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Kennedy v. City of San Diego

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Apr 23, 2018
No. D072337 (Cal. Ct. App. Apr. 23, 2018)

Opinion

D072337

04-23-2018

DAVID KENNEDY, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent.

Law Offices of Bernard F. King III and Bernard F. King III for Plaintiff and Appellant. Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Rayna A. Stephan, Chief Deputy City Attorney, for Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00029460-CU-WM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Randa Trapp, Judge. Affirmed. Law Offices of Bernard F. King III and Bernard F. King III for Plaintiff and Appellant. Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Rayna A. Stephan, Chief Deputy City Attorney, for Defendant and Respondent.

David Kennedy, a dentist, filed an action against the City of San Diego (City), alleging its water-fluoridation program violates a local ordinance prohibiting officials from adding fluoride to the City's water system. (San Diego Mun. Code, § 67.0101.) The City demurred, arguing this ordinance is preempted by state fluoridation laws. (Health & Saf. Code, § 116409 et seq.)

Municipal Code references are to the San Diego Municipal Code.

Unspecified statutory references are to the Health and Safety Code.

The court sustained the demurer without leave to amend. The court found Municipal Code section 67.0101 is preempted by state law, relying on an express preemption provision (§ 116409, subd. (b)) and on City of Watsonville v. State Dept. of Health Services (2005) 133 Cal.App.4th 875 (Watsonville), which found a similar municipal ordinance was preempted by the state statutory scheme.

On appeal, Kennedy contends the statutory preemption provision is inapplicable, and Watsonville was wrongly decided and did not address all of the relevant issues. We reject these contentions and affirm.

FACTUAL AND PROCEDURAL SUMMARY

Background

In 1954, City voters passed a proposition prohibiting water fluoridation. That proposition remains codified as Municipal Code section 67.0101, and provides:

"It is . . . unlawful for any person, including the City of San Diego and for its elective or appointed officers or employees, to use in or add to the water supply of this City any Fluorine, Sodium Fluoride, Sodium Silicon Fluoride or any Fluoride compound, or to treat such water supply with aforesaid chemicals before delivery to the consumers thereof."
During the next 40 years, there were several unsuccessful efforts to repeal this prohibition.

In 1995, the California Legislature enacted a statutory and regulatory scheme mandating fluoridation for public water systems having at least 10,000 service connections, conditioned on local funding availability. (Stats. 1995, ch. 660 (Assem. Bill No. 733).) The express purpose of the funding condition was to ensure the fluoridation requirement would not be characterized as an unfunded mandate requiring the use of state funds. (Stats. 1995, ch. 660 (Assem. Bill No. 733), § 4.)

In 2004, the Legislature amended the state law. (Stats. 2004, ch. 727 (Sen. Bill No. 96.) As amended and in its current form, the state fluoridation law continues to mandate fluoridation for public water systems having at least 10,000 service connections (which includes San Diego). (§ 116410, subd. (a).) The law also continues to provide an exception to this mandatory requirement if sufficient funding is not available from an outside source. (§ 116415, subd. (a)(1)(A).) Outside sources include federal block grants or private foundation donations, but do not include ratepayers or taxpayers. (§ 116415, subds. (a)(1)(A), (e).)

In enacting the 2004 amendments, the Legislature added a provision to make clear that municipal ordinances prohibiting or limiting fluoridation were preempted by state law. (Stats. 2004, ch. 727, § 2.) Specifically, the Legislature added section 116409, which states:

"(a) Promotion of the public health of Californians of all ages by protection and maintenance of dental health through the fluoridation of drinking water is a paramount issue of statewide concern.

"(b) It is the intent of the Legislature in enacting this article to preempt local government regulations, ordinances, and initiatives that prohibit or restrict the fluoridation of drinking water by public water systems with 10,000 or more service connections, without regard to whether the public water system might otherwise be exempt from Section 116410 or the requirements of this section, pursuant to Section 116415.

"(c) It is further the intent of the Legislature in establishing this article to decrease the burden the Medi-Cal and the Denti-Cal programs place upon the state's limited funds."
The legislative history materials reflect that the Legislature enacted section 116409, subdivision (b)'s broad preemption provision in response to the San Diego City Attorney's advice to the city council in 2003 that Municipal Code section 67.0101 prohibits water fluoridation in San Diego. (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 96 (2003-2004 Reg. Sess.) Aug. 30, 2004, pp. 3-4.) The 2004 amendments were intended to strengthen compliance with the fluoridation law and "close[] . . . loopholes that localities have used to avoid fluoridating their water." (Id. at p. 4.)

We grant Kennedy's unopposed motion to take judicial notice of legislative history materials underlying the 2004 legislation.

The next year, in 2005, the Watsonville court addressed a challenge to the validity of a local proposition (Measure S) that expressly prohibited fluoridation in Watsonville's water supply. (Watsonville, supra, 133 Cal.App.4th at p. 881.) After extensively analyzing the issue, the court held Measure S was preempted by the state water fluoridation law. (Id. at p. 890; see § 116409, subd. (b).)

Writ of Mandate Petition

In August 2016, Kennedy petitioned for a writ of mandate seeking to compel City officials to stop public water fluoridation. In the petition, Kennedy discussed facts pertaining to San Diego's fluoridation history, including Municipal Code section 67.0101's enactment in 1954 and the voters' rejection of various attempts to repeal the ordinance. Kennedy alleged that in about 2011, San Diego began adding fluoride to its water after receiving funds to do so from a public interest organization (referred to in Kennedy's complaint as "First 5"). Kennedy alleged that although this outside funding ended two years later, the City has continued "to add fluoride to the water supply and is now passing that cost on to ratepayers."

Kennedy asserted two causes of action. First, he alleged the City has a ministerial duty to abide by Municipal Code section 67.0101. He claimed Municipal Code section 67.0101 is not preempted by state law and Watsonville was incorrectly decided. Second, he alleged the City's conduct in spending ratepayer funds to fluoridate the water violated the City charter because this decision was made by "city officials," rather than the city council. Kennedy alleged this was an unconstitutional delegation of legislative power.

Demurrer

The City demurred only to the first cause of action, arguing state fluoridation law preempts Municipal Code section 67.0101. It maintained that the City's fluoridation decision falls within the state fluoridation law's mandate because the City has at least 10,000 service connections, and the law expressly declares the Legislature's intent to "preempt local government regulations, ordinances, and initiatives that prohibit or restrict the fluoridation of drinking water" by public water systems with at least 10,000 service connections. The City also argued that Watsonville held a local law prohibiting fluoridation is preempted, and thus the Watsonville decision is directly on point and should be followed by the court.

After a hearing, the court sustained the demurrer without leave to amend on the first cause of action. The court stated: Kennedy "seeks to enforce [Municipal Code section] 67.0101, which prohibits the introduction of fluoride into the City's water system. However, [this municipal code section] is preempted by [section] 116409 et seq. and thus is void and without effect [citing Watsonville, supra, 133 Cal.App.4th 875]."

Kennedy then dismissed the remaining cause of action, and the court entered an order dismissing the entire action "with prejudice."

We reject the City's assertion that this order is not appealable. The signed order dismissing the action served as a final appealable judgment. (Code Civ. Proc., § 581d.)

DISCUSSION

Kennedy contends the court erred in sustaining the demurrer on his first cause of action.

I. Review Standard

In evaluating an order sustaining a demurrer without leave to amend, "the 'reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.' [Citation.] It 'is error for a trial court to sustain a demurrer [if] the plaintiff has stated a cause of action under any possible legal theory.' [Citation.] We apply a de novo standard in reviewing the court's ruling sustaining the demurrer." (Soto v. Motel 6 Operating, L.P. (2016) 4 Cal.App.5th 385, 389.)

II. Legal Principles

San Diego is a charter city. The California Constitution authorizes charter cities to "govern themselves, free of state legislative intrusion, as to those matters deemed municipal affairs." (State Building & Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th 547, 555 (State Building).) But in certain circumstances, a state law can take precedence over a city ordinance. (California Fed. Savings & Loan Assn. v City of Los Angeles (1991) 54 Cal.3d 1, 17 (California Fed.).)

The California Supreme Court has held that when a court is presented with the issue whether a state law is paramount over a charter city's ordinance, the issue should be analyzed under a four-part test. (State Building, supra, 54 Cal.4th at p. 556; see California Fed., supra, 54 Cal.3d at pp. 16-18; Johnson v. Bradley (1992) 4 Cal.4th 389, 404.) "First, a court must determine whether the city ordinance at issue regulates an activity that can be characterized as a 'municipal affair.' [Citation.] Second, the court 'must satisfy itself that the case presents an actual conflict between [local and state law].' [Citation.] Third, the court must decide whether the state law addresses a matter of 'statewide concern.' [Citation.] [Fourth], the court must determine whether the law is 'reasonably related to . . . resolution' of that concern [citation] and 'narrowly tailored' to avoid unnecessary interference in local governance [citation]." (State Building, at p. 556.)

Applying this test, the Watsonville court held a voter-adopted ordinance (Measure S) that expressly prohibited fluoridation in the local water supply was preempted by state fluoridation law. (Watsonville, supra, 133 Cal.App.4th at pp. 883-889.)

On the first prong, the Watsonville court assumed that water fluoridation is a proper matter of municipal concern. (See Watsonville, supra, 133 Cal.App.4th at p. 883.)

On the second prong, the Watsonville court found the existence of an actual conflict, stating: "There is a conflict between a state law and a local ordinance if the ordinance duplicates or contradicts the state law, or if the ordinance enters an area fully occupied by general law, either expressly or by implication. [Citation.] There is an actual conflict in this case because state law fully occupies the area of fluoridation of public water systems having more than 10,000 hookups. The Legislature's express intent to fully occupy the area appears in section 116409[, subdivision (b).]" (Watsonville, supra, 133 Cal.App.4th at pp. 883-884.) The Watsonville court noted that the legislative history materials show the Legislature specifically enacted the state law "in response to local initiatives . . . that were designed to curtail fluoridation." (Id. at p. 884.)

On the third prong, the Watsonville court observed that the Legislature made express findings that fluoridation is a matter of statewide concern: " 'Promotion of the public health of Californians of all ages by protection and maintenance of dental health through the fluoridation of drinking water is a paramount issue of statewide concern.' (§ 116409, subd. (a).)" (Watsonville, supra, 133 Cal.App.4th at p. 886; see § 16410, subd. (a).) The court also extensively discussed additional legislative and judicial authority supporting the conclusion that the state fluoridation requirement reflects a statewide concern because the requirement promotes public health, serves the need for uniform water quality standards, and reduces state health care costs. (Watsonville, at pp. 886-888.)

On the fourth prong, the Watsonville court stated that the appellant had conceded the state law is reasonably related to the statewide concerns. (Watsonville, supra, 133 Cal.App.4th at p. 888.) The court also rejected the appellant's argument that the law was not narrowly tailored because there are less intrusive ways of improving dental health for children, explaining "the Legislature has clarified that the state's interest is in the dental health of all Californians, not just children. (§ 116410, subd. (a).)." (Id. at p. 889.) The court also rejected the argument that the statutory provision conditioning mandatory fluoridation on outside funding improperly allowed third parties to control a city's local affairs. (Ibid.) The court reasoned that water quality standards are statewide, and although third-party funding could facilitate a fluoridation project, the cost and quality issues remain in the control of the appropriate local and state agencies. (Ibid.) The court found the appellant's additional arguments to be "speculative and unrealistic." (Ibid.)

Thus, although the Watsonville court found the City had the authority to enact a water fluoridation prohibition, the court determined this municipal ordinance was expressly preempted by the state fluoridation law. (Watsonville, supra, 133 Cal.App.4th at pp. 883-890.)

III. Analysis

As a sister Court of Appeal, we are not bound by Watsonville. (The MEGA Life & Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1529.) But we choose to follow its holding because we find its analysis persuasive. On our own independent review of the applicable statutes as applied to Municipal Code section 67.0101, we agree with the court's reasoning and conclusion. Under the California Supreme Court's four-part test for analyzing the relationship between a city ordinance and a state law, we determine state fluoridation law preempts Municipal Code section 67.0101, and therefore hold the court properly sustained the City's demurrer to Kennedy's cause of action seeking to prohibit the City's fluoridation program. (See State Building, supra, 54 Cal.4th at p. 556.)

Kennedy's arguments to the contrary are unavailing. In his opening appellate brief, Kennedy argues there is no "actual conflict" between the state law and Municipal Code section 67.0101 because the state law does not mandate fluoridation if there is no available outside funding. The Watsonville court specifically rejected the same argument, reasoning an actual conflict existed because a municipal law prohibiting fluoridation seeks to "regulate an area that is fully occupied by express provisions of the state law." (Watsonville, supra, 133 Cal.App.4th at pp. 885, 883-889.)

We agree. In section 116409, subdivision (b), the Legislature made clear its intent to completely "preempt local government regulations, ordinances, and initiatives" that "prohibit" water fluoridation for public water systems with 10,000 or more service connections. This state law leaves no room to enforce an ordinance banning water fluoridation in San Diego. " 'A conflict exists if the local legislation " 'duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.' " ' " (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897; Coyne v. City and County of San Francisco (2017) 9 Cal.App.5th 1215, 1224.) "[L]ocal legislation enters an area that is 'fully occupied' by general law when the Legislature has expressly manifested its intent to 'fully occupy' the area [citation]." (Sherwin-Williams, at p. 898.) That is precisely the situation here.

In his reply brief, Kennedy concedes "there is a direct conflict between [Municipal Code section] 67.0101 and [s]ection 116409, subdivision (b)."

On similar grounds, Kennedy challenges Watsonville's finding that fluoridation is a matter of statewide concern. He emphasizes that the Legislature specifically made fluoridation optional if a locality does not have outside funding to pay the operating cost.

The Legislature's decision to give a municipality the choice to fluoridate when outside funding is unavailable does not defeat the existence of legitimate statewide concerns underlying the law (e.g., promoting public health, adopting uniform water quality standards, and reducing health costs), or negate a reasonable relationship between the law and these objectives. The state law's conditional mandate reflects the realities of limited resources available to achieve public objectives. This budgetary matter does not preclude the Legislature from seeking to achieve its objectives to the extent possible.

Kennedy contends no statewide interest is served "by restricting citizen initiative rights on a city's decision to pay for fluoridation with its own funds." (Italics added.) That issue is not before us. Municipal Code section 67.0101 does not address funding issues. The question before us is whether the City must abide by an ordinance stating that water fluoridation is prohibited, not whether the City or the voters have the authority in the future to enact an ordinance regarding local fluoridation funding if outside funding is unavailable.

We additionally find unavailing Kennedy's contention that the state fluoridation law is not "reasonably related" to the "statewide objectives of 'public health' or 'uniform water quality,' " an issue not specifically addressed in Watsonville. The Legislature had a reasonable basis to find a relationship between a statewide fluoridation requirement and the goals of the legislation. As this court noted more than 10 years ago, "Water fluoridation is integrally related to a strong state interest—public health—and . . . is a cost-effective way of providing dental protection to residents." (Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 712.) " '[C]ourts through[out] the United States have uniformly held that fluoridation of water is a reasonable and proper exercise of the police power in the interest of public health. [Citations.] The matter is no longer an open question.' " (Id. at p. 705; see also De Aryan v. Butler (1953) 119 Cal.App.2d 674, 682.)

DISPOSITION

Judgment affirmed. Appellant to bear respondent's costs on appeal.

HALLER, J. WE CONCUR: McCONNELL, P. J. IRION, J.


Summaries of

Kennedy v. City of San Diego

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Apr 23, 2018
No. D072337 (Cal. Ct. App. Apr. 23, 2018)
Case details for

Kennedy v. City of San Diego

Case Details

Full title:DAVID KENNEDY, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Apr 23, 2018

Citations

No. D072337 (Cal. Ct. App. Apr. 23, 2018)