Roark & Hardee L.P. v. City of Austin

Citation394 F.Supp.2d 911
Decision Date18 October 2005
Docket NumberNo. A-05-CA-837-SS.,A-05-CA-837-SS.
PartiesROARK & HARDEE L.P. d/b/a the Warehouse Saloon and Billiards; Bill Hardee; 219 L.P. d/b/a 219 West; Paul Silver; Dei Gratia, Inc. d/b/a the Elysium; John Wickham; Pub Draught, Inc. d/b/a Lovejoys Tap Room and Brewery; Joseph (Chip) Tait; Beerland; Randall Stockton; Tennia B. Brown d/b/a Horseshoe Lounge; GMC Investment, Inc. d/b/a Ego's; Canary Roost, Inc; Canary Hut, Inc; Gail E. Johnston; Sheena Semmler; Keep Austin Free Pac; Tony Sirgo; Edward Check; RPM Dining, Ltd. d/b/a the Yellow Rose; and Mike Persinger, Plaintiffs, v. CITY OF AUSTIN, Defendant.
CourtU.S. District Court — Western District of Texas

Marc A. Levin, Potts & Reilly, L.L.P., and Brian Walter Bishop, Gray & Becker, P.C., Austin, TX, for Plaintiffs.

Lynn E. Carter, City of Austin Law Department, Austin, TX, for Defendant.

ORDER

SPARKS, District Judge.

BE IT REMEMBERED on the 11th day of October 2005, the Court called the above-styled cause for a hearing on Plaintiff's Motion for Preliminary Injunction, which was filed on September 16, 2005, before it was removed to this Court on September 26, 2005. At the close of the hearing, the Court granted the parties leave to file additional briefing or evidence regarding this motion. Having considered the motion, Defendant's response, the supplemental evidence and briefing filed by the parties, the arguments of counsel at the hearing, the relevant law, and the case file as a whole, the Court now enters the following opinion and orders.

Background

Plaintiffs filed this lawsuit in the 98th Judicial District of Travis County, Texas on September 16, 2005, seeking declaratory and injunctive relief. Defendant City of Austin ("City") removed the case to this Court on September 26, 2005.1 On October 3, 2005, this Court held a hearing on Plaintiffs' Request for a Temporary Restraining Order but issued no ruling, choosing instead to schedule an evidentiary hearing on the Preliminary Injunction for October 11, 2005. Plaintiffs seek to have this Court enjoin the City from enforcing Austin City Code Chapter 10-6, "Smoking in Public Places" (the "ordinance" or "smoking ordinance") until such time as the Court can rule on the merits of Plaintiffs' declaratory judgment action which seeks to invalidate the ordinance in its entirety. Pls.' Orig. Pet. Decl. J., TRO, & Inj. Relief [# 7].

The smoking ordinance challenged by Plaintiffs resulted from a ballot initiative passed on May 7, 2005. It is obvious from reading the ordinance that its simple purpose is to protect persons in public places and employees in their occupational environments from second-hand smoke. The City is in a unique defensive position in this case because the ordinance was written and passed by means of a voter initiative and not by the city council.2 The ordinance, which took effect on September 1, 2005, generally prohibits smoking in all enclosed public places in Austin including bars, restaurants, and workplaces, subject to a few very limited exceptions.3 Austin City Code Ch. 10-6.

Analysis

The Court is vested with full discretion to determine whether to grant a preliminary injunction and its scope. See Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754 (1944) ("An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determination of courts of equity."). For this Court to exercise its discretion and issue a preliminary injunction, Plaintiffs must prove: (1) a substantial likelihood of Plaintiffs' success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) the threatened injury to Plaintiffs outweighs the injury to the defendant; and (4) granting the injunction does not disserve the public interest. Cherokee Pump & Equip., Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir.1994). A preliminary injunction is an "extraordinary remedy" that should not be granted unless a party demonstrates the above four factors by a "clear showing." Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051 (5th Cir.1997).

Plaintiffs' everything-but-the-kitchen-sink-style original petition asserts that declaratory and injunctive relief should be granted pursuant to the First, Fifth, and Fourteenth Amendments of the United States Constitution; U.S. CONST. art. VI, cl. 2; 28 U.S.C. § 2201; 15 U.S.C. § 1331; 42 U.S.C. § 1983; 42 U.S.C. § 2000cc; federal common law; TEX. CONST. art. I, §§ 6, 8, 10, 19; TEX. CONST. art. XI, § 5; TEX. CIV. PRAC. & REM.CODE §§ 37, 110; TEX. LOC. GOV'T CODE § 101; TEX. PEN.CODE §§ 6.01(a), 12.23, 48; Tex. Tax Code § 154; state common law; and City of Austin Charter Art. IV, VI, and VII. The Court will discuss in detail below the grounds for which Plaintiffs brought forth evidence in their preliminary injunction hearing. As to the other grounds, the Court will not enjoin the ordinance based on a record that does not show any substantial likelihood of success on the merits of those claims.

Vagueness

Plaintiffs' primary basis for relief asserted at the preliminary injunction hearing is that the ordinance is unconstitutionally vague on its face because it is so indefinite that it does not give fair notice as to what conduct is prohibited and lacks explicit standards for enforcement. See Pls.' Orig. Pet. Decl. J., TRO, & Inj. Relief [# 7] at 16. The Fifth Circuit employs a two-part void-for-vagueness test when evaluating criminal laws. United States v. Escalante, 239 F.3d 678, 680 (5th Cir.2001) (citing City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality)). Vagueness may invalidate a criminal law for either of two reasons: (1) "it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits;" or (2) "it may authorize and even encourage arbitrary and discriminatory law enforcement." Escalante, 239 F.3d at 680.

The City has argued this Court should look to the ordinance as a whole and the context in which it was drafted to determine whether it is unconstitutionally vague. See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (holding that the phrase "tends to disturb" the peace in a city noise ordinance was not unconstitutionally vague). The Supreme Court pointed out in Grayned the difficulty of picking out a few disputed terms to claim that an ordinance should be held void: "It will always be true that the fertile legal `imagination can conjure up hypothetical cases in which the meaning of (disputed) terms will be in nice question.'" 408 U.S. at 110 n. 15, 92 S.Ct. 2294 (quoting Am. Commc'ns Ass'n v. Douds, 339 U.S. 382, 412, 70 S.Ct. 674, 94 L.Ed. 925 (1950)). Consequently, the Court concluded that the noise ordinance was not unconstitutionally vague, stating that "[c]ondemned to the use of words, we can never expect mathematical certainty from our language. The words of the Rockford ordinance are marked by `flexibility and reasonable breadth, rather than meticulous specificity,' but we think it is clear what the ordinance as a whole prohibits." Grayned, 408 U.S. at 110, 92 S.Ct. 2294 (internal citations omitted).

Plaintiffs identify several words and phrases in the ordinance as too vague. Pls.' Menu Provs. Challenged [# 13]. At the hearing, the Court heard specific evidence concerning the terms "smoking," "smoking accessory," and "necessary steps" from both parties. The City has encouraged the Court to view these terms in the context of the entire ordinance and to consider the interpretations of them set forth by the City and its enforcement arm, the Health and Human Services Department. As discussed above in reference to Grayned, this Court will view the terms at issue in relation to the entire ordinance and not in isolation. The Court also finds that it may consider the interpretations offered by the City and its enforcing departments in evaluating the ordinance for vagueness. See Grayned, 408 U.S. at 110, 92 S.Ct. 2294 (instructing that a court must extrapolate the allowable meaning of an ordinance by looking to "`the words of the ordinance itself,' to the interpretations the court below has given to analogous statutes,4 and, perhaps to some degree, to the interpretation of the statute given by those charged with enforcing it") (emphasis added and internal citations omitted); Hill v. City of Houston, 789 F.2d 1103, 1107 (5th Cir.1986) (in reviewing the facial validity of a city ordinance the court considers "whether there is a substantial likelihood that the ordinance as interpreted by the City will deter constitutionally protected conduct. In deciding this, we look not only to the words of the ordinance but the manner in which the City has construed it.")5 (emphasis added).

As to the term "smoking," the ordinance states "SMOKING means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, weed, plant, or other combustible substance in any manner or in any form." Austin City Code § 10-6-1(8). The City presented several witnesses including David Lurie, the Director of the City of Austin Health and Human Services Department, and Korina Moore, a health educator in the same department, who testified that the City does not and will not construe the ordinance to apply to candles, incense, wood, or food preparation devices such as barbeque pits. The City contends that "smoking" under the ordinance applies to smoking by persons who inhale, exhale, burn, or carry lighted tobacco or tobacco-like products, such as marijuana or herbs, that have traditionally been smoked by persons. Def.'s Prelim. Inj. Letter Br. at 6; Def.'s Resp. Pls.' Req. TRO at 9 — 10. Although the definition of "smoking" could certainly be more precise, the Court finds the City's interpretation of that term to be reasonable and does not find the definition to be so imprecise...

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5 cases
  • Roark & Hardee Lp v. City of Austin
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 27, 2008
    ...does not give fair notice as to what conduct is prohibited and lacks explicit standards for enforcement." Roark & Hardee L.P. v. City of Austin, 394 F.Supp.2d 911, 916 (W.D.Tex.2005). The district court ruled that Plaintiffs did not have a likelihood of success on the merits with regard to ......
  • American Legion v. Wash. Dept. of Health
    • United States
    • Washington Supreme Court
    • September 11, 2008
    ...City of New York, 371 F.Supp.2d 522, 542 (S.D.N.Y.2005) (people do not have a fundamental right to smoke); Roark & Hardee LP v. City of Austin, 394 F.Supp.2d 911, 918 (W.D.Tex. 2005) ("it is clear that there is no constitutional right to smoke in a public place"); Fagan v. Axelrod, 146 Misc......
  • In re Appeal of Civil Penalty Don Liebes, COA10–979.
    • United States
    • North Carolina Court of Appeals
    • July 19, 2011
    ...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 ......
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    • United States
    • North Carolina Court of Appeals
    • July 19, 2011
    ...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 ......
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