Downtown Bar & Grill, LLC v. State

• Decision Date: 06 April 2012
• Docket Number: No. 104,761.,104,761.
• Citation: 273 P.3d 709
• Parties: DOWNTOWN BAR AND GRILL, LLC, Appellee, v. STATE of Kansas, Appellant.
• Court: Kansas Supreme Court

273 P.3d 709

DOWNTOWN BAR AND GRILL, LLC, Appellee,

v.STATE of Kansas, Appellant.

No. 104,761.

Supreme Court of Kansas.

April 6, 2012.

Syllabus by the Court

1. An appellate court reviews the grant or denial of injunctive relief for an abuse of discretion.

2. Under the abuse of discretion standard of review, an appellate court has unlimited review of legal conclusions upon which a district court judge's discretionary decision is based.

3. Among the factors a moving party must establish before obtaining a temporary injunction is a substantial likelihood of eventually prevailing on the merits.

4. An appellate court's review of a constitutional challenge to a statute is de novo.

5. Under the separation of powers doctrine, an appellate court presumes statutes are constitutional and resolves all doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature's apparent intent.

6. The first step of an equal protection analysis is to determine the nature of the legislative classifications and whether the classifications result in arguably indistinguishable classes of individuals being treated differently.

7. After determining the nature of the legislative classifications in an equal protection analysis, a court examines the rights which are affected by the classifications. The nature of the rights dictates the level of scrutiny to be applied.

8. The final step of the equal protection analysis requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable level of scrutiny.

9. Three levels of scrutiny may apply in equal protection claims: (1) the rational basis standard to determine whether a statutory classification bears some rational relationship to a valid legislative purpose; (2) the heightened or intermediate scrutiny standard to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny standard to determine whether a statutory classification is necessary to serve some compelling state interest.

10. Where a party attacks a statute as facially unconstitutional under the Equal Protection Clause of the United States Constitution for failing to satisfy the rational basis standard, the party must demonstrate that no set of circumstances exists that survives constitutional muster. In other words, the party has the burden to negative every conceivable rational basis which might support the classification.

11. Under the facts of this case, the district court erred in granting temporary injunctive relief.

Kimberly M.J. Lynch, assistant attorney general, argued the cause, and Tim J. Riemann, assistant attorney general, was on the brief and Kimberly M.J. Lynch was on the reply brief for appellant.

Michael W. Merriam, of Topeka, argued the cause and was on the brief for appellee.

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

The State appeals a trial court's temporary injunction. The injunction prevents the State from enforcing a statute that essentially exempts certain private liquor-serving clubs from a statewide prohibition against indoor smoking. Downtown Bar and Grill, LLC (Downtown Bar) is not one of those exempt clubs and obtained the injunction on equal protection grounds. We transferred the State's appeal from the Court of Appeals under K.S.A. 20–3018(c).

We reverse and remand to the trial court because Downtown Bar is unable to establish an element essential to issuance of a temporary injunction: a substantial likelihood of eventual success on the merits. See Steffes v. City of Lawrence, 284 Kan. 380, 394, 160 P.3d 843 (2007).

Facts

The material facts are not in dispute. In Kansas any organization serving alcohol by the drink must possess a liquor license. See K.S.A. 41–2601 et seq. The organization may be licensed as a drinking establishment, as a Class B club, or as another entity such as a Class A club under K.S.A. 41–2606. A simple drinking establishment is any “premise[ ] which may be open to the general public, where alcoholic liquor by the individual drink is sold.” K.S.A. 2010 Supp. 41–2601(i). But a Class B club is a “premise[ ] operated for profit by a corporation, partnership or individual, to which members of such club may resort for the consumption of food or alcoholic beverages and for entertainment.” K.S.A. 2010 Supp. 41–2601(f).

Downtown Bar is a Class B club in Tonganoxie that acquired its Class B club license on May 4, 2009. Previously it operated as simply a drinking establishment.

Approximately 1 year after Downtown Bar acquired its Class B license, the 2010 legislature enacted House Bill 2221, otherwise known as the Kansas Indoor Clean Air Act, L. 2010, ch. 8, secs. 2–8; K.S.A. 2010 Supp. 21–4009 et seq. Effective July 1, 2010, the Act generally prohibits smoking in public places and places of employment. K.S.A. 2010 Supp. 21–4010(a). But the Act exempts Class B clubs as long as the club (1) was so licensed as of January 1, 2009, and (2) notifies the Secretary of the Kansas Department of Health and Environment in writing, not later than 90 days after July 1, 2010, that it wishes to continue to allow smoking on its premises. The Act states in relevant part:

“(d) The provisions of this section shall not apply to:

...

“(8) a class A or class B club defined in K.S.A. 41–2601, and amendments thereto, which (A) held a license pursuant to K.S.A. 41–2606 et seq. , and amendments thereto, as of January 1, 2009; and (B) notifies the secretary of health and environment in writing, not later than 90 days after the effective date of this act, that it wishes to continue to allow smoking on its premises.” K.S.A. 2010 Supp. 21–4010(d)(8).

Because Downtown Bar was licensed simply as a drinking establishment on January 1, 2009—and not as a Class B club—it is ineligible for a smoking ban exemption under the Act.

The 2010 session was not the legislature's first effort to pass House Bill 2221 for enacting a statewide smoking ban. One year earlier, the 2009 legislature failed to pass this legislation, which included the January 1, 2009, “cut-off” or grandfathering date.

Downtown Bar brought this declaratory judgment action asking the trial court to declare that K.S.A. 2010 Supp. 21–4010(d)(8) and (9) violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and § 1 of the Kansas Constitution Bill of Rights and to accordingly issue temporary and permanent injunctive relief. It argued the statute differentiates—without a “rational basis connected to its legislative purpose”—between Class B clubs organized before January 2, 2009, and Class B clubs like itself that organized after January 1, 2009. The trial court agreed, holding that the cut-off date was arbitrary, which therefore meant it could not be rational. It issued a temporary injunction prohibiting the State's enforcement of the statute. The State appeals.

More facts will be added as necessary to the analysis.

Analysis

Standard of review

Downtown Bar correctly acknowledges that we ultimately review the granting or denial of an injunction under an abuse of discretion standard. Steffes, 284 Kan. 380, Syl. ¶ 6, 160 P.3d 843. And the parties correctly agree that five factors are necessary for issuing a temporary injunction: (1) a substantial likelihood of eventually prevailing on the merits; (2) a reasonable probability of suffering irreparable future injury; (3) the lack of obtaining an adequate remedy at law; (4) the threat of suffering injury outweighs whatever damage the proposed injunction may cause the opposing party; (5) and the impact of issuing the injunction will not be adverse to the public interest. 284 Kan. at 395, 160 P.3d 843.

The State argues the trial court erred in finding Downtown Bar had established the first factor: a substantial likelihood that Downtown Bar would eventually prevail on the merits. Reviewing this factor requires us to examine whether the Act may violate Downtown Bar's rights to equal protection under the law. Our review of this particular question is de novo. See Steffes, 284 Kan. at 388–89, 160 P.3d 843 (unlimited review of constitutional challenge to law); see also State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010) (unlimited review of legal conclusions upon which a district court judge's discretionary decision is based).

We acknowledge that the Fourteenth Amendment to the United States Constitution guarantees equal protection of the laws, and the Kansas Constitution Bill of Rights § 1 provides essentially the same protection. State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005). In reviewing whether K.S.A. 2010 Supp. 21–4010(d)(8) may violate Downtown Bar's equal protection rights and therefore be unconstitutional, we also consider that

“under the separation of powers doctrine, this court presumes statutes are constitutional and resolves all doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature's apparent intent.” Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 450, 264 P.3d 102 (2011) (citing State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 [2009] ). As a result, we have held that the burden on the party claiming unconstitutionality such as Downtown Bar is a “weighty” one. See Steffes, 284 Kan. at 388, 160 P.3d 843. Our analysis will not address the constitutionality of subsection (d)(9) because Downtown Bar has abandoned that argument in its brief. See Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (A point raised only incidentally in a party's brief but not argued in the brief is deemed abandoned.).

Discussion

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