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Home My WebLink AboutA037 - Motion for Summary Judgment 1I - Z -o1 C�, to - City Attorney's Office 515 Clark Avenue,P.O.Box 811 Caring People Ames IA 50010 Qualify Programs , Exrep(iarral service Phone: 515-239-5146 •Fax: 515-239-5142 October 30, 2001 The Honorable Ted Tedesco,Mayor And Members of the City Council Of the City of Ames, Iowa Re: Smoking Regulations,Litigation Dear Mayor Tedesco and Council Members: With this is the Motion for Summary Judgment and related filings by Plaintiffs seeking to have the ordinance enacting regulations with respect to smoking areas declared void. I will file a resistance unless instructed otherwise. Yours truly, V John R.Klaus City Attorney 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. EQCV -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 ) �` ZMOLEK, d/b/a PEOPLES BAR ) &GRILLE, ) ` Plaintiffs, ) VS. ) CITY OF AMES, IOWA, ) PLAINTIFFS' AND INTERVENOR/ PLAINTIFF'S MOTION FOR Defendant. ) SUMMARY JUDGMENT (Oral Argument Requested) LOVISH BEDERAZACK d/b/a ) CAFE LOVISH, ) Intervenor/Plaintiff, ) vs. ) CITY OF AMES, IOWA ) Defendant, ) COME NOW the Plaintiffs and Intervenor/Plaintiff, pursuant to Rule 237 of the Iowa Rules of Civil Procedure, and for their Motion for Summary Judgment state as follows: 1. Plaintiffs filed their Petition for Declaratory Judgment on September 24, 2001 in which they requested certain declarations regarding a new ordinance in Ames as set forth in the Petition. Additionally, a temporary injunction was requested. 2. Defendant City of Ames, Iowa, filed its Answer on or about September 26, 2001, v requesting the court deny the temporary injunction and dismiss the Petition. 3. On October 2, 2001, pursuant to an order for hearing filed September 24, 2001, Plaintiffs' Request for Temporary Injunction was heard before Judge Carl D. Baker. The Court filed its Order on Request for Temporary Injunction on October 23, 2001 in which the Plaintiffs' Motion for Temporary Injunction was denied. 4. Summary Judgment should now be entered for Plaintiffs and Intervenor/Plaintiff as other relevant filings show there is no genuine issue as to any material fact and Hospitality Providers are entitled to a judgment as a matter of law. The Memorandum of Authorities and Supporting Statement as required by Iowa Rule of Civil Procedure 237(h) is filed contemporaneously herewith and further supports entry of the relief Hospitality Providers request. WHEREFORE, based on the foregoing, Plaintiffs and Intervenor/Plaintiff pray that this court set this matter for hearing (oral argument allowed) and thereafter grant them summary judgment which includes a declaration that: a. The new ordinance, as defined in the Petition, 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; b. The new ordinance exceeds the City's home rule authority as set forth in Article IlI, Section 38A of the Constitution of. the State of Iowa and therefore void and of no effect; c. 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; 2 d. The new ordinance is inconsistent, irreconcilable and in conflict with the state law of Iowa and therefore void and of no effect; and e. Other and further relief as the Court deems equitable and just is appropriate and thereby ordered; all as more specifically prayed for in the Petition for Declaratory Judgment filed herein; including an award for costs. Respectfully Submitted, LB - _. FRED L. DORR PK0001300 By: CHARLES F. WASKER 801 Grand Avenue, Suite 3100 Des Moines, Iowa 50309 Telephone (515) 283-1801 FAX: (515) 283-1802 ATTORNEYS FOR PLAINTIFFS AND INTERVENOR/PLAINTIFF ORIGINAL FILED. CERTIFICATE OF SERVICE COPY TO: The undersigned certifies that the foregoing Instrument was served upon all parties to the above cause to each of the attorneys of record herein at their respective addresses disclosed on the pleadings on i o -d CI-O I 2— John R. Klaus 13y �KU-S-Mail ❑ FAX City Attorney ❑ Hand Delivered ❑ Overnight Courier 515 Clark Ave ❑ Federal O other: P.O. Box 811 signature Ames, Iowa 50010 ATTORNEY FOR DEFENDANT, CITY OF AMES, IOWA Liti gation/Tobacco(Ames)/MotionForSurnmaryJudgment 3 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. EQCV -40013 DE PAULA, INC. d/b/a CAFE BEAUDELAIRE ) INTERNATIONAL CUISINE &BAR; STEVE SOESBE d/b/a TRADEWINDS ) (1 r CAFE; ROZEBOOM FOODS, INC. d/b/a WHISKEY RIVER; and TOM ) I r �Cr 0 2001 ZMOLEK, d/b/a PEOPLES BAR ) &GRILLE, Plaintiffs, ) vs. ) CITY OF AMES, IOWA, ) PLAINTIFFS' AND INTERVENOR/ PLAINTIFF'S STATEMENT OF Defendant. ) MATERIAL FACTS NOT IN DISPUTE LOVISH BEDERAZACK d/b/a ) CAFE LOVISH, ) Intervenor/Plaintiff, ) vs. ) CITY OF AMES, IOWA ) Defendant, ) COME NOW the Plaintiffs in the above captioned matter and for their statement of material facts as to which they contend there is no genuine issue to be tried, filed pursuant to Iowa Rule of Civil Procedure 237(h), set forth the following: I. Plaintiffs are owners and operators of certain businesses located in Ames, Story County, Iowa as provided in the Petition for Declaratory Judgment and Intervention Petitions subsequently filed. See Petition and Intervention Petition. 2. The Defendant City of Ames, Iowa 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. Id. 3. The Iowa District Court for Story County has jurisdiction to hear this matter pursuant to Iowa Code Section 602.6101 (2001). Id. 4. Venue is appropriate in Story County pursuant to Iowa Code Section 616.16 (2001). Id. 5. Chapter 142B of the Code of Iowa(2001) allows for smoking in public places and public meetings within designated smoking areas. Section 142B.2(1), Code of Iowa (2001). Id. 6. 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. Section 14213.6, Code of Iowa(2001). Id. 7. The Defendant City of Ames, Iowa ("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 for reference to the petition filed herein. Id. 8. 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. Id. 2 9. 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. IL Respectfully Submitted, By. 4 � , FRED L. DORR 001300 01 By: �- 4 CHARLES F. WASKER 801 Grand Avenue, Suite 3100 Des Moines, Iowa 50309 Telephone (515) 283-1801 FAX: (515) 283-1802 ATTORNEYS FOR PLAINTIFFS AND INTERVENOR/PLAINTIFF 3 STATE OF IOWA ) )SS: COUNTY OF POLK ) I, Fred L. Dorr,being first duly sworn upon oath, depose and state that I have read the foregoing Plaintiffs' and Intervenor/Plaintiff s Statement of Material Facts Not in Dispute; and that the statements contained therein are true and correct to the best of my knowledge and belief. Fred L. Dorr SUBSCRIBED AND SWORN to before me this d 7 day of October, 2001. .lAn-. ROBERTS MY SION EXPIRES 2-003 -4 l S 905 8 Not ry Public in and for the State of Iowa ORIGINAL FILED. COPY TO: John R. Klaus CERTIFICATE OF SERVICE City Attorney The undersigned certifies that the foregoing instrument was served upon all parties to the above cause to each of the attorneys 515 Clark Ave of record herein at their respective addr sses disclosed on the P.O. BOX 811 pleadings onio a L?-nI 20 By A U.S.Mail ❑ FAX Ames, Iowa 50010 ❑ Hand Delivered ❑ Overnight Courier ❑ Federal ress 17 Other: � ATTORNEY FOR DEFENDANT, signature K (/10{'/l�L, CITY OF AMES, IOWA Li tigation/Tobacco(Ames)/StatementM aterial Facts 4 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. EQCV -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 ) ZMOLEK, d/b/a PEOPLES BAR ) `' OCT 2�� &GRILLE, ) -- --- -- —j LL ?iMi Plaintiffs, ) ---'-- -•---�-- vs. ) CITY OF AMES, IOWA, ) PLAINTIFFS' AND Defendant. ) INTERVENOR PLAINTIFF'S WITHDRAWAL OF CLAIM FOR PERMANENT LOVISH BEDERAZACK d/b/a ) INJUNCTION CAFE LOVISH, ) Intervenor/Plaintiff, ) vs. ) CITY OF AMES, IOWA ) Defendant, ) COME NOW the Plaintiffs and Intervenor Plaintiff and for their filing as styled above, state to the Court as follows: 1. In the original Petition and Intervention Petition previously filed, the Plaintiffs and Intervenor Plaintiff sought, among other relief, an Order permanently enjoining the City from enforcing and applying the new ordinance, as that "new ordinance" was defined in the Petition. 2. As a result of this withdrawal, the relief sought is a declaration that the same new ordinance is void and of no effect for the reasons previously alleged; and for such other and further relief as the Court deems equitable and just. WHEREFORE, Plaintiffs and Intervenor Plaintiff hereby now withdraw their request for permanent injunction and otherwise reaffirm their request for Declaratory Judgment relief as originally plead, as well such other and further relief as the Court deems equitable and just. Respectfully Submitted, By: FRED L. DORR PK 01300 By: CHARLES F. WASKER 801 Grand Avenue, Suite 3100 Des Moines, Iowa 50309 Telephone (515) 283-1801 FAX: (515) 283-1802 ATTORNEYS FOR PLAINTIFFS AND INTERVENOR/PLAINTIFF - HOSPITALITY PROVIDERS ORIGINAL FILED. COPY TO: John R. Klaus City Attorney CERTIFICATE OF SERVICE 515 Clark Ave The undersigned certifies that the foregoing instrument was served upon all parties to the above Cause to each of the attorneys P.O. BOX 811 of record herein at their respective addressesdisclosed on the Ames, Iowa 50010 pleadings cn /D -a, %-�/ 20_ By ;PI'-U.S.Mail ❑ FAX ❑ Hand Delivered ❑ Overnight Courier ATTORNEY FOR DEFENDANT, ❑ Feder Ewess a ou,er: CITY OF AMES, IOWA signature 2