2013-0357, Prolerized New England Company v. City of Manchester

We reverse and remand. regulating junk and scrap metal dealers. RSA ch. 322 (2011 & Supp. 2013). court erroneously ruled that RSA chapter 322 preempt s the City’ s or dinance s Prolerized New England Company (Prolerized). The City argues that the trial and granting the motion for summary judgment f iled by the petitioner, order of the Superior Court (Brown, J.) denying the City’s motion to dismiss BASSETT, J. The respondent, the City of Manchester (City), appeals an

and orally), for the respondent. Office of the City Solicitor, of Manchester (Peter R. Chiesa on the brie f

and orally), for the petitioner. Shaheen & Gordon, P.A., of Concord (Donald C. Crandlemire on the brief

No. 2013 - 357 Hillsborough - northern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

presented in the record, and all inferences properly drawn therefrom, in the 164 N.H. 14, 15 ( p. 2 2012) (quotation omitted). “We consider all of the evidence its summary judgment ruling.” EnergyNorth Natural Gas v. City of Concord, “We review de novo the trial court’ s application of the law to the facts in

co nstitutional protections. This appeal followed. consider whether § 114.03 i mposes an unlawful business tax or violates preempted § 114.03. Because of its preemption ruling, the trial court did not dismiss and entered summary judgment for Prolerized, ruling that State law motion for summary judgment. T he trial court denied the City’s motion to equal protection. T he City filed a motion to dismiss, and Prolerized filed a City, and violate s Prolerized’s constitutional right to freedom of contract and business tax because it raises revenues in exce ss of the reasonable costs to the Prolerized also argued that the fifty cent per transaction fee is an unlawful injunctive rel ief, arguing that § 114.03, as amended, is preempted by State law. data. Shortly thereafter, Pro lerized filed a petition seeking declaratory and records, and directed Prolerized to set up a user account and begin uploading LeadsOnline, as the authorized storage site for the electronic transaction P ursuant to § 114.03(C), the City designated a private company,

§ 114.03(D), (E) ( p. 2 2012). a record must be prepared pursuant to § 114.03. Manchester, Ordinances § 114.03(E), which levies a fee of fifty cents per electro nic transacti on for which include a complete and accurate description of the seller’s vehicle, as well as transaction. Id. The City also adopted § 114.03(D), which requires dealers to the scrap metal seller and a color digital photo graph of all items sold in the requires that the electronic transaction records include a digital photo graph of Manchester, Ordinances § 114.03(C) (2012). S ubs ection 114.0 3(C) also storage site . . . no later than 24 hours after completion of the transaction.” designee,” and to forward them “to the Police Department or authorized data transaction records electronically “as directed by the Chief of Police or his the City adopted § 114.03 (C), which requires scrap metal dealers to prepare In 2012, in an effort to combat the growing problem of scrap metal theft,

a ccurate, detailed description of each item purchased. Id. the proven identity of the seller, the date of the transaction, and to maintain an Ordinances § 114.03(B) (1995). Th e ordinance required dealers to document condition to the license to operate within the City. Manchester, N.H., Code of maintain for inspection certain records regarding every transaction as a In 19 95, the City adopted an ordinance requiring scrap metal dealer s to

with in the City. recycling centers in Manchester. There is one other licensed scrap metal yard engaged in the business of scrap metal recycling, and operates two scrap metal The trial court found the following facts to be undisputed. Prolerized is p. 3 3

occ upy the field, the court may look to the whole purpose and scope of the (quotation omitted). “To determine whether the l egislature has intended to to occupy the entire field to the exclusion of local legislation.” Id. at 611 regulations of a subject does not, of itself, establish the intent of the l egislature “[t]he mere fact that a state law contains detailed and co mprehensive whether the terms of the local and State law conflict.” Id. at 612. Nonetheless, entire regulatory field, any local law on the subject is preempted, regardless of intent to supersede local regulation.” Id. “When the State has preempted the comprehensiveness and detail of the State statutory scheme evinces legislative A second form of “[i] mplied preemption may be found when the

statute’ s purpose. Id. conflict with a State statute, it will be preempted when it frustrates the prohibits or vice versa.” Id. Even when a local ordinance does not expressly when a municipal ordinance or regulation permits that which a State statute conflict between State and local regulation.” Id. That is, “[a] conflict exists claimed here. One form of implied preemption exists “when there is an actual Town of Bethlehem, 150 N.H. 606, 611 (2004). Express preemption is not “Preemption may be express or implied.” N. Country Envtl. Servs. v.

scheme and not in isolation.” EnergyNorth Natural Gas, 164 N.H. at 16. “Furthermore, we interpret statutes in the context of the overall statutory Town of Hudson, 160 N.H. p. 3 378, 384 - 85 (2010) (quotation omitted). language to be ambiguous, we will not examine legislative history.” Clare v. according to its plain and ordinary meaning.” Id. “Unless we find statutory the language of the statute itself, and, if possible, construe that language a statute considered as a whole.” Id. “In interpreting a statute, we first look to are the fina l arbiter of the intent of the l egislature as expressed in the words of “Statutory interpretation is a question of law that we review de novo.” Id. “We construction.” EnergyNorth Natural Gas, 164 N.H. at 16 (quotation omitted). “Preemption is essentially a matter of statutory interpretation and

I. General Principles

scheme preempt s the City’ s ordinance. that, be cause § 114.0 p. 3 3 and RSA chapter 322 conflict, the state statutory General Court.” Prolerized counters that the trial court properly concluded the statute nor intrudes upon an area reserved to the exclusive control of the fees, digital record keeping, and digital reporting neither expressly contradicts On appeal, the City argues that its ordinance “relative to transaction

summary judgment.” Id. at 16 (quotation omitted). party is entitled to judgment as a matter of law, then we will affirm the grant of that evidence discloses no genuine issue of material fact and if the moving light most favorable to the non - moving party.” Id. at 15 - 16. “If our review of p. 4 4

Corporations § 632 (explai ning powers of police officers), § 633 (general ly the which would include local law enforcement. See 63 C.J.S. Municipal 322:7 authorizes any officer with juri sdiction to enter the licensed premises, to “keep records sufficient to the licensin g authority,” i.e., the local board. RSA transaction records include certain information, it also requires each licensee grants control to the local board. Although RSA 322:6 - a requires that the regulating junk and scrap metal dealers. However, each of these provisions (2011) evince a legislative intent to establish a uniform statewide system of Prolerized argues that RSA 322:6 - a, RSA 322:7 (2011), and RSA 322:11

2 p. 4 49, 252 (1939). well as to confine it to conduct by proper person s.” Belmont v. Parent, 90 N.H. dealers. Thus, “[t] he design of the statute is to localize the junk - business, as role in governing the management or operations of junk and scrap metal metal dealer.” RSA 322:6 - a (2011). RSA chapter 322 does not give the State a the accumulation, storage, and handling of commodities as a junk or scrap sufficient to the licensing authority” — that is, the same municipal body — “of operations are prohibited. RSA 322:6 (2011). A dealer must keep “records 322:1, and may, by regulation, designate areas of the city where these and scrap metal dealers to conduct business and to store their wares, RSA license.” RSA 322:2 (2011). These boards may designate the location for junk rules, reg ulations and restrictions,” each of which “shall be incorporated in the (2011). L ocal boards are authorized to issue and revoke licenses and “establish discretion,” junk and scrap metal dealers within the municipality. RSA 322:1 governing body of any town, city, or unincorporated place” to license, “in [its] junk and scrap metal dealers. The legislature grant ed authority to “[t]he RSA chapter 322 delegates to l ocal authorities the general regulation of

II. Comprehensiveness of State Statutory Scheme

Id. at 611 - 12 (quotation and brackets omitted).

pu rposes and objectives of the l egislature. as an obstacle to the accomplishment and execution of the full coexistence of municipal regulation; and does the ordinance stand scheme so pervasive or comprehensive that it precludes does the subject matter reflect a need for uniformity; is the state state law; is the state law, expressly or impliedly, to be exclusive; state has preempted the field: does the ordinance conflict with [T]he following questions are pertinent in determining whether the

state’ s purpose or interest.” Id. (quotation and brackets omitted). exclusive state regulation to achi eve the uniformi ty necessary to serve the language.” Id. “T he very nature of the regulated subject matter may demand legislative scheme and need not find such intent solely in the statutory p. 5 5

authorized under RSA chapter 322. Specifically, it argues that: (1) the preempted because they impose stricter record - keeping requirements than are Servs., 1 p. 5 50 N.H. at 611. Prolerized argues that § 114.03(C) and (D) are implicitly preempted if they conflict with state law. See, e.g., N. Country Envtl. field does not end our inquiry because municipal ordinances are nonetheless Our conclusion that the State regulatory scheme does not occupy the

A. Record - Keeping

dealers that occupies the field. comprehensive and detailed State regulatory scheme of junk and scrap metal Therefore, we hold that RSA chapter 322 does not constitute a

authorities. RSA 322:1, :2;:6. specifically delegated the regulation of junk and scrap metal dealers to lo cal the vagaries of local regulation.” Id. In comparison, here, the l egislature has to leave the ultimate public health regulation of indoor restaurant smoking to multiple interests, it was “highly i mprobable that the l egislature . . . intended comprehensiveness of the State Indoor Smoking Act and the balancing of Significantly, in JTR Colebrook, we concluded that, given the

authorization. Id. at 771. Here, in contrast, RSA chapter 322 contains no such limited

sanitation, not with respect to public health. of smoking only with respect to fire protection, safety and meaning and hold that it permits additional municipal regulation sanitation.” We interpret this provision according to its plain other provision of law or rule relative to fire protection, safety and construed to permit smoking where smoking is prohibited by any RSA 1 p. 5 55:77 provides that: “Nothing in this subdivision shall be

JTR Colebrook, 149 N.H. at 768 - 70 (explaining statute), 773. We explained: restaurant for public health reasons with certain strictly limited exceptions. Smoking Act preempted a municipal ordinance that prohibited smoking in any (2003), in support of its claim. In JTR Colebrook, we held that the State Indoor Prolerized cites JTR Colebrook v. Town of Colebrook, 149 N.H. 767

entiti es. demonstrate precisely the opposite: an intent to delegate control to local d emonstrate a legislative intent to preempt mu nicipal control, they where the license is in force. Thus, not only do these provisions fail to license fee and dictates that the fee be paid in to the treasury of the c ity or town municipality) (2011). RSA 322:11 requires a local board to establish the powers conferred on police offic er must be exercised within territor ial limits of p. 6 6

record - keeping requirements of the ordinance conflict with the statute. contain to be “sufficient,” we disagree with Prolerized that the more detailed with the power to determine what additional information the records must and brackets omitted)). Because the statute vests the loc al licensing authority provisions and. . . every word of a statute should be given effect” (quotation (2009) (“the legislature is not presumed to waste words or enact re dundant requirements. See, e.g., In re G uardianship of Williams, 159 N.H. 318, 323 authority,” these statutory requirements cannot be read as maximum allowable light of the statute’s mandate that such records be “sufficient to the licensing photo identifi cation issued by a governmental agency, of the seller.” Read in the date and time of their purchase, and the name and residence, verified by English language and provide account and description of the goods purchased, also provides that the transaction records “shall be legibly written in the di scretion within the local board to determine what is sufficient. RSA 322: p. 6 6 - a licensing authorit y — that is, the local board — finds sufficient, thereby vesting dealer.” This provision requires a licensed dealer to maintain records that the accumulation, storage, and handling of commodities as a junk or scrap metal this chapter shall keep records sufficient to the licensing authority of the RSA 322:6 - a provides that “[e]ach person required to be licensed un der

legislation would effect.” Id. (quotation omitted). a state law that it affords additional regulation complementary to the end state omitted). “[I] t is no objecti on to a municipal ordinance not in contravention of of Tuscaloosa, 73 So. 3d 5, 19 (Ala. Crim. App. 2011) (quotation and emphasis the statute limits the requirement for all cases to its own terms.” Peak v. City requiring more restrictions than the statute requires creates no conflict unless “A n ordinance which merely enlarges upon the provision of a statute by

omitted.) We disagree. explicitly done so like it did in RSA 322:1, 322:2 and 322: p. 6 6.” (Quotation scrap metal dealers concerning recordkeeping and handling, it could have legislature intended to allow municipalities to impose strict[er] requirements on record - keeping requirements. Specifically, Prolerized contends that “[h]ad the preempt ordinances such as § 114.03(C) and (D), which require more detailed First, Prolerized argues that RSA 322:6 - a evince s a legislati ve intent to

a contract with a private third party. We address these arguments in turn. chapter 322 does not authorize a local board to require a licensee to enter into appeal (i.e. preemption),” we limit our revie w to Prolerized ’s argument that RSA extension of this argument raises issues “not directly germane to the issue on City’s designee as contrary to the statute. Because, as Prolerized notes, records. Prolerized also challenges the terms and conditions imposed by the affirmative obligation to transmit records, but only requires dealers to keep do RSA 322: p. 6 6 - a and RSA 322: p. 7 7; and (2) RSA chapter 322 does not impose a n amended ordinance impose s more de tailed record - keeping requirements than 7

A dealer complying with the City’s reco rd - keeping requirements can still reporting requirements of dealers or the method of reporting to its own terms. Ordinances § 114.03. N or does anything in RSA chapter 322 limit the transmission of tran saction data to a third - party designee. Manchester, requir es in terms of more detailed record - keeping requirements, or the In sum, n othing in RSA chapter 322 expressly prohibit s what the C ity

party designee does not conflict with RSA 322: p. 7 7. dealers store the data in a designated manner and transmit the data to a third does not enter the physical premises of the dealers, the City’s requirement t hat for the purpose of record keeping under RSA 322:6 - a. Given that LeadsOnline the premise s. It does not govern the transmission or storage of electronic data premise s to conduct an inspection and examination of commodities stored on thereto.”). However, RSA 322:7 governs only en tries upon the physical stored in or upon said prem ises, and all books and inventories relating conducts business and examine all commodities purchased, obtained, kept, or by a licensee for the purpose of his or her business, ascertain how the licensee RSA 32 2:7 (“Any officer, having jurisdiction may enter upon any premises used is not an “officer[] having jurisdiction” to enter onto a dealer’s premises. See third party conflicts with RSA 322:7 because LeadsOnline, the City’s designee, Prolerized argues that the ordinance requiring the upload of data to a

where this list of forfeited lands was treated of.”). it unnecessary to repeat the identical words in every clause of the statute Legislature having once, in the same act, made this express provision, deemed 15 Ohio 134, 1 46 (1846) (“But it is at least reasonable to suppose, that the repeat the identical authority in RSA 322:6 - a. Cf. Lessee of Hannel v. Smith, board to enact regulations governing record - keeping, it was unnecessa ry to upload data to a third - party designee. Given that RSA 322:2 enables a local 322:2, a local licensing authority may require a junk and scrap metal dealer to local licensing authority can enact; consequently, under the authority of RSA aforesaid.” The plain language does not limit the type of ordinances that a rules, regulations and restrictions relativ e to the business carried on as “[t]he board which grants said license . . . may from time to time establish to adopt rules and regulations governing licensees. RSA 322:2 states that Moreover, RSA 322:2 provides a local licensing authority general power

electronically on a third - party website. See RSA 322:6 - a. keep s records, including the discretion to require dealers to keep records discretion in the local board to determine how a junk and scrap metal dealer mandate that dealers “keep records suffic ient to the licensing authority” vests junk and scrap metal dealers to kee p records. We disagree. T he statute’s records to a third - party designee, but rather, only enables the City to require to impose upon dealers th e affirmative obligation to transmit transaction Next, Prolerized argues that RSA chapter 322 does not authorize the City p. 8 8

fee will ultimately be. As different dealers have different transactions a particular dealer processes, the higher its license the City a fee of [fifty cents] per transaction. The more [s ubsection 114.03 (E)] of the ordinance requires dealers to pay to

and is therefore preempted, arguing that: Prolerized contends that the transaction fee conflicts with RSA 322:11

that RSA 322:11 is ambiguous. person in the same city or town for a similar lice nse.” Neither party argues to pay a larger fee for said license than that required to be paid by any other Ordinances § 114.03(E). RSA 322:11 states that “no person shall be required second Tuesday of eve ry month, for the preceding month.” Manchester, § 114.03 shall pay to the city a fee of [fifty cents] per transaction due in full the purchases an item in which a transaction record must be prepared pursuant to Subsection 114.03(E) states: “Every junk dealer and/or scrap yard that

B. Transaction Fee

incompatible with S tate law. that the C ity’s record - keeping ordinances were preempted because they were inapposite. Acc ordingly, we conclude that the trial court erred when it ruled records “suffic ient to the licensing authority.” RSA 322:2; :6 - a. Thus, Tosi is municipalities to adopt rules and regulations, and requires dealers to keep §§ 21600 - 21610 (2007 & Supp. 2013). In contrast, RSA chapter 322 allows in great detail the information that dealers must report. Cal. Bus. & Prof. Code does not authorize municipalities to adopt rules and regulations, and outlines the local level.” Id. at 7 33 (quotation and brackets omitted). The California law and Business and Professions Codes, leaving no room for further regulation at has comprehensively addressed through v arious provisions of this state’ s Penal of scrap metal dealers “are matters of statewide concern that our Legislature found that these ordinances were preempted because the commercial activities metal dealers engage in more detailed record - keeping. Id. at 733. The court see id. at 732, that required, among other restrictions, that junk and scrap Court of Appeals concluded that s tate law preempted municipal ordinances, requirements than those set forth in RSA chapt er 322. In Tosi, the California 20 0 p. 8 8), in support of its argument that municipalities cannot enact stricter Prolerized cites Tosi v. County of Fresno, 74 Cal. Rptr. 3d 727 (Ct. App.

required in the statute.”). expand upon the provisions of a state statute by requiring more than what is Bowers, p. 9 965 S.W.2d 203, 209 (Mo. Ct. App. 199 p. 8 8) (“A municipal ordinance may statute and ordinances can operate concurrently. See State ex rel. Whiteco v. comply with the l ess - s pecific requirements of RSA chapter 322, and both the 9

110.20, entitled “Business License Fees,” requires tha t a person seeking a transaction fee, and that § 110.20 requires payment of a license fee. Section 535 (1 p. 9 934), we observe that § 114.03(E) refers to the fifty - cent fee as a “does not settle the question of its character,” Tirrell v. Johnston, 86 N.H. 530, Although it is true that the City’s description of the fee in its ordinance

or similar form of permission required by law.”). whole or part of any agency permit, certificate, approval, registration, charter director to sell plant stock.”); RSA 541 - A:1, VIII (2007) (“‘License’ means the RSA 433:21, XI (Supp. 2013) (“‘License’ means an authorization from the an insurance producer for the lines of authority specified in the document.”); means a document issued by the commissioner authorizing a person to act as under the provisions of this chapter.”); RSA 402 - J:2, VI (2006) (“‘License’ (“‘License’ means the authority to do business issued by the co mmissioner subdivision, and the rules of the department.”); R SA 3 p. 9 99 - A:1, VI (2006) to operate in accordance with the term and conditions of the license, this agency, child care institution or c hild - placing agency, authorizing the licensee (“‘License ’ means a complete license issued to an operator of a child care to provide one or more types of child day care.”); RSA 170 - E:25, XI (2014) E:2, IX (2014) (“‘ License’ means an authorization granted by the commissioner license in other parts of the Revised Statute s Annotated. See, e.g., RSA 170 dictionary definition of license is consistent with the legislature’s definition of New International Dictionary 1304 (unabridged ed. 2002). Indeed, the transaction which but for such license would be unlawful.” Webs ter’s Third in some business or occupation, to do some act, or to engage in some permission granted in accordance with law by a competent authority to engage 142 (2002). The term licen se is commonly understood to mean “a right or dictionary definition for guidance.” Magoon v. Thoroughgood, 148 N.H. 139, “Therefore, we ascribe to the term its p lain and ordinary meaning, utilizing the The term “license” or “license fee” is not defined in RSA chapter 322.

license fee. Therefore, the issue before us is whether the fifty - cent transaction fee is a and scrap metal dealers — not to any other fee paid to the local board. By its ve ry terms, RSA 322:11 applies only to license fees paid by junk

therefore, that RSA 322:11 does not preempt the fee. We agree with the City. it argues that it is permissible to have transaction fees based on volume, and, square footage, as well as the same fifty - cent fee per transaction. Furthermore, metal dealers are charged the same annual license fee, which is bas ed on The City responds that the ordinance is lawful because all junk and scrap

322:11]. fees upon different scrap metal dealers in violation of [RSA transaction volumes, the ordinance necessarily imposes different p. 10 10

DALIANIS, C.J.