Reset A A Font size: Print

Court of Appeal, Second District, Division 3, California.

The SHERWIN–WILLIAMS COMPANY, a corporation, et al., Plaintiffs and Respondents, v. The CITY OF LOS ANGELES, Defendant and Appellant.

No. B057104.

Decided: April 17, 1992

James K. Hahn, City Atty., John F. Haggerty, Asst. City Atty., and Henry G. Morris, Deputy City Atty., for defendant and appellant. Michael Hickok and Seyfarth, Shaw, Fairweather & Geraldson, Los Angeles, for respondents.


Defendant and appellant, the City of Los Angeles (the City), appeals the judgments granting plaintiffs, petitioners and respondents Sherwin–Williams Company and Plasti–Kote, Inc. (plaintiffs) a preliminary injunction and a permanent injunction against the enforcement of a City ordinance regarding the display and accessibility of aerosol spray paint containers in stores, Los Angeles Municipal Code section 47.11.   The City contends that, contrary to the trial court's rulings, the ordinance is not preempted by state law.

We affirm.


Plaintiffs filed a complaint for injunctive and declaratory relief and a petition for writ of mandate, challenging the City ordinance codified as Municipal Code section 47.11 enacted on November 16, 1990.   They contended the ordinance was invalid under the constitutional doctrines of preemption and due process.   They sought to prohibit enforcement of the ordinance, which was to become effective on December 22, 1990.

Sherwin–Williams, an Ohio corporation, engages in the wholesale distribution and retail sale of aerosol spray paint, coatings and clear coat products within the City and manufactured at its facility located in the City of Anaheim, California.   Plasti–Kote, an Ohio corporation, engaged in the manufacture and wholesale distribution of aerosol spray paint to retailers in the City.   Their combined annual sales of aerosol spray paint constitutes about 60 per cent of such sales in the City.

Plaintiffs argued that the ordinance was preempted by comprehensive state legislation, Penal Code section 594.1, which expressly preempted local regulations relating to sales and possession of aerosol spray paint containers.   They also argued that the ordinance violated due process because of its overbreadth, applying to many products irrelevant to graffiti, and its lack of evidentiary support.

The trial court issued a preliminary injunction on February 4, 1991, prohibiting enforcement of the ordinance pending a final decision.   The trial court found the ordinance was the type of “local government regulation relating to sales ․ of aerosol containers of paint larger than six ounces ․” expressly preempted by the state.   The City filed a notice of appeal from the preliminary injunction.

Thereafter, the parties stipulated the case be decided in the trial court on cross-motions for summary judgment based on a set of stipulated fact.   These “undisputed facts” were set forth as follows, each supported by citation to evidence, including declarations and transcripts of council proceedings:

“1. Ordinance No. 166.399, which added Section 47.11 to the Los Angeles Municipal Code, ․ was adopted by the Los Angeles City Council on November 16, 1990.

“2. At its meeting of November 16, 1990, in connection with the proceeding relative to the adoption of Los Angeles Municipal Code Section 47.11, the Council viewed two video presentations prepared by the Los Angeles Rapid Transit District, one consisting of an interview with an apprehended graffiti tagger known as ‘CHAKA,’ the other consisting of a dramatization of an entry into a retail store by a group of young people for the purpose of stealing aerosol spray paint containers for use in graffitiing.

“3. The City Attorney himself was present at the November 16, 1990 meeting of the City Council and introduced the video presentation by stating that a great percentage of the tagging and graffiti in Los Angeles is actually caused by people who have stolen materials that are used for that purpose.

“4. “The City Attorney further stated, with respect to the video dramatization of store entry, that the tape would show how most store owners with only one or two employees are completely overwhelmed when this kind of activity occurs and, with respect to the video taped interview, that ‘CHAKA’ was one of the most famous tagger's [sic] in town and has caused a great deal of damage all over Los Angeles County.

“5. The City Attorney further stated that, based on experience in the City Attorney's Office and numerous interviews with police officers all over the City, most of the taggers cannot afford to pay the $3.00 or $4.00 for spray paint that they are using and that the cans are being stolen.

“6. Ordinance No. 166,399 became effective December 22, 1990.

“7. Section 2 of the statute (Ch 1125 of the Statutes of 1981) by which Penal Code Section 594.1 was enacted contains the following provision:  ‘It is the intent of the Legislature in enacting this act to preempt all local government regulations relating to sales and possession of aerosol containers of paint larger than six ounces (net weight of contents).’

“8. The Sherwin–Williams Company is engaged in the manufacture, distribution, and retail sales of aerosol spray paint subject to Section 47.11.

“9. Plasti–Kote Inc. is a manufacturer and wholesale distributor of aerosol spray paints subject to Section 47.11.

“10. If compliance with Section 47.11 is required, The Sherwin–Williams Company and Plasti–Kote, Inc. will incur substantial costs to install compliant sales display cases in retail stores operated by their wholesale customers to persuade them to continue retail sales of aerosol spray paints within the City of Los Angeles.

“11. If compliance with Section 47.11 is required, The Sherwin–Williams Company and Plasti–Kote, Inc. will suffer a permanent loss in annual sales volumes in the City of Los Angeles due to decisions by their wholesale customers to discontinue retail sales of aerosol spray paints and behavior by retail customers refraining from impulse purchases of those products due to the inconvenience associated with sales procedures prescribed by that ordinance.”

Finding the ordinance intervened in a preempted area, the trial court granted plaintiffs a permanent injunction, enjoining its enforcement.

The City appealed this judgment.   This court granted a motion to consolidate the two appeals.


Is section 47.11 of the Los Angeles Municipal Code preempted by Penal Code section 594.1?


1. California Preemption Principles

Article XI, section 7, of the California Constitution provides:  “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.”

 “But local legislation in conflict with general law is void.   Conflicts exist if the ordinance duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.   Within a fully occupied area, there is no room for supplementary or complementary local legislation, even if the subject could otherwise be characterized as a municipal affair.  (People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484 [204 Cal.Rptr. 897, 683 P.2d 1150];  see also Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885 [218 Cal.Rptr. 303, 705 P.2d 876].)”  (Tri County Apartment Assn. v. City of Mountain View (1987) 196 Cal.App.3d 1283, 1293–1294, 242 Cal.Rptr. 438.)

“The first step in a preemption analysis is to determine whether the local regulation explicitly conflicts with any provision of state law.  (See Galvan v. Superior Court (1969) 70 Cal.2d 851, 855–859 [76 Cal.Rptr. 642, 452 P.2d 930].)”  (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 291, 219 Cal.Rptr. 467, 707 P.2d 840.)

“The next question is whether any provision of the local regulation duplicates state law.”  (Id., at p. 292, 219 Cal.Rptr. 467, 707 P.2d 840, fn. omitted.)

If the ordinance neither expressly contradicts nor duplicates state law, its validity must be evaluated under implied preemption principles.

“ ‘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 (1984) 36 Cal.3d 476, 485 [204 Cal.Rptr. 897, 683 P.2d 1150], quoting In re Hubbard [1962] 62 Cal.2d [119] at p. 128 [41 Cal.Rptr. 393, 396 P.2d 809] accord Galvan v. Superior Court [1969] 70 Cal.2d [851], at pp. 859–860 [76 Cal.Rptr. 642, 452 P.2d 930])”  (Id., 40 Cal.3d at pp. 292–293, 219 Cal.Rptr. 467, 707 P.2d 840.)

2. Penal Code Section 594.1

The state's graffiti control law was adopted in 1981.  (Stats.1981, ch. 1125, p. 4404, § 1.)  Section 594.1 makes it a misdemeanor “for any person, firm, or corporation, except a parent or legal guardian, to sell or give or in any way furnish to another person, who is in fact under the age of 18 years, any aerosol container of paint that is capable of defacing property without first obtaining bona fide evidence of majority and identity.”  (§ 594.1, subd. (a).)  It is also illegal for any person under the age of 18 to purchase such a container.  (§ 594.1, subd. (b).)

The law requires every retailer selling aerosol containers of paint to post in a conspicuous place a sign in letters at least three-eighths of an inch high stating:  “ ‘Any person who maliciously defaces real or personal property with paint is guilty of vandalism which is punishable by a fine, imprisonment, or both.’ ”  (§ 594.1, subd. (c).)

It is a misdemeanor for any person to carry an aerosol container of paint in plain view while in any posted public facility, part, playground, swimming pool, beach or recreational area without valid authorization and for any minor “to possess an aerosol container of paint for the purpose of defacing property while on any public highway, street, alley, or way, or other public place, regardless of whether that person is or is not in any automobile, vehicle, or other conveyance.”  (§ 594.1, subds. (d) and (e).)

In adopting the law, the Legislature expressly stated its preemptive effect:  “It is the intent of the Legislature in enacting this act to preempt all local government regulations relating to sales and possession of aerosol containers of paint larger than six ounces (net weight of contents).”  (Stats.1981, ch. 1125, p. 4405, § 2.)   In 1988 the code section was amended to apply the misdemeanor provision to any aerosol container of paint rather than a container which is larger than 6 ounces.

In the trial court, plaintiffs requested judicial notice of documents relevant to the legislative history of the state graffiti law.   A September 23, 1981, letter from California Assemblyman Richard Alatorre to Governor Edmund G. Brown, Jr., referred to the legislation as “an anti-graffiti proposal that restricts certain sales of spray paint cans,” and as a “consensus bill that has been worked on by myself, Assemblyman Richard Floyd, the spray paint manufacturers, the Parks and Recreation Society and the City of Los Angeles.”   The minute order of the trial court indicates that this letter was not considered by it.

3. The City Ordinance

The ordinance added section 47.11 to read as follows:


“Every person who owns, conducts, operates or manages a retail commercial establishment selling aerosol containers, or marker pens with tips exceeding four millimeters in width, containing anything other than a solution which can be removed with water after it dries, shall store or cause such aerosol containers or marker pens to be stored in an area viewable by, but not accessible to the public in the regular course of business without employee assistance, pending legal sale or disposition of such marker pens or paint containers.”

The preamble to the ordinance contained the following declarations:

“WHEREAS, provisions of state law provide punishment for vandalism in the form of malicious defacing of property with paint, and prohibit the sale to or purchase by minors of aerosol spray paint containers capable of defacing property;  and

“WHEREAS, notwithstanding such prohibitions, graffiti caused by aerosol spray paint continues to proliferate in the City of Los Angeles due in substantial part to theft of aerosol spray paint containers;  and

“WHEREAS, graffiti can be created not only by aerosol spray paint, but also by large tipped marker pens;  and

“WHEREAS, supplemental local deterrents to the availability for use of aerosol containers of paint and marker pens are needed to further inhibit their use for graffiti purposes.”

The motion for adoption of the ordinance also suggests its purpose:

“The battle to control graffiti in the City continues to grow worse with each passing day.   A State law is now on the books to prohibit the sale of aerosol containers of paint to persons under the age of eighteen.   Strict enforcement of this law by the business community would take the paint containers from the hands of the vandals who daily destroy our City through indiscriminate defacing of buildings and structures with graffiti.

“Two additional safeguards should be implemented to help insure that aerosol containers of paint are not stolen from business establishments.   First, aerosol paint containers should be removed from public view to deter would-be thieves.   Then as a further deterrent, these containers should be stored in locked cabinets or storage compartments.”

The proposed ordinance was amended prior to adoption to provide for storage in an area viewable by, but not accessible to, the public without employee assistance.

4. The Scope of State Preemption

a. The General Field of Graffiti Control.

The City points out that, while the ultimate evil addressed by the City's regulation is graffiti, the state has three regulations relative to that subject.   In addition to Penal Code section 594.1, relied upon by the plaintiffs, Government Code section 53069.3 authorizes enactment of local ordinances to provide for the use of City funds to remove graffiti from public or private property.  Revenue and Taxation Code section 7287 authorizes a local legislative body to levy a sales tax on the sale of aerosol containers and marker pens to raise revenue for graffiti control.   The City suggests that these regulations are not sufficiently logically related to evidence a patterned approach to the subject.   Indeed, we observe, these provisions specifically grant local entities authority to act in connection with graffiti control.

b. Sales of Aerosol Containers of Paint.

 The more pertinent inquiry is the preemptive effect of Penal Code section 594.1.   The major thrust of the City's appeal is that the City's regulation is not a direct regulation of sales nor one relating to sales.   The City contends that the word “sales” in the preemption provision refers to the sales transaction itself.   According to the City, its ordinance is directed at the regulation of access and storage, for the prevention of theft, while the state provision is directed at sales to minors and possession of paint containers in places often defaced by graffiti.

Plaintiffs contend that the challenged ordinance conflicts with the exact language of the preemption provision prohibiting local enactments “relating to sales” of aerosol spray paint.

Although the meaning of the term “sale” may be limited to the transaction itself, the preemptive provision not only covers sales, but “all local government regulations relating to sales and possession․”  (Stats.1981, c. 1125, § 2, emphasis added.)   The use of the broader terminology, “relating to,” suggests a clear intent to apply beyond the sales transaction as narrowedly defined by the City.   The state law itself goes beyond the transaction (sale).   It includes a requirement for a retailer to post a sign that defacing property with paint is vandalism, punishable by fine, imprisonment or both.

The City's ordinance imposes additional requirements upon the retailer, which regulate the display of the product and its accessibility to customers.   These directly affect the sales transaction, including the conduct of the sales clerk and the physical set-up of the retail setting.   As such, the ordinance constitutes a regulation “relating to sales,” and as such conflicts with the express preemption provision and enters an area occupied by the state.   (Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 291, 219 Cal.Rptr. 467, 707 P.2d 840;  Tri County Apartment Assn. v. City of Mountain View, supra, 196 Cal.App.3d 1283, 1293–1294, 242 Cal.Rptr. 438.)

Although the general law does not regulate all aspects of retail sales of aerosol paint containers, the preemption provision “indicate[s] clearly that a paramount state concern will not tolerate further or additional local action.”  (People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d 476, 485, 204 Cal.Rptr. 897, 683 P.2d 1150.)


Judgments affirmed.

HINZ, Associate Justice.

KLEIN, P.J., and CROSKEY, J., concur.

Copied to clipboard