K&W Automotive, LLC v. Town of BarringtonK&W Automotive, LLC v. Town of Barrington
Attorney(s) on Appeal
For Plaintiffs:
Joelle C. Rocha, Esq.
Anthony DeSisto, Esq.
Michael D. Resnick, Esq.
For Defendant:
Andrew M. Teitz, Esq.
Michael A. Ursillo, Esq.
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222-3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published.
O P I N I O N
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
I
Facts and Travel
The facts relative to this matter are not in dispute and are set forth herein as provided in the parties’ agreed-to stipulation of facts. On June 5, 2017, the Barrington Town Council (town council) enacted Ordinance No. 2017-7 making it “unlawful to sell or to possess with the intention of selling tobacco products within the town without a tobacco dealer‘s license,” with such license being required “in addition to any other license required by state and/or federal law” (Licensing Ordinance). The Licensing Ordinance also imposed various conditions upon license holders, including a prohibition on “sell[ing] any tobacco product to any individual under the age of twenty-one (21) years” as well as a prohibition on “sell[ing] any flavored tobacco product to a consumer.”
On January 25, 2018, plaintiffs, two businesses located in the Town and licensed by the State of Rhode Island to sell tobacco and electronic nicotine delivery systems (electronic cigarettes) and their respective owners, filed a complaint in Superior Court seeking declaratory and injunctive relief so as to prevent the Town from enforcing the Tobacco Ordinance. The plaintiffs’ complaint also referenced as interested parties seven other businesses located in the Town that are licensed to sell tobacco and/or electronic cigarettes.2
On July 19, 2018, after considering the oral and written submissions of the parties, the hearing justice issued a bench decision, in which she concluded that the Tobacco Ordinance was null and void; accordingly, she granted plaintiffs’ request for declaratory and injunctive relief.3 The hearing justice first determined that the Tobacco Ordinance primarily concerned public health and safety and that, therefore, “the [state‘s] police power [was not] implicated.” Having cleared that hurdle, the hearing justice moved on to apply the three-variable test set forth in Town of East Greenwich v. O‘Neil, 617 A.2d 104 (R.I. 1992). The hearing justice found that, pursuant to the O‘Neil test, the Town did indeed lack authority under its Home Rule Charter to enact the Tobacco Ordinance because the subject matter involves a matter of statewide concern. Based on this ruling, the hearing justice concluded that she did not need to determine if the Tobacco Ordinance is preempted by state law. Lastly, the hearing justice went on to address
II
Standard of Review
“[A] decision to grant or deny declaratory or injunctive relief is addressed to the sound discretion of the [hearing] justice and will not be disturbed on appeal unless the record demonstrates a clear abuse of discretion or the [hearing] justice committed an error of law.” La Gondola, Inc. v. City of Providence, 210 A.3d 1205, 1213 (R.I. 2019) (quoting Kayak Centre at Wickford Cove, LLC v. Town of Narragansett, 116 A.3d 250, 253 (R.I. 2015)). When deciding a case based on stipulated facts, “[t]he trial court does not play a fact-finding role, but is limited to applying the law to the agreed-upon facts.” Morse v. Minardi, 208 A.3d 1151, 1155 (R.I. 2019) (quoting Hudson v. GEICO Insurance Agency, Inc., 161 A.3d 1150, 1153 (R.I. 2017)). Our review with respect to questions of law and statutory interpretation is de novo. Delbonis Sand & Gravel Co. v. Town of Richmond, 909 A.2d 922, 925 (R.I. 2006).
III
Analysis
On appeal, the Town asserts that the hearing justice erred in finding that the Town did not have authority under its Home Rule Charter to enact the Tobacco Ordinance because, in the Town‘s view, that ordinance addresses a matter of purely local concern. The Town further argues that, because the Tobacco Ordinance addresses a matter of local concern, the hearing justice erred in failing to analyze whether the ordinance is preempted by state law. Such analysis, the Town argues, would have shown that the ordinance is consistent with state law and, thus, is not preempted. The Town also contends that, in conducting her analysis, the hearing justice did not give appropriate weight to State ex rel. Town of Westerly v. Bradley, 877 A.2d 601 (R.I. 2005).
The plaintiffs assert that the Tobacco Ordinance addresses a matter of statewide concern because it involves the regulation of business, over which they contend the state has exclusive power to legislate. The plaintiffs also assert that the Tobacco Ordinance involves a matter of statewide concern when analyzed under the three-part test set forth in O‘Neil. Accordingly, plaintiffs argue that the hearing justice correctly found that no preemption analysis was necessary because the Town did not have authority to enact the ordinance in the first instance, either through its authority with respect to local concerns or through any enabling legislation enacted by the General Assembly. The plaintiffs also contend that, even if preemption is applicable, the minimum age provision is preempted because state law occupies the field. Lastly, plaintiffs aver that the Town‘s reliance on this Court‘s holding in Bradley is misplaced.
A
Authority Under the Town‘s Home Rule Charter
In analyzing the Town‘s contentions on appeal, we first address whether the Town, under its constitutionally authorized Home Rule Charter, had the authority to enact the Tobacco Ordinance. In 1951, the General
“Every city and town shall have the power at any time to adopt a charter, amend its charter, enact and amend local laws relating to its property, affairs and government not inconsistent with this Constitution and laws enacted by the general assembly in conformity with the powers reserved to the general assembly.”
R.I. Const., art. 13, § 2 ; see Amico‘s Inc. v. Mattos, 789 A.2d 899, 903 (R.I. 2002).
Pursuant to its authority under the Home Rule Amendment, the Town adopted the Barrington Town Charter (Home Rule Charter), which expressly vests the town council with the power “[t]o enact, amend or repeal ordinances for the preservation of the public peace, the health, safety, comfort and welfare of the inhabitants of the Town and for the protection of persons and property.” Barrington Town Charter, § 2-1-6(a).
This Court has repeatedly held that the Home Rule Amendment allows municipalities to legislate on matters of purely local concern. Amico‘s Inc., 789 A.2d at 903; O‘Neil, 617 A.2d at 111; Westerly Residents for Thoughtful Development, Inc. v. Brancato, 565 A.2d 1262, 1264 (R.I. 1989) (holding that a town‘s decision to expand its sewer system was a matter of “purely local concern“). At the same time, however, we are mindful of the following pertinent principle: “Municipalities may not * * * legislate on matters of statewide concern. The power of the General Assembly remains exclusive in those areas.” O‘Neil, 617 A.2d at 111 (quoting Brancato, 565 A.2d at 1264). We have consistently recognized that “the Legislature continues to exclusively occupy the fields of education, elections, and taxation, thereby precluding any municipality‘s foray into these areas, absent specific legislative approval.” Amico‘s Inc., 789 A.2d at 903; see Brancato, 565 A.2d at 1264 (recognizing that the General Assembly maintains exclusive power over “the regulation of police affairs, the conduct of business, licensing, education, and elections“) (quoting Bruckshaw v. Paolino, 557 A.2d 1221, 1223 (R.I. 1989)). In O‘Neil, this Court, after recognizing the need for greater clarification with respect to matters that do not fall squarely within one of the above-mentioned categories, identified three variables to be considered in discerning whether a matter is of local or statewide concern: (1) whether “uniform regulation throughout the state is necessary or desirable;” (2) “whether a particular matter is traditionally within the historical dominion of one entity;” and, most critically, (3) whether “the action of a municipality has a significant effect upon people outside the home rule town or city * * *.” O‘Neil, 617 A.2d at 111.
It now becomes our duty to apply to the Tobacco Ordinance the three-variable test set forth in O‘Neil. As to the first variable, it is our view that uniform regulation of tobacco throughout the state is desirable, if not necessary. In O‘Neil, 617 A.2d at 106, the Town of East Greenwich passed an ordinance creating a moratorium on the construction of power lines exceeding a specified voltage. Id. This Court noted that three nearby municipalities had enacted similar ordinances, and the Court proceeded to express concern that patchwork legislation would “handicap compliance with safety regulations and inhibit the efficient distribution of electrical power.” Id. at 111-12. Accordingly, the Court concluded that uniform regulation was necessary. Id. at 112. Similar to the situation which confronted
Turning to the second variable in the O‘Neil analytical process, it is clear to this Court that tobacco regulation has traditionally fallen within the purview of the state. It was in 1892 that the General Assembly first enacted a statute prohibiting the providing of “any tobacco in the form of cigarettes” to minors under the age of sixteen. 1892 Acts and Resolves, ch. 1053, § 1. Moreover, since 1939, the state has required persons seeking to sell tobacco products in Rhode Island to obtain a license from the state tax administrator and to comply with various conditions or be exposed to the imposition of civil and/or criminal penalties. P.L. 1939, ch. 663, § 2;
With respect to the third O‘Neil variable, the Town argues that the effect of this particular ordinance on persons outside the Town is relatively minor. As there are currently only nine businesses in the Town licensed to sell tobacco and electronic cigarettes, the effect of the Tobacco Ordinance is not significant and would appear to actually benefit those businesses outside the Town by increasing their business. Another apparent effect is that persons from outside the Town who may find themselves in the Town and wish to purchase tobacco products that are prohibited by Barrington‘s Tobacco Ordinance would have to travel to another municipality to do so. We are in agreement with the Town that these effects do not qualify as significant. However, the potential impact of municipalities across the state enacting their own various regulations would have some significance. When addressing the third variable, the Court in O‘Neil relied upon a case from the Supreme Court of New Jersey in reasoning that, if each municipality were to impose its own notion as to how to transmit electric current, “nothing but chaos would result, and neither the utility nor the state agency vested with control could be assured of [the] ability to fulfill its obligations of furnishing safe, adequate and proper service to the public in all areas.” O‘Neil, 617 A.2d at 112 (quoting In re Public Service Electric and Gas Co., 173 A.2d 233, 241 (N.J. 1961)). As was mentioned with respect to the first variable, if each municipality were to impose its own tobacco regulations, the state‘s ability to efficiently enforce its own statutes and regulations relating to both tobacco and the conduct of business would be adversely affected. Because the effect of inconsistent regulations on the state‘s ability to foster public safety is significant, we conclude that third variable also supports the conclusion that the Tobacco Ordinance regulates a matter of statewide concern.6
Although the Tobacco Ordinance was enacted to protect public health and safety, our review of the three O‘Neil variables leads us to conclude that the Tobacco Ordinance constitutes legislation concerning a matter of statewide concern and that it, therefore, infringes upon the power of the state. Accordingly, we are in agreement with the hearing justice‘s conclusion that the Town lacked authority under its Home Rule Charter to enact the Tobacco Ordinance.7
Preemption
We now turn to the Town‘s argument that the hearing justice erred in failing to conduct a preemption analysis. Relying upon this Court‘s decision in Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255 (R.I. 1999), the hearing justice in this case found that she did not need to engage in a preemption analysis because she had already concluded that the Tobacco Ordinance involved a matter of statewide concern. In Town of Warren, we stated that “preemption only exists in circumstances in which the municipality would have the authority to regulate a particular subject in the absence of state action.” Town of Warren, 740 A.2d at 1261. As we have similarly concluded in this case that the Town lacked the authority under its Home Rule Charter to enact the Tobacco Ordinance, it is our view that the hearing justice did not err in refraining from deciding whether the ordinance was preempted by state law.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. The record may be returned to that tribunal.
Notes
“Any business which does not sell food or beverages and for which the principal or core business is selling electronic smoking devices, as evidenced by any of the following: 33% or more of floor or display area is devoted to electronic smoking devices; or 67% or more of gross sales receipts are derived from electronic smoking devices.” Town of Barrington Code of Ordinances § 170-1 (2018).