Music Plus Four, Inc. v. Barnet

Citation114 Cal.App.3d 113,170 Cal.Rptr. 419
CourtCalifornia Court of Appeals
Decision Date29 December 1980
PartiesMUSIC PLUS FOUR, INC., etc., Plaintiff and Respondent, v. Robert BARNET, etc. et al., Defendants and Appellants. Civ. 21524.

Paul H. Morgan, City Atty., for defendants and appellants.

Todd & Siegel, John Sanford Todd, Lakewood, Thomas Haas, City Atty., Fairfield, R. R. Campagna, City Atty., Costa Mesa, P. Lawrence Klose, City Atty., Petaluma, J. Dennis Crabb, City Atty., South Lake Tahoe, David E. Schricker, City Atty., Redwood, Susan W. Case, Asst. City Atty., Elwyn L. Johnson, City Atty., Modesto, Allen Grimes, City Atty., Atascadero, Robert W. Parkin, City Atty., Long Beach, Jerome F. Coleman, City Atty., Burlingame, John Woodhead, City Atty., Riverside, William H. Keiser, City Atty., Laguna Beach, Furman Roberts, City Atty., Orange, James P. Aynes, Deputy City Atty., Harvey E. Levine, Pleasanton, Allen E. Sprague, City Atty., Fremont, Lagorio, Heneke & Madden, Los Altos, Constance K. Heneke, Richard J. Moore, County Counsel, Alameda, Peter H. La Chapelle, Deputy County Counsel, Oakland, James B. Orton, City Atty., Santa Maria, Gail Hutton, City Atty., Huntington Beach, William S. Amsbary, Asst. City Atty., John K. Van de Kamp, Dist. Atty., Los Angeles, George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and William R. Weisman, Deputy Attys. Gen., as amici curiae on behalf of defendants and appellants.

Caton & Glazer, Inc. and Robert Stanley Florey, III, Los Angeles, for plaintiff and respondent.

MORRIS, Associate Justice.

This is an appeal from a preliminary injunction issued by the Superior Court of Orange County, enjoining enforcement of ordinance No. 1878 of the City of Westminster. Defendants and appellants are representatives of the City of Westminster charged with the responsibility of enforcing the ordinance.

The ordinance, adopted April 24, 1979, by the City of Westminster, requires the exclusion of minors from any room wherein are sold or displayed "for the purpose of sale, any device, contrivance, instrument or paraphernalia for smoking or injecting or consuming marijuana, hashish, PCP, or any controlled substance, as defined in the Health and Safety Code of the State of California, as well as roach clips, and cigarette papers and rollers designed for the smoking of the foregoing." 1

Respondent corporation owns and operates twenty retail stores, one of which is situated in the City of Westminster. Along with phonograph records and tapes, respondent sells at each of its retail stores additional items including, inter alia, a variety of pipes for smoking, including water pipes, wooden pipes, ceramic and metal pipes, metal and decorative clips, otherwise commonly known as alligator clips, small spoons with rings attached which are designed to be worn on neck chains, and all types of cigarette papers.

Prior to enactment of the ordinance, respondent permitted minors to enter its premises and view any and all of the items sold there.

Following adoption of the ordinance, respondent sought and obtained a preliminary injunction enjoining both civil and criminal enforcement of the ordinance. The injunction was granted on the grounds that: The state has preempted the field, and the ordinance is unconstitutionally vague. Respondent contends that the injunction is proper on the following additional grounds: The ordinance constitutes an impermissible regulation of commercial speech in violation of the First Amendment to the United States Constitution; it is not rationally related to a permissible state purpose and thus constitutes a denial of due process; and it violates the respondent's right to equal protection of the law guaranteed by the California and the United States Constitutions.

Preemption

Article XI, section 7 of the California Constitution provides that a city "may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws."

A local ordinance may be in conflict with state law even where there is no direct conflict, if the state has fully occupied the field of the legislation. "It is settled that a local municipal ordinance is invalid if it attempts to impose additional requirements in a field that is preempted by general law. (Citations.) Local legislation in conflict with general law is void. Conflicts exist if the ordinance duplicates (citations), contradicts (citation), or enters an area fully occupied by general law, either expressly or by legislative implication. (Citations.) If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject were otherwise one properly characterized as a 'municipal affair.' (Citations.)" (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807-808, 100 Cal.Rptr. 609, 494 P.2d 681.)

Respondent contends that the ordinance is in conflict with the California Uniform Controlled Substances Act. (Health & Saf.Code, §§ 11000 11651.) 2 Respondent argues that by adoption of the Controlled Substances Act the state has preempted the field of regulation of drugs and drug paraphernalia, thereby excluding any otherwise permissible municipal regulation of drug related activities.

In our review of the existing provisions of the Uniform Controlled Substances Act, we find no basis for respondent's claim of express conflict between the statute and the ordinance. Respondent contends that two provisions of the Act are directly related to matters regulated in the ordinance. Section 11353 makes it unlawful for an adult to solicit or encourage any minor to violate certain specified provisions of the Act, and Section 11364 makes it unlawful to possess an opium pipe or any device, contrivance, instrument or paraphernalia used for injecting or smoking certain specified controlled substances. 3

With respect to section 11353, respondent argues that both the ordinance and the statute are aimed at regulating adult behavior which would induce or encourage possession or use of drugs by minors. Moreover, respondent contends that, since the statute excludes marijuana, the ordinance is in direct conflict with the statute. On the same basis respondent concludes that the conflict between section 11364 and the ordinance is even more pronounced since under the statute it is no longer unlawful to possess a device used for smoking marijuana, whereas a violation of section 3591 of the ordinance subjects the minor to misdemeanor penalties.

There is no conflict. The sale of certain enumerated drugs is a crime under state law, as are the use and possession of certain drugs and drug paraphernalia. Section 11353 refers to adult activity specifically directed at inducing a minor to violate those laws. Section 11364 is one of those laws. The ordinance, on the other hand, does not purport to regulate either the use or sale of controlled substances or paraphernalia, but rather to regulate the operation of local retail businesses frequented by minors, so that the operation of the business does not encourage drug use by minors.

Implicit in the ordinance is the recognition that the items specified are those which can be legally possessed and sold by the store owner. Also implicit in the ordinance is the recognition of the special vulnerability of youth to exploitation by those who help make their living by supplying drug related devices to the public. Thus, the ordinance does not prohibit or even restrict the sale of the listed items, but simply regulates the display for purposes of sale by prohibiting the viewing of drug paraphernalia by minors, except when accompanied by a parent or guardian.

Clearly the ordinance does not directly conflict with the existing general law, since it neither contradicts nor duplicates state law. 4 It is therefore necessary to examine the general law to determine whether it establishes a general scheme that would preclude local regulation of business establishments for purposes of protecting minors from exposure to displays of devices designed for drug use.

The question whether the Legislature intended to fully occupy an entire field of activity so as to preclude local regulation under the city's police power must be answered in the light of the facts and circumstances surrounding each case. However, analysis of the many prior decisions on the subject of state preemption indicates that the doctrine is inapplicable unless: "(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality." (In re Hubbard (1964) 62 Cal.2d 119, 128, 41 Cal.Rptr. 393, 396 P.2d 809, overruled on another point in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, 81 Cal.Rptr. 465, 460 P.2d 137.)

Applying this analysis to the subject ordinance, it is at once apparent that the subject matter is not fully covered by general law, and the coverage does not indicate that it has become exclusively a matter of state concern. As respondent emphasizes, although there was once almost complete proscription of the possession, sale, and use of drug paraphernalia, including the kind of paraphernalia described in the ordinance the amendments to the Uniform Controlled Substances Act decriminalizing the possession of small amounts of marijuana and the possession...

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