Cigarette and Tobacco Sale and Use Case: City Home Rule Prevails

JurisdictionKansas,United States
CitationVol. 89 No. 6 Pg. 26
Pages26
Publication year2020
Cigarette and Tobacco Sale and Use Case: City Home Rule Prevails
No. 89 J. Kan. Bar Assn 6, 26 (2020)
Kansas Bar Journal
August, 2020

July 2020

by Mike Heim

Smoking can be hazardous to your health. Smoking is also a crime under state law if you are under 18 years of age, but in at least 25 cities and counties in this state, the lawful age has been raised to 21.[1] Why this disparity?[2] The answer is the home rule power of cities and counties.

A uniform state law[3] applies to persons under 18 and makes it a crime, a class B misdemeanor, for any person:

1. to sell, furnish or distribute cigarettes, electronic cigarettes or tobacco products to any person under 18 years of age;

2. to purchase or attempt to purchase cigarettes, electronic cigarettes or tobacco products if the person is under 18 years of age; or

3. to possess or attempt to possess cigarettes, electronic cigarettes or tobacco products if the person is under 18 years of age.[4]

How can at least 25 cities and counties change the application of a criminal statute that applies statewide? The Kansas Supreme Court examined this question in DWAG-FYS Manufacturing., Inc., d/b/a The Vapebar Topeka, and Puffs "n” Stuff, LLC. v. City of Topeka [5](hereinafter "Vapebar"). The court affirmed the fact that cities have broad home rule powers when it upheld the city of Topeka's "ordinary" home rule that a person must be at least 21 years of age for the purchase or possession, sale or distribution of cigarettes, electronic cigarettes and other tobacco products or liquid nicotine.

Home rule allows a city (or a county[6]) to impose a different standard locally for the sale of cigarettes and other tobacco products than that imposed by a uniform state law even when all other provisions of the state law apply statewide. The Vapebar court reaffirmed that a new era in city-state relations was inaugurated in Kansas on July 1, 1961, the effective date of a city home rule constitutional amendment approved by voters at the November 1960 general election. Since that date, cities can look directly to the Kansas Constitution for the source of their powers[7] and are no longer dependent upon specific enabling acts of the legislature.[8] In other words, Dillon's Rule is dead in regard to cities and counties.[9]

City Home Rule: Constitutional Basis

The key to the broad scope of city home rule powers is found in the following provisions of Article 12 §5 of the Kansas Constitution:

(i) "Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions . . ."[10]

(ii) "Cities shall exercise such determinations by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments applicable uniformly to all cities..."[11]

(iii) "Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city."[12]

(iv) "Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government."[13]

The apparent redundancy in points (ii) and (iii) above simply clarify that the legislature can only bind cities by the passage of uniform laws that apply to all cities in the exact same way regardless of whether the law deals with a statewide concern or to other uniform enactments.

Certain general characteristics of the city home rule amendment are that it applies to all cities regardless of their size. Further, the home rule amendment is self-executing in that there is no requirement that the legislature enact any law implementing it, nor are cities required to hold an election, to adopt a charter, constitution or some type of ordinance declaring their intent to exercise home rule powers. This latter feature, according to one authority, makes the Kansas home rule provisions one of the more liberal grants of home rule power in the country.[14]

How City Home Rule Powers are Exercised

Cities exercise their home rule powers by either "ordinary" ordinances or charter ordinances.[15] The use of the term "ordinary" ordinance was coined after the passage of the constitutional amendment to distinguish ordinances passed under home rule authority from charter ordinances and from other ordinances enacted by cities under specific legislative enabling acts.[16]

An "ordinary" ordinance is the most common way home rule powers are used by cities since it gives cities the power to initiate legislation by ordinance without relying on an enabling statute. "Ordinary" ordinances are subject to the same formalities and other requirements that are contained in K.S.A. 12-3001 et seq. that apply to other ordinances.[17]

Charter ordinances have constitutional formalities that are described in more detail later.[18] A city that attempts to exercise home rule powers through a resolution rather than an ordinance does not meet the constitutional requirements noted above and, as a result, any such resolution would be invalid.[19]

When "Ordinary" Ordinances May Be Used

As posed in Vapebar, there are four basic questions that need to be asked in order to determine whether an ordinary ordinance may be used to exercise home rule authority: (1) Is there a state law that governs the subject? (2) If there is a state law, is it uniformly applicable to all cities? (3) If there is a uniform law, does it preempt further action by cities? (4) If there is a uniform state law but there has been no preemption, does the local regulation conflict with the uniform law?[20] The first two questions were not in play in Vapebar because the parties agreed that both the state statute and the city ordinance governed the same subject—the regulation of tobacco products—and the state law was a uniform law applicable to all cities.

I. IS THERE A STATE LAW THAT GOVERNS THE SUBJECT?

An ordinary ordinance may be used to regulate conduct where there is no state law on the subject as illustrated by the following Kansas cases. While not all attempts to regulate conduct were upheld, it was not because of a lack of home rule authority but, rather, because the regulations were faulty for some other reason.

In Delight Wholesale Co. v. City of Overland Park,[21] the court voided a city ordinary ordinance that prohibited all huckstering and peddling on city streets. The acknowledged purpose of the ordinance was for the protection of children who would run into the street and surround the confectionery vehicles. In Kansas, however, a city can regulate but cannot absolutely prohibit legitimate business enterprises. The court concluded that the prohibition was arbitrary and unreason-able—an inappropriate use of police power.[22]

An anti-litter ordinance making it unlawful to throw a weekly "shopper" onto private property except with the consent of the owner or occupant after the publisher had been notified not to deliver the paper was upheld in City of Fredonia v. Chanute Tribune.[23] The court found that the delivery of a shopper paper, after the publisher had received notice not to do so, converted the paper into litter.

The regulation of searchlights used for advertising purposes under a zoning ordinance requiring a special use permit was the issue in Robert L. Rieke Bldg. Co. v. City of Overland Park .[24]In upholding the ordinance, the court rejected arguments that the ordinance denied equal protection and infringed on commercial speech rights under the First Amendment.

An Overland Park ordinance prohibited the sale of drug paraphernalia unless those items were kept in a part of the business closed to minors. The ordinance was upheld against constitutional challenges of overbreadth, vagueness and infringement on commercial speech rights under the First Amendment in the case of Cardarella v. City of Overland Park.[25]

Nude dancing regulations were reviewed in City of Wichita v. Wallace,[26] where the court found that a city ordinance regulating erotic dance studios was unconstitutionally vague. Another city ordinance banning nude dancing and establishing other regulations of drinking establishments was partially upheld in DPR, Inc. v. City of Pittsburg.[27] The court upheld the part of the ordinance that required the use of such items as pasties and G-strings as being well within the power of a city acting under the Twenty-First Amendment to the United States Constitution.

City ordinances regulating the ownership of pit bull dogs were upheld in Hearn v. City of Overland Park,[28] and in State v. Lee.[29] The court in City of Topeka v. Mayer[30] also upheld a city ordinance that prohibited a dog owner from permitting a dog to attack or bite any person upon the owner's premises. The court said the word "permit" made the ordinance broad but not necessarily vague.

II. IF THERE IS A STATE LAW, IS IT UNIFORMLY APPLICABLE TO ALL CITIES?

The clearest statement by a court concerning what constitutes a uniform enactment applicable to all cities is found in the seminal city home rule case of City of Junction City v. Griffin.[31] The Griffin court determined that the entire Kansas Code of Procedure for Municipal Courts (K.S.A. 12-4101 through 12-4707) did not apply uniformly to all cities since one section of that act, K.S.A. 12-4105, required municipal judges in cities of the first class to be attorneys but did not require the same of municipal judges in cities of the second or third class. The court noted that this section was...

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