Malone v. City of Omaha , 294 Neb. 516 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/19/2016 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
MALONE v. CITY OF OMAHA
Cite as 294 Neb. 516
John J. M alone, Sr., appellant, v.
City of Omaha, appellee.
___ N.W.2d ___
Filed August 19, 2016. No. S-15-676.
1. Ordinances: Appeal and Error. Interpretation of a municipal ordi-
nance is a question of law, on which an appellate court reaches an
independent conclusion irrespective of the determination made by the
court below.
2. Courts: Statutes: Ordinances. When reviewing preemption claims, a
court is obligated to harmonize, to the extent it legally can be done, state
and municipal enactments on the identical subject.
3. Statutes: Appeal and Error. The interpretation of statutes and regu-
lations presents questions of law which an appellate court reviews
de novo.
4. Ordinances: Presumptions: Proof. Courts generally presume that leg-
islative or rulemaking bodies, when enacting ordinances or rules, are
acting within their authority. The burden to show otherwise rests on the
party challenging the validity of the ordinance or rule.
5. Municipal Corporations: Ordinances. To overturn a city ordinance on
the ground that it is unreasonable and arbitrary or that it invades private
rights, the evidence of such facts should be clear and satisfactory.
6. Municipal Corporations: Ordinances: Presumptions. In determin-
ing the validity of a city ordinance regularly passed in the exercise of
police power, the court will presume that the city council acted with
full knowledge of the conditions relating to the subject of munici-
pal legislation.
7. Municipal Corporations: Legislature. In the exercise of police power
delegated by the state Legislature to a city, the municipal legislature,
within constitutional limits, is the sole judge as to what laws should
be enacted for the welfare of the people and as to when and how such
police power should be exercised.
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MALONE v. CITY OF OMAHA
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8. Legislature: Statutes: Municipal Corporations: Ordinances.
Preemption of municipal ordinances by state law is based on the fun-
damental principle that municipal ordinances are inferior in status and
subordinate to the laws of the state. Municipal laws are inferior to state
law, because a municipal corporation derives all of its powers from the
state and has only such powers as the Legislature has seen fit to grant to
it; as such, in the case of a direct conflict between a statute and a city
ordinance, the statute is the superior law.
9. Statutes: Legislature: Intent. There are three types of preemption: (1)
express preemption, (2) field preemption, and (3) conflict preemption.
In all three cases, the touchstone of preemption analysis is legisla-
tive intent.
10. Political Subdivisions: Statutes: Legislature: Intent. Express preemp-
tion occurs when the Legislature has expressly declared in explicit statu-
tory language its intent to preempt local laws.
11. ____: ____: ____: ____. Field preemption and conflict preemption
arise in situations where the Legislature did not explicitly express
its intent to preempt local laws, but such can be inferred from other
circumstances.
12. ____: ____: ____: ____. In field preemption, legislative intent to pre-
empt local laws is inferred from a comprehensive scheme of legislation.
13. Statutes: Political Subdivisions. When there is not comprehensive
legislation on a subject, local laws may cover an authorized field of
local laws not occupied by general laws, or may complement a field not
exclusively occupied by the general laws.
14. Political Subdivisions: Statutes: Legislature. The mere fact that the
Legislature has enacted a law addressing a subject does not mean that
the subject matter is completely preempted. But where the state has
occupied the field of prohibitory legislation on a particular subject, there
is no room left for local laws in that area and a political subdivision
lacks authority to legislate with respect to it.
15. Political Subdivisions: Statutes: Legislature: Intent. In conflict pre-
emption, legislative intent to preempt local laws is inferred to the extent
that a local law actually conflicts with state law.
16. Constitutional Law. The liberty to contract, the right to acquire and sell
property in a lawful manner, and the right to conduct lawful business are
constitutionally protected rights.
17. Statutes: Constitutional Law. A regulatory statute adopted by virtue of
the police power which has no reasonable relation to the public health,
safety, and welfare is invalid. The test of validity is the existence of
a real and substantial relationship between the exercise of the police
power and the public health, safety, and welfare.
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MALONE v. CITY OF OMAHA
Cite as 294 Neb. 516
18. ____: ____. A statute, under the guise of a police regulation, which
does not tend to preserve the public health, safety, and welfare is an
unconstitutional invasion of the personal and property rights of the
individual.
Appeal from the District Court for Douglas County: M arlon
A. Polk, Judge. Affirmed.
Brian J. Koenig and Eric A. Nanfito, of Koley Jessen, P.C.,
L.L.O., for appellant.
Alan M. Thelen, Deputy Omaha City Attorney, and Jennifer
J. Taylor for appellee.
Heavican, C.J., Wright, Cassel, Stacy, and K elch, JJ., and
Inbody and R iedmann, Judges.
Heavican, C.J.
I. INTRODUCTION
The City of Omaha (City) enacted ordinance No. 39090,
which required contractors doing work within the City to
obtain a license. John J. Malone, Sr., challenged the ordinance
on various grounds. Most of the grounds were dismissed fol-
lowing the City’s motion for summary judgment; the last was
dismissed following a bench trial. At issue on appeal is the
City’s authority to enact this ordinance. We affirm.
II. FACTUAL BACKGROUND
Ordinance No. 39090 was placed on the Omaha City Council
agenda for a first reading on May 3, 2011. The original ordi-
nance provided that it was for “the licensing and regulation of
general contractors.”
A second reading was on the agenda for a meeting held on
May 10, 2011, and the public was invited to testify. Notice
of this hearing was published and indicated that the ordi-
nance concerned licensing and regulation of general contrac-
tors. In response to opposition, the ordinance was laid over
and revised.
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MALONE v. CITY OF OMAHA
Cite as 294 Neb. 516
The ordinance was eventually enacted on August 16, 2011.
The agenda for that meeting noted that the ordinance con-
cerned licensing and regulation of general contractors and
that amendments to the ordinance would be considered. Those
amendments were eventually incorporated into the ordinance
as enacted.
Generally speaking, the changes from the proposed to the
adopted versions of the ordinance were (1) a change through-
out of the term “general contractor” to “contractor” and (2)
the removal from the definition of contractor, and thus from
the reach of the ordinance, (a) “landlords and property own-
ers performing work on property that they own but do not
reside in,” (b) persons performing routine maintenance and
handyman services, and (c) certain organizations using a vol-
unteer labor force. The adopted ordinance, with changes to
the proposed ordinance as noted by underscores and strike­
throughs, provided:
Sec. 43-273. General c Contractor defined.
(a) For purposes of this article, a “general contractor”
is defined as any person or entity who contracts with
the owner or tenant of property to build, construct, alter,
repair, add to, subtract from, or otherwise improve any
building or structure upon the said property, within the
city or its three-mile extraterritorial jurisdiction. The term
also applies to landlords and property owners performing
work on property that they own but do not reside in. The
term “general contractor” shall not include any of the
following:
(1) aA tradesman licensed by the city who performs
work within his or her licensed trade, or any subcontrac-
tor performing work under a contract with a licensed
general contractor.
(2) A person performing work defined as routine main-
tenance in section 43-72.
(3) A person performing work under the definition of
“handyman services” in section 43-72.
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(4) Any organization that constructs new or renovates
existing structures with a mostly volunteer labor force.
Such organization shall have at least one of the follow-
ing: (a) at least one person on [its] staff who is a licensed
contractor holding a Class “C” or above license, (b) a
licensed contractor holding a Class “C” or above license
serving as a board member acting as [its] license holder,
or (c) a volunteer licensed contractor holding a Class “C”
or above license working on the building site providing
oversight and mentoring for the work crew.
On June 25, 2013, Malone filed suit challenging the ordi-
nance. As relevant on appeal, the complaint alleged that the
passage of ordinance No. 39090 did not comply with the pro-
cedural requirements of the Omaha City Charter, art. II, § 2.12
(1984); that the ordinance placed an unfair restriction on and
monopolized the contracting industry in the City; and that the
ordinance violated Malone’s constitutional rights.
The district court granted the City’s motion for summary
judgment on all but one of Malone’s claims. That claim, iden-
tified in the complaint as “Injuries to Business and Property,”
proceeded to a bench trial. Following trial, the district court
found for the City, concluding that the City was within its
power to enact the ordinance and that the ordinance did not
prevent Malone from working on his own property.
Malone appealed. Pursuant to our statutory authority to
regulate the dockets of the appellate courts of this state, we
moved the case to our docket.1
III. ASSIGNMENTS OF ERROR
Malone assigns, restated and consolidated, that the district
court erred in (1) not finding that the ordinance was enacted
in violation of § 2.12 of the City’s charter; (2) finding that the
City was empowered under its charter to enact the ordinance;
(3) not finding that the ordinance was monopolistic and failed
1
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2015).
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to further the public health, safety, or welfare; (4) not finding
that the ordinance was unlawful because it was preempted by
the Legislature’s occupation of the fields of the licensing of
the health, safety, and welfare of the public, the construction
industry, and the lead abatement industry; (5) finding that the
ordinance did not violate Malone’s constitutional right to con-
duct a lawful business; (6) granting the City’s motion for sum-
mary judgment; and (7) not granting permanent injunction and
instead dissolving the temporary injunction.
IV. STANDARD OF REVIEW
[1] Interpretation of a municipal ordinance is a question of
law, on which we reach an independent conclusion irrespective
of the determination made by the court below.2
[2] When reviewing preemption claims, a court is obligated
to harmonize, to the extent it legally can be done, state and
municipal enactments on the identical subject.3
[3] The interpretation of statutes and regulations presents
questions of law which we review de novo.4
V. ANALYSIS
1. § 2.12
In his first assignment of error, Malone contends that the
district court erred when it failed to find that the ordinance was
passed in violation of § 2.12 of the City’s charter.
That section provides:
Every legislative act of the Council shall be by ordi-
nance, and other acts, if so required by law, shall also
be by ordinance. Every ordinance shall be offered in
writing and signed by the elected official introducing
2
State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919, 766 N.W.2d
134 (2009).
3
Butler County Dairy v. Butler County, 285 Neb. 408, 827 N.W.2d 267
(2013).
4
See id.
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it. The enacting clause of every ordinance shall be as
follows: “Be it ordained by the City Council of the
City of Omaha:”. No ordinance shall contain more than
one subject, and the same shall be clearly expressed in
the title. No ordinance, except emergency ordinances
enacted pursuant to section 2.13, shall be passed earlier
than two weeks after its introduction or go into effect
before fifteen days from the time of its passage, but
in the case of ordinances not of a legislative character,
the Council may provide by rule for an earlier effective
date. There shall be three readings of every ordinance,
which may be satisfied by the title being published on
the printed agenda, at separate meetings and, if not read
or considered at consecutive meetings, any postponement
shall be to a date certain. There shall be opportunity pro-
vided for a public hearing at the same time as the second
reading unless a different time shall be fixed at the first
reading. At least three days before the public hearing,
the title of the ordinance and a notice of the time and
place of the public hearing shall be published at least
once in the official newspaper. Every ordinance enacted
shall, not later than ten days after its effective date, be
published in the official newspaper, unless the Council
shall waive this requirement and in lieu thereof direct
the publication of only the title and a summary of the
ordinance’s contents.5
On appeal, Malone asserts that when the City amended the
title from “licensing and regulation of general contractors” to
“licensing and regulation of contractors,” it was required to
provide notice anew of that change in order to comply with
§ 2.12. Malone bases this argument on his perception of the
distinction between “general contractor” and “contractor.”
We disagree that the City was required to recommence
the notice process on these facts. As Malone notes, § 2.12
5
§ 2.12 (emphasis supplied).
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MALONE v. CITY OF OMAHA
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provides that the title be published along with the public hear-
ing information in order to provide notice that the ordinance
would be discussed. There is no dispute that this notice was
sufficient at the outset and that a hearing on the ordinance
was held.
But the record shows that after this initial public hearing,
amendments were made to the proposed ordinance in response
to the feedback received at the hearing. There is nothing in
§ 2.12 that requires that after holding a public hearing, the
notice process begins anew when changes are made to the
ordinance. Indeed, the purpose behind the title is to provide
notice; once it has performed that function, the title no longer
serves any useful purpose.
We disagree with Malone’s contention that the change wid-
ened the scope of the ordinance because “general contractor”
is a narrower term than “contractor.” The amendment of the
term “general contractor” to “contractor” did not change the
original meaning of the term as expressed in the initial draft,
and in fact, the changes acted to remove certain individuals
from the definition of the term “contractor.”
Finally, the amendment to the ordinance’s title was purely
stylistic in nature as it simply changed the title to comport with
the amendments to the ordinance.
We conclude that Malone’s first assignment of error is with-
out merit.
2. Power to License
(a) City’s Authority
Malone next argues that the City lacked the authority to pass
the ordinance, because the City has no authority to license con-
tractors. Malone makes several arguments as to why the City
lacks this power: (1) The power is not granted by the City’s
charter, (2) case law limits the power to license, and (3) the
power to license has been preempted by the Legislature. We
note that there is conflicting authority regarding the nature of
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the City’s charter. But we need not reach Malone’s argument
on this point, because we conclude that, in fact, case law and
Nebraska statutes support the conclusion that the Legislature
has authorized the City to pass this ordinance and that the ordi-
nance is not preempted by the Legislature. We therefore find
Malone’s arguments to be without merit.
[4-7] Courts generally presume that legislative or rulemak-
ing bodies, when enacting ordinances or rules, are acting
within their authority.6 The burden to show otherwise rests on
the party challenging the validity of the ordinance or rule.7 To
overturn a city ordinance on the ground that it is unreasonable
and arbitrary or that it invades private rights, the evidence
of such facts should be clear and satisfactory.8 In determin-
ing the validity of a city ordinance regularly passed in the
exercise of police power, the court will presume that the city
council acted with full knowledge of the conditions relating
to the subject of municipal legislation.9 In the exercise of
police power delegated by the state Legislature to a city, the
municipal legislature, within constitutional limits, is the sole
judge as to what laws should be enacted for the welfare of
the people and as to when and how such police power should
be exercised.10
The Legislature has passed several different statutes
empowering cities to regulate building construction. To begin,
Neb. Rev. Stat. § 71-6406(1) (Supp. 2015) of the Building
Construction Act provides that “[a]ny political subdivision
may enact, administer, or enforce a local building or construc-
tion code if or as long as such political subdivision adopts
the state building code.” Both the City and the State have
6
See Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005).
7
Id.
8
Wolf v. City of Omaha, 177 Neb. 545, 129 N.W.2d 501 (1964).
9
Id.
10
Id.
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adopted the appropriate building codes.11 Section 71-6406(3)
also allows a political subdivision, such as the City, to collect
fees which monitor a builder’s application of codes.
Still other relevant grants of power are enumerated in
Nebraska law. Neb. Rev. Stat. § 14-102 (Supp. 2015) sets
forth the powers of a city of the metropolitan class. Section
14-102(32) empowers the City “[t]o prescribe fire limits and
regulate the erection of all buildings and other structures within
the corporate limits . . . .” Section 14-102(33) grants the City
the power “[t]o regulate the construction, use, and maintenance
of party walls, to prescribe and regulate the thickness, strength,
and manner of constructing stone, brick, wood, or other build-
ings and the size and shape of brick and other material placed
therein . . . .” That subsection also allows the regulation of
other specific elements of building construction, including,
among others, fire escapes, elevators, plumbing, pipefitting,
chimneys, fireplaces, and stairways.
The City also has been granted the following broad powers:
To make and enforce all police regulations for the good
government, general welfare, health, safety, and security
of the city and the citizens thereof in addition to the
police powers expressly granted herein; and in the exer-
cise of the police power, to pass all needful and proper
ordinances and impose fines, forfeitures, penalties, and
imprisonment at hard labor for the violation of any ordi-
nance, and to provide for the recovery, collection, and
enforcement thereof; and in default of payment to provide
for confinement in the city or county prison, workhouse,
or other place of confinement with or without hard labor
as may be provided by ordinance.12
We therefore conclude that the City has the power to regulate
contractors.
11
Neb. Rev. Stat. § 71-6403 (Supp. 2015); Omaha Mun. Code, ch. 43, art. II,
§ 43-121 (2008).
12
§ 14-102(25). See, also, § 14-102(3) and (5).
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Still, Malone contends that the power to regulate does not
include the power to license. He cites to State v. Wiggenjost13
and Gray v. City of Omaha14 in support of this assertion. In
Gray, this court held that the City of Omaha did not have the
authority to license a person engaged in the occupation of
installing sidewalks. And in Wiggenjost, we held that the city
of Lincoln did not have the authority to license a sign painter.
We disagree with this assertion. These cases do not suggest
that licensure may never be permitted; rather, both simply sug-
gest that licensure on the facts of those cases did not affect the
public’s health, morals, safety, or welfare.
And indeed, in State v. Phillips,15 we held that the city of
Lincoln did have the authority to license a person engaged in
the business of house moving. We noted:
It may be stated as a broad proposition that there are
some occupations which every citizen may engage in as a
matter of right and which are not subject to regulation by
public authorities. Such occupations, however, as may in
their performance affect public health, morals, safety or
welfare are proper subjects of regulation under the police
power . . . .16
This raises another of Malone’s assertions—that the health,
safety, and welfare of the citizenry was not affected by this
ordinance. Malone argues that public health, safety, and wel-
fare would be better served if more individuals obtained per-
mits for work done within the City’s limits, because that work
would then be inspected. Malone also notes that virtually all
work that is inspected eventually passes that inspection and
that a contractor who would not pull a permit will also not
get licensed.
13
See State v. Wiggenjost, 130 Neb. 450, 265 N.W. 422 (1936).
14
Gray v. City of Omaha, 80 Neb. 526, 114 N.W. 600 (1908).
15
State v. Phillips, 133 Neb. 209, 274 N.W. 459 (1937).
16
Id. at 211, 274 N.W. at 460 (emphasis supplied).
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Malone is correct insofar as his argument goes. But there
is nothing that requires the licensing ordinance at issue here
to be perfect; it just has to impact public health, safety, and
welfare. And there is little doubt but that it does. A witness
for the City testified that the purposes behind licensing con-
tractors were to decrease the number of reinspections and to
ensure that contractors working in the field understood what
inspectors expected of them and their work. Yet another rea-
son was to keep closer watch on the contracting community.
The witness testified that those goals had been met. And more
generally, one stated purpose behind requiring a building code
is that such standards are necessary to “safeguard life, health,
property, and the public welfare by regulating and controlling
the design, construction, quality of materials, use and occu-
pancy, and maintenance of buildings and structures within
this state.”17
The City has the authority under state law to enact such
an ordinance. Malone’s arguments to the contrary are with-
out merit.
(b) Monopoly
Malone also asserts that the ordinance is monopolistic
because it is more difficult for individual and small firm con-
tractors to obtain licensure than it is for larger contracting
firms. Malone states that the court in Gray specifically noted
that the sidewalk licensing ordinance at issue did not “‘creat[e]
a monopoly’” but that it was “‘monopolistic in its tendency,
and would incline to lessen competition.’”18
We disagree with Malone. The requirements for licensure
are the same under the ordinance regardless of who is apply-
ing for the license, and the record shows that one licensed
contractor per job is generally sufficient regardless of the
number of individuals also working that same job.
17
Neb. Rev. Stat. § 71-6402(2) (Reissue 2009).
18
Brief for appellant at 32, quoting Gray v. City of Omaha, supra note 14.
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Gray is inapplicable, because there the court also noted sim-
ply that even if something might be monopolistic, it might still
be necessary for a city to exercise its power to regulate, for
reasons of public safety.19 And we have concluded that public
safety is at issue here.
It is true that licensing contractors will not catch every
instance of poor contracting work, because some contractors
will simply not obtain a license, but licensure nevertheless
impacts the public’s health, safety, and welfare. Malone’s argu-
ment to the contrary is without merit.
(c) Legislative Preemption
Malone next argues that the district court erred in not find-
ing that the ordinance was preempted by state law. Malone
contends that contractor licensing is preempted by (1) the
Building Construction Act,20 (2) the Contractor Registration
Act,21 and (3) the Residential Lead-Based Paint Professions
Practice Act.22
[8] “‘[P]reemption of municipal ordinances by state law
is based on the fundamental principle that “municipal ordi-
nances are inferior in status and subordinate to the laws of the
state.”’”23 Further, we have explained that municipal laws are
inferior to state law, because “‘a municipal corporation derives
all of its powers from the state and . . . has only such powers
as the Legislature has seen fit to grant to it,’” concluding from
this fact that “‘in the case of a direct conflict between a statute
and a city ordinance, the statute is the superior law.’”24
19
See Gray v. City of Omaha, supra note 14.
20
Neb. Rev. Stat. § 71-6401 et seq. (Reissue 2009, Cum. Supp. 2014 &
Supp. 2015).
21
Neb. Rev. Stat. § 48-2101 et seq. (Reissue 2010).
22
Neb. Rev. Stat. § 71-6318 et seq. (Reissue 2009).
23
Butler County Dairy v. Butler County, supra note 3, 285 Neb. at 431, 827
N.W.2d at 286.
24
Id. at 431, 827 N.W.2d at 286-87.
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[9-11] There are three types of preemption: (1) express pre-
emption, (2) field preemption, and (3) conflict preemption.25
In all three cases, “‘[t]he touchstone of preemption analysis
is legislative intent.’”26 Express preemption occurs when the
Legislature has “‘expressly declare[d] in explicit statutory lan-
guage its intent to preempt’ local laws.”27 Field preemption and
conflict preemption arise in situations where the Legislature
did not explicitly express its intent to preempt local laws, but
we can infer such intent from other circumstances.
[12-14] In field preemption, legislative intent to preempt
local laws is “‘inferred from a comprehensive scheme of
legislation.’”28 When there is not comprehensive legislation
on a subject, local laws “‘“may cover an authorized field of
local laws not occupied by general laws, or may complement
a field not exclusively occupied by the general laws.”’”29
Indeed, “‘“[t]he mere fact that the legislature has enacted a
law addressing a subject does not mean that the subject mat-
ter is completely preempted.”’”30 But “‘“where the state has
occupied the field of prohibitory legislation on a particular
subject,”’” there is no room left for local laws in that area
and a political subdivision “‘“lacks authority to legislate with
respect to it.”’”31 Because a comprehensive scheme of legisla-
tion effectively keeps localities from legislating in that area,
we infer from such a scheme that the Legislature intended to
preempt local laws.
[15] In conflict preemption, legislative intent to pre-
empt local laws is inferred “‘to the extent that [a local law]
25
Id.
26
Id. at 431, 827 N.W.2d at 287.
27
Id.
28
Id. at 432, 827 N.W.2d at 287.
29
Id.
30
Id.
31
Id.
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actually conflicts with state law.’”32 As this court has previ-
ously explained, “‘“[t]hat which is allowed by the general laws
of the state cannot be prohibited by ordinance, without express
grant on the part of the state. Conversely, without express leg-
islative grant, an ordinance cannot authorize what the statutes
forbid.”’”33 Nonetheless, when a court considers preemption
claims, it “‘is obligated to harmonize, to the extent it legally
can be done, state and municipal enactments on the identi-
cal subject.’”34
(i) Building Construction Act
Malone first argues that the licensing ordinance is pre-
empted by the Building Construction Act. The purposes of that
act are to (1) adopt a state building code, (2) provide standards
with respect to building construction, and (3) provide for the
use of innovation in building construction.35 This act also
requires cities to adopt a building code.36
Malone argues that the Building Construction Act does not
allow for the licensing of contractors and neither does the
State Building Code and that as such, the City cannot license
them. We note that Malone is making field and conflict pre-
emption arguments. As there is no express language dealing
with contractor licensing, express preemption has no applica-
bility here.
As noted above, legislative intent to preempt local laws is
inferred from a comprehensive scheme of legislation.37 When
there is not comprehensive legislation on a subject, local laws
may cover an authorized field of laws not occupied by general
32
Id.
33
Id.
34
Id.
35
§ 71-6402.
36
Id.
37
Id.
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laws, or may complement a field not exclusively occupied by
the general laws. Only where there is no room left for local
laws in that area does a political subdivision lack authority to
legislate with respect to it.
The primary purposes of the Building Construction Act are
to adopt a building code to govern the “construction, recon-
struction, alteration, and repair of buildings” and to control the
“design, construction, quality of materials, use and occupancy,
and maintenance of buildings.”38 Thus, the reason for this
act is to ensure that buildings are built safely and correctly.
This act does not control in any way who builds the building,
only that the person involved in the construction do so safely.
Moreover, as we found above, this act forms part of the basis
of the City’s statutory authority to enact this ordinance. As
such, we conclude that the ordinance is not preempted by the
Building Construction Act.
(ii) Contractor Registration Act
Malone also argues that the Contractor Registration Act
preempts the City’s ordinance. The purpose of the Contractor
Registration Act is to require contractors doing business in the
state to be registered with the state’s Department of Labor.
Section 48-2102 expressly provides that “[i]t is not the intent
of the Legislature to endorse the quality or performance of
services provided by any individual contractor.”
Malone argues that the fact of registration, along with the
statement that the State is not endorsing the quality or per­
formance of a contractor, acts to preempt the ordinance. But
this argument is not persuasive.
The mere fact that the Legislature has enacted a law
addressing a subject does not mean that the subject matter is
completely preempted.39 There is nothing in the Contractor
38
Id.
39
Butler County Dairy v. Butler County, supra note 3.
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Registration Act to suggest that a city cannot regulate contrac-
tors simply because the State also requires them to register.
When deciding issues of preemption, an appellate court is
required to try to harmonize the state and local law.40 Here,
the state law requires contractors to have their names entered
into a state database. The local ordinance requires testing and
licensing at the local level. The two can exist together, and the
ordinance is not preempted by this act.
(iii) Residential Lead-Based Paint
Professions Practice Act
Finally, Malone argues that the Residential Lead-Based Paint
Professions Practice Act preempts the ordinance. The purpose
of this act is to set forth procedures and requirements for
accreditation of training programs, licensure, and work practice
standards for performing lead-based paint activities.
We cannot conclude that this act preempts the ordinance at
question here. This is particularly true when the act specifically
notes that
abatement does not include renovation, remodeling, land-
scaping, or other activities when such activities are not
designed to permanently eliminate lead-based paint haz-
ards but instead are designed to repair, restore, or remodel
a structure or dwelling even if such activities may inci-
dentally result in a reduction or elimination of lead-based
paint hazards.41
This act, then, controls the removal of the lead-based paint
hazards; the ordinance controls the licensure of activities
that are expressly excluded from the definition of lead-based
paint abatement.
There is no merit to Malone’s second through fourth assign-
ments of error.
40
Id.
41
§ 71-6319.02.
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3. R ight to Conduct Lawful Business
Malone next argues that the district court erred in con-
cluding that the ordinance did not violate his constitutional
right to conduct a lawful business and his right to privacy
and property. Malone argues that the ordinance does not
increase public safety in any way, yet it requires him to be
licensed to engage in his contracting business, and that such
is unconstitutional.
[16-18] The liberty to contract, the right to acquire and sell
property in a lawful manner, and the right to conduct lawful
business are constitutionally protected rights.42 A regulatory
statute adopted by virtue of the police power which has no
reasonable relation to the public health, safety, and welfare
is invalid. 43 The test of validity, then, is the existence of a
real and substantial relationship between the exercise of the
police power and the public health, safety, and welfare.44 A
statute under the guise of a police regulation, which does not
tend to preserve the public health, safety, and welfare, is an
unconstitutional invasion of the personal and property rights of
the individual.45
Malone is correct that he has a constitutional right to con-
duct a lawful business. But so long as the regulation adopted
by the City bears a reasonable relationship to the public
health, safety, and welfare, the regulation of that right is
permissible.
We have already concluded that the ordinance in this case
operated to improve the health, safety, and welfare of the
City’s residents. That the regulation could have gone further,
or that other regulatory methods might also be effective, does
42
State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987), abrogated on
other grounds, State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).
43
United States Brewers’ Assn., Inc. v. State, 192 Neb. 328, 220 N.W.2d 544
(1974).
44
Id.
45
Id.
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not affect our conclusion that this ordinance bears a reason-
able relationship to the public’s health, safety, and welfare.
There is no merit to Malone’s fifth assignment of error.
4. R emaining Assignments of Error
Having concluded that the district court did not err as
explained above, we find no merit to Malone’s sixth and sev-
enth assignments of error.
VI. CONCLUSION
The decision of the district court is affirmed.
A ffirmed.
Connolly and Miller-Lerman, JJ., not participating.