Steffes v. City of Lawrence

• Decision Date: 22 June 2007
• Docket Number: No. 96,838.,96,838.
• Citation: 160 P.3d 843
• Parties: Dennis STEFFES, d/b/a Last Call and Coyotes, Appellant, v. CITY OF LAWRENCE, Appellee.
• Court: Kansas Supreme Court

160 P.3d 843

Dennis STEFFES, d/b/a Last Call and Coyotes, Appellant, v. CITY OF LAWRENCE, Appellee.

No. 96,838.

Supreme Court of Kansas.

June 22, 2007.

William K. Rork, of Rork Law Office, argued the cause, and Wendie C. Bryan, of the same firm, was with him on the briefs for appellant.

Toni Ramirez Wheeler, of Legal Services Department, of City of Lawrence, and Scott J. Miller, of the same department, was with her on the brief for appellee.

Sandra Jacquot, general counsel, and Donald L. Moler, executive director, were on the brief for amicus curiae League of Kansas Municipalities.

The opinion of the court was delivered by NUSS, J.:

Bar owner Dennis Steffes was cited for violating the Lawrence city ordinance regulating smoking in public places. He appeals the district court's denial of his request to declare the ordinance invalid and to enjoin its enforcement. Our jurisdiction is pursuant to K.S.A. 20-3018(b) (transfer from the Court of Appeals on Steffes' motion).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the district court err in concluding that K.S.A. 21-4010 does not preempt the ordinance? No.

2. Did the district court err in concluding that ordinance Sections 9-810 and 9-812 are not unconstitutionally vague? No.

3. Did the district court err in denying injunctive relief? No.

As a result, the district court is affirmed.

FACTS

On May 11, 2004, the City Commission for the City of Lawrence (City) passed Ordinance No. 7782 regulating smoking. The ordinance's stated purpose was to "(1) improve and protect the public's health by eliminating smoking in public places of employment; (2) guarantee the right of nonsmokers to breathe smoke-free air; and (3) recognize that the need to breathe smoke-free air shall have priority over the choice to smoke." The ordinance, which consisted of Sections 9-801 through 9-814, took effect July 1, 2004.

Subject to several exclusions found in Section 9-807, the ordinance prohibited smoking in public places (Section 9-803) and places of employment (Section 9-804). It also imposed certain obligations upon the "owner, manager, or other person having control of such building or other areas where smoking is prohibited. . . ."

On July 18, 2005, Dennis Steffes, business owner of Tremors, Inc., doing business as the bars Coyotes and Last Call, petitioned the district court for declaratory judgment and injunctive relief prohibiting the City from enforcing the ordinance. He argued that the ordinance was both unconstitutionally vague and preempted by state law. The petition recited that Steffes was cited on September 1, 25, 29, and October 23, 2004, for allegedly (1) failing to provide a smoke-free workplace for employees and (2) failing to prohibit smoking inside of a bar. Steffes noted that he was found not guilty in all but one case. He also asserted that he lost "approximately 40% in sales."

On September 20, 2005, the City amended the ordinance. The enforcement Section, 9-810, reads as follows:

"(A) The Fire Chief or his or her designated agent shall be responsible for enforcing the provisions of this Article within the City, but nothing in this section shall be interpreted to prohibit any other person who would otherwise be lawfully entitled to enforce the provisions of this Article from taking enforcement action under this Article.

"(B) Notice of the provisions set forth in this Article shall be given to all applicants for a City retail liquor or drinking establishment license.

"(C) Any person may register a complaint under this Article to initiate enforcement with the fire chief.

"(D) The Lawrence-Douglas Fire & Medical Department, the Lawrence Police Department, the Lawrence-Douglas County Health Department, and the Codes Enforcement Division of the Department of Neighborhood Resources Department shall, while an establishment is undergoing otherwise mandated inspections, inspect for compliance of this Article.

"(E) Any owner, manager, operator or employee of any premises regulated by this Article shall be responsible for informing persons violating this Article of the provisions through appropriate signage."

The City's September 2005 action also amended the ordinance's violations and penalties Section, 9-812, to read:

"(A) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this Article to fail to comply with all of its provisions.

"(B) It shall be unlawful for any person who owns, manages, operates or otherwise controls any premises subject to regulation under this Article to allow smoking to occur where prohibited by this Article. Any such person allows smoking to occur under this subsection if he or she:

"1. has knowledge that smoking is occurring, and;

"2. acquiesces to the smoking under the totality of the circumstances.

"(C) It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this Article.

"(D) Any person who violates any provision of this Article shall be guilty of a misdemeanor, punishable by:

"1. A fine not exceeding one hundred dollars ($100.00) for the first violation.

"2. A fine not exceeding Two Hundred Dollars ($200.00) for a second violation within a one (1) year period of the first violation.

"3. A fine not exceeding Five Hundred Dollars ($500.00) for a third or subsequent violation within a one (1) year period of the first violation.

"4. For the purposes of this subsection, the number of violations within a year shall be measured by the date the smoking violations occur."

At the later hearing on Steffes' request for a preliminary injunction, Steffes testified on behalf of his bars. According to Steffes, he had been in business in Lawrence for 22 years, and he had owned Tremors, Inc., since 1996. He also presented evidence of a decrease in income for Coyotes that occurred after the smoking ordinance went into effect, which he believed was attributable to the ordinance.

Although Steffes did not provide income data for Last Call, he testified that the bar is open fewer nights per week than it was prior to the effective date of the ordinance. He conceded, however, that factors other than the smoking ban could have contributed to the decreased patronage.

Steffes did not provide profitability data for either bar. He claimed, however, that because his expenses usually remained the same, a loss in income would create a loss in profits.

The district court held that Steffes failed to meet any of the requirements for obtaining a temporary injunction. In so ruling, the court specifically held that Steffes had not demonstrated a substantial likelihood of success on the merits, either on the basis of unconstitutional vagueness or preemption by state law:

"The City's smoking laws are clear in what conduct is prohibited: smoking is prohibited in most enclosed spaces and places of employment.

"The City's ordinances supplement the state law by extending the restrictions on smoking to most enclosed public places and places of employment. While the Lawrence ordinances are more stringent than the state regulations, they do not conflict with the state law."

In addition to holding Steffes had failed to demonstrate a substantial likelihood of success on the merits, the court also held that he had failed to establish any of the remaining three requirements for a temporary injunction. On the requirement of irreparable injury, after noting that Steffes failed to introduce evidence of lost profits, the court held that "[t]he evidence submitted was insufficient to establish that the smoking ordinance was the cause of any economic loss suffered."

Steffes filed a motion to reconsider the denial of the temporary injunction. After a full hearing on all the issues, the district court denied Steffes' motion; it also denied on the merits his petition request to declare the ordinance invalid and, consequently, to permanently enjoin its enforcement. Steffes timely appealed.

Additional facts will be provided as necessary.

ANALYSIS

Issue 1: The district court did not err in concluding that K.S.A. 21-4010 does not preempt the ordinance.

Steffes argues that the City was barred from prohibiting smoking in his bars because the state legislature has preempted the local legislation. He particularly points to language in K.S.A. 21-4010(b) that authorizes business proprietors to designate smoking areas on their premises. K.S.A. 21-4010 states:

"(a) No person shall smoke in a public place or at a public meeting except in designated smoking areas.

"(b) Smoking areas may be designated by proprietors or other persons in charge of public places, except in passenger elevators, school buses, public means of mass transportation and any other place in which smoking is prohibited by the fire marshal or by other law, ordinance or regulation.

"(c) Where smoking areas are designated, existing physical barriers and ventilation systems shall be used to minimize the toxic effect of smoke in adjacent nonsmoking areas." (Emphasis added.)

While Steffes acknowledges that under K.S.A. 21-4013 a city may enact smoking regulations more stringent than those imposed by the State, he asserts that stringent regulation does not equate to absolute prohibition. K.S.A. 21-4013 states:

"Nothing in this act shall prevent any city or county from regulating smoking within its boundaries, so long as such regulation is at least as stringent as that imposed by this act. In such cases the more stringent local regulation shall control to the extent of any inconsistency between such regulation and this act." (Emphasis added.)

Our review of this issue is unlimited because whether a city ordinance is preempted by statute is a question of law, as is the interpretation of statutes and ordinances. State ex rel. Kline v. Board of Comm'rs of Unified Gov't of Wyandotte Co./KC, 277 Kan. 516, 519, 85 P.3d 1237 (2004) (preemption);...