California Penal Code section 308 Interpretation
Penal Code section 308 has criminally prohibited the sale of tobacco products to minors for nearly 120 years. (Stats. 1891, ch. 70, 1, p. 64.)
In its current manifestation as pertinent here, it states that "[e]very person, firm, or corporation that knowingly," or that should know, "sells, gives, or in any way furnishes to another person who is under the age of 18 years" any tobacco product, "is subject to either a criminal action for a misdemeanor or to a civil action brought by a city attorney, a county counsel, or a district attorney, punishable by a fine of" $ 200 for the first offense, $ 500 for the second, and $ 1,000 for the third. (Pen. Code, 308, subd. (a)(1).)
Penal Code section 308, subdivision (e) covers preemption.
It states: "It is the Legislature's intent to regulate the subject matter of this section. As a result, no city, county, or city and county shall adopt any ordinance or regulation inconsistent with this section." (Pen. Code, 308, subd. (e).)
Penal Code section 308 includes a preemption provision, stating, "It is the Legislature's intent to regulate the subject matter of this section. As a result, no city, county, or city and county shall adopt any ordinance or regulation inconsistent with this section." (Pen. Code, 308, subd. (e).)
The decision in Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, exhaustively analyzed the preemptive aspects of this Penal Code section 308 language in finding a city ordinance not preempted.
The ordinance in Bravo banned cigarette sales through vending machines so as to discourage cigarette sales to minors.
Bravo concluded that "the regulatory field preempted by [Penal Code] section 308 is that of the penal--i.e., both criminally and civilly proscribed--aspects of the sale of cigarettes to minors: To whom is it illegal to sell cigarettes, and what are the penal consequences of doing so?" (Bravo, supra, at p. 403.)
Bravo concluded that even though the purpose of the ordinance there was to discourage the violation of Penal Code section 308 by banning cigarette vending machines from which illegal sales to minors frequently occur, that ordinance did not impermissibly intrude into the field preempted by section 308. (Bravo, supra, 16 Cal.App.4th at p. 409.)
In arriving at this conclusion, Bravo relied on a legal principle gleaned from Cohen v. Board of Supervisors (1985) 40 Cal.3d 277 (Cohen).
That principle specifies that, "when the state has preempted the regulatory field regarding the criminal aspects of a particular activity, a local government may nevertheless impose substantive regulations concerning the manner of operation of a lawful business which [fosters, profits from, or provides an environment for activities proscribed by state law] so long as the ordinance (1) is intended to discourage the activity proscribed by state law and (2) does not attempt to either expand or reduce the degree to which the particular activity regulated by state law is criminally proscribed." (Bravo, supra, 16 Cal.App.4th at p. 412; see Cohen, supra, 40 Cal.3d at pp. 298-299.)
As Cohen explained: "A [city] ordinance is not transformed into a [state] statute prohibiting crime [if so transformed, it would be preempted] simply because the city uses its licensing power to discourage illegitimate activities associated with certain businesses. Most licensing ordinances have a direct impact on the enforcement of state laws which have been enacted to preserve the health, safety and welfare of state and local citizens. This fact does not deprive a municipality of the power to enact them [under the two conditions noted in Bravo]." (Cohen, supra, 40 Cal.3d at p. 299.)