PUBLISHED OPINION
Case No.: 95-0213
Complete Title
of Case:
U.S. OIL, INC., d/b/a
EXPRESS CONVENIENCE CENTER,
ENGE'S BEER & LIQUOR,
EZ MART, FARRELL'S RED OWL,
LAUER'S FOOD, INC.,
LAUER'S FOOD MART, INC.,
MA & PA'S GROCERY EXPRESS,
MERWIN FUEL MART, QSO, INC.,
STOP N SHOP FOOD OF FOND DU LAC, INC.,
and WARRA ENTERPRISES, INC.,
Plaintiffs-Respondents,
v.
CITY OF FOND DU LAC,
Defendant-Appellant.
Oral Argument: November 22, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: January 10, 1996
Opinion Filed: January 10, 1996
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Fond du Lac
(If "Special", JUDGE: John W. Mickiewicz
so indicate)
JUDGES: Anderson,
P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, there were briefs and oral argument by James
A. Flader, assistant city attorney.
Respondent
ATTORNEYSOn
behalf of the plaintiffs-respondents, the cause was submitted on the brief of Thomas
L. Shriner, Jr. and Michael B. Brennan of Foley & Lardner
of Milwaukee. There was oral argument
by Thomas L. Shriner, Jr.
Amicus
ATTORNEYSOn
behalf of the City of Fond du Lac, there was a brief filed by Maria K. Myers
and James M. Jorissen of Davis & Kuelthau, S.C. of
Milwaukee. There was oral argument by James
M. Jorissen.
On
behalf of the League of Wisconsin Municipalities, there was a brief filed by Claire
Silverman of Madison.
On
behalf of Petroleum Marketers Association of Wisconsin and Wisconsin
Association of Convenience Stores, the cause was submitted on the brief of Jon
P. Axelrod and Stephen A. DiTullio of DeWitt Ross & Stevens
S.C. of Madison. There was oral
argument by Jon P. Axelrod.
COURT OF APPEALS DECISION DATED AND RELEASED January 10, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0213
STATE
OF WISCONSIN IN COURT OF
APPEALS
U.S. OIL, INC., d/b/a
EXPRESS CONVENIENCE
CENTER,
ENGE'S BEER &
LIQUOR,
EZ MART, FARRELL'S RED
OWL,
LAUER'S FOOD, INC.,
LAUER'S FOOD MART,
INC.,
MA & PA'S GROCERY
EXPRESS,
MERWIN FUEL MART, QSO,
INC.,
STOP N SHOP FOOD OF
FOND DU LAC, INC.,
and WARRA ENTERPRISES,
INC.,
Plaintiffs-Respondents,
v.
CITY OF FOND DU LAC,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Fond du Lac County: JOHN W. MICKIEWICZ, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
BROWN, J. The
City of Fond du Lac has enacted an ordinance aimed at curtailing the ability of
area teenagers to get tobacco products.
In particular, the ordinance bans self-service displays that enable
consumers to access single packs of cigarettes without merchant
assistance. This effectively means that
all single packs of cigarettes must pass through the retailer's hands before
the customer gets possession. We hold,
however, as did the trial court, that this ordinance is invalid because the
state preempted the field of tobacco distribution when it promulgated §§
48.983, 134.66, and 139.43, Stats. We affirm.
In December 1993, the
City adopted an ordinance designed to limit teenage tobacco use. It acted in response to a study conducted by
Western Michigan University which revealed an alarming rate of tobacco use in
the area schools. The study reported
that these children primarily obtained the product by either shoplifting or
direct purchases. The City also
observed results from a study of an Illinois community which showed how tobacco
use among minors could be effectively limited through a regulatory program
targeted at tobacco retailers.
Accordingly, the City
adopted a regulatory scheme patterned on this successful ordinance. Our analysis reveals that the City's
ordinance has four other facets in addition to the ban on self-service
displays. Fond du Lac, Wis., Ordinances § 12.30(2)(d). First, it adopts the state restrictions
regarding tobacco sales. Id.
at § 12.30(1). Thus, the City acquired
the authority to directly enforce the state's basic regulatory scheme which
includes licensing provisions, prohibitions on sales to minors (under eighteen
years of age) and rules regarding placement and operation of vending machines. See §§ 48.983, 134.65 and 134.66, Stats.
Second, the City adopted a specific provision requiring tobacco sellers
to request identification from persons who did not appear to be eighteen years
old. See Fond du Lac, Wis., Ordinances § 12.30(2)(a). Next, the City ordinance requires that all
tobacco products be sold in their original packaging and include all health
warnings. Id. at §
12.30(2)(b). Finally, the ordinance
commits the City to making a minimum number of compliance inspections at area
retailers. Id. at §
12.30(4).
In May 1994, U.S. Oil,
Inc. filed an action seeking to have the ordinance declared void. The trial court issued an order to stay
enforcement of the ordinance in June 1994 and scheduled oral arguments for the
following October. There, U.S. Oil
argued, in essence, that because the state legislature has enacted
comprehensive regulations governing the sale and use of tobacco, the City had
overstepped its police power when it enacted this ordinance. In response, the City challenged U.S. Oil's
contention that the state statutes covering tobacco sales and usage were so
comprehensive as to usurp local government's authority to act.
The trial court agreed
with U.S. Oil and in January 1995 entered a judgment declaring the ordinance
void as preempted by state law. The
City appealed. We are thus faced with
an issue of statutory interpretation: does the state legislation preempt the
City's tobacco ordinance. This is a
question of law that we review de novo.
See DeRosso Landfill Co. v. City of Oak Creek, 191
Wis.2d 46, 49-50, 528 N.W.2d 468, 469 (Ct. App.), petition for review
granted, 534 N.W.2d 85 (1995).[1]
Wisconsin municipalities
have both constitutional, Wis. Const.
art. XI, § 3, and statutory home rule power. See § 62.11(5), Stats.
The City, however, argues only that its statutorily derived powers
support its ordinance.[2]
When addressing whether
home rule power exists under § 62.11(5), Stats.,
the court must first ascertain whether the legislature has declared a subject
area to be of “statewide concern.” If
it is, then the court must determine if the legislature, even though it has
declared a statewide interest, has nonetheless permitted local authorities to
act, and to what extent they may act.
The rationale supporting this analytic procedure was explained in State
ex rel. Michalek v. LeGrand, 77 Wis.2d 520, 253 N.W.2d 505 (1977),
where the court wrote:
In an area solely or paramountly of
statewide concern, the legislature may either delegate to local units of
government a limited authority or responsibility to further proper public
interests, or may preempt the field by expressly banning local legislative
action as to such matter of statewide concern.
Id. at
529, 253 N.W.2d at 508 (quoted source omitted). We will thus begin by determining whether the legislature has
manifested the level of interest in tobacco distribution identified in Michalek.
Before the trial court,
and here on appeal, U.S. Oil primarily bases its argument regarding the
question of statewide concern on §§ 48.983, 134.66 and 139.43, Stats.
The relevant portions of these statutes are reproduced at the margin.[3] The touchstone language within the many
sections of these statutes includes a requirement that localities may only
adopt tobacco-related ordinances which “strictly conform” to state law. See §§ 48.983(5) and
134.66(5). Moreover, § 139.43
expressly states that “providing a uniform regulation of the sale of
cigarettes” is of “statewide concern.”
Pointing to the cited
statutes, especially the terms “strictly conforms” and “statewide concern,”
U.S. Oil argues that the state legislature has “expressly declared this
comprehensive system of laws to preempt supplemental local regulation.”
As outlined above, we
must first decide whether the legislature has expressed a “statewide concern”
in the sale of tobacco products to minors as that term is defined in Michalek. At U.S. Oil's prompting, our focus initially
turns to the language “statewide concern” found in the tax laws, § 139.43,
Stats., and how it affects the
state's restrictions on tobacco distribution.
The City argues that
because the “statewide concern” language deals only with the taxation of
cigarettes, and that indeed the whole of ch. 139, Stats., only concerns the taxation of beverages, controlled
substances and cigarettes, U.S. Oil may not successfully argue that this
statutory language was also meant to encompass the sale of tobacco to
minors.
The legislative history
of these laws reveals that the state's interest in regulating tobacco
distribution came twenty years after its decision to tax tobacco products. Compare 1987 Wis. Act. 336, §§ 1 and 2 (creating §§ 48.983(5) and
134.66(5), Stats.) with
Laws of 1965, ch. 67, § 4 (creating § 139.43, Stats.). We
nonetheless determine that the terms manifesting the “statewide concern” in the
“uniform regulation of the sale of cigarettes” also apply to all aspects of
tobacco distribution.
Our conclusion is based
on three observations. First, the state
rules regarding tobacco distribution make many references to the legislation
governing the taxation of these products.
See, e.g., § 48.983(1)(a), Stats.
(incorporating definition of “cigarette” set out in ch. 139, Stats.). More significantly, the penalty scheme laid out in the tobacco distribution
regulations requires the sentencing court to not only suspend the retailer's taxation
permit, see § 134.66(4)(a)3, Stats.,
but to also inform the department of revenue of this suspension. See § 134.66(4)(a)4. Thus, when the legislature approached the
task of designing laws to limit minors' access to tobacco, it relied upon the
legislative conclusions concerning tobacco taxation that had been set out
twenty years earlier. It made an active
choice that its distribution regulations would be most effective if they
incorporated existing law.
Finally, even if we did
not face the “statewide concern” language within § 139.43, Stats., we recognize that the
legislature's decision to enact distribution regulations, and to graft onto
these laws the “strictly conforms” requirement, must be given independent
weight in our analysis. The legislature
could have, hypothetically, enacted a law enabling localities to pass their own
minimum tobacco age. Such a statute
would reveal to us some legislative interest in having a minimum age, but the
functions of such a law would suggest that the state did not consider a
specific minimum age requirement to be of statewide concern.
But we do not face this
hypothetical. In fact, the legislature
set out eighteen years of age as a bright-line standard, see
§ 48.983(2), Stats., and
further required that all localities meet this standard. See § 48.983(5). The legislature has expressed its desire to
become the primary authority on this issue.
In sum, we reject the City's contention that the state's tobacco regulations
do not reveal the legislature's intent to be the leader in the field of tobacco
sales to minors.
Furthermore, we likewise
reject the City's contention that the statutes cited above are “merely
regulating modest aspects of tobacco sales” and “can hardly be construed as a
comprehensive regulatory scheme.” Here,
the City contends that we should look for more than simple legislative
expressions when measuring if there is statewide concern in a subject
matter. Instead, it submits that we
should look to the degree of state involvement. The proposed analysis would seemingly require us to look for more
concrete signals, such as express delegation of rulemaking and enforcement
authority to an administrative agency. See,
e.g., Wisconsin's Envtl. Decade, Inc. v. DNR, 85 Wis.2d 518, 527,
271 N.W.2d 69, 73 (1978) (noting that the legislature had specifically
appointed the DNR to manage the state's water resources).
While the degree of
state legislative activity, the method of enforcement and the amount of state
resources allocated towards a given subject matter may aid a court in determining whether there is a statewide
concern, the caselaw also reveals that the judiciary should accept simple
legislative assertions that a matter is of statewide concern. See Wisconsin Ass'n of Food Dealers v.
City of Madison, 97 Wis.2d 426, 431, 293 N.W.2d 540, 543 (1980)
(“[L]egislative determinations that matters are of statewide concern are
entitled to great weight.”). In regard
to tobacco distribution, we face this kind of express legislative
declaration. See § 139.43, Stats.
Moreover, the City's proposed standard is impractical because it would
implicitly restrain state legislative power.
Some fields may be of statewide interest, yet not need extensive codes
and administrative supervision to be effectively regulated. We cannot hold to a standard which would
require the legislature to set up a dysfunctional administrative board every
time it concludes that the state should be the primary, and perhaps solitary,
voice of enforcement.
Having concluded that
the distribution of tobacco is of statewide concern, we now turn to the second
phase of the analysis. As explained
above, the legislature's decision that a matter is of statewide concern does
not itself preempt local rule-making power.
The state may believe that the most effective way to combat a problem is
to delegate some or all enforcement authority to local government. See Michalek, 77 Wis.2d at
529, 253 N.W.2d at 508. This second
step basically requires the reviewing court to discern the legislative
intent. Four factors are used to guide
the analysis:
(1) whether the legislature has expressly
withdrawn the power of municipalities to act;
(2) whether the ordinance logically
conflicts with the state legislation;
(3) whether the ordinance defeats the
purpose of the state legislation; or
(4) whether the ordinance goes against
the spirit of the state legislation.
Anchor
Sav. & Loan Ass'n v. EOC, 120 Wis.2d 391, 397, 355
N.W.2d 234, 238 (1984).
U.S. Oil raises two
arguments that seem to address the first and last of these guideposts.[4] It places great emphasis on the
legislature's choice of the term “strictly conforms” within §§ 48.983 and 134.66,
Stats. U.S. Oil asserts that “[t]he meaning of
‘strict conformity’ is well settled under pertinent decisional law: As explicated by the Wisconsin Supreme
Court, the term prohibits localities from adopting ordinances that are more
restrictive than state law.” See City
of Janesville v. Walker, 50 Wis.2d 35, 38-39, 183 N.W.2d 158, 160
(1971) (“[A]ny exercise of the police power in the field [of traffic
regulations] must find its source in sec. 349.06 and comply with the
strict conformity test.”). U.S. Oil
essentially asks us to assign special significance to the “strictly conforms”
language set out in the state statutes.
On the other hand, the
City contends that we cannot place this much weight on that term. It asserts that the legislature's use of the
language “does not mean that a local municipality may not regulate conduct on
which state law remains silent.” In
support it cites City of Janesville v. Garthwaite, 83 Wis.2d 866,
266 N.W.2d 418 (1978). There, the local
ordinance prohibited excessive automobile noise caused by squealing tires, loud
engines or rattling mufflers. Id.
at 867, 266 N.W.2d at 419. In an
argument somewhat similar to U.S. Oil's, Garthwaite challenged the ordinance
claiming that “strict conformity” language within the state's motor vehicle
code served as a bar to local rulemaking.
See § 349.06(1)(a), Stats. Even though the state had no rules aimed at
his specific conduct (Garthwaite was cited for squealing his tires), he argued
that the city of Janesville was nonetheless preempted from enacting its own law
because the state had generally entered the traffic regulation business. See Garthwaite, 83 Wis.2d at
867-71, 266 N.W.2d at 420-21.
The court held that the
city of Janesville's ordinance was valid.
It explained:
Though the motor vehicle code regulates
horn and muffler noise, we cannot conclude that such limited state regulation
of excessive noise has preempted local control of all other motor vehicle
noise.
Id. at
874, 266 N.W.2d at 423. The City
contends that the underlying rationale of this holding supports its position.
More specifically, the
City claims that its ordinance is valid because it too regulates aspects of
tobacco distribution on which the state regulations are silent. In particular, the City focuses on how state
law does not address the use of self-service displays. So just as the city of Janesville could
issue a local ordinance to protect against automobile noise pollution because
the state code did not address this problem, the City of Fond du Lac should be
allowed to regulate self-service displays because the state tobacco laws do not
regulate these sales tools.
U.S. Oil responds,
however, by pointing to the language differences in the motor vehicle laws and
the statutes governing tobacco distribution.
It notes that localities' power over traffic laws is not only governed
by the term “strict conformity” within § 349.06(1)(a), Stats., but is also affected by the
“not contrary to or inconsistent with” language of § 349.03(1)(a), Stats.
It further illustrates that the Garthwaite court
emphasized this distinction. See
Garthwaite, 83 Wis.2d at 875, 266 N.W.2d at 423 (“[S]ome amount
of disuniformity is expressly provided for by sec. 349.03(1)(a) & (b) ¼.”). Therefore, U.S. Oil submits that if the Garthwaite
court had faced a state law with only a “strict conformity” clause, it would
have overturned the local ordinance.
While we decline U.S.
Oil's invitation to assign talismanic significance to the “strict conformity”
language and adopt a per se rule that this term always preempts local
rulemaking power, we do partially agree with its interpretation of the Garthwaite
decision. It does reveal that the
“strict conformity” language may be evidence that the legislature has totally
restricted local power to act. But the
true legislative intent must be found in the language and structure of the
statutes as a whole. Indeed, the first Anchor
Savings guidepost requires only a determination of whether the state
has “expressly withdrawn” the locality's power to act. See Anchor Sav., 120
Wis.2d at 397, 355 N.W.2d at 238. We
believe that this could be accomplished through an endless variety of statutory
language.
After searching the
relevant statutes, we conclude that the “strictly conforms” language within the
tobacco regulations must be read as withdrawing municipalities' ability to act
outside of state mandates. Contrary to
the City's position, we believe that the state rules are comprehensive.
Hence, what the City
claims is intended silence in regards to a particular aspect of tobacco
regulation is better described as differences in the depth of coverage
that the legislature decided to assign to each aspect of a potential tobacco
sale. While it is true that vending
sales are closely regulated, see, e.g., § 134.66(2)(c), Stats., and there is nothing discussing
self-service displays, we must nonetheless look at the entire regulatory
scheme. And when we do, we see evidence
that the legislature considered everything when it entered the arena of tobacco
distribution. The statutes range in
coverage from taxation of this product, see ch. 139, Stats., to limitations on who may
possess this product during the course of distribution. See § 48.983(3), Stats. The state has even gone so far as establishing affirmative
defenses to the penalty provisions of the statutes. See § 134.66(3), Stats.
Indeed, the very fact
that the legislature promulgated a law allowing a minor to purchase or possess
tobacco in the course of employment indicates that the legislature contemplated
the merits of the face-to-face sales which the city ordinance is designed to
encourage. In addition, the very fact
that the legislature decided to grant merchants an affirmative defense to
illegal minor sales when the purchasing minor looked of age, showed an I.D.,
and falsely represented his or her age, see § 134.66(3), Stats., also shows that the legislature
was aware that these face-to-face transactions were taking place. Although, unlike the City, the legislature
did not take the further step of encouraging more reliance on face-to-face
transactions by placing a ban on self-service displays, its failure to act does
not mean that it wanted localities to fill this void. The overall depth of legislative coverage in the field of tobacco
sales informs us that the “strict conformity” language was intended to stop
local rulemaking wherever the state law was silent, not enable it.
The parties have also raised
arguments focusing on the last part of the Anchor Savings
test. Here, U.S. Oil and the Petroleum
Marketers Association as amicus, assert
that the “spirit” of the state legislation is to prevent a “hodgepodge”
of local restrictions. See Anchor
Sav., 120 Wis.2d at 397, 355 N.W.2d at 238. This diversity would result in extra costs to retailers who would
have to keep abreast of the dynamics of state and local law, and the
differences between the laws of all the municipalities where they do business.[5]
They also appear to
suggest that the legislature has struck a fair balance between the retailers'
and the consumers' interest in low tobacco prices and the public interest in
preventing minors from obtaining the product.
In support of this argument, they submitted affidavits which showed how
the City's ban on self-service displays could alone cause a retailer to lose
$700 in monthly royalties.
The City, however, reads
the policy of the state code as being targeted only towards preventing minors
from getting tobacco. It cites the
studies conducted at area schools which indicated how teenage tobacco use was a
real threat to the community. More
importantly, it presents evidence of how comparable ordinances and enforcement
programs in other jurisdictions have successfully limited the problem and
resulted in a decrease in teenage tobacco use and experimentation. The City and its amici contend that the
ordinance is consistent with the spirit of state law; both are aimed at
limiting teenage use of the product and both achieve this goal by regulating
the distributors.
Within the state
statutes one can see a legislative desire to prevent teenage smoking. In fact, a specific section of the
Children's Code is geared towards the problem.
See § 48.983, Stats. Moreover, the evidence submitted by the City strongly suggests that its
enforcement program would be a great step forward in this goal.
Alas, however, we see a
contradictory and more overwhelming goal in the state law. The express language of the relevant
sections discussed above, and the implicit intent that we garner from the
regulations overall, inform us that the principal goal of this legislation is
to insure statewide uniformity.
Although the legislature's adherence to this policy may be an unwise
course considering how it restricts localities, such as Fond du Lac, from
taking affirmative steps towards ending illegal teenage tobacco use, the
resolution of this problem will have to arise from the political process.[6]
By the Court.—Judgment
affirmed.
[1] Both parties moved the trial court for summary judgment on the issue of whether the ordinance was valid and frame the appeal to this court as a review of summary judgment. But whether the issue is cast as a pure question of statutory interpretation, or as a review of the trial court's award of summary judgment to U.S. Oil, we still review the matter de novo. Compare DeRosso Landfill Co. v. City of Oak Creek, 191 Wis.2d 46, 49-50, 528 N.W.2d 468, 469 (Ct. App.) (describing de novo review of state-local preemption questions), petition for review granted, 534 N.W.2d 85 (1995), with Preloznik v. City of Madison, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct. App. 1983) (describing de novo review of summary judgment methodology).
[2] In its briefs, the City summarized its
appellate position as follows:
Summary
judgment should be granted in favor of the appellant because appellant is authorized
by Section 3, Article XI of the Wisconsin Constitution and its enabling
legislation, Wis. Stat. § 62.11(5), to adopt the ordinance and such
authority is not preempted by state law.
However, the statutory home rule power under § 62.11(5), Stats., is separate and distinct from the constitutional home rule power; this statute is not an “enabling statute” of the constitution. See State ex rel. Michalek v. LeGrand, 77 Wis.2d 520, 526-27, 253 N.W.2d 505, 506-07 (1977) (describing results of constitutional home rule amendment). After we inquired at oral argument, the City acknowledged that it was only asserting its statutory home rule authority.
[3] The applicable statutes include:
48.983 Purchase or possession of tobacco
products prohibited. (1) In this section:
(a) “Cigarette” has the meaning given in s.
139.30(1).
....
(c) “Tobacco products” has the meaning
given in s. 139.75(12).
(2) Except as provided in sub.
(3), no child may do any of the following:
(a) Buy or attempt to buy any cigarette or
tobacco product.
(b) Falsely represent his or her age for
the purpose of receiving any cigarette or tobacco product.
(c) Possess any cigarette or tobacco
product.
(3) A child may purchase or
possess cigarettes or tobacco products for the sole purpose of resale in the
course of employment during his or her working hours if employed by a retailer
licensed under s. 134.65(1).
....
(5) A county, town, village or
city may adopt an ordinance regulating the conduct regulated by this section
only if it strictly conforms to this section.
134.66
Restrictions on sale or gift of cigarettes or tobacco products. (1) Definitions. In this section:
(a) “Cigarette” has the meaning given in s.
139.30(1).
....
(j) “Tobacco products” has the meaning
given in s. 139.75(12).
....
(2) Restrictions. (a) No retailer, manufacturer or distributor
may sell or give cigarettes or tobacco products to any person under the age of
18, except as provided in s. 48.983(3).
....
(3) Defense
of retailer, manufacturer and distributor.
Proof of all of the following facts by a retailer,
manufacturer or distributor who sells cigarettes or tobacco products to a
person under the age of 18 is a defense to any prosecution for a violation of
sub. (2)(a):
(a) That the purchaser falsely represented
that he or she had attained the age of 18 and presented an identification card.
(b) That the appearance of the purchaser
was such that an ordinary and prudent person would believe that the purchaser
had attained the age of 18.
(c) That the sale was made in good faith,
in reasonable reliance on the identification card and appearance of the
purchaser and in the belief that the purchaser had attained the age of 18.
(4) Penalties. (a)
1. In this paragraph, “violation” means a violation of sub. (2)(a) ... or a
local ordinance which strictly conforms to sub. (2)(a) ¼.
....
3. A court shall suspend any license or
permit issued under s. 134.65, 139.34 or 139.79 to a person for [a violation of
these rules] ¼.
....
4. The court shall promptly mail notice of
a suspension under subd. 3. to the department of revenue and to the clerk of
each municipality which has issued a license or permit to the person.
....
(5) Local ordinance. A county, town, village or city may adopt an
ordinance regulating the conduct regulated by this section only if it strictly
conforms to this section.
139.43 Statewide concern. Sections 139.30 to 139.44 shall be construed as an enactment of state-wide concern for the purpose of providing a uniform regulation of the sale of cigarettes.
[4] While the briefs of the parties and amici all point to the four factors set out in Anchor Sav. & Loan Ass'n v. EOC, 120 Wis.2d 391, 397, 355 N.W.2d 234, 238 (1984), as the applicable “test” that we should apply, no party has provided a thorough explanation of how this test is applied. Does failure under one prong indicate that there is no local authority? Or, are all the factors reviewed in their totality? We also observe that at least one decision of this court has challenged whether a four-factor test is always appropriate. See DeRosso Landfill Co., 191 Wis.2d at 65, 528 N.W.2d at 476 (“Although phrased separately, parts two, three, and four of the four-part Anchor Savings test are essentially the same ....”). Nonetheless, we place significance on the supreme court's use of the disjunctive, i.e., the word “or,” when it originally laid out the factors, see Anchor Sav., 120 Wis.2d at 397, 355 N.W.2d at 238, and thus conclude that these four elements serve as guideposts to the analysis. Thus, failure under one prong may or may not reveal that the state has withdrawn localities' ability to take action.
[5] The Amicus Petroleum Marketers Association describes itself as representing approximately 1500 convenience store operators located throughout Wisconsin. Nonetheless, we are not sure that diversity in local regulations would have an equally negative effect on all these businesses. U.S. Oil, for example, submitted evidence that it would be costly and impractical for retailers who operate in different locations to familiarize themselves with the various local rules. We agree that such costs would affect profitability at these multi-municipality operators. On the other hand, truly local convenience stores may indeed be economically benefitted from restrictive local rules. The “hodgepodge” of local rules most harms those operators who need to learn several sets of laws. These extra costs of doing business, however, would also discourage these larger operators from entering new markets and thus create somewhat of a monopoly effect for the small retailer with stores in only one jurisdiction. See generally Richard A. Posner, Economic Analysis of Law § 19.3 (4th ed. 1992) (describing the economic theory of legislation).
[6] Such efforts are already underway. The Assembly Committee on Urban and Local Affairs has already held hearings on A.B. 516 which would amend §§ 48.983(5), 134.66(4)(a)1 and 134.66(5), Stats. As the Legislative Reference Bureau reports, this bill would permit localities to regulate aspects of tobacco distribution provided the regulations are “at least as strict” as the state rules. See 1995 A.B. 516.