SHERWIN-WILLIAMS COMPANY et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant.
No. S026785
Supreme Court of California
Feb. 4, 1993.
893 | 4 Cal.4th 893
James K. Hahn, City Attorney, John F. Haggerty, Assistant City Attorney, and Henry G. Morris, Deputy City Attorney, for Defendant and Appellant.
Seyfarth, Shaw, Fairweather & Geraldson and Michael Hickok for Plaintiffs and Respondents.
Rutan & Tucker, John L. Fellows III and Carrie Phelan as Amici Curiae on behalf of Plaintiffs and Respondents.
MOSK, J.-We granted review in this matter to determine whether
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
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
A
The general principles governing preemption analysis are these.
Under
“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; accord, e.g., IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 90; People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484; Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807.)
“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, which quotes, without citations, People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 484, which in turn quotes, with citations, Lancaster v. Municipal Court, supra, 6 Cal.3d at pp. 807-808; accord, e.g., IT Corp. v. Solano County Bd. of Supervisors, supra, 1 Cal.4th at p. 90; Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 423; Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290.)
Local legislation is “duplicative” of general law when it is coextensive therewith. (See In re Portnoy (1942) 21 Cal.2d 237, 240
Similarly, local legislation is “contradictory” to general law when it is inimical thereto. (See Ex parte Daniels (1920) 183 Cal. 636, 641-648 [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), 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, “overruled” on another point, Bishop v. City of San Jose, supra, 1 Cal.3d at p. 63, fn. 6; accord, e.g., IT Corp. v. Solano County Bd. of Supervisors, supra, 1 Cal.4th at pp. 90-91; Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist., supra, 49 Cal.3d at p. 423; Cohen v. Board of Supervisors, supra, 40 Cal.3d at pp. 292-293; Candid Enterprises, Inc. v. Grossmont Union High School Dist., supra, 39 Cal.3d at p. 886; People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485).
B
(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,
The 1981 act resulted from Assembly Bill No. 1675, 1981-1982 Regular Session. On a “Background Information” form prepared for the Senate
Section 1 of the 1981 act added
Section 2 of the 1981 act, which was not codified, declared: “It is the intent of the Legislature in enacting this act to preempt all local government regulations relating to sales and possession of aerosol containers of paint larger than six ounces (net weight of contents).” (Stats. 1981, ch. 1125, § 2, p. 4405.)
Section 3 of the 1981 act, also uncodified, stated that no appropriation was made and no reimbursement was required pursuant to, inter alia,
In 1988, the Legislature passed “An act to amend Section 594.1 of the Penal Code, relating to crimes.” (Stats. 1988, ch. 925, p. 2950.)
Section 1 of the 1988 act modified the statute into its present form, and reenacted it as so modified, to generally cover all “aerosol container[s] of paint.” (Stats. 1988, ch. 925, § 1, pp. 2950-2951.)
There was no provision in the 1988 act analogous to section 2 of the 1981 act, which had declared that it was the “intent of the Legislature in enacting th[at] act to preempt” all specified local legislation. (Stats. 1981, ch. 1125, § 2, p. 4405, italics added.)
In light of its language and its history, the statute is properly characterized as a graffiti-prevention measure. It seeks to accomplish its goal mainly by defining the lawful transfer and possession of aerosol paint and also by requiring retailers to post a warning against vandalism.
Los Angeles Municipal Code section 47.11 is set out in the margin.4 Generally, it requires retailers of aerosol paint and broad-tipped marker pens to display such items out of the public‘s reach.
The history of the ordinance is this. On November 16, 1990, the Los Angeles City Council passed Ordinance No. 166,399, which added the provision in question to the Los Angeles Municipal Code, under the title, “Display of Aerosol Spray Paint Containers and Marker Pens.”
The motion that proposed what was to become the ordinance stated that “[t]he battle to control graffiti in the City continues to grow worse with each passing day“; noted the existence of
In its preamble, the ordinance declared that “provisions of state law provide punishment for vandalism in the form of malicious defacing of property with paint, and prohibit the sale to or purchase by minors of aerosol spray paint containers capable of defacing property“; that “notwithstanding such prohibitions, graffiti caused by aerosol spray paint continues to proliferate in the City of Los Angeles due in substantial part to theft of aerosol spray paint containers“; that “graffiti can be created not only by aerosol spray paint, but also by large tipped marker pens“; and that “supplemental
In light of its language and its history, the ordinance is also properly characterized as a graffiti-prevention measure. It seeks to accomplish its goal by regulating the retail display of aerosol paint and broad-tipped marker pens.5
C
In determining whether
At the outset, we observe that there is no conflict whatsoever insofar as broad-tipped marker pens are concerned. The ordinance does indeed cover the items. The statute, however, does not even purport to do so. Plaintiffs conceded the point below. Rightly.
In proceeding with our analysis, we must first determine whether the ordinance duplicates the statute. It does not. Plainly, the former is not coextensive with the latter. True, both are graffiti-prevention measures. But each is different in scope and substance. The statute mainly defines the lawful transfer and possession of aerosol paint and also requires retailers to post a warning against vandalism. By contrast, the ordinance simply regulates the retail display of aerosol paint and broad-tipped marker pens.
We must next determine whether the ordinance contradicts the statute. It does not. The former is not inimical to the latter. As the description in the preceding paragraph makes clear, the ordinance does not prohibit what the statute commands or command what it prohibits.
We must finally determine whether the ordinance enters an area fully occupied by the statute.
The first of two subsidiary issues involves the presence or absence of express preemptive intent.
Without doubt, the Legislature expressly manifested an intent to fully occupy an area when it passed the 1981 act. As noted, section 1 of that
But also without doubt, the Legislature did not expressly manifest an intent to fully occupy an area when it passed the 1988 act. As noted, section 1 of that measure modified
It follows that express preemptive intent is absent. Such an intent was stated in the 1981 act specifically for the 1981 act. It was not stated at all in the 1988 act.6
The second of the two subsidiary issues referred to above involves the presence or absence of implied preemptive intent.
To return to the general principles of preemption analysis. The first potential indicium of implied preemptive intent focuses on whether the subject matter of the ordinance has been so covered by the statute as to clearly indicate that the field has become exclusively a matter of state concern.
At the outset, the subject matter of the ordinance must be specified. Most broadly defined, in conformity with its purpose, the field is the prevention of graffiti. Most narrowly defined, in accordance with its terms, the field is the retail display of aerosol paint and broad-tipped marker pens.
As will appear, it matters not how the subject matter of the ordinance is specified.
The statute does not exclusively cover the field of the prevention of graffiti. As stated, it mainly defines the lawful transfer and possession of aerosol paint and also requires retailers to post a warning against vandalism. Its scope is therefore limited. Indeed, other related statutory provisions affirmatively authorize or allow local governments to act to prevent graffiti. (See
Neither does the statute exclusively cover the field of the retail display of aerosol paint and broad-tipped marker pens. In fact, it does not bear on this matter in any way whatsoever. The point is clear as to aerosol paint. It is clearer still as to broad-tipped marker pens, which are not even mentioned. One may conceivably argue that by requiring retailers of aerosol paint to post a warning against vandalism, the Legislature has impliedly barred local governments from requiring them to do anything else. Such an argument, however, would prove unpersuasive. No implied bar of this kind is evident in any intrinsic or extrinsic materials. Indeed, the Legislature has effectively allowed local governments, if they choose to levy a local retail sales tax on items including aerosol paint, to require retailers to collect the tax thereon. (
The second potential indicium of implied preemptive intent focuses on whether the subject matter of the ordinance has been partially covered by the statute in such terms as to clearly indicate that a paramount state concern will not tolerate local governmental action.
Again, it does not matter how the subject matter of the ordinance is specified.
As relevant here, the statute does not partially cover the field of the prevention of graffiti in preclusive terms. Of course, it does in fact so cover the field to the extent that it defines the lawful transfer and possession of aerosol paint and the requirement that retailers post a warning against vandalism. But that is immaterial, inasmuch as the ordinance simply does not enter this area.
In no part or aspect does the statute partially cover the field of the retail display of aerosol paint and broad-tipped marker pens in preclusive terms. This is because, as stated above, it does not bear on this matter in any way whatsoever.
The third potential indicium of implied preemptive intent focuses on whether the subject matter of the ordinance has been partially covered by the
Yet again, it does not matter how the subject matter of the ordinance is specified.
Whether the statute partially covers the subject matter, however specified, proves to be of no consequence. This is because neither the prevention of graffiti nor the retail display of aerosol paint and broad-tipped marker pens is a “matter in which transient citizens of the state are peculiarly concerned, as they are or might be in regulation of traffic or registration of criminals.” (In re Hubbard, supra, 62 Cal.2d at p. 128, “overruled” on another point, Bishop v. City of San Jose, supra, 1 Cal.3d at p. 63, fn. 6.)
In view of the foregoing, we conclude that the statute does not preempt the ordinance: the latter does not conflict with the former.8
III
It follows that the superior court erred when it issued its order for a preliminary injunction and subsequently rendered its judgment for a permanent injunction and a declaration of unconstitutionality, and that the Court of Appeal erred when it affirmed that order and judgment. Both the superior court and the Court of Appeal found preemption. There is none to be found.9
Accordingly, we reverse the judgment of the Court of Appeal with directions to remand the cause to the superior court with directions to enter judgment in favor of defendant.
Panelli, J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.
LUCAS, C. J., Dissenting. -The Legislature has expressly declared that it intended
I
Prior to 1981, the rule concerning local regulation of the sale of aerosol paint was clearly one of nonpreemption. Section 594.5, added in 1974 and amended in 1979, states: “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 legislation that created section 594.1, which regulates the sale and possession of aerosol paint cans (Stats. 1981, ch. 1125, § 1, pp. 4404-4405), also included an uncodified statute setting forth the Legislature‘s intent that new section 594.1 preempt all local regulations on the subject. (Stats. 1981, ch. 1125, § 2, p. 4405.) This new preemption provision clearly altered the status quo and superseded section 594.5 on the issue of preemption, at least with regard to cans containing more than a net weight of six ounces of paint.
This conclusion follows for three reasons. First, we must assume the Legislature, when enacting the preemption provision into the 1981 act, was aware of section 594.5 (In re Michael G. (1988) 44 Cal.3d 283, 293 [Legislature is presumed to be aware of preexisting law]), and “intend[ed] to maintain a consistent body of rules.”
It thus follows that the preemption provision of the 1981 act superseded section 594.5.
The Legislature thereafter amended section 594.1 in 1988 to make its provisions generally applicable to all aerosol containers of paint, irrespective of the net weight of the contents. (Stats. 1988, ch. 925, § 1, pp. 2950-2951.) The majority opinion concludes this amendment, by not expressly including a statement of preemptive intent, necessarily eliminated the Legislature‘s previously stated intent in enacting section 594.1. It is here the majority opinion makes its fatal misstep.
“In construing . . . statutory provisions, . . . the intent of the enacting body is the paramount consideration. [Citations.] ‘We are mindful that the goal of statutory construction is ascertainment of legislative intent so that the purpose of the law may be effectuated.‘” (In re Lance W. (1985) 37 Cal.3d 873, 889.) (Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 989; see Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 764.)
To discern the Legislature‘s intent, it is appropriate to first examine the actual language of the 1988 amendment. The 1988 act begins: “SECTION 1. Section 594.1 of the Penal Code is amended to read. . . .” (Stats. 1988, ch. 925, § 1, p. 2950.) Thus, the express purpose of the 1988 amendment was to amend a particular section of the Penal Code. There is no mention in the 1988 act of the topic of preemption, or of section 2 of the 1981 act. Thus, the 1988 act does not purport to address, expressly or otherwise, the preemption provision in the 1981 act.
We need not rely solely on technical rules of statutory construction, however, because reasonable deductions drawn from the history of this statutory scheme also reveal a legislative intent to preempt. As noted above, the Legislature first stated explicitly that no state law should preempt local regulation. (§ 594.5.) Later, presumably finding that approach insufficient or undesirable in attaining its legitimate goals, the Legislature again spoke clearly, explicitly stating a rule of preemption in the field of aerosol paint regulation. (Stats. 1981, ch. 1125, § 2, p. 4405.) Given this history, it is unreasonable to conclude the Legislature, having expressly set forth its motivating intent justifying first section 594.5, and then section 594.1, nevertheless impliedly abandoned its basic intent by making a minor statutory amendment in 1988. Instead, the more reasonable conclusion is that the preemption provision of the 1981 act was unaffected by the 1988 amendment of section 594.1.
The majority opinion‘s grudging view of the efficacy of the 1981 preemption provision is inappropriate for another reason. Unlike the more common situation in which courts must attempt to divine from extrinsic sources the legislative intent concerning a particular statute, “where the main purpose of the statute is expressed[,] the courts will construe it so as to effectuate that purpose by reading into it what is necessary or incident to the accomplishment of the object sought.” (People v. Melton (1988) 206 Cal.App.3d 580, 592, italics added; see Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 810; Rushing v. Powell (1976) 61 Cal.App.3d 597, 604.) Here, we have an express statement of the Legislature‘s intent in this case to preempt local regulation. Thus, courts should interpret that statement generously and defer to such legislative judgment, viewing the legitimacy of local regulation of aerosol paint with a more critical eye so as to effectuate the clear intention of the Legislature.
II
Concluding that the 1981 preemption provision survived the 1988 amendment to section 594.1, however, does not end the inquiry. Because the 1981
As noted above, the 1981 preemption provision would preempt “all local government regulations relating to sales and possession of aerosol containers of paint larger than six ounces . . . .” (Stats. 1981, ch. 1125, § 2, p. 4405.) Los Angeles Municipal Code section 47.11, requires retailers to display aerosol paint containers in such a way that customers may view the merchandise, but may not gain access to it without the assistance of an employee of the retailer. (See maj. opn., ante, at p. 901, fn. 4.) As the majority opinion explains, local officials believed these additional regulations were necessary because the graffiti problem was continuing unabated in Los Angeles, and thus “supplemental local deterrents to the availability for use of aerosol containers of paint . . . are needed . . . .” (See, ante, at pp. 901-902 [quoting the preamble to the local ordinance].) It is beyond question that these “supplemental local deterrents” relate to “possession” of cans of spray paint.
To the extent the local ordinance affects paint canisters of more than six ounces, it clearly “relat[es] to sales and possession of aerosol containers of paint . . . .” It follows that Los Angeles Municipal Code section 47.11 is preempted by section 594.1.
III
In sum, I would uphold the Legislature‘s clear and explicit intent to preempt local regulations relating to the sales and possession of aerosol paint containers, and conclude that Los Angeles Municipal Code section 47.11 is preempted by state law. Of course, the Legislature remains free to modify section 594.1 to further clarify whether it intends to permit local regulation such as Los Angeles Municipal Code section 47.11. Because the majority opinion finds the local ordinance is not preempted, however, I respectfully dissent.
Notes
“For purposes of this subdivision, ‘bona fide evidence of majority and identity’ is any document evidencing the age and identity of an individual which has been issued by a federal, state, or local governmental entity, and includes, but is not limited to, a motor vehicle
“This subdivision shall not apply to the furnishing of six ounces or less of an aerosol container of paint to a minor for the minor‘s use or possession under the supervision of the minor‘s parent, guardian, instructor, or employer.
“(b) It shall be unlawful for any person under the age of 18 years to purchase an aerosol container of paint that is capable of defacing property.
“(c) Every retailer selling or offering for sale in this state aerosol containers of paint capable of defacing property shall post in a conspicuous place a sign in letters at least three-eighths of an inch high stating: ‘Any person who maliciously defaces real or personal property with paint is guilty of vandalism which is punishable by a fine, imprisonment, or both.’
“(d) It is unlawful for any person to carry on his or her person and in plain view to the public an aerosol container of paint while in any posted public facility, park, playground, swimming pool, beach or recreational area, other than a highway, street, alley or way, unless he or she has first received valid authorization from the governmental entity which has jurisdiction over the public area.
“As used in this subdivision ‘posted’ means a sign placed in a reasonable location or locations stating it is a misdemeanor to possess a spray can of paint in such public facility, park, playground, swimming pool, beach or recreational area without valid authorization.
“(e) It is unlawful for any person under the age of 18 years to possess an aerosol container of paint for the purpose of defacing property while on any public highway, street, alley, or way, or other public place, regardless of whether that person is or is not in any automobile, vehicle, or other conveyance.
“(f) Violation of any provision of this section is a misdemeanor.”
We decline plaintiffs’ request. As they themselves recognize, the assemblyman‘s commendation letter “may not be used to construe the statute. . . .” (People v. Overstreet (1986) 42 Cal.3d 891, 900.) But neither may it be employed to establish the measure‘s history. “Ordinarily“--and this is an ordinary case--“a legislator‘s statements as to his motives or understandings“-such as those of the assemblyman---“are not admissible.” (Ibid.)
We note in passing that plaintiffs made similar requests to the superior court and the Court of Appeal. The former impliedly denied the application. The latter appears to have done so as well.
Even if we were to judicially notice the assemblyman‘s commendation letter, our analysis would not be affected. (See fn. 6, post.)
We note in passing that during the pendency of this action, Senate Bill No. 1642, 1991-1992 Regular Session, was introduced. It would have amended
In their briefs, defendant and amici curiae (consisting of 62 California cities) argue that the preemption declaration of the 1981 act adding
For their part, plaintiffs argue that the preemption declaration of the 1981 act did not purport to amend any statute and therefore did not come within the ambit of the constitutional requirement; rather, the declaration conflicted with, and thereby impliedly repealed,
The argument of defendant and amici curiae fails for the reason stated by plaintiffs. The preemption declaration of the 1981 act simply did not purport to amend any statute and therefore did not come within the ambit of the constitutional requirement.
The argument of plaintiffs also fails. The preemption declaration of the 1981 act did not conflict with
Consequently, we are of the view that