Holt's Cigar Co., Inc. v. City of Philadelphia

952 A.2d 1199, 2008 Pa. Commw. LEXIS 308, 2008 WL 2486155

• Court: Commonwealth Court of Pennsylvania
• Decided: June 23, 2008
• Docket: 588 C.D. 2007
• Status: Published

Opinions

OPINION BY

Judge LEAVITT.¹

The City of Philadelphia and Robert D. Solvibile, Acting Commissioner of the City’s Department of Licenses and Inspections (collectively, the City), appeal an order of the Court of Common Pleas of Philadelphia County (trial court) invalidating a City ordinance that prohibits the sale of certain tobacco products that can be used as drug paraphernalia to ingest marijuana and other illegal drugs. The trial court found that the City’s ordinance was preempted by the drug paraphernalia provisions of The Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act).² Accordingly, the trial court granted summary judgment to Holt’s Cigar Company, Inc., Black Cat Cigar Company, Altadis USA, Inc., Swisher International, Inc., John Middleton, Inc., Cigar Association of America, Inc. and Pennsylvania Distributors Association, Inc. (collectively, Holt’s Cigar). Concluding that the trial court erred in holding all provisions of the City’s ordinance to be preempted, we affirm in part and reverse in part.

On January 23, 2007, Philadelphia City Council amended the Philadelphia Code with the enactment of Ordinance No. 060345-AAA (Ordinance). The Ordinance was passed in response to the practice of drug users to replace the tobacco in cigarettes and cigars with marijuana and other illegal drugs. The Ordinance consists of two provisions. The first provision, entitled “Cigarettes and Tobacco Products,” makes'it unlawful for a retail business to sell a tobacco product in a way that makes it likely the product will be used to inhale controlled substances,³ as, for example, the sale of a single cigarette. The second provision, entitled “Drug Paraphernalia, Blunt Cigars and Similar Items,” prohibits retail businesses from selling certain tobacco drug paraphernalia,⁴ such as “blunts.” A violation of either provision of the Ordinance is punishable by a civil penalty of $1,900, for each violation committed during calendar year 2008, and by a civil penalty of $2,000 for each violation committed thereafter. In addition, a retail business may also be sanctioned by a revocation of its business privilege license.⁵

On January 30, 2007, Holt’s Cigar filed a complaint seeking declaratory and injunc-tive relief. Holt’s Cigar asserted that because the Ordinance effected a per se ban on the sale of certain products, it was preempted by the Controlled Substance Act, which requires a finding of intent to use an item to ingest illegal drugs before that item can be found to be drug paraphernalia.⁶ Holt’s Cigar challenged the entire Ordinance as preempted by the Controlled Substance Act.⁷

On March 9, 2007, the trial court held that the Ordinance was preempted and unenforceable.⁸ The trial court lauded the goal of the Ordinance but concluded that it could not be upheld because it

converts a specific intent offense into a strict liability one, subjecting legitimate businesses selling legal dual-use products to the arbitrary enforcement of the City of Philadelphia Department of Licenses and Inspections.

Trial Court Opinion, dated March 9, 2007, at 9. The trial court concluded that strict liability was inconsistent with the scienter requirement of the Controlled Substance Act and, thus, preempted. The present appeal followed.⁹

Before this Court, the City argues that the trial court erred. It asserts that the Ordinance was the result of an appropriate exercise of the City’s police power that is not prohibited by the Controlled Substance Act. The City also argues that, even assuming that a showing of scienter is required, part of the Ordinance does contain a scienter requirement and, therefore, should not have been invalidated.

We begin with a review of the standards for determining whether a local ordinance is preempted by a state statute. This Court applies the following five-part test to determine whether an ordinance has been preempted:

(1) Does the ordinance conflict with the state law, either because of conflicting policies or operational effect, that is, does the ordinance forbid what the legislature has permitted?

(2) Was the state law intended expressly or impliedly to be exclusive in the field?

(3) Does the subject matter reflect a need for uniformity?

(4) Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?

(5) Does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the legislature?

Liverpool Township v. Stephens, 900 A.2d 1030, 1033 (Pa.Cmwlth.2006). If the answer to one of these questions is in the affirmative, then the local ordinance will be found preempted by the state statute. Id. As reflected in this five-part test, state preemption takes on three forms, which are commonly known as “express preemption,” “field preemption,” and “conflict preemption.” See Nutter v. Dougherty, 595 Pa. 340, 938 A.2d 401, 404 (2007).

The preemption analysis with respect to a home rule municipality, such as the City of Philadelphia, is somewhat modified. In Nutter, our Supreme Court explained that a home rule municipality’s exercise of authority should not be lightly intruded upon. Id. at 361-62, 938 A.2d at 414. Accordingly, ambiguities about the scope of the municipality’s authority should be resolved in the municipality’s favor. Id. at 355-57, 938 A.2d at 411. However, the Pennsylvania Supreme Court also observed that a home rule municipality’s authority can be limited by its own home rule charter, by the Pennsylvania Constitution, and by the General Assembly.¹⁰ Id. Stated otherwise, home rule municipalities do not enjoy a general power to legislate in a way that contradicts a state statute.

In this case, the City argues that the Ordinance does not conflict with the Controlled Substance Act but, rather, is consistent with Section 41.1 of the Controlled Substance Act, which expressly authorizes local regulation. It states, in relevant part, as follows:

Nothing in this act relating to drug paraphernalia shall be deemed to supersede or invalidate any consistent local ordinance, including zoning and nuisance ordinances, relating to the possession, sale or use of drug paraphernalia.

35 P.S. § 780-141.1 (emphasis added). The City argues that the Ordinance simply expands the protections of the Controlled Substance Act without conflicting with it, and this expansion is permissible.¹¹ In short, the City believes that the Ordinance is not preempted under the Liverpool Township criteria.

We consider, first, the provisions of the Controlled Substance Act that were found by the trial court to supersede the Ordinance. Section 13(a)(33) prohibits the knowing manufacture or delivery of drug paraphernalia items; it states as follows:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:

(33) The delivery of, possession with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of this act.

35 P.S. § 780-113(a)(33) (emphasis added). The Act generally defines “drug paraphernalia,” to mean “products and materials ... which are used ... [in] manufacturing, ... ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act.” Section 2 of the Controlled Substance Act, 35 P.S. § 780-102. Contained in the Section 2 definition of “drug paraphernalia” is a long list of items ranging from scales and balances to cocaine spoons, roach clips and bongs that constitute drug paraphernalia because they are intended for use in ingesting drugs.¹²

Because the list of items that can be used to manufacture or ingest illegal drugs is as long as the reach of human imagination, the list of drug paraphernalia items in Section 2 is not intended to be complete. Any item can be determined to be “drug paraphernalia,” and Section 2 explains how this determination should be made. It states:

In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, [1] statements by an owner or by anyone in control of the object concerning its use, [2] prior convictions, if any, of an owner, or of anyone in control of the object, under any State or Federal law relating to any controlled substance, [3] the proximity of the object, in time and space, to a direct violation of this act, [4] the proximity of the object to controlled substances, [5] the existence of any residue of controlled substances on the object, [6] direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he knows, or should reasonably know, intend to use the object to facilitate a violation of this act, [7] the innocence of an owner or of anyone in control of the object, as a direct violation of this act should not prevent a finding that the object is intended for use or designed for use as drug paraphernalia, [8] instructions, oral or written, provided with the object concerning its use, [9] descriptive materials accompanying the object which explain or depict its use, [10] national and local advertising concerning its use, [11] the manner in which the object is displayed for sale, [12] whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products, [13] direct or circumstantial evidence of the ratio of sales of the objects to the total sales of the business enterprise, [14] the existence and scope of legitimate uses for the object in the community, and [15] expert testimony concerning its use.

35 P.S. § 780-102 (emphasis added). In short, whether specifically listed in Section 2 or not, an item is determined unlawful drug paraphernalia only after the court or other authority applies the above quoted, 15-part test.¹³

We turn, next, to the Ordinance found by the trial court to be preempted by Section 13(a)(33) of the Controlled Substance Act. Section 9-622(5)(a) of the Ordinance forbids the retail sale of certain tobacco products that could be used to ingest illegal drugs. It states, in relevant part, as follows:

(5) Retail Businesses

(a) It shall be unlawful for any retail business to sell or furnish by gift, purchase, or other means any of the following:

(.1) Any cigarette, cigar, tiparillo, cigarillo or other tobacco product, singly or in packages of fewer than three or other than in the package, box, carton or other container provided by the manufacturer, importer or packager which bears a health warning required by federal law, except that hotels, restaurants that seat at least 25 patrons, and specialty tobacco stores (as defined in Section 9-622(4)) may sell in small quantities cigars for which the retail price is at least one dollar ($1) per cigar;

(.4) any flavored tobacco item including any flavored cigarette, cigar, tiparillo, cigarillo or other tobacco product, except that the term “tobacco product” shall not include a package of loose tobacco, snuff, chewing tobacco, dipping tobacco, or pipe tobacco, where the package is that provided by the manufacturer, importer or packager which bears a health warning required by federal law, and provided that this subsection (.4) shall not apply to cigarettes in packages of 20 or more included in the directory published pursuant to Section 301 of the Pennsylvania Tobacco Product Manufacturer Directory Act, 35 P.S. Section 5702.301.

Philadelphia Code §§ 9 — 622(5)(a)(. 1), (.4) (emphasis added). Thus, under Section 9-622(5)(a)(.l), it is unlawful for any retail business to sell tobacco products, singly or in small quantities, although certain hotels and restaurants are exempted. Under Section 9-622(5)(a)(.4), it is unlawful for any retail business to sell a flavored tobacco product, although chewing or pipe tobacco products and cigarettes sold in quantities of twenty or more are exempt from this ban.

It is not clear what retail businesses and products are left after the exemptions in Section 9-622(5)(a) are applied. Nevertheless, the non-exempt retail business can be held liable even if it does not know that the sale of a single cigarette or flavored cigar will result in the buyer using the tobacco product to inhale illegal drugs. By contrast, the Controlled Substance Act exempts persons from liability who do not know, or cannot reasonably know, that the tobacco item being sold would be used by the buyer to ingest illegal drugs. Because Section 9 — 622(5)(a)(.l) and Section 9-622(5)(a)(.4) of the Ordinance prohibit the sale of a single cigarette or flavored cigar even if the retail business proprietor or employee has no idea that the item will be used to ingest illegal drugs, these provisions are preempted. The strict liability standard in the Ordinance conflicts with the scienter requirement in the Controlled Substance Act.

Next, we consider Section 9-629(l)(a) of the Ordinance, which prohibits the sale of certain tobacco drug paraphernalia known as “blunts” by anyone. It states, in relevant part, as follows:

(1) It shall be unlawful for any person, including any retail business, to sell or offer for sale any of the following:

(a) Any item that constitutes drug paraphernalia, as that term is defined in the Pennsylvania Controlled Substances, Drug, Device and Cosmetic Act, 35 P.S. § 780-102, where the seller knows, or under the circumstances reasonably should know, that it would be used to convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of that Act, especially any of the following:

(.2) Objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish or hashish oil into the human body, such as:

(.a) Cigars sold singly, flavored cigars known as “blunts,” unflavored “blunts,” flavored and unflavored blunt wraps, cigarette rolling papers, cigarillos, and tiparillos;

The Philadelphia Code § 9-629(l)(a) (emphasis added). In short, Section 9-629(l)(a) prohibits the sale of drug paraphernalia, especially blunts, if the seller knows or should know, that the blunt will be used to ingest drugs.

Section 9-629(1) of the Ordinance simply expands the Section 2 list of discrete items identified by the legislature as “drug paraphernalia” to include certain tobacco products as additional items. It does so by incorporating Section 2 of the Controlled Substance Act into the Ordinance, which itself requires that the person charged with selling tobacco products as drug paraphernalia understand its intended use is to ingest illegal drugs. Incorporating Section 2 is enough to require scienter, but Section 9-629(1) then repeats the requirement that “the seller knows” how the “blunt” will be used. Thus, Section 9-629(1) of the Ordinance twice states a scienter requirement. Because Section 9-629(1) is local legislation “consistent” with the Controlled Substance Act, it is expressly authorized and saved from preemption by Section 41.1 of the Controlled Substance Act, 35 P.S. § 780-141.1.

Finally, we examine Section 9-629(2) of the Ordinance, which forbids the sale of the proscribed tobacco products within 500 feet of a school or church. It states as follows:

(2) It shall be unlawful for any person, including any retail business, to sell or offer for sale within five hundred (500) feet of a school, recreation center, day care center, church, or community center any of the items identified in either Section 9-622(5) or Section 9-629(1), regardless of the intent as to use of the item.

The Philadelphia Code § 9-629(2) (emphasis added). Thus, Section 9-629(2) sets up an absolute 500-foot barrier between the sale of a single or flavored cigarette (Section 9-622(5)) or a blunt (Section 9-629(1)) and a school, church or day care center. We believe Section 9-629(2) is saved from preemption by Section 41.1 of the Controlled Substance Act, which states that it is not intended to supersede “any consistent local ordinance, including zoning and nuisance ordinances....” 35 P.S. § 780-141.1.

First, zoning legislation will not be found preempted by a state regulatory statute unless that statute expressly states an intention to preempt zoning. See, e.g., Greene Township v. Kuhl, 32 Pa.Cmwlth. 592, 379 A.2d 1383, 1385 (1977) (stating that this Court must follow the mandate of a zoning ordinance in the absence of a clear intent of the legislature to override a local zoning ordinance). By contrast, here, the General Assembly has stated an express intent to save “zoning and nuisance ordinances.” Section 41.1 of the Controlled Substance Act, 35 P.S. § 780-141.1. There can be little doubt that Section 9-629(2) is a zoning or nuisance ordinance. In Municipality of Monroeville v. Chambers Development Corp., 88 Pa.Cmwlth. 603, 491 A.2d 307, 310 (1985), this Court explained that an ordinance requiring a “buffer zone around a proposed hazardous waste disposal facility” was a zoning ordinance.¹⁴ Likewise, Section 9-629(2) seeks to place a buffer zone between those attending a church service, a school day or a community center event from having to observe a blunt sale, whether taking place inside a store or on the sidewalk.¹⁵ The main purpose of Section 9-629(2) is to create a buffer, not to restrict drug use; stated otherwise, it governs the placement of certain tobacco sales. This Court has also explained that zoning concerns the placement of an activity as opposed to the conduct of that activity. Liverpool, 900 A.2d at 1036.

Second, because Section 9-629(2) is either a zoning or nuisance, ordinance, or both, it is a type of consistent ordinance saved by Section 41.1 of the Controlled Substance Act. The General Assembly has instructed that the Controlled Substance Act is not intended “to supersede or invalidate any consistent local ordinance, including zoning and nuisance ordinances ...” Section 41.1 of the Controlled Substance Act, 35 P.S. 780-141.1. The legislature has identified zoning and nuisance ordinances as types of “consistent” ordinances allowed; otherwise, the reference to zoning and nuisance ordinances would be redundant. Indeed, a zoning ordinance that also indirectly limits the distribution of drug paraphernalia is consistent with the goal of the Controlled Substance Act.¹⁶ Finally, if there is any doubt about the meaning of Section 41.1 of the Controlled Substance Act, our Supreme Court has directed that ambiguities about the scope of a home rule municipality’s authority should be resolved in favor of the municipality. Nutter, 595 Pa. at 355-57, 938 A.2d at 411.

Section 9-629(2) does not require a showing of scienter. However, it is a type of zoning or nuisance ordinance that is expressly saved from preemption by Section 41.1 of the Controlled Substance Act.

Based on the foregoing, we affirm the trial court with respect to Sections 9-622(5)(a)(.l) and (.4) of the Ordinance, and we reverse the trial court with respect to Sections 9-629(1) and 9-629(2) of the Ordinance.

Judge McGINLEY dissents.

ORDER

AND NOW, this 23rd of June, 2008, the order of the Court of Common Pleas of Philadelphia County, dated March 9, 2007, in the above-captioned matter is AFFIRMED in part and REVERSED in part in accordance with this opinion.

1 . This case was reassigned to this author on February 12, 2008.

2 . Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101-780-144. The drag paraphernalia provisions were added by the Act of December 4, 1980, P.L. 634, 35 P.S. §§ 780-102, 780-113, 780-141.1.

3 . Sections 9-622(5)(a)(.l) and (.4) of the Ordinance, The Philadelphia Code §§ 9-622(5)(a)(.l), (.4). These sections are discussed more fully infra.

4 . Sections 9-629(1) and (2) of the Ordinance, The Philadelphia Code §§ 9-629(1), (2). These sections are discussed more fully infra.

5 . See The Philadelphia Code §§ 9-622(6)(f), 9-629(4).

6 . The six count complaint asserted the following claims: that sections 9-622(5)(a)(.l), 9-622(5)(a)(.4), and 9-629 of the Ordinance are preempted by the Controlled Substance Act; that the Ordinance is preempted by 18 Pa. C.S. § 6305 (sale of tobacco to minors) and 53 P.S. § 301 (preempting subject matter of 18 Pa.C.S. § 6305); violation of due process rights under the United States Constitution and the Pennsylvania Constitution; and both overbroad and void for vagueness in violation of the Fourteenth Amendment of the United States Constitution and Article I, Section 1 of the Pennsylvania Constitution.

7 . On March 7, 2007, the trial court enjoined the enforcement of the Ordinance for a period of 45 days beginning January 31, 2007. Thereafter, the parties stipulated to submit the case on the pleadings and certain stipulated facts and documents.

8 . Although the complaint sought relief on other grounds, the trial court did not address these additional claims because it ruled in favor of Holt’s Cigar on the basis of preemption.

9 . Our scope of review in a declaratory judgment action is limited to determining whether the trial court’s findings are supported by substantial evidence and whether the trial court committed an error of law or abuse of discretion. City of Pittsburgh v. Bachner, 912 A.2d 368, 372 n. 6 (Pa.Cmwlth.2006).

10 . In Nutter, the Pennsylvania Supreme Court affirmed this Court’s holding that a Philadelphia ordinance that limited campaign contributions to candidates for municipal office was not preempted by the Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591. The Supreme Court reasoned that the Election Code was silent on the issue of campaign contribution limits and, thus, left the field open to locally tailored restrictions such as those contained in the ordinance that are sensitive to the peculiarities of the particular municipality.

11 . In support, the City relies on cases that reflect a strong deference to home rule and police authority by permitting a municipality to add or broaden the protections of a statute. However, in those cases, none of the ordinances at issue forbid what the legislature permitted. See, e.g., Hartman v. City of Allentown, 880 A.2d 737 (Pa.Cmwlth.2005) (finding that the Pennsylvania Human Relations Act, Act of October 27, 1995, P.L. 744, as amended, 43 P.S. §§ 951-963, did not prevent the City of Allentown from adding the category of sexual orientation to the forms of discrimination prohibited under the City’s Human Relations Ordinance); Muehlieb v. City of Philadelphia, 133 Pa.Cmwlth. 133, 574 A.2d 1208 (1990) (finding that the State Dog Law, Act of December 7, 1982, P.L. 784, as amended, 3 P.S. §§ 459-101-551, allowing individuals with a private kennel license to house up to fifty dogs did not preempt the City of Philadelphia from limiting the number of dogs that one may keep at a residential dwelling to twelve); Department of Licenses and Inspections v. Weber, 394 Pa. 466, 147 A.2d 326 (1959) (finding that the State Beauty Culture Act, Act of May 3, 1933, P.L. 242, 63 P.S. §§ 507-527, did not preempt the City of Philadelphia from imposing additional fire and sanitary requirements in an ordinance regulating beauty parlors).

12 . Section 2 states that “drug paraphernalia” includes but is not limited to:

(1) Kits used, intended for use or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived.

(2) Kits used, intended for use or designed for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances.

(3) Isomerization devices used, intended for use or designed for use in increasing the potency of any species of plant which is a controlled substance.

(4) Testing equipment used, intended for use or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances.

(5) Scales and balances used, intended for use or designed for use in weighing or measuring controlled substances.

(6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use or designed for use in cutting controlled substances.

(7) Separation gins and sifters used, intended for use or designed for use in removing twigs and seeds from or in otherwise cleaning or refining marihuana.

(8) Blenders, bowls, containers, spoons and mixing devices used, intended for use or designed for use in compounding controlled substances.

(9) Capsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances.

(10) Containers and other objects used, intended for use or designed for use in storing or concealing controlled substances.

(11) Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injected controlled substances into the human body.

(12) Objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish or hashish oil into the human body, such as:

(i) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls.

(ii) Water pipes.

(iii) Carburetion tubes and devices.

(iv) Smoking and carburetion masks.

(v) Roach clips; meaning objects used to hold burning material such as a marihuana cigarette, that has become too small or too short to be held in the hand.

(vi) Miniature cocaine spoons and cocaine vials.

(vii) Chamber pipes.

(viii) Carburetor pipes.

(ix) Electric pipes.

(x) Air-driven pipes.

(xi) Chillums.

(xii) Bongs.

(xiii) Ice pipes or chillers.

35 P.S. § 780-102.

13 . The dissent of Judge Cohn-Jubelirer argues that "other authority" includes a municipality acting in a quasi-legislative capacity. This is not likely because the "determination” discussed at length in Section 2 is particular not general; it relates to one “object.” Accordingly, the determination to be made is a quasi-adjudicative determination or quasi-prosecutorial determination, not a quasi-legislative determination. The "other authority” could be a district magistrate, a prosecutor or a court.

14 . The dissent of Judge Friedman asserts that Section 9-629(2) must be included within the City’s zoning ordinance in order to meet the exemption in Section 41.1 of the Controlled Substance Act. It is the impact of the local legislation, not its location in the municipal code, that is determinative of whether it is a zoning or nuisance ordinance.

15 . Indeed, the City can forbid any number of lawful sales in a 500-foot zone in the interest of public health and safety concerns.

16 . It is possible that a zoning ordinance that required stores to sell blunts would be inconsistent with the Controlled Substance Act, but that is not the case before us.