Sherwin-Williams Co. v. City of Los Angeles

• Decision Date: 04 February 1993
• Docket Number: SHERWIN-WILLIAMS,No. S026785,S026785
• Citation: 4 Cal.4th 893,16 Cal.Rptr.2d 215,844 P.2d 534
• Court: California Supreme Court
• Parties: , 844 P.2d 534 COMPANY et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant.

Page 215

16 Cal.Rptr.2d 215

4 Cal.4th 893, 844 P.2d 534

SHERWIN-WILLIAMS COMPANY et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant.

No. S026785.

Supreme Court of California In Bank.

Feb. 4, 1993.

James K. Hahn, City Atty., John F. Haggerty, Asst. City Atty., and Henry G. Morris, Deputy City Atty., for defendant and appellant.

Seyfarth, Shaw, Fairweather & Geraldson and Michael Hickok, Los Angeles, for plaintiffs and respondents.

Rutan & Tucker, John L. Fellows III and Carrie Phelan, Costa Mesa, as amici curiae on behalf of plaintiffs and respondents.

MOSK, Justice.

We granted review in this matter to determine whether Penal Code section 594.1 (sometimes hereafter the statute), which mainly defines the lawful transfer and possession of aerosol paint and also requires retailers to post a warning against vandalism, preempts Los Angeles Municipal Code section 47.11 (sometimes hereafter the ordinance), which regulates the retail display of aerosol paint and broad-tipped marker pens. As we shall explain, we conclude that it does not.

I

Plaintiffs, the Sherwin-Williams Company--which manufactures, distributes, and retails aerosol paint--and Plasti-Kote, Inc.--which manufactures and distributes the product--filed a consolidated complaint and petition for writ of mandate in the Los Angeles Superior Court against defendant, the City of Los Angeles, attacking Los Angeles Municipal Code section 47.11. In various causes of action, they claimed that the ordinance was preempted by Penal Code section 594.1, and was violative of due process of law under the Fourteenth Amendment to the United States Constitution and article I, section 7, subdivision (a) of the California Constitution. They sought a temporary restraining order, preliminary injunction, and permanent injunction prohibiting defendant from enforcing the ordinance; a writ of mandate directing defendant to rescind the ordinance; and a judgment declaring the ordinance unconstitutional. Defendant filed an answer.

Finding preemption and not reaching the question of due process, the superior court issued a preliminary injunction prohibiting defendant from enforcing the ordinance to the extent that it regulated the retail display of aerosol paint in containers larger than six ounces. Defendant appealed.

Plaintiffs and defendant then stipulated that "[t]his case may be resolved ... by a decision on cross-motions for summary judgment concerning the issue of preemption," having expressly "agree[d] that the case turns on th[at] issue," and proceeded to file their respective motions.

Finding preemption, the superior court entered judgment for plaintiffs in the form of (1) a permanent injunction prohibiting defendant from enforcing the ordinance to the extent that it regulated the retail display of aerosol paint in containers larger than six ounces and (2) a declaration that the ordinance was unconstitutional apparently to that extent. Defendant appealed.

Division Three of the Court of Appeal for the Second Appellate District consolidated the appeals on defendant's motion. Finding preemption, it subsequently affirmed.

Thereupon, defendant petitioned for review. We granted its request.

II

The issue we must resolve in this case is as follows: Does Penal Code section 594.1 preempt Los Angeles Municipal Code section 47.11? As will appear, the answer we must give is negative.

In order to resolve the issue, we must initially state the principles governing preemption analysis; then examine the statute and the ordinance, each on its own terms; and finally measure the latter against the former.

A

The general principles governing preemption analysis are these.

Under article XI, section 7 of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." ¹

"If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void." (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885, 218 Cal.Rptr. 303, 705 P.2d 876; accord, e.g., IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 90, 2 Cal.Rptr.2d 513, 820 P.2d 1023; People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484, 204 Cal.Rptr. 897, 683 P.2d 1150; Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807, 100 Cal.Rptr. 609, 494 P.2d 681.)

"A conflict exists if the local legislation ' "duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication." ' " (Candid Enterprises, Inc. v. Grossmont Union High School Dist., supra, 39 Cal.3d at p. 885, 218 Cal.Rptr. 303, 705 P.2d 876, which quotes, without citations, People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 484, 204 Cal.Rptr. 897, 683 P.2d 1150, which in turn quotes, with citations,Lancaster v. Municipal Court, supra, 6 Cal.3d at pp. 807-808, 100 Cal.Rptr. 609, 494 P.2d 681; accord, e.g., IT Corp. v. Solano County Bd. of Supervisors, supra, 1 Cal.4th at p. 90, 2 Cal.Rptr.2d 513, 820 P.2d 1023; Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 423, 261 Cal.Rptr. 384, 777 P.2d 157; Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290, 219 Cal.Rptr. 467, 707 P.2d 840.)

Local legislation is "duplicative" of general law when it is coextensive therewith. (See In re Portnoy (1942) 21 Cal.2d 237, 240, 131 P.2d 1 [finding "duplication" where local legislation purported to impose the same criminal prohibition that general law imposed].)

Similarly, local legislation is "contradictory" to general law when it is inimical thereto. (See Ex parte Daniels (1920) 183 Cal. 636, 641-648, 192 P. 442 [finding "contradiction" where local legislation purported to fix a lower maximum speed limit for motor vehicles than that which general law fixed].)

Finally, local legislation enters an area that is "fully occupied" by general law when the Legislature has expressly manifested its intent to "fully occupy" the area (see, e.g., Candid Enterprises, Inc. v Grossmont Union High School Dist., supra, 39 Cal.3d at p. 886, 218 Cal.Rptr. 303, 705 P.2d 876), or when it has impliedly done so in light of one of the following indicia of intent: "(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" locality (In re Hubbard (1964) 62 Cal.2d 119, 128, 41 Cal.Rptr. 393, 396 P.2d 809, "overruled" on another point, Bishop v. City of San Jose, supra, 1 Cal.3d at p. 63, fn. 6, 81 Cal.Rptr. 465, 460 P.2d 137; accord, e.g., IT Corp. v. Solano County Bd. of Supervisors, supra, 1 Cal.4th at pp. 90-91, 2 Cal.Rptr.2d 513, 820 P.2d 1023; Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist., supra, 49 Cal.3d at p. 423, 261 Cal.Rptr. 384, 777 P.2d 157; Cohen v. Board of Supervisors, supra, 40 Cal.3d at pp. 292-293, 219 Cal.Rptr. 467, 707 P.2d 840; Candid Enterprises, Inc. v. Grossmont Union High School Dist., supra, 39 Cal.3d at p. 886, 218 Cal.Rptr. 303, 705 P.2d 876; People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485, 204 Cal.Rptr. 897, 683 P.2d 1150).

B

Penal Code section 594.1 is set out in the margin. ² Generally, the provision makes it a misdemeanor for anyone to sell or otherwise furnish aerosol paint to a minor without evidence of majority and identity (id., subds. (a), f)); for a minor to buy aerosol paint (id., subds. (b), (f)); for anyone, while in a designated posted public area, to carry aerosol paint on his person and in plain view without authorization (id., subds. (d), (f)); and for a minor, while in a public place, to possess aerosol paint for the purpose of defacing property (id., subds. (e), (f)). It also requires retailers of aerosol paint, under misdemeanor liability, to post a notice that the malicious defacing of property with paint is vandalism and is punishable by fine or imprisonment or both. (Id., subds. (c), (f).) Therefore, in major part it specifies the persons who may or may not furnish or possess aerosol paint and also the places in which, and the circumstances under which, they may or may not do so; and in minor part it mandates a warning against vandalism.

The history of the statute is as follows.

In 1981, the Legislature passed "An act to add Section 594.1 to the Penal Code, relating to aerosol paint." (Stats.1981, ch. 1125, p. 4404.) From before that time to the present, Penal Code section 594.5 has provided: "Nothing in this code shall invalidate an ordinance of, nor be construed to prohibit the adoption of an ordinance by, a city, city and county, or county, if such ordinance regulates the sale of aerosol containers of paint or other liquid substances capable of defacing property."

The 1981 act resulted from Assembly Bill No. 1675, 1981-1982 Regular Session. On a "Background Information" form prepared for the Senate Committee on Judiciary, the source of the bill was identified as the "City of Los Angeles" and its purpose was given as this: "Graffiti ... in the Los Angeles area is still a serious problem. This measure is drafted so that it will not interfere with the legitimate use of paints, but will make it more difficult for individuals to deface public/private properties." ³

Section 1 of the 1981 act added Penal Code section 594.1 which, in its original form, covered only "aerosol container[s] of paint...