                              @ffice      of the !Zlttornep General
                                            State of ‘(ICexas
DAN MORALES
 ATTORNEY
       GENERAL                                 March 51997

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


   Dear RepresentativeHill:

           You have requested our opinion regard& the authority of a home-rule municipality to adopt
   an ordimnce that e&her prohii the sale of.tobacco products through vending machines or restricts
   the placement of such machines to areas in which persons younger than eighteen years of age are
   barred.

           Cbpters 154 and 155 ofthe. Tax Code?evy a tax on the sale of cigarettes and other tobacco
  m         and establish a system for the adrrrrmstration, collection and enforcement of the tax. The
  tax is enforced by a requhement that all distriiutors, wholesalers, bonded agents, and retailers of
  tobaccoproductshaveastatepennittoengageinbusiness.           Chapters 154and 155provide: “Permits
  for engaging in business as a distributor, wholes&r, bonded agent, or retailer shell be govwned
  ex&siw$bylhehepPunrisionsofticode.”          Tax Code $5 154.101(h), 155041(h) (emphasis added).
  In Attorney General Opiion DM-182, we held that a home-rule city ordinance that established a
  licensing system for the retail sale of tobacco products was preempted by the quoted provisions of
  the Tax Code. Attorney General Opiion DM-182 (1992). You express concern about the effect
  of the Tax Code pun&ions and Attorney General Opinion DM-182 on any attempt by a municipality
  to ban or restrict the location of tobacco product vending machines.

           In DaurrsMerchant’s andC                    ‘sAssociation v. Ci@ of Dabs, 852 S.W.2d 489,
  491 (Tex 1993), the supreme court considered a challenge to a city xoning ordinance that prohibited
  the sale of alcoholic beverages within 300 feet of a residential area. The court held that the ordinance
  was preempted by a portion of the Alcoholic Beverage Code that provides:

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




                (b) N ik the in&Mof he Iegisknitre thal ihis code shall exclusive& govern
            ihe regubon of alcoholic beverages in ihis staie, and that except as
            permitted by this code, a governmental entity may not discriminate against a
            business holding a license or permit under this code.

Alto. Bev. Code $ 109.57. In concluding that the ordinance in question was incompatible with the
statutory provision, however, the supreme court observed that a claim of preemption had to
overcome significant obstacles:

                [t]he mar. fici that the legislature has enacted a law addressing a subject
            does not mean the complete subject matter is completely preempted . [A]
            general law and a city ordiice       will not be held repugmmt to each other if
            any other reasonable construction leaving both in effect can be reached. . . .
            Thus, if the Legislature chooses to preempt a subject matter usually
            encompassed by the broad powers of a home-rule city, it must do so with
            unmistakable clarity.

852 S.W.2d at 491 (citations omitted).

        In the DuZ.%r.r
                      Merchan! ‘s case, the statute provided that the Alcoholic Beverage Code was
to “exclusively govern the regulalian of alcoholic beverages.” Id. Furthermore, an ordinance could
not “impose stricter standards” on a business selling alcoholic beverages than one not doing so. It
was dear thst an ordintince restricting the sale of alcoholic beverages based on location represented
an attempt to “regulate,” and that such an ordiice          sought to “impose stricter standards” on
businesses selling alcoholic beverages

         By contrast, the Tax Code does not say that sll “regulation” of tobacco products “shall be
governed exclusively by the provisions of this code,” but merely that “permits for engaging in
busiwss” are so governed. In our opinion, an otxlhnce that restricts the location of tobacco vending
machines, even to the point of prohibition, does not implicate the “permitting” procedure established
by state law. With regard to the sale of tobacco products, the legislature has not preempted the
subject matter with %m&akable clarity.” It has spoken only to the petmitting or licensing process,
as in Attorney General opinion DM-182, rather than to the entire spectrum of possible “regulation.”
We conclude that a home-rule city is authorized to adopt an ordinance restricting the location of
tobacco product vending machines, or banning them entirely, and in doing so, does not run afoul of
the provisions of chapters 154 and 155 of the Tax Code.
The Honorable Fred Hill - Page 3           (DM-433)




                                    SUMMARY

             A home-rule municipality is empowered to adopt an ordinance that either
         prohii   the sale of tobacco products through vending machines or restricts
         the placement of such machines to areas in which persons younger than
         eighteen years of age are barred.




                                          DAN MORALES
                                          Attorney General of Texas
