City of Tucson v. Grezaffi
| Decision Date | 15 May 2001 |
| Docket Number | No. 2 CA-CV 00-0172.,2 CA-CV 00-0172. |
| Citation | 200 Ariz. 130,23 P.3d 675 |
| Parties | CITY OF TUCSON, Plaintiff/Appellee, v. Molly GREZAFFI, Defendant/Appellant. |
| Court | Arizona Court of Appeals |
Michael D. House, Tucson City Attorney, By Laura Brynwood and M.J. Raciti, Tucson, for Plaintiff/Appellee.
Edmund D. Kahn, Tucson, for Defendant/Appellant.
¶ 1 Appellant Molly Grezaffi, owner of a Tucson restaurant called Molly G's, challenges the constitutionality of the City of Tucson's restaurant smoking ordinance, Tucson Code § 11-19. We conclude that the ordinance is facially valid.
¶ 2 In October 1999, Grezaffi was cited on a civil infraction for having violated Code § 11-19(E)(2) which, inter alia, prohibits restaurant owners from allowing persons to smoke in restaurants except in a designated smoking area and from allowing smoke to diffuse or drift from a designated smoking area into a nonsmoking area. After an evidentiary hearing, a Tucson City Court magistrate found Grezaffi responsible, imposed a fine or community service, and ordered her to abate the violation. Pursuant to A.R.S. § 22-425(B) and applicable rules,2 Grezaffi appealed to superior court, which, after briefing and oral argument, denied the appeal. This appeal followed.
¶ 3 Although Grezaffi raises four issues on appeal, jurisdictional constraints limit our review to only one: the constitutionality of Code § 11-19. Section 22-375, A.R.S., permits an appeal from a superior court's final judgment in an action appealed from a municipal court only in limited circumstances, including actions that involve "the validity of a ... municipal fine or statute." Our review, however, is strictly limited to the facial validity of the ordinance at issue. See State v. Jean, 98 Ariz. 375, 376, 405 P.2d 808, 809 (1965); State v. Watson, 198 Ariz. 48, ¶ 5, 6 P.3d 752, ¶ 5 (App.2000). Our jurisdiction does not extend to examining the application of the ordinance to an individual defendant. Watson. See also State v. McLamb, 188 Ariz. 1, 4, 932 P.2d 266, 269 (App.1996); State v. Bolan, 187 Ariz. 159, 160, 927 P.2d 819, 820 (App.1996).
¶ 4 Thus, we do not address Grezaffi's various contentions that Code § 11-19 is invalid as applied to her because she allegedly was operating a "private club" rather than a public restaurant when the City cited her; that the evidence presented at the City Court hearing was insufficient to support the magistrate's ruling, see State v. Jacobson, 121 Ariz. 65, 67, 588 P.2d 358, 360 (App.1978),overruled on other grounds, Levitz v. State, 126 Ariz. 203, 613 P.2d 1259 (1980); or that the City's ordinances that govern appointment and retention of city magistrates are invalid and deprived her of "a fair hearing from an impartial tribunal."3 And, although Grezaffi contends the ordinance violates a laundry list of various provisions in the United States and Arizona Constitutions, we address only those arguments that she at least minimally supports with "reasons" and authoritative "citations," as Rule 13(a)(6), Ariz. R. Civ.App. P., 17B A.R.S., requires.4See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) (); Brown v. United States Fidelity & Guar. Co., 194 Ariz. 85, ¶ 50, 977 P.2d 807, ¶ 50 (App.1998).
¶ 5 The constitutionality of an ordinance is a question of law subject to our de novo review. City of Tucson v. Rineer, 193 Ariz. 160, ¶ 12, 971 P.2d 207, ¶ 12 (App.1998). The party challenging the validity of an ordinance has the burden of overcoming a strong presumption that it is constitutional. Id. See also City of Phoenix v. Oglesby, 112 Ariz. 64, 65, 537 P.2d 934, 935 (1975). When a reasonable, even though debatable, basis supports an ordinance, we will uphold the ordinance unless it is clearly unconstitutional. See In re Brandon H., 195 Ariz. 387, ¶ 8, 988 P.2d 619, ¶ 8 (App.1999).
¶ 6 The ordinance at issue, Code § 11-19, was adopted in 1999 and is entitled, "Regulation of smoking in restaurants." With certain exceptions not applicable here, the ordinance provides that "[a]ll restaurants shall be smokefree." Code § 11-19(B). The ordinance defines "restaurant" as follows:
Restaurant means a facility regularly open for the primary purpose of serving food prepared for consumption, either on or off the premises, to customers for compensation, including those that also serve alcoholic beverages from an accessory bar. For purposes of this section only, a "restaurant" shall have annual gross revenue from the sale of food exceeding fifty (50) percent for every consecutive twelve (12) month period. Excluding, however, food such as appetizers, snacks, and other food products consumed in an accessory bar which the owner chooses to designate as a smoking area under this section.
Code § 11-19(A)(5).5 As noted in ¶ 2 above, the ordinance, inter alia, makes it "unlawful and a civil infraction for any person who owns, manages, operates, or otherwise controls a restaurant or facility regulated by [§ 11-19] to ... [a]llow[ ] a person to smoke in a restaurant except in an area designated as a smoking area" or to "[a]llow[ ] smoke from a designated smoking area to diffuse or drift into a non-smoking area." Code § 11-19(E)(2)(a), (b).
¶ 7 Grezaffi contends "the City's attempt to address the perceived health issue of smoking in food establishments by adoption of [§ 11-19] is ultra vires and therefore invalid," arguing the City lacks lawful authority to promulgate health rules or regulations. None of the statutes on which Grezaffi relies, A.R.S. §§ 36-132, 36-182, 36-184, supports her argument. Those statutes, which relate only to the powers, duties, and procedures of the Arizona Department of Health Services and county health departments, do not expressly or implicitly invalidate the ordinance here.
¶ 8 As a charter city, the City of Tucson "may exercise all powers granted by its charter, provided that the exercise is not inconsistent with either the constitution or general laws of the state." Rineer, 193 Ariz. 160, ¶ 2, 971 P.2d 207, ¶ 2. Pursuant to its charter, the mayor and city council are empowered to "make all regulations which may be necessary or expedient for the preservation of the health and the suppression of disease" and to "adopt and enforce by ordinance all such measures ... deem[ed] expedient or necessary for the promotion and protection of the health, comfort, safety, life, welfare and property of the inhabitants of the city." Tucson Charter, ch. VII, §§ 1(28), 1(32). Moreover, "safeguarding the general health, safety, and welfare of the community has long been considered a proper goal for municipal government." Watson, 198 Ariz. 48, ¶ 15, 6 P.3d 752, ¶ 15. Contrary to Grezaffi's contention, that the City authorizes Pima County health officers to enforce any Code provisions "pertaining to health, sanitation, food and food establishments," Code § 2-15, does not negate the City's authority to promulgate ordinances relating to public health and welfare. Accordingly, we reject Grezaffi's assertion that the City "has no power to regulate health matters."
¶ 9 In a related argument, Grezaffi contends the state "has appropriated the field [of regulating health matters] by establishing the State Department of Health and local boards of health" pursuant to §§ 36-132, 36-182, and 36-184. Although Grezaffi does not use the term "preemption," to the extent she argues that smoking in restaurants is exclusively a matter of statewide concern beyond the realm of municipal regulatory action, we reject the argument. Both a city and state may legislate on the same subject when it is of local concern. Rineer, 193 Ariz. 160, ¶ 3, 971 P.2d 207, ¶ 3. When the subject is also of statewide concern and the legislature clearly has appropriated the field by enacting a pertinent, governing statute, however, that statute controls and renders any contrary local ordinances invalid. Id. "Simply because the state and local legislation `touch upon a common element' does not mean that [an] ordinance is preempted." McLamb, 188 Ariz. at 4, 932 P.2d at 269, quoting Jacobson, 121 Ariz. at 70, 588 P.2d at 363. And, "[a]n ordinance will not be found invalid if a reasonable interpretation of it avoids conflict with a statute." McLamb, 188 Ariz. at 4, 932 P.2d at 269.
¶ 10 Regulation of smoking in restaurants is a matter of local concern. See Tri-Nel Management, Inc. v. Board of Health of Barnstable, 433 Mass. 217, 741 N.E.2d 37, 42-43 (2001) (). Although it may also be a matter of statewide concern, Grezaffi "has not shown, and we do not find, any legislative intent, either express or implied, to prohibit all local ... regulation" of smoking in restaurants. Rineer, 193 Ariz. 160, ¶ 9, 971 P.2d 207, ¶ 9.
¶ 11 We note that several statutes do address public health issues and expressly prohibit smoking in specified locations. See, e.g., A.R.S. §§ 36-601 (); 36-601.01 (prohibiting smoking in certain areas, including elevators, libraries, and various public waiting rooms); 36-601.02 (prohibiting smoking in state buildings); 36-798.03 (prohibiting tobacco products on school grounds or inside school buildings). But those statutes do not suggest a legislative intent to preempt municipal regulation of smoking in restaurants. Nor has Grezaffi established any conflict between Code § 11-19 and state law. On the subject of smoking in restaurants, neither the statutes she cites, §§ 36-132, 36-182, 36-184, nor any other state law "has so completely occupied the field that it [has] become[ ] the sole and...
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