The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6665

November 15, 1990

COUNTIES:

Authority to regulate or prohibit the placement of cigarette vending machines

MUNICIPALITIES:

Authority to regulate or prohibit the placement of cigarette vending machines

PUBLIC HEALTH:

Regulation or prohibition of the placement of cigarette vending machines

State law does not preempt local ordinances designed to prevent tobacco sales to minors nor does it preempt local ordinances that regulate or prohibit the placement of cigarette vending machines.

Counties lack the legal authority to regulate or prohibit the placement of cigarette vending machines within their respective borders but may regulate or prohibit the placement of cigarette vending machines on county property.

Cities, villages, and townships may enact ordinances to prevent the sale of tobacco products to minors and to regulate or prohibit the placement of cigarette vending machines within their respective borders.

Local health departments have the legal authority to adopt regulations to prevent the sale of tobacco to minors and to regulate or prohibit the placement of cigarette vending machines.

Honorable D.J. Jacobetti

Chairman

House Appropriations Committee

The Capitol

Lansing, MI 48909

Honorable Ralph Ostling

State Representative

The Capitol

Lansing, MI 48909

Gary L. Walker,

Marquette County Prosecuting Attorney

County Building

Marquette, MI 49855

You have each asked for my opinion on separate questions relating to the regulation of tobacco sales to minors and placement of cigarette vending machines by local units of government. The questions may be stated as follows:

1. Would a local ordinance regulating tobacco sales to minors and the placement of cigarette vending machines be preempted by state law?

2. Do counties have the legal authority to ban cigarette vending machines within their respective boundaries?

3. Do local health departments have the legal authority to adopt regulations concerning the sale of tobacco to minors and the placement of cigarette vending machines?

Your questions will be answered seriatim.

State preemption involves the question of whether state law occupies a field of law so as to preclude local ordinances in that field. Recently, in City of Detroit v. Qualls, 434 Mich 340, 361-363; 454 NW2d 374 (1990), a case involving a city ordinance limiting storage of fireworks and a state statute on the subject, the Court stated:

"Absent a showing that state law expressly provides that the state's authority to regulate is exclusive, that the nature of the subject matter regulated calls for a uniform state regulatory scheme, or that the ordinance permits what the statute prohibits or prohibits what the state permits,

The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements.... The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory, and the only difference between them is that the ordinance goes further in its prohibition but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective. [56 AmJr2d, Municipal Corporations, Sec. 374, pp 408-409.]" [Footnotes omitted.]

In Detroit Retail Druggists' Ass'n v. City of Detroit, 267 Mich 405, 408-409; 255 NW 217 (1934), in considering an ordinance of the City of Detroit imposing a licensing fee of $5 per year on vendors of cigarettes, the Court stated:

"It is recognized that the vending of cigarettes is a proper subject of police regulation, particularly because of injury to health and otherwise of minors from smoking tobacco.... The sale of tobacco to minors has long been prohibited by State law....

In passing upon the conduct of a public body it must be assumed that the authorities have acted in furtherance of a desire to do their plain duty to enforce the law.... we cannot say there is such a disproportion between the fee imposed and the expense of regulation as would justify holding the discretionary action of the council invalid." [Emphasis added.]

There are two state statutes relating to the sale of tobacco that need to be examined for purposes of determining whether the state has preempted the field. The first is the Youth Tobacco Act, MCL 722.641 et seq; MSA 25.281 et seq, which, inter alia, prohibits the furnishing of tobacco products to minors. The second is 1947 PA 265, MCL 205.501 et seq; MSA 7.411(1) et seq, which imposes taxes and licensure requirements on persons involved in the sale of cigarettes, including vending machine operators.

Neither of these statutes expressly preempts local ordinances. Further, neither the implementation of the ban on the sale of tobacco to minors nor the placement or prohibition of cigarette vending machines requires a uniform scheme of state regulation. Of course, any local ordinance must neither permit what these two statutes prohibit nor prohibit what these two statutes permit. City of Detroit, supra, at pp 361-362. Also, the state law prohibiting the sale of tobacco to minors was in existence when the Court upheld the local ordinance imposing a licensing fee on cigarette vendors in Detroit Retail Druggists' Ass'n, supra.

It is my opinion, therefore, that as a general proposition, state law does not preempt local ordinances designed to prevent tobacco sales to minors nor does it preempt local ordinances that regulate or prohibit the placement of cigarette vending machines. Of course, any preemption analysis would depend, in part, on the specific content of the local ordinance in question.

Turning to the second question, it must be noted that counties have only those powers conferred upon them by either the Michigan Constitution or statutes. Alan v. Wayne County, 388 Mich 210, 245; 200 NW2d 628 (1972). The Legislature has authorized county boards of commissioners to enact regulations and ordinances in MCL 46.11; MSA 5.331, as follows:

"A county board of commissioners, at a lawfully held meeting, may ...

m) By majority vote of the members of the county board of commissioners elected and serving, pass regulations and ordinances relating to county affairs which the board considers proper, but which shall not contravene the general laws of this state or interfere with the local affairs of a township, city, or village within the limits of the county...." [Emphasis added.]

Clearly, county ordinances must relate to county affairs and may not interfere with the local affairs of cities, villages or townships. OAG, 1969-1970, No 4696, p 197, 200 (November 25, 1970). Thus, OAG, 1945-1946, No O-4471, p 639 (March 15, 1946), concluded that counties lacked the authority to adopt an ordinance prohibiting minors from frequenting places where intoxicating liquors were sold because the ordinance was not limited to county affairs and might interfere with the local affairs of the other municipalities within the county. However, OAG, 1945-1946, No O-4387, p 636 (March 14, 1946), concluded that a home rule city could adopt an ordinance prohibiting minors from frequenting places where alcoholic beverages were sold.

Cities, villages and townships have the lawful authority to adopt ordinances relating to areas of local concern. Detroit Edison Co v. Township of Richmond, 150 MichApp 40, 47; 388 NW2d 296 (1986); People v. Strobridge, 127 MichApp 705, 708-709; 339 NW2d 531 (1983); OAG, 1983-1984, No 6139, p 90 (March 30, 1983).

As noted above in Detroit Retail Druggists' Ass'n, supra, the Court upheld a local ordinance imposing a licensing fee on cigarette vendors. In Illinois Cigarette Serv Co v. City of Chicago, 89 F2d 610; 111 ALR 749 (1937), the Court sustained a local ordinance prohibiting the sale of cigarettes in automatic vending machines so as to prevent cigarette purchases by minors. 7 McQuillin, Municipal Corporations (3d ed, Revised), Sec. 24.239, pp 102-103 states:

"The power to pass and enforce all adequate police regulations that may be necessary or expedient for the preservation of the health authorizes provisions regulating and licensing the sale of cigarettes. While municipalities may differ as to the necessity and scope of such regulation, so long as it is adopted in good faith with an eye single to the public welfare, the courts will not interfere. Thus, the Court of Appeals of New York, acknowledging the link between smoking cigarettes with a high tar and nicotine content and poor health, has determined that it is not unreasonable for a city council to conclude that higher prices for more harmful cigarettes would induce consumers to switch to a less harmful variety and, accordingly, has upheld an ordinance establishing a price and tax differential based on tar and nicotine content as being clearly within the police power over matters pertaining to health. The sale, possession and use of marijuana cigarettes can be prohibited. Ordinances may regulate and license cigarette-vending machines. Furthermore, an ordinance forbidding the use of cigarette-vending machines has been ruled valid. The legitimate purpose of such an ordinance may be to prevent the sale of cigarettes to minors. The Supreme Court of Tennessee has declared that cigarettes are not legitimate articles of commerce within the protection of the Constitution of the United States because they possess no virtue and are bad inherently." [Footnotes omitted.]

In light of these authorities, it is clear that cities, villages and townships have the authority to enact ordinances that regulate tobacco sales to minors and the placement of cigarette vending machines so as to restrict the access of minors to such machines.

It is my opinion, therefore, that counties lack the legal authority to regulate or prohibit the placement of cigarette vending machines within their respective borders but may regulate or prohibit the placement of cigarette vending machines on county property. It is my further opinion that cities, villages and townships may enact ordinances to prevent the sale of tobacco products to minors and to regulate or prohibit the placement of cigarette vending machines within their respective borders.

Addressing the third question, local health departments are provided for in the Public Health Code, 1978 PA 368, part 24, MCL 333.2401 et seq; MSA 14.15(2401) et seq. Most local health departments are either a county health department or a district health department comprised of two or more counties. See sections 2406, 2413 and 2415 of the Public Health Code.

Local health departments have the authority to endeavor to prevent disease and prolong life, including prevention of health problems of vulnerable population groups. Section 2433(1) of the Public Health Code. To that end, local health departments have the authority to adopt regulations to safeguard the public health. Section 2435(d) of the Public Health Code.

In section 2441 of the Public Health Code, the Legislature has provided:

"(1) A local health department may adopt regulations necessary or appropriate to implement or carry out the duties or functions vested by law in the local health department. The regulations shall be approved or disapproved by the local governing entity. The regulations shall become effective 45 days after approval by the local health department's governing entity or at a time specified by the local health department's governing entity. The regulations shall be at least as stringent as the standard established by state law applicable to the same or similar subject matter. Regulations of a local health department supersede inconsistent or conflicting local ordinances.

(2) A person who violates a regulation is guilty of a misdemeanor, punishable by imprisonment for not more than 90 days, or a fine of not more than $200.00, or both."

Local health departments must hold public hearings before adopting regulations. Section 2442 of the Public Health Code. Further, the regulations must be approved by the local governing entity. In the case of a county health department, the local governing entity is the county board of commissioners. In the case of a district health department comprised of two or more counties, the local governing entities are the boards of commissioners of the counties comprising the district. Section 2406(a) and (b) of the Public Health Code.

The Legislature has long prohibited the sale of tobacco products to minors in the Youth Tobacco Act. Our Supreme Court has already recognized the adverse relationship between minors smoking and their health in Detroit Retail Druggists' Ass'n, supra, at p 408. In light of these statutory and case law precedents, it is clear that local health departments have the legal authority to adopt regulations concerning the sale of tobacco to minors and the placement of cigarette vending machines so as to protect the health of minors. As provided in section 2441(1) of the Public Health Code, regulations of a local health department supersede conflicting local ordinances adopted by cities, villages or townships.

It is my opinion, therefore, that local health departments have the legal authority to adopt regulations to prevent the sale of tobacco to minors and to regulate or prohibit the placement of cigarette vending machines.

Frank J. Kelley

Attorney General