Rick LAW, Plaintiff and Appellee, v. CITY OF SIOUX FALLS, Defendant and Appellant, v. South Dakota Lottery, a Division of the Department of Revenue and Regulation, State of South Dakota, Intervenor and Appellee.
No. 25897.
Supreme Court of South Dakota.
Argued Aug. 24, 2011. Decided Sept. 21, 2011.
2011 S.D. 63
CONCLUSION
[¶ 22.] Because Hirning was not warned of the dangers of self-representation and the record does not indicate circumstances from which this Court can find Hirning was aware of the danger and made a voluntary, knowing, and intelligent waiver, we reverse and remand.
[¶ 23.] KONENKAMP, ZINTER, and SEVERSON, Justices, and MEIERHENRY, Retired Justice, concur.
[¶ 24.] WILBUR, Justice, did not participate.
Mark J. Arndt of May & Johnson, PC, Sioux Falls, SD, Attorneys for defendant and appellant.
Andrew L. Fergel of South Dakota Department of Revenue and Regulation, Pierre, SD, Attorney for intervenor and appellee South Dakota Lottery.
KONENKAMP, Justice.
[¶ 1.] The City of Sioux Falls enacted a zoning ordinance controlling the location of new on-sale alcoholic beverage businesses seeking to place video lottery machines in their establishments. In a declaratory action, the circuit court ruled that the City exceeded its authority when it enacted the ordinance. The court concluded that South Dakota‘s constitutional and statutory scheme indicated that the State intended to fully occupy the field of video lottery, to the exclusion of municipal regulation. We affirm.
Background
[¶ 2.] On February 8, 2007, Rick Law filed an application with the City of Sioux Falls to be on its waiting list for an on-sale alcoholic beverage permit under
[¶ 3.] Aware of this new ordinance, Law conditionally accepted the license, but did not apply for a conditional use permit because he believed each of his proposed locations would fail under the requirements of Ordinance 60-80. Law brought a declaratory action against the City to determine the constitutionality of Ordinance 60-80. He alleged that the City exceeded its authority when it enacted the ordinance, as the State had fully occupied the field of video lottery regulation, preempting any municipal regulation. The City countered that Ordinance 60-80 does not regulate video lottery, but is a zoning ordinance, enacted through a valid exercise of the City‘s police powers. The South Dakota Lottery, a Division of the Department of Revenue and Regulation, was permitted to intervene in the action.
[¶ 4.] After a hearing, the circuit court issued a memorandum opinion and findings of fact and conclusions of law. The court ruled that the City exceeded its authority when it enacted Ordinance 60-80, because the Legislature intended that the State “occupy the field of video lottery regulation to the exclusion of municipal regulations as shown by the Constitution and the broad statutory scheme regarding video lottery regulation.” The City appeals.
Analysis and Decision
[¶ 5.] Interpretation of an ordinance and related constitutional provisions present questions of law, reviewed de novo. City of Marion v. Schoenwald, 2001 S.D. 95, ¶ 8, 631 N.W.2d 213, 216-17 (citations omitted). We must decide anew whether Ordinance 60-80 is a valid exercise of municipal power.
[¶ 6.] The City advances multiple reasons why the court erred in deeming Ordinance 60-80 unconstitutional. First, it argues that Ordinance 60-80 is valid because South Dakota law authorizes municipalities to adopt zoning ordinances regulating and restricting the location and use of buildings for the “purpose of promoting health,
[¶ 7.] In response, Law asserts that the only reasonable interpretation of the South Dakota Constitution and the video lottery legislative scheme is that the Legislature intended to solely occupy the field of video lottery, preempting any municipal regulation. Law points out that until 1986, video lottery was illegal in South Dakota. See
[¶ 8.] The Lottery, in agreement with Law‘s arguments, further points out that the Legislature intended to fully occupy the field of video lottery regulation because the “Legislature has crafted only two exceptions that allow a municipality to influence video lottery machine placement.” See
[¶ 9.] A municipality may exercise any power or perform any function not
[¶ 10.] Field preemption by state law can be either express or implied. Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880, 886 (Fla.2010); Fogle v. H & G Rest., Inc., 337 Md. 441, 654 A.2d 449, 464 (Md.Ct.App.1995); Minn. Agric. Aircraft Ass‘n, 498 N.W.2d at 42. Express preemption occurs when there is a specific legislative enactment reflecting the Legislature‘s intent to preempt any local regulation. Sarasota Alliance, 28 So.3d at 886. Implied preemption, on the other hand, exists when the legislative scheme “is sufficiently comprehensive to make reasonable the inference that” the Legislature “left no room” for supplementary local regulation. In re Yankton Cnty. Comm‘n, 2003 S.D. 109, ¶ 16, 670 N.W.2d 34, 39 (citation omitted) (quoting Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985)); see also Jackley, 2010 S.D. 81, ¶ 10, 790 N.W.2d at 494. Because there is no specific enactment expressing the Legislature‘s intent to preempt local regulation of video lottery, we must review the legislative scheme for implied preemption. In doing so, we look to the provisions of the entire law, and not any particular statute in isolation. See Sarasota Alliance, 28 So.3d at 886. We also will consider the object sought to be attained by the laws, the nature and power exerted by the Legislature, and the character of the obligations imposed by the statutes. See id.; see also Idaho Dairymen‘s Ass‘n, Inc. v. Gooding Cnty., 148 Idaho 653, 227 P.3d 907, 913 (2010).
[¶ 11.] Gambling was illegal in South Dakota until our constitution was amended in 1986. The amendment legalizing gambling specifically provided that it would be “regulated by the state of South Dakota[.]” See
[¶ 12.] The object sought to be attained by the laws also confirms that the Legislature intended to fully control video lottery. The Legislature mandated that “[i]n all decisions, the executive director and commission shall take into account the particularly sensitive nature of the lottery, and shall act to promote and ensure the integrity, security, honesty, and fairness of its operation and administration.”
(1) The success of the South Dakota Lottery is dependent upon public confidence and trust that it is conducted honestly and free from criminal and corruptive elements;
(2) Public confidence and trust can only be maintained by strict regulation of all persons, locations, practices, associations, and activities related to the sale of lottery products and the operation, manufacturing, and distribution of video lottery games and equipment; and
(3) No applicant for a license or other affirmative commission action has any right to a license or to the granting of the approval sought. Any license issued or other commission approval granted pursuant to the provisions of this chapter is a revocable privilege, and no holder acquires any vested interest or property right therein or thereunder.
[¶ 13.] Although there is no express legislative directive controlling video lottery to the exclusion of local regulation, the scope and power exerted by the Legislature and the character of the obligations imposed by its statutes reflect legislative intent to be exclusive in the field. As previously stated, the Legislature created the South Dakota Lottery and required an executive director to operate, manage, and control the Lottery. To guide the Lottery and executive director, the Legislature enacted requirements for video lottery machines,
[¶ 14.] Based on the character of the obligations imposed by the Legislature, we see no delegation of power or responsibilities to municipalities and no entrusting to municipalities the control of video lottery. Rather, the statutes place all burdens upon the State. Thus, we conclude that South Dakota‘s legislative video lottery scheme is sufficiently comprehensive to make reasonable the inference that the Legislature left no room for supplementary regulation of video lottery by municipalities. It is immaterial that the City is governed by a home-rule charter or empowered to enact zoning regulations. Once the City enacted Ordinance 60-80, regulating the placement of video lottery machines, the City exceeded its authority. Of course, if we have misread the intent behind the video lottery statutes, the Legislature remains free to amend its enactments to clarify its intent.
[¶ 15.] Lastly, the City argues that if this Court finds that Ordinance 60-80 is preempted by state law, the Legislature improperly delegated control of video lottery placement to the South Dakota Lottery Commission in violation of article III, section 26 of our constitution. That section provides,
The Legislature shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property, effects, whether held in trust or otherwise, or levy taxes, or to select a capital site, or to perform any municipal functions whatever.
[¶ 16.] The Lottery, on the other hand, argues that the Legislature did not delegate any powers to a “special commission.” Rather, the power to control, manage, and regulate video lottery is vested with the South Dakota Lottery, a division of the Department of Revenue and Regulation. The Lottery asserts that, as a division of the Department of Revenue and Regulation, it is much like the Department‘s Motor Vehicles Division, Property Tax Division, Business Tax Division, and Special Taxes Division. The Lottery also maintains that no municipal function has been delegated by the Legislature through the video lottery regulatory scheme, since the City is still empowered to zone and dictate where alcoholic beverage establishments may or may not be located.
[¶ 17.] We need not decide whether the South Dakota Lottery Commission is the type of special commission prohibited in article III, section 26 of our constitution. There is no evidence that the Legislature has interfered with any municipal property or function by its enactments.
[¶ 18.] Affirmed.
[¶ 19.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices, and SABERS, Retired Justice, concur.
[¶ 20.] SABERS, Retired Justice, sitting for MEIERHENRY, Retired Justice, disqualified.
[¶ 21.] WILBUR, Justice did not participate.
Notes
An on-sale alcoholic beverage establishment may be permitted provided it is found that the location:
(1) Will not create an undue concentration of similar uses.
(2) It is not in an area where unattended children could be expected to frequent, patronize, or recreate.
(3) It is compatible with characteristics of surrounding uses, and not injurious to surrounding properties.
(4) Video lottery machine placement is not within 2,000 feet of any city park, other video lottery machine placement, or any elementary or secondary school within the city as measured from the closest point of the outside wall of either of such buildings or tenant space or the boundary of any park. The provisions of this section shall apply to any new video lottery placement authorized after June 1, 2008, unless a valid application for a conditional use permit, including video lottery terminals, shall have been filed with the City prior to that date for an alcoholic beverage license authorized pursuant to
Ordinance 60-80, Section 6.
The remaining statutes indicate only legislative control. The Legislature defined the functions of the executive director,