A & B Cattle Co. of Nevada, Inc. v. City of Escondido

Opinion

WORK, J.

City of Escondido (City) appeals an order granting judgment on the pleadings permanently enjoining it from enforcing a licensing ordinance regulating the sale of materials designed or marketed for use with illegal drugs (Escondido Municipal Code (EMC), § 16-190). We affirm because state law (Health & Saf. Code, 1 §§ 11364.7, 11014.5) has preempted this regulatory field.

Factual and Procedural Background

On April 28, 1982, the City enacted Ordinance No. 82-41, adding section 16-190 to the EMC, 2 declaring it “unlawful for any person or persons as *1036 principal, clerk, agent or servant to sell any items, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal drugs, as defined by the laws of the State of California, without obtaining a license therefor.” (EMC, § 16-190, subd. (a).) The ordinance requires applications for this license to be accompanied by affidavits by applicant and each employee authorized to sell such items verifying they have never been convicted of a drug-related offense. The ordinance prohibits the sale or giving of the items described in subdivision (a) to any minor, while requiring the maintenance of detailed records pertaining to every sale of such items. A violation of any provision of EMC section 16-190 is a misdemeanor, punishable by a fine not exceeding $500 or imprisonment not exceeding six months, or both.

Later in 1982, the Legislature enacted Senate Bill No. 341, effective January 1, 1983, adding sections 11014.5 and 11364.7. (Stats. 1982, ch. 1278, §§ 1, 2 respectively, pp. 4725-4728.) Section 11014.5 defines “drug paraphernalia” 3 and establishes criteria for courts to consider when deter *1037 mining what constitutes drug paraphernalia. Section 11364.7 makes it a misdemeanor for anyone to deliver, furnish, transfer, possess, manufacture with intent to deliver, furnish, or transfer drug paraphernalia; provides those who are over 18 years of age and violate these provisions by delivering, furnishing or transferring paraphernalia to a minor at least 3 years their junior may be punished by a fine of not more than $1,000 or by imprisonment of not more than 1 year, or both; declares the violation of its provisions is cause to revoke any business or liquor license; and, specifies that all drug paraphernalia defined by section 11014.5 is subject to forfeiture and seizure by any peace officer. 4

Four years after enacting its drug paraphernalia ordinance, the City decided to begin enforcing it. The City “alerted” A&B Cattle Company of Nevada, Inc. (A&B), which operates the F Street Bookstore, of its intention. Forewarned, A&B obtained an injunction preventing enforcement of the ordinance on the ground it is- preempted by sections 11014.5 and 11364.7. 5

*1038 Governing Law on Preemption

“Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law.” (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885 [218 Cal.Rptr. 303, 705 P.2d 876].) More specifically, article XI, section 7 of the California Constitution provides: “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.” Where local legislation conflicts with general law, it is void. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290 [219 Cal.Rptr. 467, 707 P.2d 840]; 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].) “Apart from this limitation, the ‘police power [of a county or city] under this provision ... is as broad as the police power exercisable by the Legislature itself.’ ” (Candid Enterprises, Inc., v. Grossmont Union High School Dist., supra, 39 Cal.3d at p. 885, quoting Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 140 [130 Cal.Rptr. 465, 550 P.2d 1001].)

A local legislative enactment will be invalidated when it duplicates, contradicts, or infringes upon an area completely occupied by general law, either expressly or by legislative implication. Moreover, where the subject matter of the local legislation has been entirely occupied by state general law, supplementary or complementary local legislation, even pertaining to matters otherwise properly characterized as municipal in character, is prohibited. (Cohen v. Board of Supervisors, supra, 40 Cal.3d at pp. 290-291; People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 484; Lancaster v. Municipal Court, supra, 6 Cal.3d at pp. 807-808.)

State Law has Preempted the Regulatory Field Regarding Drug Paraphernalia to the Exclusion of Local Legislation

Preliminarily, we note the Legislature has not expressly prohibited local regulations within its statutory scheme governing the manufacture *1039 and distribution of drug paraphernalia. Moreover, no state law appears to explicitly regulate the licensing of drug paraphernalia retailers. However, a plain reading of these enactments shows each seeks to regulate the sale and distribution of paraphernalia designed or marketed for use with illegal drugs by imposing penal sanctions. Because the only “illegal” drugs are those so designated by state law and both the City and state purport to regulate the sale of identical materials, the enactments are identical in purpose. The enactments are duplicative because each makes it unlawful to distribute drug paraphernalia to minors. They are contradictory insofar as a violation of that provision under the ordinance is simply punishable as a misdemeanor by a fine not exceeding $500 or imprisonment not exceeding six months, or both, whereas subdivision (b) of section 11364.7 provides that persons who are eighteen years of age or older and unlawfully distribute drug paraphernalia to a minor at least three years their junior are guilty of a misdemeanor punishable by a fine not exceeding $1,000 or imprisonment for more than one year, or both. Moreover, section 11364.7, subdivision (a) makes it unlawful for any person to distribute or manufacture drug paraphernalia, knowing or under circumstances where one reasonably should know, it will be employed to introduce into the human body a controlled substance. In comparison, by implication through the requirement of licensing and no express prohibition as to sale to adults, the City appears to be sanctioning the sale of drug paraphernalia to adults.

In fact, it is difficult to believe the City is serious in its attempt to defend this ordinance which, on its face, purports to permit businesses to sell goods which are completely banned by state law, so long as the City issues a special local business license. The general rule is that conduct or activities which are unlawful or criminal in nature may not be made the subject matter of municipal licensing. (9 McQuillin, Municipal Corporations (3d ed. rev.) §§ 26.23b, 26,51, pp. 61, 138.) On the other hand, even where there is preemption, a municipality may be entitled to collect license fees for the right to engage in lawful activities relating to the subject matter preempted. (See Lancaster v. Municipal Court, supra, 6 Cal.3d at p. 809.) 6

Indeed, local law enforcement officers must enforce state and local laws alike, and any sale or distribution of unlawful drug paraphernalia subjects the seller or distributor to arrest and fine under state law regardless whether licensed by the City. (9 McQuillin, Municipal Corporations, supra, § 26.23b, at p.61.)

*1040 The City challenges this assessment, contending its ordinance neither contradicts nor duplicates section 11364.7 because the latter is completely silent with regard to licensing and record keeping; in light of section 11364.5, subdivision (g), the state’s statutory scheme specifically contemplates licensing by local governmental bodies; and, finally, because section 11364.7, subdivision (a) requires a distributor to know or be constructively aware the drug paraphernalia will be used for its “intended” purpose, it clearly implies the general laws do not make all sales of drug paraphernalia unlawful. However, upon examining underlying legislative history, we conclude the Legislature’s modification of its general statutory scheme through the addition of sections 11014.5 and 11364.7 shows its intent to establish a total ban on the manufacture and distribution of drug paraphernalia in California, so as to occupy the entire regulatory field to the exclusion of local legislation.

The governing standard for determining whether an area has been fully occupied on the basis of legislative implication is settled. “In determining whether the Legislature has preempted by implication to the exclusion of local regulation we must look to the whole purpose and scope of the legislative scheme. There are three tests: ‘(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.’ ” (People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485, quoting In re Hubbard (1964) 62 Cal.2d 119, 128 [41 Cal.Rptr. 393, 396 P.2d 809]; Cohen v. Board of Supervisors, supra, 40 Cal.3d at pp. 292-293; Candid Enterprises, Inc. v. Grossmont Unified High School Dist., supra, 39 Cal.3d at p. 886.)

Before the enactment of sections 11014.5 and 11364.7 in 1982 (Stats. 1982, ch. 1278, §§ 1, 2, pp. 4725-4728), the state’s statutory scheme regulating the marketing and distribution of drug paraphernalia included section 11364 7 regulating the use of drug paraphernalia by adults, section 11364.5 8 *1041 prohibiting minors from being in places where drug paraphernalia is displayed, and Penal Code section 308, subdivision (a) 9 prohibiting the sale or distribution of drug paraphernalia to minors. (See Bamboo Brothers v. Carpenter (1982) 133 Cal.App.3d 116, 123 [183 Cal.Rptr. 748].) Moreover, section 11353 declared it unlawful for adults to solicit or encourage minors to violate specified provisions of the Uniform Controlled Substances Act (§§ 11000-11651). (Music Plus Four, Inc. v. Barnet (1980) 114 Cal.App.3d 113, 122 [170 Cal.Rptr. 419].) Consequently, the former statutory scheme simply made it a misdemeanor to sell drug paraphernalia to minors and required that businesses marketing drug paraphernalia to adults display it in separate rooms or enclosures where minors were not admitted. The law was narrowly focused to the issues of exposure and sale of drug paraphernalia to minors. 10 Finally, the statutory scheme regulating the marketing of drug paraphernalia expressly permitted local governments to enact ordinances to regulate the sale or display of drug paraphernalia to minors. (Pen. Code, § 308, subd. (c) 11 ; § 11364.5, subd. (g) 12 ; uncod. § 2 of Stats. 1980, ch. 505, p. 1063, as amended by Stats. 1982, ch. 454, § 192, p. 1896. 13 ) This former statutory scheme did not preempt local regulation of businesses displaying drug paraphernalia to minors (Music Plus Four, Inc. v. Barnet, *1042 supra, 114 Cal.App.3d at pp. 121-125) and thus permitted a county to enact and enforce an ordinance designed to broaden the scope of state laws by prohibiting use, possession and display to all persons and include drug paraphernalia relating to marijuana (Bamboo Brothers v. Carpenter, supra, 133 Cal.App.3d at pp. 122-125). 14

Patterned after the Model Drug Paraphernalia Act drafted by the Drug Enforcement Administration of the United States Department of Justice, the Legislature enacted sections 11014.5 and 11364.7 with the intent to eliminate the use and sale of drug paraphernalia and thus offset the expanded sale abuse of controlled substances. (People v. Nelson (1985) 171 Cal.App.3d Supp. 1, 12 [218 Cal.Rptr. 279]; People v. Clark-Van Brunt (1984) 158 Cal.App.3d Supp. 8, 10, fn. 1 [205 Cal.Rptr. 144]; 14 Pacific L.J., supra, at p. 542.) As summarized above, these sections totally ban the manufacture and distribution of drug paraphernalia as statutorily defined in California, making it a misdemeanor to deliver, furnish, or transfer drug paraphernalia to any person, or to possess or manufacture with the intent to deliver, furnish or transfer drug paraphernalia to another. Thus, these enactments prohibit the retailing of drug paraphernalia to both adults and minors. Therefore, the Legislature’s formulating its statutory scheme and express intent to expand its regulation of drug paraphernalia to adults as well, show its intent to preempt the field of drug paraphernalia regulation to the exclusion of local ordinance. (People v. Nelson, supra, 171 Cal.App.3d Supp. at p. 19, fn. 19; see Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 295.)

Our conclusion this pervasive, comprehensive statutory scheme regulating drug paraphernalia was intended by the Legislature to preempt the entire field to the exclusion of local legislation is further supported by the fact the Legislature included no express language permitting local regulation on these matters as it did within Penal Code section 308, subdivision (c) and uncodified section 2 of Statutes 1980, chapter 505, page 1063, as amended by Statutes 1982, chapter 454, section 192, page 1896, with regard to section 11364.5. However, stressing preemption by implication of legislative intent may not be found when the Legislature has expressed an intent to permit local regulations (People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485), the City argues the Legislature’s failure to repeal these provisions shows its intent to permit local regulation and licensing. *1043 The City recognizes a statutory incongruity. Our current statutory scheme on the one hand directs businesses on how drug paraphernalia must be marketed, while the other hand imposes misdemeanor penalties if a retailer complies with those provisions to market drug paraphernalia. Clearly, the law as codified within Penal Code section 308 and section 11364.5 is inconsistent with sections 11014.5 and 11364.7, requiring the former to give way to the latter. For, it is a firmly established principle of statutory instruction that “where there are potentially conflicting legislative enactments, the latter enactment controls.” (People v. Pitcock (1982) 134 Cal.App.3d 795, 805 [184 Cal.Rptr. 772], and cases there cited.)

Stressing how the relevant field occupied by an allegedly preemptive state statutory scheme is defined is often crucial to the disposition (Candid Enterprises, Inc. v. Grossmont Union High School Dist, supra, 39 Cal.3d at p. 886, fn. 4; California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 27-28 [61 Cal.Rptr. 618]), the City asserts its ordinance simply controls record keeping and licensing to assist local authorities in determining whether unlawful drug paraphernalia has been sold and to whom. By attaching such a narrow construction to its ordinance, the City urges it does not conflict with the state statutory scheme regulating the manufacture and sale of drug paraphernalia. Yet, both laws burden the sale of drug paraphernalia. Where state law absolutely prohibits the sale of certain merchandise on pain of criminal penalty, the City cannot impose additional penalties for the same conduct, regardless of whether they are under the guise of licensing fees or the burdensome requirement of maintaining records of sales. Such an attempt at supplementary control at the local level within this context is prohibited; for, where an ordinance is in substance a criminal statute attempting to prohibit conduct proscribed or permitted by state law either explicitly or impliedly, it is preempted. (Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 293.)

The City further urges the ordinance is not preempted because section 11364.7 does not ban all sales of drug paraphernalia, but only the delivery, furnishing or transferring of drug paraphernalia with knowledge that such items will be used illegally, and thus the state has not declared that all sales of drug paraphernalia are unlawful. The City then emphasizes its ordinance requires no scienter but simply mandates record keeping and licensing. This argument is also unpersuasive.

A municipality’s “right to utilize its licensing power as a means to regulate businesses conducted within its borders can scarcely be disputed.” (Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 296.) Because every *1044 municipality is unique requiring local government to address problems generated by business involvement in activities that may be inimical to the health, safety and welfare of its community, “a local governmental body may properly determine that a particular business fosters, profits from and provides an environment for activities proscribed by state law. An ordinance is not transformed into a statute prohibiting crime simply because the city uses its licensing power to discourage illegitimate activities associated with certain businesses. Most licensing ordinances have a direct impact on the enforcement of state laws which have been enacted to preserve the health, safety and welfare of state and local citizens. This fact does not deprive a municipality of the power to enact them.” (Id. at pp. 298-299.) Moreover, “an ordinance is not preempted simply because it seeks to alleviate the burden that local enforcement of state law imposes on police and other city officials. [Citation.] That objective is a sound basis for local legislation.” (Id. at p. 299.) In Cohen v. Board of Supervisors, supra, 40 Cal.3d 277, the Supreme Court recognized that although certain provisions of the challenged ordinance which require disclosure of information no doubt aided law enforcement in investigating potential criminal activity, and conditioning the granting of an application upon the absence of convictions of drug-related offenses may raise other constitutional questions, they afford no bases for preemption. (Ibid.)

However, a closer look at the allegedly lawful conduct the City here seeks to regulate by licensing reveals the subject matter is clearly within the state’s statutory scheme regulating drug paraphernalia. Presumably, the City’s argument seeks to salvage its licensing regulation as to sales of drug paraphernalia where the seller is not on actual or constructive notice of the buyer’s illegal intent. However, only items “designed for use or marketed for use” with illegal drugs are defined as drug paraphernalia. (§ 11014.5, subd. (a).) This “design” standard has been construed as encompassing “ ‘at least an item that is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer. A business person of ordinary intelligence would understand that this term refers to the design of the manufacturer, not the intent of the retailer or customer. It is also sufficiently clear that items which are principally used for nondrug purposes, such as ordinary pipes, are not “designed for use” with illegal drugs.’” (People v. Nelson, supra, 171 Cal.App.3d Supp. at p. 10, quoting Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 501 [71 L.Ed.2d 362, 373, 102 S.Ct. 1186].) Section 11014.5, subdivision (b) defines “marketed for use” as meaning “advertising, distributing, offering for sale, displaying for sale, or selling in a manner which promotes the use of equipment, products, or materials with controlled substances.” Essentially, this “ ‘standard requires scienter, since a retailer could scarcely *1045 “market” items “for” a particular use without intending that use.’ ” (People v. Nelson, supra, 171 Cal.App.3d Supp. at p. 10, quoting Hoffman Estates v. Flipside, Hoffman Estates, supra, 455 U.S. at p. 502 [71 L.Ed.2d at p. 374].) Neither state law nor the ordinance applies to merchants selling innocuous or neutral items neither designed nor marketed for use with illegal drugs, ‘although a buyer may intend such use. Thus, the reach of the ordinance would regulate only those merchants who retail drug paraphernalia neither knowing nor on constructive notice of the buyers’ intended illegal use. However, subdivision (d) of section 11364.7 provides for the forfeiture and seizure of all drug paraphernalia defined in section 11014.5 by any peace officer pursuant to section 11471. Section 11471 in turn provides: “Property subject to forfeiture under this division may be seized by the Attorney General upon process issued by any court having jurisdiction over the property. Seizure without process may be made if any of the following situations exist:

“(a) The seizure is incident to an arrest or a search under a search warrant.

“(b) The property subject to seizure has been the subject of a prior judgment in favor of the state and a criminal injunction or forfeiture proceeding based upon this division.

“(c) The Attorney General has probable cause to believe that the property is directly or indirectly dangerous to health or safety.

“(d) The Attorney General has probable cause to believe that the property was used or is intended to be used in violation of this division.” (Italics added.) These provisions provide for the forfeiture and seizure of all drug paraphernalia offered for sale, regardless whether the merchant has been charged with a misdemeanor for unlawfully distributing drug paraphernalia. Hence, the state statutory scheme clearly indicates a legislative intent to preclude local regulation, including licensing, of the marketing and distribution of drug paraphernalia, since the state statutory scheme sets forth a complete ban on the manufacturing and distribution of drug paraphernalia providing for its seizure and forfeiture, as well as the imposition of criminal penalties where scienter is present.

Finally, our determination is further supported by an opinion issued by the Attorney General’s Office. “[Ojpinions of the Attorney General are not binding on the courts, although they have been accorded ‘great weight’ in matters of this nature, where controlling authority construing the provision is absent.” (San Diego Union v. City Council (1983) 146 *1046 Cal.App.3d 947, 954 [196 Cal.Rptr. 45], and cases there cited.) In a memorandum dated July 28, 1983, to Deputy Attorney General Linda A. Cabatic from Deputy Attorney General John R. Gorey, the Office of the Attorney General responded affirmatively to Assemblyman Richard E. Floyd’s inquiry of whether the enactment of sections 11014.5 and 11364.7 preempted the field of drug paraphernalia to the exclusion of local regulation. 15

Disposition 16

The order is affirmed.

Wiener, Acting P. J., and Butler, J., concurred.