DAN MORALES

ATTORNEY GENERAL 

### @ffice of the !Zlttornep 

## General State of ‘(ICexas March 51997
The Honorable Fred Hill Chair, Committee on Urban Atfairs Texas House ofRepresentatives P.O. Box 2910 Austin, Texas 78768-29 10 Opinion No. DM-433 Re: Authority of a home-rule city to adopt an ordiice restricting or prohibiting cigarette vending machines (RQ-9 12)

Dear RepresentativeHill: You have requested our opinion regard& the authority of ahome-rule municipality to adopt an ordimnce that e&herprohii the sale of.tobacco products through vending machines or restricts the placement of such machines to areas in which persons younger than eighteen years of age are barred. Cbpters 154and155ofthe. Tax Code?evy a tax on the sale of cigarettes and other tobacco m and establish a system for the adrrrrmstration, collection and enforcement of the tax. The tax is enforced by a requhement that all distriiutors, wholesalers, bonded agents, and retailers of tobaccoproductshaveastatepennittoengageinbusiness. Chapters 154and 155provide: “Permits for engaging in business as a distributor, wholes&r, bonded agent, or retailer shell be govwned ex&siw$bylhehepPunrisionsofticode.” Tax Code $5 154.101(h), 155041(h) (emphasis added). In Attorney General Opiion DM-182, we held that a home-rule city ordinance that established a licensing system for the retail sale oftobacco products was preempted by the quoted provisions of the Tax Code. Attorney General Opiion DM-182 (1992). You express concern about the effect ofthe Tax Code pun&ions and Attorney GeneralOpinion DM-182 on any attempt by a municipality to ban or restrict the location of tobacco product vending machines. InDaurrs Merchant’sandC ‘ s Association v. Ci@ ofDabs, 852 S.W.2d 489, 491 (Tex 1993),the supremecourt considered achallenge to a city xoning ordinance that prohibited the saleofalcoholic beverageswithin 300feet ofaresidentialarea. The court held that the ordinance was preempted by aportion ofthe Alcoholic Beverage Code that provides:

(a) Except as is expressly authorized by this code, a regulation, charter, or ordinance promulgated by a governmental entity of this state may not impose stricter stands& on premises or businesses required to have a license orpermit under this code than are imposed on similar premises or businesses that are not required to have such a license or permit.The Honorable Fred Hill - Page 2 (DE-433)

(b) Nikthein&M

ofhe Iegisknitrethalihiscode shallexclusive&govern ihe regubon of alcoholic beverages in ihis staie, and that except as permitted by this code, a governmental entity may not discriminate against a business holding a license or permit under this code. Alto. Bev. Code $ 109.57. In concluding that the ordinance in question was incompatible with the statutory provision, however, the supreme court observed that a claim of preemption had to overcome significant obstacles:

[t]he mar. fici that the legislature has enacted a law addressing a subject does not meanthecomplete subject matter is completely preempted

. [A] general law and a city ordiice will not be held repugmmt to each other if any other reasonable construction leaving both ineffect canbe reached.

. . . Thus, if the Legislature chooses to preempt a subject matter usually encompassed by the broad powers of a home-rule city, it must do so with unmistakable clarity. 852 S.W.2d at 491 (citations omitted). In the DuZ.%r.r

Merchan! ‘scase, the statute provided that the Alcoholic Beverage Code was to “exclusivelygovern theregulalian of alcoholic beverages.” Id. Furthermore, an ordinance could not “impose stricter standards” on a business selling alcoholic beverages than one not doing so. It was dear thst an ordintince restricting the sale of alcoholic beverages based on location represented an attempt to “regulate,” and that such an ordiice sought to “impose stricter standards” on businesses selling alcoholic beverages By contrast, the Tax Code does not say that sll “regulation” of tobacco products “shall be governed exclusively by the provisions of this code,” but merely that “permits for engaging in busiwss” are sogoverned. In our opinion, an otxlhnce that restricts the location oftobacco vending machines, evento the point ofprohibition, does not implicate the “permitting” procedure established by state law. With regard to the sale of tobacco products, the legislature has not preempted the subjectmatter with %m&akable clarity.” It has spoken only to the petmitting or licensing process, as inAttorney General opinion DM-182, rather than to the entire spectrum ofpossible “regulation.” We conclude that a home-rule city is authorized to adopt an ordinance restricting the location of tobacco product vending machines, or banning them entirely, and in doing so, does not run afoul of the provisions of chapters 154and 155of the Tax Code.The Honorable Fred Hill - Page 3 (DM-433)

SUMMARY Ahome-rule municipalityisempowered to adopt an ordinance that either prohii the sale oftobacco products through vending machines or restricts the placement of such machines to areas in which persons younger than eighteen years of age are barred.

DAN MORALES Attorney General of Texas