People v. Johnson

61 Cal.App.3d 1 (1976) 132 Cal. Rptr. 645 THE PEOPLE, Plaintiff and Appellant,

v.

THURMAN A. JOHNSON, Defendant and Respondent.

Docket No. 14078. Court of Appeals of California, Appellate Department, Superior Court, Los Angeles.

July 15, 1976. [3] COUNSEL

Burt Pines, City Attorney, Ward G. McConnell and Joseph McCarthy, Deputy City Attorneys, for Plaintiff and Appellant.

Ritner & Wong and William B. Ritner for Defendant and Respondent.

OPINION

MARSHALL, P.J.

Defendants[1] allegedly violated Los Angeles Municipal Code section 28.16, subdivision (a),[2] by not clearly and visibly posting the price of gasoline. Defendant's demurrer was sustained and the complaint dismissed on the ground that state law and regulations preempted the ordinance.

(1) The court in In re Hubbard (1964) 62 Cal.2d 119, 128 [41 Cal. Rptr. 393, 396 P.2d 809], held that chartered cities have full power to legislate in regard to municipal affairs unless: "1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the [4] subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality."

(2) As we cannot discover in Business and Professions Code, section 20880[3] et seq., an intent of the Legislature to occupy the field to the exclusion of municipal regulation, we hold that the city is not preempted from passage of Municipal Code section 28.16 subdivision (a). (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 61-62 [81 Cal. Rptr. 465, 460 P.2d 137].) As the ordinance concerns itself with the elimination of local traffic hazards, it certainly is not exclusively a matter of state concern nor one that will not tolerate local action. The ordinance does not have an adverse effect on transient citizens which outweighs the possible benefit to the municipality. Furthermore, as neither visibility from a distance nor local traffic congestion are subjects with which the statute deals, the city may legislate thereon. (See In re Hubbard (1964) supra, 62 Cal.2d at p. 126.)