Taverns for Tots, Inc. v. City of Toledo

• Decision Date: 21 October 2004
• Docket Number: No. 3:04CV7030.,3:04CV7030.
• Citation: 341 F.Supp.2d 844
• Parties: TAVERNS FOR TOTS, INC., Plaintiff, v. CITY OF TOLEDO, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

341 F.Supp.2d 844

TAVERNS FOR TOTS, INC., Plaintiff, v. CITY OF TOLEDO, et al., Defendants.

No. 3:04CV7030.

United States District Court, N.D. Ohio, Western Division.

October 21, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Steven C. Hales, Lydy & Moan, Sylvania, OH, for Taverns for Tots, Inc., Plaintiff.

Adam W. Loukx, City of Toledo, Department of Law, Barbara E. Herring, City of Toledo, Department of Law, Keith A. Wilkowski, Vassar, Dills & Dawson, Toledo, OH, for City of Toledo, Jack Ford, Mayor, Defendants.

Order

CARR, District Judge.

This case involves a First Amendment challenge under 42 U.S.C. § 1983. The plaintiff, Taverns for Tots, is an Ohio not-for-profit corporation. Plaintiff claims that the defendants City of Toledo, Ohio, and its Mayor, Jack Ford, have violated the plaintiff's constitutional rights by enactment and enforcement of Toledo's Clean Indoor Air Act of 2003.¹ That ordinance prohibits smoking in places of public accommodations, subject to certain exceptions, including a exceptions for "membership associations" and "private social functions."

Pending is defendants' motion for summary judgment. For the following reasons, defendants' motion will be granted in full.

This case follows an earlier suit, D.A.B.E. Inc. v. City of Toledo, 292 F.Supp.2d 968 (N.D.Ohio 2003), in which several owners of bars and restaurants in Toledo unsuccessfully challenged the facial validity of Toledo's anti-smoking ordinance under the Takings Clause of the federal Constitution.

Plaintiff, a not-for-profit corporation formed on December 20, 2003, has as its ostensible charitable purpose the raising of money for needy children.² During the earlier proceedings in this case, I found plaintiff to be a sham corporation, the primary purpose of which was provide a putative legal basis under exemptions in the ordinance for "membership associations" and "private social functions" to enable patrons of Toledo bars and restaurants to smoke. Taverns for Tots, Inc. v. City of Toledo, 307 F.Supp.2d 933, 940-43 (N.D.Ohio 2004). On the basis of that finding, I granted a preliminary injunction in the City's favor, enjoining plaintiff from permitting smoking in violation of Toledo's anti-smoking ordinance at its "events" held in its name. Id.

In the instant case, plaintiff claims: 1) the ordinance and the procedures for obtaining an exemption under the ordinance infringe its First Amendment rights of association and speech; 2) the ordinance is unconstitutionally vague because it fails to define "private social function;" 3) state law preempts the ordinance; and 4) the ordinance and its procedures for obtaining an exemption are invalid under the Ex Post Facto Clause of the federal Constitution.

Standard of Review

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).

Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

Discussion

A. First Amendment Freedom of Association/Assembly

In Counts II, III, IV, VI, and VIII of its complaint, plaintiff alleges that the "Application for Registration as a Membership Association" required by the Clean Indoor Air Act is "an unreasonable restraint of the right to assemble." Plaintiff has broadly asserted that the application process for obtaining an exemption under the ordinance is unconstitutional because: 1) other organizations have not been required to file such an application; 2) the application requires pre-approval of the organization; 3) the application contains requirements not rationally related to a legitimate governmental purpose; and 4) the application requires unrelated and intrusive information.

Plaintiff's claim that the application for an exemption acts as an unreasonable restraint on the freedom of assembly must necessarily fail.

The Supreme Court has recognized that individuals have a First Amendment right to associate when they either "enter into and maintain certain intimate human relationship[s]" or "associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion." Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984).

For plaintiff to prevail in its challenge to the constitutionality of the Clean Indoor Air Act on the basis of freedom of association, plaintiff must demonstrate that the ordinance infringes on one of these two protected areas of association.

1. Intimate Association

The first circumstance in which the First Amendment protects the right of association, referred to as "intimate association," involves an individual's choice to enter into and maintain human relationships. In recognizing First Amendment protection for such activities the Court has noted that "certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; thereby foster[ing] diversity and act as critical buffers between the individual and the power of the State." Roberts, 468 U.S. at 618-19, 104 S.Ct. 3244 (citing Zablocki v. Redhail, 434 U.S. 374, 383-86, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (recognizing importance of the marriage relationship); Moore v. East Cleveland, 431 U.S. 494 503-04, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (recognizing importance of family relationships); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (recognizing parent-child relationships)). The court has furthermore stated that protecting these relationships "safeguards the ability independently to define one's identity that is central to any concept of liberty." Id.

Generally, the types of personal relationships entitled to such protection involve the family: "marriage, childbirth, the raising and education of children, and cohabitation with one's relatives." Id. (internal citations omitted). These relationships are characterized by "relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship." Id. Because, as a "[g]eneral matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty," associations lacking these components do not enjoy First Amendment protection. Id. at 619, 104 S.Ct. 3244.

There is no bright line distinguishing associations protected as intimate associations and those which are not. Id. The Court, instead, views such associations on a spectrum from the most intimate relationships to the most attenuated. Id. (citing Runyon v. McCrary, 427 U.S. 160, 187-89, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976)). The following factors are relevant to locating an association on the spectrum: "size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent." Id.

The court in NYC C.L.A.S.H., Inc. v. City of New York, 315 F.Supp.2d 461 (S.D.N.Y.2004), did not find the requisite degree of intimate association in circumstances factually similar to those in the instant case. The plaintiff, like the plaintiff here, was an organization formed to protect smokers' rights. It alleged that a New York smoking ban interfered with the freedom of association. Id. at 467-69.

The plaintiff in C.L.A.S.H. did not argue that gathering in bars and restaurants "to engage in social or ... business activities while smoking was the type of relationship the U.S. Supreme Court had contemplated" as worthy of First Amendment protection. Id. at 473. Likely for the same reasons, plaintiff also did not argue that the bans unduly interfered with "any right of intimacy by smokers." Id.

Making this argument in the present case, Taverns for Tots does not exhibit any characteristics of the type of intimate relationships protected by the First Amendment. Plaintiff...