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Prime Gas, Inc. v. City of Sacramento

May 13, 2010

PRIME GAS, INC., PLAINTIFF AND APPELLANT,
v.
CITY OF SACRAMENTO, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Sacramento County, Michael P. Kenny, Judge. Affirmed. (Super. Ct. No. 34-2008-80000070-CU-WM-GDS).

The opinion of the court was delivered by: Butz, J.

CERTIFIED FOR PUBLICATION

In this appeal we conclude that a local ordinance that prohibits the sale of tobacco products to minors through the sanction of suspending or revoking the retailer's local license to sell tobacco, is not preempted by state law which also prohibits tobacco sales to minors. Consequently, we shall affirm the trial court's judgment finding no preemption.

FACTUAL AND PROCEDURAL BACKGROUND

The City of Sacramento (City) has adopted an ordinance (the Ordinance) that requires local tobacco retailers to be licensed by City. (Sac. City Code, §á5.138.010 et seq.; see id., §á5.138.040.)

The stated purpose of the Ordinance "is to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those that prohibit or discourage the sale or distribution of tobacco products to minorsá.á.á.á." (Sac. City Code, §á5.138.020.)

Under the Ordinance, "[i]t shall be a violation of a license for a licensee or his or her agents or employees to violate any local, state, or federal tobacco-related law." (Sac. City Code, §á5.138.100.)

The Ordinance specifies that, "within any five-year period," the license shall be suspended for 30 days upon a finding by the city manager of a first violation, for 90 days upon a second violation, for one year upon a third violation, and revoked upon a fourth violation. (Sac. City Code, §á5.138.110, subd. A.1.-4.)

A license suspension or revocation is subject to review pursuant to an evidentiary-based administrative hearing before a hearing examiner whose decision "shall be in writing and shall contain findings of fact and a determination of the issues presented." (Sac. City Code, §á5.138.150, subd. A.; see also id., §§á5.138.110-5.138.150.) The hearing examiner's decision is subject to judicial review pursuant to a writ of administrative mandate. (Sac. City Code, §á5.138.150; see Code Civ. Proc., §§á1094.5, 1094.6.) Any suspension or revocation of a license is stayed during the pendency of the administrative hearing process, if the hearing request has been properly and timely filed. (Sac. City Code, §á5.138.120, subd. G.)

That brings us to the specific license violation at issue here. Appellant is Prime Gas, Inc. (Prime). Prime is a retailer that sells tobacco products, among other items. Prime obtained a Tobacco Retailer License (local license) from City.

City alleged that Prime violated the Ordinance by selling cigarettes to a decoy minor on April 26, 2008, while failing to ask the minor's age or to check the minor's identification, in violation of Penal Code section 308 (which prohibits cigarette sales to minors).

Following the evidentiary-based administrative hearing, the hearing examiner upheld City's decision to suspend Prime's local license for 30 days for this first violation.

Prime then petitioned for a writ of administrative mandate in the trial court. Prime contended that the Ordinance was preempted by state law and that the administrative hearing violated due process. The trial court disagreed on both points and denied the petition.

This appeal ensued.

DISCUSSION

On appeal, Prime contends (1) the Ordinance is preempted by state law, and (2) hearsay aspects of the administrative hearing violated due process. We disagree on both counts.

I. State Law Does Not Preempt the Ordinance

The legal principles governing state preemption of local law were recently summarized by our state Supreme Court in O'Connell v. City of Stockton (2007) 41áCal.4th 1061 (O'Connell). O'Connell stated:

"'Under article XI, section 7 of the California Constitution, "[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 [state] laws." [¶] "If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void." [Citations.] [¶] "A conflict exists if the local legislation '"duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication."'" [Citations.]' [Citations.] We explain the italicized terms below.

"A local ordinance duplicates state law when it is 'coextensive' with state law. (Sherwin-Williams [(1993)] 4áCal.4th [893,] 897-898 [(Sherwin-Williams)], citing In re Portnoy (1942) 21áCal.2d 237, 240 [as 'finding "duplication" where local legislation ...


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