May 11, 2001
CIGARETTE VENDING MACHINE DECISION AND POSSIBLE RELEVANCE TO GUN LAWS
By: Kevin E. McCarthy, Principal Analyst
You requested an analysis of the state Supreme Court's decision in Modern Cigarette, Inc. v. Orange, 256 Conn. 105 (2001) and a discussion of whether this case could serve as precedent for a municipality barring the possession of firearms. The Office of Legislative Research is not authorized to issue legal opinions, and this memo should not be considered one.
In this case, the Supreme Court upheld the validity of an ordinance adopted by the town of Orange that prohibits cigarette vending machines in the town. The Court reversed the trial court's decision that CGS § 12-289a, which imposes state regulations on such machines, preempts local ordinances prohibiting them.
It appears unlikely the decision could serve as precedent for upholding a municipal ordinance absolutely barring the possession of firearms by those permitted under current law to own them. The court could overturn such an ordinance, either as being preempted by state law or as violating the state or federal constitution. The state constitution entitles people to bear arms to defend themselves and the state. The Supreme Court has noted that this right would be illusory if the state could ban, under its police powers, the possession of all firearms that could be used in self defense. By extension the same would be true of similar local regulations. In addition, a recent Appellate Court decision held that municipalities cannot regulate hunting, which would imply that they could not bar the possession of firearms used for hunting.
However, the Supreme Court's decision in Modern Cigarette, together with its earlier decision upholding the state's ban on assault weapons, suggests that the former could serve as precedent for a municipal ordinance restricting possession of weapons.
OLR memo 2001-R-0466 discusses the possible implications of the Modern Cigarette decision in other areas of the law.
MODERN CIGARETTE, INC. V. ORANGE
Facts and Trial Court Proceedings
In 1998, Orange adopted an ordinance prohibiting cigarette vending machines in the town. The ordinance included various legislative findings, including a determination that existing laws were inadequate to prevent minors from obtaining cigarettes, particularly from vending machines. When the ordinance was adopted, Modern Cigarette, Inc., a state-licensed cigarette distributor, operated one machine in the town. It removed the machine and challenged the ordinance on the grounds that it:
1. was preempted by state law,
2. constituted a taking without just compensation, and
3. violated the company's substantive due process rights.
The company also alleged that the state law delegating power to municipalities to regulate cigarette vending machines was unconstitutionally vague.
The state intervened in the lawsuit on the side of the town. The defendants argued that the ordinance was a valid exercise of the town's general police powers and was not pre-empted by the cigarette vending machine law.
The trial court found that (1) the town and state both have a legitimate interest in promoting the health, safety, and welfare of their citizens through the regulation of tobacco products and preventing minors access to cigarettes; (2) in spite of the laws barring minors from buying tobacco, they have little difficulty in buying cigarettes from machines; and (3) the town's ordinance was rationally related to the goal of preventing youth access to tobacco.
Nonetheless, the court concluded that the cigarette vending machine law preempts the ordinance. The relevant provision (CGS § 12-289a(h)) states that nothing in the section “shall be construed as limiting a town or municipality from imposing more restrictive conditions on the use of vending machines for the sale of cigarettes.” The court held that, by permitting the imposition of more restrictive conditions rather than prohibitions, the legislature had not granted municipalities the power to issue an outright ban on vending machines. The court accordingly declared the ordinance invalid. The town appealed and the state Supreme Court heard and decided the case en banc.
Supreme Court Decision
On May 8, 2001, the Supreme Court reversed the lower court's decision on 5-2 vote of the justices. The court held that CGS § 12-289a does not prohibit a municipality, acting within its police powers to protect its citizens' health, safety, and welfare, from banning all cigarette vending machines within its boundaries.
Legal Principles. The majority opinion, written by Justice Katz and joined by four other justices, began with a general discussion of legal principles underlying a municipality's police powers and the court's deference to their exercise.
Justice Katz then discussed how the court determines whether a local ordinance is preempted by statute. She noted that preemption occurs when the legislature has demonstrated an intent to occupy the entire field of regulation or when a local ordinance irreconcilably conflicts with a statute. This test was developed in an earlier case, Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 234 (1995).
The opinion focused on the latter issue. It held that:
…merely because a local ordinance, enacted pursuant to the municipality's police power, provides higher standards than a statute on the same subject does not render it necessarily inconsistent with the state law. Whether a conflict exists depends on whether the ordinance permits or licenses that which the statute prohibits or prohibits that which the statute authorizes.
Modern Cigarette, 120
The Court cited Aaron v. Conservation Commission, which held that if “…the statute and the ordinance are both prohibitory and the only difference is that the ordinance goes further in its prohibition than the statute… there is no conflict” (183 Conn. 532, 544 (1981)).
Next, the decision discussed the court's method of determining the meaning of statutes. Among other things, the court looks to the law's text, its legislative history and context, and its relationship to other legislation and common law principles.
Analysis. In reviewing this case, the court noted that the legislature had clearly anticipated the adoption of local public health regulations when it granted municipalities broad police powers to “provide for the health of [their] inhabitants and do all things necessary or desirable to secure and promote the public health” under CGS § 7-148(c)(7)(H)(xi). It also found that the legislative history of CGS § 12-289a demonstrated that its primary purpose was to prevent minors from having access to cigarette vending machines. It found that a municipality's ability to regulate vending machines derived from both statutes, rather than just the latter as the trial court had held. It concluded that by adopting CGS § 12-289a(h), the legislature left the municipality's general police authority intact.
The court next addressed the plaintiff's argument that the power to regulate does not include the power to prohibit. The court noted that this argument was contrary to its decision in Beacon Falls v. Posick, 212 Conn. 570 (1989). In Beacon Falls, the court upheld an ordinance that prohibited the use of a particular parcel as a landfill, even though the Department of Environmental Protection had issued the property owner a permit, subject to local laws, to open a landfill in the municipality. While the court had held in an earlier case that “the power to regulate…does not necessarily imply the power to prohibit absolutely any business or trade” (Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 20 (1987)), it held in Beacon Falls that the power to regulate does not preclude the power to prohibit. It held that “when a statute authorizes a municipality to regulate a certain activity, a prohibition of that activity will be valid if it is rationally related to the protection of the community's public health, safety, and general welfare” (supra at p. 584). The court held that the town of Orange had met this standard in banning cigarette vending machines.
Next, the court addressed the plaintiff's argument that the ordinance was invalid because it removes a right bestowed on it by its state-issued cigarette distributors license. The court noted that the regulatory scheme in the licensing statutes restricts, rather than creates, rights. It found the ordinance valid because it did not frustrate the state's objective in limiting youth access to tobacco products and was fully consistent with that purpose.
Finally, the court noted that if the legislature had wanted to preempt a municipality from adopting such an ordinance, it could have done so explicitly. It cites, as an example of such preemption, CGS § 19a-342(f), which explicitly precludes municipal smoking regulations.
Justices McDonald and Sullivan dissented. Citing Blue Sky Bar, Inc., they noted that a municipality's power to regulate an activity pursuant to statute does not necessarily imply the right to prohibit the activity absolutely. The justices concluded that the plain words of CGS § 12-289a(h) assume the continued existence of that which is to be regulated, i.e., vending machines. They also argued that Beacon Falls was not relevant to this case.
More generally, the justices argued that the majority's deference to municipal police powers would, if taken to the extreme, authorize them to prohibit any activity regulated and authorized by the state. They argued that this would be contrary to the fact that municipalities are only instrumentalities of the state and not sovereigns. Finally, the justices noted that the legislature has, in other areas, made explicit its intention to allow municipalities to prohibit an otherwise state-regulated activity. They gave as an example CGS § 30-9, which allows municipalities to prohibit the sale of liquor in their boundaries.
POSSIBLE RELEVANCE TO MUNICIPAL FIREARMS ORDINANCES
It appears that the Modern Cigarette decision could not serve as precedent for an absolute ban on the possession of firearms by individuals statutorily entitled to possess them. In reviewing such an ordinance, the court would first determine whether the municipality had the requisite statutory authority. Presumably, this review would center on whether a municipality's police power authorized the adoption of such an ordinance.
Assuming the court found that the municipality had statutory authority to adopt the ordinance, the court would next determine whether it was pre-empted by state law. The Bauer case suggests that the court would determine whether the state had occupied the field of regulating the possession of firearms and, if not, whether the ordinance irreconcilably conflicted with state law. In Dwyer v. Farrell, 193 Conn. 7 (1984) the Supreme Court overturned a New Haven ordinance restricting handgun sales, finding that it violated the latter provision.
In addition to this generic preemption test, the Appellate Court has held, in East Hartford v. Kaluszka, 60 Conn. App. 749 (2000), that municipalities cannot regulate hunting as the state has occupied the field. While the Supreme Court is not bound by this decision (which was not appealed), municipalities are. It appears that if a municipality were to ban the possession of firearms, it would be contrary to this decision in so far as it affected hunters and hunting.
It the ordinance survived this review, the court would presumably determine whether the ordinance violated the state or federal constitutions. It is likely that an ordinance banning possession of all firearms would be found unconstitutional. Article first, section 15 of the state constitution provides that “every citizen has a right to bear arms in defense of himself and the state.” The second amendment to the U.S. Constitution provides for a similar right under federal law. The Connecticut Supreme Court, in Benjamin v. Bailey, 234 Conn. 455 (1995) agreed with courts in other states that laws that proscribe all firearms that could be used in self defense would violate constitutional provisions on the right to bear arms. In addition, the court noted in Modern Cigarette that the Orange ordinance did not totally ban the sale of cigarettes but only their sale in vending machines.
Assuming that municipalities have some authority to regulate firearms, the Modern Cigarette decision could serve as precedent for a municipal ordinance that went beyond the limitations imposed under state law but did not absolutely ban firearms possession, assuming the police powers of municipalities encompasses firearms regulations. The constitutional rights to bear arms are not absolute. The state Supreme Court upheld the state's ban on assault weapons in Benjamin. It held that while the constitution protects the right of citizens to possess a weapon of reasonably sufficient firepower to be effective for self-defense, it does not guarantee the right to possess any weapon for use in self-defense.
Moreover, the Benjamin court noted that courts in several other states have held that their constitutional provisions regarding the right to bear arms are not infringed by reasonable regulation by the state in exercising its police powers to protect its citizens' health safety and morals. While the Connecticut court did not address the issue of local regulation of firearms in Benjamin, it favorably cited one case that did. In Kalodimas v. Morton Grove (103 Ill. 2d. 499 (1984)) the Illinois Supreme Court upheld a local prohibition on the possession of handguns. The Connecticut Supreme Court noted in Benjamin that the Illinois court had “persuasively argued that a state constitution should be read to permit regulation of the ownership of particular categories of weapons or particular means of possession, even though it would prohibit similar regulations targeted at categories of ideas or means of speech or expression” (Benjamin, at 471). The Connecticut court stated that while free speech cannot operate successfully when its modes of operation are curtailed, the purposes served by the constitutional right to bear arms are not integrally linked to the particular means by which they are achieved.
The fact that the Connecticut Supreme Court endorsed another state's upholding of a municipal law restricting gun ownership does not necessarily mean that it would uphold a similar Connecticut municipal law. But, reading Benjamin and Modern Cigarette together, a municipal firearms ordinance might be upheld if it regulated the types of weapons that can be owned or how they can be possessed. In reviewing such a case, it presumably would follow Bauer and determine whether (1) the state had fully occupied the field of regulating firearms possession or (2) the municipal regulation irreconcilably conflicted with state law. If the court found that neither of these conditions applied, it would then turn to the ordinance's constitutionality. Assuming the court followed Benjamin, the issue would be whether the ordinance allowed citizens to possess some type of weapon that was reasonably sufficient to vindicate their right to bear arms in self defense. Such an ordinance might also be subject to challenge on other grounds, such as equal protection.