                                  IN THE
               ARIZONA COURT OF APPEALS
                               DIVISION ONE


                      STATE OF ARIZONA, Appellee,

                                     v.

                   DAVID HAROLD COLES, Appellant.

                           No. 1 CA-CR 13-0250
                            FILED 5-6-2014


           Appeal from the Superior Court in Maricopa County
                           L2012-000404-001
               The Honorable Crane McClennen, Judge

                               REVERSED


                                COUNSEL

Scottsdale City Prosecutor’s Office, Scottsdale
By Kenneth M. Flint
Counsel for Appellee

Debus Kazan & Westerhausen, Ltd., Phoenix
By Lawrence I. Kazan and Tracey Westerhausen
Counsel for Appellant
                            STATE v. COLES
                           Opinion of the Court



                                OPINION

Judge Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.


C A T T A N I, Judge:

¶1            David Harold Coles appeals the superior court’s ruling
rejecting his argument that Scottsdale’s public intoxication ordinance is
preempted by a state statute that prohibits local ordinances penalizing or
imposing sanctions for intoxication. For reasons that follow, we conclude
that the state statute preempts the local ordinance, and we reverse the
superior court’s ruling.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On December 21, 2011, the City of Scottsdale cited Coles
under Scottsdale City Code (“S.C.C.”) section 19-8(a) for being
“incapacitated by alcohol in public.” No additional specifics of the
charged offense were listed. Coles sought dismissal of the charge on the
basis that the city ordinance conflicts with Arizona Revised Statutes
(“A.R.S.”) section 36-2031, which prohibits local laws criminalizing or
having as an element of an offense “being a common drunkard or being
found in an intoxicated condition.” 1 After briefing and oral argument, the
municipal court granted Coles’s motion and dismissed the public
intoxication charge.

¶3           The City appealed to the Maricopa County Superior Court,
which reversed the municipal court decision. The superior court held
that, although A.R.S. § 36-2031 preempts local laws that include being in
“an intoxicated condition” as an element of an offense, it does not
preempt local laws in which being “under the influence of alcohol” is an
element of an offense.

¶4           Coles timely filed this appeal. We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-


1     Absent material revisions after the relevant date, we cite a statute’s
current version.



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                            Opinion of the Court

120.21(A)(1), -2101(A)(1), and 22-375(A). Our jurisdiction is limited to
determining the validity of the municipal ordinance. A.R.S. § 22-375(A).

                               DISCUSSION

¶5          Coles argues that A.R.S. § 36-2031 preempts S.C.C. § 19-8(a).
We agree because the two provisions conflict with each other in an area in
which the Arizona Legislature has acted with the intent to preempt local
regulation.

¶6             When an issue affects both state and local interests,
municipalities may address the issue by enacting and enforcing relevant
laws unless specifically preempted by state law. Coconino County v. Antco,
Inc., 214 Ariz. 82, 90, ¶ 24, 148 P.3d 1155, 1163 (App. 2006). A state statute
preempts a local ordinance when (1) the municipality creates a law in
conflict with the state law, (2) the state law is of statewide concern, and (3)
the state legislature intended to appropriate the field through a clear
preemption policy. City of Prescott v. Town of Chino Valley, 163 Ariz. 608,
616, 790 P.2d 263, 271 (App. 1989), vacated in part on other grounds, 166 Ariz.
480, 803 P.2d 891 (1990). Whether a state law preempts a city ordinance is
subject to de novo review as a question of law. City of Tucson v. Rineer, 193
Ariz. 160, 162, ¶ 2, 971 P.2d 207, 209 (App. 1998).

¶7            In 1972, the Arizona Legislature amended A.R.S. § 13-379 to
decriminalize being under the influence of alcohol in a public place. The
amendment decriminalized the general condition of being intoxicated
unless engaged in specified activities, i.e., driving or operating vehicles,
aircraft, boats, machinery, or other equipment. 2          The Legislature
simultaneously established treatment programs and services for
intoxicated persons or persons incapacitated by alcohol who voluntarily
seek treatment or who are transported to an approved facility by a peace
officer or any other person. See 1972 Ariz. Sess. Laws ch. 162, § 3 (codified
at A.R.S. §§ 36-2021 to -2031).



2      Before the 1972 amendment, § 13-379 criminalized being “in a
public place under the influence of alcohol, toxic vapors, poisons, narcotics
or other drug not therapeutically administered, where it reasonably
appears that he may endanger himself or other persons or property.”
A.R.S. § 13-379 (1971) (emphasis added). The amendment eliminated the
word “alcohol.” 1972 Ariz. Sess. Laws ch. 162, § 1. Section 13-379 has
since been repealed.



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                             STATE v. COLES
                            Opinion of the Court

¶8           The Legislature contemporaneously enacted A.R.S. § 36-
2031, which provides:

       A. No county, municipality or other political subdivision
       may adopt or enforce any local law, ordinance, resolution or
       rule having the force of law that includes being a common
       drunkard or being found in an intoxicated condition as one
       of the elements of the offense giving rise to criminal or civil
       penalty or sanctions, but nothing in this article shall affect
       any laws, ordinances, resolutions or rules against drunken
       driving, driving under the influence of alcohol or other
       similar offenses involving the operation of vehicles, aircraft,
       boats, machinery or other equipment, or regarding the sale,
       purchase, dispensing, possessing or using of alcoholic
       beverages at stated times and places or by particular classes
       of persons.

       B. No county, municipality or other political subdivision
       may interpret or apply any law of general application to
       circumvent the provision of subsection A.

¶9            The City of Scottsdale has criminalized “Alcohol, drug, etc.,
incapacitation” under S.C.C. § 19-8(a):

       No person shall be in a public place under the influence of
       alcohol, toxic vapors, poisons, narcotics, or other drug not
       therapeutically administered, when it reasonably appears
       that he may endanger himself or other persons or property.

¶10            To determine whether A.R.S. § 36-2031 preempts S.C.C. § 19-
8(a), we first address whether the provisions are in conflict. The superior
court concluded that these two provisions can be harmonized because the
state statute precludes local ordinances that include being “in an
intoxicated condition” as an element of an offense, whereas the municipal
ordinance precludes being “under the influence of alcohol.”

¶11           Although we agree that the phrase “in an intoxicated
condition” is different than “under the influence,” that difference is not
dispositive. A person who is “intoxicated” is in fact “under the influence”
to a particular, greater degree. See Hasten v. State, 35 Ariz. 427, 430–31, 280
P. 670, 671 (1929) (noting that a 1927 statutory change from penalizing
driving by someone who “becomes or is intoxicated” to penalizing
driving by someone who is “under the influence of intoxicating liquor”
evidenced the Legislature’s decision that “many persons who ha[ve] not


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                            Opinion of the Court

yet arrived at [the point of actual intoxication]” should nevertheless be
prohibited from driving); see also State v. Noble, 250 P. 833, 834 (1926)
(concluding that the “under the influence of intoxicating liquor” standard
under Oregon law was a lesser standard than “drunk or intoxicated” and
did not require a showing that the defendant was drunk or intoxicated,
but rather “under the influence of intoxicating liquor to some perceptible
degree”), cited with approval in Hasten, 35 Ariz. at 430, 280 P. at 671.
Because the difference between being “in an intoxicated condition” and
being “under the influence” is, at most, a matter of degree, and because
the group of persons who are “under the influence” subsumes the group
of persons who are “in an intoxicated condition,” the Scottsdale ordinance
criminalizing being “under the influence” conflicts with § 36-2031.

¶12            Having concluded that S.C.C. § 19-8(a) conflicts with A.R.S.
§ 36-2031, we next address whether § 36-2031 is of statewide concern and
evidences a legislative intent to “appropriate the field.” The City
acknowledges that § 36-2031(A) resulted from changing views nationwide
relating to how alcoholism should be treated. In 1962, the United States
Supreme Court limited the right of the government to criminalize “status”
crimes, declaring unconstitutional a California law making it a
misdemeanor to be addicted to the use of narcotics. Robinson v. California,
370 U.S. 660, 665–67 (1962). The Court further noted that it was unlikely
that any attempt to criminalize having a disease or mental illness, which
by extension includes having an addiction, would survive constitutional
scrutiny. Id. at 666–67.

¶13            In 1968, the United States Supreme Court noted a “[d]ebate
[] within the medical profession as to whether ‘alcoholism’ is a separate
‘disease’ in any meaningful biochemical, physiological or psychological
sense, or whether it represents one peculiar manifestation in some
individuals of underlying psychiatric disorders.” Powell v. Texas, 392 U.S.
514, 522 (1968). Although the Court upheld the defendant’s conviction for
being found intoxicated in public on a particular occasion, id. at 532, in a
concurring opinion, Justices Black and Harlan reviewed the history of
public drunkenness as a crime, noting that drunkenness was proscribed as
early as 1606 and concluding that it was a question to be resolved at the
local, rather than national, level. Id. at 538, 547–48 (Black, J., concurring).

¶14           In 1971, the National Conference of Commissioners on
Uniform State Laws approved the Uniform Alcoholism and Intoxication
Treatment Act (“UAITA”), which proposed treatment, rather than
incarceration, for alcoholism and included a provision (similar to A.R.S. §
36-2031(A)) that would preclude local laws relating to drinking:


                                      5
                            STATE v. COLES
                           Opinion of the Court

      No county, municipality, or other political subdivision may
      adopt or enforce a local law, ordinance, resolution, or rule
      having the force of law that includes drinking, being a
      common drunkard, or being found in an intoxicated
      condition as one of the elements of the offense giving rise to
      a criminal or civil penalty or sanction.

UAITA § 19(a). The relevant Arizona statutes, see, e.g., A.R.S. §§ 36-2023,
36-2031, appear to have been modeled closely after the UAITA, with the
only appreciable difference between § 32-2031 and UAITA § 19(a) being
the elimination of the word “drinking” from the state statute. 3

¶15          Although the City urges that the absence of the word
“drinking” in the state statute is important, the focus of both the model
statute and the state statute is on decriminalizing alcohol-related
conditions. Thus, we conclude that the state statute prohibits local
ordinances regulating being intoxicated, as well as “drinking.”

¶16            We also reject the City’s contention that S.C.C. § 19-8(a) can
be harmonized with the state statute on the basis that § 36-2031(A)
specifies an exception for ordinances “regarding the sale, purchase,
dispensing, possessing or using of alcoholic beverages at stated times and
places or by particular classes of persons.” Although the City urges that
the local ordinance can be construed as a law regulating a “particular
class[] of persons,” i.e., those who are endangering themselves, others, or
property, interpreting the statute in this manner would circumvent § 36-
2031(B) because almost anyone who is under the influence of alcohol in a
public place arguably presents a danger to himself or others. Moreover,
such a reading ignores the fact that, when enacting § 36-2031, the
Legislature contemporaneously amended § 13-379 to eliminate criminal
liability for public drunkenness even where “it reasonably appears that
[the person] may endanger himself or other persons or property.” Thus,


3       The title to the 1972 legislation amending A.R.S. § 13-379 and
adding § 36-2031 is “AN ACT RELATING TO PUBLIC HEALTH;
PROVIDING FOR EVALUATION AND TREATMENT OF PERSONS
IMPAIRED BY ALCOHOLISM; ABOLISHING PUBLIC DRUNKENNESS
AS A CRIME[.]” 1972 Ariz. Sess. Laws ch. 162. The title of an act, like
titles and section headings of statutes, may provide guidance regarding
legislative intent. See Florez v. Sargeant, 185 Ariz. 521, 524, 917 P.2d 250,
253 (1996).




                                     6
                            STATE v. COLES
                           Opinion of the Court

in amending § 13-379, the Legislature specifically contemplated the
particular class of persons who are “under the influence of alcohol” and
who may endanger themselves, others, or property, and nevertheless
determined that such persons are not subject to the criminal sanctions that
remain in place for persons under the influence of other substances.

¶17           We conclude that the adoption of §§ 36-2021 to -2031
signaled the Legislature’s determination that alcoholism should be treated
as a disease and not criminalized unless a person under the influence of
alcohol engages in specified activities such as driving or operating other
types of vehicles or equipment. By adopting § 36-2031, and thus
prohibiting counties, municipalities, and other political subdivisions from
using intoxication as an element of an offense, except as specified, or from
“apply[ing] any law of general application to circumvent [that
prohibition],” the Legislature addressed an issue of statewide importance,
and expressly stated its intent to “appropriate the field.”

                             CONCLUSION

¶18           For the foregoing reasons, we reverse the superior court’s
ruling and reinstate the decision of the municipal court.




                                :MJT




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