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MALONE v. CITY OF OMAHA

Cite as 294 Neb. 516

John J. Malone, Sr., appellant

City of Omaha, appellee

___ N.W.2d ___

Filed August 19, 2016. No. S-15-676.

1. Ordinances: Appeal and Error. Interpretation of a municipal ordinance is a question of law, on which an appellate court reaches an 

independent conclusion irrespective of the determination made by the 

court below.

2. Courts: Statutes: Ordinances. When reviewing preemption claims, a 

court is obligated to harmonize, to the extent it legally can be done, state 

and municipal enactments on the identical subject.

3. Statutes: Appeal and Error. The interpretation of statutes and regulations presents questions of law which an appellate court reviews 

de novo.

4. Ordinances: Presumptions: Proof. Courts generally presume that legislative or rulemaking bodies, when enacting ordinances or rules, are 

acting within their authority. The burden to show otherwise rests on the 

party challenging the validity of the ordinance or rule.

5. Municipal Corporations: Ordinances. To overturn a city ordinance on 

the ground that it is unreasonable and arbitrary or that it invades private 

rights, the evidence of such facts should be clear and satisfactory.

6. Municipal Corporations: Ordinances: Presumptions. In determining the validity of a city ordinance regularly passed in the exercise of 

police power, the court will presume that the city council acted with 

full knowledge of the conditions relating to the subject of municipal legislation.

7. Municipal Corporations: Legislature. In the exercise of police power 

delegated by the state Legislature to a city, the municipal legislature, 

within constitutional limits, is the sole judge as to what laws should 

be enacted for the welfare of the people and as to when and how such 

police power should be exercised.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/19/2016 09:08 AM CDT
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8. Legislature: Statutes: Municipal Corporations: Ordinances. 

Preemption of municipal ordinances by state law is based on the fundamental principle that municipal ordinances are inferior in status and 

subordinate to the laws of the state. Municipal laws are inferior to state 

law, because a municipal corporation derives all of its powers from the 

state and has only such powers as the Legislature has seen fit to grant to 

it; as such, in the case of a direct conflict between a statute and a city 

ordinance, the statute is the superior law.

9. Statutes: Legislature: Intent. There are three types of preemption: (1) 

express preemption, (2) field preemption, and (3) conflict preemption. 

In all three cases, the touchstone of preemption analysis is legislative intent.

10. Political Subdivisions: Statutes: Legislature: Intent. Express preemption occurs when the Legislature has expressly declared in explicit statutory language its intent to preempt local laws.

11. ____: ____: ____: ____. Field preemption and conflict preemption 

arise in situations where the Legislature did not explicitly express 

its intent to preempt local laws, but such can be inferred from other 

circumstances.

12. ____: ____: ____: ____. In field preemption, legislative intent to preempt local laws is inferred from a comprehensive scheme of legislation.

13. Statutes: Political Subdivisions. When there is not comprehensive 

legislation on a subject, local laws may cover an authorized field of 

local laws not occupied by general laws, or may complement a field not 

exclusively occupied by the general laws.

14. Political Subdivisions: Statutes: Legislature. The mere fact that the 

Legislature has enacted a law addressing a subject does not mean that 

the subject matter is completely preempted. But where the state has 

occupied the field of prohibitory legislation on a particular subject, there 

is no room left for local laws in that area and a political subdivision 

lacks authority to legislate with respect to it.

15. Political Subdivisions: Statutes: Legislature: Intent. In conflict preemption, legislative intent to preempt local laws is inferred to the extent 

that a local law actually conflicts with state law.

16. Constitutional Law. The liberty to contract, the right to acquire and sell 

property in a lawful manner, and the right to conduct lawful business are 

constitutionally protected rights.

17. Statutes: Constitutional Law. A regulatory statute adopted by virtue of 

the police power which has no reasonable relation to the public health, 

safety, and welfare is invalid. The test of validity is the existence of 

a real and substantial relationship between the exercise of the police 

power and the public health, safety, and welfare.
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18. ____: ____. A statute, under the guise of a police regulation, which 

does not tend to preserve the public health, safety, and welfare is an 

unconstitutional invasion of the personal and property rights of the 

individual.

Appeal from the District Court for Douglas County: Marl

A. Polk, Judge. Affirme

Brian J. Koenig and Eric A. Nanfito, of Koley Jessen, P.C., 

L.L.O., for appellant.

Alan M. Thelen, Deputy Omaha City Attorney, and Jennifer 

J. Taylor for appellee.

Heavican, C.J., Wright, Cassel, Stacy, and Kelch, J

Inbody and Riedmann, Ju

Heavican, C

I. INTRODUCTION

The City of Omaha (City) enacted ordinance No. 39090, 

which required contractors doing work within the City to 

obtain a license. John J. Malone, Sr., challenged the ordinance 

on various grounds. Most of the grounds were dismissed following the City’s motion for summary judgment; the last was 

dismissed following a bench trial. At issue on appeal is the 

City’s authority to enact this ordinance. We affirm.

II. FACTUAL BACKGROUND

Ordinance No. 39090 was placed on the Omaha City Council 

agenda for a first reading on May 3, 2011. The original ordinance provided that it was for “the licensing and regulation of 

general contractors.”

A second reading was on the agenda for a meeting held on 

May 10, 2011, and the public was invited to testify. Notice 

of this hearing was published and indicated that the ordinance concerned licensing and regulation of general contractors. In response to opposition, the ordinance was laid over 

and revised.
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The ordinance was eventually enacted on August 16, 2011. 

The agenda for that meeting noted that the ordinance concerned licensing and regulation of general contractors and 

that amendments to the ordinance would be considered. Those 

amendments were eventually incorporated into the ordinance 

as enacted.

Generally speaking, the changes from the proposed to the 

adopted versions of the ordinance were (1) a change throughout of the term “general contractor” to “contractor” and (2) 

the removal from the definition of contractor, and thus from 

the reach of the ordinance, (a) “landlords and property owners performing work on property that they own but do not 

reside in,” (b) persons performing routine maintenance and 

handyman services, and (c) certain organizations using a volunteer labor force. The adopted ordinance, with changes to 

the proposed ordinance as noted by underscores and strikethroughs, provided:

Sec. 43-273. General c Contractor defined.

(a) For purposes of this article, a “general contractor” 

is defined as any person or entity who contracts with 

the owner or tenant of property to build, construct, alter, 

repair, add to, subtract from, or otherwise improve any 

building or structure upon the said property, within the 

city or its three-mile extraterritorial jurisdiction. The term 

also applies to landlords and property owners performing 

work on property that they own but do not reside in. The 

term “general contractor” shall not include any of the 

following:

(1) aA tradesman licensed by the city who performs 

work within his or her licensed trade, or any subcontractor performing work under a contract with a licensed 

general contractor.

(2) A person performing work defined as routine maintenance in section 43-72.

(3) A person performing work under the definition of 

“handyman services” in section 43-72.
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(4) Any organization that constructs new or renovates 

existing structures with a mostly volunteer labor force. 

Such organization shall have at least one of the following: (a) at least one person on [its] staff who is a licensed 

contractor holding a Class “C” or above license, (b) a 

licensed contractor holding a Class “C” or above license 

serving as a board member acting as [its] license holder, 

or (c) a volunteer licensed contractor holding a Class “C” 

or above license working on the building site providing 

oversight and mentoring for the work crew.

On June 25, 2013, Malone filed suit challenging the ordinance. As relevant on appeal, the complaint alleged that the 

passage of ordinance No. 39090 did not comply with the procedural requirements of the Omaha City Charter, art. II, § 2.12 

(1984); that the ordinance placed an unfair restriction on and 

monopolized the contracting industry in the City; and that the 

ordinance violated Malone’s constitutional rights.

The district court granted the City’s motion for summary 

judgment on all but one of Malone’s claims. That claim, identified in the complaint as “Injuries to Business and Property,” 

proceeded to a bench trial. Following trial, the district court 

found for the City, concluding that the City was within its 

power to enact the ordinance and that the ordinance did not 

prevent Malone from working on his own property.

Malone appealed. Pursuant to our statutory authority to 

regulate the dockets of the appellate courts of this state, we 

moved the case to our docket.1

III. ASSIGNMENTS OF ERROR

Malone assigns, restated and consolidated, that the district 

court erred in (1) not finding that the ordinance was enacted 

in violation of § 2.12 of the City’s charter; (2) finding that the 

City was empowered under its charter to enact the ordinance; 

(3) not finding that the ordinance was monopolistic and failed 

1 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2015).
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to further the public health, safety, or welfare; (4) not finding 

that the ordinance was unlawful because it was preempted by 

the Legislature’s occupation of the fields of the licensing of 

the health, safety, and welfare of the public, the construction 

industry, and the lead abatement industry; (5) finding that the 

ordinance did not violate Malone’s constitutional right to conduct a lawful business; (6) granting the City’s motion for summary judgment; and (7) not granting permanent injunction and 

instead dissolving the temporary injunction.

IV. STANDARD OF REVIEW

[1] Interpretation of a municipal ordinance is a question of 

law, on which we reach an independent conclusion irrespective 

of the determination made by the court below.2

[2] When reviewing preemption claims, a court is obligated 

to harmonize, to the extent it legally can be done, state and 

municipal enactments on the identical subject.3

[3] The interpretation of statutes and regulations presents 

questions of law which we review de novo.4

V. ANALYSIS

1. § 2.12

In his first assignment of error, Malone contends that the 

district court erred when it failed to find that the ordinance was 

passed in violation of § 2.12 of the City’s charter.

That section provides:

Every legislative act of the Council shall be by ordinance, and other acts, if so required by law, shall also 

be by ordinance. Every ordinance shall be offered in 

writing and signed by the elected official introducing 

2 State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919, 766 N.W.2d 

134 (2009).

3 Butler County Dairy v. Butler County, 285 Neb. 408, 827 N.W.2d 267 

(2013).

4 See id.
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it. The enacting clause of every ordinance shall be as 

follows: “Be it ordained by the City Council of the 

City of Omaha:”. No ordinance shall contain more than 

one subject, and the same shall be clearly expressed in 

the title. No ordinance, except emergency ordinances 

enacted pursuant to section 2.13, shall be passed earlier 

than two weeks after its introduction or go into effect 

before fifteen days from the time of its passage, but 

in the case of ordinances not of a legislative character, 

the Council may provide by rule for an earlier effective 

date. There shall be three readings of every ordinance, 

which may be satisfied by the title being published on 

the printed agenda, at separate meetings and, if not read 

or considered at consecutive meetings, any postponement 

shall be to a date certain. There shall be opportunity provided for a public hearing at the same time as the second 

reading unless a different time shall be fixed at the first 

reading. At least three days before the public hearing, 

the title of the ordinance and a notice of the time and 

place of the public hearing shall be published at least 

once in the official newspaper. Every ordinance enacted 

shall, not later than ten days after its effective date, be 

published in the official newspaper, unless the Council 

shall waive this requirement and in lieu thereof direct 

the publication of only the title and a summary of the 

ordinance’s contents.5

On appeal, Malone asserts that when the City amended the 

title from “licensing and regulation of general contractors” to 

“licensing and regulation of contractors,” it was required to 

provide notice anew of that change in order to comply with 

§ 2.12. Malone bases this argument on his perception of the 

distinction between “general contractor” and “contractor.”

We disagree that the City was required to recommence 

the notice process on these facts. As Malone notes, § 2.12 

5 § 2.12 (emphasis supplied).
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provides that the title be published along with the public hearing information in order to provide notice that the ordinance 

would be discussed. There is no dispute that this notice was 

sufficient at the outset and that a hearing on the ordinance 

was held.

But the record shows that after this initial public hearing, 

amendments were made to the proposed ordinance in response 

to the feedback received at the hearing. There is nothing in 

§ 2.12 that requires that after holding a public hearing, the 

notice process begins anew when changes are made to the 

ordinance. Indeed, the purpose behind the title is to provide 

notice; once it has performed that function, the title no longer 

serves any useful purpose.

We disagree with Malone’s contention that the change widened the scope of the ordinance because “general contractor” 

is a narrower term than “contractor.” The amendment of the 

term “general contractor” to “contractor” did not change the 

original meaning of the term as expressed in the initial draft, 

and in fact, the changes acted to remove certain individuals 

from the definition of the term “contractor.”

Finally, the amendment to the ordinance’s title was purely 

stylistic in nature as it simply changed the title to comport with 

the amendments to the ordinance.

We conclude that Malone’s first assignment of error is without merit.

2. Power to Li

(a) City’s Authority

Malone next argues that the City lacked the authority to pass 

the ordinance, because the City has no authority to license contractors. Malone makes several arguments as to why the City 

lacks this power: (1) The power is not granted by the City’s 

charter, (2) case law limits the power to license, and (3) the 

power to license has been preempted by the Legislature. We 

note that there is conflicting authority regarding the nature of 
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the City’s charter. But we need not reach Malone’s argument 

on this point, because we conclude that, in fact, case law and 

Nebraska statutes support the conclusion that the Legislature 

has authorized the City to pass this ordinance and that the ordinance is not preempted by the Legislature. We therefore find 

Malone’s arguments to be without merit.

[4-7] Courts generally presume that legislative or rulemaking bodies, when enacting ordinances or rules, are acting 

within their authority.6 The burden to show otherwise rests on 

the party challenging the validity of the ordinance or rule.7 To 

overturn a city ordinance on the ground that it is unreasonable 

and arbitrary or that it invades private rights, the evidence 

of such facts should be clear and satisfactory.8 In determining the validity of a city ordinance regularly passed in the 

exercise of police power, the court will presume that the city 

council acted with full knowledge of the conditions relating 

to the subject of municipal legislation.9 In the exercise of 

police power delegated by the state Legislature to a city, the 

municipal legislature, within constitutional limits, is the sole 

judge as to what laws should be enacted for the welfare of 

the people and as to when and how such police power should 

be exercised.10

The Legislature has passed several different statutes 

empowering cities to regulate building construction. To begin, 

Neb. Rev. Stat. § 71-6406(1) (Supp. 2015) of the Building 

Construction Act provides that “[a]ny political subdivision 

may enact, administer, or enforce a local building or construction code if or as long as such political subdivision adopts 

the state building code.” Both the City and the State have 

6 See Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005).

7 Id.

8 Wolf v. City of Omaha, 177 Neb. 545, 129 N.W.2d 501 (1964).

9 Id.

10 Id.
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adopted the appropriate building codes.11 Section 71-6406(3) 

also allows a political subdivision, such as the City, to collect 

fees which monitor a builder’s application of codes.

Still other relevant grants of power are enumerated in 

Nebraska law. Neb. Rev. Stat. § 14-102 (Supp. 2015) sets 

forth the powers of a city of the metropolitan class. Section 

14-102(32) empowers the City “[t]o prescribe fire limits and 

regulate the erection of all buildings and other structures within 

the corporate limits . . . .” Section 14-102(33) grants the City 

the power “[t]o regulate the construction, use, and maintenance 

of party walls, to prescribe and regulate the thickness, strength, 

and manner of constructing stone, brick, wood, or other buildings and the size and shape of brick and other material placed 

therein . . . .” That subsection also allows the regulation of 

other specific elements of building construction, including, 

among others, fire escapes, elevators, plumbing, pipefitting, 

chimneys, fireplaces, and stairways.

The City also has been granted the following broad powers:

To make and enforce all police regulations for the good 

government, general welfare, health, safety, and security 

of the city and the citizens thereof in addition to the 

police powers expressly granted herein; and in the exercise of the police power, to pass all needful and proper 

ordinances and impose fines, forfeitures, penalties, and 

imprisonment at hard labor for the violation of any ordinance, and to provide for the recovery, collection, and 

enforcement thereof; and in default of payment to provide 

for confinement in the city or county prison, workhouse, 

or other place of confinement with or without hard labor 

as may be provided by ordinance.12

We therefore conclude that the City has the power to regulate 

contractors.

11 Neb. Rev. Stat. § 71-6403 (Supp. 2015); Omaha Mun. Code, ch. 43, art. II, 

§ 43-121 (2008).

12 § 14-102(25). See, also, § 14-102(3) and (5).
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Still, Malone contends that the power to regulate does not 

include the power to license. He cites to State v. Wiggenjost13

and Gray v. City of Omaha14 in support of this assertion. In 

Gray, this court held that the City of Omaha did not have the 

authority to license a person engaged in the occupation of 

installing sidewalks. And in Wiggenjost, we held that the city 

of Lincoln did not have the authority to license a sign painter.

We disagree with this assertion. These cases do not suggest 

that licensure may never be permitted; rather, both simply suggest that licensure on the facts of those cases did not affect the 

public’s health, morals, safety, or welfare.

And indeed, in State v. Phillips,

15 we held that the city of 

Lincoln did have the authority to license a person engaged in 

the business of house moving. We noted:

It may be stated as a broad proposition that there are 

some occupations which every citizen may engage in as a 

matter of right and which are not subject to regulation by 

public authorities. Such occupations, however, as may in 

their performance affect public health, morals, safety or 

welfare are proper subjects of regulation under the police 

power . . . .16

This raises another of Malone’s assertions—that the health, 

safety, and welfare of the citizenry was not affected by this 

ordinance. Malone argues that public health, safety, and welfare would be better served if more individuals obtained permits for work done within the City’s limits, because that work 

would then be inspected. Malone also notes that virtually all 

work that is inspected eventually passes that inspection and 

that a contractor who would not pull a permit will also not 

get licensed.

13 See State v. Wiggenjost, 130 Neb. 450, 265 N.W. 422 (1936).

14 Gray v. City of Omaha, 80 Neb. 526, 114 N.W. 600 (1908).

15 State v. Phillips, 133 Neb. 209, 274 N.W. 459 (1937).

16 Id. at 211, 274 N.W. at 460 (emphasis supplied).
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Malone is correct insofar as his argument goes. But there 

is nothing that requires the licensing ordinance at issue here 

to be perfect; it just has to impact public health, safety, and 

welfare. And there is little doubt but that it does. A witness 

for the City testified that the purposes behind licensing contractors were to decrease the number of reinspections and to 

ensure that contractors working in the field understood what 

inspectors expected of them and their work. Yet another reason was to keep closer watch on the contracting community. 

The witness testified that those goals had been met. And more 

generally, one stated purpose behind requiring a building code 

is that such standards are necessary to “safeguard life, health, 

property, and the public welfare by regulating and controlling 

the design, construction, quality of materials, use and occupancy, and maintenance of buildings and structures within 

this state.”17

The City has the authority under state law to enact such 

an ordinance. Malone’s arguments to the contrary are without merit.

(b) Monopoly

Malone also asserts that the ordinance is monopolistic 

because it is more difficult for individual and small firm contractors to obtain licensure than it is for larger contracting 

firms. Malone states that the court in Gray specifically noted 

that the sidewalk licensing ordinance at issue did not “‘creat[e] 

a monopoly’” but that it was “‘monopolistic in its tendency, 

and would incline to lessen competition.’”18

We disagree with Malone. The requirements for licensure 

are the same under the ordinance regardless of who is applying for the license, and the record shows that one licensed 

contractor per job is generally sufficient regardless of the 

number of individuals also working that same job.

17 Neb. Rev. Stat. § 71-6402(2) (Reissue 2009).

18 Brief for appellant at 32, quoting Gray v. City of Omaha, supra note 14.
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Gray is inapplicable, because there the court also noted simply that even if something might be monopolistic, it might still 

be necessary for a city to exercise its power to regulate, for 

reasons of public safety.19 And we have concluded that public 

safety is at issue here.

It is true that licensing contractors will not catch every 

instance of poor contracting work, because some contractors 

will simply not obtain a license, but licensure nevertheless 

impacts the public’s health, safety, and welfare. Malone’s argument to the contrary is without merit.

(c) Legislative Preemption

Malone next argues that the district court erred in not finding that the ordinance was preempted by state law. Malone 

contends that contractor licensing is preempted by (1) the 

Building Construction Act,20 (2) the Contractor Registration 

Act,21 and (3) the Residential Lead-Based Paint Professions 

Practice Act.22

[8] “‘[P]reemption of municipal ordinances by state law 

is based on the fundamental principle that “municipal ordinances are inferior in status and subordinate to the laws of the 

state.”’”23 Further, we have explained that municipal laws are 

inferior to state law, because “‘a municipal corporation derives 

all of its powers from the state and . . . has only such powers 

as the Legislature has seen fit to grant to it,’” concluding from 

this fact that “‘in the case of a direct conflict between a statute 

and a city ordinance, the statute is the superior law.’”24

19 See Gray v. City of Omaha, supra note 14.

20 Neb. Rev. Stat. § 71-6401 et seq. (Reissue 2009, Cum. Supp. 2014 & 

Supp. 2015).

21 Neb. Rev. Stat. § 48-2101 et seq. (Reissue 2010).

22 Neb. Rev. Stat. § 71-6318 et seq. (Reissue 2009).

23 Butler County Dairy v. Butler County, supra note 3, 285 Neb. at 431, 827 

N.W.2d at 286.

24 Id. at 431, 827 N.W.2d at 286-87.
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[9-11] There are three types of preemption: (1) express preemption, (2) field preemption, and (3) conflict preemption.25

In all three cases, “‘[t]he touchstone of preemption analysis 

is legislative intent.’”26 Express preemption occurs when the 

Legislature has “‘expressly declare[d] in explicit statutory language its intent to preempt’ local laws.”27 Field preemption and 

conflict preemption arise in situations where the Legislature 

did not explicitly express its intent to preempt local laws, but 

we can infer such intent from other circumstances.

[12-14] In field preemption, legislative intent to preempt 

local laws is “‘inferred from a comprehensive scheme of 

legislation.’”28 When there is not comprehensive legislation 

on a subject, local laws “‘“may cover an authorized field of 

local laws not occupied by general laws, or may complement 

a field not exclusively occupied by the general laws.”’”29

Indeed, “‘“[t]he mere fact that the legislature has enacted a 

law addressing a subject does not mean that the subject matter is completely preempted.”’”30 But “‘“where the state has 

occupied the field of prohibitory legislation on a particular 

subject,”’” there is no room left for local laws in that area 

and a political subdivision “‘“lacks authority to legislate with 

respect to it.”’”31 Because a comprehensive scheme of legislation effectively keeps localities from legislating in that area, 

we infer from such a scheme that the Legislature intended to 

preempt local laws.

[15] In conflict preemption, legislative intent to preempt local laws is inferred “‘to the extent that [a local law] 

25 Id.

26 Id. at 431, 827 N.W.2d at 287.

27 Id.

28 Id. at 432, 827 N.W.2d at 287.

29 Id.

30 Id.

31 Id.
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actually conflicts with state law.’”32 As this court has previously explained, “‘“[t]hat which is allowed by the general laws 

of the state cannot be prohibited by ordinance, without express 

grant on the part of the state. Conversely, without express legislative grant, an ordinance cannot authorize what the statutes 

forbid.”’”33 Nonetheless, when a court considers preemption 

claims, it “‘is obligated to harmonize, to the extent it legally 

can be done, state and municipal enactments on the identical subject.’”34

(i) Building Construction Act

Malone first argues that the licensing ordinance is preempted by the Building Construction Act. The purposes of that 

act are to (1) adopt a state building code, (2) provide standards 

with respect to building construction, and (3) provide for the 

use of innovation in building construction.35 This act also 

requires cities to adopt a building code.36

Malone argues that the Building Construction Act does not 

allow for the licensing of contractors and neither does the 

State Building Code and that as such, the City cannot license 

them. We note that Malone is making field and conflict preemption arguments. As there is no express language dealing 

with contractor licensing, express preemption has no applicability here.

As noted above, legislative intent to preempt local laws is 

inferred from a comprehensive scheme of legislation.37 When 

there is not comprehensive legislation on a subject, local laws 

may cover an authorized field of laws not occupied by general 

32 Id.

33 Id.

34 Id.

35 § 71-6402.

36 Id.

37 Id.
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laws, or may complement a field not exclusively occupied by 

the general laws. Only where there is no room left for local 

laws in that area does a political subdivision lack authority to 

legislate with respect to it.

The primary purposes of the Building Construction Act are 

to adopt a building code to govern the “construction, reconstruction, alteration, and repair of buildings” and to control the 

“design, construction, quality of materials, use and occupancy, 

and maintenance of buildings.”38 Thus, the reason for this 

act is to ensure that buildings are built safely and correctly. 

This act does not control in any way who builds the building, 

only that the person involved in the construction do so safely. 

Moreover, as we found above, this act forms part of the basis 

of the City’s statutory authority to enact this ordinance. As 

such, we conclude that the ordinance is not preempted by the 

Building Construction Act.

(ii) Contractor Registration Act

Malone also argues that the Contractor Registration Act 

preempts the City’s ordinance. The purpose of the Contractor 

Registration Act is to require contractors doing business in the 

state to be registered with the state’s Department of Labor. 

Section 48-2102 expressly provides that “[i]t is not the intent 

of the Legislature to endorse the quality or performance of 

services provided by any individual contractor.”

Malone argues that the fact of registration, along with the 

statement that the State is not endorsing the quality or performance of a contractor, acts to preempt the ordinance. But 

this argument is not persuasive.

The mere fact that the Legislature has enacted a law 

addressing a subject does not mean that the subject matter is 

completely preempted.39 There is nothing in the Contractor 

38 Id.

39 Butler County Dairy v. Butler County, supra note 3.
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Registration Act to suggest that a city cannot regulate contractors simply because the State also requires them to register. 

When deciding issues of preemption, an appellate court is 

required to try to harmonize the state and local law.40 Here, 

the state law requires contractors to have their names entered 

into a state database. The local ordinance requires testing and 

licensing at the local level. The two can exist together, and the 

ordinance is not preempted by this act.

(iii) Residential Lead-Based Paint 

Professions Practice Act

Finally, Malone argues that the Residential Lead-Based Paint 

Professions Practice Act preempts the ordinance. The purpose 

of this act is to set forth procedures and requirements for 

accreditation of training programs, licensure, and work practice 

standards for performing lead-based paint activities.

We cannot conclude that this act preempts the ordinance at 

question here. This is particularly true when the act specifically 

notes that

abatement does not include renovation, remodeling, landscaping, or other activities when such activities are not 

designed to permanently eliminate lead-based paint hazards but instead are designed to repair, restore, or remodel 

a structure or dwelling even if such activities may incidentally result in a reduction or elimination of lead-based 

paint hazards.41

This act, then, controls the removal of the lead-based paint 

hazards; the ordinance controls the licensure of activities 

that are expressly excluded from the definition of lead-based 

paint abatement.

There is no merit to Malone’s second through fourth assignments of error.

40 Id.

41 § 71-6319.02.
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3. Right to Conduct Lawful B

Malone next argues that the district court erred in concluding that the ordinance did not violate his constitutional 

right to conduct a lawful business and his right to privacy 

and property. Malone argues that the ordinance does not 

increase public safety in any way, yet it requires him to be 

licensed to engage in his contracting business, and that such 

is unconstitutional.

[16-18] The liberty to contract, the right to acquire and sell 

property in a lawful manner, and the right to conduct lawful 

business are constitutionally protected rights.42 A regulatory 

statute adopted by virtue of the police power which has no 

reasonable relation to the public health, safety, and welfare 

is invalid. 43 The test of validity, then, is the existence of a 

real and substantial relationship between the exercise of the 

police power and the public health, safety, and welfare.44 A 

statute under the guise of a police regulation, which does not 

tend to preserve the public health, safety, and welfare, is an 

unconstitutional invasion of the personal and property rights of 

the individual.45

Malone is correct that he has a constitutional right to conduct a lawful business. But so long as the regulation adopted 

by the City bears a reasonable relationship to the public 

health, safety, and welfare, the regulation of that right is 

permissible.

We have already concluded that the ordinance in this case 

operated to improve the health, safety, and welfare of the 

City’s residents. That the regulation could have gone further, 

or that other regulatory methods might also be effective, does 

42 State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987), abrogated on 

other grounds, State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

43 United States Brewers’ Assn., Inc. v. State, 192 Neb. 328, 220 N.W.2d 544 

(1974).

44 Id.

45 Id.
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not affect our conclusion that this ordinance bears a reasonable relationship to the public’s health, safety, and welfare.

There is no merit to Malone’s fifth assignment of error.

4. Remaining Assignments o

Having concluded that the district court did not err as 

explained above, we find no merit to Malone’s sixth and seventh assignments of error.

VI. CONCLUSION

The decision of the district court is affirmed.

Affirmed

Connolly and Miller-Lerman, JJ., not participa