Curious Theater v. Dept. of Public Health, No. 06CA2260.

• Decision Date: 20 March 2008
• Docket Number: No. 06CA2260.
• Parties: CURIOUS THEATER COMPANY, a Colorado non-profit company; Paragon Theatre, a Colorado non-profit company; and Theatre 13, Inc., a Colorado non-profit company, Plaintiffs-Appellants, v. COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT; and Dennis E. Ellis, Executive Director, Defendants-Appellees.
• Court: Colorado Court of Appeals

216 P.3d 71

CURIOUS THEATER COMPANY, a Colorado non-profit company; Paragon Theatre, a Colorado non-profit company; and Theatre 13, Inc., a Colorado non-profit company, Plaintiffs-Appellants, v. COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT; and Dennis E. Ellis, Executive Director, Defendants-Appellees.

No. 06CA2260.

Colorado Court of Appeals, Div. II.

March 20, 2008.

Holland & Hart, LLP, A. Bruce Jones, Daniel R. Pabon, Denver, Colorado, for Plaintiffs-Appellants.

John W. Suthers, Attorney General, Robert C. Douglas, Jr., First Assistant Attorney General, Alisa Campbell, Assistant Attorney General, Lisa Brenner Freimann, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.

Levine, Sullivan, Koch, & Schulz, LLP, Steven D. Zansberg, Denver, Colorado; Davis, Wright, Tremaine, L.L.P., Bruce E.H. Johnson, John Sherman, Seattle, Washington, for Amicus Curiae Theatre Communications Group.

Opinion by Judge BERNARD.

Plaintiffs, Curious Theatre Company, Paragon Theatre, and Theatre 13, Inc. (collectively, the Theaters), appeal the judgment denying their request for a preliminary injunction and a declaratory judgment against the enforcement of the Colorado Clean Indoor Air Act, sections 25-14-201 to -209, C.R.S.2007 (the Smoking Ban), by the Colorado Department of Health and Environment and its Executive Director, Dennis Ellis (collectively, the Health Department), as applied to theatrical productions.

This case involves the question whether the Smoking Ban violates the Theaters' rights under the First Amendment and Colorado Constitution article II, section 10 because it precludes conduct—namely, smoking—that may be presented as part of certain theatrical productions. Because we conclude the Theaters' constitutional rights are not violated by the application of the Smoking Ban to them, we affirm.

I. Background

The Smoking Ban became effective on July 1, 2006. § 25-14-201, C.R.S.2007; Ch. 22, sec. 9, 2006 Colo. Sess. Laws 63. It prohibits smoking "in any indoor area, including ... [a]ny place of employment that is not exempted ... [and] [t]heaters." § 25-14-204(1)(k)(I), (x), C.R.S.2007. "Place of employment" refers to "any indoor area or portion thereof under the control of an employer in which employees of the employer perform services for, or on behalf of, the employer." § 25-14-203(12), C.R.S.2007.

The Smoking Ban covers all smoking, not just cigarette smoking. § 25-14-203(16), C.R.S.2007 ("`Smoking' means the burning of a lighted cigarette, cigar, pipe, or any other matter or substance that contains tobacco."); § 25-14-203(17), C.R.S.2007 ("`Tobacco' also includes cloves and any other plant matter or product that is packaged for smoking.").

The facial constitutionality of the Smoking Ban was unsuccessfully challenged on due process and equal protection grounds in Coalition for Equal Rights, Inc. v. Ritter, 517 F.3d 1195, 1197 (10th Cir.2008).

In October 2006, the Theaters sought a judgment declaring the Smoking Ban unconstitutional under both the federal and state constitutions and prohibiting its enforcement because they wished to present plays in which characters smoked. The trial court denied their request after the Theaters set forth their evidence, but before the Health Department presented any evidence. The court ruled that "smoking, standing alone, including in the theatrical context" did not amount to "expressive conduct such that First Amendment guarantees, and protections could be extended to it" and that the Theaters had not established that they had "a reasonable likelihood of success on the merits at trial."

II. Smoking Bans

Over the past several decades, there has been increasing evidence of the dangers of cigarette smoking and second-hand smoke. See generally NYC C.L.A.S.H., Inc. v. City of New York, 315 F.Supp.2d 461, 476 (S.D.N.Y.2004)(discussion of research detailing the harmful effects of smoking and subsequent regulations). We recognize that the legislature created the Smoking Ban to

protect nonsmokers from involuntary exposure to environmental tobacco smoke in most indoor areas open to the public, public meetings, food service establishments, and places of employment. The general assembly further finds and determines that a balance should be struck between the health concerns of nonconsumers of tobacco products and the need to minimize unwarranted governmental intrusion into, and regulation of, private spheres of conduct and choice with respect to the use or nonuse of tobacco products in certain designated public areas and in private places.... [T]he purpose of this [Smoking Ban] ... is to preserve and improve the health, comfort, and environment of the people of this state by limiting exposure to tobacco smoke.

§ 25-14-202, C.R.S.2007.

In the 1970s, states, such as Arizona and Minnesota, enacted the first state-wide smoking bans. See Jordan Raphael, The Calabasas Smoking Ban: A Local Ordinance Points the Way for the Future of Environmental Tobacco Smoke Regulation, 80 S. Cal. L.Rev. 393, 399 (Jan.2007). As the anti-smoking movement advanced, local ordinances predominated. Id. at 400. Such statutes and ordinances typically prohibit smoking indoors, but they may also forbid smoking in a few specified outdoor areas. See Calabasas, Cal., Mun.Code §§ 8.12.010 to 8.12.080 (2007).

More recently, a large number of states have enacted statewide smoking bans, relying on their traditional police power to provide for the public health and safety as the authority to enact such legislation. See In re Moyer, 35 Colo. 159, 222, 85 P. 190, 211 (1904) (the legislature has a duty to protect the state's citizens).

The United States Supreme Court has recognized that the power to pass such laws

extends ... to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State; ... and persons and property are subject to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State. Of the perfect right of the legislature to do this no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.

Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 62, 21 L.Ed. 394 (1872) (quoting Thorpe v. Rutland & Burlington R.R. Co., 27 Vt. 140, 149 (1854)); see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991).

Smoking bans have been uniformly upheld against a variety of challenges to their validity. See Elliott v. Bd. of Weld County Comm'rs, 796 P.2d 71 (Colo.App.1990) (due process, equal protection); see also City of Tucson v. Grezaffi, 200 Ariz. 130, 23 P.3d 675 (Ariz.Ct.App.2001)(Fifth Amendment taking, prohibition on special legislation, freedom of association, equal protection, government's ability to regulate health matters); Lexington Fayette County Food & Beverage Ass'n v. Lexington-Fayette Urban County Gov't, 131 S.W.3d 745 (Ky.2004)(impermissible government interference with business, vagueness); Traditions Tavern v. City of Columbus, 171 Ohio App.3d 383, 870 N.E.2d 1197 (2006)(vagueness, substantive due process, equal protection); see also Thiel v. Nelson, 422 F.Supp.2d 1024, 1029-30 (W.D.Wis. 2006)(due process, equal protection challenges to smoking ban in prisons)(collecting cases).

Currently, more than half the states and the District of Columbia have some form of smoking ban. See Ariz.Rev.Stat. § 36-601.01 (2007); Cal. Lab.Code § 6404.5 (2007); §§ 25-14-201 to-209, C.R.S.2007; Conn. Gen.Stat. § 19a-342 (2007); Del.Code Ann. tit. 16, §§ 2901 to 2908 (2007); D.C.Code §§ 7-1701 to -1710 (2007); Fla. Stat. §§ 386.201 to .2125 (2007); Haw.Rev.Stat. §§ 328J-1 to -17 (2007); Idaho Code Ann. §§ 39-5501 to -5511 (2007); 410 Ill. Comp. Stat. 82/1 to /75 (2007); La.Rev.Stat. Ann. §§ 40:1300.251 to .263 (2007); Me.Rev.Stat. Ann. tit. 22, §§ 1541 to 1548 (2007); Md.Code Ann., Health-Gen. §§ 24-501 to -511 (2007); Mass. Gen. Laws ch. 270, § 22 (2007); Minn. Stat. § 144.414 (2007); Mont.Code Ann. §§ 50-40-101 to -115 (2007); Nev.Rev.Stat. §§ 202.2485 to .2492 (2007); N.H.Rev.Stat. Ann. §§ 155:64 to :77 (2007); N.J. Stat. Ann. §§ 26:3D-55 to -64 (2007); N.M. Stat. §§ 24-16-1 to -4 (as amended by H.B. 283, effective June 15, 2007); N.Y. Pub. Health Law § 1399-n to -x (2007); N.D. Cent.Code §§ 23-12-09 to -11 (2007); Ohio Rev.Code Ann. §§ 3794.01 to .09 (2007); Or.Rev.Stat. §§ 433.835 to .875 (2007); R.I. Gen. Laws § 23-20.10-1 to -16 (2007); S.D. Codified Laws § 22-36-2 (2007); Utah Code Ann. §§ 26-38-1 to -9 (2007); Vt. Stat. Ann. tit. 18, §§ 1741 to 1746 (2007); Wash. Rev.Code §§ 70.160.010 to .100 (2007).

Smoking bans are not exclusive to the United States, but are becoming more prevalent throughout the world. See Jessica Niezgoda, Note, Kicking Ash(trays): Smoking Bans in Public Workplaces, Bars, and Restaurants Current Laws, Constitutional Challenges, and Proposed Federal Regulation, 33 J. Legis. 99, 100-01 (2006); Eric A. Feldman, The Culture of Legal Change: A Case Study of Tobacco Control in Twenty-First Century Japan, 27 Mich. J. Int'l L. 743, 784-86 (2006).

Nevertheless, some jurisdictions have included exceptions for theatrical performances. See Ariz.Rev.Stat. § 36-601.01(B)(7) (2007) (ban not applicable to "[a] theatrical performance upon a stage or in the course of a film or television production if the smoking is part of the performance or production"); Cal. Lab.Code § 6404.5(d)(9) (2007) (ban does not apply to "[t]heatrical production sites, if smoking is an integral part of the story in the theatrical production"); D.C.Code § 7-1708(3) (2007) (does not prohibit smoking "[u]pon the stage by performers during the course of any theatrical performance if smoking is part of the theatrical production"); Idaho Code Ann. § 39-5503(1)(e) (2007) (ban does not apply to "[t]heatrical production sites, if smoking is an integral part of the story in the theatrical...