Gasper v. Louisiana Stadium and Exposition Dist.

• Decision Date: 01 August 1978
• Docket Number: No. 76-3748,76-3748
• Citation: 577 F.2d 897
• Parties: 8 Envtl. L. Rep. 20,612 Kenneth O. GASPER et al., Plaintiffs-Appellants, v. LOUISIANA STADIUM AND EXPOSITION DISTRICT et al., Defendants-Appellees, American Lung Association of Louisiana, Intervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 897

577 F.2d 897

8 Envtl. L. Rep. 20,612

Kenneth O. GASPER et al., Plaintiffs-Appellants, v. LOUISIANA STADIUM AND EXPOSITION DISTRICT et al., Defendants-Appellees American Lung Association of Louisiana, Intervenor.

No. 76-3748.

United States Court of Appeals Fifth Circuit.

Aug. 1, 1978.

Jacob J. Meyer, Carl J. Schumacher, Jr., New Orleans, La., for plaintiffs-appellants.

Harry McCall, Jr., Sp. Counsel to the Atty. Gen., James P. Farwell, New Orleans, La., for La. Stadium & Expo. Dist.

William J. Guste, Jr., Atty. Gen., Dept. of Justice, State of La., Kendall L. Vick, Barbara S. Bruckner, Asst. Attys. Gen., New Orleans, La., for defendants-appellees.

J. Harrison Henderson, III, Charles D. Patten, III, New Orleans, La., amicus curiae for Amer. Lung Assn. of La.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before COLEMAN, AINSWORTH and VANCE, Circuit Judges.

PER CURIAM:

This was an action brought pursuant to the provisions of 42 U.S.C., § 1983 ¹ to enjoin the Louisiana Stadium and Exposition District from continuing to allow tobacco-smoking in the New Orleans Superdome during events staged therein. Pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure and without reaching or deciding the "state action" aspect of the case, the District Court dismissed the complaint for failure to state claims upon which relief could be granted, "in that nothing in the United States Constitution grants unto plaintiffs the rights they claim to have been violated", Gasper v. Louisiana Stadium and Exposition District, 418 F.Supp. 716 (E.D.La., 1976). We affirm.

The reported opinion clearly indicates that the District Court was well aware of the limitations applicable to dismissals under Rule 12(b)(6). The invitation to reverse on the ground that the Court did not adequately comprehend the function of a Rule 12(b)(6) dismissal is declined, see 418 F.Supp. at 717.

The plaintiffs prayed that those in charge of the Superdome and its operations should be enjoined "from in any way permitting smoking and the sale of tobacco products in the Superdome during the staging therein of public events".

What it all comes down to is that the plaintiffs claim a constitutional right to stop other individuals from smoking in the Superdome while a performance is in progress.

We assume that the Superdome authorities, if they saw fit, could prohibit smoking in the facility, or the City of New Orleans in the exercise of its police power could prohibit smoking in public stadiums, or the State of Louisiana could enact a similar statute of statewide application. No such rule, city ordinance, or state statute has been enacted.

We assume that Congress might prohibit the interstate transportation of cigarettes or otherwise restrict tobacco in interstate commerce. Congress has not seen fit to do so.

The plaintiffs would have us to fill this great void by elevating to constitutional dimensions their opposition to the presence of tobacco smoke at football games or like performances in public stadiums. Obviously, if one may constitutionally enforce opposition to smoking in one public place he may, as a constitutional right, have it imposed at another.

We are not unaware of what happened when, by express constitutional amendment and congressional enactment, an effort was made to prohibit alcohol for beverage purposes, something fully as physically harmful as tobacco smoke, if not more so.

Since we can see no constitutional basis for injecting the courts and their injunctive powers into this tobacco-smoke controversy, we are of the opinion that the District Court was quite correct in dismissing the complaint. The dismissal is

AFFIRMED.

AINSWORTH, Circuit Judge, dissenting:

I believe the district judge committed reversible error in granting the motion to dismiss the present suit on the basis of the barebone pleadings of plaintiffs, without granting a trial on the allegations of the complaint as amended. I would accordingly require a trial of the merits of the case and remand the matter with directions to the district judge to proceed expeditiously, receive evidence from the witnesses, and give full consideration to the issues involved. For that reason, I respectfully dissent from the majority per curiam opinion.

In this class action brought under the Civil Rights Act (42 U.S.C. § 1983), plaintiffs allege deprivation of their rights under the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution, in that the Louisiana state agency defendants in charge of the operation of the Superdome, an enclosed indoor stadium and public building in New Orleans, permit smoking therein during the staging of public events. Plaintiffs seek injunctive relief against the defendants on the allegations of their complaint, the key provisions of which read as follows:

"7.

"Plaintiffs are non-smokers. On the occasions when they attend events in the Superdome as paid invitees, they suffer great physical, mental and emotional distress, illness and discomfort which impairs their health, safety and ability to enjoy said events as a direct result of noxious, ill-smelling and harmful smoke and fumes generated, discharged and trapped in the air of the Superdome by those patrons who smoke cigarettes, and other tobacco substances.

"8.

"Notwithstanding requests from numerous patrons and medical authorities, the defendant has failed and refused to prohibit smoking in the Superdome, having knowledge that smoking interferes with the health, safety and ability of the plaintiffs and all non-smoking patrons to enjoy the events for which they paid the price of admission to witness in safety and free from unnecessary exposure to the serious health hazards created by smoking in the Superdome.

"9.

"The Surgeon General of the United States has determined, and scientific investigation has confirmed, that smoking is dangerous to the health of the smoker himself and the non-smoker who becomes subject to the inhalation of the sidestream and mainstream smoke emitted by burning tobacco.

"10.

"The defendant's wanton disregard for the health, safety and comfort of plaintiffs and all other non-smoking patrons of the Superdome has caused, and will continue to cause, plaintiffs to be unwilling, passive and involuntary smokers by proximity, thereby subjecting them to loss of health, comfort and ability to enjoy the events at the Superdome for which they paid the price of admission to witness.

"11.

"Smoking in the Superdome interferes with plaintiffs' rights of self-preservation; to be let alone, to be free from injury; and to be free from exposure to and involuntary consumption of hazardous smoke fumes, all of which rights privileges and immunities are guaranteed and secured to them by the Fifth, Ninth and Fourteenth Amendments to the United States Constitution."

In the request for oral argument in their brief to this Court, plaintiffs state:

"The Constitutional issues raised in this appeal are of the highest magnitude. They concern the most basic and fundamental rights that any government can confer upon the governed the right to life itself, the right of bodily integrity; the...