intent, we examine other factors such as the act's "context, subject matter, historical background, effects, consequences, spirit and purpose." Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, ? 8, 19 P.3d 1241, ? 8 (App.2001). "With respect to context, we consider both the statute in question and the `entire legislative scheme.'" Norgord v. State ex rel. Berning, 201 Ariz. 228, ? 7, 33 P.3d 1166, ? 7 (App.2001), quoting 2A Norman J. Singer, Statutes and Statutory Construction, ? 46:05 at 155-56 (6th ed. 2000).

I. Statutory Language

? 7 Section 13-3108(A) prohibits the City from enacting "any ordinance ... relating to the transportation, possession, carrying, sale or use of firearms." Arguably, this language is broad enough to encompass the ordinance at issue here, which does relate to the sale of firearms. But the accompanying preamble suggests a narrower scope of preemptive intent. There, the legislature specifically stated its intent to "clarify existing law relating to the state's preemption of firearms regulation" and to "limit the ability of political subdivisions of this state to regulate firearms." 2000 Ariz.Sess.Laws, ch. 376, ? 4 (emphasis added). Although it relates to firearms, the City's ordinance does not invoke the City's police power to regulate firearms. See Florida E. Coast Ry. Co. v. City of West Palm Beach, 266 F.3d 1324, 1331 (11th Cir.2001)

("[Regulation of rail transportation] necessarily means something qualitatively different from laws `with respect to rail transportation.'"); Independent Taxicab Ass'n of Columbus v. Columbus Green Cabs, Inc., 84 Ohio App.3d 361, 616 N.E.2d 1144, 1148 (1992) (municipal contract is not police regulation); Montgomery v. Oklahoma City, 195 Okla. 312, 157 P.2d 454, 455 (1945) ("Where the language of an ordinance conclusively shows that it was the intention of the city legislators to regulate the business in order to protect the public from imposition and injury, the ordinance is an exercise of the police power or a police regulation."). Accordingly, it is not clear that the legislature intended the statute to apply to the City's control of its own property as opposed to the City's attempt to control third parties. And, read as a whole, the language of ? 13-3108 is inconclusive. Accordingly, we look to other factors to discern the legislature's intended scope of preemption. Hobson.

II. Constitutional Purpose

? 8 We presume the legislature intended to act with a constitutional purpose. State v. Oakley, 180 Ariz. 34, 38, 881 P.2d 366, 370 (App.1994). Under the Arizona Constitution, "[a]ny city containing ... 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." Ariz. Const. art. XIII, ? 2. Such a charter is the "organic law" of a city, Union Transportes de Nogales v. City of Nogales, 195 Ariz. 166, ? 9, 985 P.2d 1025, ? 9 (1999), and "does not exist subject to the will of the legislature." City of Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1, 4, 164 P.2d 598, 599 (1945). Thus, it is well settled that "`a charter city is sovereign in all its "municipal affairs" where the power ... to be exercised has been specifically or by implication granted in its charter.'" Strode v. Sullivan, 72 Ariz. 360, 363, 236 P.2d 48, 50 (1951),quoting Mayor of City of Prescott v. Randall, 67 Ariz. 369, 371, 196 P.2d 477, 478 (1948).

? 9 Municipal affairs subject to local control, independent of any state legislative interference, are those subjects of "solely local concern," rather than subjects of statewide or mixed statewide and local concern. City of Tucson v. Consumers for Retail Choice, 197 Ariz. 600, ? 6, 5 P.3d 934, ? 6. In general, when a city acts "as an agent of the state," the subject upon which it acts is not of solely local concern. Luhrs v. City of Phoenix, 52 Ariz. 438, 443, 83 P.2d 283, 285 (1938). "Some [municipal] activities are so noticeably local or state-wide that they are easily assignable...." Id. at 442, 83 P.2d at 285; Tucson Sunshine Climate Club, 64 Ariz. at 8, 164 P.2d at 602.

? 10 Our supreme court has held that "the sale or disposition of property by charter cities"...