HomeMy WebLinkAboutA038 - Affidavit in support of motion for summary judgment 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 j
INTERNATIONAL CUISINE&BAR;
STEVE SOESBE d/b/a TRADEWINDS
CAFE; ROZEBOOM FOODS, INC.
d/b/a WHISKEY RIVER; and TOM 2
ZMOLEK,d/b/a PEOPLES BAR
&GRILLE, ) �La'. k; ,a1
Plaintiffs, �~
)
VS. )
CITY OF AMES,IOWA, )
AFFIDAVIT IN SUPPORT
Defendant. ) OF MOTION FOR SUMMARY
JUDGMENT
LOVISH BEDERAZACK d/b/a )
CAFE LOVISH, )
Intervenor/Plaintiff, )
vs. )
CITY OF AMES, IOWA )
Defendant, )
STATE OF IOWA )
)SS:
COUNTY OF POLK )
On this o19 day of , 2001, the undersigned, after first
being duly sworn on oath, deposes and states as follows:
1. That I am an attorney licensed to practice law in the State of Iowa and am counsel for
Plaintiffs and Intervenor/Plaintiff in this litigation.
2. Plaintiffs and Intervenor/Plaintiff have filed a Motion for Summary. This Affidavit is
offered in support of that Motion.
3. Attached are true and correct copies of the "Smoking Prohibitions" sections of the
1989, 1991 and 1993 Iowa Code.
4. In 1989 and 1991, those prohibitions were found in Chapter 98A of the Code.
5. Starting in 1993,the same prohibitions were transferred to Chapter 142B of the Code.
6. Attached also is Chapter 1189 of the Session Laws for the 73rd General Assembly of
the State of Iowa(1990 regular session). That Chapter sets forth certain changes to the"smoking
in public places"provisions of Iowa law as noted therein. More specifically, a preemption clause
was added thereby to §98A.6 of the Code, in the form of a new unnumbered paragraph.
FURTHER AFFIANT SAYETH NOT. -1
FRED L. DORR
801 Grand Avenue, Suite 3100
Des Moines, Iowa 50309
Telephone (515) 283-1801 FAX (515) 283-1802
SUBSCRIBED AND SWORN to before me this 29th day of October , 2001.
W. 1-01W00
NOTARY PUBLIC IN XNb FOR THE
STATE OF IOWA
My Commission Expires: 6/4/02
2
r ,
ORIGINAL FILED.
COPY MAILED TO:
John R. Klaus
City Attorney
515 Clark Ave
P.O. Box 811
Ames, Iowa 50010
ATTORNEY FOR DEFENDANT,
CITY OF AMES, IOWA
CERTIFICATE OF SERVICE
UrderIved signed own" IM the brepoiV k wrnent was upon ao p"m b ft abow cause to each of me attorneys
of record herein at g* respecpaeds
pleadings on /0 f,G/ dsciosed onme
By. X U.S.Man O FAX
O Hand D*MW
❑ Feder QO O Courier
e
3
" J
VOLUME 13
f
CODE OF IOWA
1993
CONTAINING
ALL STATUTES OF A GENERAL
AND PERMANENT NATURE
Including the Acts of a permanent nature
of the Seventy-fourth General Assembly,1991,1992
StiPy of T xEs�
e
I
Published under the authority of Iowa Code chapter 2B
by the
Legislative Service Bureau
GENERAL ASSEMBLY OF IOWA
Des Moines
1992
{
i
1142A.7,UNIFORM ANATOMICAL GIFT ACT 1162
funeral director,as defined in chapter 156,upon suc- and,whether or not any remuneration is paid there.
cessfully completing a course in eye enucleation and for,is declared not to be a sale of such whole blood,
receiving a certificate of competence from the de- plasma, blood products, blood derivatives or other
partment of ophthalmology,college of medicine,of tissues,for any purpose,subsequent to July 1,1969.
the University of Iowa,may enucleate the eyes of a However,any person or entity that renders such ser-
donor. vice warrants only under this section that due care
3. A person who acts in good faith in accordance has been exercised and that acceptable professional
with the terms of this chapter,or under the anatomi- standards of care in providing such service according
cal gift laws of another state,is not liable for dam- to the current state of the medical arts have been fol-
ages in any civil action or subject to prosecution in lowed.Strict liability,in tort,shall not be applicable
any criminal proceeding for the person's act. to the rendition of such service.
4. The provisions of this chapter are subject to [C71,73,75,77;79,81,§142A.81
the laws of this state prescribing powers and duties
with respect to autopsies. 142A.9 Uniformity of interpretation.
[C71,73,75,77,79,81,§142A.7] This chapter shall be so construed as to effectuate
its general purpose to make uniform the law of those
142A.8 Service but not a sale. states which enact it.
The procurement,processing,distribution or use [C71,73,75,77,79,81,§142A.91
of whole blood,plasma,blood products,blood deriv-
atives and other human tissues such as corneas, 142A.10 Short title.
bones or organs for the purpose of injecting,trans- This chapter may be cited as the "Uniform Ana-
fusing or transplanting any of them into the human tomical Gift Act".
body is declared to be,for all purposes,the rendition [C71,73,75,77,79,81,§142A.101
of a service by every person participating therein
CHAPTER 142B
t
SMOKING PROHIBITIONS
This chapter not enacted as a part of this
title;transferred from chapter 98A in Code 1993
?s
142B.1 Definitions. 142B.5 Reserved.
rs'3
142B.2 Prohibition. 142B.6 Civil penalty for violation—uniform
142B.3 Responsibilities of proprietors. application.
142B.4 Areas posted
14211.1 Definitions. restaurants with a seating capacity greater than
As used in this chapter unless the contest other- fifty, all retail stores,lobbies and malls, offices, in-
wise requires; cluding waiting rooms,and other commercial estab-
1. "Bar"means an establishment or portiqn of an lishments;public conveyances with departures.trav-
establishment where one can purchase and consume el, and destination entirely within this state;
alcoholic beverages as defined in section 123.3,sub- educational facilities; hospitals, clinics, nursing
section 4, but excluding any establishment or por- homes,and other health care and medical facilities;
tion of the establishment having table and seating and auditoriums, elevators, theaters, libraries, art
facilities for serving of meals to more than fifty peo- museums,concert halls,indoor arenas,and meeting
ple at one time and where, in consideration of pay- rooms. "Public place"does not include a retail store
ment,meals are served at tables to the public. at which fifty percent or more of the sales result from
2. "Public meeting"means a gathering in person the sale of tobacco or tobacco products,the portion,
of the members of a governmental body,whether an of a retail store where tobacco or tobacco products
open or a closed session under chapter 21. are sold, a private, enclosed office occupied exclu-
3. "Public place"means any enclosed indoor area sively by smokers even though the office may be vis-
used by the general public or serving as a place of ited by nonsmokers, a room used primarily as the
work containing two hundred fifty or more square residence of students or other persons at an educa-
feet of floor space,including,but not limited to,all tional facility,a sleeping room In a motel or hotel,or
i -
1163 SMOKING PROHMMONS,;142B.6
each resident's room in a health care facility. The C93, §142B.2
w person in custody or control of the facility shall pro- section transferred from 19aA.2
T vide a sufficient number of rooms in which smoking
is not permitted to accommodate all persons who de-
sire such rooms. 142B.3 Responsibilities of proprietors. '
i
The person having custody or control of a public .
F. 4. "Smoking"means the carrying of or control place or public meeting shall make reasonable efforts 'over a lighted cigar,cigarette,pipe,or other lighted
smoking equipment. to prevent smoking in the public place or public
(C79,81,§98A.1] meeting by posting appropriate signs indicating no-
87 Acts,ch 219, §1;90 Acts,ch 1189, §1 smoking or smoking areas and arranging seating ac-
C93,§142B.1 cordingly.
(C79,81, §98A.3]
Subset transferred from 49eA � 87 Acts,ch 219,§3
Subsections renUIDbe7ed to
s. C93, §142B.3
142B.2 Prohibition. section transferred from 198A.3
1. A person shall not smoke in a public place or
in a public meeting except in a designated smoking 142B.4 Areas posted,
' `. area. This prohibition does not apply in cases in A person having custody or control of a public
which an entire room or hall is used for a private so- place or public meeting shall cause signs to be posted
cial function and seating arrangements are under the within the appropriate areas of the facility advising
control of the sponsor of the function and not of the patrons of smoking and no-smoking areas.In addi-
! '' proprietor or person in charge of the place.'This pro- tion the statement "Smoking prohibited except in
hibition does not apply to factories,warehouses,and designated areas"shall be conspicuously posted on
similar places of work not usually frequented by the all major entrances to the public place or*public
general public,except that an employee cafeteria in meeting.
such place of work shall have a designated nonsmok- [C79,81,§98A.4]
ing area. 87 Acts,ch 219, §4
2. Smoking areas may be designated by persons C93,§142B.4
having custody or control of public places,except in section transferred from 198A.4
.. places in which smoking is prohibited by the fire
marshal or by other law,ordinance,or regulation. 142B.5 Reserved.
3. Where smoking areas are designated,existing
physical barriers and existing ventilation systems 142B.6 Civil penalty for violation = uni-
shall be used to minimize the toxic effect of smoke form application.
in adjacent nonsmoking areas.In the case of public A person who smokes in those areas prohibited in
places consisting of a single room,the provisions of section 142B.2,or who violates section 142B.4,shall
this law shall be considered met if one side of the pay a civil fine pursuant to section 805.8,subsection
room is reserved and posted as a no-smoking area. 11 for each violation.
No public lace other than a bar shall be designated Judicial magistrates shall hear and determine vio-
as a smoking area in its entirety.If a bar has within lations of this chapter.The civil penalties paid pur-
its premises a nonsmoking area, this designation suant to this chapter shall be deposited in the county
shall be posted on.all entrances normally used by the treasury.
public. Enforcement of this chapter shall be implemented
If the public place is subject to any state inspec- in an equitable manner throughout the state.For the
tion process or under contract with the state, the u p rpose of equitable and uniform implementation,
person performing the inspection shall check for application,and enforcement of state and local laws
compliance with the posting requirement. and regulations,the provisions of this chapter shall
v A facility p y ty inspected b the department of inspec- supersede any local law or regulation which is incon-
e"'' tions and appeals shall be inspected by the depart- sistent with or conflicts with the provisions of this
tg g, ment for compliance with sections 142B.3 and chapter.
" 142B.4.
rt [C79,81, §98A.61
4. Notwithstanding subsection 1 of this section, 83 Acts,ch 123, §52, 209; 87 Acts, ch 219, §5; 90
smoking is prohibited on elevators. Acts,ch 1189, §3
[C79,81, §98A.2] C93, §142B.6
87 Acts,ch 219, §2;90 Acts,ch 1189, §2 Section transferred from 198A.6
t
VOLUME I
. ODE OF IOWA
1991
CONTAINING
ALL STATUTES OF A GENERAL
AND PERMANENT NATURE
Including the Acts of a permanent nature
of the Seventy-third General Assembly,1989, 1990
0�'Py OFIN
TNES?Q
0 O
0 — = 7>
"O
fe
106 .0
Published under the authority of Iowa Code chapter 14
by the
Legislative Service Bureau
GENERAL ASSEMBLY OF IOWA
Des Moines
1990
SMOKING PROHIBITIONS,08A.2
ings to restrain any person from acting as a distribu- who knowingly aids or abets in the evasion or at-
tor or subjobber without complying with the provi- tempted evasion of the tax or who knowingly violates
ssms of this division. the provisions of section 98.44,subsection 1,of this
[C71,73,75,77,79,81,§98.49) division,shall be guilty of a serious misdemeanor.
2. Any person who otherwise violates any provi-
98.50 Violations,penalties. lions of this division shall be guilty of a simple mis-
t. Any person who in any manner knowingly at- demeanor.
tempts to evade the tax imposed by this division or [C71,73,75,77, 79,81, §98.501
=n
CHAPTER 98A
SMOKING PROHIBITIONS
98A.1 Definitions. 98A.5 Enforcement of smoking prohibition. Repealed ti
98A.2 Prohibition. by 87 Acts,ch 219,§7.
98A.3 Responsibilities of proprietors. 98A.6 Civil penalty for violation—uniform application.
98A.4 Areas posted.
98A.1 Definitions. of the members of a governmental body,whether an
As used in this chapter unless the context other- open or a closed session under chapter 21.
wise requires: 4. "Bar"means an establishment or portion of an
1. "Smoking" means the carrying of or control establishment where one can purchase and consume
over a lighted cigar,cigarette,pipe,or other lighted alcoholic beverages as defined in section 123.3,sub-
smoking equipment. section 9, but excluding any establishment or por-
2. "Public place"means any enclosed indoor area tion of the establishment having table and seating
used by the general public or serving as a place of facilities for serving of meals to more than fifty peo- "-
work containing two hundred fifty or more square ple at one time and where,in consideration of pay-
feet of floor space, including,but not limited to,all meat,meals are served at tables to the public.
restaurants with a seating capacity greater than [C79,81,§98A.11
fifty,all retail stores,lobbies and malls, offices,in- 87 Acts,ch 219, §1;90 Acts,ch 1189,§1
cluding waiting rooms,and other commercial estab- Subactim 2 anwna"d
lishments; public conveyances with departures,
travel,and destination entirely within this state;ed- 98A.2 Prohibition.
ucational facilities;hospitals,clinics,nursing homes, 1. A person shall not smoke in a public place or
and other health care and medical facilities;and au- in a public meeting except in a designated smoking
ditoriums, elevators, theaters, libraries, art muse- area. This prohibition does not apply in cases in
ums, concert halls, indoor arenas, and meeting which an entire room or hall is used for a private so-
rooms. "Public place"does not include a retail store cial function and seating arrangements are under the
at which fifty percent or more of the sales result from control of the sponsor of the function and not of the
the We of tobacco or tobacco products,the portion proprietor or person in charge of the place.This pro-
of a retail store where tobacco or tobacco products hibition does not apply to factories,warehouses,and
are sold, a private, enclosed office occupied exclu- similar places of work not usually frequented by the
sively by smokers even though the office may be via- general public,except that an employee cafeteria in
ited by nonsmokers, a room used primarily as the such place of work shall have a designated nonsmok-
residence of students or other persons at an educa- ing area.
tional facility,a sleeping room in a motel or hotel,or 2. Smoking areas may be designated by persons
each resident's room in a health care facility. The having custody or control of public places,except in
Person in custody or control of the facility shall pro- places in which smoking is prohibited by the fire
Vide a sufficient number of rooms in which smoking marshal or by other law,ordinance,or regulation.
is not permitted to accommodate all persons who de- 3. Where smoking areas are designated,existing
sire such rooms. physical barriers and existing ventilation systems
k;_
3. "Public meeting'means a gathering in person shall be used to minimize the toxic effect of smoke
$88A.2,SMOKING PROHIBITIONS !
j;
in adjacent nonsmoking areas.In the case of public place or public meeting shall cause signs to be ;.,
places consisting of a single room,the provisions of within the appropriate areas of the facility
this law shall be considered met if one side of the patrons of smoking and no-smoking areas.In
room is reserved and posted as a no-smoking area. tion the statement Smoking prohibited except
to.
No public place other than a bar shall be designated designated areas"shall conspicuously posted oa
t
all major entrances to the public place or.public
as a smoking area in its entirety.If a bar has within meeting.
its premises a nonsmoking area, this designation [C79,81,§98A.41
'
shall be posted on all entrances normally used by the 87 Ate,ch 219,§4
public.
If the public place is subject to any state inspec- 98A,5 Enforcement of smoking prohibition.
tion process or under contract with the state, the Repealed by 87 Acts,ch 219,§7.
person performing the inspection shall check for
e8A.6 Civil penalty for violation-uniform
compliance with the posting requirement.
A facility inspected by the department of inspec- application.
tions and appeals shall be inspected by the depart A person who smokes in those areas prohibited in
ment for compliance with sections 98A.3 and 98A.4. section 98A.2, or who violates section 98A.4, shall
4. Notwithstanding subsection 1 of this section, pay a civil fine pursuant to section 805.8,subsection
smoking is prohibited on elevators. 11 for each violation.
[C79,81,§98A.2] Judicial magistrates shall hear and determine via
87 Acts,ch 219,§2;90 Acts,ch 1189,§2 lations of this chapter.The civil penalties deposited paid 1 -
suh. on s.NEW u�uree wr+srwh a suant to this chapter shall be osited in the county
88A.3 Responsibilities of proprietors. t Enforcement of this chapter shall be implemented
throughout the state.For the
The person having custody or control of a public in an equitable manner
place or public meeting shall make reasonable efforts purpose of equitable and uniform implementation,
to prevent smoking in the public place or public application,.and enforcement of state and local laws
j` meeting by posting appropriate signs indicating no- and regulations,the provisions of this chapter shall
smoking or smoking areas and arranging seating ac- supersede any local law or regulationwhich
is incon-
provisions of this
cordingly. sistent with or conflicts with the
[C79,81,§98A.31 chapter.
87 Acts,ch 219, §3 [C79,81,§98A.61
83 Acts,ch 123, §52,209;87 Acts,ch 219, §5;90
98A.4 Areas posted. Acts,ch 1289,$3
A person having custody or control of a public NEW umumbend pampaph 3
1
CHAPTER 99
HOUSES USED FOR PROSTITUTION OR GAMBLING
99.1 Houses of prostitution or other nuisances. 99.17 Costs'
99.18 Violation of injunction.
99.2 Injunction-procedure. 99.19 Procedure.
99.3 Notice-temporary writ-without bond. 99 20 penalty.
99.4 "Owners"defined-notice. 99.21 Abatement-sale of property.
99.5 Trial. 99.22 Fees.
99.6 Temporary restraining order.
99.7 Writ.-how served. 99.23 Breaking and entering closed building-
punishment.
99.8 Inventory. 99.24 Duty of county attorney.
99.9 Mutilation or removal of notice. 99.25 Proceeds
r 99.10 Notice. 99.26 Release of property.
99.11 Answer. 99.27 Mulct tax.
99.12 Scope of injunction. 99.28 Certification and payment of tax.
99.13 Repealed by 62GA,ch 400,§19.
••' 99.29 Collection of tax.
99.14 Evidence. 99.30 Application of tax.
99.15 Dismissal. 99.31 Tax assessed.
99.16 Delay in trial.
VOLUMEI
CODE OF 'IOWA
9
CONTAINING
ALL STATUTES OF A GENERAL
AND PERMANENT NATURE
Including the Acts of a permanent nature
of the Seventy-second General Assembly, 1987, 1988.
S�Py OF
Published under the authority of Iowa Code chapter 14
by the
Legislative Service Bureau
GENERAL ASSEMBLY OF IOWA
Des Moines
1988
§98.60,CIGARME AND TOBACCO TAXES
of this division, shall be guilty of a serious misde- lions of this division shall be.guilty of a sib
meanor. misdemeanor.
2. Any person who otherwise violates any provi- [C71,73,75,77,79,81,§98.501
CHAPTER 98A
SMOKING PROHIBITIONS
98A.1 Definitions. 98A.5 Enforcement of smoking prohibition Repealed by
98A.2 Prohibition. 87 Acts,ch 219,§7.
98A.3 Responsibilities of proprietors. 98A.6 Civil penalty for violation.
98A.4 Areas posted.
98A.1 Definitions. alcoholic beverages as defined in section 123.3,sub.
As used in this chapter unless the context other- section 9, but excluding any establishment or por
wise ems; tion of the establishment having table and seating
1. "Smoking" means the carrying of or control facilities for serving of meals to more than fifty
over a lighted cigar,cigarette,pipe,or other lighted people at one time and where, in consideration of
smoking equipment. payment,meals are served at tables to the public.
2. "Public place"means any enclosed indoor area [C79,81,§98A.11
used by the general public or serving as a place of 87 Acts,ch 219,§1
work,including,but not limited to,all retail stores, 98A.2 Prohibition.
offices containing three hundred or more square feet 1. A person shall riot smoke in a public place or in
of floor space, including waiting rooms of three a public meeting except in a designated smoking
hundred or more square feet of floor space,and other area. This prohibition does not apply in cases in
commercial establishments; public conveyances which an entire room or hall is used for a private
with departures, travel and destination entirely social function and seating arrangements are WOW
within this state; educational facilities; hospitals, the control of the sponsor of the function and ad cf
clinics, nursing homes, and other health.care and the proprietor or person in charge of the place.This
medical facilities; and auditoriums, elevators, the- prohibition does not apply to factories,warehouses,
aters, libraries, art museums, concert halls, indoor and similar places of work not usually frequented by
arenas,and meeting rooms. `Public place"does not the general public,except that an employee cafeteria
- include a restaurant, a retail store at which fifty , in such place of work shall have a designated non-
percent or more of the sales result from the sale of smoking area.
tobacco or tobacco products, the portion of a retail 2. Smoking areas may be designated by persons
store where tobacco or tobacco products are sold, a
private, enclosed office occupied exclusively by having custody or control of public places,except is
smokers even though the office may be visited by places in which smoking is prohibited by the fire
nonsmokers, lobbies and malls which encompass marshal or by other law,ordinance. or regulation.
p 3. Where smoking areas are designated,existing
floors ace of three hundred or less square feet, a
p q physical barriers and existing ventilation systems
room used primarily as the residence of students or shall be used to minimize the toxic effect of smoke in
other persons at an educational facility, a sleeping adjacent nonsmoking areas. In the case of public
room in a motel or hotel,or each resident's room in places consisting of a single room,the provisions of
a health care facility. The person in custody or this law shall be considered met if one side of,the
control of the facility shall provide a sufficient num- room is reserved and posted as a no-smoking arcs.
ber of rooms in which smoking is not permitted to No public place other than a bar shall be designaW
accommodate all persons who desire such rooms. as a smoking area in its entirety.If a bar has vAWA&
3. `Public meeting"means a gathering in person its premises a nonsmoking area, this d
of the members of a governmental body,whether an shall be posted on all entrances normally usedlir,
open or a closed session under chapter 21. public.
4. "Bar"means an establishment or portion of an If the public place is subject to any state WW@ad&.
establishment where one can purchase and consume process or under contract with the state,the.pesaea
707 HOUSES USED FOR PROSTI'i'UTION OR GAMBLING,§99.1
performing the inspection shall check for compliance In addition the statement "Smoking prohibited ex-
with the posting requirement. cept in designated areas" shall be conspicuously
4. Notwithstanding subsection 1 of this section, posted on all major entrances to the public place or
smoking is prohibited on elevators. public meeting.
[C79,81, §98A.21 [C79,81,§98A.41
87 Acts,ch 219,§2 87 Acts,ch 219,.§4
98A.3 Responsibilities of proprietors. 98A.5 Enforcement of smoking prohibition.
The person having custody or control of a public Repealed by 87 Acts,ch 219,§7.
place or public meeting shall make reasonable ef-
forts to prevent smoking in the public place or public 98A.6 Civil penalty for violation.
meeting by posting appropriate signs indicating
no-smoking or smoking areas and arranging seating A person who smokes in those areas prohibited in
accordingly. section 98A.2, or who violates section 98A.4, shall
[C79,81, §98A.31 pay a civil fine pursuant to section 805.8,subsection
87 Acts,.ch 219,§3 11 for each violation.
Judicial magistrates shall hear and determine
98AA Areas posted. violations of this chapter. The civil penalties paid
A person having custody or control of a public pursuant to this chapter shall be deposited in the
place or public meeting shall cause signs to be county treasury.
posted within the appropriate areas of the facility [C79,81,§98A.61
advising patrons of smoking and no-smoking areas. 83 Acts,ch 123,§52,209;87 Acts,ch 219,§5
�F
CHAPTER 99
HOUSES USED FOR PROSTITUTION OR GAMBLING
99.1 Houses of prostitution or other nuisances. 99.16 Delay in trial.
99.2 Injunction—procedure. 99.17 Costs.
99.3 Notice—temporary writ—without bond. 99.18 Violation of injunction.
99.4 "Owners"defined—notice. 99.19 Procedure.
99.5 'trial. 99.20 Penalty.
99.21 Abatement—sale of property.
99.6 Temporary tbstraining order. 99.22 Fees.
99.7 Writ—how served. 99M Breaking and entering closed building— punish-
99.8 Inventory. meat.
99.9 Mutilation or removal of notice. 99.24 Duty of county attorney.
99.10 Notice. 99.25 Proceeds.
99.11 Answer. 99.26 Release of property.
99.12 Scope of injunction. 99.27 Mulct tax.
99.13 Repealed by 62GA,ch 400,§19. 99.28 Certification and payment of tax.
99.29 Collection of tax.
99.14 Evidence. 99.30 Application of tax. ;,•
99.15 Dismissal. 99.31 Tax assessed.
99.1 Houses of prostitution or other nui- the furniture, fixtures, musical instruments, and
sances. movable property used in conducting or maintaining
Whoever shall erect, establish, continue, main- such nuisance, are also declared a nuisance and
tain, use, own, or lease any building, erection, or shall be enjoined and abated as hereinafter provided.
Place used for the purpose of prostitution or gam- The provisions of this section do not apply to
bling, except as authorized under the laws of this games of skill,games of chance,or raffles conducted
state is guilty of a nuisance, and the building, pursuant to chapter 99B or to devices lawful under
erection, or place, or the ground itself, in or upon section 99B.10.
which such prostitution or gambling is conducted, [SS15,§4944-h1;C24,27, 31,35,39,§1587,C46,
Permitted, or carried on, continued, or exists, and 50,54,58,62,66,71,73,75,77,79,81,§99.11
• l
£+tau of Iowa
199II
ACTS AND JOINT RESOLUTIONS
(Session Laws)
Enacted At The
1990 REGULAR SESSION
Of The
Seventy-Third General Assembly
Of The
State Of Iowa
HELD AT DES MOINES,THE CAPITAL OF THE STATE
IN THE ONE HUNDRED FORTY-FOURTH YEAR OF THE STATE
REGULAR SESSION BEGUN ON THE EIGHTH DAY OF JANUARY
AND ENDED ON THE EIGHTH DAY OF APRIL,A.D. 1990
OF TNT,
+� O
Published under the authority of Iowa Code section 14.10
by the
Legislative Service Bureau
GENERAL ASSEMBLY OF IOWA
Des Moines
489604
265 LAWS OF THE SEVENTY-THIRD G.A., 1990 SESSION CH. 1189
CHAPTER 1188
DRUG TESTING
S.F. 2432
AN ACT relating to the drug testing of certain individuals as required pursuant to certain
federal regulations.
Be It Enacted by the General Assembly of the State of Iowa
Section 1. Section 730.5, subsection 2, Code 1989,is amended to read as follows:
2. Except as provided in subsection 7,an employer shall not require or request employees
or applicants for employment to submit to a drug test as a condition of employment,preem-
ployment, promotion, or change in status of employment. An employer shall not request, .
require,or conduct random or blanket drug testing of employees. However,this section does
not apply to preemployment drug tests authorized for peace officers or correctional officers
of the state,or to drug tests required under federal statutes or under federal regulations ado
pted
as of J y 1,1990,or to drug tests conducted pursuant to a nuclear regulatory commission
—
policy statement,or to drug tests conducted to determine if an employee is ineligible to receive
workers' compensation under section 85.16, subsection 2.
The exemption�d�this subsection relating to drugIRS urp suant to federal regu
lations adopted as of dull 1,1990,is of no effect.as it applies to a Particular regulati that the
a finding a court of competent jurisdiction,iacludin asM appeal of such finding,—_
tion is unconstitutional or otherwise invalid. The decision of a court invalidating
any re On
exempted�this section shall not be stayed endinappeal.
Sec.2.
This Act shall take precedence over any other statute amending section 730.5,subsection
2,enacted during the Seventy-third General Assembly,1990 Session,to the extent that this
Act cannot be reconciled with such other enactment.
Approved April 24, 1990
y�
CHAPTER 1189
SMOKING IN PUBLIC PLACES
A.F. 209
AN ACT relating to the limitations on smoking, and providing penalties.
Be It Enacted by the General Assembly of the State of Iowa
Section 1. Section 98A.1, subsection 2, Code 1989, is amended to read as follows:
2. "Public place"means any enclosed indoor area used by the general public or serving as
a place of work containing two hundred fifty y or more square feet of floor space,including,but
not limited to,all restaurants with a seatin capacity capacjty greater than fift ,all retails includingores
bies and malls,offices e� a humid ce more square of fieff space
1 , waiting rooms of three fired er more square feet of€lead spin and other commercial state;
lishments;public conveyances with departures,travel,and destination entirely within this state;
educational facilities;hospitals,clinics,nursing homes,and other health care and medical facil
ities;and auditoriums,elevators,theaters,libraries,art museums,concert halls,indoor arenas,
and meeting rooms. "Public place"does not include a rest a retail store at which fifty
A
percent or more of the sales result from the sale of tobacco or tobacco products,the portion
of a retail store where tobacco or tobacco products are sold,a private,enclosed office occupied
it
CH. 1189 LAWS OF THE SEVENTY-THIRD G.A., 1990.SESSION 266.
exclusively by smokers even though the office may be visited by nonsmokers,lobbies and malls
whieh encompass€leer spaee of three hundred or less square€eek a room used primarily as
the residence of students or other persons at an educational facility,a sleeping room in a motel
or hotel, or each resident's room in a health care facility. The person in custody or control
of the facility shall provide a sufficient number of rooms in which smoking is not permitted
to accommodate all persons who desire such rooms.
Sec. 2. Section 98A.2, subsection 3,Code 1989, is amended by adding the following new
unnumbered paragraph:
NEW UNNUMBERED PARAGRAPH. A facility inspected by the department of inspec-
tions and appeals shall be inspected by the department for compliance with sections 98A.3
and 98A.4.
Sec. 3. Section 98A.6,Code 1989,is amended by adding the following new unnumbered
paragraph:
NEW UNNUMBERED PARAGRAPH. 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 pro-
visions of this chapter shall supersede any local law or regulation which is inconsistent with
or conflicts with the provisions of this chapter.
Sec. 4. Section 805.8, subsection 11, Code 1989, is amended to read as follows:
11. SMOKING VIOLATIONS. For violations of section 98A.6, the scheduled fine is test
twenty-five dollars,and is a civil penalty,and the criminal penalty surcharge under section
911.2 shall not be added to the penalty,and the court costs pursuant to section 805.9.subsec-
tion 6, shall not be imposed. If the civil fine is not paid in a timely manner, a citation shall
be issued for the violation in the manner provided in section 804.1. The complainant shall not
be charged a filing fee.
Approved April 24, 1990
CHAPTER 1190
SCHOOL FINANCE TECHNICAL AMENDMENTS
H.F. 2068
AN ACT providing technical changes to the financing of education programs of school districts
and providing a retroactive effective date.
Be It Enacted by the General Assembly of the State of Iowa:
Section 1. Section 257.2,subsection 3,Code Supplement 1989,is amended to read as follows:
3. "Budget adjustment"is means an adjustment to the regular program budget district cost
of a school district for school districts in which the regular program budget district cost for
a year would be less than its the regular program budget district cost for the previous year.
Sec.2. Section 257.7,subsection 1,Code Supplement 1989,is amended to read as follows:
1. BUDGETS. School districts are subject to chapter 24. The authorized expenditures of
a school district during a base year shall not exceed the lesser of the budget for that year
certified under section 24.17 plus any allowable amendments permitted in this section,or the
authorized budget,which is the sum of the combined district cost for that year,the actual mis-
cellaneous income received for that year,and the actual unspent balance from the preceding
year.
f
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 4
Plaintiffs, ) _ -
't
vs. ) `
CITY OF AMES, IOWA, ) PLAINTIFFS' AND INTERVENOR/
PLAINTIFF'S MEMORANDUM OF
Defendant. ) AUTHORITIES IN SUPPORT
OF MOTION FOR SUMMARY
JUDGMENT
LOVISH BEDERAZACK d/b/a ) (filed pursuant to I.R.C.P. 237(h))
CAFE LOVISH, )
Intervenor/Plaintiff, )
vs. )
CITY OF AMES,IOWA )
Defendant, )
COME NOW the Plaintiffs and Intervenor/Plaintiff ("Hospitality Providers") and for
their filing as styled above state to the court as follows:
STATEMENT OF THE CASE
Hospitality Providers filed their Petition for Declaratory Judgment and request for
temporary injunction on September 24, 2001. In that pleading they requested a temporary stay of
enforcement and application of an ordinance enacted by the City of Ames, Iowa("City"),
effective August 1, 2001,known as Chapter 21A of the Municipal Code entitled "Smoking in
Public Places" ("new ordinance"). A request was also made that the new ordinance be declared
void and of no effect on various grounds outlined in the petition. The City filed its Answer on or
about September 26, 2001 in which it requested that the injunction be denied and the petition
dismissed. A hearing was set on the temporary injunction for October 2, 2001. Following that
hearing the Court issued its Order on Request for Temporary Injunction ("Court Order") on
October 23, 2001 in which it denied the Hospitality Providers' motion for temporary injunction.
Hospitality Providers now file their Motion for Summary Judgment in which they seek
the declaratory relief prayed for in the petition.
STATEMENT OF THE FACTS
Plaintiffs are various owners and operators of business establishments in Ames,Iowa.
Until August 1, 2001, they were able under state law to accommodate both smokers and non-
smokers on their premises, where food and beverages, including alcohol, were also served.
Chapter 142B of the Code of Iowa(2001) allows for smoking in public places and in
public meetings within designated smoking areas. Section 142B.2(1), Code of Iowa(2001). 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 142B.6, Code of Iowa(2001). ("Preemption Clause").
The City recently enacted a new ordinance known as Chapter 21A of the Municipal Code.
2
4
A copy of that new ordinance is attached as Exhibit"A" to the Petition for Declaratory Judgment
and made a part hereof by this reference. 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
what they have been historically able to do, and precisely that which Section 142B.2(2)of the
Iowa Code(2001) allows them to do: to accommodate both smokers and non-smokers on their
businesses.
Prior to 1990, Chapter 98A (the precursor to Chapter 14213) of the Iowa Code read as it
now does, with one significant distinction: It had no preemption clause. In 1990, during the
regular session of the Seventy-Third General Assembly, the law in Iowa dealing with smoking
prohibitions was changed. As explained in the Affidavit and attachments herewith filed, in that
year a preemption clause was added. Starting with the 1993 Code, the "Smoking Prohibitions"
provisions of Iowa law were moved to Chapter 142B. Id.
STATEMENT OF LAW
Summary Judgment is appropriate and "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law." I.R.C.P. 237(c) . Hospitality Providers now assert that there are
no genuine issues as to any material fact, as explained in this Memorandum of Authorities and
the related filings made contemporaneously herewith and that they are entitled to a judgment
3
t
declaring the new ordinance void, all as sought in their Petition for Declaratory Judgment earlier
filed.
This case does not require the court to make any judgment about the use of tobacco
products. It need not decide whether the city's new ordinance was a good decision or a poor one
with respect to the impact on Ames' penizens in "public places" and"public meetings".
At its core, this litigation deals with the issue of comparing state and local power to enact laws
and ordinances. Is it lawful for a municipality to attempt to usurp the power of the general
assembly, in enacting a local ordinance, the effect of which is to nullify or otherwise override
state law—that is the issue.
I.
The statewide preemption clause added to the "smoking prohibitions"statute in 1990 was
done so for a reason in altering the law from what it had previously been.
As explained in the affidavit filed with this memo of authorities, prior to 1990 the
provision of Iowa law now known as Section 142B.6 of the Iowa Code had no preemption
clause. Before 1990, that provision was known as Section 98A.6 of the Code of Iowa(1989).
See Aff. at p. 2. There was at that time, however, included as part of those "smoking
prohibitions" the following language in Chapter 98A of the Code:
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. §98A.2(2), Code of Iowa(1989). (emphasis added). See Aff.
at p. 2.
In other words, the same "ordinance" reference which the court relied heavily on in its
earlier determination was present in the code, prior to addition of the preemption clause.
4
In 1990, the regular session of the Seventy-Third General Assembly enacted, as part of
House File 209 a preemption clause which was added as a new unnumbered paragraph to Section
98A.6 of the Code. See Aff. at p. 2. From the 1991 Code and forward, that preemption clause
can be found in our printed state law provisions. In 1993 the "smoking prohibitions"of Chapter
98A were transferred to Chapter 14213, where they remain to the present.
Assuming arguendo that the pre-1990 Code did allow each and every city in our state to
enact local no smoking ordinances amounting to a total ban, what then did the legislature intend
through enactment of the preemption clause?
In State.v_ Reed, 596 N.W.2d 514, 515 (Iowa 1999) the Iowa Supreme Court noted: "in
interpreting statutes, we will assume that the legislature intends to accomplish some purpose and
that the statute was not intended to be a futile exercise." As the Supreme Court has also noted:
"our goal in examining and interpreting any statute is to give effect to the intent of the
legislature." Raumhoefener Nurs ly Tnc. v A &D Partnership TT, 618 N.W. 2d 363, 366-67
(Iowa 2000).
One thing that is assured is that the court will "presume any material change in the
language of the statute alters the law." Wvciskalla v_ Iowa District Court for Johnson C01MLY,
588 N.W.2d 403, 407 (Iowa 1998).
Also instructive when interpreting statutory language is the-following rule: "the
interpreter [of the state statute] may look to prior enactments of the statute for guidance."
Christenson v_ Tnwa District C hurt for Polk County-, 557 N.W.2d 259, 261 (Iowa 1996). Stated
otherwise, "legislative history is properly considered in interpreting statutory language found to
5
be ambiguous." Iowa Comprehensive Petrolenm Ilndergmund Storage Tank Fund Brd v Mobil
Oiler, 606 N.W.2d 359, 365 (Iowa 2000).
The legislative history of Chapter 142B shows addition of a preemption clause, after the
balance of the code chapter was already in place. Any such material change in the chapter is
presumed to "alter state law". WycisT kalla at 407. That addition is presumptive intent on the part
of the legislature to "accomplish some purpose" and"not to be a futile exercise". State v_ Reed,
596 N.W.2d 514, 515 (Iowa 1999). When the clear language of the preemption clause is
considered it can only be concluded that the legislature intended there to be equitable and
uniform laws regarding"smoking prohibitions"in all of Iowa except where by law, ordinance or
regulation smoking was prohibited by the fire marshal or similar public safety person. As
explained later, the doctrine of ejusdem generis aids in construction of the reference to"fire
marshal or by other law, ordinance or regulation" in pointing out the obvious limitation of the
term "ordinance" as used in that context.
To ignore application of the preemption clause to the facts of this case renders the general
assembly's 1990 preemption enactment meaningless in violation of the caselaw authority cited.
When the legislature acted in 1990, it can only be presumed that it intended to "alter the law" as
noted in Wyc slsl�alla from what it had previously been. When the general assembly acted during
the 1990 regular session to alter the smoking prohibition laws of Iowa its enactment may not
thereafter be ignored by the judiciary. Regardless of what the law was before 1990, after that
date there must be an "equitable and uniform" system of interaction between state and local laws,
with state laws superceding any inconsistent local law, ordinance or regulation or that which
conflicts with the provisions of Chapter 142B. There is no authority found in Chapter 142B for
6
Ames to set its own standard in banning smoking within its city limits. Rather, the reverse is
true. There is a statewide standard mandated by the 1990 General Assembly which Ames has
chosen to violate.
II.
Hospitality Providers are entitled to summary judgment, in the form of a declaratory
ruling in their favor, as enactment of the new ordinance by the City of Ames was, and is,
illegal.
As the Iowa Supreme Court has recognized there are three types of preemption: (1)
express preemption, where a governing state law expressly provides that it is intended to be
exclusive; and two types of implied preemption: (2) field preemption, where the legislature has
directly or by implication already occupied the entire field, leaving no room for additional
lawmaking by any other body; and (3) conflict preemption, where two laws cannot exist
simultaneously because they either contain contradictory requirements, making compliance with
both difficult or impossible, or because one significantly interferes with either the operations or
goals of the other. See GondPll v Humboldt, 575 N.W.2d 846, 499-500 (Iowa 1998).
A. The Ordinance is Expressly Preemnt d
In drafting what is now Chapter 142B, the General Assembly deliberately chose words with
recognized preemptive effect. Iowa Code §142B.6 expressly provides that: "[ejnforcement of
this chapter shall be implemented in an equitable manner throughout the State" and that "[f]or
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".
7
The general assembly in Chapter 142B clearly banned smoking entirely in certain public
places (e.g., elevators). The legislature provided, with respect to elevators, that no designated
smoking area was allowed and further that "smoking is prohibited on elevators". §142B.2(4)
Code of Iowa (2001). In other public places, it confined smoking to designated smoking areas
and decreed that the owners and operators of such places throughout the state, including
restaurant owners and operators, should have the ability to accommodate both their smoking and
their non-smoking patrons. Even where a restaurant consists of a single room, the general
assembly provided that "the provisions of this law shall he considered met if one side of the
room is reserved and posted as a no-smoking area". §142B.2(3), Code of Iowa (2001).
Moreover, it provided that when "an entire room or hall is used for a social function and seating
arrangements are under the control of the sponsor of the function, and not of the proprietor or the
person in charge of the place", the general prohibition of smoking outside of a designated
smoking area does not apply ataU. §142B.2(1), Code of Iowa(2001).
There could not be uniformity in implementing these directives throughout the state, as
the general assembly expressly directed if every locality could at will, take away the ability of the
owners and operators of restaurants (or other public places) to operate in accordance with
§142B.2. I Nor is it "equitable", as the general assembly used the term, for some restaurant
owners in the state to be able to accommodate their smoking and non-smoking patrons, while
others, identically situated but for their location in Ames, are denied the ability to operate in the
same manner.
1 The legislature provided that: "Enforcement of this chapter
shall be implemented in an equitable manner throughout the
State" . §142B. 6, Code of Iowa (2001) (emphasis added) ; The Code
also provides that, for purposes of statutory construction the
words "shall" imposes a duty. §4 . 1 (30) (a) , Code of Iowa (2001) .
8
The Iowa Attorney General's Office, in an opinion dated November 14, 2000 (which is
not binding on the courts)Z, concluded that the new ordinance would be legal and not preempted
by state law. In that opinion, the attorney general attempted to dismiss this preemptive language
by contending that §142B.2(2) expressly authorizes the enactment of local ordinances in this
area, and that the general assembly's prohibition, in §142B.6, of all local laws and regulations
"inconsistent with" or"conflicting with" Chapter 142B was not really preemptive language at all,
but simply a restatement of the Iowa Constitution's rule that localities may not enact ordinances
that conflict with state law. This opinion is fundamentally inconsistent with the attorney
general's own interpretation — and with the interpretation of the Iowa courts — of virtually
identical "uniformity" language in non-tobacco contexts.
In a 1989 Opinion, the attorney general's office interpreted a state motor vehicle traffic
law which, like §142B.6 prohibited local action in "conflict with", "contrary to", or"inconsistent
with" state law. The attorney general interpreted "[t]he terms `conflict with', `contrary to', or
`inconsistent with"' to "remove any doubt that counties have no role to play in this area". 1989
IA AG LEXIS 53 *5 (emphasis added).
Interpreting §14213.6 to do no more than the Constitution and state law already
accomplish would render it superfluous. Such an interpretation would violate the cannon of
statutory construction recognized by the Iowa courts that statutes must be construed so as to give
effect to all of their provisions. See e.g., Rohret v_ State Farm Miit»al Auto Ins Co., 276 N.W.2d
418, 420—21, (Iowa 1979).
Z City of Clinton v. Sheridan, 530 N.W. 2d 690, 695 (Iowa 1995) .
When a controversy addressed by an attorney general opinion
reaches the court for determination, as here, the court must
enter upon an independent inquiry as to the interpretation to be
9
Moreover, the Iowa Supreme Court has given great weight to the declaration of
uniformity in state statutes in determining preemptive intent. See Pity of Vinton v_ F.nulednw,
140 N.W. 2d 857, 862 (Iowa 1966) (motor vehicle ordinance held to conflict with state motor
vehicle law because of state law "uniformity" requirement); see also Chelsea Theater Corp_ v.
City of RiHington, 258 N.W.2d 372 (Iowa 1977) (finding preemption in light of state obscenity
statute's "uniform application" provision); Goodell v_ Humboldt, 575 N.W.2d 46, 499-500
(Iowa 1998) (intent to occupy field may be found in statutory expression of"uniform" goal).
B. The Ames Ordinance is also invalid and r Implied Preemption PrinsWes,
1. Field Preemption
The Iowa Supreme Court has held that while the mere fact that the legislature has enacted
a law addressing a particular subject matter does not mean that the subject matter is completely
preempted, field preemption will be found where there is "some legislative expression of an
interest to preempt" or "some legislative statement of the state's transcendent interest in the
regulation of the area in a uniform manner. Goodell, supra.. Section 14213.6 unquestionably is
such a statement, and indicates that the state's interest in the area is sufficiently strong that all
non-uniform local laws and regulations are superseded. Chapter 142B reflects a comprehensive
balancing by the general assembly of the competing economic, political and health concerns of
smokers and non-smokers in order that the interests of both are accommodated statewide. As the
Goodell court noted, "[t]he chief characteristic of the legislative function is the determination of
broad policies or principles for the conduct of society's affairs". Non-uniform local regulations
overset that balance and, as Section 14213.6 indicates, create unfairness and inequity. The stated
goal of home rule is to give cities the authority, "not inconsistent with the laws of the general
placed upon the statute. id. 10
assembly, to determine their local affairs and government." Iowa Constitution, Art. III, Sec. 38A.
There is serious doubt that regulation of"environmental tobacco smoke"can even be considered
a "local affair" covered by the home rule provisions of law. The citizens of Ames are no
different from all other citizens of Iowa with regard to alleged health effects from potential
exposures to environmental tobacco smoke. Moreover, Ames is not isolated from the rest of the
state, and those affected by the challenged ordinance, including patrons of restaurants in Ames,
are likely to include many non-residents of Ames. Indeed, many other state courts have struck
down similar local ordinances on the ground that regulation in this area is statewide — and not a
local —concern. See e.g., Michigan Restanrant Assnciation v City y of Mar=nPt1e, N.W.2d
2001 WL 254428 (Mich. Ct. App. 2001) (issue of smoking and inhaling second-hand
smoke is "a statewide issue", not one that is local in nature); LDM Tnc_ v_ Princeton Regional
Health C'om'n, 764 A.2d 507, 526 (N.J. Super. Ct. Law Div. 2000).
The state's strong interest in and concern for uniformity and fairness with regard to the
two areas at the heart of this ordinance — regulation of tobacco products and regulation of
restaurants — are also evidenced from other statutory provisions beyond Chapter 142B. For
example, in recently-enacted Chapter 142A, the general assembly establishes "a comprehensive
partnership among the general assembly, the executive branch, communities, and the people of
Iowa in addressing the prevalence of tobacco use in the state (§142A.1). The job of the
Commission's Director is to "[c]oordinate all tobacco use prevention and control programs and
activities under the purview of the department" (§142A.5(c)). Although the statute provides for
the department to enter into "community partnerships" (§142A.8) to carry out the goals of
reducing tobacco use, particularly among young people, there is no indication anywhere in
11
Chapter 142A that localities were given any authority to override the provisions of Chapter
142B.
Iowa Code §453A.56, which deals with cigarette and tobacco use taxes, contains the
same statement of the need for uniformity contained in Section 14213.6. It provides that
enforcement of Chapter 453A:
shall be implemented in an equitable manner through 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.
Finally,.the general assembly has indicated a need for uniformity in the regulation of food
service establishments. §137F.3 of the Iowa Code, which provides for the licensing and
inspecting of "food establishments" (including restaurants) and other establishments that handle
food under Chapter 137F provides in relevant part, that:
Municipal corporations shall not regulate . . . food establishments and food
processing plants, except as provided in this section.
Municipal corporations are permitted to regulate, license and inspect food establishments to
insure compliance with statewide health-based requirements promulgated by the department of
inspections and appeals only if the director finds that the corporation has adequate resources to
perform these functions, and the locality enters into an agreement with the director. Id. The
general assembly was certainly mindful of this provision in enacting Chapter 142B, for it
indicated in §14213.2 that local inspectors would "check for compliance with the posting
requirements" of Chapter 142B only where "the public place is subject to any state inspection
process or under contract with the state. . ."
12
Taken together, these considerations all support this Court's making a determination that
the Ames ordinance falls outside of the scope of the "local" interests that are the subject of the
city's home rule authority, and intrudes into areas in which the general assembly, after careful
consideration, has extensively and comprehensively legislated.. As the Iowa Supreme Court
stated in Hamilton v_ City of Urhandale, 291 N.W.2d 15 (Iowa 1980), `Because the legislature
has enacted controlling statutes in this area, it remains our duty to determine their meaning and
the city's duty to conform to the enactments as thus construed."
2. Conflict Preemption.
The test for conflict preemption has been well established by the Iowa Supreme Court: if
the ordinance prohibits an act permitted by statute, or permits an act prohibited by statute, it is
preempted. Goodell v. Humboldt, 575 N.W.2d 500-501; City of Clinton v Sheridan, 530
N.W.2d 690, 691 (Iowa 1995); City of Council Bluffs y Lyle,le, 342 N.W.2d 810 (Iowa 1983);
Bechtel v City of lies Moines, 225 N.W.2d 326 (Iowa 1975).
Acts permitted under Chapter 142B are clearly prohibited by the Ames ordinance. For
example, under the statute, the provisions of Chapter 142B.2(3) "shall he Considered met" if, in a
restaurant in Ames consisting of a single room, "one side of the room is reserved and posted as a
no-smoking area". Under the ordinance, even if the entire restaurant, with the exception of even
a single table, were designated as non-smoking, (and even if that table were in a separate room),
the requirements of the statute would not be considered to have been met.
Two restaurants across the street from each other, one within the city limits of Ames and
the other outside those limits, would be subject to entirely different smoking laws and
requirements, contrary to the general assembly's directive that laws imposing smoking
13
restrictions "shall be implemented" in a manner that is both equitable and uniform throughout the
state, and that the provisions of Chapter 142B "shall supersede" any local law or regulation that
obstruct that goal.
The City and the attorney general contend that there is no conflict and that the ordinance
and state law can be "harmonized". They argue that the ordinance merely `augments"
§142B.2(2) which provides that "[smmoking areas may be designed 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". This provision, they argue, recognizes local authority to
prohibit smoking in specific "public places", and therefore such a prohibition cannot be
preempted by§142B.6 as "inconsistent with" or in "conflict with"Chapter 142B.
There are a number of flaws in this analysis. As discussed above, regardless of one's
interpretation of§142B.2(2), acts that are permitted under §142B.2(1) are clearly forbidden under
the new ordinance. Moreover, the conflict situation presented by §§ 142B.2(2) and 14213.6 is
precisely that described by the Iowa Supreme Court's description in Graodell:
[a] situation that could give rise to inconsistent local laws is one where the state has
conditioned pursuit of an activity upon compliance with certain requirements. Any
attempt by a local government to add to those requirements would conflict with the state
law, because the local law would in effect prohibit what the state law permits. E.g.
Perdne Farms, Inc_ v_ Hadder, 109 Md. App. 582, 675 A.2d 577, 581 (Md. Ct. Spec. App.
1996) (holding local restriction or irrigation spraying of wastewater from poultry
processing facility conflicted with state permit allowing such spraying); Hoard of
Supervisors v. ValAdCo, 504 N.W.2d 267, 272 (Minn. Ct. App. 1993) (holding
ordinance requiring a township permit for operation of a feedlot conflicted with state
statutes providing for state-issued permit). Stated another way, the local ordinance would
prohibit an activity absent compliance with the additional requirements of local law,even
though under state law the activity would be permitted because it complied with the
requirements of state law. In this situation, the local regulation would be inconsistent
with state law and preempted.
14
In addition, the interpretation of §142B.2(2) offered by the city and the attorney general
would deprive §142B.6 of practical meaning by reading out of the statute the general assembly's
stated goal of uniform regulation and enforcement of smoking restrictions throughout the state.
The general assembly's declaration of a goal of fairness and uniformity of smoking regulations
through the state is pointless if localities are allowed to proceed however they choose to ban
whatever they please. The Iowa Supreme Court, citing 2A Norman J. Singer, Sutherland on
Statutory Construction, §46.05 (6t'ed. 2000), has made clear that a statute must be considered as
a whole, and that "[a]ll portions of a statute must be read together, and undue influence may not
be given to any single part". Stearns v_ Kean, 303 N.W.2d 408, 413 (Iowa 1981). This
construction of§142B.2(2) would swallow §142B.6.
The attorney general's argument, that any other construction would render §142B.2(2)
superfluous, and that §142B.2(2), as the more "specific" prohibition, necessarily overrides the
"more general" goal of uniformity in §142B.6, ignores the fact that localities can act . There are
many ordinances that could be adopted under §142B.2(2) without undermining the general
assembly's directive for uniformity. The most obvious area for local enactment of ordinances is
underscored by the legislature's express reference to "places in which smoking is prohibited by
the fire marshal or by Qther law, ordinance, or regulation" (emphasis added). Iowa Code
§100.35, which authorizes the fire marshal to adopt and amend rules for fire safety does not, by
its terms, preclude localities from enacting their own fire safety requirements. Where a city has a
basis for finding that smoking would present an unacceptable danger of fire or combustion in any
public place (not limited to restaurants), it could, under §142B.2(2), prohibit the designation of a
smoking area. This interpretation of the statutory language is far more consistent with the rule of
15
statutory construction cited by the attorney general that where general words follow specific
words in the statutory list, the general words are construed to embrace only objects similar in
nature to the preceding specific words. References to any "other law, ordinance, or regulation",
following references to prohibitions imposed by the fire marshal, can reasonably and
appropriately be construed as pertaining to other measures adopted for fire prevention or safety
purposes. See Singer, supra, at §47.17; Thomi2son v_ Hannank County, 539 N.W.2d 181, 184
(Iowa 1995). The statutory term "public places" covers a very wide variety of locations from art
museums to public conveyances. See §142B.1. Legitimate local concerns could, for example,
justify local requirements affecting the size or location of a designated smoking area, could
include locating designated smoking areas in a public art museum at a certain distance from the
display of paintings (which could be required for insurances purposes); or prohibit smoking on a
local conveyance in areas that might present a risk of fire or explosion.
Moreover, even if the term "ordinance" in §142B.2(2) were interpreted more broadly than
just covering fire safety, many local ordinances could be enacted that would not result in any lack
of uniformity in such regulations through the state. The thrust of §142B(2) is that a "person
having custody or control" of a "public place" remains free to make decisions concerning
designation of smoking and non-smoking areas in such locations. To the extent that the city is
itself the one,in "custody or control" of a "public place", including office buildings, clinics,
public conveyances, libraries, auditoriums, indoor arenas, etc., it can enact ordinances banning or
limiting smoking in those places that would be legitimate exercises of local authority under
§142B.6, or endanger uniform and equitable enforcement of the general assembly's smoking
16
restrictions throughout the state. Merely banning all smoking in all restaurants that are "public
places" is not, a legitimate exercise of that power.
If a state statute and a municipal ordinance cannot be reconciled, as here, the statute
prevails and the ordinance is necessarily void or invalid. City of Clinton v_ Sheridan, 530
N.W.2d 690, 691 (Iowa 1995).
C. Other illeg li y.
A municipal corporation and its officers can be restrained if the action complained of is
illegal. Douglas-, v_ Towa City, 218 N.W.2d 908, 913 (Iowa 1974). See also Comes v_ City of
Atlantic, 601 N.W.2d 93, 96 (Iowa 1999).
Chapter 364 of the Iowa Code details "powers and duties of cities". The following
limitations of power otherwise held by the City of Ames, are found in the listed provisions of that
Chapter:
1. "A city may, except as expressly limited by the Constitution, and if riitL
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 . . .". §364.1, Code of Iowa
(2001) (emphasis added).
2. "A city may exercise its general powers subject to only limitations expressly
im on sed by state o_�v taw". §364.2(2), Code of Iowa(2001) (emphasis added).
3. "An exercise of a city power is not.inconsistent with a state law unless it is
irreconcilable with a state law." §364.2(3), Code of Iowa (2001) (emphasis
added).
4. The following are limitations upon the powers of a city: (1) . . . (3) a city may not
set standards and requirements which are lower or less stringent than those
imposed by state law, but may set standards and requirements which are higher or
more stringent than those imposed by state law, unless the state law provides
otherwise". §364.3(3), Code of Iowa (2001) (emphasis added).
17
In all instances which apply, in the legislature's detailing of authority held by cities such
as Ames, our municipalities are limited by the Constitution and the laws of the general assembly,
and further prohibited from acting where such local enactment is inconsistent with the
legislature's own enactment, as shown by the cited provisions of Chapter 364 of the Code.
In the end, the new ordinance reflects an attempt by the City of Ames at nullification of
the state legislature's statutory enactment and an attempt to circumvent that preemptive state
statute through creation of its own illegal new ordinance.
D. rnurt's previous order denying temporary injunction_
In its October 23, 2001 order the court commented on several of the foregoing matters in
denying Hospitality Providers' request for a temporary injunction. With respect to that order, the
following is noted:
1. Home Rule: The court first noted, at page five (5)of its ruling, that: "under the home
rule provisions in the Iowa Constitution and the Iowa Code, cities have unlimited power to enact
ordinances unless specifically restricted by statute or the constitution." Hospitality Providers
take no exception to that general rule. The same rule was cited in our earlier briefing papers.
"Home Rule" provides no comfort to Ames, as that power is limited"by statute or the
constitution". Where there is statutory preemption, as here, home rule simply has no application.
2. Express Preemption. The court noted on page seven (7) of its ruling that: "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." If that is true, then what purpose is
served by the preemption provisions found in that chapter? See §142B.6. To what portion of
Chapter 142B is that preemption provision directed? Why the statement that "enforcement of
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this chapter shall be implemented in an equitable manner thmighout the crate". (emphasis
added). If every municipal corporation can do what it wants, including a total ban on smoking as
Ames has done through its new ordinance, making it the only city in the state with such an
enactment, where does the "equitable" and"uniform"implementation, application and
enforcement throughout the state language of that code provision apply? The obvious answer is
—nowhere. This court's earlier determination would render the preemption clause meaningless
and superfluous in violation of the rule of Town Anto Dealer, Acs'n_ v_ Town Tent_ of Revenne,
301 N.W.2d 760, 765 (Iowa 1981). ("a statute should not be construed so as to make any part of
it superfluous unless no other construction is reasonably.possible.") In effectively"interpreting
out"the preemption clause, the court fails to observe the rule of law outlined in Stearns v_ Kean,
303 N.W.2d 408,413 (Iowa 1981) ("all portions of the statute must be read together, and undue
influence may not be given to any single part").
On page 8 of its earlier ruling the Court concluded: "Section 142B.2(2) does not give
blanket permission to restaurants to designate smoking areas". Hospitality Providers have never
made that claim. The question should rather be asked: Does the statute give blanket permission
to municipal corporations to totally ban smoking within their municipal boundaries?
As this court acknowledges on page 9 of its previous ruling, "the Iowa legislature knows
how to express its intentions". If it intended to ban smoking statewide within public places, it
could have done so, but elected not to. Similarly, if it wanted to allow smoking in designated
areas throughout the state, subject to individual city's extinguishment of that right, it could also
have expressly so provided. If its intention was to allow this decision to be made on a city-by-
city basis throughout all of Iowa, there would be no reason for the 1990 addition of the
19
preemption clause found at the end of Chapter 142B. The general assembly elected none of
those alternatives in crafting that chapter of the code over time. If they intended to allow cities to
totally ban smoking areas, why would the drafters of the language provide the following:
1. This prohibition does not apply in cases in which an entire room or hall is used for
private social functions and seating arrangements are under the control of the
sponsor of the function and not of the proprietor or person in charge of the place.
Section 142B.2(1).
2. In the case of public places consisting of a single room, the provisions of this law
shall be considered met if one side of the room_ is reserved and posted as a no
smoking area. Section 142B.2(3).
The obvious answer is that the state never intended municipalities, on a city-by-city basis,to be
able to totally ban smoking as Ames has done under its new ordinance.
This court earlier stated: "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." That is not the issue. The question is whether the Ames ordinance is
in conflict with Section 142R_6 (preemption clause), not Section 142B.2.
The court also noted: "To read Section 142B.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 [sic]." Again Hospitality Providers have not indicated that the
reference to "ordinance" has no meaning, as that term is found in 142B.2(2) of the Code. There
has been no suggestion to ignore that code language. As explained earlier in this brief, there are
many ordinances that could be adopted under Section 142B.2(2) without undermining the general
assembly's directive for uniformity. The question remains, what does the reference to
"ordinance" mean though, as found in Chapter 14213?
The doctrine of ejusdem generis aids in the construction of the following phrase: ". . .
20
except in places in which smoking is prohibited by the fire marshal or by other law, ordinance, or
regulation." §142B.2(2). (emphasis added). That doctrine provides that general words which
follow specific words are tied to the meaning and purpose of the specific words. Iowa
Carnprehensive Pet Underground Storage Tank Rind 'Board v Shell Oil Co-, 606 N.W.2d 376,
380(Iowa 2000). Applying this principle the general phrase "other law, ordinance or regulation"
must be directly connected to the specific words—"fire marshal'. Therefore, any city ordinance
has to relate to fire safety or other similar concept tied to the specific term"fire marshal"to avoid
violation of the statutory preemption clause. The broad and sweeping total ban of the Ames
ordinance is an enactment which clearly runs afoul of that limiting state law provision.
As important in construing this phrase is construction of the term"other". Under the
doctrine, use of the word"other"refers to those in the same general class as those specifically
mentioned—fire marshal—absent clear intentions to the contrary. Id. The use of the term
"other" also indicates limitation of the general terms—law, ordinance or regulation—otherwise
there would be no need for the inclusion of the specific. Ld-
If the Iowa legislature intended to allow cities to enact any smoking prohibition ordinance
they wished, there would have been no need to even mention "fire marshal'. The statute would
instead have simply read that designation of smoking areas is allowed"except where smoking is
prohibited by law, ordinance or regulation."
To improperly interpret that singular reference to "ordinance" as supporting a complete
smoking ban by a city, eviscerates the effect of the preemption clause later found in that same
21
chapter and is contrary to the ejusdem generis doctrine recognized by the Iowa Supreme Court.
3. Conflict Preeml tion. In the court's own words: "as previously stated, an ordinance
is `inconsistent' with a statute when it prohibits an act permitted by the statute." Order on
Request for Temporary Injunction, p. 8. How then does the court reconcile the Ames ordinance
amounting to a total ban during certain hours, with the state law provision which allows for
smoking in the case of a restaurant consisting of a single room, as follows: "In the case of public
places consisting of a single room, the provisions of this law shall be considered met if one side
of the room is reserved and posted as a no smoking area." Section 142B.2(3), Code of Iowa
(2001). Under the state statute such a restaurant could allow on-premises smoking. Under the
Ames ordinance, however, no such smoking area designation would be allowed. Clearly,the two
laws provisions are facially inconsistent. Where an ordinance prohibits an act permitted by
statute, such ordinance (as the Ames new ordinance here)is preempted. Goodell v_ Humboldt,
575 N.W.2d 500-01 (Iowa 1998); City of Clinton v_ Sheridan, 530 N.W.2d 690, 691 (Iowa
1995); City of Council Bluffs v. I.vh.., 342 N.W.2d 810 (Iowa 1983); Bachtel v_ City of Des
Moines, 225 N.W.2d 326 (Iowa 1975). Applying the court's own analysis of"inconsistency" to
the competing law provisions here, can only result in a finding of preemption, where the Ames
enactment so clearly prohibits that which state law allows.
4. Ilniform and F,ui ahl .implementation of Enforcement of Chapter 142B. This
court determined that: "The Ames ordinances does not interfere with the uniform and equitable
implementation and enforcement of Chapter 142B." Order on Request for Temporary Injunction,
p. 8. It supported that determination by reference to the case of Iowa City v_ Westinghouse
Learning Corp-, 264 N.W.2d 771 (Iowa 1978). How an Iowa City ordinance impacted the Iowa
22
Civil Rights Commission's authority under Chapter 601A of the Iowa Code in enforcing anti-
discrimination laws in our state, fails to address the following "uniformity" and"equitable
implementation and enforcement"requirements of Chapter 142B dealing with smoking
prohibitions:
a. How can there be such a required uniformity and equity in implementation if
individual cities can, at will, can take away the ability of owners and operators of
restaurants (or other public places) to operate in accordance with Section 142B.2?
b. Where is the equity, as required by the general assembly in its own terms, when
some restaurant owners in the state can accommodate smoking and non-smoking
patrons, while others, identically situated but for their location in Ames, are
denied the ability to operate in the same manner?
C. What do the terms "equity" and"uniformity" mean if not that there is to be some
common standard of implementation, application and enforcement observed
throughout Iowa?
d. What is that common, statewide benchmark(if not what Chapter 142B provides)?
e. How can there be "uniformity"if every municipality can enact its own separate
and different regulatory scheme?
Although the court concludes that the Ames ordinances "does not interfere with the
uniform and equitable implementation and enforcement of Chapter 142B", obviously, to allow
that community to establish its own non-uniform standard which totally bans smoking, separates
that community from what is allowed everywhere else in the state. That departure clearly
violates the express legislative purpose of uniformity.
5. Field Preemption —Town Code Section 137F+_3. In its earlier decision the court
stated: "Plaintiffs further argue that Iowa Code Section 137F.3 preempts the [new] ordinance."
Order on Request for Temporary Injunction, p. 11. To the extent the court's prior statement
suggests Hospitality Providers assert that Iowa Code Section 137F.3 is an express preemption of
23
the new ordinance, that representation is an inaccurate depiction of the latter's position. Chapter
137F deals with "food establishments and food processing plants". There is no reference to
regulation of smoking in that chapter of the code, of course. That is not why that chapter was
cited. Rather, it was used as an example of"field preemption" by the legislature with respect to
one of the two areas at the core of the new ordinance—regulation of restaurants. The reference
to Chapter 137F underscores the general assembly's strong interest and concern for uniformity
and fairness with respect to regulation of tobacco products and regulation of restaurants, both of
which areas are impacted by the new ordinance. The general rule set forth in Chapter 137F is:
"municipal corporations shall not regulate . . . food establishments and food processing plants,
except as provided in this section." Section 137F.3, Code of Iowa(2001).
The court noted that Chapter 137F"does not address the behavior of clientele or
establishments, and does not regulate smoking in establishments." Of course, that is true, but
that is not why that chapter of the code was noted. The City asserts (and the court appears to
adopt in its earlier ruling) that its interest in regulating"environmental tobacco smoke" in public
places is a significant factor in legitimizing the new ordinance. Chapter 137F of the Code, in
dealing with "food establishments" is based, in significant part, on similar public policy concerns
(i.e., providing appropriate and uniform statewide environmental standards for restaurant
patrons).
That is why Chapter 137F was cited in the earlier brief- as evidence of the state's interest
and concern for uniformity and equity in the areas of regulation of tobacco and regulation of
restaurants, both of which areas are closely tied to the new ordinance. In both cases it is clear
that the general assembly has expressed a strong interest that these issues should be handled on a
24
statewide basis, not locally, on a city-by-city basis, as this court's earlier ruling would allow. Our
legislature has made clear that there is to be a uniform and common environmental standard in
restaurants throughout the state, rather than a patchwork set by individual communities.
CONCLUSION
For all the reasons stated above, the plaintiffs/intervenors-Hospitality Providers are
entitled to a declaratory judgment which holds that:
a. The new ordinance is an unreasonable and illegal usurpation by the city of preemptive
powers reserved to the State of Iowa(Chapter 142B of the Code) and therefore void
and of no effect;
b. The new ordinances exceeds the city's home rule authority has set forth in Article III,
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 a 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;
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. The plaintiffs/intervenors-Hospitality Providers are entitled to such other and further
relief as the court deems equitable and just in the premises including assessment of all
costs against the defendant City of Ames, Iowa.
Where, as here:
25
1. State law permits certain acts which are clearly prohibited by the Ames
ordinance there is conflict preemption as shown;
2. Where the general assembly has articulated a need for uniformity in the
regulation of food service establishments and regulation of tobacco products,
on a statewide basis, field preemption is established;
3. Where state law includes an express preemption provision requiring equitable
enforcement of the "smoking prohibitions" provisions of Chapter 142B
throughout the state and for equitable and uniform implementation,
application and enforcement of state and local laws and regulations, that
preemption provision may not simply be ignored in allowing individual
municipalities to each set their own "smoking prohibition" standards.
If the state legislature wanted to enact a total ban on smoking in public places and public
meetings it could have done so, but didn't. If it wanted to allow smoking in designated areas
subject to the ability of individual municipalities to take that away, there would have been no
need for a"preemption clause" in Chapter 142B, as there would have been no need for
uniformity and equity in implementation of"smoking prohibitions". Instead, what did become
law was a public policy plan that banned smoking in public places and public meetings except in
designated smoking areas, which pattern was to be the same throughout the state. To interpret
the chapter otherwise is to ignore the express provisions of the general assembly's preemption
directive. The title of Chapter 142B is "Smoking Prohibitions". What else could equitable and
uniform implementation, application and enforcement relate to "throughout the state"except
26
those same "smoking prohibitions" which Chapter 142B is designed to address? The Court can't
simply ignore that provision, and thereby void its express legislative effect. The new ordinance,
in establishing a total smoking ban in Ames during certain hours, is nothing more than a direct
challenge by the City of Ames to the "uniformity" and"equity" standards mandated by the Iowa
legislature. This court, for the reasons stated, should reject that wrongful attempt and declare it
void and of no effect as requested by Hospital Providers in their Motion for Summary Judgment.
Respect£uHy omit ,
FRED L. DORR &PK001300
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
�7
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 Memorandum of Authorities in Support of Motion
for Summary Judgment (filed pursuant to I.R.C.P. 237(h)); and that the statements contained therein
are true and correct to the best of my knowledge and belief.
JOAN M.ROBERTS '
ti hiY -AUSSION EXPIRES
Fred L. Dorr
SUBSCRIBED AND SWORN to before me this day of October,2001.
Notary Public in and for the State of Iowa
ORIGINAL FILED.
COPY TO:
CERTIFICATE OF SERvim
John R. Klaus eeWeat ° ed me 1on aft k1w.1
d PNn b W+bow cause to each at I* atta wA
City Attorney a mwd huMn at Ih*1e'�iw 1*40" d on the
515 Clark Ave U&ma! _a
io o r
P.O. Box 811 0 Hw4Faft vd o ovwo t cmw
Ames, Iowa 50010
ATTORNEY FOR DEFENDANT,
CITY OF AMES, IOWA
Litigation/Tobacco(Ames)/MemorandumOfAuthorities
28