Argued March 5, 2014.
[Copyrighted Material Omitted]
Hillsborough-northern judicial district.
Shaheen & Gordon, P.A., of Concord ( Donald C. Crandlemire on the brief and orally), for the petitioner.
Office of the City Solicitor, of Manchester ( Peter R. Chiesa on the brief and orally), for the respondent.
BASSETT, J. DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.
The respondent, the City of Manchester (City), appeals an order of the Superior Court ( Brown, J.) denying the City's motion to dismiss and granting the motion for summary judgment filed by the petitioner, Prolerized New England Company (Prolerized). The City argues that the trial court erroneously ruled that RSA chapter 322 preempts the City's ordinances regulating junk and scrap metal dealers. RSA ch. 322 (2011 & Supp. 2013). We reverse and remand.
The trial court found the following facts to be undisputed. Prolerized is engaged in the business of scrap metal recycling, and operates two scrap metal recycling centers in Manchester. There is one other licensed scrap metal yard within the City.
In 1995, the City adopted an ordinance requiring scrap metal dealers to maintain for inspection certain records regarding every transaction as a condition to the license to operate within the City. Manchester, N.H., Code of Ordinances § 114.03(B) (1995). The ordinance required dealers to document the proven identity of the seller, the date of the transaction, and to maintain an accurate, detailed description of each item purchased. Id.
In 2012, in an effort to combat the growing problem of scrap metal theft, the City adopted § 114.03(C), which requires scrap metal dealers to prepare transaction records electronically " as directed by the Chief of Police or his designee," and to forward them " to the Police Department or authorized data storage site ... no later than 24 hours after completion of the transaction." Manchester, Ordinances § 114.03(C) (2012). Subsection 114.03(C) also requires that the electronic transaction records include a digital photograph of the scrap metal seller and a color digital photograph of all items sold in the transaction. Id. The City also adopted § 114.03(D), which requires dealers to include a complete and accurate description of the seller's vehicle, as well as § 114.03(E), which levies a fee of fifty cents per electronic transaction for which a record must be prepared pursuant to § 114.03. Manchester, Ordinances § 114.03(D), (E) (2012). [166 N.H. 622]
Pursuant to § 114.03(C), the City designated a private company, LeadsOnline, as the authorized storage site for the electronic transaction records, and directed Prolerized to set up a user account and begin uploading data. Shortly thereafter, Prolerized filed a petition seeking declaratory and injunctive relief, arguing that § 114.03, as amended, is preempted by State law. Prolerized also argued that the fifty cent per transaction fee is an unlawful business tax because it raises revenues in excess of the reasonable costs to the City, and violates Prolerized's constitutional right to freedom of contract and equal protection. The City filed a motion to dismiss, and Prolerized filed a motion for summary judgment. The trial court denied the City's motion to dismiss and entered summary judgment for Prolerized, ruling that State law preempted § 114.03. Because of its preemption ruling, the trial court did not consider whether § 114.03 imposes an unlawful business tax or violates constitutional protections. This appeal followed.
" We review de novo the trial court's application of the law to the facts in its summary judgment ruling." EnergyNorth Natural Gas v. City of Concord, 164 N.H. 14, 15, 48 A.3d 960 (2012) (quotation omitted). " We consider all of the evidence presented in the record, and all inferences properly drawn therefrom, in the light most favorable to the non-moving party." Id. at 15-16. " If our review of that evidence discloses no genuine issue
of material fact and if the moving party is entitled to judgment as a matter of law, then we will affirm the grant of summary judgment." Id. at 16 (quotation omitted).
On appeal, the City argues that its ordinance " relative to transaction fees, digital record keeping, and digital reporting neither expressly contradicts the statute nor intrudes upon an area reserved to the exclusive control of the General Court." Prolerized counters that the trial court properly concluded that, because § 114.03 and RSA ...