Holt's Cigar Co. v. City of Philadelphia

Chief Justice CASTILLE,

dissenting.

In my view, Sections 622(5)(a)(.l), (.4), and 629(2) of the City’s January 2007 ordinance (“Ordinance”), which amended Chapter 9-600 of the Philadelphia Code, are not preempted by the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act (“Act”).1 Therefore, I respectfully dissent.

The state Act is a penal statute that, in relevant part here, imposes criminal penalties on persons who knowingly deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, as that term is defined therein. 35 P.S. §§ 780-113(a)(33) (prohibited acts); 780-113(h) (criminal penalties); 780-102 (drug paraphernalia defined).

The City Ordinance prohibits the following: Section 622(5)(a)(.l), the sale by retailers of tobacco products, like cigarettes and cigars, in quantities of three or less (“loosies”); Section 622(5)(a)(.4), the sale by retailers of flavored tobacco products, including cigarettes and cigars, but excluding loose, dipping, or pipe tobacco (“flavored tobacco”); and Section 629(2), the sale by any person of items identified in Section 622(5)(a), including loosies and flavored tobacco, and of items defined as drug paraphernalia by the Act, within five hundred (500) feet of any school, church, recreation center, and similar institutions. Ordinance §§ 622(5)(a); 629(2). All specific items described in the Ordinance possess both legal and drug paraphernalia uses; they are “dual-use items.” According to the Ordinance, the described sales of dual-use items are banned, regardless of whether the person or retailer has any knowledge that an item would be used to ingest illegal drugs. Violators of the Ordinance are subject to civil sanctions, which range from fines to revocation of a retailer’s City-issued business license. Ordinance §§ 622(6)(f); 629(4).

*169At issue in this case is the conflict preemption claim of several tobacco product retailers (“appellants”), who argue that the local Ordinance supplants and is irreconcilably inconsistent with the statewide Act. Appellants claim that the Act and the Ordinance are in direct conflict because criminal conviction pursuant to the Act requires proof of the seller’s knowledge, or scienter, that an item will be used to ingest illegal drugs, but sanction pursuant to the Ordinance is based simply on the sale of a dual-use item, without proof of knowledge. Additionally, appellants claim that the Ordinance is in conflict with the Act’s supposed purpose of protecting legitimate sellers of dual-use items because the Ordinance bans otherwise legal sales of dual-use items. Appellants submit that the Ordinance “stands to destroy the cigar industry in Philadelphia and cause substantial harms to law-abiding businesses and citizens,” in violation of protections afforded to legitimate sellers of dual-use items that they perceive in the statewide Act.

The City responds that the Act expressly addresses and invites consistent local regulation of drug paraphernalia sales. See 35 P.S. § 780-141.1 (“Nothing in this act relating to drug paraphernalia shall be deemed to supersede or invalidate any consistent local ordinance ... relating to the possession, sale or use of drug paraphernalia.”). The City counters that the state and local enactments simply address different aspects of such sales, with the Act defining what constitutes criminal conduct and the Ordinance banning only localized sales in Philadelphia of dual-use items commonly used as drug paraphernalia. According to the City, the Act and the Ordinance work together in deterring the use, manufacture, and sale of illegal drugs. Moreover, the Ordinance is tailored to a Philadelphia-specific concern that flavored cigarettes and cigars sold in small quantities promote illegal drug use because they are popular with illegal drug users and are readily available throughout the City at tobacco shops, gas stations, and convenience stores. The City also disputes appellants’ belief that the Act speaks to, or protects by implication, the economic *170interests of appellants in selling the items listed in Sections 622(5)(a)(.l), (.4), and 629(2).

The Majority sustains appellants’ position and declares the Ordinance invalid. The Majority reasons that the Act recognizes that items commonly used as drug paraphernalia also have legitimate uses, and the General Assembly chose not to prohibit or penalize persons from selling dual-use items for such legitimate purposes.2 Only persons who sell dual-use items knowing that they will be used as drug paraphernalia commit a crime under the Act. By comparison, the Majority describes the Ordinance as punishing all sales of dual-use items, regardless of the seller’s intent and essentially creating strict liability offenses. Against this background, the Majority, opting for a very narrow approach to conflict preemption, poses the question as whether the Act and the Ordinance are in conflict because the first requires mens rea while the second does not. Relying foremost on Mazzo v. Board of Pensions & Retirement, 531 Pa. 78, 611 A.2d 193 (1992) and Western Pennsylvania Restaurant Association v. City of Pittsburgh, 366 Pa. 374, 77 A.2d 616 (1951) (“Restaurant Association ”), the Majority concludes that the two enactments are in direct conflict and, consequently, that Sections 622(5)(a)(.l), (.4), and 629(2) are preempted by the Act and invalid.3 According to the Majority, the Ordinance’s lack of a scienter or mens rea element in establishing local civil penalties is inconsistent with the Act’s inclusion of such a require*171ment before state criminal liability may attach. Moreover, although conceding that the Ordinance is not an obstacle to accomplishing the primary purpose of the Act (to control the use of illegal drugs, which is a particularly pernicious problem in Philadelphia County), the Majority concludes that the Ordinance nonetheless contradicts what it discerns to be some “implied objective” of the Act to supposedly “protect” those who sell dual-use items for “legitimate” purposes. (Of course, to be candid, under the Majority’s approach, the “protection” it infers from legislative silence would encompass not just the “innocent” and the “legitimate,” but those who elect to be deliberately blind to the uses that are made of their wares, as well as those who know perfectly well what the uses are, but who take the risk that the police will not catch them; calling such uses legitimate is tautological.) According to the Majority’s reasoning from silence, “a seller of a dual-use item for legitimate purposes is protected from any penalty under the Act.” Majority Op. at 165, 10 A.3d at 914. I respectfully believe that the Majority’s approach fails to apply the governing authority in this area. Indeed, a proper appreciation and application of the prevailing law on conflict preemption leads inexorably to the conclusion that the Majority’s holding is mistaken.

I.

The doctrine of conflict preemption is well established: a local ordinance is invalid to the extent it contradicts or is inconsistent with a state statute. Mars Emergency Med. Servs., Inc. v. Twp. of Adams, 559 Pa. 309, 740 A.2d 193, 195 (1999) (“Mars EMS ”). But unless the conflict between the ordinance and the statute is irreconcilable, “the will of the municipality as expressed through [the] ordinance will be respected.” City Council v. Marcincin, 512 Pa. 1, 515 A.2d 1320, 1326 (1986) (“Marcincin ”).

Prevailing caselaw dictates that “local legislation cannot permit what a state statute ... forbids or prohibit what state enactments allow.” Huntley & Huntley, Inc. v. Borough Council, 600 Pa. 207, 964 A.2d 855, 862 (2009) (“Huntley ”). Additionally, the local enactment may “not stand as an obsta*172cle to the execution of the full purposes and objectives of the [General Assembly].” Id. at 863. But, “where the [General Assembly] has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation with subordinate power to act in the matter may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable.” Mars EMS, 740 A.2d at 195.4 To be sure, the Majority acknowledges the cases that form the basis of my analysis below; but, I believe the Majority is unsuccessful in attempting to square its conclusion with these nuanced principles.

The proper questions before the Court are whether the Act and the Ordinance are irreconcilable, and whether the Ordinance stands as an obstacle to the execution of the full purposes and objectives of the General Assembly. A careful review of our cases reveals that the challenged Ordinance provisions are not irreconcilable with the Act, nor do they interfere with the objectives of the General Assembly. Indeed, I believe that the provisions of the local enactment are in harmony with the state statute, and further the Act’s purpose and the General Assembly’s intent.

*173II. A

The first point of dispute is whether the Act and the Ordinance are in direct conflict, as appellants claim, or whether they are in harmony, as the City argues. Generally, an irreconcilable conflict exists where simultaneous compliance with both the local and state enactments is impossible. See Council 13, Am. Fed’n of State, County & Mun. Employees v. Rendell, 604 Pa. 352, 986 A.2d 63, 81 (2009) (“Council 13 ”); Mazzo, 611 A.2d at 195-97. Conversely, an ordinance that collaterally touches upon a given course of conduct regulated by a state statute, but does not confront affected persons with a choice of obeying one enactment over the other, is not directly in conflict with a state enactment. See Nutter v. Dougherty, 595 Pa. 340, 938 A.2d 401 (2007); Mars EMS, 740 A.2d 193; Marcincin, 515 A.2d 1320, Dep’t of Licenses & Inspections v. Weber, 394 Pa. 466, 147 A.2d 326 (1959) (“Weber ”). Among relevant types of ordinances that this Court has found valid against a conflict preemption challenge are enactments that added locally-tailored conditions to broad state pronouncements on a given course of conduct, and ordinances that defined prerequisites for operating a business in the municipality which exceeded the licensing requirements imposed by the state statute. Further analysis of the cited cases is helpful to illustrate and explain these principles.

In reaching its conclusion that the Ordinance is preempted, the Majority refers to Mazzo as a “relevant” example of conflict preemption. But, Mazzo is distinguishable and inapposite. The statute at issue there, the Public Employee Pension Forfeiture Act (“PEPFA”), set forth a clear mandate that a public employee charged with criminal misconduct and discharged from his position, but who was later acquitted of the criminal charge, “shall be entitled to all” pension fund benefits he had earned while employed. 611 A.2d at 195. Philadelphia’s ordinance in that case, however, required not only acquittal but also reinstatement to employment before the former employee could recover his pension benefits. This Court concluded that the additional requirement of reinstatement was in direct conflict with the General Assembly’s *174mandate that benefits “shall be” restored upon acquittal, and acquittal only. Id.

Accordingly, the Mazzo Court held that Philadelphia’s ordinance was preempted by PEPFA. The Court stated that the municipality had no authority to impose the additional conditions for the payment of pension benefits: “Given the legislature’s directive that benefits shall be paid when individuals have been acquitted or otherwise absolved of criminal charges, it is not possible to uphold a municipal ordinance declaring the benefits shall not then be paid.” 611 A.2d at 195-97 (emphasis in original).5 Mazzo, of course, is a classic example of a case in which an ordinance is preempted because the local and state enactments are simply irreconcilable. The local entity sought to supplant the requirements for reinstatement to pension benefits designed by the General Assembly, and compliance with both the ordinance and PEPFA was an impossibility. See Council 13, supra, 986 A.2d at 81.

In contrast, where the local ordinance merely adds conditions — not foreclosed by the state statute — on the conduct regulated by the General Assembly, the municipal enactment has generally been deemed valid. For example, in Marcincin, the state and local enactments both governed eligibility for reelection to mayoral office. The municipality enacted a term limit ordinance and the Court upheld it as a restriction on reelection not foreclosed by the plain language of the Election Code. 515 A.2d at 1321-26.

The relevant Election Code provision stated that a city’s elected officers “shall be eligible [for] reelection.” Id. at 1321 n. 1 (quoting from P.L. 932 of June 23, 1931, art. VII, § 703, 53 P.S. § 35701). The City of Bethlehem passed an ordinance directing that the mayor “shall be eligible to succeed himself for only one additional term.” Id. The incumbent mayor, whose entitlement to office after election to a third term was *175being challenged, argued that the statewide enactment required unrestricted perpetual reeleetion rights, and that the local term limit was in conflict and invalid. But, the Court rejected the incumbent’s argument, finding no conflict and no preemption. According to the Court, if the ordinance had fully prohibited reelection of an incumbent, then the conflict would be “obvious.” Id. at 1323. However, because nothing in the statutory language “indicatefd] that the term ‘reelection’ connotes an infinite number of successive opportunities of election to the same municipal office,” the local enactment was not in patent discord with the Election Code. Id. The Court concluded that the state and local provisions were “in harmony,” and not irreconcilable. Id. at 1321,1326.

Marcincin is instructive because the local and state enactments therein both addressed a rather narrow issue, mayoral reelection, and the local ordinance did not track the language of the Election Code. The Court, however, did not invalidate the ordinance on that basis but looked for indicia that the General Assembly had intended to foreclose local regulation of the even narrower sub-issue of term limits, which was the precise subject of the local enactment. Unlike in Mazzo, compliance with the local regulation in Marcincin did not make compliance with the state statute impossible, and the ordinance was upheld.

Similarly, and of far more relevance here than Mazzo, is a case such as Weber, supra. In Weber, this Court upheld the validity of a Philadelphia ordinance which required “beauty salons” to obtain, as a prerequisite to operation, a local business license in addition to the mandatory state license. 147 A.2d at 327. To obtain the local license, salons were required to comply with greater cleanliness standards than were set forth in the state statute, the Beauty Culture Act (the “BCA”). For example: while the BCA prohibited use of any beauty shop for residential purposes, the Philadelphia ordinance went farther and required a solid partition between the shop and any room used for habitation; also, the BCA generally required tools to be sterilized, but the Philadelphia ordinance specified the sterilization temperature and chemi*176cals to be used; and, the Philadelphia ordinance prohibited beauty shop operators from smoking on the job, while the BCA did not address the issue. Id. at 330-31.

Certainly, the stricter standards in Philadelphia increased the operating costs and erected additional barriers to entry into the beauty salon market. The Court, however, did not factor economic concerns of beauty salon owners into its analysis of whether the local ordinance was preempted; nor did the Court suggest that the outer contours of the BCA acted as a protective shield against greater local regulation of a business. Rather, the primary focus was on whether the Philadelphia ordinance followed “the broad outlines of the mother legislation” and whether the enactment promoted the General Assembly’s objectives as expressed in the BCA. Id. at 329. The Court held that the local regulation met these conditions and stated that “stricter and more rigid” regulation of beauty salons in large cities was to be expected because of the special challenges posed by having to ensure “the health, safety, welfare, and comfort of dwellers in urban centers” compared to the state as a whole. Id. (citing 37 Am. Jur. Mun. Corps., § 276 at 898-99). According to the Court, the stricter local enactment strengthened and added to “the straws of the statutory broom,” and promoted the General Assembly’s purpose of safeguarding the health of the public. Id. at 330. The Weber Court thus found that no direct conflict existed between the local and state enactments even though Philadelphia had added stricter licensing conditions than the state. The opponents of the Weber ordinance argued, just as appellants argue here, that the local licensing was duplicative and imposed barriers not contemplated by the General Assembly, but the Court rejected this argument, stating that the state statute did not foreclose local ordinances like Philadelphia’s but rather encouraged them. Id. at 328.

Essentially, the Weber ordinance devised local licensing requirements that were parallel to those of the state. Local licensing was based on stricter standards justified by local conditions. Additionally, like the Marcincin ordinance, the Weber enactment did not track the state statute, but was *177nonetheless deemed valid based on a nuanced consideration of the state statutory scheme and the goals of the General Assembly.

These same considerations come into play where the municipality regulates a course of conduct tangentially related to, but not specifically addressed by, the state statute. The complexity of the analysis in these circumstances is evident from a recent case, Nutter, 938 A.2d 401. In Nutter, a candidate for Philadelphia Mayor sought to enforce a local ordinance regulating campaign spending against his opponents and the opponents responded by challenging the ordinance on grounds of conflict preemption and field preemption.6 According to the opponents, the State Election Code comprehensively addressed a plethora of election-related activities, but did not impose specific campaign finance limitations in local elections. In an argument that is similar to appellants’ argument here, the opponents in Nutter interpreted this silence to mean that the General Assembly implicitly disapproved of such limitations, and that the Philadelphia ordinance thus directly conflicted "with the Election Code and was invalid. This Court rejected the opponents’ interpretation and decided there was no preemption:

Far from proving [the opponents’] point, .. . th[e] enumeration of statutorily controlled activities conversely suggests that when an Election Code so comprehensively deals with certain subjects yet fails materially to address itself to campaign contribution limits — especially where that omission is not identified as a function of legislative design to leave unfettered all such matters — it all but compels the *178inference that the legislature, in fact, intended not to foreclose local regulation of campaign contributions for local elections.

Id. at 416. Although the Nutter Court construed the opponents’ argument as regarding field preemption, the Court’s decision is clear that silence of a statewide enactment on a given course of conduct is not a form of tacit disapproval by the General Assembly of future and further local regulation of the same conduct. Accord Mars EMS, 740 A.2d at 196 (comprehensive state statute addressing emergency medical services did not preempt local ordinance designating one primary provider of emergency medical services in township, where such designation was not prohibited or addressed by state enactment).

The Nutter decision clarified earlier jurisprudence by holding that the General Assembly’s silence on an issue does not foreclose local regulation of the given course of conduct. This conclusion easily fits within the larger scheme of the conflict preemption doctrine, in which locally-tailored ordinances are favored where they reinforce the purposes of the related state statute. See, e.g., Weber, 147 A.2d at 330 (Justice Musmanno, writing for the majority, stated that the court below should have “compared the broom of the state statute with the broom of the city ordinance ... [and] it would have found not only that many of the straws of the statutory broom had been strengthened, but that new ones had been added, all to the end that cleanliness should be served, sanitation enhanced, and health more certainly preserved.”). The main considerations for the Nutter Court were whether the local enactment created an obvious rather than an implied conflict with the statutory language and whether the local ordinance furthered the purpose of the statute.

In my view, Weber, Marcincin, and Nutter are more directly relevant than Mazzo and those cases should control the outcome of this case. The caselaw obviously disfavors the simple, mechanical comparison of the local and state enactments and the automatic rejection of local regulatory schemes that are not identical to statewide statutes. Indeed, such an approach leaves little room for legislating to account for local *179variations. Instead, until today, our conflict preemption jurisprudence has followed settled principles and counsels in favor of a restrained, nuanced, and common sense approach. The essential question in the analysis of an alleged direct conflict is the practical one of whether it is possible for affected persons to comply with both the state and local regulations. If the answer is no, then the local enactment is preempted and invalid. If the answer is yes, then the next inquiry is whether the ordinance stands as an obstacle to fulfilling the purposes of the state law. In my view, the Majority’s analysis of the relevant questions is superficial, conclusory, and unpersuasive.

II. B

With respect to the Act and the Ordinance in the case sub judice, the answer to the question above plainly is yes, for the following reasons. The Act prohibits knowing delivery, possession and manufacture of drug paraphernalia. It is a penal statute that, inter alia, defines what constitutes criminal behavior in relation to drug paraphernalia and thus provides fair notice of the prohibited activities before a citizen may face criminal sanctions. See Village of Hoffman Estates, Inc. v. Flipside, 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice”); Commonwealth v. McCoy, 599 Pa. 599, 962 A.2d 1160, 1169 n. 11 (2009) (failure of statute defining criminal conduct to give fair notice of conduct deemed criminal raises due process concerns); Commonwealth v. Teeter, 961 A.2d 890, 897 (Pa.Super.2008) (penal statute defines criminal offenses and specifies corresponding fines and punishment). The City’s Ordinance, on the other hand, is legislation that merely bans the sale in Philadelphia of certain items, like loosies, flavored tobacco, and dual-use items. The Ordinance is enforced via civil penalties, such as fines and suspension of a retailer’s City-issued business license. See Plowman v. Commonwealth, 535 Pa. 314, 635 A.2d 124, 127-28 (1993) (suspension of driver’s license pursuant to Crimes Code, following guilty plea to drug possession unrelated to operation of vehicle, is not criminal punishment but “civil consequence” intended to deter criminal behavior).

*180As in Weber (separate local and state business licensing) and Nutter (separate local and state campaign finance rules), the local and state enactments here act in parallel and target different, albeit related, courses of conduct: the Act sets out the statewide prerequisites necessary for criminal conviction for drug paraphernalia-related crimes; the Ordinance, on the other hand, sets out a sales ban in Philadelphia on certain tobacco products and dual-use items, enforced with separate civil penalties. Of course, the course of conduct targeted by the provisions entails the same physical act — the sale of a dual-use item — and, thus, they are related. But, the targeted conduct manifestly is different, for purposes of a principled conflict preemption analysis, because the Act criminally punishes the sale of drug paraphernalia {i.e., the sale of a dual-use item with knowledge that it will be used to propagate use of illegal drugs), while the Ordinance burdens, and thereby discourages, the sale of dual-use items via civil penalties. To answer the Majority simply, the conduct criminally proscribed by the Act is the sale of drug paraphernalia, while the conduct burdened and penalized by the Ordinance is the sale of dual-use items.

Moreover, the state and local enactments act in parallel, as the fines and business license consequences of violating the Ordinance are in addition to, not in lieu of, the Act’s criminal penalties; they are civil consequences of behavior that, in circumstances described by the Act, may also be punished criminally. See Plowman, supra, 635 A.2d at 127-28. The Ordinance does not purport to remove — and does not even address — the mens rea or actus reus requirements for criminal conviction under the Act; it merely describes what amounts to a violation of a local Ordinance, with attendant civil consequences.

It is not impossible for an individual to comply with both the state and the local regulation. Because the two enactments target different conduct with different consequences, the Majority’s conclusion that the Ordinance is preempted because of a supposed “discrepancy with respect to mens rea for a *181particular course of proscribed conduct” describes an ephemeral tension. See Majority Op. at 165, 10 A.3d at 913. As noted, the Ordinance is a sales ban aimed at particular, locally-relevant dual-use items. A review of the Act shows that economic or commercial interests of dual-use items retailers, which the Ordinance regulates, are never specifically addressed. The Act specifically addresses only the criminal activity of all persons, including retailers of dual-use items, relating to knowing delivery of drug paraphernalia, but it does not address or purport to shield their economic or commercial interests relating to sales of dual-use items. Compare Mazzo (statute specifically addressed prerequisites for pension reinstatement with mandatory language, and ordinance modified these prerequisites; ordinance was preempted) ivith Marcincin (statute created reelection right but did not specify number of terms, and local ordinance set term limits; ordinance was valid). To the extent the same conduct constitutes violation of both enactments, the two provisions create no Hobson’s Choice for dual-use item purveyors and are therefore in harmony.

Appellants attempt to overcome this conclusion by arguing that the Act’s failure to criminalize the scienter-free sale of dual-use items for lawful purposes reflects the General Assembly’s deliberate intention to allow such sales without restriction and presumably protect the commercial interests of retailers throughout the state. See Appellants’ Brief at 32-46.7 The Majority agrees and states that “the General Assembly was far from silent as to the mens rea element” and therefore conflict preemption analysis requires that we infer that the General Assembly must have intended to protect purveyors of dual-use items for “legitimate”8 purposes “from any penalty.” *182Majority Op. at 165, 10 A.3d at 913-14. But, these premises are too broad and also incorrect: the Act creates a mens rea prerequisite for criminal conviction purposes only. See 35 P.S. § 780-113(a)(33). The Act’s mens rea requirement provides fair notice of the prohibited activity before criminal sanctions are imposed, to protect the due process rights of persons within the purview of the Act. See McCoy, 962 A.2d at 1169 n. 11. As Judge Cohn Jubelirer stated in dissent below, the explicit target of the City’s Ordinance — prohibiting the sale of certain items — “obviates the need” for a scienter requirement. 952 A.2d at 1213. By contrast, “the scienter provision of the Act is necessary to protect retailers and others who, given the Act’s lack of precision, may genuinely be unsure as to whether an item they are selling is contraband.” Id.

That is the extent of the protections explicitly afforded by the Act. Simply because the Act criminalizes only knowing delivery of drug paraphernalia dual-use items, it is not logical to conclude that, as a corollary, the Act affirmatively “protects” all commercial interests of retailers in sales of dual-use items — whether those retailers are wholly innocent or strategically blind to the uses. And, notably, given that the statute specifically describes in no uncertain terms that “[njothing in this act relating to drug paraphernalia shall be deemed to supersede or invalidate any consistent local ordinance ... relating to the possession, sale or use of drug paraphernalia,” 35 P.S. § 780-141.1, the Majority’s reliance on the Act’s silence as conveying a fixed and global intention to affirmatively shield the commercial conduct of all dual-use purveyors is misplaced. Indeed, if the General Assembly truly had intended to provide the non-nuanced commercial protection described by appellants, it could easily have said so explicitly rather than implicitly embedding such an important shield against local regulation into a criminal statute. Nutter, 938 A.2d at 416 (when a statute comprehensively deals with certain subjects yet fails materially to address itself to others, “especially where that omission is not identified as a function *183of legislative design to leave unfettered all such matters — it all but compels the inference that the legislature, in fact, intended not to foreclose local regulation”).

II. C

The Majority fails to engage the multiple facets of this Court’s decisions in Weber, Marcincin, or Nutter, and instead relies primarily on Mazzo to conclude that the Ordinance and the Act are in direct conflict.9 But, against the fuller background of our conflict preemption caselaw, it is apparent that Mazzo is distinguishable.

The Act and the Ordinance do not overlap in application and have no conflicting effect comparable to the enactments in Mazzo. Instead, Weber, Marcincin, and Nutter offer more apt comparisons. In all three cases, the local enactment changed the legal regime at the municipal level in a complementary manner, either by creating more detailed and stricter standards of conduct, or by regulating courses of conduct not addressed by comprehensive state statutes. Similarly, here, Philadelphia regulated a course of conduct left unregulated by the state: the economic consequences for retailers and other persons selling loosies, flavored tobacco, and other dual-use items, which are commonly put to use in the drug trade in Philadelphia. See Weber, supra (e.g., standards for sterilization, smoking in beauty shops); Nutter, supra (e.g., campaign contribution limits in local elections). The Act, a penal statute, did not foreclose such complementary regulation and, in *184fact, invited it through its savings clause. See 35 P.S. § 780-141.1.

III.

As I would find that no direct conflict exists between the Ordinance and the Act, I now address the second consideration in conflict preemption analysis: whether the local enactment stands “as an obstacle to the execution of the full purposes and objectives of the [General Assembly].” Huntley, 964 A.2d at 863. Here, the Act’s apparent purpose is, inter alia, to control the use and distribution of illegal drugs. See id. at 864 (unless statute provides otherwise, its purpose may be gleaned from its substantive provisions). The Majority concedes that this is the “primary purpose of the Act,” but insists that the state statute has an additional, implied purpose, to “protect” purveyors of dual-use items for “legitimate” purposes from “any penalty,” criminal or otherwise. Majority Op. at 164-65, 10 A.3d at 913-14.

Respectfully, for the reasons I have already stated, I disagree that the legislative silence conveys such a loud, clear, unambiguous, and non-nuanced signal — especially in an area, like this one, where there are many gradations of conduct shy of the overtly criminal. The General Assembly has never indicated, by plain language or necessary implication, any intention to extend protection to such sellers beyond what is required by due process for criminal conviction under the Act. See McCoy, supra. Moreover, the broad protection against “any penalty” that the Majority discerns in the legislative silence may have unintended consequences, such as inviting a preemption challenge to local taxation of dual-use items. The Majority’s rule suggests that every local ordinance regulating, or burdening the sale of, dual-use items such as cigars and other tobacco products, is automatically in conflict with the Act which, via the Majority’s approach to conflict preemption, now occupies the field.

If this were not enough, the consequences of the Majority’s approach create a direct — not a silent or “implied” — conflict *185with the Act’s savings clause. The General Assembly explicitly made clear its expectation that municipalities might supplement the Act’s provisions with locally-tailored, complementary regulations “relating to the possession, sale or use of drug paraphernalia.” See 35 P.S. § 780-141.1. The Majority provides no explanation for giving controlling prominence to the protective purpose it derives from the Act’s silence over the Act’s admittedly “primary” goal of controlling the use and distribution of illegal drugs, and explicitly stated intention of permitting locally-tailored regulations which further this goal. The “sounds of silence” the Majority would follow must stand down to the legislative alarum.

Here, the goal of the Philadelphia Ordinance is fully congruent with the Act’s purpose. The Ordinance targets dual-use items often used locally as drug paraphernalia, and seeks to provide disincentives for their distribution in the form of civil penalties. The items identified by the City as being closely related to drug use name a broad array of dual-use items, and include loosies and flavored tobacco in addition to the items specifically listed by the Act. The more expansive and locally-tailored reach of the Ordinance, however, is not a basis upon which to conclude that the municipality acted contrary to the General Assembly’s intent. Nutter, supra (legislative silence not indicator that local legislation is foreclosed). In Weber, we recognized the salutary effect of specifically tailored local legislation which promotes the larger purpose of the statewide enactment. Philadelphia’s Ordinance is this type of local enactment. According to the City, the local Ordinance addresses the peculiar local problems of (1) criminal enforcement of the Act when retail establishments that sell dual-use items are pervasive in a large city with an overburdened police force; and (2) readily available, cheap, loose and flavored tobacco products being used to ingest a controlled substance. In this sense, the Ordinance provisions regarding loosies and flavored tobacco further the Act’s purpose by making it more difficult to obtain those specific items and discouraging a specific kind of illicit drug use. It is not our task to evaluate the wisdom of the Ordinance, but simply *186to determine whether the General Assembly contemplated a role for local government in adopting such a measure, in its own judgment. In my judgment, the General Assembly did so contemplate.

IV.

In my view, Sections 622(5)(a)(.l), (.4), and 629(2) of the Ordinance are not preempted by the Act. The Ordinance is a permissible, consistent local enactment addressing the problem of drug paraphernalia propagation. Consistency between state and local laws does not require that the General Assembly and the municipality enact an identical scheme. It is sufficient that the local and state enactments address different courses of conduct harmoniously and may be enforced simultaneously. Further, the Ordinance advances the Act’s purpose by making it more difficult to obtain certain drug paraphernalia and thus discourages illicit drug use, particularly with respect to a type of drug use apparently prevalent in the City.10 Because I would uphold the Ordinance against the instant conflict preemption challenge, and because the Majority’s analysis is contrary to our governing precedent, I respectfully dissent.11

Justices TODD and ORIE MELVIN join this opinion.

. The Act is codified at 35 P.S. §§ 780-101-780-144.

. Loosies and flavored tobacco, as defined in the Ordinance, are not included by name in the drug paraphernalia definition of the Act and are, therefore, not among the dual-use items specifically addressed by the state enactment. Nonetheless, appellants raise the same conflict preemption arguments regarding all the challenged provisions of the Ordinance, whether they address loosies and flavored tobacco, § 622(5)(a)(. 1), (.4), or they address drug paraphernalia by reference to the Act, § 629(2). As neither party argues to the contrary, like the Majority, I proceed on the assumption that loosies and flavored tobacco are included in the Act’s broad definition of "drug paraphernalia” and are, therefore, addressed by the Act. See 35 P.S. § 780-102.

. The Majority also rejects, inter alia, the conclusion of the Commonwealth Court that Section 629(2) of the Ordinance is a zoning provision and is therefore saved from preemption by the Act's savings clause, 35 P.S. § 780-141.1. Because I believe that none of the three provisions are preempted, I would not reach this secondary issue.

. In Huntley, this Court noted that the doctrine of conflict preemption has traditionally been employed to invalidate state laws that stand in the way of the national Congress’s objectives, but that the doctrine also fully applies on an intrastate level, to municipal ordinances that interfere with the operation of state statutes. 964 A.2d at 863, n. 6. Writing for the Court in another case, Mr. Justice Saylor explained the conflict preemption doctrine in the traditional context:

[I]n conflict preemption, Congress’[s] intent to preempt is inferred where there is an actual conflict between state and federal law. Such a conflict arises where compliance with both state and federal laws or regulations is an impossibility or where state law stands as an obstacle to the accomplishments and execution of the full purposes and objectives of Congress.

Council 13, Am. Fed'n of State, County & Mun. Employees v. Rendell, 604 Pa. 352, 986 A.2d 63, 81 (2009) (citing Hillsborough County v. Automated Med. Labs., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985)); see Dooner v. DiDonato, 601 Pa. 209, 971 A.2d 1187, 1198 (2009) (citing English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) and Barnett Bank v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996)).

. Further, the Court concluded that the local ordinance frustrated and undermined the goals of PEPFA — which were to prevent unjust forfeiture of pension benefits and ensure uniformity of benefits within the pension system — by setting apart Philadelphia's legal regime governing pension reinstatements from that applicable in the rest of the Commonwealth. Mazzo, 611 A.2d at 196.

. The question of field preemption, which is an inquiry into whether the General Assembly intended to occupy the entire legislative area, leaving no room for supplementary local legislation, is not at issue in this case. The plain language of the Act does not allow for any such claim. See 35 P.S. § 780-141.1 ("Nothing in this act relating to drug paraphernalia shall be deemed to supersede or invalidate any consistent local ordinance, including zoning or nuisance ordinances, relating to the possession, sale or use of drug paraphernalia.”); see also Mars EMS, 740 A.2d at 195 (according to field preemption doctrine, "absent a clear statement of legislative intent to preempt, state legislation will not generally preempt local legislation on the same issue”).

. To the extent that appellants argue that the Ordinance is an unreasonable restraint on sales of dual-use items that supposedly destroys the tobacco industry and appellants’ businesses in Philadelphia, that argument is better suited to support vagueness or overbreadth legal arguments — questions of constitutionality — rather than of application of the conflict preemption doctrine. The constitutionality of the Ordinance is not before us, and I offer no view on the strength of those arguments.

. As I have noted earlier, there is a tautological element to labeling these uses as "legitimate.” They are "legitimate” only because they are *182not governed by the criminal statute; but there is a wide range of varying moral behavior encompassed.

. The Majority also cites this Court’s sixty year-old opinion in Restaurant Association as support for its conclusion that the Ordinance is preempted. Majority Op. at 157-58, 164-65, 10 A.3d at 909, 913. But, Restaurant Association does not shed any greater light than more recent precedent in this area of law. Restaurant Association's analysis of the local ordinance provisions which were invalidated is limited to the following: "some of the provisions of the ordinance are inconsistent with those of the 1945 Act. For example, the penal provisions of the ordinance are more drastic, and the fines to be imposed for violations are made payable to the city instead of, as in the statute, to the county where the restaurant is located. Where such minor discrepancies exist the provisions of the statute and the rules and regulations adopted thereunder must, of course, prevail....” 77 A.2d at 620.

. In principle, as a matter of policy, I agree with the sentiments expressed by Justice Saylor that an effective sales ban such as the one at issue here, adopted as a means to discourage collateral illegal drug use in Philadelphia, "goes too far.” Concurring Op. at 166-67, 10 A.3d at 914-15 (Saylor, J., concurring). I also recognize the potential persuasiveness of these arguments for invalidating the Ordinance under some of the other legal theories offered by appellants to the trial court, but which the trial court did not reach after finding preemption. Those theories are not before us here. The question before us is conflict preemption, and consideration of whether the municipality pursued the best means to accomplish its stated purpose is not a salient factor in that analysis. Whether one enjoys cigars or not, for conflict preemption analysis, a cigar is just a cigar.

. I note that the U.S. Supreme Court recently accepted review in three cases involving the doctrine of preemption: Bruesewitz v. Wyeth, Inc., (argued October 12, 2010); Williamson v. Mazda Motor of Am., Inc., (argued Nov. 3, 2010), and Chamber of Commerce v. Whiting, (argued Dec. 8, 2010). Whiting, in particular, raises a conflict preemption issue *187similar to the one before us. The two questions relevant here on which the Court granted certiorari are: “[w]hether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary” and ”[w]hether the Arizona statute is impliedly preempted because it undermines the comprehensive scheme that Congress created to regulate the employment of aliens.”