BRAVO VENDING v. CITY OF RANCHO MIRAGE

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Court of Appeal, Fourth District, Division 2, California.

BRAVO VENDING, Plaintiff and Appellant, v. CITY OF RANCHO MIRAGE, Defendant and Respondent.

No. E009290.

Decided: December 07, 1992

Munger, Tolles & Olson, Mark B. Helm, Gary D. Roberts, Los Angeles, and Law Offices of Lynn D. Crandall, Palm Desert, for plaintiff and appellant. Jean Leonard Harris, City Atty., for defendant and respondent. Louise H. Renne, City Atty. for City and County of San Francisco, Burk E. Delventhal and Karen B. Konigsberg, Deputy City Attys., as amici curiae on behalf of defendant and respondent.

OPINION

Appellant Bravo Vending (“Bravo”) appeals from a judgment against it on its action for declaratory relief and a permanent injunction and its petition for a writ of mandate, both of which sought to prevent the enforcement of an ordinance adopted by the City of Rancho Mirage (“City”).   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 6, 1990, the City adopted its Ordinance No. 488, which:  forbade the retail sale of “any cigarette or any tobacco product or cigarette paper or cigarette wrapper 1 at any place in the City without a license”;  established an annual license fee;  prohibited sales of cigarettes to minors;  and forbade the sale of cigarettes “through the use of a vending machine.”

Bravo operates cigarette vending machines in various business locations within the City.   On February 20, 1991, Bravo filed an action for declaratory and injunctive relief against the City.   It sought a declaration that the portion of Ordinance No. 488 which prohibited the use of cigarette vending machines was preempted by Penal Code section 308,2 and thus invalid on its face.   For the same reason, it prayed for the issuance of preliminary and permanent injunctions, restraining the City from enforcing that portion of the ordinance.   Simultaneously, Bravo filed a separate petition for writ of mandate, seeking the issuance of a peremptory writ preventing the enforcement of the ban on cigarette vending machines.

Two days later, both actions were consolidated, and an alternative writ of mandate was issued.   At the hearing, the trial court found that section 308 did not preempt the City's prohibition of cigarette vending machines.   Since the determination of that legal issue was dispositive of both the petition for writ of mandate and the action for declaratory and injunctive relief, the trial court entered a judgment against Bravo on both actions.   This timely appeal followed.3

ISSUE

This case presents only one issue:  Does Penal Code section 308 preempt that portion of the City's ordinance which forbids the sale of cigarettes through vending machines?

DISCUSSION

A. THE CITY'S ORDINANCE

Following the adoption of Ordinance No. 488, its operative provisions were codified as chapter 5.24 of the City's municipal code.   On July 25, 1991, the City adopted Ordinance No. 502, which amended Rancho Mirage Municipal Code sections 5.24.020 and 5.24.030.   As thus amended, that chapter provides:

“5.24.010 License required—Application—Issuance.   No person shall keep for retail sale, sell at retail or otherwise dispose of any cigarette or any tobacco product or cigarette paper or cigarette wrapper at any place in the city without a license.   Application for a license shall be made to the city on a form supplied by the city.   The application shall state the full name and address of the applicant, the location of the building and part intended to be used by the applicant under the license, the kind of business conducted at such location and such other information as shall be required by the application form.   Upon the filing of an application with the department of economic development, it shall be presented to the department head for consideration.   If granted by the department head, a license shall be issued by the city upon payment of the required fee.  (Ord. 488 § 1, 1990).

“5.24.020 License—Fee.   A.  The annual license fee for a cigarette vending license shall be twenty-five dollars.

“B. No person shall be licensed to sell cigarettes through a vending machine.  (Ord. 502 § 1, 1991:  Ord. 488 § 2, 1990).

“5.24.030 Prohibited sales.   No person shall sell or dispense any cigarettes or tobacco product, a cigarette paper or cigarette wrapper through the use of a vending machine.  (Ord. 502 § 2, 1991:  Ord. 488 § 3, 1990).”

The ordinance considered by the trial court differed in some respects.4  However, “[u]nder settled principles, the version of the ordinance in force at present is the relevant legislation for purposes of this appeal.   ‘It is ․ an established rule of law that on appeals from judgments granting or denying injunctions, the law to be applied is that which is current at the time of judgment in the appellate court.’ ”  (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 306, fn. 6, 138 Cal.Rptr. 53, 562 P.2d 1302, quoting from Callie v. Board of Supervisors (1969) 1 Cal.App.3d 13, 18, 81 Cal.Rptr. 440.)   The same rule applies in an appeal from mandamus proceedings.  (Callie, supra, at p. 19, 81 Cal.Rptr. 440.)

 Because the current version of an ordinance controls, the issues raised by an appeal may be rendered moot by an amendment which either repeals or significantly modifies the portion of the ordinance to which the challenge is directed.  (Callie, supra, at pp. 18–19, 81 Cal.Rptr. 440 [reversing judgment and directing the trial court to dismiss the action where the portion of the ordinance which it attacked had been repealed];  Building Industry Assn. v. City of Oxnard (1985) 40 Cal.3d 1, 3, 218 Cal.Rptr. 672, 706 P.2d 285 [reversing the judgment for the trial court's reconsideration of the modified ordinance].)   That is not the case here, because the only sentence of the ordinance which Bravo challenged (“No person shall sell or dispense any cigarettes or tobacco product, cigarette paper or cigarette wrapper through the use of a vending machine.”) was reenacted without change.5  (In re Dapper (1969) 71 Cal.2d 184, 189, 77 Cal.Rptr. 897, 454 P.2d 905.)

For these reasons, in evaluating the validity of the City's regulations, we shall consider the language of chapter 5.24 of its municipal code, as amended on July 25, 1991 (“Ordinance”).

B. PENAL CODE SECTION 308

The sale of cigarettes to minors has been a criminal offense in this state since at least 1892, when section 308 first took effect.  (Stats.1891, ch. 70, § 1, p. 64.)   Following an amendment in 1983, that section consisted primarily of three elements:  (1) it proclaimed the knowing sale of cigarettes to minors to be a misdemeanor;  (2) it required that any cigarette dealer post a copy of that law, and described the penalties to be imposed for the failure to do so;  and (3) it declared that local governments were free to further regulate the sale or display of cigarettes to minors.  (Stats.1983, ch. 1092, § 265, p. 4034.) 6

As the result of the passage of Senate Bill No. 1960 (1987–1988 Reg.Sess.),7 authored by Senator Petris, section 308 was revised again in 1988.   As amended, it now provides:

“(a) Every person, firm or corporation which knowingly sells, gives, or in any way furnishes to another person who is under the age of 18 years any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, is subject to either a criminal action for a misdemeanor or to a civil action brought by a city attorney, a county counsel, or a district attorney, punishable by a fine of two hundred dollars ($200) for the first offense, five hundred dollars ($500) for the second offense, and one thousand dollars ($1,000) for the third offense.

“Notwithstanding Section 1464 or any other provision of law, 25 percent of each civil and criminal penalty collected pursuant to this subdivision shall be paid to the office of the city attorney, county counsel, or district attorney, whoever is responsible for bringing the successful action, and 25 percent of each civil and criminal penalty collected pursuant to this subdivision shall be paid to the city or county for the administration and cost of the community service work component provided in subdivision (b).

“Proof that a defendant, or his or her employee or agent, demanded, was shown, and reasonably relied upon evidence of majority shall be defense to any action brought pursuant to this subdivision.   Evidence of majority of a person is a facsimile of or a reasonable likeness of a document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, a motor vehicle operator's license, a registration certificate issued under the Federal Selective Service Act, or an identification card issued to a member of the armed forces.

“For purposes of this section, the person liable for selling or furnishing tobacco products to minors by a tobacco vending machine shall be the person authorizing the installation or placement of the tobacco vending machine upon premises he or she manages or otherwise controls and under circumstances in which he or she has knowledge, or should otherwise have grounds for knowledge, that the tobacco vending machine will be utilized by minors.

“(b) Every person under the age of 18 years who purchases or receives any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance shall, upon conviction, be punished by a fine of fifty dollars ($50) or 25 hours of community service work.

“(c) Every person, firm or corporation which sells, or deals in tobacco or any preparation thereof, shall post conspicuously and keep so posted in his, her, or their place of business a copy of this act, and any such person failing to do so shall upon conviction be punished by a fine of ten dollars ($10) for the first offense and fifty dollars ($50) for each succeeding violation of this provision, or by imprisonment for not more than 30 days.

“The Secretary of State is hereby authorized to have printed sufficient copies of this act to enable him or her to furnish dealers in tobacco with copies thereof upon their request for the same.

“(d) For purposes of determining the liability of persons, firms, or corporations controlling franchises or business operations in multiple locations for the second and subsequent violations of this section, each individual franchise or business location shall be deemed a separate entity.

“(e) It is the Legislature's intent to regulate the subject matter of this section.   As a result, no city, county, or city and county shall adopt any ordinance or regulation inconsistent with this section.” (Stats.1988, ch. 1045, § 1, pp. 3393–3394.) 8

C. DOES SECTION 308 PREEMPT THE CITY'S ORDINANCE?

1. Standard of Review

In evaluating the extent, if any, to which section 308 preempts the Ordinance, we must interpret both pieces of legislation.  “[T]he construction of statutes and the ascertainment of legislative intent are purely questions of law.   This court is not limited by the interpretation of the statute made by the trial court․”  (Burnsed v. State Bd. of Control (1987) 189 Cal.App.3d 213, 218, fn. 3, 234 Cal.Rptr. 316.)

2. Preemption in General

“Article XI, section 7 of the state Constitution provides that ‘[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 laws.’  [Fn. omitted.]   Local legislation in conflict with the general laws [of the state] is void.”  (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290, 219 Cal.Rptr. 467, 707 P.2d 840.)

“ ‘Conflicts exist if the ordinance duplicates [citations], contradicts [citation], or enters an area fully occupied by general law, either expressly or by legislative implication [citations].   If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation․’ ”  (Cohen v. Board of Supervisors, supra, at p. 290, 219 Cal.Rptr. 467, 707 P.2d 840, quoting from Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807–808, 100 Cal.Rptr. 609, 494 P.2d 681.)

 Thus, local legislation is preempted if it “would do violence to the already existing state provisions” by duplicating or contradicting them, or if “the language in the state statutes denied the subject matter to local bodies․”  (Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 682–683, 3 Cal.Rptr. 158, 349 P.2d 974.)   These are examples of express preemption.

 When the statute does not expressly state whether its regulation of a certain field is to be exclusive of any other, an intent to preempt local regulatory authority may sometimes be implied from “the whole purpose and scope of the legislative scheme.”  (People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 485, 204 Cal.Rptr. 897, 683 P.2d 1150.)

The Supreme Court has described a preemption analysis as a three-step process:  (1) Does the local regulation explicitly contradict any provision of state law?  (2) Does it duplicate state law?  (3) If the local regulation is neither contradictory nor duplicative, does state law impliedly preempt the field of regulation?  (Cohen v. Board of Supervisors, supra, at pp. 291–292, 219 Cal.Rptr. 467, 707 P.2d 840.)

 Conceptually, however, an explicit contradiction between an ordinance and a state statute can take either of two forms.   One is where the language of the ordinance directly contradicts the operative language of the statute, e.g., by penalizing conduct which the state law expressly authorizes, or by purporting to permit conduct which the statute forbids.   The other form occurs when the regulatory language of the ordinance does not contradict any specific portion of the statutory regulation, but the passage of the ordinance itself contradicts the Legislature's intent, expressly stated in the statute, that no local government shall regulate conduct within that same “field” or subject matter.   This distinction was implicitly recognized in Cohen when it listed contradiction and entry into an area fully occupied by general law as separate examples of conflicts between ordinances and state laws.  (Id., at p. 290, 219 Cal.Rptr. 467, 707 P.2d 840.)

 Accordingly, to avoid a classification system which lumps two distinct concepts under the single title of “contradiction,” we view the analysis as consisting of four questions, which in order of increasing difficulty may be listed as follows:  (1) Does the ordinance duplicate state law?  (2) Does the ordinance contradict any provision of state law?  (3) Does the ordinance enter into a field of regulation which the state has expressly reserved to itself?   (4) Does the ordinance enter into a field of regulation from which the state has implicitly excluded all other regulatory authority?   If any of the first three questions can be answered in the affirmative, the ordinance has been expressly preempted.   If the answer to the fourth question is yes, then the ordinance is preempted by implication.

3. Express Preemption

In contending that the City's Ordinance is invalid, Bravo's primary argument is that section 308 expressly preempts the municipal regulation.

a. Duplication

 The only provision of state law which Bravo contends to be in conflict with the Ordinance is section 308.   At the time Ordinance No. 488 was enacted, it did contain a provision which duplicated section 308's prohibition against sales of cigarettes to minors.   However, that portion of the City's ordinance was not challenged by Bravo, and in any event is no longer before us, having been repealed by Ordinance No. 502.   No portion of the Ordinance now under consideration duplicates any provision in section 308.   Therefore, the preemption of the Ordinance cannot be based upon its duplication of state law.

b. Contradiction

 The only subject matter of the challenged portion of the Ordinance is the sale of cigarettes through vending machines, which it prohibits.   However, nowhere in section 308 is the use of vending machines to sell cigarettes expressly authorized.   Therefore, the Ordinance does not contradict section 308.

c. Express Reservation of Exclusive Authority

Bravo argues that the Ordinance enters into a field of regulation which the Legislature has expressly reserved to itself in section 308.   In doing so, it relies on subdivision (e) of the section as the Legislature's express reservation of exclusive authority:  “It is the Legislature's intent to regulate the subject matter of this section.   As a result, no city, county, or city and county shall adopt any ordinance or regulation inconsistent with this section.”

Through those two sentences, the Legislature was obviously attempting to express the degree to which section 308 was designed to preempt local regulation.   However, it failed to do so in any clear fashion.

 As phrased, the first sentence is so self-evident as to be meaningless.   Had the Legislature not intended to regulate that subject matter, it would not have adopted legislation concerning that subject.   However, in construing the Legislature's intent, we must give a statutory provision “a reasonable and common sense interpretation,” rather than one which is technically correct but absurd.  (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18, 194 Cal.Rptr. 722.)   We must also endeavor, if possible, to give significance to every sentence of a statute.  (Ibid.)  Applying these rules to give a reasonable significance to the first sentence of subsection (e) of section 308, we could be tempted to adopt the interpretation urged by Bravo, and construe the Legislature to have intended to exclusively regulate the subject matter of section 308, that is, to occupy the regulatory field to the exclusion of any regulation by local government.   That would be consistent with the reports of a legislative committee and of the Legislative Analyst which state that section 308 “supersedes any local government ordinance or regulation pertaining to the sale of tobacco to minors.”   (Sen.Rules Com.Rep. on Sen.Bill No. 1960, as amended Aug. 17, 1988, p. 2;  Legislative Analyst's Office, Analysis of Sen.Bill No. 1960, as amended Aug. 2, 1988, p. 1.) 9

However, the very next sentence of subdivision (e) of section 308, which provides that local governments are prohibited from adopting regulations which are “inconsistent” with that section, casts doubt upon Bravo's interpretation.   Had the Legislature intended to exclusively occupy the entire field of regulation, then this sentence would have been an unnecessary restatement of the legal effect of that exclusive occupation.   Furthermore, by suggesting that consistent regulations would have been permissible despite that express preemption of the field, the second sentence would have been misleading.

If the second sentence is given significance, it suggests that the Legislature intended, not to preempt the entire field, but only to prevent any local legislation which would be contradictory to the express provisions of section 308.   Various items of legislative history tend to support that interpretation.10  On the other hand, that construction of the statute robs the first sentence of subdivision (e) of any significance whatsoever.

As a model for resolving the inconsistency between the two sentences, Bravo urges us to adopt the interpretation of comparable language in Cox Cable San Diego, Inc. v. City of San Diego (1987) 188 Cal.App.3d 952, 233 Cal.Rptr. 735.   There, the court was interpreting former Government Code section 53066.1, subdivision (q) of which stated:  “This section ․ shall establish the state's preemption ․ of the control and regulation of cable television subscriber rates, charges, and rate structures heretofore or hereinafter established by any franchisor pursuant to Section 53066, to the extent that such control or regulation is inconsistent with this section.”   Thus, like subdivision (e) of section 308, that provision began with language which broadly occupied a certain field, but ended with a clause which could be interpreted as restricting that preemption to those local regulations which contradicted the statutory regulations.

Nevertheless, the Cox Cable court acknowledged no uncertainty:  “With this subdivision, the Legislature plainly expresses its intent to exclude the field of cable television regulation except in areas it specifically grants to local governments like City.”  (Id. at p. 964, 233 Cal.Rptr. 735.)   That was a reasonable construction under the circumstances;  however, when the language of former Government Code section 53066.1, subdivision (q), is viewed in isolation, it is reasonably susceptible to conflicting interpretations.   Thus, Cox Cable does not assist us in determining the intended preemptive effect of section 308.

While the inconsistency between the two sentences of subdivision (e) of section 308 is puzzling, we decline the opportunity to solve this conundrum, because it is unnecessary to our analysis.11  If section 308 does not occupy the entire field, there is no express preemption because, as we have already discussed, the Ordinance does not duplicate or contradict the statute.   On the other hand, if the Legislature did intend to occupy the entire “subject matter” as Bravo contends, there is still no express preemption because, as we will now explain, the Ordinance does not deal with the same subject matter as section 308.

(i) The Subject Matter of Section 308

Assuming that the Legislature intended to preempt all local government regulation of the subject matter of section 308, what did the Legislature understand to be that “subject matter”?   Until we define the subject matter over which the state intended to exercise exclusive authority, we cannot determine whether the Ordinance impermissibly enters into that restricted field.   As the City notes, that “definition is the issue.”

 Bravo proposes three alternative definitions of the section's subject matter:  (1) the distribution of cigarettes to adults and minors;  (2) the distribution of cigarettes by vending machines;  or (3) the sale or other distribution of cigarettes to minors.   The City agrees that section 308 concerns the distribution of cigarettes to minors, but contends that, as used in subdivision (e), “subject matter” was intended to refer only to the provisions in section 308 which specify the punishment to be imposed upon those who violate the section.12

 Whether or not the Legislature had a narrower subject in mind when it drafted subdivision (e), it is undeniable that the subject matter of section 308 as a whole is the distribution of cigarettes to minors.   Subdivision (a) of the section defines the offense of selling cigarettes to a minor;  describes how and by whom the offense is to be prosecuted;  sets the amount of the fines to be imposed upon those making the proscribed sales, and describes how those fines are to be divided;  establishes a defense;  and identifies the person liable in the event the proscribed sale is accomplished through a vending machine rather than in person.   Subdivision (b) defines the purchase or receipt of cigarettes by a minor as an offense, and establishes the punishment to be imposed on offenders.   Subdivision (c) attempts to discourage the commission of either offense by requiring that a copy of the section be posted by all cigarette sellers.   Finally, subdivision (d) clarifies that second and subsequent offenses are to be determined on the basis of the business location involved, rather than the owner of the business.   In short, every provision of section 308 deals directly with the proscription, prosecution, or punishment of the sale or other distribution of cigarettes to, and the purchase or receipt of cigarettes by, minors.

Bravo's contention that section 308 is “a comprehensive solution to potential problems posed by cigarette vending machines” is absurd.   In that lengthy section, vending machines are mentioned in but a single sentence, the sole purpose of which is to identify the person liable for violating the section when the sale to a minor occurs through a cigarette vending machine.   To say that that sentence is the primary, or even a major, subject matter of the section is a gross distortion.   As the Supreme Court has said, “[a] potentially preemptive ‘field’ of state regulation is ‘an area of legislation which includes the subject of the local legislation, and is sufficiently logically related so that a court, or a local legislative body, can detect a patterned approach to the subject.’ ”  (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 707–708, 209 Cal.Rptr. 682, 693 P.2d 261, quoting from Galvan v. Superior Court (1969) 70 Cal.2d 851, 862, 76 Cal.Rptr. 642, 452 P.2d 930.)   Section 308's solitary reference to vending machines does not constitute such a pattern of regulation.

Bravo's broader assertion—that the regulatory field which the Legislature intended to exclusively occupy through section 308 is the entire subject of the distribution of cigarettes, to adults as well as to minors—is equally fantastic.   The statute refers solely to sales to and purchases by minors.   There is nothing in the statutory language which states, or even from which an inference may be reasonably drawn, that the subject matter includes the acquisition of cigarettes by adults.

Bravo's attempts to support its interpretation with the legislative history of section 308 are unavailing.   While a Senate Rules Committee report concerning Senate Bill No. 1960 does state that the bill had been amended by the Assembly to “[s]et forth legislative intent to regulate the subject matter governing the distribution of tobacco products,” that description must be read in the context of how the report characterized the subject of the bill as a whole:  “SUBJECT:  Minors:  distribution of tobacco products.”  (Sen.Rules Com.Rep. on Sen.Bill No. 1960 as amended Aug. 17, 1988, p. 1.)

Moreover, Bravo's expansive interpretation of that isolated line from that report is inconsistent with other portions of the legislative history.   For instance, the very next page of that same committee report, under the heading of “ANALYSIS,” states that Senate Bill No. 1960 “specifies that it supersedes any local government ordinance or regulation pertaining to the sale of tobacco to minors.”  (Id., p. 2.)   A report from the Legislative Analyst uses the identical language.  (Legis. Analyst's Office, Analysis of Sen.Bill No. 1960 (1987–1988 Reg.Sess.) as amended Aug. 2, 1988, p. 1.)

Similarly, Bravo's reliance upon the Legislative Counsel's Digest of Senate Bill No. 1960 is misplaced.   The title of that digest, to which Bravo cites, is simply:  “Ch. 1045 (SB 1960) Petris.   Distribution of tobacco products.”   (Legis. Counsel's Dig., Sen.Bill No. 1960, 4 Stats.1988 (Reg.Sess.) Summary Dig., p. 336.)   However, the text of the Legislative Counsel's analysis explains that the actual subject matter of the bill is not so broad.   Specifically, the digest states that the then-existing version of section 308 specified that it was not to be construed to prohibit any local regulations of “the sale or display to persons under the age of 18 years of tobacco products.”  (Ibid.)  The very next sentence contrasts that law with Senate Bill No. 1960:  “This bill, instead, would set forth declarations of legislative intent to regulate the above subject matter governing the distribution of tobacco products․”  (Ibid.)   The “above subject matter” to which that sentence refers appears to be “the sale or display to persons under the age of 18 years of tobacco products.”

Taken as a whole, the legislative history suggests that the Legislature understood the subject matter of section 308 to be the sale or other distribution of cigarettes to a certain class of potential consumers:  minors.   Since the language of the statute suggests nothing more expansive, Bravo's contention that it concerns the distribution of cigarettes to consumers of all ages cannot be supported.

(ii) The Subject Matter of the Ordinance

Section 308 expressly preempts the Ordinance only if the Ordinance concerns that same subject matter.   It does not.

On its face, the Ordinance covers two related subjects.   First, it describes the class of persons who may sell cigarettes, by specifying that no one may sell cigarettes without a license.  (Rancho Mirage Mun.Code, § 5.24.010.)   Second, it describes the means by which cigarettes may be sold, by specifying that no one, licensed or unlicensed, may sell cigarettes through a vending machine.  (Rancho Mirage Mun.Code, §§ 5.24.020, subdivision B., and 5.24.030.)   Neither subject is touched on by section 308.

The subject matter of the Ordinance further differs from that of section 308 in that the Ordinance does not establish a class of consumers to whom cigarettes may not be sold.   While it specifies who may sell cigarettes, it is silent as to who may buy them.   In particular, it does not draw any distinctions between adult consumers and those under 18.   In short, the language of the Ordinance indicates that it does not concern the same subject matter as section 308.

However, in determining whether an ordinance is attempting to regulate the same field of conduct (or, to use the phrasing of section 308, to regulate the same subject matter) as a state statute, our Supreme Court has looked, not only at the face of the ordinance, but also at the purpose for which the ordinance was enacted.  (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 100 Cal.Rptr. 609, 494 P.2d 681.)   There, at issue was a county ordinance which forbade any person to massage any person of the opposite sex for remuneration.  (Id., p. 807, 100 Cal.Rptr. 609, 494 P.2d 681.)   In concluding that the ordinance was preempted by state law, the court started by confirming the prior holding of In re Lane (1962) 58 Cal.2d 99, 22 Cal.Rptr. 857, 372 P.2d 897, to the effect that the state had impliedly preempted the entire field of the criminal aspects of sexual activity.  (Lancaster, 6 Cal.3d at p. 808, 100 Cal.Rptr. 609, 494 P.2d 681.)

Turning then to the question of whether the ordinance intruded into that same field, the court said:  “There has been no suggestion of any reasonable purpose to the ordinance before us other than to limit sexual activity.   Although it has been urged that the ordinance should be viewed as a regulation of the business of administering massages and not a sexual regulation, the only specification of any actual or potential evil is the sexual activity which may follow in the wake of the massage.   The ordinance before us does not limit the persons who may give or receive massages or in any way regulate or limit the manner of administering a massage except to prohibit transsexual massage.”   (Id., p. 809, 100 Cal.Rptr. 609, 494 P.2d 681.)   The court then went on to consider items of legislative history, including letters to the board of supervisors from the county's administrative officer and sheriff, which indicated that the purpose of the ordinance was to regulate immoral conduct and to control prostitution.  (Id., p. 809, fn. 2, 100 Cal.Rptr. 609, 494 P.2d 681.)

This approach is consistent with the analysis employed when an ordinance is challenged on constitutional grounds other than preemption.   When the purpose of a legislative enactment is relevant to a determination of its constitutional validity, the court may not ascertain that purpose by looking “exclusively to the operative language of the ordinance.”  (Parr v. Municipal Court (1971) 3 Cal.3d 861, 865, 92 Cal.Rptr. 153, 479 P.2d 353.)   Instead, a court must consider both the immediate objective and the likely ultimate effect of the enactment's regulatory provisions.  (Mulkey v. Reitman (1966) 64 Cal.2d 529, 533–534, 50 Cal.Rptr. 881, 413 P.2d 825.)   The enactment must also be viewed in light of its historical context, such as the conditions existing prior to its enactment and the events leading up to its enactment.  (Id., p. 534, 50 Cal.Rptr. 881, 413 P.2d 825;  Antonello v. City of San Diego (1971) 16 Cal.App.3d 161, 166, 93 Cal.Rptr. 820 [evaluating, inter alia, claim that ordinance was preempted by state law].)   For example, the court may resort to the history of the legislation, such as the statements of the legislative body during debate, “ ‘for the purpose of ascertaining the general object of the legislation proposed, and the mischiefs sought to be remedied.’ ”  (Parr, supra, 3 Cal.3d at p. 866, 92 Cal.Rptr. 153, 479 P.2d 353.)

In this regard, Bravo relies upon a single aspect of the Ordinance's legislative history:  the fact that, when initially adopted, the sentence of the Ordinance which prohibits sales of cigarettes by vending machines was immediately preceded by a sentence which provided that “[n]o person shall sell or give away any cigarette or any tobacco product, cigarette paper or cigarette wrapper to any person under the age of eighteen (18) years.”   This sentence, Bravo argues, proves that the true purpose of the Ordinance is to regulate the sale of cigarettes to minors, the same subject matter as section 308.

In response, the City points out that the City has addressed the public health aspects of cigarette smoking by passing a separate ordinance which bans the use of cigarettes in all public places and in places of employment, and argues that the purpose of the Ordinance is to complement and reinforce that use prohibition.   Presumably, the proscription of vending machines would make violations of the ban against public smoking less likely by eliminating one of the common sources of cigarettes in those restricted locations.

 In weighing these conflicting inferences from the meager legislative history before us, we start with the presumption that an ordinance is not preempted or otherwise unconstitutional.  “[T]here is a presumption that official duty has been regularly performed (Evid.Code, § 664).  ‘In passing on the validity of an ordinance or a statute it will be presumed that it is valid.   He who would claim that it is invalid must assume the burden of showing its invalidity.’ ”  (City of Industry v. Willey (1970) 11 Cal.App.3d 658, 663, 89 Cal.Rptr. 922, quoting from Hopkins v. Galland Mercantile L. Co. (1933) 218 Cal. 130, 133–134, 21 P.2d 553.)

Accordingly, Bravo has the burden to persuade us that the purpose of the Ordinance is merely to prevent minors from buying cigarettes.   It may be that, upon a more complete showing of the events which led up to the adoption of the Ordinance, the statements made by the city council while the proposal was being debated, or other evidence, a persuasive case could be made for that conclusion.   However, the meager record before us fails to do so.

In summary, the face of the Ordinance indicates that the purpose of the Ordinance is to regulate the manner in which cigarettes are sold to all consumers, regardless of age.   The limited extrinsic evidence before us does not lead us to a contrary conclusion.   Therefore, even assuming that section 308 may be properly interpreted to expressly preempt any local regulation of the legality of selling cigarettes to minors, or of the penal consequences of doing so, a municipal regulation of the manner by which cigarettes are sold to all consumers, regardless of age, is not similarly preempted.

Since the Ordinance neither duplicates nor contradicts any provision of section 308, and since the subject matter of the Ordinance is beyond the scope of any express reservation of exclusive regulatory authority in subdivision (e), there is no express preemption.

4. Preemption by Implication

 Given that the Legislature did not expressly preempt local regulation of either the sale of cigarettes through vending machines or the distribution of cigarettes to consumers of all ages, may its intent to do so be reasonably inferred?   While Bravo answers affirmatively, we reach the opposite conclusion.

“In determining whether the Legislature has preempted by implication to the exclusion of local regulation we must look to the whole purpose and scope of the legislative scheme.   There are three tests:  ‘(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern;  (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action;  or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.’ ”  (People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485, 204 Cal.Rptr. 897, 683 P.2d 1150, quoting from In re Hubbard (1964) 62 Cal.2d 119, 128, 41 Cal.Rptr. 393, 396 P.2d 809 [overruled on another ground in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, 81 Cal.Rptr. 465, 460 P.2d 137].)

 Rather than address how one or more of these tests is satisfied by the purpose and scope of the legislative scheme of which section 308 is the manifestation, Bravo argues simply that the section “unquestionably enacts ‘general legislation’ covering a subject matter ‘of general or statewide concern,’ which is sufficient to give rise to a presumption of preemption.”   In support of this conclusion, Bravo quotes from Northern Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 106–107, 223 Cal.Rptr. 609:  “[I]f the subject matter is one of general or statewide concern, the Legislature has paramount authority;  and if the Legislature has enacted general legislation covering that matter, in whole or in part, there must be a presumption that the matter has been preempted.  (Baron v. Los Angeles (1970) 2 Cal.3d 535, 539–541 [86 Cal.Rptr. 673, 469 P.2d 353, 42 A.L.R.3d 1036];  Younger v. Berkeley City Council [ (1975) ] 45 Cal.App.3d [825,] 829–831 [119 Cal.Rptr. 830].)”

Neither of the authorities cited by the Northern Cal. Psychiatric Society court support the existence of such a presumption.   The cited portion of Baron does not discuss any presumption whatsoever.   The closest that Younger comes to doing so is the following sentence:  “ ‘When there is a doubt as to whether an attempted regulation relates to a municipal or to a state matter, or if it be the mixed concern of both, the doubt must be resolved in favor of the legislative authority of the state [citations].’ ”  (Younger v. Berkeley City Council, supra, 45 Cal.App.3d at p. 830, 119 Cal.Rptr. 830, quoting from Abbott v. City of Los Angeles, supra, 53 Cal.2d at p. 681, 3 Cal.Rptr. 158, 349 P.2d 974.)   The quoted sentence is a rule of construction regarding the issue of whether the subject matter of a particular regulation is a municipal affair or a matter of statewide concern.   It has no effect on the determination of whether, assuming that it is a matter of statewide concern, the state has totally preempted the field.   That is an entirely separate question, as Younger itself makes clear.  (Younger, supra, 45 Cal.App.3d at p. 831, 119 Cal.Rptr. 830.)

Not only is the presumption described in Northern Cal. Psychiatric Society unsupported by authority, but it is directly contrary to the Supreme Court's rule, quoted above, that in order to imply an intent to preempt the field, that intent must be “clearly indicate[d]” by the “purpose and scope of the legislative scheme,” and that when the state legislation only partially covers the subject matter, such an intent is not indicated unless “ ‘the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.’ ”  (People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485, 204 Cal.Rptr. 897, 683 P.2d 1150.)

Similarly, the Supreme Court has rejected rules which avoid an inquiry into the Legislature's actual intent:  “To approach the issue of preemption as a quantitative problem provides no guidance in determining whether the Legislature intends that local units shall not legislate concerning a particular subject, and further confounds a meaningful solution to preemption problems by offering a superficially attractive rule of preemption that requires only a statutory nosecount.”  (Galvan v. Superior Court, supra, 70 Cal.2d at p. 861, 76 Cal.Rptr. 642, 452 P.2d 930.)   That rejection cannot be reconciled with Bravo's notion that an intent to preempt is presumed merely because the Legislature has adopted one or more statutes in an area of statewide concern.

Moreover, by presuming the Legislature's intent to preempt the field, we necessarily presume that any local regulations in that same field are unconstitutional under article XI, section 7.   However, as noted previously, the established rule is that legislation is presumed to be constitutionally valid, not the reverse.  (See generally 7 Witkin, Summary of Cal.Law (9th ed. 1988) Constitutional Law, § 58, pp. 102–104.)   Thus, the rule is that “if there is a significant local interest to be served which may differ from one locality to another then the presumption favors the validity of the local ordinance against an attack of state preemption.”  (Gluck v. County of Los Angeles (1979) 93 Cal.App.3d 121, 133, 155 Cal.Rptr. 435;  see also Fisher v. City of Berkeley, supra, 37 Cal.3d at p. 707, 209 Cal.Rptr. 682, 693 P.2d 261.)   The regulation of the means of distributing proven health hazards, such as cigarettes, is such a local interest.

For all of these reasons, we decline to follow the statement in Northern Cal. Psychiatric Society that partial regulation of a field by state law gives rise to a presumption that the Legislature intended to preempt the entire field of regulation.

Moreover, even if such a presumption did exist, it would be of no assistance to Bravo.   The supposed presumption extends only to the subject matter of the state law.   As discussed in detail above, the broadest interpretation of which the subject matter of section 308 is reasonably susceptible is that it regulates the sale or other distribution of cigarettes to, and the purchase or other acquisition of cigarettes by, minors.   The Ordinance, on the other hand, regulates the means by which cigarettes are permissibly sold, not the age of the permissible consumer.   Thus, even if section 308 were presumed to have preempted its field of regulation, it would not preempt the Ordinance.

Having relied solely on a nonexistent presumption of preemption, and having failed to assert that the proper test of preemption by implication has been met,13 Bravo has failed to demonstrate that the Ordinance is impliedly preempted by section 308.

CONCLUSION

Assuming that the Legislature intended section 308 to preempt all local regulation of the sale or other distribution of cigarettes to minors, the subject matter of the Ordinance has not been shown to be within the scope of that preemption.14  We conclude that the Ordinance is not preempted by section 308, either expressly or by implication.

DISPOSITION

Since preemption is the sole reason advanced for the Ordinance's alleged invalidity, the trial court's judgment that the Ordinance is valid must be affirmed.   Our order staying the enforcement of the Ordinance is vacated.

FOOTNOTES

1.   For convenience, we shall hereinafter refer to all of the enumerated items collectively as “cigarettes.”

2.   Unless specified otherwise, all further section references shall be to the Penal Code.

3.   Pursuant to a petition by Bravo, we stayed the enforcement of that portion of the ordinance which bans cigarette vending machines, pending determination of the appeal.

4.   Specifically, the amendment added the provision in Rancho Mirage Municipal Code section 5.24.020 that “[n]o person shall be licensed to sell cigarettes through a vending machine.”   At the same time, it deleted the first sentence of section 5.24.030 of the municipal code, which formerly provided that “[n]o person shall sell or give away any cigarette or any tobacco product, cigarette paper or cigarette wrapper to any person under the age of eighteen (18) years.”  (Ordinance No. 502.)

5.   Not only was that sentence from Rancho Mirage Municipal Code section 5.24.030 repeated in the amended version, but as previously noted, a redundant sentence was added as section 5.24.020, subdivision B:  “No person shall be licensed to sell cigarettes through a vending machine.”   Because the two provisions are substantially identical, we consider Bravo's challenge to extend to that new sentence as well.

6.   The full text of that version of former Penal Code section 308 read as follows:“(a) Every person, firm or corporation which knowingly sells or gives or in any way furnishes to another person who is under the age of 18 years any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, is guilty of a misdemeanor.“(b) Every person, firm or corporation which sells, or deals in tobacco or any preparation thereof, shall post conspicuously and keep so posted in his or their place of business a copy of this act, and any such person failing to do so shall upon conviction be punished by a fine of ten dollars ($10) for the first offense and fifty dollars ($50) for each succeeding violation of this provision, or by imprisonment for not more than 30 days.“The Secretary of State is hereby authorized to have printed sufficient copies of this act to enable him to furnish dealers in tobacco with copies thereof upon their request for the same.“(c) Nothing in this section or any other provision of law shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a city or county or a city and county regulating the sale or display to persons under the age of 18 years of items described in this section.”

7.   All references to Senate Bill No. 1960 are to the bill designated as such for the 1987–1988 Regular Session.

8.   Penal Code section 308 was amended further in 1989 by adding subdivision (f), which sets forth conditions under which the Director of Corrections may sell cigarettes to confined minors who are at least 16 years old.  (Stats.1989, ch. 223, No. 5 West's Cal.Legis.Service, p. 1104.)

9.   It would also be consistent with an analysis by the Legislative Counsel, quoted by Bravo, which asserts that subdivision (e) of section 308 “makes it clear that the Legislature intended to fully occupy the field governing the distribution of tobacco products to persons under the age of 18 years.”   However, that opinion is not admissible as evidence of legislative intent.The rationale for considering the written analyses of legislative staff members is that, while those analysts have no decision-making authority themselves, “it is reasonable to infer that those who actually voted on the proposed measure read and considered the materials presented in explanation of it, and that the materials therefore provide some indication of how the measure was understood at the time by those who voted to enact it.”   (Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465, fn. 7, 253 Cal.Rptr. 236, 763 P.2d 1326.)   Similarly, since the Legislative Counsel is required to consider all pending legislation (Gov.Code, § 10234), and since the “Legislative Counsel's Digest is printed as a preface to every bill considered by the Legislature” (Southland Mechanical Constructors Corp. v. Nixen (1981) 119 Cal.App.3d 417, 428, fn. 5, 173 Cal.Rptr. 917), “it is reasonable to presume that the Legislature adopted [a bill] with the intent and meaning expressed in [the Legislative Counsel's] digest of the bill” (Maben v. Superior Court (1967) 255 Cal.App.2d 708, 713, 63 Cal.Rptr. 439;  accord, People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 434, 155 Cal.Rptr. 704, 595 P.2d 139).Here, however, the analysis cited by Bravo was not contained in the digest to Senate Bill No. 1960, or to any other legislation pending during the 1987–1988 Regular Session.   Instead, it is expressed only in a letter from the Legislative Counsel to Senator Dills in April of 1990, two years after the amendment to section 308.   Therefore, it provides no indication of how subdivision (e) of section 308 was understood at the time it was enacted by those who voted to enact it.

10.   For instance, the Assembly Ways and Means Committee Republican Analysis of Senate Bill No. 1960, dated August 10, 1988, in summarizing the provisions of the bill, concludes that it “prohibits cities and counties from adopting any ordinance or regulation inconsistent with these provisions.”   The Legislative Counsel's Digest to the final version of the bill includes a virtually identical characterization of the bill's effect:  no local government could “adopt any ordinance or regulation inconsistent with the above provisions.”  (Legis. Counsel's Dig., Sen.Bill No. 1960, 4 Stats.1988 (Reg.Sess.) Summary Dig., p. 336.)   Similarly, Senator Petris, the author of the bill, testified before an Assembly committee that the then-proposed amendments to his bill would “preempt local and county ordinances or regulations which are inconsistent with State law.”   (Testimony before Assem. Public Safety Com., June 27, 1988.)

11.   This is not to say, of course, that the determination of other legal issues will not require such a resolution.   Local governments should not have to guess at the scope of the preemptive effect of this section.   We encourage the Legislature to revisit this subject and clarify its intent.

12.   The City supports this interpretation with two documents, neither of which is admissible legislative history.First, the City cites to a letter from Senator Petris, which was approved for printing in the Senate Journal by a vote of the Senate, and which purports to clarify the intent of section 308, subdivision (e).   It states that the intent of that subdivision “was not to preempt local governments from enacting legislation which further eliminates a minor's access to tobacco products.   Rather, the preemption was meant only to apply to the fines” prescribed by the section, in order “to ensure statewide uniformity in relation to the fines for the sale of tobacco products to minors.”  (Letter of May 31, 1990, to President Pro Tem. of Sen., Sen. J. (1989–1990 Reg.Sess.) p. 6129.)The general rule is that, in construing a statute, we do not consider the motives or understandings of either its author or the individual legislators who voted for it.  (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 589, 128 Cal.Rptr. 427, 546 P.2d 1371;  California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 701, 170 Cal.Rptr. 817, 621 P.2d 856.)   However, a court may consider a letter explaining the author's intent in proposing a piece of legislation if the publication of the letter has been authorized by both houses of the Legislature to express the legislative intent.  (Id., 16 Cal.3d at pp. 588–590, 128 Cal.Rptr. 427, 546 P.2d 1371.)   The same might even be true when such a letter is published in the journal of only one of the two houses of the Legislature which adopted the legislation.  (Cf. County of Los Angeles v. State of California (1987) 43 Cal.3d 46, 51, fn. 2, 233 Cal.Rptr. 38, 729 P.2d 202.)Here, however, the resolution authorizing the publication of the letter was not adopted by the same Legislature which approved the amendment to section 308 in 1988.   Instead, that resolution was adopted in 1990, two years after the amendment to section 308, and thus after the composition of the Legislature had been altered by the intervening election.   Therefore, a resolution adopted by the 1990 Legislature is not admissible to establish the intent of the 1988 Legislature when it amended section 308.Nor is the letter admissible to establish the 1990 Legislature's intent concerning section 308.   If a letter of legislative intent had been published by both houses of the 1990 Legislature, it can be considered for the intended construction of the statute from the date of publication forward.  (Cf. California Emp. etc. Com. v. Payne (1947) 31 Cal.2d 210, 214, 187 P.2d 702.)   However, while the record before us indicates that the letter was published by the Senate, it does not state that it was also adopted by the Assembly.   We are aware of no authority which would permit one house of the Legislature to unilaterally establish the intent behind a piece of legislation on which it did not vote.The same defect prevents the admission of the other evidence on which the City relies:  Senate Bill No. 2912 of the 1989–1990 Regular Session.   While that bill would have revised the preemption clause of section 308 to explicitly state that the only local regulation which it preempted was that concerning the amount of the penalties for violating section 308, that bill was passed only by the Senate, not by the Assembly.   Since it was not adopted by both houses, it did not change the existing intent of section 308.   Furthermore, since the Senate which adopted it was not the same Senate which approved Senate Bill No. 1960 (1987–1988 Reg.Sess.), that adoption sheds no light on the 1988 Legislature's intent.

13.   Indeed, other than the single contention that section 308 should be presumed to preempt the field by implication, Bravo repeatedly argued that the doctrine of preemption by implication was irrelevant, because the statute expressly preempted local regulation.

14.   Accordingly, we need not address the further contentions that, even if the Ordinance intrudes into the same regulatory field as section 308, the Ordinance is nevertheless valid as a licensing ordinance or as a scheme of regulation of the operation of permissible businesses in order to ensure that they do not invite or encourage violations of state law.

McKINSTER, Associate Justice.

DABNEY, Acting P.J., and TIMLIN, J., concur.