HomeMy WebLinkAboutA034 - Lawsuit filed September 24, 2001 - City Attorney's Office
515 Clark Avenue,P.O.Box 811
Caring Peoplr
Qualify Programs Ames,IA 50010
"p'ianal.�ervwe Phone: 515-239-5146 •Fax: 515-239-5142
September 25, 2001
The Honorable Ted Tedesco, Mayor
and Members of the City Council
of the City of Ames, Iowa
Re: Litigation with Respect to the Smoking Ordinance
Dear Mayor Tedesco and Council Members:
With this, for your information, is a copy of a lawsuit brought to have the ordinance regulating the
designation of smoking areas in food service establishments declared illegal. A copy of the Answer
by the City is also attached. The Plaintiffs have asked for a temporary injunction.
A temporary injunction is a preventive measure that the court can use to maintain a status quo while
litigation is pending. To properly issue a temporary injunction,the court must have before it evidence
by affidavit on which it may ascertain the circumstances and balance the harm that a temporary
injunction may present against the harm that may result from its issuance. The party seeking the
temporary injunction has the burden to establish a factual basis for its issuance.
The hearing on the temporary injunction request is scheduled for October 2 at 9:00 a.m. at the Story
County Courthouse in Nevada.
Yours truly,
John R. Klaus
City Attorney
JRK:gmw
IN THE IOWA DISTRICT COURT
IN AND FOR STORY COUNTY
JAMES ENTERPRISES,INC. d/b/a
CYCLONE TRUCK STOP; CLYDE'S OF
AMES, INC. d/b/a WALLABY'S; YE OLDE, EQUITY NO. EQ-CV040013
L.L.C. d/b/a DUBLIN BAY; DE PAULA,
INC. d/b/a CAFE BEAUDELAIRE INTER-
NATIONAL CUISINE & BAR; STEVE
SOESBE d/b/a TRADEWINDS CAFE;
ROZEBOOM FOODS, INC. d/b/a WHISKEY
RIVER; and TOM ZMOLEK, d/b/a
PEOPLE'S BAR& GRILLE,
Plaintiffs,
VS.
CITY OF AMES, IOWA, ANSWER
Defendant.
COMES NOW the Defendant City of Ames, Iowa and for Answer, states:
1. The allegations of paragraphs 1 through 11 of the Petition are admitted.
2. The allegations of paragraphs 12, 14, 15 and 21 of the Petition are admitted.
3. The allegation of paragraph 13 of the Petition is denied in that Section 14213(2)
prohibits the designation of smoking areas in places where smoking is prohibited by ordinance.
4. The allegations of paragraphs 16, 17, 18, 19, and 20 are denied.
WHEREFORE, it is prayed that the requested injunction be denied, that the Petition be
dismissed, and that the Defendant City of Ames have judgment for costs of these proceedings.
PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was served upon all
parties to the above cause by depositing a copy thereof in the U.S. Mail,
postage prepaid,in envelopes addressed to each of the attorneys of record
herein at their respective addresses disclosed on the pleadings,on this_ J n R. Klaus ST0002856
day of 2001. City Attorney
515 Clark Avenue, P.O. Box 811
Ames, Iowa 50010
Notary Public in and for Story County Phone 515-239-5146 • Fax 515-239-5142
Original to Court
Copy to: Fred L.Dorr
Charles F.Wasker
IN THE IOWA DISTRICT COURT FOR STORY COUNTY
JAMES ENTERPRISES,INC. d/b/a )
CYCLONE TRUCK STOP;CLYDE'S )
OF AMES,INC. d/b/a WALLABY'S; c� V
YE OLDE L.L.C. d/b/a DUBLIN BAY; ) EQUITY NO.
DE PAULA,INC. d/b/a CAFE BEAUDELAIRE j
INTERNATIONAL CUISINE&BAR;
STEVE SOESBE d/b/a TRADEWINDS
CAFE;ROZEBOOM FOODS,INC. ) �_
d/b/a WHISKEY RIVER;and TOM ) r U?
PEOPLES,BAR
ZMOLEK,d/b/a P
CD-- v-
& GRILLE, ) ;,c
) ORDER FOR HEARD
Plaintiffs,
G
co
yr
VS. )
CITY OF AMES,IOWA, )
) I
Defendant. )
Z`t day of September, 2001, the undersigned, having reviewed the Petition for
On this Y
i
Declaratory Judgment and Request for Temporary Injunction filed herein now FINDS that hearing
should be set upon Plaintiffs'Request for Temporary Injunction and notice prescribed therefore.
IT IS THEREFORE HEREBY ORDERED,ADJUDGED AND DECREED,as follows:
1. That hearing on Plaintiffs' Request for Temporary Injunction, and any resistance filed
00
thereto, is hereby set for the
day of , 2001, commencing at
o'clock 1 .m. at the Story County Courthouse in Nevada, Iowa before the undersigned or such
other Judge as may be assigned to that hearing;and
s
IN THE IOWA DISTRICT COURT FOR STORY COUIVn
..J
JAMES ENTERPRISES, INC. d/b/a
CYCLONE TRUCK STOP;CLYDE'S )
OF AMES, INC. d/b/a WALLABY'S;
YE OLDS,L.L.C. d/b/a DUBLIN BAY; ) _
DE PAULA, INC. d/b/a CAFE BEAUDELAIRE ) EQUITY NO.
INTERNATIONAL CUISINE&BAR; )
BUNDY, INC. d/b/a TWENTIETH )
CENTURY BOWLING;STEVE SOESBE )
d/b/a TRADEWINDS CAFE;ROZEBOOM )
FOODS, INC. d/b/a WHISKEY RIVER; )
and TOM ZMOLEK d/b/a PEOPLES BAR )
&GRILLE, ) ORIGINAL NOTICE
Plaintiffs, )
VS. )
)
CITY OF AMES, IOWA, )
Defendant. )
TO THE ABOVE—NAMED DEFENDANT:
You are hereby notified that there is now on file in the office of the Clerk of the above-named
Court, a Petition, Request for Temporary Injunction, Affidavit and Order for Hearing in the above-
entitled action, copies of which are attached hereto. The Plaintiffs' attorneys are Fred L. Dort and
Charles F. Wasker of the law firm of Wasker, Dorr, Wimmer& Marcouiller, P.C., 801 Grand Avenue,
Suite 3100,Des Moines, Iowa 50309.
You are further notified that unless, within twenty (20) days after service of this Original
Notice upon you, you serve, and within a reasonable time thereafter file, a written special appearance,
motion or answer, in the Iowa District Court for Story County, at the County Courthouse in Nevada,
Iowa,judgment by default will be rendered against you for the relief demanded in the Petition.
If you require the assistance of auxiliary aid or services to participate in court because of a
disability, immediately call your district ADA coordinator at 61-(199 (l f hearing
impaired,called Relay Iowa TTY at 1-800-735-2942). (b' c�
(SEAL)
CLERK OF COURT
Story County Courthouse
Nevada, Iowa
IMPORTANT: You are advised to seek legal advice at once to protect your interests.
IN THE IOWA DISTRICT COURT FOR STORY COUNTY
JAMES ENTERPRISES, INC. d/b/a )
CYCLONE TRUCK STOP; CLYDE'S )
OF AMES, INC. d/b/a WALLABY'S; )
YE OLDE, L.L.C. d/b/a DUBLIN BAY; ) EQUITY NO. E.-C—y d 40013
DE PAULA,INC. d/b/a CAFE BEAUDELAIRE )
INTERNATIONAL CUISINE&BAR; )
STEVE SOESBE d/b/a TRADEWINDS )
CAFE; ROZEBOOM FOODS,INC. )
d/b/a WHISKEY RIVER; and TOM ) PETITION FOR DECLARATORY
ZMOLEK, d/b/a PEOPLES BAR ) JUDGMENT
& GRILLE, ) AND
REQUEST FOR TEMPORARY
Plaintiffs, ) INJUNCTION
vs. )
CITY OF AMES, IOWA,
Defendant. ) - '
o G,
COME NOW plaintiffs, by and through counsel, and for their filing as styled above-state as
follows:
PARTIES
1. Plaintiff James Enterprises, Inc. is an Iowa corporation organized and existing under the
laws of the State of Iowa, d/b/a Cyclone Truck Stop, with its principal place of business located in
Ames, Story County,Iowa.
2. Plaintiff Clyde's of Ames, Inc. is an Iowa corporation organized and existing under the laws
of the State of Iowa, d/b/a Wallaby's, with its principal place of business located in Ames, Story
County, Iowa.
3. Plaintiff Ye Olde, L.L.C. is an Iowa limited liability company organized and existing under
the laws of the State of Iowa, d/b/a Dublin Bay, with its principal place of business located in Ames,
Story County,Iowa.
4. Plaintiff DePaula, Inc. is an Iowa corporation organized and existing under the laws of the
State of Iowa, d/b/a Cafe Beaudelaire International Cuisine & Bar, with its principal place of business
located in Ames,Story County, Iowa.
5. Plaintiff Steve Soesbe is the sole proprietor of a business located in Ames, Story County,
Iowa, known as Tradewinds Cafe.
6. Plaintiff Rozeboom Foods, Inc. is an Iowa corporation organized and existing under the
laws of the State of Iowa, d/b/a Whiskey River, with its principal place of business located in Ames,
Story County,Iowa.
7. Plaintiff Tom Zmolek is the sole proprietor of a business located in Ames, Story County,
Iowa,which operates under the name of Peoples Bar&Grille.
8. The foregoing plaintiffs are hereinafter identified as "Hospitality Providers".
9. Defendant, City of Ames,Iowa, ("City' is a municipal corporation located in Story County,
Iowa,which acts in and through its city council, mayor and other authorized representatives as allowed
under Iowa law. It is subject to Chapter 364 of the Iowa Code.
JURISDICTION AND VENUE
10. The Iowa District Court for Story County has jurisdiction to hear this matter pursuant to
Iowa Code 5602.6101 (2001).
11. Venue is appropriate in Story County pursuant to Iowa Code 5616.16 (2001).
2
CAUSE OF ACTION- SPECIFICS
12. The allegations set forth in Paragraphs 1 — 11 of the Petition are incorporated by this
reference as if fully set forth in this Paragraph.
13. Chapter 142B of the Code of Iowa (2001) allows for smoking in public places and in
public meetings within designated smoking areas. 5142B.2(1), Code of Iowa (2001).
14. The same Code chapter further provides:
Enforcement of this Chapter shall be implemented in an equitable manner throughout
the State. For the purpose of equitable and uniform implementation, application and
enforcement of State and local laws and regulations, the provisions of this Chapter
shall supersede any local law or regulation which is inconsistent with or conflicts with
the provisions of this Chapter. §142B.6, Code of Iowa (2001).
15. The City recently enacted an ordinance, effective August 1, 2001, known as Chapter 21A
of the Municipal Code entitled "Smoking in Public Places" ("new ordinance"). A copy of that new
ordinance is attached as Exhibit"A" for reference.
16. As enacted and applied, the new ordinance adversely impacts and greatly and irreparably
harms the Hospitality Providers in their various locations throughout the City by causing damage
which will not be susceptible to precise calculation, to Hospitality Providers' customer good will,
business relationships and profits.
17. The new ordinance expressly:
a. Prohibits smoking in a"public place" as defined; and
b. Disallows designation of smoking areas within such"public places",-
except as allowed under certain defined exemptions identified in the new ordinance. Thus, through the
new ordinance, the City seeks to deprive the Hospitality Providers from precisely that which
§142B.2(2) of the Iowa Code (2001) allows them to do: to accommodate both smokers and non-
smokers on their premises.
3
18. Hospitality Providers contend the new ordinance:
a. Is an unreasonable and illegal usurpation by the City of preemptive powers reserved to
the State of Iowa (in Chapter 142B of the Code).
b. Exceeds the City's home rule authority as set forth in Article III, Section 38A of the
Constitution of the State of Iowa;
C. Exceeds the City's scope of authority, vesting of power and limitation of power
provided by Iowa Code 5§364.1; 364.2(2) and (3);and 364.3;
d. Is inconsistent,irreconcilable and in conflict with the State law of Iowa.
19. There is an actual controversy as to the validity and application of the new ordinance
which can be resolved by a Declaratory Judgment deciding those issues.
REQUEST FOR TEMPORARY INJUNCTION
20. Unless the City is restrained through injunction from enforcement of the new ordinance
during the pendency of this proceeding, it will cause continuing irreparable injury to Plaintiffs as
explained in the Affidavit filed herewith.
21. This Petition has not been presented to or refused by any Judge or Justice.
WHEREFORE, based on the foregoing, Plaintiffs — Hospitality Providers request that the
Court:
A. Temporarily stay enforcement and application of the provisions of the new ordinance
until the conclusion of this case;
B. Permanently enjoin the City from enforcing and applying the new ordinance;
C. Declare that the new ordinance is an unreasonable and illegal usurpation by the City of
preemptive powers reserved to the State of Iowa (in Chapter 142B of the Code) and
therefore void and of no effect;
D. Declare that the new ordinance exceeds the City's home rule authority as set forth in
Article III, Section 38A of the Constitution of the State of Iowa and therefore void and
of no effect;
E. Declare that the new ordinance exceeds the City's scope of authority, vesting of power
and limitation of power provided by Iowa Code §§ 364.1; 364.2(2) and (3); and 364.3
and therefore void and of no effect;
4
F. Declare that the new ordinance is inconsistent, irreconcilable and in conflict with the
State law of Iowa and therefore void and of no effect;
G. Immediately fix a time and place for hearing upon a temporary injunction as requested
and prescribe notice therefore; and on such hearing enjoin enforcement of the new
ordinance until final hearing of this cause; and
H. Grant Plaintiffs — Hospitality Providers such other and further relief as the Court
deems equitable and just.
W E COUILLER, P.C.
D L. DORR PK 0001300
CHARLES F. WASKER
801 Grand Avenue, Suite 3100
Des Moines, Iowa 50309
Telephone (515) 283-1801 FAX: (515) 283-1802
ATTORNEYS FOR PLAINTIFFS -
HOSPITALITY PROVIDERS
5
VERIFICATION
DATED: September , 2001
The undersigned, one of the Plaintiffs in this matter, hereby confirms that I have read the
foregoing Petition and the allegations contained therein are true and correct as I verily believe.
DUBLIN BAY AND WALLABY'S
By:
Rick Carmer, (Plaintif�
Authorized Representative
STATE OF IOWA )
)SS:
COUNTY OF
SUBSCRIBED AND SWORN to before me this J day of September, 2001.
NOTARY PUBLIC I AND FOR THE
STATE OF IOWA
6
CHAPTER 21A
SMOKING IN PUBLIC PLACES
Sec.21A.100. PURPOSE.
The purpose of the provisions of this chapter,Sections 21A.100 through 21A.300 of the Municipal Code
of the City of Ames,Iowa,is to augment the provisions of chapter 14213,Sections 14213.1 through 14213.6 Code of
Iowa,by prohibiting smoking,as smoking is defined by Section 14213.1(4)Code of Iowa,in public places,as
`public place' is defined in Section 14213.1(3)Code of Iowa,to prevent the designation in those public places of
any smoking area in accordance with Section 142B.2(2)Code of Iowa.
Sec.21A.101. PUBLIC PLACES WHERE SMOKING IS PROHIBITED.
Smoking,as defined by Subsection 14213.1(4)Code of Iowa,is prohibited in any establishment that is a
"public place"as defined by Subsection 14213.1(3)Code of Iowa.
Sec.21A.102. DESIGNATION OF SMOKING AREA PROHIBITED.
The person having custody or control of any place that is a`public place'as defined by Section 14213.1(3)
Code of Iowa,shall not designate any part or portion of that place as a smoking area pursuant to Section 142B.2(2)
Code of lows.
Sec.21A.200. FOOD ESTABLISHMENT,TIME-OF-DAY EXEMPTION.
The provisions of Section 21A.101 and Section 21A.102 of the Municipal Code of the City of Ames Iowa
shall not apply to a food establishment as defined by Section 137F.1(8)Code of Iowa during that time between 8.30
p.m. and 6:00 a.m. During that time such food establishment may designate a smoking area in accordance with
Section 142B.2(2)Code of Iowa. Such food establishment that terminates food service at the establishment on a
-'� consistent and regularly scheduled basis at a time earlier than 8:30 p.m. shall not,during the time period between
r .y' such earlier time and 6:00 a.m.,be subject to Sections 21A.101 and 21A.102 of the Municipal Code of the city of
Ames,Iowa,and may,between such earlier time and 6:00 a.m. designate a smoking area in accordance with
Section 142B.2(2)Code of Iowa.
Sec.21A.201. LESS THAN TEN PERCENT EXEMPTION.
The provisions of Sections 21A.101 and 21A.102 of the Municipal Code of the City of Ames Iowa shall
not apply to a food establishment as defined by Section 137F.1(8)Code of Iowa that is also a licensed premises as
defined by Section 123.3(20)Code of Iowa if non-alcoholic food sales at such establishment are less than ten
percent of the dollar amount of sales of all kinds at that establishment and there has been filed with the Ames City
Clerk the sworn affidavit of the person in custody and control of the establishment attesting to that fact. The sales
price of non-alcoholic food that is delivered from a food establishment as defined by 137F.1(8)Code of Iowa to a
licensed premises as defined by Section 123.3(20)Code of Iowa for consumption on the premises to which it is
delivered,shall be included in computing the dollar amount of non-alcoholic food sales and the dollar amount of
sales of all kinds of the establishment to which the non-alcoholic food is delivered,for purposes of computing the
percentage of non-alcoholic food sales at the establishment for which the exemption under this section is sought.
Sec.21A.202. TRUCK STOP EXEMPTION.
(a) The provisions of Section 21A.101 and 21A.102 of the Municipal Code of the city of Ames Iowa
shall not apply to that portion of a public place,as public place is defined in Section 14213.1(3)Code of Iowa,that
is a fully enclosed room within such public place,and which fully enclosed room has a forced air ventilation
system that is separate from the ventilation system for the remainder of the said public place in which such room is
Sup#2001-2 21A-1 Rev.4-1-01
EMIBIT "A"
located if the said public place is a food establishment as defined by Section 137F.1(8)Code of Iowa that:
(i) is located within 1,000 feet of Interstate Highway 35;
(ii) provides parking spaces for more than twelve semi-tractor trailers;and
(iii) has filed with the Ames City Clerk the sworn affidavit of the person in custody and
control of the establishment that the establishment has,in addition to its food sales,sales
of diesel fuel that on average,over a calendar year,amount to more than twelve
thousand gallons per month,as shown by records made in the regular course of that
establishment's business and filed with the said affidavit.
(b) In the event that the dining area of such public place as is the subject of this section is expanded
subsequent to the establishment of an exempt room provided for in this section,there shall be no increase in the
area of the said exempt room.
Sec.21A.203. BOWLING ALLEY EXEMPTION.
(a) The provisions of Section 21A.101 and 21A.102 of the Municipal Code of the City of Ames
Iowa shall not apply,during the time between the hours of 6:00 p.m. and the following 6:00 a.m. on all days and
between 3:00 p.m.Thursday and the following 6:00 a.m.,to a public place as public place is defined by Section
142B.1(3)Code of lows that offers the use of not less than twelve full scale bowling lanes that are each equipped
with operable automatic pin setting apparatus. During the times stated in this section,such public place with
bowling lanes as aforesaid may designate a smoking area in accordance with Section 142B.2(2)Code of Iowa.
(b) The provisions of Section 21A.101 and 21A.102 of the Municipal Code of the City of Ames.
Iowa shall not apply to that portion of a public place,as public place is defined in Section 14213.1(3)Code of Iowa,
that is a fully enclosed room within such public place which room has a forced air ventilation system that is
separate from the ventilation system for the remainder of the public place in which such room is located,if the said
public place offers the use of not less than twelve full scale bowling lanes each equipped with operable automatic
pin setting apparatus.
Sec.21A.204. RENTED ROOM SOCIAL EVENT EXEMPTION.
Section 21A.101 and 21A.102 of the Municipal Code of the City of Ames Iowa shall not apply in cases in
which an entire room or hall is used for a private social function and seating arrangements are under the control of
the sponsor of the function and not the proprietor or person in charge of the place,all in accordance with Section
14213.2(1)Code of Iowa.
Sec.21A.205. CERTAIN WORK PLACES EXEMPTION.
Section 21A.101 and 21A.102 of the Municipal Code of the City of Ames Iowa shall not apply to
factories,warehouses and similar places of work not usually frequented by the general public,all in accordance
with Section 14213.2(1)Code of lows
See.21A300. SMOKE-FREE AREAS,HOTELS AND MOTELS.
(a) The person in custody and control of any hotel or motel shall take such measures as shall be
reasonably necessary and effective to keep all lobby areas,corridors and other common areas of the hotel or motel
free from any level of tobacco smoke that can be detected by the unaided human sense of smell.
(b) Smoking,as defined by subsection 14213.1(4),Code of Iowa,is prohibited in any hotel or motel
lobby,corridor or other common area of the hotel or motel.
Sec.21A.301. SMOKE-FREE AREAS,CERTAIN ENTRANCES AND EXITS.
(a) The person in custody and control of any place that comes within the scope of Sections 21A.200,
21A.201,21A.202,and 21A.203 of the Municipal Code of the City of Ames Iowa shall take such measures as
shall be reasonably necessary and feasible to maintain all points within fifteen feet of the main entrance and the
Sup#2001-2 21A-2 Rev.4-1-01
main exit of such place free from any level of tobacco smoke that can be detected by the unaided human sense of
smell.
(b) Smoking,as defined by Subsection 142B.1(4),Code of lows is prohibited at any point within
fifteen feet of the main entrance and the train exit of any place that comes within the scope of Sections 21A.200,
21A.201,21A.202,and 21A.203 of the Municipal Code of the City of Ames,Iowa.
Sec.21A.400. MINORS PROHIBITED IN SMOKING AREAS.
(a) The person in custody and control of any place that comes within the scope of Sections 21A.200,
21A.201,21A.202,and 21A.203 of the Municipal Code of the City of Ames,Iowa shall take such measures as
shall be reasonably necessary and feasible to prevent persons under the age of eighteen from being present in any
area where smoking,as defined in Subsection 142B.1(4)Code of Iowa is allowed under the Municipal Code of the
City of Ames,Iowa.
(b) It is unlawful for any person under the age of eighteen to be present in any place where smoking
is allowed under the Municipal Code of the City of Ames,Iowa.
Sec.21A.500. OUTDOOR SEATING AREAS.
Outdoor seating areas shall be subject to the prohibitions,provisions and exemptions stated in Sections
21A.101,21A.102,21A.200,21A.201,21A.202,21A.203,21A.204,21A.205,21A.300,21A301 and 21A.400,
the same as indoor seating areas.
Sec.21A.600. PENALTY.
(1) Violation of Section 21A.102,21A.300(a),21A.301(a),and 21A.400(a)shall be a municipal
infraction punishable by a civil penalty of$500 for a person's first violation thereof,and a penalty of$750.00 for
each repeat violation.
(2) Smoking in violation of Section 21A.101,21A.300(b),21A.301(b),and 21A.400(b)shall be a
municipal infraction punishable by a penalty of$25.00.
(Ord.No. 3608, 3-6-01)
Sup#2001-2 21A-3 Rev.4-1-01
IN THE IOWA DISTRICT COURT FOR STORY COUNTY
JAMES ENTERPRISES, INC. d/b/a )
CYCLONE TRUCK STOP;CLYDE'S )
OF AMES, INC. d/b/a WALLABY'S; )
YE OLDE,L.L.C. d/b/a DUBLIN BAY; ) EQUITY NO.
DE PAULA,INC. d/b/a CAFE BEAUDELAIRE )
INTERNATIONAL CUISINE&BAR; )
STEVE SOESBE d/b/a TRADEWINDS )
CAFE;ROZEBOOM FOODS, INC. )
d/b/a WHISKEY RIVER,and TOM )
ZMOLEK,d/b/a PEOPLES BAR )
&GRILLE, )
AFFIDAVIT OF
Plaintiffs, ) JIM MORAN
VS. )
)
CITY OF AMES,IOWA, )
Defendant, )
STATE OF IOWA )
COUNTY OF STORY)
On this 21 day of September, 2001, the undersigned after first being duly sworn on
oath,deposes and states as follows:
1. That I am the General Manager of a business located in Ames, Story County, Iowa which
operates under the name of Peoples Bar & Grille. It is owned by Tom L. Zmolek and is a named
Plaintiff in the above-captioned case.
2. I have been employed with that establishment for approximately eleven (11) years and
been in management there for the last eight (8) years. I am presently the General Manager. Tom L.
Zmolek, is presently out of state and will be for several days. He is aware of what is outlined in this
Affidavit as signed by me.
3. For the entire period of time that I have been employed with Peoples Bar & Grille, we
have been able to accommodate both smoking and non-smoking patrons of the establishment at all
hours of operation, until recently when the new Ames "no smoking ordinance" went into effect on
August 1, 2001. That ordinance is known as Chapter 21A of the Municipal Code of Ames and it is
entitled "Smoking in Public Places". A copy of that new ordinance is attached to the Petition filed
herein as Exhibit"A".
4. As a direct result of the new Ames "no smoking ordinance", our business, Peoples Bar&
Grille, has been damaged and will continue to be irreparably harmed by the impact of that new
ordinance as follows:
a. There has been a significant drop in food sales due to the new Ames "no smoking
ordinance". Overall, there has been a substantial drop in business during the "non-
smoking" time period (6:00 a.m. —8:30 p.m.). We have been forced to suspend food
sales during our busiest period of the week,(Friday afternoons) due to the fact that
we have found it impossible to police the ordinance during that time and patrons
have chosen to go to other establishments where they can smoke while being served
food and alcohol. We have, and will continue to have, food sale losses alone of
$500.00 - $700.00 per week and are also being forced to evaluate our food service
operations overall. Specifically, we are now closing our kitchen at 3:00 p.m. in the
afternoon, on an ongoing basis, as of the last Friday in August (August 31, 2001), in
order to qualify as a "food establishment that terminates food service at the
establishment on a consistent and regularly scheduled basis at a time earlier than 8:30
p.m." so as to fall outside the new ordinance during that time. That "termination of
food service" exemption appears in Section 21A.200 of the new ordinance.
b. For the same reasons,we are considering eliminating food sales during other periods
of the day/week or even altogether in order to comply with the City's"less than 10%
exemption" outlined in Section 21A.201 of the new ordinance. We may be forced to
suspend more food sales just to get under what appears to be the randomly set 10%
exemption rule, in an attempt to remove the business entirely from the effect of the
new ordinance. If we do that, not only will the business suffer additional lost food
sales, but a larger issue arises. In the past, in an effort to be responsible business
people, we have always felt it necessary to serve food to patrons who are also
consuming alcohol, however, as it is not possible for our business to effectively
police the new ordinance at busy times, and due to lost sales of alcohol, we have
already been forced to discontinue Friday afternoon food service as explained and
may ultimately be required to eliminate food sales at other periods during the week
2
so as not to be further adversely impacted by the new ordinance. We have always
been advised at seminars and programs about the importance of making food
available to patrons who are also consuming alcohol and have, in fact, been given
insurance breaks for being within a certain food sales percentage level in our
business. We will no longer be able to qualify for those insurance incentives,
resulting in higher insurance premiums for the business, due to the impact of the
new ordinance. Likewise, our patrons will not be eating while consuming alcohol at
our establishment, as explained. We think it is more appropriate to be able to offer
food, as well as alcohol at the business, as we have traditionally done, not only for
business/revenue reasons, but we feel it better serves our customers'interests.
C. Instead of being a "no-smoking ordinance", the effect on businesses in Ames, such
as ours, has turned it into a "no-eating ordinance".
5. We consider the new ordinance to be local government interference into private business
matters which has the unfortunate effect of requiring us to discontinue food service resulting in
irreparable harm and injury as explained on an ongoing basis. The new ordinance upsets the status
quo from what it has been for at least the 11 years, Tom Zmokek has owned and operated the
business in Ames.
6. We have also lost customers as a result of the new ordinance. Specifically, customers
have reported to us that instead of frequenting our establishment, they now go to Gilbert, Iowa to
the "Open Flame" so that they can smoke while eating and drinking at that establishment. The new
Ames ordinance does not apply in Gilbert, Iowa. Further, customers have explained to us that
rather than eating and drinking at our establishment, since the advent of the new ordinance they
now drive to Des Moines where they patronize establishments that have designated smoking areas
in establishments such as our's which also serve food and alcohol.
7. We have spent over ten (10) years establishing a certain reputation and good will with
out-of-state clientele who come into Ames regularly for concerts and sporting events. With the new
ordinance in place, we are losing, and will continue to lose, long-time customers of that sort who
3
now eat somewhere outside of Ames before arrival at such events or bring their own food rather
than frequent our business.
8. The lost food sales resulting from closing the kitchen early on Fridays can be
approximated at $500.00 - $700.00 per week, on an ongoing basis, as previously indicated. The
balance of the injury which we have sustained and continue to sustain in the form of lost customer
goodwill, interrupted business relationships and lost profits is not susceptible to precise calculation,
albeit the loss has been and continues to be significant and real. It is impossible to predict with a
reasonable degree of certainty, the exact monetary impact of the disruption to our business from lost
food sales and lost alcohol sales, other than as specifically outlined herein, which has occurred and
will continue to occur as a result of enactment of the new ordinance.
9. It is our understanding that Tom L. Zmolek will not be able to recoup any monetary
losses from the City of Ames, even if we are ultimately a prevailing party in this litigation, as Ames is
a sovereign,immune from suit and recovery of damages such as those damages we have experienced
and will continue to suffer. As such, Tom L. Zmokek's loss and injury is, and will continue to be,
irreparable.
FURTHER AFFIANT SAYETH NOT.
JIM AORAN, General Manager
of People's Bar& Grille
J_�
SUBSCRIBED AND SWORN to befo me this �� day of Septembe , 2001.
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
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IN THE IOWA DISTRICT COURT FOR STORY COUNTY
JAMES ENTERPRISES, INC. d/b/a )
CYCLONE TRUCK STOP;CLYDE'S )
OF AMES, INC. d/b/a WALLABY'S; )
YE OLDE,L.L.C. d/b/a DUBLIN BAY; ) EQUITY NO.
DE PAULA, INC. d/b/a CAFE BEAUDELAIRE )
INTERNATIONAL CUISINE&BAR; )
STEVE SOESBE d/b/a TRADEWINDS )
CAFE;ROZEBOOM FOODS, INC. )
d/b/a WHISKEY RIVER;and TOM )
ZMOLEK, d/b/a PEOPLES BAR )
&GRILLE, )
AFFIDAVIT OF
Plaintiffs, ) DIRK ROZEBOOM
VS. )
)
CITY OF AMES, IOWA, )
Defendant, )
STATE OF IOWA )
COUNTY OF STORY
On this a day of September, 2001, the undersigned after first being duly sworn on
oath, deposes and states as follows:
1. That I am the President of Rozeboom Foods, Inc. d/b/a Whiskey River, a business
located in Ames, Story County, Iowa. It is a named Plaintiff in the above-captioned case.
2. That I have owned and operated the business for approximately four (4) years.
3. For the entire period of time that I have owned Whiskey River, I have been able to
accommodate both smoking and non-smoking customers at all hours of operation, until recently
when the new Ames "no smoking ordinance" went into effect on August 1, 2001. That ordinance is
known as Chapter 21A of the Municipal Code of Ames and it is entitled"Smoking in Public Places".
A copy of that new ordinance is attached to the Petition filed herein as Exhibit"A:".
4. As a direct result of the new Ames "no smoking ordinance",my business,Whiskey River,
has been damaged and will continue to be irreparably harmed by the impact of that new ordinance
as follows:
a. During the first week that the ordinance was in effect (first week of August, 2001) I
lost approximately $1,000.00 based on the fact that smokers could no longer
frequent my establishment to eat and/or consume alcohol prior to 8:30 p.m. due to
the new ordinance prohibition. Where normally I would have 20 —40 people at my
business from 3:00 p.m. to approximately 8:00 p.m., I had on average, 1 person
following enactment of the new ordinance. When patrons came into my business
and found out that they could not smoke before 8:30 p.m., because I also served
food, they simply left during that first week.
b. In order to cut my losses, I decided, after the first week of the new ordinance
effective date, to simply close my kitchen on an ongoing basis, at 3:00 p.m. each day,
Monday through Saturday of each week. As a consequence, patrons of my
establishment can now smoke and consume alcohol from 3:00 p.m. on (but not eat
after 3:00 p.m.)
C. I have been forced to close my kitchen involuntarily, due to the economic losses my
business has suffered as a result of enactment of the new ordinance. My food sale
losses average $75.00 each day,Monday through Thursday, and $250.00 each day, on
Friday and Saturday. On average, after the second week following enactment of the
new Ames "no smoking ordinance", my food sale losses have ranged from $600.00 -
$800.00 per week. Those losses are specifically attributable to the impact on my
business of the new ordinance.
d. The reason why I have elected to close my kitchen is to qualify as a "food
establishment that terminates food service at the establishment on a consistent and
regularly scheduled basis at a time earlier than 8:30 p.m." so as to fall outside the new
ordinance during that time. That "termination of food service" exemption appears
in Section 21A.200 of the new ordinance.
e. In the past, in an effort to be a responsible business owner and operator, I have
always felt it necessary to serve food to patrons who are also consuming alcohol.
However, due to the adverse financial pressure my business has experienced
resulting from the effect of the new Ames "no smoking ordinance", another issue
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has arisen. I have been advised about the importance of making food available to
patrons who are also consuming alcohol in my business. Since my patrons are not
eating while consuming alcohol at my establishment, as explained, after 3:00 p.m. (as
I have had to close my kitchen) that situation runs contrary to what I believe is in my
patrons' best interest and contrary to my desires as a businessman in the Ames
community. I think it is more appropriate to be able to offer food, as well as alcohol
at my business, as I have traditionally done, not only for business/revenue reasons,
but I feel it better serves my customers'interests.
5. 1 consider the new ordinance to be local government interference into private business
matters which has the unfortunate effect of requiring me to discontinue food service resulting in
irreparable harm and injury as explained on an ongoing basis. The new ordinance upsets the status
quo from what it has been for at least the four years I have been in business in Ames.
6. I have also lost customers as a result of the new ordinance. During the first week that the
new ordinance was in effect, I essentially had no customers until after 8:30 p.m., when they could
then smoke. Therefore,when I closed my kitchen in order to recapture some of my customer base,
I then lost food sales. Customers have reported to me that instead of frequenting my establishment
where, after 3:00 p.m., they cannot smoke, drink and eat at the same time, they go outside of the
City of Ames to adjoining communities where they can do all three.
7. I have spent four years establishing a certain reputation and good will with out-of-town
customers who come into Ames regularly for events associated with Iowa State University. With the
new ordinance in place, I am losing, and will continue to lose, longtime customers of that sort who
now eat somewhere outside of Ames before arrival at such events or bring their own food rather
than frequenting my business.
8. The lost food sales I have experienced as a result of the new ordinance, are approximately
$600.00 - $800.00 per week, on an ongoing basis, as indicated. Further, the approximately$1,000.00
I lost the first week that the ordinance was in effect has been explained. The balance of the injury
3
which I have sustained and continue to sustain in the form of lost customers and goodwill,
interrupted business relationships and lost profit is not susceptible to precise calculation, albeit the
loss has been and continues to be significant and real. It is impossible to predict with a reasonable
degree of certainty, the exact monetary impact of the disruption of my business from lost food sales
and lost alcohol sales, other than as specifically outlined herein, which has occurred and will
continue to occur as a result of enactment of the new ordinance.
9. It is my understanding that I will not be able to recoup any monetary losses from the City
of Ames, even if my company is a prevailing party in this litigation, as Ames is a sovereign, immune
from suit and recovery of damages such as those damages I have experienced and will continue to
suffer. As such, my loss and injury is, and will continue to be,irreparable.
FURTHER AFFIANT SAYETH NOT.
ROZEBOOM r t
Rozeboom Foods, Inc. d a Whiskey River
SUBSCRIBED AND SWORN to before me this ;---,-o day of September, 2001.
NOTARY PUBLIC IN AND FOR THE
STATE OF IOWA
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