Take Five Vending, Ltd. v. Town of Provincetown

• Decision Date: 08 July 1993
• Citation: 415 Mass. 741,615 N.E.2d 576
• Parties: TAKE FIVE VENDING, LTD. & another 1 v. TOWN OF PROVINCETOWN & another. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 576

615 N.E.2d 576

415 Mass. 741

TAKE FIVE VENDING, LTD. & another ¹ v. TOWN OF PROVINCETOWN & another. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 4, 1993.

Decided July 8, 1993.

Douglas G. Moxham, Boston, for plaintiffs.

Richard Bowen, Boston (John W. Giorgio, with him), Town Counsel, for town of Provincetown.

Anthony E. Penski, Asst. Atty. Gen., for Atty. Gen.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

This case concerns the validity of a by-law of the defendant town of Provincetown that prohibits the sale of cigarettes from vending machines. The plaintiffs, Take Five Vending, Ltd. (Take Five), and Coin Machine Industries Association of Massachusetts, Inc., seek a judgment declaring that the by-law is invalid under the Commonwealth's licensing statute for cigarette vending machines, G.L. c. 64C, § 2 (1992 ed.), and the Federal and State Constitutions. They also seek to enjoin Provincetown from prohibiting the use of cigarette vending machines. The Attorney General has intervened as a defendant pursuant to G.L. c. 231A, § 8 (1992 ed.), asserting the validity of the by-law.

At the request of the parties, who have agreed in writing to all the material facts, a judge in the Superior Court reported the case to the Appeals Court without decision pursuant to G.L. c. 231, § 111 (1992 ed.), and Mass.R.Civ.P. 64, 365 Mass. 831 (1974). The judge identified the following issues:

"1. Does the Provincetown By-Law prohibiting all sale of cigarettes by vending machine violate G.L. c. 64C?

"2. Does the Provincetown By-Law prohibiting all sale of cigarettes by vending machine deprive the plaintiff Take Five of its licenses to operate cigarette vending machines in Provincetown, Massachusetts without due process of law or deny it equal protection of the laws?" We transferred the case to this court on our own initiative. We answer both questions, "No," and conclude that the by-law is valid.

We state the relevant facts to which the parties have agreed. Take Five holds licenses issued by the Commonwealth, pursuant to G.L. c. 64C, § 2, to operate cigarette vending machines at six separate locations in Provincetown. Under art. 22 of the warrant for the 1992 annual town meeting, the voters of Provincetown adopted a by-law banning the sale of cigarettes by machine. The by-law provides: "All sale of cigarettes by machine is prohibited." Article 22 of the warrant contained the following preamble: "Whereas: The major causes of cancer, such as tobacco, alcohol, animal fat, obesity, ultraviolet light, are associated with life-style--that is, with personal choices and not with the environment in general--the widespread public perception that pollution is a major cancer hazard is incorrect. Whereas: Lung cancer is the leading cause of cancer deaths among women. Whereas: Fifty million Americans have stopped smoking and forty five million still smoke. Whereas: We now have sufficient knowledge to move toward the prevention of most human cancers. Whereas: Keeping young people from smoking is a most desirable aim, I move to see if the Town will enact the following ... or to take any other action relative thereto." The Attorney General subsequently approved the by-law, pursuant to G.L. c. 40, § 32 (1992 ed.).

We first address the question whether the by-law conflicts with G.L. c. 64C, § 2, which provides in relevant part that "[n]o person shall sell cigarettes or act as a manufacturer, wholesaler, vending machine operator, unclassified acquirer, transportation company or retailer, in the commonwealth unless licensed to do so in accordance with section sixty-seven of chapter sixty-two C.... The licensing of the operation of cigarette vending machines is retained exclusively by the commonwealth and no city, town or other political subdivision of the commonwealth may license such operation." General Laws c. 62C, § 67 (1992 ed.), states in pertinent part: "In the instance of an application for a license as a manufacturer, wholesaler, vending machine operator, unclassified acquirer, transportation company, or retailer, as defined in chapter sixty-four C, the commissioner [of revenue] shall investigate the prior activities of the applicant. If the commissioner determines that said applicant has been convicted of any violation of the provisions of chapter sixty-four C or any other pertinent violation of law, he may deny the application...." In their complaint, the plaintiffs claim that the by-law is inconsistent with the licensing statute and is preempted by the statute's "pervasive scheme of statutory regulation." Specifically, they point to the provision in G.L. c. 64C, § 2, that "[t]he licensing of the operation of cigarette vending machines is retained exclusively by the commonwealth and no city, town or other political subdivision of the commonwealth may license such operation." We disagree.

Municipal by-laws are presumed to be valid. Marshfield Family Skateland, Inc. v. Marshfield, 389 Mass. 436, 440, 450 N.E.2d 605, appeal dismissed, 464 U.S. 987, 104 S.Ct. 475, 78 L.Ed.2d 675 (1983). When exercising a right to govern locally, a town "exceeds its power only when it passes a by-law inconsistent with the Constitution or laws of the Commonwealth. See Home Rule Amendment [art. 89 of the Amendments to the Massachusetts Constitution], § 6. G.L. c. 43B, § 13 (1984 ed.) (Home Rule Procedures Act)." Amherst v. Attorney Gen., 398 Mass. 793, 796, 502 N.E.2d 128 (1986). In determining whether a local ordinance or by-law is inconsistent with a State statute, we have given municipalities "considerable latitude," requiring a "sharp conflict" between the ordinance or by-law and the statute before invalidating the local law. Bloom v. Worcester, 363 Mass. 136, 154, 293 N.E.2d 268 (1973). Such a conflict "appears when either the legislative intent to preclude local action is clear, or, absent plain expression of such intent, the purpose of the statute cannot be achieved in the face of the local by-law." Grace v. Brookline, 379 Mass. 43, 54, 399 N.E.2d 1038 (1979). Bloom v. Worcester, supra at 155-156, 293 N.E.2d 268. The instant case does not present either of these circumstances.

Applying these standards, we analyze the validity of the by-law in the instant case with respect to the Commonwealth's licensing scheme set forth in G.L. c. 64C and G.L. c. 62C, § 67. General Laws c. 64C is substantively a taxation statute that describes how the Commonwealth administers its cigarette excise tax to ensure accurate collection. See Harvey Payne, Inc. v. Slate Co., 345 Mass. 488, 492, 188 N.E.2d 562 (1963). General Laws c. 64C, § 2, which the plaintiffs argue invalidates the Provincetown by-law, simply provides one of the methods by which the Commonwealth collects taxes, that is, by licensing, and therefore identifying, vendors. There are other sections in G.L. c. 64C which are clearly designed to accomplish the same objective. For instance, G.L. c. 64C, § 5 (1990 ed.), calls for maintenance of accurate records as to quantity, seller and buyer price, and brand of cigarettes "manufactured, purchased or otherwise acquired," and G.L. c. 64C, § 6 (1990 ed.), contains monthly reporting and payment requirements.

It is clear that G.L. c. 64C is exclusively a taxing statute. Furthermore, the companion statute, G.L. c. 62C, § 67, to which reference is made in G.L. c. 64C, § 2, and which describes the licensing process, gives further evidence that licensing is only a method of tax collection. First, G.L. c. 62C, § 67, states that the commissioner may only deny a license in limited circumstances, when the applicant has violated a tax provision or failed to pay taxes. Second, the commissioner's decision is appealable to the Appellate Tax Board. Therefore, the provision in G.L. c. 64C retaining exclusive control of cigarette vending machine licensing in the Commonwealth, seen in conjunction with the rest of G.L. c. 64C and G.L. c. 62C, § 67, means that local governments may not interfere with the Commonwealth's detailed cigarette excise tax collection scheme. The Legislature has not expressed any intent to preempt local prohibition or regulation of the siting of cigarette vending machines for public health or other reasons. As the by-law at issue has nothing to do with the taxation aspects of cigarette sales, it does not conflict with the statute.

As we have said, in instances in which a clear expression of intent to preclude local action is absent, we must next determine if the purpose of the statute can still be achieved despite the local by-law. If it cannot, the by-law is invalid. The purpose of the statute is the accurate collection of the cigarette excise tax by the Commonwealth. By the clear language of the statute, the Commonwealth retains the exclusive power to license cigarette vending machines in order to serve that purpose, but it does not purport to regulate pervasively every aspect of the sale of cigarettes in Massachusetts. Although the Commonwealth has preempted the field of licensing vending machines, the plaintiffs have pointed to no statute, and we are aware of none, that authorizes an agency of the Commonwealth to regulate the siting of such machines. Therefore, because the Provincetown by-law does not interfere with the Commonwealth's licensing power to ensure accurate collection of cigarette excise taxes, the purpose of the statute can be achieved without interference by the by-law. The by-law is not inconsistent with the legislation.

In G.L. c. 64C, § 10 (1992 ed.), the Legislature has prohibited sales of cigarettes to minors, and has provided fines for those responsible for such sales. Section 10 also specifically prohibits vending machine sales of cigarettes to minors, mandating that the machine display the following notice: "Persons under eighteen are prohibited from using this machine." The plaintiffs claim that the by-law is inconsistent with those provisions of §...