CONCURRING AND DISSENTING OPINION BY Judge FRIEDMAN.

I concur in part and dissent in part from the majority's decision. I agree with the majority that: (1) sections 9-622(5)(a)(.1) and 9-622(5)(a)(.4) of Ordinance No. 060345-AAA (Ordinance) prohibit the sale of identified tobacco products without regard to the seller's knowledge as to whether such products will be used to ingest illegal drugs; (2) the "strict liability standard in the Ordinance," (majority op. at 11), conflicts with the scienter requirement contained in section 13(a)(33) of The Controlled Substance, Drug, Device and Cosmetic Act (Act); and (3) because sections 9-622(5)(a)(.1) and 9-622(5)(a)(.4) conflict with the Act, these provisions of the Ordinance are preempted by state law.

I also agree that, as interpreted by the majority, section 9-629(1) of the Ordinance is not preempted by the Act. Section 9-629 of the Ordinance is titled "Drug paraphernalia, blunt cigars and similar items," and section 9-629(1) provides in part as follows:

(1) It shall be unlawful for any person, including any retail business, to sell or offer for sale any of the following:

(a) Any item that constitutes drug paraphernalia, as that term is defined in the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-102, where the seller knows, or under the circumstances reasonably should know, that it would be used to . . . introduce into the human body a controlled substance in violation of that Act, especially any of the following:

(.1) Containers . . . used, intended for use or designed for use in packaging small quantities of controlled substances, as well as cigars, cigarettes and related items intended for use in concealing or holding such substances;

(.2) Objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish or hashish oil into the human body, such as:

(.a) Cigars sold singly, flavored cigars known as "blunts," flavored and unflavored blunt wraps, cigarette rolling papers, cigarillos, and tiparillos;. . . .

The Philadelphia Code (Code) § 9-629(1) (emphasis added).

The majority concludes that, because section 9-629(1) of the Ordinance incorporates the definition of "drug paraphernalia" contained in section 2 of the Act, 35 P.S. § 780-102, section 9-629(1)(a) prohibits the sale of cigars sold singly, blunts, and the other specified items only if the seller knows or should know that the item will be used to ingest drugs. Under this interpretation, section 9-629(1) of the Ordinance does not conflict with the Act.

However, in light of the record testimony, as well as representations to this court at oral argument and in the City's brief, there can be no doubt that the City intends this Ordinance to " dispens[e] with the onerous requirement of proof that the seller, knew that the buyer intended to utilize the item to ingest illegal drugs." (City's brief at 16-17) (emphasis added). Therefore, I would emphasize that, to the extent that the City interprets section 9-629(1) of the Ordinance as excluding a scienter requirement, such interpretation would be in conflict with the Act and render this provision of the Ordinance unenforceable.

Although I concur in part with the majority's decision, unlike the majority, I believe that the trial court correctly held that section 9-629(2) of the Ordinance, which expressly excludes any consideration of intent, conflicts with and is preempted by the Act. In reaching a contrary conclusion, I believe that the majority disregards the five-part analysis Pennsylvania courts apply to determine whether an ordinance is preempted by a state law. See Liver-pool Township v. Stephens, 900 A.2d 1030 (Pa.Cmwlth. 2006).

Ordinance section 9-629(2) provides as follows:

(2) It shall be unlawful for any person, including any retail business, to sell or offer for sale within five hundred (500) feet of a school, recreation center, day care center, church, or community center any of the items identified in either Section 9-622(5) or Section 9-629(1), regardless of the intent as to the use of the item.

Code § 9-629(2) (emphasis added). The majority acknowledges that this provision does not require a showing of scienter. However, the majority concludes that section 9-629(2) of the Ordinance is saved from preemption by section 41.1 of the Act. I disagree.

Section 41.1 of the Act states that " consistent local ordinance[s], including zoning and nuisance ordinances" are not superseded or invalidated by the Act. 35 P.S. § 780-141.1 (emphasis added). The majority reasons that section 9-629(2) of the Ordinance must be found consistent with the Act because it is a zoning ordinance. According to the majority:

(1) the main purpose of section 9-629(2) is to shield children and churchgoers from "having to observe a blunt sale;" (majority op. at 1207.)

(2) section 9-629(2) creates a 500-foot barrier between the sale of specified tobacco products and schools, churches and day-care centers;

(3) pursuant to Municipality of Monroeville v. Chambers Development Corporation, 88 Pa.Cmwlth. 603, 491 A.2d 307 (1985), because section 9-629(2) creates a buffer zone, it is a zoning ordinance;

(4) section 41.1 of the Act expressly permits "consistent local ordinances, including zoning and nuisance ordinances;"

(5) by this language, the legislature has identified zoning ordinances as a type of consistent ordinance allowed by the Act; and

(6) because it is a zoning ordinance, section 9-629(2) is saved from preemption by section 41.1 of the Act.

Initially, I disagree with the majority that the "main purpose of Section 9-629(2)" is to shield children and churchgoers from "having to observe a blunt sale . . . not to restrict drug use." (Majority op. at 1207.) Contrary to the majority's assertion, the record evidence allows no room for doubt that the only goal of the Ordinance is to combat drug use. In addition, the majority fails to explain how the mere sight of a cigar sale can have a deleterious effect on children and/or churchgoers. Moreover, I cannot comprehend how the sale of a blunt or a single cigar could be more injurious to the health or sensibilities of children and churchgoers than the sale of multiple cigars and other tobacco products, which is not prohibited under section 9-629(2).

I also disagree "[t]hat there can be little doubt that Section 9-629(2) is a zoning or nuisance ordinance." (Majority op. at 1207.) In addition to the stated purpose of the Ordinance and the testimony of record, the placement of Ordinance section 9-629(2) in Title 9 of the Code supports a contrary conclusion. Title 9 of the Code contains the City's regulation of businesses, trades and professions, whereas the City's zoning regulations are contained in Title 14 (Zoning and Planning). The majority suggests that this is of no moment, but the Code reflects that the city council makes distinctions between the regulation of conduct and the regulation of location. For example, the Code regulates "adult bookstores" in both Title 9 and Title 14. Section 9-624(b) of the Code provides that, "regulations in addition to those contained in existing zoning regulations are necessary to reduce the nighttime hours during which adult bookstores operate" and specifically restricts the hours of operation of business that are located within 1000 feet of specified places. It is section 14-1605, however, which prohibits an adult bookstore from being located within 500 feet of churches and schools. Thus, where the Code intends to create a buffer zone, the regulation is included in Title 14's zoning regulations.

I also note the Code contains numerous provisions wherein a particular activity or condition is deemed to be a "nuisance"; however, in contrast to those provisions, there is no similar language in the Ordinance. Because there is no evidence indicating that the City intended the Ordinance, or any part of it, to be a zoning or nuisance regulation, I disagree with the majority's conclusion in this regard.

More important, although the majority acknowledges that section 41.1 of the Act specifically allows any " consistent local ordinance, including zoning and nuisance ordinances," 35 P.S. § 780-141.1 (emphasis added), the majority construes this language as identifying every zoning and nuisance ordinance as being a type of ordinance that is consistent with the Act. Under the majority's analysis, every zoning ordinance is consistent with the Act as a matter of law. I submit that this is an absurd result, one that can only be reached by ignoring the law governing preemption, and, in particular, the principle that "home rule municipalities are not generally authorized to legislate in a way that contradicts a state statute." (Majority op. at 1202-03.)

Finally, I believe that the majority's statement that "zoning legislation will not be found preempted by a state regulatory statute unless that statute expressly states an intention to preempt zoning," (majority op. at 1206-07), confirms that the majority's analysis is flawed. The majority recognizes that state preemption can be found in three forms, which are commonly known as "express preemption," "field preemption" and "conflict preemption." The issue here involves' "conflict preemption,' which acts to preempt any local law that contradicts or contravenes state law." Nutter v. Dougherty, 595 Pa. 340, ___, 938 A.2d 401, 404. Clearly, the majority's statement that preemption will not be found unless a statute "expressly states an intention to preempt zoning" applies only to an analysis of "express preemption" and is not at all relevant here. The issue here is whether section 9-629(2) conflicts with the Act because it explicitly precludes the consideration of intent that the Act requires. I believe that it does, and, therefore, I would hold that, under the established principles of conflict preemption, section 9-629(2) of the Ordinance also is preempted by the Act.

Accordingly, I would affirm the trial court's decision in its entirety.

CONCURRING AND DISSENTING OPINION BY Judge COHN JUBELIRER.

I concur with the majority that subsections (1) and (2) of Section 9-629 of The Philadelphia Code (Code) as modified by Ordinance No. 060345-AAA (Ordinance), are not preempted. However, because I would also find that subsections (5)(a)(.1) and (.4) of Section 9-622 of the Code as modified by the Ordinance, are not preempted, I must dissent from that portion of the majority's opinion that holds otherwise. In sum, The Controlled Substance, Drug, Device and Cosmetic Act (Act) does not specifically identify any item as conclusively being "drug paraphernalia" and, therefore, does not identify any item as necessarily being impermissible to sell. Thus, the scienter provision of the Act is necessary to protect retailers and others who, given the Act's lack of precision, may genuinely be unsure as to whether an item they are selling is contraband. In contrast, the Ordinance specifically identified items that may not be sold, thus leaving no doubt as to whether the items were contraband. The explicit nature of the prohibition obviates the need for scienter. The City of Philadelphia's (City) exercise of authority is consistent with the authority delegated by the General Assembly in the Act itself, and reserved by the City by its status as a home rule community.

The present case involves Section 41.1 of the Act. The relevant language of the Act provides that "[n]othing in this act relating to drug paraphernalia shall be deemed to supersede or invalidate any consistent local ordinance, including zoning and nuisance ordinances, relating to the possession, sale or use of drug paraphernalia." 35 P.S. § 780-141.1 (emphasis added). The dispute is whether Section 9-622(5)(a)(.1) and (.4) of the Code is "consistent" with the Act.

The majority reasons that because Section 13(a)(33) of the Act, 35 P.S. § 780-113(a)(33), imposes a scienter requirement and that subsections (a)(.1) and (.4) of Section 9-622 of the Code do not, these subsections are inconsistent with the Act. Section 13(a)(33) reads in relevant part: "(a) [t]he following acts and the causing thereof within the Commonwealth are hereby prohibited:. . . . (33) The delivery of, possession with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know" that the item will be used to "manufacture . . . produce . . . prepare . . . pack, repack . . . contain, conceal . . . ingest, inhale or otherwise introduce into the human body a controlled substance. . . ." 35 P.S. § 780-113(a)(33) (emphasis added). The majority contrasts this language from the Act with the language from Section 9-622(5) of the Code, which does not include a scienter provision. This section of the Code, instead, reads "[i]t shall be unlawful for any retail business to sell or furnish by gift, purchase or other means any of the following. . . ." Section 9-622(5) of the Code. The majority concludes that the Act "'exempts persons from liability who do not know, or cannot reasonably know, that the tobacco item being sold would be used by the buyer to ingest illegal drugs" and that the Ordinance's lack of a similar provision is an irreconcilable conflict between the Ordinance and Act. Holt's Cigar Company, Inc v. City of Philadelphia, 952 A.2d 1199, 1206 (Pa.Cmwlth., No. 588 CD. 2007, filed June 23, 2008), op. at 1205-06.

To fully appreciate the scienter requirement set forth in Section 13(a)(33) of the Act, one must examine Section 2 of the Act, 35 P.S. § 780-102. Section 2 is a definitional section that defines many terms, including "drug paraphernalia." As noted by the majority, the definition for "drug paraphernalia" has two components. The first component is an extensive list of items that the statute identifies as sometimes being "drug paraphernalia." The list contains many items that may have innocuous uses, such as "[b]lenders, bowls, containers, [and] spoons. . . ." 35 P.S. § 780-102. The list in the first component of the "drug paraphernalia" definition is not meant to be exhaustive. The second component of the definition is a delineation of criteria to consider when evaluating, under the facts and circumstances of a particular case, if an item listed in the first component of the definition, or any other item that is not listed, constitutes "drug paraphernalia." This list of criteria is, itself, not exhaustive, as the statutory language provides that "all other logically relevant factors" should also be considered. 35 P.S. § 780-102. Therefore, due to this second component, the evaluation of whether a given item is "drug paraphernalia" encompasses the totality of the circumstances.

The majority explicitly concludes that it is for a court to evaluate these factors and make this determination. Holt, 952 A.2d at 1204-05. ("In short, whether specifically listed in Section 2 or not, an item is determined unlawful drug paraphernalia only after the court applies the . . . 15-part test.") If only a court may determine whether a given item is drug paraphernalia, it follows that such analysis may only be done on a case by case basis. Therefore, under such review, particularly when dealing with items that may have an innocuous use, the state of mind of the seller of the object is important. Indeed, one of the factors of the second component of the "drug paraphernalia" definition mentions for consideration the "direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he knows, or should reasonably know, intend to use the object to facilitate a violation of this act. . . ." 35 P.S. § 780-102 (emphasis added).

Although the statutory language does indicate that these factors should be weighed by a court, the language also indicates that the factors should be considered by "other authorit[ies]." 35 P.S. § 780-102 ("In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors. . . ."). The phrase "other authority" is not defined by the Act. I believe a reasonable inference from this language is that the phrase would include municipal authorities, that is local legislative bodies, such as the City Council of Philadelphia. First, the qualifier "any" as to authority seems purposely broad so as to be inclusive of the variety of governmental bodies that could, in one way or another, deal with issues addressed by the Act. Second, as discussed earlier, Section 41.1 of the Act authorizes local ordinances that relate "to the possession, sale or use of drug paraphernalia." Local ordinances are necessarily enacted by "municipal authorities," which are defined as "[t]he body or board authorized by law to enact ordinances or adopt resolutions for the particular municipality." Municipality Authorities Act, 53 Pa.C.S. § 5602. From this it can be reasonably inferred that "other authority" was meant to include local legislative bodies. Thus, the Act directs both courts and local legislative bodies to utilize these factors when regulating drug paraphernalia. While a court's vision in deciding a case is limited to the facts of the particular case before it, a legislative body's focus in enacting legislation necessarily takes on a broader perspective, requiring the legislative body to evaluate the totality of the circumstances within the community as a whole.

In the present case, the City, an "authority," evaluated the totality of the circumstances within its community. Philadelphia's City Council's Committee on Licenses and Inspections conducted a hearing (City Hr'g Tr.) regarding the Ordinance prior to its passage. At this hearing, extensive testimony was presented that described the manner in which these items were being used for illicit purposes, the extent of this illicit use, and the common knowledge within the community of how these items were being used. The testimony also addressed the manner in which various corner stores were distributing these items. The testimony indicated that the items in, these stores were directed toward and, in fact, were used in conjunction with marijuana by youth, beginning with preteen children. The whole of the testimony clearly identified a problem within the City that was directly linked with these particular items from the particular locations targeted by the Ordinance.

The prohibition of subsections (.1) and (.4) of Section 9-622(5)(a) of the Code are clear, and explicitly identify particular items that may not be sold by retailers. This stands in contrast to the Act's articulation of what constitutes "drug paraphernalia" which, as previously discussed, provided only examples of items that sometimes are drug paraphernalia and, thus, are only sometimes illegal. In such an instance a scienter element is essential; the determination of whether an item is drug paraphernalia takes place after the sale, at the time of trial. In contrast, subsections (.1) and (.4) obviate the need for a scienter requirement by specifically identifying, upfront, prior to any sale, what items may not be sold.

Thus, while the Ordinance does not contain a scienter requirement on its face, the clear delineation of what, for purposes of the Ordinance, constitutes "drug paraphernalia" obviates the need for such a requirement. As the Act affords authorities, such as the City, the opportunity to consider these factors and to legislate in furtherance of the Act's goals, I find the City's actions, and the Ordinance itself, to be consistent with the Act.

Additionally, to the extent there was any ambiguity as to whether the Ordinance conflicted with the Act, I believe the deferential standard set forth by the Pennsylvania Supreme Court, in Nutter v. Dougherty, 595 Pa. 340, 938 A.2d 401 (2007), requires this Court to, in the facts and circumstances of this case, defer to the City's exercise of municipal powers.

Our Supreme Court, in Nutter, recognized that the local actions of a home rule community are still subject to traditional preemption notions. However, the Court was very clear in discussing these preemption principles and their relationship to local action by stating that "[w]e cannot stress enough that a home rule municipality's exercise of its local authority is not lightly intruded upon, with ambiguities regarding such authority resolved in favor of the municipality." Id. at ___, 938 A.2d at 414 (emphasis added).

In Nutter, the Pennsylvania Supreme Court affirmed our Court's conclusion that a Philadelphia ordinance that limited campaign contributions to candidates for municipal office was not in conflict with state law, specifically the Election Code, and Pennsylvania constitutional language stating that "[a]ll laws regulating the holding of elections by the citizens, or for the registration of electors, shall be uniform throughout the State. . . ." Pa. Const. Art. VII, § 6. In reaching this conclusion, the Supreme Court went into a lengthy discussion relying heavily on Department of Licenses and Inspections, Board of License and Inspection Review v. Weber, 394 Pa. 466, 147 A.2d 326 (1959), a case that, in the present appeal, the City also relies on:

Weber presented the question whether the state Beauty Culture Act precluded Philadelphia from passing additional licensure requirements for beauticians in its municipal Health Code. There as here, the act in question itself was silent as to local supplementation, and that omission, appellee argued, was tantamount to an affirmation of the General Assembly's preemptive intent. We rejected this argument, relying in part on the Commonwealth's parallel Barber Act. The two acts, we noted, had initially been passed in tandem in 1931, at which time neither statute addressed local supplementation. Soon after the Barber Act's passage, however, a trial court deemed it to have preemptive effect over local regulation in that field. The General Assembly, in 1935, responded by revising the Barber Act to specifically provide that "[n]othing contained in this act, or the act to which this [is] an amendment, shall be construed as prohibiting any municipality from adopting appropriate ordinances, not inconsistent with . . . this act. . . ." 147 A.2d at 328. We found this language probative of the legislature's original intent, in passing the parallel 1931 acts, to leave the fields of barbering and cosmetology open to local supplementation.

While this ruling to some extent sounded in the peculiar legislative histories of the two parallel acts, this Court nonetheless spoke to the broader issues of preemption implicated in the case. Specifically, the Court noted that:

The Legislature could not be expected to itemize the last towel and drop of antiseptic which, for sanitation and cleanliness, would be required in every barber and beauty shop in the State. The size of the municipality, congestion of population, geography of locale, weather and climate prevailing in the area could have a very decided bearing on the extent of the meticulousness of the sanitary supervision required in any particular group of shops. It would not be unnatural to assume that regulations could be stricter and more rigid in large cities where the turnover in clientele would be comparatively rapid as against a village or small rural center where the customers are known by their first name, occupation and frequency of visit.

Id. at 329. Furthermore, we quoted our Western Pennsylvania Restaurant Association decision to the effect that "[a] municipal corporation . . . may make such additional regulations in aid and furtherance of the purposes of the general law." Id. at 330 (quoting W. Penna. Rest. Ass'n., 77 A.2d at 620).

Nutter, 595 Pa. at ___, 938 A.2d at 415 (footnote and second bracketed alteration added).

The City's argument in this case is quite consistent with the confines established by the Supreme Court in Weber, as discussed in Nutter. The City argues that:

[H]ere, a large urban area like Philadelphia has a greater need than most other municipalities in the Commonwealth for stricter, more rigid regulation of items commonly used for illegal drug use. Philadelphia has an unfortunate proximity to illegal drugs. Its international airport, major shopping terminals and proximity to major interstates and rail systems facilitate drug trafficking, and major New York drug trafficking organizations use Philadelphia as a shipment point for illegal drugs. . . . Further, as the hearing testimony established, the specific problem targeted in this case is inexpensive cigars sold by convenience and drug stores that are not commonly known as purveyors of primarily drug paraphernalia. . . . Clearly such a problem is exacerbated in a large urban area like Philadelphia, where Wawa stores and Sunoco mini-mart type shops proliferate, as compared to the bucolic pastures of Adams County, for example. It therefore furthers the purpose of the . . . Act, not frustrates it, when the City enacts legislation in the field of Drug Paraphernalia that targets a specific problem within that field, blunt cigars, and deals with it more specifically and strictly than does the Act itself.

(City's Br. at 18-19.) Given Nutter and its explicit direction, I would find this argument adequately supports the City's exercise of its home rule municipality powers.

Accordingly, because I believe that the City appropriately and consistently legislated in furtherance of the Act's provisions, I would reverse the trial court's order as to Section 9-622(5)(a)(.1) and (.4). Additionally, even if there is ambiguity on the point of whether or not the Ordinance is preempted, per Nutter, I would find in favor of the City. For these reasons I must concur in part, and dissent in part from the majority's thoughtful opinion.

Judge SMITH-RIBNER joins in this concurring and dissenting opinion.