Safeway Inc. v. City and County of San Francisco et al, No. 4:2011cv00761 - Document 35 (N.D. Cal. 2011)
Court Description: ORDER GRANTING DEFENDANTS 15 MOTION TO DISMISS WITH PREJUDICE. Signed by Judge Claudia Wilken on 7/15/2011. (ndr, COURT STAFF) (Filed on 7/15/2011)
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Safeway Inc. v. City and County of San Francisco et al Doc. 35 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 SAFEWAY INC., No. 11-00761 CW 5 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE 6 v. 7 8 9 United States District Court For the Northern District of California 10 CITY AND COUNTY OF SAN FRANCISCO; THE BOARD OF SUPERVISORS FOR THE CITY AND COUNTY OF SAN FRANCISCO; and EDWIN M. LEE, in his official capacity of Mayor of the City and County of San Francisco, 11 Defendants. / 12 13 This lawsuit arises from the enactment of San Francisco 14 Ordinance No. 194-08 (the original ordinance), as amended by San 15 Francisco Ordinance No. 245-10 (the amended ordinance), San 16 Francisco Health Code § 1009.01, which prohibits the sale of 17 tobacco by any store within the City and County of San Francisco 18 that contains a pharmacy. Defendants City and County of San 19 Francisco, the Board of Supervisors for the City and County of San 20 Francisco and Mayor Edwin M. Lee move to dismiss all of Plaintiff’s 21 claims. Plaintiff filed an opposition. The California Medical 22 Association filed an amicus curiae brief in support of Defendants’ 23 motion to dismiss and Plaintiff filed an opposition to it.1 The 24 motion was heard on June 2, 2011. Having heard argument on the 25 motion and considered all the papers filed by the parties, the 26 27 28 1 The amicus brief is based on evidence that the Court cannot consider on a motion to dismiss. Therefore, the Court does not address the arguments presented in it. Dockets.Justia.com 1 Court grants the motion to dismiss, with prejudice. 2 BACKGROUND 3 The following facts are taken from Plaintiff’s complaint and 4 the documents attached to it and the documents of which the Court 5 has taken judicial notice.2 6 Plaintiff operates fifteen general grocery stores located in 7 San Francisco, ten of which include separate licensed pharmacies. 8 Prior to November 7, 2010, when the amended ordinance became 9 effective, Plaintiff sold tobacco products in the ten stores with United States District Court For the Northern District of California 10 pharmacies; after the amended ordinance went into effect, Plaintiff 11 was barred from selling tobacco products in its ten stores with 12 pharmacies. 13 Plaintiff staffs its pharmacies with pharmacists licensed by 14 the State of California. 15 sells prescriptions drugs to its customers. 16 isolated from the rest of the store by side walls, back walls, 17 front counters, and locked doors. 18 separate and distinguishable from the retail floor space displaying 19 general groceries, household supplies, non-prescription health and 20 beauty supplies and other products. In its pharmacies, Plaintiff fills and The pharmacies are Thus, the pharmacies are Plaintiff’s pharmacies did not 21 22 2 27 Both parties submit requests for judicial notice of certain documents. Under Rule 201 of the Federal Rules of Evidence, a court may take judicial notice of facts that are not subject to reasonable dispute because they are either generally known or capable of accurate and ready determination. A court also may properly look beyond the complaint to matters of public record. Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds by Astoria Federal Sav. and Loan Ass'n v. Solimino, 501 U.S. 104 (1991). The Court takes judicial notice of the submitted documents because they are matters of public record. 28 2 23 24 25 26 1 sell tobacco products. 2 stores’ customer service booths and were only available to 3 customers through staff who were not involved in pharmacy 4 operations. 5 Tobacco products were sold only through the The Board enacted the original ordinance on August 5, 2008. 6 It provided that “no person shall sell tobacco products in a 7 pharmacy.” 8 establishment in which the profession of pharmacy by a pharmacist 9 licensed by the State of California in accordance with the Business The word “pharmacy” was defined as “a retail United States District Court For the Northern District of California 10 and Professions Code is practiced and where prescriptions are 11 offered for sale. 12 addition to prescription pharmaceuticals.” 13 also provided that “the prohibition against tobacco sales at 14 pharmacies . . . shall not apply to (a) General Grocery Stores and 15 (b) Big Box Stores.” 16 findings that: (1) tobacco is the leading cause of preventable 17 death in the United States and the leading risk factor contributing 18 to the burden of disease in the world’s high-income countries; 19 (2) through the sale of tobacco products, pharmacies convey tacit 20 approval of the purchase and use of tobacco products, which sends a 21 mixed message to consumers who generally patronize pharmacies for 22 health care services; (3) in 1970, the American Pharmaceutical 23 Association stated that mass display of cigarettes in pharmacies is 24 in direct contradiction to the role of a pharmacy as a public 25 health facility; (4) various professional and health care 26 organizations have called for the adoption of state and local 27 prohibitions of tobacco sales in drugstores and pharmacies; and 28 A pharmacy may also offer other retail goods in The original ordinance The original ordinance was based on the 3 1 (5) prescription drug sales for chain drugstores represent a 2 significantly higher percentage of total sales than for grocery 3 stores and big box stores that contain pharmacies. 4 Findings 1, 7, 8 9, and 21. Comp., Ex. A, 5 In September 2008, Walgreen Co., a retail chain that sells 6 prescription and non-prescription drugs and general merchandise, 7 filed a lawsuit in state court against Defendants alleging that the 8 original ordinance violated its constitutional right to equal 9 protection. It argued that it was arbitrary and capricious to United States District Court For the Northern District of California 10 exempt general grocery stores and big box stores that had 11 pharmacies from the ban against selling tobacco products, when the 12 ban was applied to Walgreen and other pharmacies that sold general 13 merchandise, including tobacco products. 14 sustained a demurrer to Walgreen’s complaint without leave to 15 amend. 16 exemption to general grocery and big box stores, but not to 17 Walgreen, was a denial of Walgreen’s right to equal protection. 18 See Walgreen Co. v. City and County of San Francisco, et al., 185 19 Cal. App. 4th 424, 443-44 (2010). The superior court The appellate court reversed, holding that granting an 20 In September 2010, after the remand of Walgreen to the 21 superior court, the Board repealed the provision in the original 22 ordinance that exempted general grocery and big box stores. 23 Comp., Ex. E, the amended ordinance. 24 ordinance, the Board recited that its purpose was to “head off 25 further litigation over the proper remedy in the Walgreen case and 26 remove any cloud over ongoing enforcement of the Article.” 27 Ex. E, at 1. 28 See In amending the original Comp., On October 10, 2010, the amended ordinance became 4 1 2 law. As a result of the amended ordinance, Defendants revoked the 3 permits to sell tobacco products that had been issued to 4 Plaintiff’s ten stores in San Francisco that operate pharmacies. 5 Plaintiff competes with other grocery stores in San Francisco that 6 do not contain pharmacies, but that offer products similar to those 7 available in Plaintiff’s non-pharmacy operations. 8 competitors without pharmacies remain eligible for a license to 9 sell tobacco products. Plaintiff’s The ban on the sale of tobacco products in United States District Court For the Northern District of California 10 Plaintiff’s ten stores that operate pharmacies has damaged 11 Plaintiff’s business. 12 Based on these allegations, Plaintiff asserts the following 13 causes of action: (1) a request for an order declaring that the 14 sale of tobacco products in the general merchandise area of 15 Plaintiff’s stores is not the equivalent of sale in a pharmacy and 16 that Plaintiff is entitled to a permit to sell tobacco products in 17 these areas; (2) violation of Plaintiff’s federal and state 18 constitutional right to sell tobacco products in the same stores in 19 which it operates a pharmacy; (3) violation of Plaintiff’s federal 20 and state constitutional right to equal protection; (4) violation 21 of Plaintiff’s federal and state constitutional right to due 22 process; and (5) preemption by state law. 23 LEGAL STANDARD 24 A complaint must contain a “short and plain statement of the 25 claim showing that the pleader is entitled to relief.” 26 Civ. P. 8(a). 27 a claim, dismissal is appropriate only when the complaint does not 28 Fed. R. On a motion under Rule 12(b)(6) for failure to state 5 1 give the defendant fair notice of a legally cognizable claim and 2 the grounds on which it rests. 3 U.S. 544, 555 (2007). 4 sufficient to state a claim, the court will take all material 5 allegations as true and construe them in the light most favorable 6 to the plaintiff. 7 (9th Cir. 1986). 8 conclusions; “threadbare recitals of the elements of a cause of 9 action, supported by mere conclusory statements,” are not taken as Bell Atl. Corp. v. Twombly, 550 In considering whether the complaint is NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 However, this principle is inapplicable to legal United States District Court For the Northern District of California 10 true. 11 (2009) (citing Twombly, 550 U.S. at 555). 12 Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949-50 When granting a motion to dismiss, the court is generally 13 required to grant the plaintiff leave to amend, even if no request 14 to amend the pleading was made, unless amendment would be futile. 15 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 16 F.2d 242, 246-47 (9th Cir. 1990). 17 would be futile, the court examines whether the complaint could be 18 amended to cure the defect requiring dismissal "without 19 contradicting any of the allegations of [the] original complaint." 20 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). 21 In determining whether amendment Although the court is generally confined to consideration of 22 the allegations in the pleadings, when the complaint is accompanied 23 by attached documents, such documents are deemed part of the 24 complaint and may be considered in evaluating the merits of a Rule 25 12(b)(6) motion. 26 1267 (9th Cir. 1987). Durning v. First Boston Corp., 815 F.2d 1265, 27 28 6 1 2 3 DISCUSSION I. Declaratory and Injunctive Relief Construing Amended Ordinance In this cause of action, Plaintiff asks the Court to construe 4 the amended ordinance to prohibit the sale of tobacco products only 5 “in a pharmacy,” and not, as Defendants interpret it, to prohibit 6 the sale of tobacco products in any store in which a pharmacy is 7 located. 8 amended ordinance: “No person shall sell tobacco products in a 9 pharmacy.” Plaintiff bases this request on the language of the Plaintiff argues that Defendants are impermissibly United States District Court For the Northern District of California 10 expanding this language to regulate entire grocery stores that have 11 pharmacies located in them. 12 A district court has jurisdiction over a general 13 constitutional challenge to a statute. 14 McNair, 805 F.2d 888, 891 (9th Cir. 1986). 15 not involve a dispute regarding an application of the Constitution 16 or laws of the United States, federal jurisdiction is lacking. 17 Doby v. Brown, 232 F.2d 504, 506 (4th Cir. 1956). Worldwide Church of God v. However, if a suit does 18 Plaintiff asks the Court to construe the amended ordinance in 19 such a way as to avoid the constitutional issues it asserts in its 20 subsequent causes of action. 21 Plaintiff fails to state any constitutional claims upon which 22 relief may be granted. 23 leave to amend as amendment would be futile. 24 II. Violation of Right to Operate Lawful Business 25 However, as discussed below, Therefore, this claim is dismissed without Plaintiff alleges that it has a constitutionally protected 26 interest, under the substantive due process clause of the 27 Fourteenth Amendment to the United States Constitution and Article 28 7 1 I, § 7 of the California constitution,3 to operate a pharmacy 2 business and a retail grocery business. 3 amended ordinance is unconstitutional because it denies Plaintiff 4 permits to sell tobacco products unless it discontinues its 5 pharmacy businesses. 6 constitutional right to do business is implicated when the 7 government imposes generally applicable restrictions on business 8 activities pursuant to its police power to promote public health, 9 safety or welfare. United States District Court For the Northern District of California 10 Comp. ¶¶ 76-81. It continues that the Defendants respond that no “Where a [business] permit has been properly obtained and in 11 reliance thereon the permittee has incurred material expense, he 12 acquires a vested property right to the protection of which he is 13 entitled.” 14 151, 158 (1971). 15 business enterprise, it is subject to scrutiny by the courts with a 16 view to determining whether the ordinance is a lawful exercise of 17 the police power, or whether it amounts to unwarranted and 18 arbitrary interference with the constitutional rights to carry on a 19 lawful business, to make contracts, or to use and enjoy property. 20 Dobbins v. Los Angeles, 195 U.S. 223, 235-36 (1904) (citing Lawton 21 v. Steele, 152 U.S. 133, 137 (1894) (legislature may not 22 arbitrarily interfere with private business, or impose unusual and 23 unnecessary restrictions upon lawful occupations; citing cases 24 where legislative acts were held invalid as involving unnecessary O’Hagan v. Board of Zoning Adjustment, 19 Cal. App. 3d When a municipal ordinance regulates a useful 25 26 3 27 Article I, § 7 of the California Constitution provides that a person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. 28 8 1 invasion of the rights of property or inhibition of lawful 2 occupation). 3 Plaintiff alleges that it has obtained permits to engage in 4 the operation of a pharmacy and in the sale of tobacco products and 5 it has incurred material expenses in reliance upon those permits. 6 Thus, Plaintiff alleges a vested property right in those permits 7 that is subject to judicial scrutiny. 8 9 However, the protection of a vested property right in a business permit generally must yield to the state’s concern for the United States District Court For the Northern District of California 10 public health and safety and its authority to legislate for the 11 protection of the public. 12 (government may revoke use permit for lawful business where conduct 13 of business constitutes a nuisance threatening public safety); 14 Dobbins, 195 U.S. at 235 (“It may be admitted that every intendment 15 is to be made in favor of the lawfulness of the exercise of 16 municipal power, making regulations to promote the public health 17 and safety, and that it is not the province of courts, except in 18 clear cases, to interfere with the exercise of the power reposed by 19 law in municipal corporations for the protection of local rights 20 and the health and welfare of the people in the community”). 21 substantive due process claim cannot overturn a valid state statute 22 unless it is “clearly arbitrary and unreasonable, having no 23 substantial relation to the public health, safety, morals, or 24 general welfare.” 25 Cir. 2005). 26 27 28 See O’Hagan, 19 Cal. App. 3d at 159 A Spoklie v. Montana, 411 F.3d 1051, 1059 (9th Although Plaintiff may have property rights in its business permits, it has not alleged facts that would demonstrate that the 9 1 amended ordinance is an unwarranted and arbitrary interference with 2 those rights. 3 courts have found an unconstitutional interference with a permit or 4 right to do business, the government has singled out a particular 5 business owner for arbitrary treatment.4 6 As illustrated by the cases Plaintiff cites, when In Dobbins, 195 U.S. at 236-37, a local ordinance arbitrarily 7 prevented the plaintiff from constructing a gas line on property 8 she had bought for that very purpose. 9 city council had enacted the ordinance after the plaintiff had The Court found that the United States District Court For the Northern District of California 10 begun construction, not in the furtherance of the public health or 11 safety, but to provide an economic advantage to another business. 12 Id. at 239. 13 power is subject to judicial revies [sic], and property rights 14 cannot be wrongfully destroyed by arbitrary enactment. . . . No 15 reasonable explanation for the arbitrary exercise of power in the 16 case is suggested. . . . [W]here . . . the exercise of the police 17 power [is] in such manner as to oppress or discriminate against a 18 class or an individual, the courts may consider and give weight to 19 such purpose in considering the validity of the ordinance.” 20 239-40. 21 not directed specifically at Plaintiff, and Defendants have a 22 reasonable justification, based on public health and safety, for 23 its enactment. 24 The Court stated that “the exercise of the police Id. at Unlike the ordinance in Dobbins, the amended ordinance was Similarly, in O’Hagen, 19 Cal. App. 3d at 160, the court held 25 4 26 27 28 Two of Plaintiff’s cases, Dobbins v. Los Angeles and Nollan v. California Coastal Commission, address the constitutional prohibition against taking property without just compensation, not the substantive due process right that Plaintiff is asserting. 10 1 that the zoning board’s revocation of a use permit for the 2 operation of a drive-in restaurant without good cause or a 3 compelling public necessity was not constitutional. 4 board revoked the permit because the manner in which the restaurant 5 was being operated constituted a public nuisance. 6 However, the court found that the nuisance would be eliminated by 7 delineating conditions under which the restaurant could operate. 8 Id. at 165. 9 to revoke the use permit, which totally prohibited the plaintiff The zoning Id. at 161. There was no compelling necessity for the zoning board United States District Court For the Northern District of California 10 from operating his business. 11 Defendants have provided good cause and a compelling public 12 necessity for the amended ordinance. 13 Id. Here, unlike in O’Hagan, In Nollan v. California Coastal Commission, 483 U.S. 825, 831- 14 32 (1987), the Court held that the defendant had taken private 15 property without just compensation because it would grant a permit 16 to build a house on the plaintiffs’ beachfront property only on the 17 condition that they allow the public an easement to pass across 18 their property to the beach. 19 because the defendant’s requirement for an easement was arbitrarily 20 directed at these particular plaintiffs. Again, this case is inapplicable 21 The final case on which Plaintiff relies, Frost v. Railroad 22 Commission of the State of California, 271 U.S. 583, 592 (1926), 23 held that a state may not constitutionally force a company that 24 operates as a private carrier, which transports its own goods, also 25 to operate as a common carrier, which must accept transport of 26 other companies’ goods, in order to use the public highways. 27 to the Court’s analysis was the fact that the state did not possess 28 11 Key 1 the constitutional authority to compel a private carrier to assume, 2 against its will, the duties and burdens of a common carrier. 3 The Court reasoned that the state could not impose an 4 unconstitutional condition upon the privilege of using the public 5 highways. 6 because Defendants are attempting to convert its retail grocery 7 store into a pharmacy. 8 thing. 9 products; it does not force Plaintiff to engage in a certain type United States District Court For the Northern District of California 10 11 Id. at 599. Id. Plaintiff argues this case is applicable However, Defendants are doing no such The amended ordinance merely regulates the sale of tobacco of business. In sum, although Plaintiff has alleged it has a vested 12 property right in its permits, it cannot overcome the fact that the 13 enactment of the amended ordinance was a reasonable and permissible 14 use of Defendants’ police power. 15 (“If the legislature could have concluded rationally that certain 16 facts supporting its decision were true, courts may not question 17 its judgment.”). 18 action is granted. 19 additional allegations could remedy the deficiencies noted above. 20 III. Equal Protection Claim 21 See Spoklie, 411 F.3d at 1059 Defendants’ motion to dismiss this cause of It is granted without leave to amend because no The Fourteenth Amendment provides that no state may “deny to 22 any person within its jurisdiction the equal protection of the 23 laws.” 24 provision of the California constitution is substantially the same 25 as the equal protection clause of the Fourteenth Amendment to the 26 United States Constitution and, thus, may be analyzed under the 27 same standard. 28 U.S. Const. amend. XIV, § 1. The equal protection Walgreen, 185 Cal. App. 4th at 434 n.7 (citing 12 1 Manduley v. Sup. Ct., 27 Cal. 4th 537, 571 (2002)). 2 In addressing a claim that a statute or regulation violates a 3 plaintiff’s right to equal protection, the court must first 4 determine whether the plaintiff is similarly situated to other 5 entities not affected by the law at issue. 6 Bureau of Prisons, 1 F.3d 924, 2926 (9th Cir. 1993); Cooley v. Sup. 7 Ct., 29 Cal. 4th 226, 253 (2002). 8 must show that the state has adopted a classification that affects 9 two or more similarly situated groups in an unequal manner. Fraley v. United States In other words, the plaintiff United States District Court For the Northern District of California 10 Walgreen, 185 Cal. App. 4th at 434. 11 similarly situated for purposes of the law at issue, an equal 12 protection claim fails. 13 groups are similarly situated, the court then applies the 14 appropriate level of scrutiny. 15 standard of review is applied to claims of discrimination caused by 16 economic and social welfare legislation, such as that attacked 17 here. 18 clause requires only that the classification rationally furthers a 19 legitimate state interest. 20 (1992). 21 is a plausible policy reason for the classification, the 22 legislative facts on which the classification is apparently based 23 rationally may have been considered to be true by the governmental 24 decisionmaker, and the relationship of the classification to its 25 goal is not so attenuated as to render the distinction arbitrary or 26 irrational.” 27 28 Id. Id. If the groups are not If the plaintiff establishes that the Id. at 435. The rational basis To pass rational basis scrutiny, the equal protection Nordlinger v. Hahn, 505 U.S. 1, 10 There is no equal protection violation “so long as there Id. at 11 (citations omitted). Plaintiff’s equal protection claim is based on the assertion 13 that, for the purposes of the amended ordinance, the entities that 2 are similarly situated to it are those businesses that are eligible 3 to obtain a permit to sell tobacco products in San Francisco, 4 including general grocery stores, big box stores and other 5 retailers. 6 situated entities differently because they revoked the permits to 7 sell tobacco products only for those retailers who have a licensed 8 pharmacy somewhere within their premises. 9 the presence of a pharmacy is insufficient to justify treating 10 United States District Court For the Northern District of California 1 different types of stores differently, and that this different 11 treatment of the similarly situated entities has no rational basis. 12 Defendants respond that the stores with and without pharmacies are 13 not similarly situated because, when a store contains a pharmacy, 14 it is participating in the health care delivery system, and 15 participants in the health care delivery system should not be 16 selling deadly tobacco products. 17 that, even if the stores with pharmacies are similarly situated to 18 stores without pharmacies, Defendants’ differential treatment of 19 the two is rationally related to the legitimate purposes of the 20 amended ordinance. 21 Plaintiff argues that Defendants treat these similarly Defendants contend that Alternatively, Defendants argue Plaintiff points out that in Defendants’ brief in the Walgreen 22 case, they made an argument similar to the one Plaintiff makes 23 here. 24 Defendants stated that “the Board rationally concluded that society 25 is far more likely to view drug stores as health-promoting 26 institutions, as compared to big box stores or grocery stores. 27 that is true even if some big box stores and grocery stores happen 28 For instance, in their brief in the Walgreen case, 14 And 1 to contain pharmacies.” 2 (Respondent’s Brief). 3 Walgreen’s are different from grocery stores like Plaintiff’s 4 because drug stores are more likely to draw former smokers with 5 illnesses and people who are more tempted by, and vulnerable to, 6 the harmful effects of tobacco and who should not be exposed to it. 7 Id. at *6. 8 9 Walgreen, 2009 WL 1933273, *1 Defendants also argued that drug stores like Defendants explain that their original decision to focus on drug stores was an attempt to take one step at a time, addressing United States District Court For the Northern District of California 10 the phase of the problem that was most acute to the legislative 11 mind. 12 responded by addressing the entire problem, eliminating the 13 differential treatment among types of stores with pharmacies. 14 There is no inconsistency between Defendants’ statements in the 15 Walgreen case and their stance here that no stores with pharmacies 16 should be selling tobacco products and that stores with and without 17 pharmacies are situated differently. 18 were inconsistent, judicial estoppel does not apply because they 19 lost the Walgreen case, and then conformed to the court’s ruling. 20 Defendants cannot be faulted for doing so. 21 When the Walgreen court rejected this approach, they Even if Defendants’ arguments Furthermore, even if Plaintiff is similarly situated to other 22 retailers without pharmacies, the amended ordinance easily passes 23 rational basis scrutiny. 24 promote the public health by preventing people from becoming 25 addicted to tobacco and by helping those already addicted to stop 26 smoking, is legitimate and even compelling. 27 sale of tobacco products in pharmacies, the amended ordinance 28 The purpose of the amended ordinance, to 15 In prohibiting the 1 accomplishes its purpose by ending any inference that tobacco 2 products may not be harmful because they are sold by a major 3 participant in the health care delivery system. 4 Defendants’ motion to dismiss Plaintiff’s equal protection 5 claim is granted. 6 additional allegations would cure the deficiency noted above. 7 IV. Substantive Due Process Claim Under Fourteenth Amendment Dismissal is without leave to amend because no 8 In this cause of action, Plaintiff alleges that: “The 9 arbitrary and capricious classification of these other parts of United States District Court For the Northern District of California 10 Safeway’s stores as ‘pharmacies’ is a denial of Safeway’s due 11 process rights under the 14th Amendment to the United States 12 Constitution and Article I, § 7 of the California Constitution.” 13 Comp. at ¶ 91. 14 states that this claim is premised on: (1) the differential 15 treatment of Plaintiff’s stores and grocery stores without 16 pharmacies and (2) the substantive due process right to be free 17 from arbitrary, wrongful governmental actions that are not 18 sufficiently linked to any legitimate state interest. 19 In its opposition to Defendants’ motion, Plaintiff Plaintiff’s first argument is a restatement of its equal 20 protection claim, addressed above in section III. 21 second argument is a restatement of its substantive due process 22 claim, addressed above in section II. 23 analyzed these claims and dismissed them without leave to amend. 24 Therefore, Plaintiff’s fourth cause of action also is dismissed 25 without leave to amend. 26 V. Preemption by State Regulation of Pharmacy Profession 27 28 Plaintiff’s In those sections, the Court In its complaint, Plaintiff alleges that the amended ordinance 16 1 is preempted by state laws regulating the pharmacy profession and 2 the sale of tobacco products. 3 opposition, Plaintiff abandons its preemption claim based on the 4 regulation of tobacco products. 5 dismissed. 6 As Defendants note, in its Therefore, this claim is Plaintiff argues that the amended ordinance is preempted by 7 state regulation of the pharmacy profession in three ways: 8 (1) it seeks to regulate pharmacies with another level of 9 administrative control; (2) it is based on the irrational United States District Court For the Northern District of California 10 hypothesis that a state pharmacy license assures the public that 11 tobacco products for sale in any store containing a pharmacy are 12 safe; and (3) it creates an actual or potential hazard or confusion 13 in the mind of the public about the meaning of a pharmacist’s 14 license. 15 municipality may not impose additional or more stringent 16 requirements upon professionals licensed by the state. 17 Verner, Hilby and Dunn v. City of Monte Sereno, 245 Cal. App. 2d 18 29, 33 (1966) (local regulation of civil engineers and land 19 surveyors preempted). 20 Plaintiff cites cases for the proposition that a See e.g., The amended ordinance does not regulate the pharmacy 21 profession; it regulates retail stores by prohibiting those stores 22 from selling tobacco if a pharmacy is located within them. 23 proper because state law allows local governments to enact 24 ordinances regulating the distribution and sale of tobacco products 25 within their boundaries. 26 (nothing in this section regarding the licensing of cigarette and 27 tobacco products preempts or supersedes any local tobacco control 28 This is See Cal. Bus. & Prof. Code § 22971.3 17 1 law other than those related to the collection of state taxes); 2 Cal. Health & Safety Code § 118950(e) (ordinances imposing greater 3 restrictions on sale or distribution of tobacco than this section 4 governing the non-sale distribution of tobacco products shall 5 control, if there are any inconsistencies between the two); Cal. 6 Bus. & Prof. Code §§ 22960(c), 22961(b) and 22962(e) (same 7 regarding local ordinances restricting sale of cigarettes or 8 tobacco products in vending machines, tobacco advertising on 9 billboards and self-service displays of tobacco products). United States District Court For the Northern District of California 10 Therefore, Plaintiff’s preemption claim must be dismissed. 11 is dismissed without leave to amend because amendment would be 12 It futile. 13 14 CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss is 15 granted. 16 Clerk shall enter judgment in favor of Defendants. 17 shall bear its own costs. 18 Dismissal is with prejudice, without leave to amend. The Each party IT IS SO ORDERED. 19 20 Dated: 7/15/2011 CLAUDIA WILKEN United States District Judge 21 22 23 24 25 26 27 28 18
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