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Modern Cigarette, Inc. v. Town of Orange
Citations: 256 Conn. 105; 774 A.2d 969; 2001 Conn. LEXIS 122Docket: SC 16259
Court: Supreme Court of Connecticut; May 8, 2001; Connecticut; State Supreme Court
The appeal addresses whether the town of Orange's ordinance banning all cigarette vending machines is preempted by General Statutes 12-289a. The trial court ruled that state law preempted the ordinance, declaring it invalid and enjoining its enforcement. However, the appellate court determined that General Statutes 12-289a does not prevent the town from enacting such a ban to protect public health and safety. The ordinance, adopted on May 13, 1998, prohibits dispensing cigarettes from vending machines and was based on legislative findings that highlighted a significant increase in teenage smoking and ineffective existing laws to prevent minors from purchasing cigarettes. Modem Cigarette, Inc., which owned a vending machine in the town, challenged the ordinance on several grounds: preemption by state law, a taking without just compensation, violation of substantive due process rights, and the unconstitutionality of the state’s delegation of power to municipalities regarding the ban. The trial court recognized that both the state and the town have legitimate interests in regulating tobacco to protect citizens and prevent youth access. Despite existing statutes against selling tobacco to minors, evidence indicated that minors were still able to purchase cigarettes from vending machines with relative ease. A 1988 survey showed minors succeeded in buying cigarettes from vending machines 60% of the time. A survey revealed that minors are twice as likely to purchase cigarettes from vending machines than from convenience stores, and they have managed to illegally buy cigarettes from machines designed to require face-to-face transactions with operators. The trial court recognized that cigarette vending machines are effectively age-blind, making them a significant source of tobacco for minors, despite state laws aimed at restricting their accessibility. The court acknowledged that the challenged ordinance aimed to curb youth access to tobacco, reflecting the town's concern over teenage smoking as a public health issue. The ordinance was deemed rationally and reasonably related to its purpose of preventing youth access to tobacco. However, the court ultimately ruled that state statute 12-289a(h) preempts the ordinance, declaring it invalid. The plaintiff subsequently withdrew damage claims, leading to a judgment in favor of the plaintiff. Defendants appealed, and the case was transferred to a higher court for review. The court noted the ordinance was an exercise of the town's police power to regulate businesses for public safety. Such regulations must be rationally related to their objectives and can only be invalidated in cases of unreasonableness or discrimination. The court presumes the validity of ordinances unless proven otherwise and considers the legislative intent to serve public welfare. Additionally, the determination of whether a local ordinance is preempted by state law requires an assessment of legislative intent and potential conflicts with the statute, focusing on the underlying policy and objectives. In the case of Helicopter Associates, Inc. v. Stamford, the court established that municipalities can enact ordinances addressing matters of concurrent state and local concern, provided there is no conflict with state law. The ability for local governments to regulate more comprehensively than state statutes is affirmed, as long as the local regulations do not contradict state mandates. Specifically, if a local ordinance sets higher standards than state law, it is not inherently inconsistent unless it permits actions that the statute forbids or prohibits actions that the statute allows. If both the ordinance and statute are prohibitory, and the ordinance simply extends the prohibition without counteracting the statute, no conflict exists. The interpretation of statutes involves discerning the legislature's intent by analyzing the statutory language, legislative history, and its relationship with existing laws. Courts must apply common sense and assume a rational legislative outcome was intended. The review of this statutory construction issue is plenary. In this case, the town ordinance does not prohibit the sale of cigarettes entirely but aims to restrict access to tobacco products for minors by preventing vending machine sales. The ordinance's objective is to safeguard minors, thus aligning with the legislative intent without conflicting with existing statutes. The ordinance aims to eliminate vending machines as a source of tobacco products for minors, addressing the issue that minors have successfully used these machines despite legislative restrictions. The trial court noted that even with token purchase requirements and adult supervision, minors still access tobacco products. The legislature has expressly authorized local regulation for public health, granting towns broad police powers under General Statutes 7-148(c)(7)(H)(xi). The specific legislation under consideration, Section 12-289a, reflects a legislative intent to prevent youth access to cigarettes through vending machines, which are to be placed only in adult-accessible areas. Violations of these restrictions can result in fines and machine removal after repeated offenses. Legislative history indicates that over 80% of nicotine addicts start before age eighteen, highlighting the urgency of preventing youth access to tobacco. The trial court recognized that vending machines are a significant source of illegally obtained tobacco for minors, and thus, comprehensive government action is necessary. Section 12-289a clarifies that municipalities can impose stricter conditions on vending machine use, affirming their enforcement responsibility. The trial court determined that General Statutes 12-289a(h) does not grant municipalities the authority to impose outright bans on cigarette vending machines, as it only refers to "more restrictive conditions" rather than prohibition. Consequently, the court found the local ordinance banning such machines to be "irreconcilably inconsistent" with state law. Defendants contended that the trial court misinterpreted 12-289a(h) by viewing it as a limitation on municipal regulatory power rather than as a framework allowing for greater local control, including the potential for outright bans. They argued that the authority to regulate cigarette vending machines stems from municipalities' general police powers to promote public health, as per General Statutes 7-148(c)(7)(H)(xi). The conclusion drawn is that the legislature intended to maintain municipal authority to enact health and safety ordinances, allowing municipalities to determine if conditions warranted additional regulation, including bans. The plaintiffs, however, argued that the statute only permits regulation but not prohibition, claiming that "more restrictive conditions" imply ongoing use of vending machines. Their interpretation was deemed unworkable and reminiscent of claims rejected in prior cases, notably Beacon Falls v. Posick, which considered the limits of municipal regulatory authority in light of state permits. The court in Beacon Falls confirmed the legality of a complete prohibition on certain regulated activities, addressing uncertainties from the Blue Sky Bar, Inc. case. It reiterated that while regulation does not inherently grant the power to impose absolute prohibitions, it does not preclude such authority either. The court clarified that municipal ordinances must promote public health, safety, and general welfare. The ordinance in question, aimed at regulating tobacco product access, was deemed valid as it aligned with the town's legitimate interests in safeguarding community health and preventing youth access to tobacco. Evidence presented included a 1988 survey showing minors frequently purchasing cigarettes from vending machines, even from restricted ones. The trial court noted that vending machines are a significant source of tobacco for minors, leading to the conclusion that the ordinance stemmed from concerns about teenage smoking as a public health issue. The plaintiff acknowledged the ordinance's rational relationship to public health, safety, and welfare, indicating no substantial challenge to its validity. The ordinance and the statute do not conflict, as the plaintiff incorrectly claims the ordinance invalidates a right granted by the cigarette distributor’s license under General Statutes 12-288. The regulatory framework is prohibitory; without chapter 214 and section 12-288, the plaintiff could distribute tobacco without oversight. Chapter 214 does not permit vending machines but imposes restrictions on their use, allowing municipalities to enact further prohibitions. Previous cases have established that an ordinance does not conflict with a state permit if both are prohibitory and the ordinance simply imposes stricter limits. The town's ordinance extends beyond the statute without contradicting it. The state has a vested interest in regulating youth access to tobacco, but this does not negate local authority to manage local impacts, such as the sale of cigarettes to minors. The legislature acknowledged local police power in section 12-289a(h), permitting municipalities to impose additional restrictions. Consequently, concurrent state and local concerns do not prevent local governments from legislating more comprehensively, provided it is not inconsistent with state law. The ordinance in question is upheld as valid because it aligns with the state's goal of restricting youth access to tobacco products. The court indicates that if the legislature intended to prevent local ordinances on this matter, it could have explicitly done so, as demonstrated in General Statutes 19a-342(f), which preempts municipal laws regarding smoking. Since there is no clear legislative intent to bar local action, the ordinance and the statute can coexist. The trial court's judgment is reversed, and the case is remanded for judgment in favor of the defendants. General Statutes 12-289a outlines restrictions on cigarette vending machines, including prohibitions on placements in areas primarily frequented by minors, and specifies conditions under which machines can be located in adult-only areas. It establishes penalties for violations, with increasing fines for repeated offenses and mandatory removal of machines for continued violations. Notably, municipalities retain the authority to impose stricter regulations. The Town of Orange issued a notice regarding the ordinance enactment on May 13, 1998. An ordinance has been established in the Town of Orange to regulate the advertising of tobacco-related products and to prohibit cigarette vending machines. It references Connecticut General Statutes that prohibit the sale of cigarettes to anyone under 18. The ordinance highlights significant concerns regarding the extensive advertising of cigarettes, which amounts to over $421 million annually in outdoor advertising, and notes that more than 3 million adolescents in the U.S. consume approximately 947 million packs of cigarettes each year, generating about $1 billion in sales for the tobacco industry. The ordinance points out a 50% increase in adolescent smoking rates and underscores the need for special protections for children, as recognized by the U.S. Supreme Court. It stresses that outdoor advertisements are unavoidable and exert a unique influence on the public, particularly youth, contrasting them with other advertising forms where consumers have agency in their exposure. Judicial acknowledgment of the relationship between advertising and consumption is emphasized, noting its impact on tobacco use among minors. Evidence is cited, including findings from the Surgeon General indicating that tobacco advertising encourages cigarette consumption. Additionally, statistics show that a majority of adolescent smokers prefer heavily advertised brands, and specific campaigns, like Joe Camel, have significantly increased brand recognition and market share among underage smokers. The advertising strategies employed often resonate with themes appealing to youth, reflecting a troubling familiarity with cigarette branding even among very young children. Cigarette brand recognition shows a disparity between adults and adolescents, with 13.7% of adults identifying Camel compared to 28.5% of adolescents. The Joe Camel campaign had the highest recognition among 12- and 13-year-olds. From 1991 to 1993, expenditures on tobacco promotional items surged from $184 million to $576 million, with these items lacking health warnings and easily accessible to children. A Gallup survey revealed that 30% of children aged 12 to 17 owned at least one tobacco promotional item. Despite a decline in overall cigarette advertising in magazines, ads in youth-targeted magazines remained constant. Public support for restricting tobacco advertising aimed at children is significant, with 71% favoring regulations on nicotine products, 73% believing that ads without pictures would reduce smoking appeal to kids, and 74% supporting the elimination of cigarette pack coupons promoting youth-oriented items. Between 1991 and 1996, there was a notable increase in teenage smoking rates in the Northeast, with eighth graders reporting a 61.3% rise. Local school officials observed a rise in teenage smoking, and existing laws were deemed ineffective in preventing underage cigarette purchases, particularly from vending machines. To address these issues, an ordinance was proposed to restrict tobacco advertising in publicly visible locations and prohibit the sale of tobacco through vending machines in the Town of Orange, aiming to protect minors. The ordinance specifies that no tobacco advertising may be placed in publicly visible areas, which includes outdoor billboards and storefronts, while ensuring that it does not unduly burden legitimate businesses licensed to sell tobacco products. Signs, including advertisements for cigarettes and tobacco, may be placed inside businesses selling these products if they are not visible from public or private streets. Advertisements on commercial vehicles used for transporting tobacco products are also permitted. Signs identifying the business, as long as they do not include product brand names, are allowed. However, no signs may be located within 1,000 feet of residential zones, places of worship, schools, recreational facilities, or entertainment venues for minors. Vending machines dispensing tobacco products are prohibited within the Town of Orange. Public service advertising addressing the hazards of tobacco is allowed, but it cannot feature promotional images associated with tobacco products. Permits are required for any advertising displays within the ordinance's jurisdiction. Applicants must secure a written permit from the designated Sign Administrator, who is the Zoning Enforcement Officer. Applications must detail the applicant's information, property description, and the specific location of the proposed display. Evidence of property owner consent is necessary, along with a description of the display's materials, size, and installation method. Outdoor advertising businesses must include their state license number in the application. If compliant with all laws, the Sign Administrator will issue a permit within ten days upon payment of a $500 fee, valid for the current calendar year. Permits for advertising displays are renewed annually on January 1, expiring on December 31, contingent on application and fee payment. Each permit includes an identification number, enabling the holder to install the specified advertising display. Identification number plates, provided by the Sign Administrator, must be affixed to the front of each display; failure to do so is prima facie evidence of a violation, classifying the display as a public nuisance subject to abatement. The Sign Administrator, appointed by the Board of Selectmen, is responsible for administering and enforcing the relevant regulations, including issuing permits and ensuring compliance with the ordinance. This role may be delegated to others under the Administrator's supervision. The Administrator must inspect signs, address noncompliance, and investigate complaints. Violations of the ordinance are classified as infractions, with penalties of $100 for each offense and an additional $100 for each day the violation persists. The Board of Selectmen can initiate civil actions for enforcement, seeking remedies such as temporary or permanent injunctions and reimbursement of investigation or legal costs related to the violation. Costs associated with removing, correcting, or terminating adverse effects due to violations of the ordinance are addressed, along with the potential designation of an outdoor sign as a public nuisance after multiple violations. Additional remedies laid out in the Town of Orange Zoning Regulation are applicable to this ordinance. The effective date of the ordinance is the date of enactment, with the stipulation that existing contracts shall not be negatively impacted, except for renewals post-effective date. The notice of enactment was recorded on May 18, 1998, in Orange, CT. Definitions are provided, clarifying that “person” encompasses various entities such as individuals, firms, and partnerships. The term “distributor” is defined with specific criteria, including those engaged in manufacturing, wholesale purchasing, operating retail stores, managing vending machines, importing unstamped cigarettes, or operating storage facilities for such products. The definition of a “cigarette vending machine” is specified, distinguishing it from a “restricted cigarette vending machine,” which has specific operating limitations. Finally, a “dealer” is defined as anyone not classified as a distributor who sells cigarettes, including those operating fewer than twenty-five vending machines. The term "licensed dealer" refers to a dealer authorized under this chapter's provisions. "Stamp" encompasses impressions from metering machines as per section 12-299. The terms "sale" or "sell" include gifts, exchanges, and bartering. A "buying pool" is defined as any group of retail dealers collaborating on the purchase and sale of cigarettes, with profits benefiting those dealers; distributors licensed before June 29, 1951, are included in this definition. For parts I and II of this chapter, "cigarette" refers to any roll for smoking made wholly or partially of tobacco, regardless of size or additives, as long as it has a wrapper not primarily made of tobacco and weighs three pounds or less per thousand. An "unstamped cigarette" is one lacking the requisite Connecticut cigarette tax stamps. The defendants are collectively identified as the town, its selectpersons, and the state. The stipulation outlines the plaintiff's business status, licensing fees, and reporting obligations under chapter 214 of the General Statutes, particularly addressing the ordinance and relevant statutes. The trial court agreed to focus solely on the ordinance's validity, postponing damage considerations if the plaintiff wins. General Statutes § 53-344 prohibits selling tobacco to minors under eighteen, imposing fines based on the number of offenses. Minors misrepresenting their age face fines as well. Retailers must verify the age of purchasers if in doubt, using proper identification. The ordinance specifically bans tobacco sales from vending machines but does not prohibit all tobacco sales, meaning the plaintiff can still sell its products through other means, albeit not via vending machines. The ordinance restricts how the plaintiff can merchandise its products but does not prohibit the sale of its products through adult vendors. Legislative discussions from 1992 and a 1996 amendment to statute 12-289a emphasize the intent to prevent tobacco sales to minors, highlighting that over 80% of nicotine addicts begin using before age 18. Concerns are raised about minors accessing tobacco through vending machines, with calls for stricter controls to reduce youth smoking. The remarks indicate a consensus that controlling vending machine access is vital in tackling nicotine addiction. The statute also outlines licensing requirements for distributors selling cigarettes, with specific annual fees based on the number of retail stores operated. The license for cigarette vending machines is valid from the issuance date until September 30 of the following year unless revoked by the commissioner or if the licensee discontinues business, in which case the license must be returned. The state has exclusive authority to license these machines. Claims that municipal ordinances undermine legislative intent to protect the vending machine industry lack support, as the legislature's decision to allow municipal regulation indicates no intent to preserve the industry. Additionally, the ordinance does not interfere with state taxation, as consumers can purchase cigarettes from other sources while still paying state taxes.