In Prime Gas, Inc. v. City of Sacramento, (— Cal.Rptr.3d —-, Cal.App. 3 Dist., May 13, 2010), a California Court of Appeal considered whether a city ordinance that suspended or revoked a retailer’s license to sell tobacco, if the retailer was found selling tobacco to minors, was preempted by state laws that prohibit tobacco sales to minors. The court ruled that because the city ordinance neither duplicated nor contradicted state law, nor entered an area fully occupied by state law, it was not preempted.
Facts
The City of Sacramento (“City”) enacted an ordinance that requires sellers of tobacco to be licensed by the City. The ordinance further provided that a license would be suspended or revoked if the retailer sold tobacco to minors.
Prime Gas, Inc. (“Prime Gas”) is a retailer that obtained a license to sell tobacco in the City. In 2008, the City’s police department conducted a sting operation, using minors as decoys, to deter retailers from selling tobacco to minors. As a result, Prime Gas was found selling tobacco to a decoy minor without asking for identification or proof of age. Following an administrative hearing, the City suspended Prime Gas’s license for 30 days.
Prime Gas filed suit seeking to have the suspension of its license overturned contending that the ordinance was void because it was preempted by state law. The trial court denied Prime Gas’s petition, and Prime Gas appealed.
Decision
The state constitution declares that a local ordinance conflicts with state law and is void if it “duplicates, contradicts, or enters an area fully occupied by general law,” the court noted.
The court then reviewed state laws that restrict tobacco sales to minors. Penal Code Section 308 provides criminal penalties for providing tobacco to anyone under 18 years of age. The Stop Tobacco Access to Kids Enforcement Act (“STAKE”) allows local governments to seek civil penalties for providing tobacco to minors. The State Licensing Act of 2003 (“Licensing Act”) authorizes the State Board of Equalization to impose fines on retailers who sell tobacco to minors.
Section 308’s criminal prohibition of tobacco sales to minors does not preempt the ordinance because the ordinance does not impose criminal penalties. Rather, the City’s ordinance provides for the suspension of a business license, and thus does not conflict with the state’s criminal law. Further, STAKE recognizes that a city or county may be an “enforcing agency,” and the local government may play a significant role in regulating tobacco sales, the court added.
Finally, the Licensing Act explicitly states that it does not preempt local regulations of tobacco sales: “Nothing in this [Act] preempts or supersedes any local tobacco control law other than those related to the collection of state taxes. Local licensing laws may provide for the suspension or revocation of the local license for any violation of a state tobacco control law.”
The court found the City’s ordinance neither duplicated, contradicted, nor entered an area fully occupied by state law. It was therefore not preempted and the trial court’s ruling was affirmed.
Questions
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