Roark & Hardee Lp v. City of Austin, No. 06-51670.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtKing
Citation522 F.3d 533
Decision Date27 March 2008
Docket NumberNo. 07-50441.,No. 06-51670.
PartiesROARK & HARDEE LP, doing business as Warehouse Saloon & Billiards; Pub Draught, Inc., doing business as Lovejoys Tap Room & Brewery; Joseph Chip Tait; GMC Investment, Inc., doing business as Ego's; Canary Roost, Inc.; Canary Hut, Inc.; Gail E. Johnson; Keep Austin Free PAC; Tony Sirgo; Edward Check; Bill Hardee, Plaintiffs-Appellees, v. CITY OF AUSTIN, Defendant-Appellant. Roark & Hardee LP, doing business as Warehouse Saloon & Billiards; Pub Draught, Inc., doing business as Lovejoys Tap Room & Brewery; Joseph Chip Tait; Keep Austin Free PAC; Tony Sirgo; Edward Check; Bill Hardee, Plaintiffs-Appellants, v. City of Austin, Defendant-Appellee.
522 F.3d 533
ROARK & HARDEE LP, doing business as Warehouse Saloon & Billiards; Pub Draught, Inc., doing business as Lovejoys Tap Room & Brewery; Joseph Chip Tait; GMC Investment, Inc., doing business as Ego's; Canary Roost, Inc.; Canary Hut, Inc.; Gail E. Johnson; Keep Austin Free PAC; Tony Sirgo; Edward Check; Bill Hardee, Plaintiffs-Appellees,
v.
CITY OF AUSTIN, Defendant-Appellant.
Roark & Hardee LP, doing business as Warehouse Saloon & Billiards; Pub Draught, Inc., doing business as Lovejoys Tap Room & Brewery; Joseph Chip Tait; Keep Austin Free PAC; Tony Sirgo; Edward Check; Bill Hardee, Plaintiffs-Appellants,
v.
City of Austin, Defendant-Appellee.
No. 06-51670.
No. 07-50441.
United States Court of Appeals, Fifth Circuit.
March 27, 2008.

[522 F.3d 537]

Marc Aron Levin (argued), Potts & Reilly, Austin, TX, for Plaintiffs-Appellees.

Jennifer Scott Riggs, Riggs & Aleshire, Austin, TX, for GMC Investment, Inc., Canary Roost, Inc., Canary Hut, Inc. and Gail Johnson.

Meghan Lee Riley (argued), Lynn Ellen Carter, City of Austin Law Dept., Austin, TX, for City of Austin.

B. Craig Deats, Deats, Durst, Owen & Levy, Austin, TX, Clifford E. Douglas, Ann Arbor, MI, for Tobacco Control Legal

[522 F.3d 538]

Consortium, Am. Heart Ass'n, Am. Cancer Soc., Am. Lung Ass'n, Campaign for Tobacco-Free Kids and Americans for Nonsmokers Rights, Amici Curiae.

Appeals from the United States District Court for the Western District of Texas.

Before KING, DeMOSS and SOUTHWICK, Circuit Judges.

KING, Circuit Judge:


Plaintiffs are owners of stand-alone bars in Austin, Texas. They filed this action against the City of Austin seeking a declaratory judgment and injunctive relief relating to the enforcement of Austin's ordinance prohibiting smoking in enclosed public places, including bars, restaurants, and workplaces. The district court declared the "necessary steps" provision of the ordinance unconstitutionally vague on its face and permanently enjoined the City of Austin from enforcing it. The City of Austin appeals the district court's judgment and injunction, arguing that: (1) the case is nonjusticiable because plaintiffs lack standing and their claims are not ripe; (2) the "necessary steps" provision is not unconstitutionally vague; and (3) the district court abused its discretion in permanently enjoining the enforcement of the "necessary steps" provision. Some plaintiffs have also appealed the district court's denial of their motion for attorneys' fees. Plaintiffs' appeal has been consolidated with the City of Austin's appeal.

We REVERSE that portion of the district court's judgment declaring the "necessary steps" provision of the ordinance unconstitutionally vague, VACATE the provision of the permanent injunction enjoining enforcement of said provision, and otherwise AFFIRM the judgment. We also AFFIRM the district court's denial of attorneys' fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 7, 2005, the citizens of Austin, Texas adopted the "Smoking in Public Places" ordinance (the "ordinance") by way of a ballot initiative.1 The purpose of the ordinance is to protect persons in public places and employees in their occupational environments from second-hand smoke. The ordinance took effect on September 1, 2005, and its principal goal is to prohibit smoking in all "public place[s]" within the City of Austin (the "City"). AUSTIN, TEX., CODE ch. 10-6.

The ordinance defines "public place" broadly to include any "enclosed area to which the public is invited or in which the public is permitted."2 Id. § 10-6-1(6). This definition includes bars and restaurants and is subject to few exceptions. See § 10-6-3. The ordinance expands the

522 F.3d 539

City's prior smoking ordinance, which gave those bars and restaurants with substantial revenue from the sale of alcoholic beverages the option of obtaining a permit to allow smoking. The new ordinance abolishes this permit option.

A violation of the ordinance is a Class C misdemeanor punishable by a fine, not to exceed $2,000, or by revocation or suspension of the license or permit of a violating establishment by the city manager.3 § 10-6-11(A)-(B). An individual violates the ordinance by smoking in a public place, § 10-6-2(A), smoking in a building owned or operated by the City, § 10-6-2(B), or smoking within fifteen feet of an entrance or openable window of a building in which smoking is prohibited, § 10-6-2(D). In addition to the restrictions placed on individuals, the ordinance provides that an owner or operator of a public place violates the ordinance if he or she "fails to take necessary steps to prevent or stop another person from smoking in an enclosed area in a public place." § 10-6-2(E) (emphasis added). Certain steps — including posting "no smoking" signs and removing ashtrays — are explicitly set out in the ordinance. § 10-6-8.

Shortly after the ordinance took effect, the following plaintiffs (collectively, "Plaintiffs") filed suit in state court challenging the constitutionality of the ordinance and seeking a temporary restraining order and a declaratory judgment: (1) three owners of stand-alone bars in the City — Bill Hardee; Joseph Chip Tait; and Gail E. Johnson; (2) Hardee's stand-alone bar — Roark and Hardee L.P., doing business as Warehouse Saloon and Billiards; (3) Tait's stand-alone bar — Pub Draught Inc., doing business as Lovejoys Tap Room and Brewery; (4) Johnson's stand-alone bars — GMC Investment Inc., doing business as Ego's; Canary Roost Inc.; and Canary Hut Inc.; (5) an organization of bars fighting the citizen initiative, KEEP AUSTIN FREE PAC; and (6) a couple of concerned citizens, Tony Sirgo and Edward Check.4 Plaintiffs alleged that the ordinance violated the First, Fourth, and Fourteenth Amendments, the Supremacy Clause, a number of federal statutes, as well as the Texas State Constitution, Texas statutes, and the Austin City Charter. The City subsequently removed the case to federal district court.

On October 11, 2005, the district court held an evidentiary hearing on Plaintiffs' motion for a preliminary injunction. Plaintiffs' primary attack challenged the ordinance as "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." 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 their vagueness, First Amendment, or overbreadth challenges. Id. at 916-19. However, the district court did enjoin two

522 F.3d 540

aspects of the penalty section of the ordinance. First, the district court concluded that the provision of the ordinance allowing the city manager to suspend or revoke the licenses or permits of "public places" violated the Due Process Clause of the Fourteenth Amendment and enjoined that provision to the extent that the City did not provide "expeditious judicial review."5 Id. at 921. Second, the district court enjoined the City from seeking fines of more than $500 under § 10-6-11, so that the ordinance was in compliance with Texas Penal Code § 6.02(f).6 Id. at 919-20 & n. 9.

This preliminary injunction hearing was followed by a trial on the merits almost a year later on August 17, 2006. By that time, the posture of the litigation had undergone a significant change. The City had sent notices of violation and filed charges, which were still pending in municipal court, against two Plaintiff bar owners, Bill Hardee and Gail E. Johnson, for failing to take the "necessary steps" to prevent or stop another person from smoking in their bars, Roark and Hardee L.P., doing business as Warehouse Saloon and Billiards, Canary Hut, and Canary Roost. The remaining Plaintiff owners and bars, Joseph Chip Tait; Pub Draught, Inc., doing business as Lovejoys Tap Room and Brewery; and GMC Investment Inc., doing business as Ego's, had not been cited.

At trial, Plaintiffs focused their attack on the words "necessary steps" in § 10-6-2(E) of the ordinance. The City presented evidence that since the ordinance's passage, the City's Health and Human Services Department, the department charged under the statute with enforcement, see § 10-6-10(D), had enacted two sets of guidelines to provide clarification of the "necessary steps" provision. The first set of guidelines provided: "Necessary steps include no smoking signs, absence of ash trays, asking the patron to stop smoking, asking the patron to leave the establishment if they refuse to stop smoking and following your standard business practices for enforcing house rules." After receiving requests for more clarification, the second set of guidelines was released, which added the step of refusing service to a person who is smoking.7

The district court found that the issuance of these two additional sets of guidelines weighed in favor of finding the ordinance vague. Roark & Hardee L.P. v. City of Austin, No. A-05-CA-837-SS,

522 F.3d 541

2006 WL 2854399, at *4 (W.D.Tex. Oct. 4, 2006) ("The fact that the guidelines regarding `necessary steps' are subject to change over time indicates that the term `necessary steps' is vague and is not controlled by any discernible, explicit standard."). What the district court found "[e]ven more troubling" than the guidelines issued by the City was that "the five steps under the guidelines are not exclusive and that following all of the guidelines does not create a safe harbor from liability for business owners and operators." Id. The district court held that the City could not provide "definitive guidance to business owners and operators about how they might avoid liability under the ordinance" or the precise actions required of business owners to satisfy the "necessary steps" standard and avoid prosecution. Id. at *5. Because the City had not provided business owners with clear guidance beyond the two actions specifically...

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  • Nat'l Solid Wastes Mgmt. Ass'n v. City of Dall., Civil Action No. 3:11–cv–3200–O.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • October 16, 2012
    ...for non-compliance with an ordinance, the Fifth Circuit finds the injury-in-fact element satisfied. Roark & Hardee LP v. City of Austin, 522 F.3d 533, 543–44 (5th Cir.2008). Here, Plaintiffs have shown that the Franchisees face prosecution for non-compliance and stand to suffer substantial ......
  • Beeman v. Anthem Prescription Mgmt., LLC, No. S203124.
    • United States
    • United States State Supreme Court (California)
    • December 19, 2013
    ...interest in preventing [prostitution] is unrelated to speech or press.’ ”). 4. See Roark & Hardee LP v. City of Austin (5th Cir.2008) 522 F.3d 533, 549–550 (rejecting 1st Amend. challenge against an ordinance banning smoking in enclosed public spaces); U.S. ex rel. Kneepkins v. Gambro Healt......
  • Beeman v. Anthem Prescription Mgmt., LLC, No. S203124.
    • United States
    • United States State Supreme Court (California)
    • December 19, 2013
    ...interest in preventing [prostitution] is unrelated to speech or press.’ ”). 4. See Roark & Hardee LP v. City of Austin (5th Cir.2008) 522 F.3d 533, 549–550 (rejecting 1st Amend. challenge against an ordinance banning smoking in enclosed public spaces); U.S. ex rel. Kneepkins v. Gambro Healt......
  • Cochran v. U.S. Sec. & Exch. Comm'n, 19-10396
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 13, 2021
    ...for judicial decision"; and (2) "the hardship to the parties of withholding court consideration." Roark & Hardee LP v. City of Austin, 522 F.3d 533, 545 (5th Cir. 2008) (quoting Monk v. Huston, 340 F.3d 279, 282 (5th Cir. 2003)). Generally, issues are fit for judicial decision if "any remai......
  • Request a trial to view additional results
122 cases
  • Nat'l Solid Wastes Mgmt. Ass'n v. City of Dall., Civil Action No. 3:11–cv–3200–O.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • October 16, 2012
    ...for non-compliance with an ordinance, the Fifth Circuit finds the injury-in-fact element satisfied. Roark & Hardee LP v. City of Austin, 522 F.3d 533, 543–44 (5th Cir.2008). Here, Plaintiffs have shown that the Franchisees face prosecution for non-compliance and stand to suffer substantial ......
  • Beeman v. Anthem Prescription Mgmt., LLC, No. S203124.
    • United States
    • United States State Supreme Court (California)
    • December 19, 2013
    ...interest in preventing [prostitution] is unrelated to speech or press.’ ”). 4. See Roark & Hardee LP v. City of Austin (5th Cir.2008) 522 F.3d 533, 549–550 (rejecting 1st Amend. challenge against an ordinance banning smoking in enclosed public spaces); U.S. ex rel. Kneepkins v. Gambro Healt......
  • Beeman v. Anthem Prescription Mgmt., LLC, No. S203124.
    • United States
    • United States State Supreme Court (California)
    • December 19, 2013
    ...interest in preventing [prostitution] is unrelated to speech or press.’ ”). 4. See Roark & Hardee LP v. City of Austin (5th Cir.2008) 522 F.3d 533, 549–550 (rejecting 1st Amend. challenge against an ordinance banning smoking in enclosed public spaces); U.S. ex rel. Kneepkins v. Gambro Healt......
  • Cochran v. U.S. Sec. & Exch. Comm'n, 19-10396
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 13, 2021
    ...for judicial decision"; and (2) "the hardship to the parties of withholding court consideration." Roark & Hardee LP v. City of Austin, 522 F.3d 533, 545 (5th Cir. 2008) (quoting Monk v. Huston, 340 F.3d 279, 282 (5th Cir. 2003)). Generally, issues are fit for judicial decision if "any remai......
  • Request a trial to view additional results

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