DocketNumber: No. CV 98-04 14676S
Citation Numbers: 1999 Conn. Super. Ct. 11099, 25 Conn. L. Rptr. 187
Judges: SILBERT, JUDGE.
Filed Date: 8/10/1999
Status: Non-Precedential
Modified Date: 4/18/2021
The parties have entered into a written stipulation regarding most of the factual issues in this case, and certain additional and largely uncontroverted evidence was presented at a hearing held on April 30, 1999. Based on the stipulation and the evidence presented, the court finds the following facts:
The plaintiff, Modem Cigarette, Inc., is a Connecticut corporation authorized to conduct business within the State. Its principal place of business is 1533 State Street in New Haven, and it has been in existence since 1942. Its principal activity is as a vending machine company and distributor of cigarettes through vending machines. Modem Cigarette is a duly licensed distributor as defined by Gen. Stats. §
Gen. Stats. §§
The Connecticut Department of Revenue Services ("DRS"), along with other state and municipal agencies, enforces state laws regarding cigarette vending machines. Modem Cigarette is required to report an inventory of all cigarette vending machines to DRS. It must also report on a monthly basis all new locations as well as any closed or lost. DRS has promulgated regulations regarding CT Page 11101 cigarette vending machines and is authorized by statute to suspend or revoke, following a hearing, the license of any cigarette distributor for violation of the licensing or regulatory requirements of Chapter 214 of the General Statutes.
Cigarette vending machines have been licensed by the State since at least 1947. See Public Act No. 464, 1947. The plaintiff presently pays an annual fee of $1,000.00 for its license. It has maintained one or more cigarette vending machines in Orange since 1965. At the time of the adoption of the ordinance, the plaintiff maintained just one cigarette vending machine in the town, at the Orange Blossom Cafe, a location it had maintained since 1965. The plaintiff has removed that machine from service in order to comply with the ordinance.
Modem Cigarette has standing to challenge the ordinance and seek injunctive and declaratory relief to the extent that the ordinance bans vending machines. The court finds that it is aggrieved by the enactment of the ordinance.
Cigarettes, of course, can be purchased at numerous locations in Orange, but the Town had only three cigarette vending machines within its borders, including the one owned by the plaintiff, at the time of the enactment of the ordinance. The sale of cigarettes through vending machines constitutes only a small portion of cigarette sales there, and, indeed, sales through vending machines make up only two or three percent of total cigarette sales nationally.
Both the State and the Town have a legitimate interest in the regulation of cigarette vending machines. Connecticut youth, and those in Orange are no exception, have had little difficulty in making illegal purchases of tobacco products from such machines. A 1998 survey commissioned by the State Department of Mental Health and Addiction Services Department, for example, demonstrated that minors were successful in their efforts to purchase cigarettes from a vending machine in six out of every ten attempts. of those
Connecticut junior and senior high school students who acknowledge that they do smoke, many report that they sometimes or often buy their cigarettes from vending machines despite the existence of state laws prohibiting or limiting their access to them. Connecticut minors have even succeeded in illegally purchasing cigarettes from restricted vending machines, which are CT Page 11102 designed to prevent the sale of tobacco to minors by requiring a face-to-face transaction with the operator of the machine. A minor is twice as likely to be able to purchase cigarettes from a vending machine as from a convenience store or other over-the-counter outlet.
The adverse public health effects of tobacco use by minors are not in dispute here. The State has a strong interest in reducing teen tobacco use, both on public health grounds and because continued federal funding depends in part on State success in reducing teenagers' access to tobacco. The ordinance in question was a product of the Town of Orange's concern, based, inter alia, on the data previously mentioned, that teenage smoking is a public health hazard and that vending machines are a prime source of cigarettes for those youths who wish to smoke them.
The plaintiff seeks to have the ordinance declared invalid based on its claims that the ordinance: 1) is preempted by state law; 2) constitutes a taking without just compensation; and 3) violates the plaintiff is substantive right to due process of law. It also argues that if Gen. Stats. §
"Preemption" by a state occurs when 1) a state law "irreconcilably conflicts with a local ordinance;" or 2) when a statute or regulation is intended to "occupy the entire field" of regulation with respect to a particular matter to the exclusion of local regulations. Shelton v. Commissioner,
Where a municipality seeks remove a right that a state permit confers, the municipality exceeds its powers. Dwyer v. Farrell,
Chapter 214 of the General Statutes includes a fairly elaborate scheme for the taxation and regulation of cigarette sales, including sales through vending machines. Some of its provisions are clearly primarily related to licensing and revenue collection, but others are equally clearly directed at regulating the accessability of these devices to minors.
All distributors and dealers of cigarettes are required to be licensed, Gen. Stats. §
In short, the State Legislature has itself placed a variety of conditions on the use of cigarette vending machines in ways that have the effect of restricting their ability to generate revenue for their owners while nonetheless permitting their CT Page 11104 continued operation. Indeed, these restrictions have been systematically increased over the years in ways that reflect the State's legitimate concern that such machines are an important source of tobacco products illegally obtained by minors. Nowhere in Chapter 214, however, is there any suggestion that the State of Connecticut has either contemplated prohibiting such machines altogether or that it has ceded that authority to its municipalities.
Our Supreme Court has noted, in connection with efforts to regulate handgun sales, that "[a]lthough the statutory pattern evinces a legislative intent to regulate the flow of handgun sales and restrict the right to sell to those establishing the requisite qualifications, it is also clear that the General Assembly anticipated that persons meeting those qualifications . . . would be permitted to sell at retail a pistol or revolver. The legislature has struck a balance between totally unregulated sales and a complete ban on sales of handguns at retail." Dwyer, supra,
It is apparent from the undisputed evidence at trial that access to tobacco by minors, and specifically the access to tobacco by minors through cigarette vending machines, is a legitimate statewide concern, albeit one shared by municipalities such as the Town of Orange. This state concern has been demonstrated in a variety of ways, including not only the State's comprehensive statutes on vending machine licensing and placement, but also by its statewide youth sting operations, its efforts to comply with federal mandates to reduce teen access to tobacco, and its employment of full time employees to achieve these state goals. It is also undisputed that while Orange shares these concerns, it has had no particular local problems regarding teen access to tobacco that are significantly different from those of any other municipality. "[A local ordinance] . . . cannot overturn a public policy evidenced in long-continued legislation over a subject statewide in its range . . . This is not the case of the ordinance speaking where the statute is silent. It is a case of a direct conflict between the state statutes and the town ordinance. They are irreconcilably inconsistent with one another. The ordinance must yield." Shelton v. City of Shelton, CT Page 11105
The defendants correctly point out that a basic problem with cigarette vending machines is that they cannot distinguish the age of the person using them. They dispense their product indiscriminately to any and all who deposit coins, including minors. See, Illinois Cigarette Service Co. v. City of Chicago,
Thus, the court has had to examine the language of Gen. Stats. §
The words of a statute are to be given their common and ordinary meaning, unless a contrary intent is clearly expressed.Marone v. Lensink,
Prohibition of an activity is by definition inconsistent with the concept of placing conditions on such an activity for the reason that in ordinary usage, a "condition" is imposed as a prerequisite to the carrying out of some act. A "condition" is something essential to the appearance or occurrence of something else; prerequisite." See, Merriam Webster's Collegiate Dictionary(Tenth Edition) (1996). "Use" is defined as "the act or practice of employing something . . . the privilege or benefit of using something." Id. The Orange ordinance does not establish a "prerequisite" for the employment of these machines or the privilege or benefit of using them; it simply forbids them in their entirety. Such a prohibition, by definition, therefore can never be a "condition" on "use"
In striking down the New Haven ordinance restricting the retail sales of handguns, our Supreme Court noted that the "state permit is rendered an illusory right because a casual seller residing in a nonbusiness zone can have no real hope of ever conforming to the local ordinance." Dwyer v. Farrell, supra,
Courts in other states have struck down municipal ordinances banning cigarette vending machines in the context of state statutes similar to those in Connecticut. In AutomaticRefreshment Service v. City of Cincinnati,
Bravo Vending v. City of Rancho Mirage,
In C.I.C. Corp. v. East Brunswick Township,
No such divergence of purpose exists between the Town of Orange's Ordinance and Chapter 214. Although the state statutes also deal with licensing and revenue, both the statutes and the ordinance indisputably share the purpose of reducing the consumption of tobacco by minors. The approach taken by the state in carrying out this purpose has been to restrict, but not to ban. Although the State has given municipalities some authority with respect to placing conditions on the use of the machines, it has preempted the field with respect to the issue of prohibition.
Whether an ordinance conflicts with a statute is determined by reviewing the policy and purposes behind the statute and measuring the degree to which the ordinance frustrates the achievement of state objectives. Aaron v. Conservation Comm'n,
The court assumes, without having to decide the question, that if the Legislature had meant to delegate the authority to ban cigarette vending machines to municipalities, it could have done so. It has, for example, devised a scheme to allow a municipality to prohibit the sale of alcoholic beverages (Gen. Stats. §
The defendants also argue, however, that independent of the authority granted to municipalities by §
Indeed, in Blue Sky, our Supreme Court did note that it "requires no citation of authority to say that regulation may in many instances result in prohibition. The question is whether the result is reached in a reasonable manner and is necessary for the public welfare."
The case did not in fact reach the issue of whether home rule powers authorize a municipality to prohibit any and all vending on public streets: "We need not decide the issue of whether §
"The plaintiffs therefore are not absolutely forbidden from vending their products; rather, the effect of the ordinance is to regulate the method by which the plaintiff may vend their products". While it is true that the ordinance limits the plaintiffs in the manner of merchandising their products, there is nothing in the ordinance that forbids the plaintiffs from selling their products via bicycle, pushcart or other non motor vehicle. Id. at 471 (emphasis added).
The defendants also attempt use their home rule argument to have the court uphold the ordinance on the basis of the decision in Beacon Falls v. Posick,
The problem with the defendants' reliance on Beacon Falls is that in that case, the local zoning regulations did not conflict with the state statute, in which the "legislature intended only to prevent zoning authority to the extent that it conflicted with the operation of a [Connecticut Resources Recovery Act] facility on property owned by the CRRA. . . Id. at 578. The statutes preempted the field with respect to such facilities, but they did not purport to regulate privately owned facilities. In contrast, the present ordinance has not been enacted in such a vacuum, but rather in the context of a state statute that specifically authorizes the use of these machines and provides for conditions on their continued use. Rather than bolstering the defendants' arguments, Beacon Falls undermines them. The defendants' efforts to find support for the Orange ordinance beyond Gen. Stats. §
In short, if the State is concerned enough about cigarette vending machine sales to seek their outright ban, it will have to accomplish this goal through means other than merely allowing municipalities to place additional "conditions" on the "use" of such machines. Gen. Stats. §
Because the court has found both that the field of regulation of sales of cigarettes through vending machines has been preempted by the state and that the state has not delegated to municipalities the power to ban such machines from within their borders in their entirety, it is unnecessary, and inappropriate, to consider the plaintiffs claims that the Orange ordinance constitutes an unconstitutional "taking" without just compensation, in violation of both the United States and Connecticut Constitutions; that the ordinance unreasonably and unconstitutionally singles out the vending business and deprives it of due process of law; or that the delegation of authority contained in §
This decision should not necessarily be construed as a CT Page 11112 negative commentary on the value of the prohibition of sales of cigarettes from vending machines as a part of the effort to curb tobacco consumption by minors. Such policy considerations are not the court's province. The issue before the court is not whether prohibition is wise or valuable, but rather whether it is legal under circumstances where the state has reserved to itself the function not only of licensing and taxing cigarette vending machines but also of regulating their siting and usage so as to limit their accessibility to minors. The limited grant to municipalities to impose conditions on use even more restrictive than those enacted by the legislature can be read neither as a wholesale ceding to municipalities of the power to eliminate vending machine licensing and taxation as a source of state revenue nor as a total abandonment of the state's authority to regulate the use of these machines.
Judgment will therefore enter in favor of the plaintiff declaring Town of Orange's ordinance invalid.
Jonathan E. Silbert, Judge
Illinois Cigarette Service Co. v. City of Chicago , 89 F.2d 610 ( 1937 )
Aaron v. Conservation Commission , 183 Conn. 532 ( 1981 )
New Haven Commission on Equal Opportunities Ex Rel. ... , 183 Conn. 495 ( 1981 )
Shelton v. City of Shelton , 111 Conn. 433 ( 1930 )
Bickart v. Sanditz , 105 Conn. 766 ( 1927 )
State Ex Rel. Barlow v. Kaminsky , 144 Conn. 612 ( 1957 )
Automatic Refreshment Serv., Inc. v. Cincinnati , 92 Ohio App. 3d 284 ( 1993 )
CIC Corp. v. East Brunswick Tp. , 266 N.J. Super. 1 ( 1993 )
Take Five Vending, Ltd. v. Town of Provincetown , 415 Mass. 741 ( 1993 )
General Food Vending Inc. v. Town of Westfield , 288 N.J. Super. 442 ( 1995 )
Bencivenga v. City of Milford , 183 Conn. 168 ( 1981 )
New Haven Water Co. v. City of New Haven , 152 Conn. 563 ( 1965 )