HomeMy WebLinkAboutA036 - Order on request for Temporary Inuunction 10/23i2001 15:42 NEVADA CLERK OF COURT � AMES CITY ATTY NO.119 D004
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. EQ-CV040Q13
DEPAULA, INC. d/b/a CAFE -
BEAUDELAIRE INTERNATIONAL
CUISINE &BAR; STEVE SOESBE
i
d/b/a TRADEWINDS CAFE; f
ROZEBOOM FOODS, INC. d/b/a ) `�
WHISKEY RIVER; and TOM ZMOLEK, ) ORDER ON REQUEST FCk
d/b/a PEOPLE'S BAR&GRILLE, ) TEMPORARY INJUNCTION" i
Plaintiffs, )
V. ) 1.
CITY OF AMES, IOWA, )
Defendant. ) i
Hearing on the Plaintiffs' request for temporary injunction was held October 2,
2001, The Plaintiffs appeared by their attorney Fred L. Dorr. Appearing for the City of
Ames was City Attorney John R- Klaus.
The Defendant City of Ames passed an ordinance which, in effect, regulates the
hours when food service establishments in the City may permit smoking within their
places of business. The Plaintiffs are seven such establishments, doing business under
the names of Cyclone Truck Stop, Wallaby's, Dublin Bay, Caf€Beaudelaire International
Cuisine &Bar, Tradewinds C66, Whiskey River, and Peoples Bar& Grill. The
Plaintiffs have filed a petition requesting a permanent and temporary injunction against
enforcement of the ordinance and requesting declaratory judgment against the City
declaring the ordinance void- In particular,the Plaintiffs contend that the ordinance;
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10/23/2001 15:42 NEVADA CLERK OF COURT 4 AMES CITY ATTY NO. 119 D005
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a. Is an unreasonable and illegal usurpation by the City of preemptive powers
reserved to the State of Iowa(in Chapter 14213 of the Code);
b. Exceeds the City's home rule authority as set forth in Article III, Section 38,A
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 §§ 364.1, 364.2(2) and (3), and 364.3; and
d. Is inconsistent, irreconcilable and in conflict with the State law of Iowa.
(See petition, p. 4).
1. Statement of the law regarding temporary injunction
Under Rule 321 (a) of the Iowa Rules of Civil Procedure, a temporary injunction
may be allowed "[w]hen the petition, supported by affidavit, shows the plaintiff is
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entitled to relief which includes restraining the commission or continuance of some act
which would greatly or irreparably injure plaintiff... ." 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." Max 100,L.C. v.
Iowa,Realty Co_, 621 N.W.2d 178, 180 (Iowa 2001) (quoting,Kleman v. Charles City
Police Dep't, 373 N,W_2d 90, 96 (Iowa 1985)), "The decision to issue or refuse a
temporary injunction rests largely within the sound discretion of the trial court_" Id.
"A temporary injunction is a preventive remedy to maintain the status quo of the
parties prior to final judgment and to protect the subject of the litigation." Kleman, 373
N.W_2d at 95. "Generally,the issuance of az injunction invokes the equitable powers of
the court and courts apply equitable principles_" Max 100, 621 N.W.2d at 181. "Rules of
evidence are applied more strictly on final hearing of a cause than on an application for
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10/23/2001 15:42 NEVADA CLERK OF COURT 4 AMES CITY ATTY NO. 119 9006
temporary injunction, when evidence that would not be competent to support a perpetual
injunction may properly be considered." Kleman, 373 N.W1d at 95 (citing Iowa R. Civ.
P. 321 (affidavits may be considered in determining whether a temporary injunction may
be allowed))-
A plaintiff is not entitled to relief under Rule 321 (a)unless there is a showing
that the plaintiff is likely to succeed on the merits of the claim.. Max 100, 621 N.W_2d at
181. "The standards considered in granting temporary injunctions are similar to those for f
permanent injunctions, except temporary injunctions require a showing of the likelihood
of success on the merits instead of actual success." Id. Furthermore, as ;noted by the
Iowa Supreme Court in Beidenkopf v. Des.Moines.Life Ins. Co., "[t]he granting or refusal
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of the demand for a temporary injunction is not always a matter of right, even where the
petition shows probable right of relief on final hearing." 160 Iowa 629, 638-39, 142
NW. "An injunction issue where junction will not ihe the right of the complainant,
434 (1913). f
which it is designed to protect, depends upon a disputed question of law about which I
hah g P p
there;may be doubts,which has not been settled by the ... law of this state." Id. (quoting
Stevens v. R.R. Co., 20 NJ- Eq. 126).
It is generally agreed that this standard of"likelihood of success"must be met
whenever a party is seeking to enjoin governmental action. The general rule is that "[a]
temporary injunction may issue on a strong showing of the invalidity of the statute,
ordinance, or regulation, the enforcement of which is challenged, and of probable success
on the merits." 43,A. C.J.S. Injunctions § 128 at 237 (1978). However, "where there is
not a strong showing that plaintiff will ultimately prevail on the merits, a temporary
injunction will not be issued." Id. at 238-39. Similarly, it is stated in 42 Am.Jur.2d
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10/23/2001 15:42 NEVADA CLERK OF COURT 4 AMES CITY ATTY NO.119 D007
Injunctions § 172 at 759-60 (2000),"Where party seeks a preliminary injunction to block
a government action taken in the public interest pursuant to a statutory or regulatory f
scheme, the party must demonstrate a likelihood of success on the merits, rather than I.
merely demonstrating sufficiently serious questions going to the merits to make them a
fair ground for litigation," ``Success on the merits of the claim must be shown in
addition to irreparable harm." Id. (citing Beal v. Stern, 184 k'_3d 117 (2"d Ciz. 1999);
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Forest Ciry Daly Housing, Inc. v. Town of,North Hempstead, 175 Fad 144 (2n CIT. ,I
1999)). The U.S. Second Circuit Court of Appeals in Forest City explained that the
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requirement of showing"likelihood of success"when a preliminary injunction is sought
against government action"reflects judicial deference toward legislation or regulations
developed through presumptively reasoned democratic processes." 115 F.3d at 149
(internal quotations omitted).
2 Plaintiffs' likelihood of success in the declaratory udgment action' {
The Ames ordinance, designated Chapter 21A of the Municipal Code of the city
of Ames, Iowa, prohibits smoking in"public places." Section 21A_200 excepts food
establishments from the prohibition during the hours of 8:30 p.zn_ and 6:00 a.m. Smoking
sections may be designated only during this time frame_ Additionally, if food service is
terminated on a regular basis earlier than 8.30 p-m., smoking sections may be designated
from that time to 6:00 a.m. Section 21A.201 provides that food establishments which, are
licensed to serve alcoholic beverages ("licensed premises"under Iowa Code §123.3(20))
are not subject to the smoking prohibitions if their non-alcoholic food service sales
comprise less than ten percent of their total sales.
In ruling on a request for temporary injunction,the Court undertakes a determination of the likelihood of
success on the merits; is does not vender judgment on the merits_ Thus,this ruling has no bearine on the
ultimate success or failure of the Plaintiffs' claim.
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10f23i2001 15:42 NEUADA CLERK OF COURT 4 AMES CITY ATTY NO.119 D009
Police Officers'Ass'n V. City of Sioux City,495 N.W.2d 687, 693 (Iowa 1993) (citing
City of Des Moines v. Gruen,457 N.W.2d 340, 341 (Iowa 1990); City of Council Bluffs v.
Cain, 342 N.W.2d 810, 812 (Iowa 1983)), Under home rule, "a municipality may enact
an ordinance on matters which are also the subject of state statutes, unless the ordinance
invades an area of law reserved by the legislature to itself." Id. A, city is free to ` set
standards and requirements which are higher or more stringent than those imposed by
state law, unless a state law provides otherwise." Iowa Code § 364.3 (3)_ "[L]imitations
on a
municipality's power over local affairs are not implied;they must be imposed by the
legislature." Sioux City Police Offices, 495 N.W.2d at 693 (citing Bryan v. City of Des
Moines, 261 N.W.2d 685, 687 (Iowa 1978)).
"A city has the power to enact an ordinance on a matter which is also the subject
of a statute if the ordinance and statute can be harmonized and reconciled." Id. "A,
municipal ordinance is `inconsistent' with a law of the general assembly and, therefore,
preempted by it, when the ordinance prohibits an act permitted by a statute, or permits an
act prohibited by a statute." Id. "In considering a claim that a city ordinance violates
`home rule' powers, we interpret the state law in such a manner as to render it
harmonious with the ordinance. If the statute and ordinance cannot be reconciled,the
statute prevails." Id. (citations omitted).
Plaintiffs contend that the ordinance is preempted by Iowa Code chapter 14213.
The Iowa Supreme Court explained the principles of preemption in Goodell v. Humboldt
County:
Preemption.may be express or implied. ... Express preemption occurs when the
general assembly has specifically prohibited local action in an area. ... Implied
preemption occurs in two ways. When an ordinance prohibits an act permitted by
a statute, or permits an act prohibited by a statute, the ordinance is considered
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with state law and preempted. Implied preemption may also occur
inconsistent � p p p '
When the legislature has covered a subject by statutes in such a manner as to
demonstrate a legislative intention that the field is preempted by state law,
(Iowa 1998 citations and quotations omitted). The court then
575 N.W.2d 486, 492-93 (I ) (
°� requiresso e le islative expression of an Intent to preempt home
stated that Iowa law zn g p j
rule authority, or some legislative statement of the state's transcendent interest in
regulating the area in a uniform manner_" Id. In other words, "[t]he court may not find
preemption of an entire area unless the legislature has expressed its desire for statewide l
uniformity or has otherwise expressed an intention to preclude local regulation of a !:
complete field." Id. at 507.
There is no indication that the state legislature, in enacting Iowa Code chapter
142B, intended to preempt the field of regulation of smoking throughout the state. Two
provisions are particularly relevant to this issue:
Section 142B.2(2) 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.
Section 142B.6 provides in part:
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.
Section 142B.2 (2) clearly anticipates that there may be"other law, ordinance, or
regulation" which prohibits smoking in public places. The statute expressly makes
exception to the provision allowing persons in control of public places to designate
smoking areas. The plain meaning of section 142B.2 (2) is that in places where smoking
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A municipal ordinance is presumed to be reasonable, valid and constitutional
unless it is plainly void. Cedar Raids Human Rights Comm, v, Cedar Rapids Community
Sch, Dist., 222 N_W.2d 391, 399 (Iowa 1974); Mason City v. Zerble, 250 Iowa 102, 110,
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93 N.W.2d 94, 98-99 (1958). The burden is on the party attacking the ordinance to show F
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it is invalid, and evidence of its invalidity must be clear. Carter,Lake v. Anderson
Excavating& Wrecking Co,, 241 N.W.2d 896, 901 (Iowa 1976) (citing cases).
The Plaintiffs' preliminary showing of the ordinance's invalidity for purposes of
temporary injunction is not convincing. First,under the home rule provisions in the Iowa
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Constitution and the Iowa Code, cities have unlimited powers to enact ordinances unless
specifically restricted by statute or the constitution. Under the Iowa Constitution,
Municipal corporations are granted home rule power and authority, not i
inconsistent with the laws of the general assembly, to determine their local affairs
and government, except that they shall not have power to levy any tax unless
expressly authorized by the general assembly.
Iowa Const, art. III, § 38A; Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 568 (Iowa
2000). Similarly, Iowa Code section 364.1 provides:
A city may, except as expressly limited by the Constitution, and if not
inconsistent with the laws of the general assembly, exercise any power and
perform any function it deems appropriate to protect and preserve the rights,
privileges, and property of the city or of its residents, and to preserve and improve
the peace, safety, health, welfare, comfort, and convenience of its residents.
Crippen, 618 N.W.2d at 568. "In interpreting cities' home rule power, this court has
noted that cities now have the authority to act unless a particular power has been denied
them by statute.'' Id. (citing City of Des Moines v. Master Builders of Iowa, 498 N_W.2d
702, 703-04 (Iowa 1993)).
Section 364.1 "grants municipal corporations broad authority to regulate matters
of local concern, subject to preemptions by the laws of the general assembly." Sioux City
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is prohibited by the fire marshal or by other law, ordinance, or regulation, smoking areas
May not be designated. Section 142B.2 (7) does not give blanket permission to
restaurants to designate smoking areas; permission is given only when other law does not
prohibit smoking. Courts may not, under the guise of statutory construction, add to or
alter the plain meaning of a statute. Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996).
"Nor, when language used is plain and unambiguous,may we speculate about legislative
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intent apart from statutory wording." Berger v. Iowa Fin. Auth., 593 N.W.2d 136, 139
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(Iowa 1999). Section 142B.2 recognizes that there may be ordinances which prohibit
smoking in public places, therefore,the Ames ordinance prohibiting smoking is not in
conflict with this section.
Section 142B.6 does not negate the meaning of section 142B.2. The section
requires the equitable and uniform implementation, application, and enforcement of both
state and local laws. Only those local laws which are inconsistent with chapter 142B are
superseded by the statute. To read section 14213.6 to mean that cities are precluded from
passing ordinances prohibiting smoking in public places would ignore the exception for
ordinances in section 142.2. As previously stated, an ordinance is"inconsistent" with a
statute when it prohibits an act permitted by the statute. It is well-accepted that all parts
of an enactment must be considered together without placing undue importance on any
single portion. Mortensen v. Heritage Mut. .lns. Co., 590 N_W.2d 35, 39 (Iowa 1999).
The Ames ordinance does not interfere with the uniform and equitable
implementation and enforcement of chapter 142B. An example of an ordinance which
conflicted with the uniform enforcement of a statute appears in,Iowa City v.
Wesringhouse Learning Corp.,264 N.W.2d 771 (Iowa 1978). The ordinance was
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irreconcilable with the statutory scheme of Iowa Code chapter 601 A because it provided
for a method of enforcement of anti-discrimination laws different from that provided by
the statute_ The ordinance provided a judicial determination of violations, whereas the
statute established a comprehensive plan for processing discrimination complaints
through an administrative procedure, subject to judicial review. Id. at 772-73. The court
found tha
t the ordinance frustrated the legislative purpose of the statute and was thus
irreconcilable with the statute. Id. at 773.
The Iowa legislature knows how to express its intentions to preempt a field of i
legislation, For example, Iowa Code section 728.11 (2001) states: "In order to provide
for the uniform application of the provisions of this chapter relating to obscene material
applicable to minors within this state, it is intended that the sole and only regulation of i
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obscene material shall be under the provisions of this chapter, and no municipality,
county or other governmental unit within this state shall matte any law, ordinance or
regulation relating to the availability of obscene materials...." See, Chelsea Theater 1
Corp. v. City of Burlington, 258 N.W.2d 372 (Iowa 1977) (holding ordinance regulating
obscene materials was irreconcilable with predecessor statute to §728,11 using similar
language).
The cases submitted by Plaintiffs, where other jurisdictions determined that
smoking ordinances similar to the Ames ordinance were invalid enactments, are
inapposite and unpersuasive of the Plaintiffs' position. In LDM, Inc, v. Princeton
Regional Health Comm., 336 N.J. Super. 277, 764 A.2d 507 (2000),the court found that
the New Jersey legislature's smoking legislation aimed to respect the public's "right to
smoke" while at the same time protect public health by encouraging restaurants to
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establish nonsmoking areas. 764 A.2d at 522. The statute expressly provided that
persons in charge of restaurants had authority to determine whether to provide an area for
nonsmokers. If the restaurant chose not to offer a nonsmoking area, they were simply
required to post a sign informing the public of that fact. 764 A.2d at 517. Thus,the city
ordinance banning smoking in restaurants could not be reconciled with the state law
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because it prohibited what the statute expressly permitted. Id. at 518. In contrast to the
New Jersey statute, Iowa Code section 142B.2 refers to a smoking prohibition with
limited exceptions for designation of smoking areas.
In the Michigan case,Mich. ,Restaurant Assoc. v. City of Marquette, 626 N.W-2d
418 (Mich.. App 2001), the court found that an ordinance banning smoking in restaurants
was in direct opposition to a statute which granted restaurant owners discretion to have
smoking areas in their restaurants. The Michigan statute expressly allowed food service
ti
establishments to designate a percentage of seating for smokers. Id. at 419- Unlike
section 142.2, it did not qualify that permission with any exceptions. Another section of
the same chapter expressly stated that municipalities were ;not permitted to regulate
aspects of food service establishments which were "subject to regulation under this part'
except for curtain responsibilities of local health departments. Id. at 421 (citing MCL
333.12915;MSA, 14.15(12915)). The statute regulating smoking in food service
establishments was a provision of the part controlled by the above section (MCL
333-12905), therefore, regulation of smoking by the ordinance was preempted. Id, at 422.
In Justiana v. Niagara County Dept. of Health, 45 F.Supp. 2d 236 (W.D.N.Y.
1999), cited by Plaintiffs,the court determined the local regulations were not preempted
by state law because the Act did not bar a government body with authority from adding
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more smoking restrictions to those of the Act_ The regulations were struck down,
however, because the board, which was only pemitted to promulgate rules, not legislate,
had overstepped its bounds by issuing rules more restrictive than existing legislation. Id.
at 245. Leonard v. Dutchess County Dept. of Health, 105 F.Supp. 2d 258 (S.D.N.Y. i
2000), likewise involved an administrative agency which exceeded its authority by
I
enacting regulations,which was a legislative function. j
Decisions by other jurisdictions have little bearing on the issue of preemption in {
this case because Iowa's statutes addressing smoking prohibitions is dissimilar to the
statutes of other states cited in those decisions.
Plaintiffs further argue that Iowa Code section 1 )7F.3 preempts the ordinance, r
"Municipal corporations shall not regulate, Iicense,
citing the following language: p �
inspect, or collect license fees from food establishments and food processing plants,
except as provided in this section." Chapter 137F regulates the operation of various
establishments which handle food for human consumption and provides for licensing;
inspections, and enforcement. It does not address the behavior of clientele of the
establishments, and it does not regulate smoking in the establishments. The Ames
ordinance regulates the activity of smoking in public places; it does not attempt to
regulate food establishments within the scope of section 137F.3. The statute does not
preempt the ordinance.
The Plaintiffs are unlikely to succeed on the merits of their claim. Therefore,
temporary injunction against enforcement of the ordinance is inappropriate.
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10/23/2001 15:42 NEURDA CLERK OF COURT -� RMES CITY RTTY NO. 119 D015
3 Irreparable harm to"Plaintiffs
Iowa Rule of Civil Procedure 321 requires that a plaintiff show the act
complained of, if not restrained, will `'greatly or irreparably injure plaintiff." In deciding
whether a temporary injunction should issue, "courts consider the circumstances
confronting the parties and balance the harm that a temporary injunction may prevent �.
against the harm that may result from its issuance." Max 100, 621 N.W.2d at 181
(citations omitted).
In "a court of equity may enjoin the enforcement of an unreasonable or I
general, I
invalid ordinance when the enforcement of the same would interfere with the conduct of
business or other property rights." 42 Am.Jur.2d Injunctions § 184 at 775 (2000).
However, courts will not enjoin enforcement of a valid ordinance. "The fact that an
enactment otherwise valid will cause some hardship or economic loss does not constitute `
grounds for restraining enforcement." 43A C.J.S-Injunctions § 127 at 236-37. Even if
the Ames ordinance is presumed invalid, a balancing of the injuries to the parties tends
to
favor denial of the temporary injunction, as shown below.
Plaintiffs allege they will suffer irreparable harm if the temporary injunction is not
granted. Leo DePaula, owner of Caf6 Beaudelaire, states in his affidavit that his gross
revenue dropped 29 percent the first month the ordinance went into effect and 24 percent
the second month,when compared to revenues in the same months one year ago- He
states the lunchtime business has dropped from 45-55 customers per day to 25-35, the
dinner business from 40-50 per day to an average of 25, and the afternoon business from
15-25 customers to very few. The business caters to many university professors,
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instructors, and students who like to smoke at the restaurant. He attributes the loss in
business to the smoking prohibition imposed by the new ordinance_
Jim Moran, general manager of People's Bar and Grill, states there has been a
significant drop in business during the non-smoking hours prescribed by the ordinance.
The restaurant suspended food service on Friday afternoons to accommodate smoking
patrons, resulting in losses of$500 to $700 per week. He anticipates possibly having to
completely discontinue Food service, which would result in higher insurance premiums
(due to serving alcohol without food). He states that some customers have taken their
Des Moines and Gilbert,Iowa, where smoking s not
business to restaurants in D i ,
prohibited, and established out-of-state customers who come to the area regularly for
events have been lost to other establishments because of the ordinance.
Dirk Rozeboom, owner of Whiskey River, states that he lost approximately
$1,000 during the first week of the ordinance. During the hours of 3:00 to 8:00 p.rn.,
average patronage dwindled from 20-40 people to one person_ He now closes the kitchen
at 3:00 p.m. to accommodate smokers, but loses $600 - $800 per week. He has also lost
customers to establishments outside of Ames.
On the other hand, the City submitted affidavits from a number of people,
including Ames residents, who state that they find it necessary to avoid restaurants where
smoking is permitted. Some state they are simply unable to tolerate second hand smoke
in restaurants for reasons such as pregnancy, asthma, emphysema, or general physical
discomfort. Several cited credible studies showing the deleterious effects of exposure to
second hand smoke on the health of the unborn, children, and adults. Several noted the
heightened vulnerability of restaurant workers who are exposed to smoke-filled
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environments on a regular basis, with greatly increased risk of serious illness. Dr_ Peter
Wolf, a physician at an Armes clinic, states that in his practice he has witnessed the
harmful effects of environmental smoke on employees of food establishments.
Many of the citizens' affidavits explain that since the ordinance came into effect,
they have enjoyed eating out at a greater variety of restaurants in the city. Some had .h
avoided the Plaintiffs' establishments previously because of smoke, but now patronize I
them- They have found the smoke-free environment enjoyable. Craig Marrs states that
he visited one of the Plaintiffs' businesses on a Saturday with his family and was very
appreciative of the absence of smoke_ He observed that the place "was l`xlled to
overflowing."
Two of the City's affidavits cite studies on the impact of no-smoking ordinances
on the revenues of food establishments_ The cited studies generally showed that the j
smoking bans do not affect restaurant sales in the long.run as sales to the non-smoking
public increase.
Thus, in summary, if the injunction is denied,the injury to Plaintiffs is a potential
loss in revenue because smokers are no longer inclined to dine at places where they were
accustomed to smoking, On the other hand, if the injunction is granted, the harrn to the
City's residents is a limited or potentially nonexistent availability of smoke-free food
service establishments in.the City. The studies cited by the City's affidavits and
statements from the non-smoking public that they are now drawn to businesses which
they formerly avoided because of smoky atmospheres (some naming the Plaintiffs'
establishments in particular) cast some doubt on the Plaintiffs' contention of great or
irreparable injury_ As smokers become accustomed to the new smoking restrictions and
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the Plaintiffs' businesses expand their customer base to include more non-smokers and
families during the non-smoking hours under the ordinance, the economic effect of the
ordinance may prove to have little or no ill effects on Plaintiffs. Plaintiffs have not
shown a probability that the setbacks they have experienced will continue.
The court in Tri-Nel Management, Inc. v. Board of,health of Barnstable, 433
Mass- 217, 741 N.E-2d 37, 46 (2001), in finding that the plaintiff restaurant failed to
show irreparable harm, considered studies similar to those cited by the City showing that
smoking restrictions in restaurants and bars have little or no effect on the restaurant
receipts.
An injunction is not granted where the injury is doubtful,tenuous, or speculative.
43 C1S. Injunctions § 24 at 806 (1978)• In considering the circumstances confronting
the parties,the e%idence does not show that the harm to be prevented by a temporary I
injunction outweighs the harm that may result if the injunction is denied. Accordingly,
the temporary injunction requested should not issue. .~
It is ordered as follows:
1- The Plaintiffs' motion for temporary injunction is denied. :, i
2, Count costs shall be assessed at the conclusion of the case_
3. The clerk shall notify counsel. 'v
Dated this a2 3 day of October,2001.
Carl D. Baker
District Court Judge
Copies:
Fred L- Dorr
John R. Klaus
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