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RPF Oil Co. v. Genesee County

Court of Appeals of Michigan

December 3, 2019

RPF OIL COMPANY, Plaintiff-Appellee,
v.
GENESEE COUNTY and GENESEE COUNTY HEALTH DEPARTMENT, Defendants-Appellants.

          Genesee Circuit Court LC No. 17-109107-CZ

          Before: O'Brien, P.J., and Gadola and Redford, JJ.

          REDFORD, J.

         Defendants, Genesee County and Genesee County Health Department, appeal by right the trial court's entry of a stipulated order in which defendants agreed not to enforce the county's Regulation to Prohibit the Sale of Tobacco Products to Individuals Under 21 Years of Age (Tobacco 21 Regulation) prohibiting the sale of tobacco to persons under the age of 21 unless the trial court's earlier summary-disposition order in favor of plaintiff, RPF Oil Company, was overturned on appeal. We affirm the trial court's conclusion that the county's Tobacco 21 Regulation is preempted by the Age of Majority Act of 1971 (Age of Majority Act), MCL 722.51 et seq.

         I. BACKGROUND

         Genesee County's Tobacco 21 Regulation became effective on May 15, 2017. It prohibits the sale of any tobacco product or paraphernalia to persons under 21 years of age and requires that a retailer of tobacco or tobacco paraphernalia place a sign stating that the county prohibits the sale of tobacco products to any person under the age of 21.[1] The ordinance does not restrict persons 18 to 21 years old from using tobacco products in the county.

         Plaintiff owns and operates convenience stores in Genesee County. On May 12, 2017, plaintiff filed a declaratory-judgment action seeking the trial court's determination that the Age of Majority Act MCL 722.51 et seq. and the Youth Tobacco Act, MCL 722.641 et seq. preempted the county's Tobacco 21 Regulation because it conflicted with the state statutes. On July 24, 2017, following briefing by the parties and amicus, the trial court issued an order granting a preliminary injunction enjoining the county from enforcing the Tobacco 21 Regulation. On the same day, the trial court issued an order denying plaintiff's motion for summary disposition and a permanent injunction. On August 18, 2017, defendants sought leave to appeal the July 24, 2017 preliminary injunction order. This Court denied leave on October 6, 2017.[2]

         Plaintiff later filed a motion for summary disposition under MCR 2.116(C)(10) which the trial court denied on February 26, 2018. On March 26, 2018, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(10). Plaintiff responded on May 14, 2018, and sought judgment under MCR 2.116(I)(2). On May 31, 2018, following a hearing, the trial court ruled that a conflict existed between state law and the county's regulation because the Tobacco 21 Regulation prohibited what the statute permitted by not allowing adults from 18 to 21 years of age to purchase tobacco products within the county. The trial court entered an order denying defendant's motion for summary disposition and granted plaintiff summary disposition under MCR 2.116(I)(2) on plaintiff's claim for declaratory judgment. On July 2, 2018, the trial court entered a final stipulated order under which defendants agreed not to enforce the Tobacco 21 Regulation unless the trial court's May 31, 2018 summary-disposition order was overturned on appeal.

         II. STANDARD OF REVIEW

         We review de novo a trial court's decision on a motion for summary disposition. BC Tile & Marble Co, Inc v Multi Bldg Co, Inc, 288 Mich.App. 576, 583; 794 N.W.2d 76 (2010). Summary disposition is appropriate under MCR 2.116(C)(10) when "there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Id. (quotation marks and citation omitted). We review de novo a motion for summary disposition granted under MCR 2.116(I)(2). Sharper Image Corp v Dep't of Treasury, 216 Mich.App. 698, 701; 550 N.W.2d 596 (1996). "If, after careful review of the evidence, it appears to the trial court that there is no genuine issue of material fact and the opposing party is entitled to judgment as a matter of law, then summary disposition is properly granted under MCR 2.116(I)(2)." Lockwood v Twp of Ellington, 323 Mich.App. 392, 401; 917 N.W.2d 413 (2018) (citations omitted). We also review de novo a trial court's ruling on a question of statutory interpretation. Thompson-McCully Quarry Co v Berlin Charter Twp, 259 Mich.App. 483, 488; 674 N.W.2d 720 (2003). "We give the words of a statute their plain and ordinary meaning, looking outside the statute to ascertain the Legislature's intent only if the statutory language is ambiguous." Pohutski v Allen Park, 465 Mich. 675, 683; 641 N.W.2d 219 (2002). "A statutory provision is ambiguous only if it conflicts irreconcilably with another provision or it is equally susceptible to more than one meaning." Sav-Tuk Indus, Inc v Allegan Co, 316 Mich.App. 122, 136; 892 N.W.2d 33 (2016) (citation omitted). "Whether a state statute preempts a local ordinance is a question of statutory interpretation and, therefore, a question of law that we review de novo." Ter Beek v City of Wyoming (Ter Beek I), 297 Mich.App. 446, 452; 823 N.W.2d 864 (2012).

         III. ANALYSIS

         Defendants argue that the trial court erred by ruling that the Age of Majority Act preempts the Tobacco 21 Regulation. We disagree.

         "Subject to authority specifically granted in the Constitution, local governments derive their authority from the Legislature." City of Taylor v Detroit Edison Co, 475 Mich. 109, 115; 715 N.W.2d 28 (2006) (citations omitted). "Under Const 1963, art 7, § 22, a Michigan municipality's power to adopt resolutions and ordinances relating to municipal concerns is 'subject to the constitution and law'." People v Llewellyn, 401 Mich. 314, 321; 257 N.W.2d 902 (1977). State law may preempt a local government's law either through a direct conflict or through occupying the field in which the municipality seeks to regulate. Id. at 322. Thus, an ordinance is preempted if it is "in direct conflict with the state statutory scheme . . . ." Id. "Michigan is strongly committed to the concept of home rule, and constitutional and statutory provisions which grant power to municipalities are to be liberally construed." Bivens v Grand Rapids, 443 Mich. 391, 400; 505 N.W.2d 239 (1993). Nevertheless, local governments may regulate matters of local concern only in a manner and to the degree that their regulations do not conflict with state law. Taylor, 475 Mich. at 117-118. Local regulations directly conflict with state statutes if the regulation permits what the statute prohibits or prohibits what the statute permits. Ter Beek v City of Wyoming (Ter Beek II), 495 Mich. 1, 20; 846 N.W.2d 531 (2014) (quotation marks and citation omitted). Our Supreme Court has explained that an ordinance may add additional prohibitions to the prohibitions set forth in a statute. Miller v Fabius Twp Bd, 366 Mich. 250, 256; 114 N.W.2d 205 (1962). When an ordinance and a statute are both prohibitory and "the only difference between them is that the ordinance goes further in its prohibition," there is no conflict. Id. (quotation marks and citations omitted). However, a local government may "not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required . . . ." Id. at 256 (quotation marks and citations omitted). Preemption applies to counties as well as cities. See Saginaw Co v John Sexton Corp of Mich, 232 Mich.App. 202, 214; 591 N.W.2d 52 (1998) (applying conflict preemption to a county ordinance). A county-like a city-may not enact an ordinance that conflicts with state law. Ter Beek II, 495 Mich. at 19-20.

         This appeal requires determining whether Genesee County's Tobacco 21 Regulation is preempted by state law. Section 2 of ...


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