Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence
| Decision Date | 10 December 2012 |
| Docket Number | C.A. No. 12-96-ML |
| Parties | NATIONAL ASSOCIATION OF TOBACCO OUTLETS, INC.; CIGAR ASSOCIATION OF AMERICA, INC.; LORILLARD TOBACCO COMPANY; R.J. REYNOLDS TOBACCO COMPANY; AMERICAN SNUFF COMPANY; PHILIP MORRIS USA INC.; U.S. SMOKELESS TOBACCO MANUFACTURING COMPANY LLC; U.S. SMOKELESS TOBACCO BRANDS INC.; JOHN MIDDLETON COMPANY, Plaintiffs, v. CITY OF PROVIDENCE, Rhode Island; PROVIDENCE BOARD OF LICENSES; PROVIDENCE POLICE DEPARTMENT; MICHAEL A. SOLOMON, Providence City Council President, in his official capacity; STEVEN M. PARE, Commissioner of Public Safety for the City of Providence, in his official capacity; ANGEL TAVERAS, Mayor of Providence, in his official capacity, Defendants. |
| Court | U.S. District Court — District of Rhode Island |
The plaintiffs in this case (the "Plaintiffs") are (1) the National Association of Tobacco Outlets, Inc. ("NATO"), a nationwide association of tobacco retailers, manufacturers and distributors; (2) the Cigar Association of America, Inc. ("CAA"), a nationwide association of cigar manufacturers, distributors and importers; and (3) seven tobacco manufacturers and distributors, including Lorillard Tobacco Company ("Lorillard"), R.J. Reynolds Tobacco Company ("RJRT"), American Snuff Company ("ASC"), PhilipMorris USA Inc. ("PM USA"), U.S. Smokeless Tobacco Manufacturing Company LLC ("USSTMC"), U.S. Smokeless Tobacco Brands, Inc. ("USSTB") and the John Middleton Company ("JMC").
The Plaintiffs seek a declaration that two new provisions1 added to Providence municipal ordinances are unconstitutional and they seek a permanent injunction against the City's enforcement of those provisions. Complaint 51-52 (Docket # 1). The case is before the Court on the Plaintiffs' joint motions for summary judgment, a permanent injunction, and a preliminary injunction (Docket # 32) and the City's cross motion for summary judgment. (Docket # 44). Although the Plaintiffs have styled their request for relief in the form of a motion for summary judgment, the Court understands that the parties are seeking a decision on the merits. The City has agreed to stay enforcement of the provisions at issue until after the Court has ruled on the parties' motions.
On January 5, 2012,2 the Providence City Council, motivated by concerns about smoking and health in the City of Providence, amended existing Sections 14-300 and 14-303 (the "Price Ordinance") and enacted Sections 14-308, 14-309, and 14-310 ().The Ordinances were designed, in part, to reduce tobacco consumption by persons under the age of eighteen.3 PSUF ¶¶ 2, 3.
According to the Complaint, the Plaintiffs (with the exception of Lorillard, which does not sell "flavored tobacco products") sell products and "advertise them and promote them in ways that would be prohibited by both ordinances." Complaint 2. Lorillard takes exception only to Section 14-303. Both Ordinances were to take effect on March 1, 2012; however, in light of the pending litigation, neither has been enforced thus far.
On February 13, 2012, the Plaintiffs filed a 56-page complaint (the "Complaint") against the City. (Docket # 1). The Plaintiffs asserted claims of violation of Plaintiffs' First Amendment rights (Counts I and VII)4 , Federal Law Preemption (Counts II and IX), Deprivation of Civil Rights pursuant to 42 U.S.C. § 1983 (Counts III and X), Violation of the Rhode Island Constitution (Counts IV and XI), Preemption by Rhode Island Law (Count V), Violation of the Rhode Island Open Meetings Act (Counts VI and XII), and Violation of Plaintiffs' Due Process Rights pursuant to the Fourteenth Amendment (Count VIII). Docket # 1. The Plaintiffs sought a declaration from the Court that the Ordinances were unconstitutional and preempted by Federal and state law and,therefore, of no force. Complaint 51. They also sought a temporary restraining order and preliminary injunction to enjoin the City from enforcing the Ordinances pending final resolution of this litigation, id. at 52, as well as attorney fees pursuant to 42 U.S.C. § 1988 and R.I. Gen. Laws § 42-46-8(d).
On February 17, 2 012, the parties filed a stipulation staying enforcement of the Ordinances until July 30, 2012. (Docket # 23). On the same day, the Providence City Council reenacted the Ordinances at a hearing for which forty-eight hours' notice had been given as required by the OMA. Pltfs.' Mem. 9. On February 21, 2012, the Court entered the parties' stipulation, Text Order 02/21/2012 (Docket # 23).
On March 15, 2012, the City filed an answer to the Complaint in which it generally denied that the Ordinances were unconstitutional or preempted, but acknowledged that the City Council "inadvertently committed a technical violation of the Open Meetings Act," when the Ordinances were passed. Answer at 3 ¶ 10. (Docket # 30). However, the City denied that the Ordinances were, as the Plaintiffs alleged, "null and void" as a result, because any such violation had been subsequently cured when the City Council passed the Ordinances, as amended, on or about February 17, 2012, and when they were signed by the Mayor on February 20, 2012. Id. at 3, ¶10.
On March 30, 2012, the Plaintiffs filed a joint motion for summary judgment and for a permanent injunction. (Docket # 32), together with the Declaration of Cecil R. Reynolds, Ph.D.("Reynolds"), (Docket # 33), a Statement of Undisputed Facts ("PSUF"), (Docket # 34), and a Memorandum in support of their motion, (Docket # 35). On April 16, 2012, the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, the Rhode Island Department of Health, the Tobacco Control Legal Consortium and various health care and/or health research organizations (together, the "amici") filed a joint motion for leave to file amicus briefs, (Docket # 37), which was granted by the Court. Text Order 06/14/2012. The parties also agreed by amended stipulation that enforcement of the Ordinances would be stayed until October 15, 2012, (Docket # 39).
On June 15, 2012, the City filed its response in Opposition to the Plaintiffs' motion, (Docket # 42), together with a cross motion for summary judgment, (Docket # 44), a Statement of Disputed Facts ("DSDF"), (Docket # 43), and a Statement of Undisputed Facts ("DSUF"), (Docket # 45).
The Plaintiffs filed a reply to the City's response on July 16, 2012, (Docket # 49), together with a response in opposition to the City's motion, (Docket # 50), a Statement of Disputed Facts ("PSDF"), (Docket # 51), and a further declaration by Reynolds, (Docket # 52). In reply, the City filed a memorandum on July 30, 2012, (Docket # 55).
On August 22, 2012, the Court held a hearing at which the parties and one of the amici were given an opportunity to argue their respective positions and address questions posed to them by the Court. The Court then took the motions under advisement. MinuteEntry 08/22/2012. Following the hearing, the Court entered a further stipulation by the parties that stayed enforcement of the Ordinances until the later of October 15, 2012 or fourteen days following the Court's ruling on the pending motions. Text Order 09/13/2012 (Docket # 56).
Summary judgment is appropriate only "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party." Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008) (citations omitted). "A fact is material if it has the potential of determining the outcome of the litigation." Id. (quoting Maymi v. Puerto Rico Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).
The party seeking summary judgment bears the burden of establishing the lack of a genuine issue of material fact. Merchants Ins. Co. of New Hampshire, Inc. v. U.S. Fidelity and Guar. Co., 143 F.3d 5, 7 (1st Cir. 1998). Once such requisite showing has been made, "the opposing party can then defeat the motion by showing that there is a genuine issue of material fact." Rivera-Colon v. Mills, 635 F.3d 9, 12 (1st Cir. 2011). "Summary judgment is not appropriate where 'the evidence on the record is sufficiently open-ended to permit a rational fact finder to resolvethe issue in favor of either side.'" Perez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d 19, 25 (1st Cir. 2011) (internal citation omitted). The Court, in considering a motion for summary judgment, "read[s] the record in the light most favorable to the non-moving party, drawing all reasonable inferences in its favor." Merchants Ins. Co. of New Hampshire, Inc. v. U.S. Fidelity and Guar. Co., 143 F.3d at 7 (citing Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997)).
The fact that cross motions for summary judgment have been filed "'neither dilutes nor distorts this standard of review.'" Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77 (1st Cir. 2009)(quoting Specialty Nat'l Ins. Co. v. OneBeacon Ins. Co., 486 F.3d 727, 732 (1st Cir. 2007)). Instead, "'[c]ross motions simply require [the court] to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.'" Scottsdale Ins. Co. v. Torres, 561 F.3d at 77 (quoting Littlefield v. Acadia Ins. Co., 392 F.3d 1, 6 (1st Cir. 2004)); Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997) ().
The parties' respective positions with regard to the two Ordinances at issue in this litigation are reflected in the labels they have...
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