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Dwagfys Manufacturing, Inc. v. City of Topeka

Supreme Court of Kansas

June 28, 2019

DWAGFYS Manufacturing, Inc., d/b/a The Vapebar Topeka, and Puffs 'n' Stuff, L.L.C., Appellees,
v.
City of Topeka, Kansas, a Municipal Corporation, Appellant.

         SYLLABUS

         1. A city may adopt ordinary ordinances when no state law exists on the subject or when a uniform law applicable to all cities exists on the subject but the Legislature has not expressed a clear intent to preempt the field and there is no conflict between the state and local law.

         2. Legislative intent to preempt the field must be clearly manifested on the face of the statute. Courts will not find legislative preemption by implication.

         3. The provisions of K.S.A. 79-3301 et seq., do not show a clear manifestation of intent by the Legislature to prohibit cities from enacting ordinances on the same subject.

         4. When the Legislature has enacted a statute without preempting cities from acting in the same area, the ordinance will stand as long as the ordinance does not conflict with the statute.

         5. In order for an actual conflict to exist, the state statute must expressly authorize what the ordinance prohibits, or expressly prohibit what the ordinance authorizes.

         6. Ordinance No. 20099 does not conflict with K.S.A. 79-3301 et seq., because it does not prohibit what the statute expressly authorizes, nor does it expressly authorize what the statute prohibits.

          Appeal from Shawnee District Court; Franklin R. Theis, judge.

          Mary Feighny, deputy city attorney, argued the cause and was on the brief for appellant.

          Robert E. Duncan II, of Topeka, argued the cause and was on the briefs for appellees.

          Amanda L. Stanley, general counsel, was on the brief for amicus curiae League of Kansas Municipalities.

          Jeffrey A. Chanay, chief deputy attorney general, Toby Crouse, solicitor general, Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for amicus curiae State of Kansas.

          Miriam E.C. Bailey, of Polsinelli, PC, of Kansas City, Missouri, and Dennis A. Henigan, of Washington, D.C., were on the brief for amicus curiae Greater Kansas City Chamber of Commerce, The Campaign for Tobacco-Free Kids, and Certain Other Public Health, Medical, and Community Organizations.

          W. Robert Alderson, of Alderson, Alderson, Conklin, Burghart, Crow & Slinkard, L.L.C., of Topeka, was on the brief for amicus curiae Petroleum Marketers and Convenience Store Association of Kansas.

          OPINION

          STEGALL, J.

         The City of Topeka passed Ordinance No. 20099, amending Uniform Public Offense Code § 5.7 (2015) making it unlawful for any person to: "(1) Sell, furnish or distribute cigarettes, electronic cigarettes, tobacco products or liquid nicotine to any person under 21 years of age; or (2) Buy any cigarettes, electronic cigarettes, tobacco products or liquid nicotine for any person under 21 years of age." The day before the Ordinance was to take effect, DWAGFYS Manufacturing, Inc., d/b/a The Vapebar Topeka, and Puffs 'n' Stuff, L.L.C. sued Topeka seeking to prevent enforcement of the Ordinance. Vapebar argued the Ordinance was unconstitutional under article 12, section 5 of the Kansas Constitution because it impermissibly conflicted with and was preempted by the Kansas Cigarette and Tobacco Products Act, K.S.A. 79-3301 et seq., referred to as the Act. Additionally, Vapebar argued the Ordinance exceeded Topeka's police power authority.

         The district court issued a temporary restraining order and eventually a permanent injunction. Topeka appealed and moved to transfer the case to this court. Topeka asked us to consider: (1) whether the Act preempts Topeka from prohibiting retailers from selling cigarettes, electronic cigarettes, tobacco products, and liquid nicotine to persons under the age of 21 years; and (2) whether the Ordinance conflicts with the Act. We granted Topeka's motion to transfer and now hold the Ordinance is not preempted by and does not conflict with the Act. Thus, the Ordinance is a constitutionally valid exercise of Topeka's home rule power under article 12, section 5 of the Kansas Constitution.

         Analysis

         Topeka sought to join other Kansas cities in making it unlawful for retailers to sell, furnish, or distribute cigarettes, electronic cigarettes, tobacco products, or liquid nicotine to any person under 21 years old. The Ordinance passed by Topeka provided, in part:

"(2) Section 5.7 of UPOC [Uniform Public Offense Code] 2015, relating to selling, giving or furnishing cigarettes or tobacco products to a minor is hereby deleted and the ...

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