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HomeMy WebLinkAboutA041 - Defendant's Memorandum of Authorities in Resistance to Motion for Summary Judgment IN THE IOWA DISTRICT COURT IN AND FOR STORY COUNTY JAMES ENTERPRISES, INC. d/b/a CYCLONE TRUCK STOP; CLYDE'S OF AMES, INC. d/b/a WALLABY'S; YE OLDE; EQUITY NO. EQ-CV040013 L.L.C. d/b/a DUBLIN BAY; DE PAULA, INC. d/b/a CAFE BEAUDELAIRE INTER- NATIONAL CUISINE & BAR; STEVE SOESBE d/b/a TRADEWINDS CAFE; ROZEBOOM FOODS, INC. d/b/a WHISKEY RIVER; and TOM ZMOLEK, d/b/a PEOPLE'S BAR & GRILLE, Plaintiffs, vs. CITY OF AMES, IOWA, Defendant. LOVISH BEDERAZACK d/b/a CAFE LOVISH, DEFENDANT'S MEMORANDUM OF AUTHORITIES IN RESISTANCE TO Intervenor/Plaintiff MOTION FOR SUMMARY JUDGMENT (Filed pursuant to I.R.C.P. 237(h)) VS. CITY OF AMES, IOWA Defendant. I INTRODUCTION This is an action challenging the validity of an ordinance of the City of Ames, Iowa, that places restrictions on smoking in public places. Subsection 142B.2(1) Code of Iowa (2001) prohibits smoking in public places, but subsection 142B.2(2) allows the person in control of a public place to designate a smoking area, except where smoking is prohibited by "... the fire marshall or by other law, ordinance or regulation". An ordinance of the City of Ames, Chapter 21A of the Municipal Code of the City of Ames, Iowa (copy attached) prohibits smoking in any public place, with exceptions, so that as a general rule smoking areas cannot be designated in food service establishments in i Ames until after 8:30 p.m. The Plaintiffs are owners and/or operators of food service establishments that want to be able to designate smoking areas without regard to the restrictions of a local ordinance. The Plaintiffs seek a declaratory judgment that the Ames ordinance is either beyond the City's powers; or, either expressly or impliedly, preempted by state law; or, that the state law should be construed to restrict local ordinances to only those that pertain to fire safety or some other restricted purpose that does not interfere with designation of smoking areas. The Plaintiffs have alleged in paragraph 16 of their petition for declaratory judgment that the Ames ordinance has, as a matter of fact, caused damage to the Plaintiffs' "... customer good will, business relationships, and profits." The Defendant City has denied that allegation by paragraph 4 of its answer. 11 STATEMENT OF THE LAW A. Summary Judgment: Summary judgment can be granted only when there is no genuine issue of material fact. In that regard the court must examine the pleadings, discovery responses, and affidavits in a light most favorable to the party that is resisting the summary judgment. Summary judgment is denied if reasonable minds can differ on how the issue should be resolved. Whalen v. Connelly, 593 N.W.2d 147, 152 (Iowa 1999). When the evidence presented in support of the motion for summary judgment does not establish an absence of a genuine issue of fact, summary judgment must be denied, even if no opposing evidence is presented. First National Bank of Dubuque v. Mackey, 338 N.W.2d 361 , 363 (Iowa 1983). B. Declaratory Judgment: The proper function of a declaratory judgment suit is to determine rights in advance — no actual wrong need have been committed, or loss occurred — but there must be no uncertainty that the loss will occur or that a right will be invaded. Borman v. Board of Supervisors of Kossuth County, 584 N.W.2d 309 (Iowa 1998). Each petition for declaratory judgment must be examined to determine whether present legal rights are at issue between the parties. In order to serve as a basis for declaratory judgment, a controversy involving an ordinance must be justiciable — that is, there must be specific adverse claims, based on present rather than future or speculative facts, that are ripe for adjudication. Grain of Iowa v. Iowa Department of Agriculture, 562 N.W.2d 441, 445 (Iowa App. 1997). There must have been some action taken against the Plaintiffs, or some harm done to the Plaintiffs. A declaratory judgment suit cannot be based on hypothetical facts. 6 McQuillen Mun. Cor. §20.23 (3rd Ed.). An actual or impending injury must be proven with certainty. Peoples Rights Organization, Inc. v. City of Columbus, Ohio, 152 f.3d 522, 526 (6 H.C.A. 1998). C. City Powers: Under the home rule provisions in the Iowa Constitution and the Iowa Code, cities have unlimited powers to enact ordinances unless specifically restricted by statute or the constitution. Under the Iowa Constitution. Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly. Iowa Const. Art. III §38A; Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 568 (Iowa 2000). Similarly, Iowa Code section 364.1 provides: "A city may, except as expressly limited by the Constitution, and if not inconsistent with the laws of the general assembly, exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges, and property of the city or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents." Crippen, 618 N.W.2d at 568. "In interpreting cities' home rule power, this court has noted that cities now have the authority to act unless a particular power has been denied them by statute." Id (citing City of Des Moines v. Master Builders of Iowa, 498 N.W.2d 702, 703-04 (Iowa 1993)). Section 364.1 "grants municipal corporations broad authority to regulate matters 3 of local concern, subject to preemptions by the laws of the general assembly." Sioux City Police Officers' Ass'n v City of Sioux City, 495 N.W.2d 687, 693-694 (Iowa 1993) (citing City of Des Moines v. Gruen, 457 N.W.2d 340, 341 (Iowa 1990); City of Council Bluffs v. Cain, 342 N.W.2d 810, 812 (Iowa 1983)). Under home rule "a municipality may enact an ordinance on matters which are also the subject of state statutes, unless the ordinance invades an area of law reserved by the legislature to itself." Id. A city is free to "set standards and requirements which are higher or more stringent than those imposed by state law, unless a state law provides otherwise." Iowa Code §364.3(3). "[L]imitations on a municipality's power over local affairs are not implied; they must be imposed by the legislature." Sioux City Police Officers, 45 N.W.2d at 693 (citing Bryan v. City of Des Moines, 261 N.W.2d 685, 687 (Iowa 1978)). "A city has the power to enact an ordinance on a matter which is also the subject of a statute if the ordinance and statute can be harmonized and reconciled." Id. "A municipal ordinance is 'inconsistent' with a law of the general assembly and, therefore, preempted by it, when the ordinance prohibits an act permitted by a statute, or permits an act prohibited by a statute." Id. "In considering a claim that a city ordinance violates 'home rule' powers, we interpret the state law in such a manner as to render it harmonious with the ordinance. If the statute and ordinance cannot be rconciled, the statute prevails." Id. (Citations omitted). D. Preemption: The Iowa Legislature can preempt a field of regulation either expressly, or by implication. Express preemption occurs when the legislature states that no city or county shall enact any ordinance that pertains to a certain subject. See: Chelsea Theater Corp. v. City of Burlington, 258 N.W.2d 372 (Iowa 1977). Implied preemption occurs when an ordinance prohibits an act permitted by a statute, or permits an act prohibited by a statute. Goodell v Humboldt County, 575 N.W.2d 486, 493 (Iowa 1998) E. Statutory Construction: The legislative intent of a statute is determined from the plain meaning of the 4 words used. It is only when reasonable minds could disagree over the meaning of a word or phrase of a statute that the courts resort to the rules of statutory construction. Iowa Comprehensive Petroleum Underground Storage Tank Fund Board v. Shell Oil Company, 606 N.W.2d 376, 379-380 (Iowa 2000). The courts do not, under the guise of statutory construction, add to or alter the plain meaning of a statute. Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996). When the words used are plain and unambiguous, the courts do not speculate about legislative intent. Berger v. Iowa Housing Finance Authority, 593 N.W.2d 136, 139 (Iowa 1999). III ISSUES AND ARGUMENTS A. Factual Dispute on Adverse Impact. The difference between this case being a justiciable controversy that the court can adjudicate, instead of a mere request for an advisory opinion that the court cannot give, is proof that the Plaintiffs will in fact experience an adverse impact on " customer good will, business relationships and profits." as the Plaintiffs allege. The Defendant has denied that allegation. Plaintiffs do not provide affidavits in proof of their allegation in support of their motion for summary judgment. The Defendant, in resistance to summary judgment, offers the attached affidavit of Dr. Arne Hallam, chair of the Department of Economics at Iowa State University, to the effect that local ordinances restricting smoking do not have a long term adverse impact on sales and profits for restaurants. On October 9, the Defendant requested production of documents by the Plaintiffs to show sales tax reports for the third quarters of 1999, 2000, and 2001 . The documents have not yet been produced. Plaintiffs may believe that such evidence is not pertinent to a declaratory judgment. The Defendant submits that proof of loss occasioned by the ordinance is essential to the Plaintiffs' standing to maintain the action for declaratory judgment. Although a declaratory judgment generally is sought before a completed injury-in-fact has occurred, it is nevertheless required that the S Plaintiffs demonstrate either actual present harm or a significant possibility of future harm. Although the Plaintiffs do not have to await the consummation of a threatened injury, the Plaintiffs must prove that the injury is impending with certainty. Peoples Rights Organization Inc. v. City of Columbus, 152 F.3d 522, 526 (6`h CA 1998) citing Babbit v. United Farm Workers Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). Related to the Plaintiffs' standing to bring a suit is the matter of ripeness. It is a matter of timing. The court must weigh the likelihood that the injury alleged by the Plaintiffs will come to pass and the fitness of the case for judicial resolution at this time. A case is ripe for adjudication only if the probability of the adverse impact alleged is of "sufficient immediacy and reality to warrant the issuance of a declaratory ruling". Id. (Quoting Golden v. Zwickler, 374 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). This is a fact issue that controls the subject matter jurisdiction of the court. The issue is a disputed issue of fact that warrants a live trial. For that reason the motion for summary judgment should be denied. B. The Last Unnumbered Paragraph of M4213 6 the Code: The last unnumbered paragraph of Section 14213.6 Code of Iowa was added by the General Assembly in 1990. The added wording is: "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 supercede any local law or regulation which is inconsistent with or conflicts with the provisions of this chapter." The Plaintiffs argue that addition of that paragraph must be viewed as a manifestation of legislative intent that cities not be able to adopt a local ordinance regulating smoking in a public place, on the theory that the statutory amendment would otherwise serve no purpose. The problem with that argument, of course, is that the added language can more easily be viewed as an express declaration that local ordinances are okay, so long as they are not "inconsistent with" or in conflict with the state law. That declaration is a useful purpose. There are at least two ways that a local ordinance could be "inconsistent with" or in conflict with the state law other than by restricting designation of smoking areas. They are: a) An ordinance purporting to impose penalties on smokers other than as specified in Section 14213.6 b) An ordinance purporting to allow smoking in a public place that has not been designated in accordance wth 14213.3 and 142B.4. There may be other possibilities for conflict with local ordinances. The point is, if the General Assembly had intended to prohibit local ordinances that regulated smoking in public places, it would have simply said so. As noted in the order denying a preliminary injunction: "The Iowa legislature knows how to express its intentions to preempt a field of legislation For example, Iowa Code section 728.11 (2001) states: 'In order to provide for the uniform application of the provisions of this chapter relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this chapter, and no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials . . .' See, Chelsea Theater Corp v City of Burlington, 258 N.W.2d 372 (Iowa 1977) (holding ordinance regulating obscene materials was irreconcilable with predecessor statute to §728.11 using similar language)." The directive of 14213.6 that "Enforcement of this chapter shall be implemented in an equitable manner throughout the state" relates, of course, to the state inspection processes and duties stated in subsection 142B.2(3) Code of Iowa. That is another useful purpose served by the 1990 amendment. So, there are some useful purposes served by the 1990 addition to Chapter 14213, but there is no indication from the legislature language that it was the purpose of the General Assembly to guarantee the designation of smoking areas where smoking was prohibited by ordinance. C. No Guarantee of Smoking Areas: The Plaintiffs see a guarantee of designated smoking areas to be implied in the state law. That mirage is entirely the product of wishful thinking. Neither the words of the statute, or the timing of the 1990 amendment, provide any basis for such an inference. Smoking areas are only permitted by the statute, and they are only permitted where not prohibited by the fire marshall, other law, ordinance or regulation. D. No Preemption by State Law: The rule on state law preemption, as stated in Goodell v. Humboldt County, 575 N.W.2d 486, 493 (Iowa 1998), is in the final analysis too simple to serve the Plaintiffs. The city ordinance is not preempted because the ordinance does not prohibit that which the state law permits. Section 142B.2(2) does not permit a smoking area where smoking is prohibited by a city ordinance. The Ames ordinance does not forbid anything that is permitted by the state law. The Plaintiffs urge the court to see such a conflicting prohibition with respect to the sentence: "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." which is taken out of the context of subsection 142B.2(3). That subsection is entirely about how smoking areas are to be provided for, if and where they are allowed. Where a smoking area is not prohibited by ordinance, the statute makes it clear that designating half the room as a smoking area is alright. The City's ordinance does not say otherwise. There is no conflict. E. Esjudem Generis Not Applicable: Under the doctrine of esjudem generis, general words that follow specific words are tied to the meaning and purpose of the specific words. Iowa Comprehensive Petroleum Underground Storage Tank Board v. Shell Oil Co., 606 N.W.2d 376, 380 (Iowa 2000). Plaintiffs rely on that doctrine to urge the court to construe subsection 142B.2(2) to limit the word "ordinance" to fire safety rules because the words "fire marshall" appear earlier in the sentence. That reliance is misplaced. In "Shell Oil" supra the court again stressed that: "We determine intent from what the legislature said, not from what it might have said." Id. 379. A rule of statutory construction, such as esjudem generis, is resorted to only when the statute is so ambiguous that statutory construction is required to give the enactment meaning. Id. 380. The doctrine is an attempt to reconcile an incompatibility that can sometimes exist between specific and general words when the meaning of the specific is inclusive in part of the general, and 8 the general words are inclusive in part of the specific. 2A Sutherland Statutory Construction, §47.17 (41' Ed.). In that respect the expression "prohibited by the fire marshall" is not partially inclusive of "other law, ordinance or regulation" because a fire marshall prohibition is distinctly different. A fire marshall prohibition is not an administrative rule promulgated under the Administrative Procedure Act like other state regulations. A fire marshall's prohibition is actually an edict, issued without notice or hearing, upon a determination of emergency affecting the public safety. Subsection 100.13(2) Code of Iowa. The court does not, under the guise of statutory construction, add to or alter the plain meaning of a statute. Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996). When the words used have a plain and certain meaning, the courts do not speculate about legislative intent. Berger v. Iowa Finance Authority, 593 N.W.2d 136, 139 (Iowa 1999). The words of subsection 142B.2(2) are plain, clear, and each has a meaning entirely distinct form the other. There is no basis to construe the words to limit the scope of the word "ordinance". F. Express Preemption by Section 137F.3 Code of Iowa: The Plaintiffs argue that the ordinance at issue is preempted because Section 137F.3 Code of Iowa has expressly preempted the field of "food establishments" from any regulation by municipalities. That section states: "Municipal corporations shall not' regulate, license, inspect or collect license fees from food establishments and food processing plants, except as provided in this section." However, preemption of municipal regulation that is directed specifically to "food establishments" does not provide an exemption of such establishments from city ordinances that are directed to "public places"; and, section 137F.3 does not exempt people who are in a food service establishment from ordinances that regulate the conduct of people in a public place. The City ordinance at issue does not regulate "food establishments". The ordinance regulates how people conduct themselves in a "public place". Section 21A.101 of the Municipal Code of Ames, Iowa, states: "Smoking, as defined by Subsection 142B.1(4) Code of Iowa, is prohibited in any establishment that is a `public place' as 9 defined by Subsection 142B.1(3) Code of Iowa." That is not a regulation of food establishments. That is a regulation of how people are to act when in all kinds of public places. Sections 21 A.200, 21 A.201, and 21 A.202 state certain kinds of public places where those regulations do not apply. Those exemptions relate to public places that are, in addition to other qualification, various kinds of food establishments. The Ames ordinance does not regulate food establishments. All that ordinance does with respect to food establishments is exempt people who are in some kinds of food establishments from a prohibition that would otherwise prevent them from smoking in those public places. IV CONCLUSION A municipal ordinance is presumed to be reasonable, valid and constitutional unless it is plainly void. Cedar Rapids Human Rights Commission v. Cedar Rapids Community School District 222 N.W.2d 391 , 399 (Iowa 1994); Mason City v. Zirble, 250 Iowa 102, 100, 93 N.W.2d 94, 98-99 (1958). The burden is on the party attacking the ordinance to show it is invalid, and evidence of its invalidity must be clear. Carter Lake v Anderson Excavating & Wrecking Co., 241 N.W.2d 896, 901 (Iowa 1976). The Ames ordinance is well within a city's constitutional and statutory powers as stated in II-A above. There is no conflict with the state law. Section 142.2(2) clearly anticipates that there may be a fire marshall's order or "other law, ordinance, or regulation" that restricts smoking in public places. The plain meaning of Section 142B.2(2) is that places where smoking is prohibited by the fire marshall, or by a law other than Chapter 142B, or by a city ordinance, or by a regulation, is not a place where smoking areas can be designated. For those reasons, and for the further reason that there is a genuine issue of facts to whether the Plaintiffs have been or will be adversely affected by the ordinance, the motion for summary judgment should be denied. 10 PROOF OF SERVICE The undersigned certifies that the foregoing instrument was served upon all parties to the above cause by depositing a copy thereof in the U.S. Mail,postage prepaid, in envelopes addressed to each of the attorneys of record herein at their respective add re ses J n R. Klaus ST0002856 disclosed on the pleadings,on this 1K day of City Attorney .2001. 515 Clark Avenue, P.O. Box 811 Ames, Iowa 50010 Phone 515-239-5146 Fax 515-239-5142 Original to Court Copy to: Fred L. Dorr Charles F. Wasker CHAPTER 21A SMOKING IN PUBLIC PLACES Sec.21A.100. PURPOSE. The purpose of the provisions of this chapter,Sections 21A.100 through 21A.300 of the Municipal Code of the City of Ames,Iowa,is to augment the provisions of chapter 14213,Sections 14213.1 through 14213.6 Code of Iowa,by prohibiting smoking,as smoking is defined by Section 142B.1(4)Code of Iowa,in public places,as `public place' is defined in Section 142B.1(3)Code of Iowa,to prevent the designation in those public places of any smoking area in accordance with Section 142B.2(2)Code of Iowa. a Sec.21A.101. PUBLIC PLACES WHERE SMOKING IS PROHIBITED. Smoking,as defined by Subsection 14213.1(4)Code of Iowa,is prohibited in any establishment that is a "public place"as defined by Subsection 14213.1(3)Code of Iowa. Sec.21A.102. DESIGNATION OF SMOKING AREA PROHIBITED. The person having custody or control of any place that is a`public place' as defined by Section 14213.1(3) Code of Iowa,shall not designate any part or portion of that place as a smoking area pursuant to Section 142B.2(2) Code of Iowa. Sec.21A.200. FOOD ESTABLISHMENT,TIME-OF-DAY EXEMPTION. The provisions of Section 21A.101 and Section 21A.102 of the Municipal Code of the City of Ames,Iowa shall not apply to a food establishment as defined by Section 137F.1(8)Code of Iowa during that time between 8:30 p.m. and 6:00 a.m. During that time such food establishment may designate a smoking area in accordance with Section 142B.2(2)Code of Iowa. Such food establishment that terminates food service at the establishment on a consistent and regularly scheduled basis at a time earlier than 8:30 p.m.shall not,during the time period between such earlier time and 6:00 a.m.,be subject to Sections 21A.101 and 21A.102 of the Municipal Code of the city of Ames,Iowa,and may,between such earlier time and 6:00 a.m. designate a smoking area in accordance with Section 142B.2(2)Code of Iowa. Sec.21A.201. LESS THAN TEN PERCENT EXEMPTION. The provisions of Sections 21A.101 and 21A.102 of the Municipal Code of the City of Ames,Iowa shall not apply to a food establishment as defined by Section 137F.1(8)Code of Iowa that is also a licensed premises as defined by Section 123.3(20)Code of Iowa if non-alcoholic food sales at such establishment are less than ten percent of the dollar amount of sales of all kinds at that establishment and there has been filed with the Ames City Clerk the sworn affidavit of the person in custody and control of the establishment attesting to that fact. The sales price of non-alcoholic food that is delivered from a food establishment as defined by 137F.1(8)Code of Iowa to a licensed premises as defined by Section 123.3(20)Code of Iowa for consumption on the premises to which it is delivered,shall be included in computing the dollar amount of non-alcoholic food sales and the dollar amount of sales of all kinds of the establishment to which the non-alcoholic food is delivered, for purposes of computing-the percentage of non-alcoholic food sales at the establishment for which the exemption under this section is sought. Sec.21A.202. TRUCK STOP EXEMPTION. (a) The provisions of Section 21A.101 and 21A.102 of the Municipal Code of the city of Ames,Iowa shall not apply to that portion of a public place,as public place is defined in Section 142B.1(3)Code of Iowa,that is a fully enclosed room within such public place,and which fully enclosed room has a forced air ventilation system that is separate from the ventilation system for the remainder of the said public place in which such room is located Sup#2001-2 21A-1 Rev.4-1-01 if the said public place is a food establishment as defined by Section 137F.1(8)Code of Iowa that: (i) is located within 1,000 feet of Interstate Highway 35; (ii) provides parking spaces for more than twelve semi-tractor trailers;and (iii) has filed with the Ames City Clerk the sworn affidavit of the person in custody and control of the establishment that the establishment has, in addition to its food sales,sales of diesel fuel that on average,over a calendar year,amount to more than twelve thousand gallons per month,as shown by records made in the regular course of that establishment's business and filed with the said affidavit. (b) In the event that the dining area of such public place as is the subject of this section is expanded subsequent to the establishment of an exempt room provided for in this section,there shall be no increase in the area of the said exempt room. Sec.21A.203. BOWLING ALLEY EXEMPTION. (a) The provisions of Section 21A.101 and 21A.102 of the Municipal Code of the City of Ames, Iowa shall not apply,during the time between the hours of 6:00 p.m.and the following 6:00 a.m.on all days and between 3:00 p.m.Thursday and the following 6:00 a.m.,to a public place as public place is defined by Section 142B.1(3) Code of Iowa,that offers the use of not less than twelve full scale bowling lanes that are each equipped with operable automatic pin setting apparatus. During the times stated in this section,such public place with bowling lanes as aforesaid may designate a smoking area in accordance with Section 142B.2(2)Code of Iowa. (b) The provisions of Section 21A.101 and 21A.102 of the Municipal Code of the City of Ames,Iowa shall not apply to that portion of a public place,as public'place is defined in Section 14213.1(3)Code of Iowa,that is a fully enclosed room within such public place which room has a forced air ventilation system that is separate from the ventilation system for the remainder of the public place in which such room is located,if the said public place offers the use of not less than twelve full scale bowling lanes each equipped with operable automatic pin setting apparatus. Sec.21A.204. RENTED ROOM SOCIAL EVENT EXEMPTION. Section 21A.101 and 21A.102 of the Municipal Code of the City of Ames, Iowa shall not apply in cases in which an entire room or hall is used for a private social function and seating arrangements are under the control of the sponsor of the function and not the proprietor or person in charge of the place,all in accordance with Section 14213.2(1)Code of Iowa. Sec.21A.205. CERTAIN WORK PLACES EXEMPTION. Section 21A.101 and 21A.102 of the Municipal Code of the City of Ames, Iowa shall not apply to factories,warehouses and similar places of work not usually frequented by the general public,all in accordance with Section 1428.2(1)Code of Iowa. See.21A.300. SMOKE-FREE AREAS,HOTELS AND MOTELS. (a) The person in custody and control of any hotel or motel shall take such measures as shall be reasonably necessary and effective to keep all lobby areas,corridors and other common areas of the hotel or motel free from any level of tobacco smoke that can be detected by the unaided human sense of smell. (b) Smoking, as defined by subsection 14213.1(4), Code of Iowa, is prohibited in any hotel or motel lobby,corridor or other common area of the hotel or motel. Sec.21A.301. SMOKE-FREE AREAS,CERTAIN ENTRANCES AND EXITS. (a) The person in custody and control of any place that comes within the scope of Sections 21A.200, 21A.201,21A.202,and 21A.203 of the Municipal Code of the City of Ames,Iowa shall take such measures as shall be reasonably necessary and feasible to maintain all points within fifteen feet of the main entrance and the main exit Sup#2001-2 21A-2 Rev.4-1-01 of such place free from any level of tobacco smoke that can be detected by the unaided human sense of smell. (b) Smoking,as defined by Subsection 142B.1(4),Code of Iowa,is prohibited at any point within fifteen feet of the main entrance and the main exit of any place that comes within the scope of Sections 21A.200, 21A.201,21A.202, and 21A.203 of the Municipal Code of the City of Ames, Iowa. Sec.21A.400. MINORS PROHIBITED IN SMOKING AREAS. (a) The person in custody and control of any place that comes within the scope of Sections 21A.200, 21A.201,21A.202,and 21A.203 of the Municipal Code of the City of Ames,Iowa shall take such measures as shall be reasonably necessary and feasible to prevent persons under the age of eighteen from being present in any area where smoking,as defined in Subsection 14213.1(4)Code of Iowa,is allowed under the Municipal Code of the City of Ames,Iowa. (b) It is unlawful for any person under the age of eighteen to be present in any place where smoking is allowed under the Municipal Code of the City of Ames,Iowa. Sec.21A.500. OUTDOOR SEATING AREAS. Outdoor seating areas shall be subject to the prohibitions,provisions and exemptions stated in Sections 21A.101,21A.102,21A.200,21A.201,21A.202,21A.203,21A.204,21A.205,21A.300,21A.301 and 21A.400,the same as indoor seating areas. Sec.21A.600. PENALTY. (1) Violation of Section 21A.102,21A.300(a),21A.30I(a),and 21A.400(a)shall be a municipal infraction punishable by a civil penalty of$500 for a person's first violation thereof,and a penalty of$750.00 for each repeat violation. (2) Smoking in violation of Section 21A.101,21A.300(b),21A.301(b), and 21A.400(b)shall be a municipal infraction punishable by a penalty of$25.00. (Ord. No. 3608, 3-6-01) Sup#2001-2 21A-3 Rev.4-1-01 IN THE IOWA DISTRICT COURT IN AND FOR STORY COUNTY JAMES ENTERPRISES, INC. d/b/a CYCLONE TRUCK STOP; CLYDE'S OF AMES, INC. d/b/a WALLABY'S; YE OLDE, EQUITY NO. EQ-CV040013 L.L.C. d/b/a DUBLIN BAY; DE PAULA, INC. d/b/a CAFE BEAUDELAIRE INTER- t NATIONAL CUISINE & BAR; STEVE SOESBE d/b/a TRADEWINDS CAFE; ROZEBOOM FOODS, INC. d/b/a WHISKEY RIVER; and TOM ZMOLEK, d/b/a PEOPLE'S BAR& GRILLE, Plaintiffs, . VS. CITY OF AMES, IOWA, AFFIDAVIT OF ARNE HALLAM IN RESISTANCE TO THE MOTION Defendant. FOR SUMMARY JUDGMENT LOVISH BEDERAZACK d/b/a . CAFE LOVISH, Intervenor/Plaintiff VS. CITY OF AMES, IOWA Defendant. STATE OF IOWA ) SS: COUNTY OF STORY ) On this g)�ki day of November, 2001, the undersigned, after first being duly sworn on oath, deposes and states as follows: My name is Arne Hallam and I am the Chair of the Department of Economics at Iowa State University. I have reviewed a large number of studies on the economic impact of various types of smoking bans on restaurant and bar sales in the United States and Canada. The list of those studies is attached hereto. I have also reviewed studies on analyzing the impact of smoking bans on hotel and tourism receipts. Almost without exception, the conclusion of these studies is that smoking bans do not hurt sales. The extremely small number of studies that show a negative impact have not generally been peer reviewed and were commissioned by individuals who had a vested interest in the outcome. A general conclusion of these studies is that the increase in sales from an increase in dining out by non-smokers and higher consumption by smokers more than compensates for any decline in sales to smokers. In many cases individual claims of hardship were not validated over a longer time period as smokers and non-smokers adjusted to the new policy. Any data provided on the impacts of a smoking ban should be compared to total sales of all restaurants and bars over a similar year to year time period and over a sufficiently long time to make accurate comparisons of revenues and costs. Losses by any one business should be compared to increases in profits for other businesses as a result of changes in the smoking ordinance. I see no reason for a temporary restraining order to protect the profit positions of Ames businesses while this particular lawsuit is proceeding. The evidence from other smoking bans is that there is no economic hardship. As businesses optimally adjust to the new ordinance, profits will return to a normal level. FURTHER AFFIANT SAYETH NOT. 11 JaAmallam Subscribed and Sworn to before me thisy of November, 2001. N ry Public in and for the State of Iowa o P%AL JOHN R. KLAUS COMMISSION #208829 My COMMISSION EXPIRES lOWA 0 Economic Studies of Smoking Bartosch, W.J. and G.C. Pope. "The Economic Effect of Smoke-Free Restaurant Policies on Restaurant Businesses in MassachusettsJournal of Public Health Management Practice, 5(1): 53-62, 1999. Corsun, D.L., C.A. Young and C.A. Enz. "The politics of smoking: Findings or agendas?" Cornell Hotel and Restaurant Administration Quarterly. 1996: 37 (6); 8-12. Glantz S.A. "Smoke-Free Restaurant Ordinances Do Not affect Restaurant Business. Period." Journal of Public Health Management Practice, 1999: 5 (1); vi-ix. Glantz, A.A and A. 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