Flamingo Paradise Gaming, LLC v. Chanos

• Decision Date: 24 September 2009
• Docket Number: No. 49223.,49223.
• Citation: 217 P.3d 546
• Parties: FLAMINGO PARADISE GAMING, LLC, A Nevada Limited Liability Company d/b/a Terrible's Hotel and Casino; Higco, Inc., A Nevada Corporation d/b/a Three Angry Wives Pub; Market Gaming, Inc., A Nevada Corporation; Cardivan Company, A Nevada Corporation; E-T-T, Inc., A Nevada Corporation; and Nevada Tavern Owners Association, Appellants, v. George CHANOS, Attorney General of the State of Nevada; David Roger, Clark County District Attorney; Bill Young, Sheriff of Las Vegas Metropolitan Police Department; Bradford Jerbic, City Attorney for the City of Las Vegas; Karen Coyne, Chief City Marshal for the City of Las Vegas; Richard D. Perkins, Police Chief of the City of Henderson; Shauna Hughes, City Attorney for the City of Henderson; Joseph K. Forti, Police Chief of the City of North Las Vegas; Carie A. Torrence, City Attorney for the City of North Las Vegas; Dr. Lawrence Sands, Chief Health Officer for the Southern Nevada Health District; and Nevada Resort Association, A Nonprofit Cooperative Association, Respondents. George Chanos, Cross-Appellant, v. Flamingo Paradise Gaming, LLC, A Nevada Limited Liability Company d/b/a Terrible's Hotel and Casino; Higco, Inc., A Nevada Corporation d/b/a Three Angry Wives Pub; Market Gaming, Inc., A Nevada Corporation; Cardivan Company, A Nevada Corporation; E-T-T, Inc., A Nevada Corporation; and Nevada Tavern Owners Association, Cross-Respondents.
• Court: Nevada Supreme Court

217 P.3d 546

FLAMINGO PARADISE GAMING, LLC, A Nevada Limited Liability Company d/b/a Terrible's Hotel and Casino; Higco, Inc., A Nevada Corporation d/b/a Three Angry Wives Pub; Market Gaming, Inc., A Nevada Corporation; Cardivan Company, A Nevada Corporation; E-T-T, Inc., A Nevada Corporation; and Nevada Tavern Owners Association, Appellants, v. George CHANOS, Attorney General of the State of Nevada; David Roger, Clark County District Attorney; Bill Young, Sheriff of Las Vegas Metropolitan Police Department; Bradford Jerbic, City Attorney for the City of Las Vegas; Karen Coyne, Chief City Marshal for the City of Las Vegas; Richard D. Perkins, Police Chief of the City of Henderson; Shauna Hughes, City Attorney for the City of Henderson; Joseph K. Forti, Police Chief of the City of North Las Vegas; Carie A. Torrence, City Attorney for the City of North Las Vegas; Dr. Lawrence Sands, Chief Health Officer for the Southern Nevada Health District; and Nevada Resort Association, A Nonprofit Cooperative Association, Respondents.

George Chanos, Cross-Appellant, v. Flamingo Paradise Gaming, LLC, A Nevada Limited Liability Company d/b/a Terrible's Hotel and Casino; Higco, Inc., A Nevada Corporation d/b/a Three Angry Wives Pub; Market Gaming, Inc., A Nevada Corporation; Cardivan Company, A Nevada Corporation; E-T-T, Inc., A Nevada Corporation; and Nevada Tavern Owners Association, Cross-Respondents.

No. 49223.

Supreme Court of Nevada.

September 24, 2009.

Jones Vargas and Bradley Scott Schrager, Kirk B. Lenhard, and Kathleen L. Fellows, Las Vegas, for Appellants/Cross-Respondents Flamingo Paradise Gaming, LLC, Higco, Inc., Market Gaming, Inc., Cardivan Company, and E-T-T, Inc.

Kummer Kaempfer Bonner Renshaw & Ferrario and Mark E. Ferrario and Tami D. Cowden, Las Vegas, for Appellant Nevada Tavern Owners Association.

Catherine Cortez Masto, Attorney General, Christine M. Guerci-Nyhus, Chief Deputy Attorney General, and Nancy D. Savage, Senior Deputy Attorney General, Carson City, for Respondent/Cross-Appellant Chanos.

David J. Roger, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark County, for Respondents Roger and Young.

Bradford R. Jerbic, City Attorney, and Philip R. Byrnes, Deputy City Attorney, Las Vegas, for Respondents Jerbic and Coyne.

Shauna M. Hughes, City Attorney, and David W. Mincavage, Assistant City Attorney, Henderson, for Respondents Perkins and Hughes.

Carie A. Torrence, City Attorney, and Jeffrey F. Barr, Deputy City Attorney, North Las Vegas, for Respondents Forti and Torrence.

Stephen F. Smith, Las Vegas, for Respondent Sands.

Brownstein Hyatt Farber Schreck, LLP, and Todd L. Bice and Nathan T.H. Lloyd, Las Vegas, for Respondent Nevada Resort Association.

Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Amicus Curiae American Cancer Society.

Before the Court En Banc.¹

OPINION

By the Court, HARDESTY, C.J.

This appeal involves a facial challenge to the constitutionality of Nevada's Clean Indoor Air Act (NCIAA), which was passed as a ballot measure in 2006 and codified in NRS 202.2483. The NCIAA prohibits smoking in schools and "indoor places of employment" but provides exceptions for gaming areas in casinos, stand-alone bars, and strip clubs. In an action for injunctive and declaratory relief, appellants challenged the constitutional validity of the statute. The district court ruled that the statute was unconstitutionally vague for criminal enforcement purposes but not for civil enforcement purposes, and as a result, it severed from the statute the portion permitting the imposition of criminal penalties. In reaching this conclusion, the district court found that several terms within the statute were vague and the statute lacked a criminal intent requirement necessary to provide sufficient guidance for criminal enforcement of the statute. But the district court also found that the statute was not too vague for civil enforcement based on its conclusion that the test for constitutional vagueness is less strict for civil enforcement than criminal enforcement.

We conclude that the district court correctly ruled that under a facial challenge the statute is constitutional for civil enforcement but unconstitutionally vague for criminal enforcement. A statute containing a criminal penalty is facially vague when vagueness permeates the text of the statute, while a statute that only involves civil penalties is only facially vague if it is void in all its applications. As vagueness permeates the text of the NCIAA, it is unconstitutionally vague for criminal enforcement. We further conclude that the district court properly severed the criminal enforcement provision from the statute because the statute, after severance, can be legally enforced and it was the intent of the proponents of the statute that the act remain in effect if a portion was severed. A review of the NCIAA, after severance, indicates that the statute survives a facial vagueness challenge, as it is not vague in all its applications. While we recognize that the NCIAA contains numerous defects that may potentially be subject to as-applied challenges, here, the civil enforcement of the statute does not violate constitutional due process rights for vagueness under the minimal requirements for surviving a facial challenge. Finally, we conclude that the statute does not violate equal protection, nor does it effect an unconstitutional government taking of private property. Accordingly, we affirm the district court's order upholding the civil enforcement of the statute and severing the statute's criminal enforcement provision as unconstitutional.

FACTS AND PROCEDURAL HISTORY

The Nevada Clean Indoor Air Act was enacted by initiative in 2006 and codified in NRS 202.2483.² Its stated purpose was to protect families and children from the harmful effects of secondhand smoke. NRS 202.2483 (Reviser's note). The NCIAA prohibits smoking in most indoor public places,³ with exceptions for casino gaming areas, stand-alone bars and taverns, retail tobacco stores, strip clubs, and brothels.⁴ The statute imposes both criminal and civil penalties for violations.⁵

After the NCIAA passed, appellants, various business entities, brought suit in district court for declaratory and injunctive relief, arguing that the statute was unconstitutional on several grounds. The district court granted a temporary restraining order preventing the enforcement of the statute and set a hearing date for a preliminary injunction. Based on case authority suggesting that a less-strict test should be applied to civil statutes, the district court determined that it should properly review the NCIAA separately as a criminal statute and then as a civil statute. The court concluded that appellants were likely to succeed in demonstrating that the criminal portion of the statute was unconstitutional, but not the civil portion of the statute. Therefore, the district court granted a partial preliminary injunction.

The parties then filed cross-motions for summary judgment, with all parties acknowledging that the issues presented concerned questions of law because only a facial challenge to the statute was asserted. The district court held a hearing on the summary judgment motions, which was in effect a continuation of the hearing for a preliminary injunction. At the conclusion of the hearing, the district court entered an order that found the criminal penalty portion of the statute unconstitutionally vague, and the court ordered that portion of the statute severed. The district court upheld, as constitutional, the remainder of the statute.

This appeal and cross-appeal followed. Appellants challenge the portion of the district court's order that severed the criminal penalties and declared the statute constitutional as a civil statute, arguing that the entire statute is unconstitutional. Cross-appellant George Chanos challenges the district court's determination that the criminal portion of the statute was unconstitutionally vague. An amicus curiae brief in support of respondents' position was filed by the American Cancer Society.

DISCUSSION

Standard of review

The determination of whether a statute is constitutional is a question of law, which this court reviews de novo. Silvar v. Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006). "Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional." Id. The court must interpret a statute in a reasonable manner, that is, "[t]he words of the statute should be construed in light of the policy and spirit of the law, and the interpretation made should avoid absurd results." Desert Valley Water Co. v. State, Engineer, 104 Nev. 718, 720, 766 P.2d 886, 886-87 (1988). In reviewing a statute, it "should be given [its] plain meaning and must be construed as a whole and not be read in a way that would render words or phrases superfluous or make a provision nugatory." Mangarella v. State, 117 Nev. 130, 133, 17 P.3d 989, 991 (2001) (internal quotation omitted).

Appellants challenge the constitutionality of the statute on three grounds: vagueness, equal protection, and governmental takings. First, we address appellants' argument that the NCIAA violates due process rights because it is unconstitutionally vague. To analyze appellants' vagueness challenge, we must initially determine the proper framework for reviewing a facial vagueness challenge, and then we apply the framework to the present case. In doing so, we address cross-appellant Chanos's contention regarding the constitutionality of the criminal enforcement of the NCIAA, whether the district court properly severed the criminal enforcement provisions, and whether the statute withstands a facial vagueness challenge after severance. Second, we examine appellants' contention that the statute violates equal protection and is therefore unconstitutional. Finally, we consider appellant Nevada Tavern Owners...