In re Appeal of Civil Penalty Don Liebes, COA10–979.

• Citation: 713 S.E.2d 546
• Decision Date: 19 July 2011
• Docket Number: No. COA10–979.,COA10–979.
• Parties: In re Appeal of Civil Penalty Don LIEBES, Gate City Billiards Country Club, Appellant,v.GUILFORD COUNTY DEPARTMENT OF PUBLIC HEALTH, Appellee.
• Court: Court of Appeal of North Carolina (US)

713 S.E.2d 546

In re Appeal of Civil Penalty Don LIEBES, Gate City Billiards Country Club, Appellant,

v.GUILFORD COUNTY DEPARTMENT OF PUBLIC HEALTH, Appellee.

No. COA10–979.

Court of Appeals of North Carolina.

July 19, 2011.

OPINION TEXT STARTS HERE

Appeal by Gate City from order entered 2 August 2010 by Judge Jan H. Samet in Guilford County District Court. Heard in the Court of Appeals 8 February 2011.

Smith, James, Rowlett & Cohen, LLP, Greensboro, by Seth R. Cohen and J. David James, for Appellant.

Guilford County Attorney J. Mark Payne, for Appellee.

BEASLEY, Judge.

Don Liebes, Gate City Billiards Country Club (Gate City) appeals a trial court order upholding two civil penalties for allowing smoking in its establishment and contends N.C. Gen.Stat. § 130A–496 (Smoking Ban or Act) unconstitutionally limits its definition of “private club” to nonprofit corporations. Specifically, Gate City argues that the statutory scheme exempting nonprofit private clubs but including for-profit private clubs within the ambit of the Smoking Ban violates its equal protection rights. Because there exists a rational basis for the legislature's differential treatment of for-profit and nonprofit private clubs, we affirm the order.

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Gate City Billiards Country Club (Gate City) is a commercial establishment that sells food and alcoholic beverages and is defined as a “private club” for retail permitting purposes under Chapter 18B of the North Carolina General Statutes, “Regulation of Alcoholic Beverages” (ABC Statute). See N.C. Gen.Stat. § 18B–1000(5) (2009). Gate City has billiard tables, which, according to its owner, Don Liebes, are the chief attraction for its clientele. Prior to the Smoking Ban, Gate City offered a smoking section to its patrons.

On 2 January 2010, “An Act to Prohibit Smoking in Certain Public Places and Certain Places of Employment” became effective.¹ Section 130A–496 thereunder prohibits smoking in restaurants and bars but exempts from its scope any “private club,” ² see N.C. Gen.Stat. § 130A–496(a), (b)(3) (2011), which the Act defines as

[a] country club or an organization that maintains selective members, is operated by the membership, does not provide food or lodging for pay to anyone who is not a member or a member's guest, and is either incorporated as a nonprofit corporation in accordance with Chapter 55A of the General Statutes or is exempt from federal income tax under the Internal Revenue Code as defined in G.S. 105–130.2(1). For the purposes of this Article, private club includes country club.N.C. Gen.Stat. § 130A–492(11) (2009). Because Gate City operates for a profit and is not a federally tax-exempt organization, it cannot claim private club status for purposes of this Smoking Ban exemption but nevertheless continued to allow smoking in its establishment.

By letter dated 3 March 2010, the Guilford County Department of Public Health (County) issued Liebes a $200 administrative penalty for Gate City's third Smoking Ban violation. Liebes received a fourth notice of violation dated 11 March 2010 ³ and another $200 fine. Gate City appealed the penalties to the Guilford County Board of Health (Board), which held public hearings and issued two “Order[s] Upholding Civil Penalty” on 23 April and 2 June 2010, respectively. Gate City appealed both decisions to the district court pursuant to N.C. Gen.Stat. § 130A–24(d) and alleged that the Smoking Ban's private club exemption-which does not include for-profit businesses that at the same time qualify as private clubs under the ABC Statute-is not rationally related to a legitimate state interest. Contending that this aspect of the Act violates equal protection both facially and as applied, Gate City sought reversal of the Board's orders and the issuance of a permanent injunction barring the County from enforcing N.C. Gen.Stat. § 130A–496 against Liebes and Gate City.

The district court consolidated the matters for hearing on 23 July 2010, and issued an order upholding the Board's decisions to uphold the civil penalties issued against Gate City. From this order, Gate City appeals, arguing that the Smoking Ban violates its “right to equal protection of the law under the United States and North Carolina Constitutions in that there is no rational basis for permitting smoking in nonprofit private clubs while prohibiting smoking in for-profit private clubs.” We disagree.

“The Equal Protection Clause of Article I, Section 19 of the North Carolina Constitution and the Equal Protection Clause of Section 1 of the Fourteenth Amendment to the United States Constitution forbid North Carolina from denying any person the equal protection of the laws,” and require that “all persons similarly situated be treated alike.”

State v. Fowler, 197 N.C.App. 1, 26, 676 S.E.2d 523, 543–44 (2009) (internal citations omitted); see also Richardson v. N.C. Dept. of Correction, 345 N.C. 128, 134, 478 S.E.2d 501, 505 (1996) (“Our courts use the same test as federal courts in evaluating the constitutionality of challenged classifications under an equal protection analysis.”). The Equal Protection Clauses function to restrain our state from engaging in activities “that either create classifications of persons or interfere with a legally recognized right.” Blankenship v. Bartlett, 363 N.C. 518, 521, 681 S.E.2d 759, 762 (2009). Upon the challenge of a statute as violating equal protection, our courts must “first determine which of several tiers of scrutiny should be utilized” and then whether the statute “meets the relevant standard of review.” Department of Transp. v. Rowe, 353 N.C. 671, 675, 549 S.E.2d 203, 207 (2001). Where “[t]he upper tier of equal protection analysis requiring strict scrutiny of a governmental classification applies only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class,” we apply the lower tier or rational basis test if the statute neither classifies persons based on suspect characteristics nor impinges on the exercise of a fundamental right. White v. Pate, 308 N.C. 759, 766–67, 304 S.E.2d 199, 204 (1983).

Neither Liebes nor his Gate City establishment, nor his patrons, comprise a suspect class. Moreover, smoking is not a fundamental right. See Craig v. Buncombe Co. Bd. of Education, 80 N.C.App. 683, 685, 343 S.E.2d 222, 223 (1986) (“The right to smoke in public places is not a protected right.”); see also Roark & Hardee LP v. City of Austin, 394 F.Supp.2d 911, 918 (W.D.Tex.2005) (“Of course it is clear that there is no constitutional right to smoke in a public place.”); Batte–Holmgren v. Comm'r of Pub. Health, 281 Conn. 277, 914 A.2d 996 (2007) (prohibition against smoking in restaurants and other public places does not implicate a fundamental right). Nor do proprietors have a protected right to permit smoking by their patrons, regardless of whether the establishment is public or private. See, e.g., Coal. for Equal Rights, Inc. v. Owens, 458 F.Supp.2d 1251, 1263 (D.Colo.2006) (right of bar owners to allow smoking in their facilities is not fundamental), aff'd, 517 F.3d 1195 (10th Cir.2008); Players, Inc. v. City of New York, 371 F.Supp.2d 522, 542 (S.D.N.Y.2005) (upholding smoking ban against private social club's equal protection challenge, noting limitations on smoking do not infringe fundamental constitutional rights); Am. Legion Post # 149 v. Wash. State Dep't of Health, 164 Wash.2d 570, 192 P.3d 306, 322 (2008) (“Because there is not a fundamental right to smoke, there is no privacy interest in smoking in a private facility.”); Deer Park Inn v. Ohio Dep't of Health, 185 Ohio App.3d 524, 924 N.E.2d 898, 904 (2009) (“The right to smoke is not a fundamental right, nor is the right to allow smoking in a public place of employment on private property.”). Thus, it is clear, as agreed by the parties, that the rational basis test applies here.

The pertinent inquiry under rational basis scrutiny is whether the “distinctions which are drawn by a challenged statute or action bear some rational relationship to a conceivable legitimate governmental interest.” Texfi Industries v. City of Fayetteville, 301 N.C. 1, 11, 269 S.E.2d 142, 149 (1980). If the challenging party cannot prove that the statute bears no rational relationship to any legitimate government interest, the statute is valid. Fowler, 197 N.C.App. at 26, 676 S.E.2d at 544. “In assessing whether there is a legitimate government interest, ‘[i]t is not necessary for courts to determine the actual goal or purpose of the government action at issue; instead, any conceivable legitimate purpose is sufficient.’ ” Standley v. Town of Woodfin, 362 N.C. 328, 332, 661 S.E.2d 728, 731 (2008) (citation omitted). In fact,

[r]ational basis review is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.

Rhyne v. K–Mart Corp., 358 N.C. 160, 180–81, 594 S.E.2d 1, 15 (2004) (citation omitted). “With regard to the contention that the legislation does not bear a rational relationship to the ends sought, it has been held that the relationship need not be a perfect one....” State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 336 N.C. 657, 681–82, 446 S.E.2d 332, 346 (1994). Moreover, the governmental classification enjoys a presumption of validity such that the challenging party “has a tremendous burden in showing that the questioned legislation is unconstitutional,” as this lower tier of scrutiny is “so deferential” that “even if the government's actual purpose in creating classifications is not rational, a court can uphold the regulation if the court can envision some rational basis for the...