Sherwin-Williams Co. v. City of Los Angeles

LUCAS, C. J., Dissenting.

The Legislature has expressly declared that it intended Penal Code section 594.1 (all further statutory references are to this code unless otherwise indicated) to 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.) The majority opinion concludes this uncodified statute does not preempt Los Angeles Municipal Code section 47.11, which purports to regulate the display for sale of aerosol paint containers in Los Angeles County. Because I believe the majority’s position does not give adequate weight to the Legislature’s explicit intent to preempt local regulations, I respectfully dissent.

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 This new preemption provision clearly altered the status quo and superseded section 594.5 on the issue of preemption, at least with regard to cans containing more than a net weight of six ounces of paint.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 [243 Cal.Rptr. 224, 747 P.2d 1152] [Legislature is presumed to be aware of preexisting law]), and “intend[ed] to maintain a consistent body of rules.” *908(Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7 [128 Cal.Rptr. 673, 547 P.2d 449].) Second, we can safely assume that the Legislature intended the 1981 act to supersede section 594.5 because “later enacted statutes ordinarily control over previously enacted statutes.” (In re Michael G., supra, at p. 293.) Third, section 594.5 is more general than the preemption provision of the 1981 act, which speaks in terms of “sales and possession” of containers of a certain weight. It is a “general principle of statutory construction that a specific provision relating to a particular subject prevails over a general provision on that subject.” (Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575, 587 [262 Cal.Rptr. 46, 778 P.2d 174]; Bailey v. Superior Court (1977) 19 Cal.3d 970, 976-977, fn. 8 [140 Cal.Rptr. 669, 568 P.2d 394]1 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 [210 Cal.Rptr. 631, 694 P.2d 744].)” (Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 989 [9 Cal.Rptr.2d 102, 831 P.2d 327]; see Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 764 [274 Cal.Rptr. 787, 799 P.2d 1220].)

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.

*909Moreover, it is both unreasonable and contrary to well-established canons of statutory construction to conclude that the Legislature, by not mentioning the preemption provision in the 1988 amending legislation, intended to repeal the provision. “Accepted principles of statutory construction disfavor repeal by implication . . . .” (People v. King (1978) 22 Cal.3d 12, 23 [148 Cal.Rptr. 409, 582 P.2d 1000]; see Fuentes v. Workers’ Comp. Appeals Bd., supra, 16 Cal.3d at p. 7.)

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 [253 Cal.Rptr. 661], italics added; see Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 810 [151 P.2d 505, 157 A.L.R. 324]; Rushing v. Powell (1976) 61 Cal.App.3d 597, 604 [130 Cal.Rptr. 110].) 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 *910preemption provision does not preempt every conceivable local regulation, we must still decide whether Los Angeles Municipal Code section 47.11, falls within the scope of the preemption provision. Unlike the majority opinion, I conclude the local law is preempted.

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 grafitti 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.

Ill

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.

Moreover, it is not significant that the preemption provision of the 1981 act was uncodified, whereas the Legislature codified section 594.5. “The codes of this state . . . have no higher sanctity than any other statute regularly passed by the [Legislature.” (County of Los Angeles v. Payne (1937) 8 Cal.2d 563, 574 [66 P.2d 658]; see Crespin v. Kizer (1990) 226 Cal.App.3d 498, 510, fn. 8 [276 Cal.Rptr. 571].)