HomeMy WebLinkAboutA035 - Defendant's Brief 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 EQUITY NO. EQ-CV040013
OLDE, L.L.C. d/b/a DUBLIN BAY;
DEPAULA,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 PEOPLE'S BAR&
GRILLE,
Plaintiffs,
VS.
CITY OF AMES, IOWA, DEFENDANT'S BRIEF AND
AFFIDAVITS IN RESISTANCE
TO TEMPORARY INJUNCTION
Defendant.
STANDARDS FOR TEMPORARY INJUNCTION
The principles controlling issuance of a temporary injunction have been enunciated most
recently in MAX 100 L.C. et.al. V. IOWA REALTY COMPANY INC. 621 N.W.2d 178 (Iowa
2001) as follows:
I. ". . . a temporary injunction is a delicate matter, and the exercise of judicial
power to issue or refuse a temporary injunction requires great caution,
deliberation, and sound discretion." Id. P. 180
2. "The decision will also be reversed if not based on sufficient grounds."Id.P.
180-181
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3. ". . .Temporary injunctions require a showing of likelihood of success on the
merits . . ." Id. P. 181
4. ". . . courts consider . . . the harm that a temporary injunction may prevent
against the harm that may result from its issuance. Id. P. 181
5. The court must ". . . make findings on the equitable factors that comprise a
decision to grant or deny a temporary injunction." Id. P. 183
All presumptions of law, and any ambiguities of fact,operate against the party who seeks a
temporary injunction. 42 AmJur 2d Injunctions §8 An ordinance is presumed to be reasonable and
valid, and the burden of proof is on the one who attacks it to show it is not. The evidence of
invalidity must be clear. Carter Lake v Anderson Excavating and Wrecking Co. 241 N.W.2d 896,
901 (Iowa 1976). A preliminary injunction against enforcement of a city ordinance should be denied
if there is a city purpose served by the ordinance, and the plaintiffs' only interest is his or her own
pocketbook. 6 McQuillen Mun. Corp. §20.25 (3`d Ed.) Citing: Cohen v City and County of San
Francisco, 178 Cal. App. 3d 447, 225 Cal. Rptr. 114 (1986).
LIKELIHOOD OF SUCCESS ON THE MERITS
Success on the merits of the plaintiffs' case seems unlikely. With respect to the claim of
conflict with or"pre-emption"by Chapter 142B Code of Iowa, the City relies on the analysis and
conclusion stated in the Opinion of the Iowa Attorney General dated November 14, 2000 (copy
attached). As the Attorney General's opinion explains, whatever the purported "pre-emption"
language of§142B.6 The Code means,it cannot mean that an ordinance may never prohibit smoking
in a public place. Subsection 142B.2(2) states:
"Smoking areas may be designated by persons having custody or control of public
places, except in places in which smoking is prohibited by the fire marshal or by
other law, ordinance, or regulation."
2
In interpreting statutes,the court must give effect to every word used by the legislature. The word
"ordinance", appearing in §142B.2(2) The Code, cannot be ignored; and, the court cannot write
words into the statute to limit the kind of ordinance that can be applied.
The claim that the ordinance exceeds the limits of the "home rule authority set forth in
Article III, Section 38A of the Constitution of the State of Iowa', and the limitations of§§364.1,
364.3 and 364.3 of the Code of Iowa, finds no support in recent decisions of the Iowa Supreme
Court. Under the "home rule"provision of the Iowa Constitution, municipalities are free to enact
regulations that are more stringent than those set by a state law. Sioux City Police Officers
Association v. City of Sioux City, 495 N.W.2d 687, 693. Cities have the authority to act pursuant
to their home rule power unless expressly restrained by statute. Crippen v City of Cedar Rapids,
618 N.W.2d 562, 568 (Iowa 2000).
The subject ordinance is rationally related to the public health and welfare. Courts are
reluctant to impede what may be done by cities in the interest of the health of the community.
Accordingly,municipal discretion as to the necessity or propriety of ordinances and regulations to
protect the public health will not be disturbed by the Courts. 7 McQuillan Mun. Corp. §24.241 (V
Ed.)
BALANCE OF HARM
The Petition and request for injunction is supported by filed affidavits by managers of two
of the Plaintiffs' establishments. It seems to be the gist of both of these affidavits that in an effort
to qualify for an exemption under the ordinance they curtailed their food service operation. Now
they lament their lost revenue from food sales. Balance that against affidavits of citizens as follows:
3
1. The affidavit of Diane Berks, a pregnant woman who notes the improvement of the
air in the restaurants that she and her husband frequent. She notes the results of research studies
showing the severe effects of second hand smoke inhaled during pregnancy on the health of infants.
She fears a return to smoke in restaurants if the temporary injunction is granted.
2. The affidavit of David Colt,who suffers from emphysema. Since the ordinance has
been in effect he has enjoyed joining his co-workers for a break at a pizza parlor near his work place.
He could not do that before the ordinance because of the smoke in the restaurant.
3. The affidavit of William Graves, an asthmatic, who describes how he now enjoys
frequenting restaurants that he could not enter before the ordinance.
4. The affidavit ofPhillip O'Berry describing how,since the ordinance,he has been able
to return to restaurants that he especially enjoys,but had stayed away from due to smoke.
5. The affidavit of Jody Kammin reporting on research that shows the adverse effects
of second hand smoke on restaurant employees, and research showing no adverse effect on the
restaurant trade by ordinances that restricts smoking in restaurants.
6. The affidavit of Craig Marrs, describing how he recently enjoyed the crowded and
smoke free scene at Wallaby's, one of the Plaintiffs' restaurants.
7. The affidavit of Dr. Peter Wolf, M.D. describing his first hand experience as the
treating physician for restaurant employees suffering the effects of second hand smoke encountered
in their place of employment. Dr. Wolfe also describes his pleasure in visiting both Wallaby's and
Cafe Beaudelaire,two of Plaintiffs' restaurants,since they became smoke free following enactment
of the ordinance.
4
CONCLUSION
The court must evaluate two interrelated factors in deciding whether to issue the requested
temporary injunction. The first factor is whether the plaintiffs are likely to prevail on the merits of
the case. The second is the interim harm that the plaintiffs are likely to sustain if the injunction is
denied as compared to the harm that will befall the general public if the injunction is granted.
The established law does not indicate a likelihood of success by the plaintiffs.
As to the balance of harm, the plaintiffs' perceived pocketbook loss may be sufficient to
confer standing to maintain the lawsuit, but it has never been held to be enough for the high level
of existing or threatened harm required for a prejudgment injunction against a city ordinance. See:
"San Francisco", supra at 178 Cal. App. 3d 453. If that were the rule, there would be a right to an
injunction against every law that was perceived to impact the profitability of a method of doing
business. On the other hand, the risk of harm to the public by losing the continued freedom from
the health hazards of second-hand smoke; by losing access to a wider range of restaurants; and,
losing the ability to make rules for their welfare, through elected representatives, is truly a grave
matter. The temporary injunction should be denied.-
PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was served John R. Klaus ST0002856
upon all parties to the above cause by depositing a copy thereof in City Attorney
the U.S.Mail,postage prepaid,in envelopes addressed to each ofthe
attorneys of record herein at their respective addresses disclosed on 515 Clark Avenue, P.O. Box 811
the pleadings,on this day of 2001. Agnes, Iowa 50010
Phone 515-239-5146 •Fax 515-239-5142
Notary Public in and for Story County
Original to Court
Copy to: Fred L.Dorr
Charles F.Wasker
Hospitality Providers-Brief and Affidavits in Resistance to Temporary Injunction,092801.wpd
5
11/14/00 17:01 FAX Z 002
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ADDRESS REPLY TO: J�®
THOMAS J.MIL,LER HOOVER BUILDING
ATTORN�r GENERAL DES MOINES.IOWA 5031.8
TELEPHONE:51 5-ZB 1- t @a
FACSIMILE:51 3-281-4209
November 147 2000
The Honorable Johnie Hammond
State Senator
3431 Ross Road
Ames, Iowa 50014
Dear Senator Hammond:
You have requested an opinion of theAttorney General regarding the ability of local
jurisdictions to adopt ordinances prohibiting smoking in certain public places under Iowa Code.
chapter 142B, entitled "Smoking Prohibitions." You posed this question:
1n view of subsection 142B.2(2) Code of Iowa, would a city
ordinance enacted to prohibit smoking in any public place, as
defined by subsection 142B.1(3) Code of Iowa be inconsistent with
or conflict with Chapter 142B Code of Iowa'?
For the reasons that follow,we conclude that such an ordinance would not be inconsistent
with or in conflict with chapter 142B of the Code of Iowa. However, before addressing the
specific question you have posed, it would be helpful to review some general background
regarding the powers of cities and counties to regulate local affairs under Iowa law.
I. Home Rule Power of Cities and Counties
The home rule powers of Iowa municipalities' are rooted in the Iowa Constitution as well
as in Iowa statutes. The Iowa Constitution provides that municipalities may pass ordinances
' Although this opinion addresses the power of municipalities to prohibit smoking in
certain public places,there are parallel provisions of the Iowa Constitution and the Iowa Code
that make the analysis virtually identical for counties- See Iowa Const., art. lll., § 39A and Iowa
Code § 331.301. See also Goodell v. Humboldt County, 575 N.W.2d 486, 492 (Iowa 1998)
("[W]e cite to county}come rule cases and city home rule cases interchangeably.")
11/14/00 17:01 FAX 00.
The Honorable Johnie Hammond
Page 2
governing their affairs as long as the particular enactment is `knot inconsistent with the laws of
the general assembly." Iowa Const., art. III, § 38A. Jowa Code chapter 364 (1999) sets forth the
Home Rule Amendments_ Section 364.2(3) defines "inconsistent" as "[a)n exercise of. . . power
[that] is irreconcilable with the state law."
In considering whether a particular municipal ordinance violates the home rule
provisions of the Constitution, the Supreme Court attempts to interpret state law to render it
harmonious with the ordinance. Sioux City Police Ofcers'Ass'n v_ City of Sioux City, 495
N.W.2d 687, 694 (Iowa 1993). The Court appears especially likely to find harmony between the
ordinance and the statutory scheme where the ordinance addresses the health and safety of
citizens. See, e.g.,Kent v. Polk County Board of Supervisors, 391 N.W.2d 220, 223 (Iowa 1986).
Although the Iowa Supreme Court strives to harmonize local regulations with state law,
the Court has recognized the authozity of the general assembly to preempt local regulation, that
is, to restrict local authorities from regulating in designated subject areas. This preemption may
be express or implied_ Goodell, 575 N_W_2d at 492.
Local regulation is expressly preempted where the general assembly specifically prohibits
such local action. See e.g., Chelsea 77zeater Corp. v. City of Burlington, 258 N_W2d 372, 373
(Iowa 1977).
Local regulation is impliedly preempted in one of two ways. First, a local ordinance may
be inconsistent with state law by prohibiting activity permitted by state law, or by permitting
activity prohibited by state law. Goodell, 575 N.W.2d at 493. The second way in which local
regulation may be impliedly preempted is where the general assembly has covered a subject area
in a manner that demonstrates an intent to preempt_ Id., 575 N.W.2d at 493. This latter form of
implied preemption is often referred to as "occupying the field." 62 C.J.S. Municipal
Corporations § 141 (1999).
U_ Effect of Chapter 142B on Home Rule Power
A_ Express Preemption
On the question of whether the general assembly expressly preempted local regulation of
smoking in public places, we turn to the language of the statute. Iowa Code section 14213.6
provides:
Enforcement of this chapter shall be implemented io 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
11/14/00 17:02 FAX 4004
The Honorable Johnie Hammond
Page 3
supersede any local law or regulation which is inconsistent with or
conflicts with the provisions of this chapter.
The last sentence of this section specifically provides only that inconsistent or conflicting local
laws are preempted. The'more general statement of purpose ("equitable and uniform
implementation, application, and enforcement")must be interpreted in the light of the specific
prohibition of"inconsistent"regulations. See Hamilton v. City of Urbandale, 291 N_W.2d 15, 18
(Iowa 1980). This specific reference to "inconsistent"regulations reflects the same home rule
principles embodied in the Iowa Constitution and in the Home Rule Amendments, and does not
constitute an express statement of the general assembly's intent to preempt.
The general assembly has had no difficulty expressing its intent to preempt with
unmistakable clarity in other contexts. For example,in the Chelsea Theater case the Supreme
Court found that the following language expressed the general assembly's intent to occupy the
field: "[N]o municipality, county or other governmental unit within this state shall make any law,
ordinance or regulation relating to obscenity_" Chelsea Theater, 258 N.W.2d at 373. Such
language stands in stark contrast to section 142B.6,which does not by its terms purport to
prohibit any county or municipal regulation beyond that which is "inconsistent"with the statute.
See also Bryan v. City of Des Moines, 261 N.W.2d 685, 687 (Iowa 1978) ("Any limitation on a
city's powers by state law must be expressly imposed."); City of Clinton v. Sheridan, 530
N.W.2d 690, 695 (Iowa 1995) ("If the general assembly intended to preempt . . . it could have
done so by express and unambiguous statutory language_")
We conclude that the language of section 142B.6 does not constitute an express statement
of legislative intent to bar municipalities from exercising home rule powers.
B. Implied Preemption
As noted above, implied preemption could arise from an overt conflict between chapter
142B and a local ordinance establishing more stringent standards for smoking in public places.
In a broad sense, a locality that extends the ban on smoking by prohibiting the designation of
smoking areas in certain public places"prohibits an act permitted by a statute." City of Des
Moines v. Gruen, 457 N_W.2d 340, 343 (Iowa 1990). However, this expansive approach would
mean that a local jurisdiction could never establish more stringent standards, which is something
localities are expressly permitted to do as a general matter_ See Iowa Code § 364.3(3) (1999);see
also Goodell, 575 N_W.2d at 492. Therefore, the issue must be whether the local ordinance
prohibits an act expressly sanctioned by state law. Chapter 142B does not embody such an
'- Note that we are confining this opinion to the ability of a locality to restrict smoking in
a"public place" as defined by section 14213.1(3). This opinion does not address the ability or
inability of a locality to modify the definition of`public place" as established by the general
assembly.
11/14/00 17:02 FAX 16005
The Honorable Johnie Hammond
Page 4
express sanction of smoking in, designated public places. On the contrary, as the discussion
below reveals, chapter 142B envisions the active involvement of local jurisdictions in expanding
the smoking prohibitions of state law.
The other consideration in assessing implied preemption is whether the general assembly
indicated an intent to occupy the field. The mere fact that the general assembly has legislated
extensively in a given area does not in itself establish legislative intent to occupy the field. City
of Council Bluffs v_ Cain, 342 N.W.2d 810, 812 (Iowa 1983); Sheridan, 530 N.W_2d at 695.
Moreover, even where a statutory scheme addresses a subject area in a comprehensive manner, a
municipality may set "standards more stringent than those imposed by state law, unless state law
provides otherwise." Gruen,457 N.W.2d at 343; Sioux City Police Ojfcers'Assn, 495 N.W.2d
at 694.
Thus,the Iowa Supreme Court has rarely found a statute to have "occupied the field."
But see City of Vinton v. Engledow, 140 N_W.2d 857 (Iowa 1966)_ This reluctance reflects the
strong public policy in favor of granting local jurisdictions the flexibility they need to address
local problems;this policy is anchored in the home rule provisions of the Iowa Constitution and
the Iowa Code. See Bechtel v. City of Des Moines, 225 N.W.2d 326, 332 (Iowa 1975).
As noted above, section 14213.6 requires "uniform implementation, application, and
enforcement" of chapter 14213. In Goodell,the Supreme Court indicated in dicta that an intent to
occupy the field might be found in a clear expression of the general assembly's desire to have
uniform regulations statewide.Id., 575 N_W.2d at 499-500. At least two aspects of chapter 142B
militate against this interpretation, however. First, the general reference to uniform application
in section 14213.6 is followed by the specific prohibition on inconsistent or conflicting provisions
of local law -- clear recognition that there can be consistent local regulation in the field._ Second,
the provision of chapter 142B highlighted in your request for an opinion, which is discussed
below, makes it clear that any legislative desire for uniformity was not intended to prevent
localities from regulating smoking in public places.
C. Effect of Section 142B.2(2)
With this background, we can turn to the specifics of your request for an opinion. The
question you posed highlights section 142B.2(2), which provides:
Smoking areas may be designated by persons having custody or
control of public places, except in places in which smoking is
prohibited by the fire marshal or by other law, ordinance or
regulation.
(Emphasis supplied.)
11/14/00 17:02 FAX 4 006
The Honorable Johnie Hammond
Page 5
This provision specifies the mechanics of designating smoking areas within public places.
In so doing, it expressly recognizes the authority of local jurisdictions to pass ordinances
prohibiting smoking in some public places in which state law would permit smoking. Thus, the
general assembly clearly acknowledged that localities retained the authority to establish more
stringent prohibitions relating to smoking in public places than those embodied in state law.
Given the robust policies favoring home rule, embodied in the Iowa Constitution and
enunciated repeatedly by the Iowa Supreme Court, the implications of section 142B.2(2) are
especially compelling. The general assembly intended local jurisdictions to retain the power to
expand the prohibitions on smoking in public places beyond the regulations embodied in state
law, and Iowa Code § 142B.2(2) constitutes a clear expression of that intent.
III. Conclusion
In summary, a city ordinance enacted to prohibit smoking in any public place, as defined
by Iowa Code § 142B.1(3), would not be inconsistent with or conflict with Iowa Code chapter
142B, and would not be preempted_
Sincerely,
Steve St. Clair
Assistant Attorney General
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, L.L.C. d/b/a DUBLIN BAY; EQUITY NO. EQ-CV040013
DE PAULA, INC. d/b/a CAFE BEAUDE-
LAIRE INTERNATIONAL CUISINE &
BAR; STEVE SOESBE d/b/a TRADE-
WINDS CAFE; ROZEBOOM FOODS,
INC. d/b/a WHISKEY RIVER; and
TOM ZMOLEK, d/b/a PEOPLE'S BAR
& GRILLE,
Plaintiffs,
VS. AFFIDAVIT OF bi c,n t Ks
CITY OF AMES, IOWA,
Defendant.
STATE OF IOWA, STORY COUNTY ss:
On this o2 day of _�_ , 2001, the undersigned, after first
being duly sworn on oath, deposes and states as follows:
I feel as a pregnant woman in Ames that I have the same right as anyone to attend any public
establishment I choose. I don't feel, however, it's right for me to be in an environment that has a posed
risk to my unborn child. Having smoke-free restaurants for the past couple of months has been a
blessing!
Before the ordinance went into affect, my husband and I were very conscious of the restaurants we
chose. Within the past few months we, along with many of our family and friends, have noticed a huge
improvement in the air of our favorite restaurants. I know I'm not the only pregnant woman in the area
who can honestly say that this have been a major relief!
Numerous research studies in the United States and elsewhere have found that exposure to
secondhand smoke among pregnant women is a major cause of spontaneous abortions, stillbirths, and
sudden infant death syndrome (SIDS) after birth. According to a meta-analysis of published studies,
tobacco use is responsible each year for 19,000 to 141,000 spontaneous abortions, 1,900 to 4,800
infant deaths caused by pre-birth disorders, and 1,200 to 2,200 deaths from SIDS.
Besides spontaneous abortions, stillbirths and SIDS deaths, exposure to secondhand smoke during
pregnancy directly increases the risk of each of many other health and behavioral problems. A select
few of these include:
• Birth and delivery problems
• Brain damage during gestation
• Growth retardation/low birth weight
• Cleft pallets and lips
• Childhood leukemia
• Infantile colic
• Respiratory disorders in childhood
• Eye problems during childhood
• Mental retardation
• Attention deficit disorder along with other learning & developmental problems
• Behavioral problems
• Youth and adult violence and criminality
• Smoking during adolescence, and other various health problems throughout adulthood
Research studies estimate that the direct additional health care costs in the United States associated
with the birth complications caused by pregnant women smoking and/or being exposed to secondhand
smoke could be as high as $2 billion per year.
As large as this number may be, this estimate of costs from smoking and exposure to secondhand
smoke during pregnancy doesn't include the enormous costs associated with the physical,
developmental, and behavioral problems of the affected child that can extend throughout their entire
lives.
I know I'm not alone when I say that the citizens of Ames and anyone visiting certainly deserve the right
to public places that are free from harmful environmental tobacco smoke.
Thank you,
Diane Birks — Citizen of Ames
FURTHER AFFIANT SAYETH NOT. I/ '
(Affiant's Name)
�_f
SUBSCRIBED AND SWORN to before me this � day of �_ J .� ,2001.
N ry P61ic in and for Story County, Iowa
J
P
�C
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, L.L.C. d/b/a DUBLIN BAY; EQUITY NO. EQ-CV040013
DE PAULA, INC. d/b/a CAFE BEAUDE-
LAIRE INTERNATIONAL CUISINE & -
BAR; STEVE SOESBE d/b/a TRADE-
WINDS CAFE; ROZEBOOM FOODS,
INC. d/b/a WHISKEY RIVER; and
TOM ZMOLEK, d/b/a PEOPLE'S BAR
& GRILLE,
Plaintiffs,
VS. AFFIDAVIT OF David Colt
CITY OF AMES, IOWA,
Defendant.
STATE OF IOWA, STORY COUNTY ss:
On this day of , 2001, the undersigned, after first
being duly sworn on oath, deposes and states as follows:
I suffer from emphysema. One of the reasons for the onset of emphysema was #1 the fact that I smoked for quite a
few years, but more than that, after I quit smoking I inhaled second hand smoke for a period of 20 years, which
exacerbated my lung problem.
At the present moment, I work for Youth and Shelter Services, during the course of that employment I take a break
in between our meetings at the Great Plains Sauce and Pizza, which at the present moment is smoke-free. Prior to
them being smoke-free, I could not attend these breaks because of the effect of the second hand smoke on my lung
problem.
FURTHER AFFIANT SAYETH NOT.
(Affiant's Name) 1
SUBSCRIBED AND SWORN to before me this _a 7 day of :�(��t _ 2001.
Notary Ifublic in and for Story County, Iowa
`T%
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, L.L.C. d/b/a DUBLIN BAY; EQUITY NO. EQ-
CV0400113
DE PAULA, INC. d/b/a CAFE BEAUDE-
LAIRE INTERNATIONAL CUISINE&
BAR; STEVE SOESBE d/b/a TRADE-
WINDS CAFE; ROZEBOOM FOODS,
INC. d/b/a WHISKEY RIVER; and
TOM ZMOLEK, d/b/a PEOPLE'S BAR :
&GRILLE, ,
Plaintiffs,
VS. AFFIDAVIT OF William R.Graves
CITY OF AMES, IOWA,
Defendant.
STATE OF IOWA, STORY COUNTY ss:
On this 28th day of September, 2001, the undersigned, after first
being duly sworn on oath, deposes and states as follows:
As a person who suffers from asthma, I fully support the City of Ames' recently
adopted ordinance regarding smoking in public places. Second-hand smoke harms
everyone but acts in a particularly direct and rapid way among asthmatics. A few
seconds of exposure to what a smoker might consider an imperceptible amount of
tobacco smoke can seriously impair my breathing and force me to use medication I
otherwise can avoid.
Limiting the generation of second-hand smoke in public places is consistent with the
City's role in protecting the health of its citizens and visitors. I have followed the
public dialogue in Ames regarding this issue. I have heard no valid argument against
the ordinance. The bottom line to me is that owners of public facilities cannot
ignore their obligation to provide a safe environment for their patrons and
employees.
I am pleased to say that freedom from smoke has allowed me to eat at restaurants in
Ames that I did not patronize before the ordinance took effect August 1. I have
taken the opportunety to ask my servers about their reactions to the ordinance. The
unanimous response has been how pleased the employees are to no longer be
working in unpleasant and unhealthful air.
While having asthma may make me especially appreciative of this ordinance, our
entire community will benefit from this advancement of public-health policy. I urge
our political and judicial leaders to resist those few business owners who apparently
do not value my right to use public accommodations without suffering immediate
and long-term health consequences.
FURTHER AFFIANT SAYETH NOT.
(Affiant's Name)
SUBSCRIBED AND SWORN to before me this y day
of . ten+t AA_� 200I.
e-L-o'
Notary Public in and r St County, Iowa
sON J.ZENOR
COMMISSION NO. 189789
TV MY COMM SSION EXPIRESwe ' / Od
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, L.L.C. d/b/a DUBLIN BAY; EQUITY NO. EQ-CV040013
DE PAULA, INC. d/b/a CAFE BEAUDE-
LAIRE INTERNATIONAL CUISINE &
BAR; STEVE SOESBE d/b/a TRADE-
WINDS CAFE; ROZEBOOM FOODS,
INC. d/b/a WHISKEY RIVER; and
TOM ZMOLEK, d/b/a PEOPLE'S BAR
& GRILLE,
Plaintiffs, I
VS. AFFIDAVIT OF i ►1 l G
CITY OF AMES, IOWA,
Defendant.
STATE OF IOWA, STORY COUNTY ss:
On this day of c.y�� , 2001, the undersigned, after first
being duly sworn on oath, deposes and states as follows:
I respectfully wish to file with you this Affidavit in support of the City of Ames, in its
efforts to enforce the recent ordinance prohibiting smoking in Ames restaurants.
Ames is blessed with a very nice variety of restaurants. We no longer need to travel to
Des Moines or elsewhere to enjoy a good meal. We dine out at least three times each week, as
do many of our friends. Prior to the adoption of this ordinance by the Ames City Council, my
wife and I had stopped going to several Ames restaurants (Cafe Beaudelaire and Wallaby's)
where we enjoyed the food but were significantly bothered by the cigarette smoke in the
environments. Our eyes were irritated in their smoky environments and we decided it was not an
enjoyable experience. We went only to those restaurants with a smoke-free environment.
Some enlightened restaurant owners like Lovish at Cafe Lovish (very good Colombian
food) went smoke-free perhaps five years ago in response to the prevailing wish of many of his
patrons. His cafe is next door to Cafe Beaudelaire.
After the August 1, 2001, implementation of the new non-smoking ordinance, we
returned after many years of absence to both of the restaurants (Beaudelaire and Wallaby's) we
formerly patronized but were driven away by their smoky environments. The new smoke-free
environment was consistent now with their good food. Nowhere else can one enjoy a Brazilian
sandwich called a Baru. It is great. They also prepare other Brazilian specialty dishes not
available elsewhere in Ames. I will not go there again if the non-smoking ordinance is thrown
out.
I am outraged by the recent legal action taken by a few restaurant/bar owners to enjoin
the City of Ames from enforcing this progressive, health-based ordinance. I stand with you and
the City in your efforts to defend us against the harmful effects of someone else's poor judgment.
FURTHER AFFIANT SAYETH
PhWiiy
SUBSCRIBED AND SWORN to before me this day of _ _C 2001.
Not %Pub c in and for Story County,Iowa
T
C
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, L.L.C. d/b/a DUBLIN BAY; EQUITY NO. EQ-CV040013
DE PAULA, INC. d/b/a CAFE BEAUDE-
LAIRE INTERNATIONAL CUISINE &
BAR; STEVE SOESBE d/b/a TRADE-
WINDS CAFE; ROZEBOOM FOODS,
INC. d/b/a WHISKEY RIVER; and
TOM ZMOLEK, d/b/a PEOPLE'S BAR
& GRILLE,
Plaintiffs,
VS. AFFIDAVIT OF nor'�'
CITY OF AMES, IOWA, .
Defendant.
STATE OF IOWA, STORY COUNTY ss:
On this day of _SV_07( , 2001, the undersigned, after first
being duly sworn on oath, deposes and states as follows:
(Put your statement here in your own words. Use as much space as needed.)
I am writing this affidavit in support of the Ames Tobacco Free Ordinance. I am currently in the process of completing a
research project for my graduate class at the University of Iowa. My group will be evaluating the attitudes of Ames residents
about the ordinance. Our hypothesis states that we believe Ames residents are neutral or supportive of the ordinance.
In completing our literature review, I have found numerous abstracts and articles stating the damaging effects of
environmental tobacco smoke to not only customers but to employees as well. The business owners are not only overlooking
the health impact on customers but overlooking the health impact on their own employees.
A research study completed by Eisner, Smith and Blanc(1998) stated that following statewide legislation mandating smoke-
free bars and taverns,bartenders reported a substantial reduction in workplace ETS exposure. The prevalence of respiratory
and sensory irritation symptoms,which initially affected the majority of bartenders,declined markedly after the smoking ban.
According to research by Laranjeira and Dunn(2000), waiters had over double the carbon monoxide levels after working a
nine-hour shift when compared to medical students who had not been exposed to any nicotine. The research concluded that
exposure to environmental tobacco smoke is the most likely explanation for the increase in carbon monoxide levels among
these non-smoking waiters.
Policies that ban smoking in the workplace are the most effective and generally lower all nicotine concentrations to less than
1 microgram per meter cubed according to research by Hammond (1999). Workplaces that allow smoking generally range
from 2 to 6 micrograms of nicotine per meter cubed.
In an article written by Stanton Glantz, PhD., "There is now evidence from so many cities of varying location, size, and
demographics that the question of whether clean indoor air ordinances affect restaurant revenues— adversely or otherwise -
should be considered closed. Local officials can now go about their business of protecting the public from the toxins in
secondhand smoke without worrying about this phony issue."
This same article by Glantz, stated that sales tax data was collected from 81 localities where ordinances were passed. Sales
tax data showed no effect on revenues. Sales tax revenue is a good way to measure economic impact because the data is
objective and tax authorities collect it with no interest in the impact of a clean indoor air ordinance. Secondly, sales tax
revenue is collected at all restaurants. Thirdly, sales tax revenue data is available for over long periods of time, so it is
possible to adjust for underlying economic trends or seasonal variability.
New research consistently discusses how the tobacco industry jeopardizes facts and works very hard to change opinions and
rally against not only the passage,but the continuation of ordinances throughout the country. Glasgow(1997) reported, "If
all workplaces in the United States were smoke-free,an additional 178,000 smokers would stop smoking, and, among those
who continued to smoke,they would consume 10 billion fewer cigarettes per year. There is simply no other tobacco control
intervention that can contribute this much to public health this quickly—for both nonsmokers and people who would like to
quit—as creating smoke-free environments."
I think that Ames residents should be reminded how powerful the tobacco industry is and how strong their efforts are to
defeat ordinances such as ours.
FURTHER AFFIANT SAYETH NOT.
(Af 1 's ame)
SUBSCRIBED AND SWORN to before me this c�( t day of 2001.
0. �e ---
Not Public in and for Story County,Iowa
w
P
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, L.L.C. d/b/a DUBLIN BAY; EQUITY NO. EQ-CV040013
DE PAULA, INC. d/b/a CAFE BEAUDE-
LAIRE INTERNATIONAL CUISINE &
BAR; STEVE SOESBE d/b/a TRADE-
WINDS CAFE; ROZEBOOM FOODS,
INC. d/b/a WHISKEY RIVER; and
TOM ZMOLEK, d/b/a PEOPLE'S BAR
& GRILLE,
Plaintiffs,
VS. AFFIDAVIT OF
CITY OF AMES, IOWA,
Defendant.
STATE OF IOWA, STORY COUNTY ss:
On this day of 2001,the undersigned,after first
being duly sworn on oath,deposes and states as follows:
As a nation we have become more educated on the health risks associated with cigarettes and secondhand smoke.
Because one of my sons suffers from asthma, I consider it vital to the welfare of my family and myself to be able to
dine in an atmosphere that is free of smoke.
Last Saturday my family and I went to Wallaby's along with another family to eat and watch the Iowa State vs. Ohio
football game. The place was filled to overflowing and everyone was having a great time. I was so appreciative
that I didn't have to enter a smoke-filled atmosphere with my family to enjoy the game. The only things that that
filled the air that day were the shouts of enthusiastic support for ISU!
For the sake of our children's health and well-being, I respectfully request that the court deny the plaintiffs request
for an injunction.
FURTHER AFFIANT SAYETH NOT.
Craig T.Marrs
SUBSCRIBED AND SWORN to before me this day of 72001.
Notary Public in and for Story County,Iowa
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, L.L.C. d/b/a DUBLIN BAY; EQUITY NO. EQ-CV040013
DE PAULA, INC. d/b/a CAFE BEAUDE-
LAIRE INTERNATIONAL CUISINE &
BAR; STEVE SOESBE d/b/a TRADE-
WINDS CAFE; ROZEBOOM FOODS,
INC. d/b/a WHISKEY RIVER; and
TOM ZMOLEK, d/b/a PEOPLE'S BAR
& GRILLE,
Plaintiffs,
VS. AFFIDAVIT OF S7r P,
CITY OF AMES, IOWA,
Defendant.
STATE OF IOWA, STORY COUNTY ss:
On this day of , 2001, the undersigned, after first
being duly sworn on oath, deposes and states as follows:
My name is Peter Q. Wolfe and I work as a staff physician at McFarland Clinic in Ames, Iowa.
My professional address is: McFarland Clinic, P.C. 1215 Duff Avenue, Ames, Iowa 50010. My
work telephone number is 515-239-4495. I am also a Story County resident and my home
address is: 5508 Lincoln Way Ames, Iowa 50014. -
I have been employed at McFarland Clinic, where I am a shareholder and staff physician, since
1986. My professional experiences include working both in the areas of Family Medicine and
Occupational Health. Part of my job duties include seeing patients with respiratory problems, as
well as doing evaluations on employees for respiratory status, wearing respirators, etc. Thus, I
see firsthand the negative impact smoking has on people who smoke, as well as those who are
exposed to secondhand smoke. Many of my patients who do not smoke have jobs where they are
employed as bartenders or food servers, and happen to have chronic problems with sinusitis and
bronchitis that I believe is directly related to their exposure to secondhand smoke. I have also
witnessed the more serious health problems that go with second-hand smoke, including asthma,
emphysema, and even lung cancer. Without belaboring the point, I have no doubt of the hazards
of secondhand smoke as it relates to public establishments, including bars and restaurants.
On a more personal level, I have avoided restaurants that have allowed smoking in the past. The
Ames smoking ordinance has made a difference for me as to where I choose to eat. I have
visited several restaurants since August 1, including Wallaby's and Cafe Beaudelaire, where the
atmosphere was pleasing and pleasant, and I would certainly return to these establishments in the
future if they remain smoke-free.
I would also like to address what I feel is underneath this injunction and what is not being said
by the businesses involved in this suit. I feel that one of the primary reasons that they object to
the ordinance is not that they do not believe in the hazards of secondhand smoke, but that they
resent outside influences dictating what they can and cannot do in their businesses. I happen to
know that some of these business owners and staff are smokers. This ordinance brings out into
the open their own smoking addictions and the desperation and anxiety they feel in regards to
smoking, which then translates into fear and anger towards those who are in support of the
ordinance.
In my professional and personal opinion, I feel that every restaurant, bar, and public place should
be completely smoke-free. I feel this should extend to the entire state of Iowa. As you know,
California has had very few problems with their smoke-free ordinance.
If you have any questions, feel free to call me at 515-239-4496.
FURTHER AFFIANT SAYETH NOT.
Peter Q. Wolfe, M.D.
SUBSCRIBED AND SWORN to before me this day of
12001.
Notary Public in and for Story County, Iowa