Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL OF TEXAS December 16, 1988 Robert Bernstein, M.D., F.A.C.P. Opinion No. JM-994 Commissioner Texas Department of Health Re: Preemption by Texas 1100 Nest 49th Street Department of Health of Austin, Texas 78756-3199 local ordinances regulat- ing the sale of abusable glues and aerosol paints (RQ-1480) Dear Dr. Bernstein: You ask: Does the Texas Department of Health's new authority to regulate the sale of abusable glues and aerosol paints under Article 4476-15d preempt local ordinances from controlling or prohibiting accessibility to abusable glues and aerosol paints by business patrons without assistance from business personnel? Prior to its amendment by the 70th Legislature, subsec- tion (f)(2) of section 4.13 of the Texas Controlled Sub- stances Act, V.T.C.S., article 4476-15, made it an offense if a person knowingly or intentionally display[ed] abusable glue or aerosol paint in a'business establishment in a manner that makes the abusable glue or aerosol paint accessible to patrons of the business without assistance of personnel of the business. House Bill 173 of the 70th Legislature deleted this provision. Acts 1987, 70th Leg., ch. 753. The same bill added inter alia, provisions to V.T.C.S. article 4476-13a regarding offenses in connection with l'inhalant parapher- nalia"; provisions to article 4476-15 regarding offenses in connection with delivery of abusable glue or aerosol paint to minors; reguirements to article 4476-15 that businesses selling such substances display conspicuous signs stating that it is unlawful to sell or deliver such substances to a p. 5084 Robert Bernstein, M.D., F.A.C.P. - Page 2 (JM-994) minor, to abuse such substances, or to use or to possess with intent to use inhalant paraphernalia, and stating penalties for such offenses. House Bill 173 also added article 4476-15d, providing for the issuance of permits by the Department of Health to sellers of abusable glues and aerosol paints. Your request asks whether local ordinances which regulate accessibility to abusable glues and aerosol paints in business establishments are preempted in light of the provision by article 4476-15d "for the entry by the State into this field of legislation." We have not been provided with the texts of any such existing or proposed ordinances. Also, you have not speci- fied the types of municipalities which have adopted or propose to adopt such ordinances. Accordingly, we can offer only general guidelines with respect to the preemption issue you present, and we will not address, apart from the preemp- tion issue, issues as to the scope of particular type municipalities' police power under state law. A city is preempted from regulating in a field if the city's regulation is expressly prohibited, if the legisla- ture intended state law to exclusively occupy that field, or if the city regulation conflicts with state law. Attorney General Opinions JM-790, JM-619 (1987); JM-226 (1984); H-1071 (1977). We find no express prohibition in the Controlled Substances Act or elsewhere in state law on municipal regulation of abusable glues and aerosol paints. Section 1.08 of the Penal Code does explicitly prohibit the enforcement of local ordinances which make "any conduct covered by [the Penal Code] an offense." That prohibition is extended to conduct made offenses by other state laws, such as the Controlled Substances Act, by Penal Code section l.O3(b.). See Attorney General Opinion MW-291 (1981). The conduct of displaying abusable glues and aerosol paints is no longer covered by, or made an offense by state law, since the repeal of subsection (f)(2) of section 4.13 of the Con- trolled Substances Act by House Bill 173. Thus, we find no express prohibition in the Penal Code or elsewhere in state law of local ordinances regulating accessibility to abusable glues and aerosol paints. Nor do we discern a legislative intent to exclusively occupy this field. The assertion of police power by the p. 5085 Robert Bernstein, M.D., F.A.C.P. - Page 3 (JM-994) state in a field does not necessarily indicate a legislative intent to preclude a city from asserting by local ordinance its police power in the same field, so long as the local ordinance is not in conflict with the state provisions. See Citv of Brookside Villaue v. Comeau 633 S.W.~2d 790 (Tex. 1982); cert. denied 459 U.S. 1087 (1682) which noted: The entry of the state into a field of legislation, however, does not automatically preempt that field from city regulation; local regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable. See also, Attorney General Opinion MW-291 (1981). State law currently requires that manufactured, deliv- ered, or possessed abusable glues and aerosol paints contain additives to discourage abuse as designated by rule of the Department of Health: criminalizes the knowing, intentional, or reckless delivery of these abusable substances to minors; criminalizes the knowing or intentional abuse of such substances as well as the knowing and intentional use of "inhalant paraphernalia" to abuse such substances; and requires businesses selling such substances to post informa- tional signs containing prescribed warnings. V.T.C.S. arts. 4476-13a and 4476-15, S 4.13. Also, article 4476-1561, added by H.B. 173,'provides for the issuance of permits by the Department of Health for the sale of abusable glues and aerosol paints. YOU suggest in your request that these latter provisions might have a preemptive effect vis a vis local ordinances regulating accessibility to such substances. The provisions of article 4476-15d require the department to issue permits to "eligi- ble sellers." But the eligibility requirements are simply that the seller has obtained a valid sales tax permit and has applied for, and remitted the fee for, the permit. The department is authorized to adopt rules "as necessary to administer [the] article." The department's rule-making power does not extend to regulating the manner in which such substances are sold or to adding eligibility requirements for permits beyond those in the statute. &j8 Attorney General Opinion JM-206 (1984). Article 4476-15d, together with the other statutory provisions cited above, does not appear to provide a comprehensive regulatory scheme such that we could infer a legislative intent that state law exclusively occupy the field of regulation of conduct in connection with abusable glues and aerosol paints. p. 5086 Robert Bernstein, M.D., F.A.C.P. - Page 4 (JM-994) Brookside Vill8g.8 sunra: Attorney General Opinion MN-291 (1981). See al& Attorney General Opinion JM-790 (1987) (finding a legislative intent in the provisions of the Property Code to exclusively occupy the field. of landlord-tenants rights, thus preempting local ordinance- making power in that field). We also note specifically that we find no Texas author- ity for the proposition that the repeal of a state statutory provision, here the provision formerly in subsection (f)(2), section 4.13 of article 4476-15, indicates that the legisla- ture intended to reserve the field previously addressed by the repealed provision from the operation of local ordi- nances. Nor do we find any necessary conflict between such local ordinances and state law. "A statute and an ordinance should not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached." Johnson v. Citv of Dallas, 702 S.W.Zd 291 (Tex. App. - Dallas 1985, writ ref'd n.r.e., ). See also Citv of Houston v. Reves 527 S.W.2d 489 (Tex. Civ. App. - Houston [lst Dist.] 1975: writ ref'd n.r.e.). So long as actual -- provisions of local ordinances do not have the effect of prohibiting or unreasonably restricting the sales of abus- able glues and .aerosol paints, which sales are clearly permitted under state law, we believe such local ordinances can operate harmoniously with the state law provisions in this field and with Department of Health'rules adopted under the authority of such provisions. Accordingly, we conclude that local ordinances re- stricting accessibility to abusable glues and aerosol paints by business patrons without assistance from business person- nel are not per se preempted by the provisions of article 4476-15d for the entry of the state into this field. The viability of particular local ordinances would depend, of course, on the particular provisions of such ordinances which are not before us in connection with this request. SUMMARY Local ordinances restricting accessibil- ity to abusable glues and aerosol paints by business patrons without assistance from business personnel are not per se preempted by the provisions of article 4476-15d for the entry of the state into this field. p. 5087 Robert Bernstein, M.D., F.A.C.P. - Page 5 (JM-994) JIM MATTOX Attorney General of Texas MARYKELLER First Assistant Attorney General LOU MCCREARY Executive Assistant Attorney General JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by William Walker Assistant Attorney General p. 5088