HomeMy WebLinkAboutA043 - Copy of Brief in appeal of lawsuit - Legal Department
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Curing People Ames,IA 50010
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May 29, 2002
29
The Honorable Ted Tedesco, Mayor,and Members of the CityCouncil G�E W1 ,��t
CITY 04-E��ll"tS,10PJA
of the City of Ames, Iowa
Re: Smoking Ordinance Litigation
Dear Mayor Tedesco and Council Members:
As you know, an appeal to the Iowa Supreme Court is pending with respect to the City's ordinance
regulating the designation of smoking areas in food service establishments. Previously I sent you a
copy of the Plaintiff-Appellant brief. With this is a copy of the brief filed for the City.
Yours truly,
John R. Klaus
City Attorney
JRK:dls
Enclosures
IN THE IOWA SUPREME COURT
NO. 02-0415
JAMES ENTERPRISES,INC. d/b/a
CYCLONE TRUCK STOP; CLYDE'S OF AMES, INC.
d/b/a WALLABY'S; YE OLDS, L.L.C. d/b/a DUBLIN BAY;
DEPAULA, INC. d/b/a CAFE BEAUDELAIRE INTERNATIONAL
CUISINE & BAR; STEVE SOESBE d/b/a TRADEWINDS CAFE;
ROZEBOOM FOODS, INC. d/b/a WHISKEY RIVER;
and TOM ZMOLEK, d/b/a PEOPLE'S BAR& GRILLE,
Plaintiffs/Appellants.
LOVISH BEDERAZACK d/b/a CAFE LOVISH,
Intervenor/Plaintiff/Appellant,
VS.
CITY OF AMES, IOWA,
Defendant/Appellee.
APPEAL FROM THE IOWA DISTRICT COURT FOR STORY COUNTY
Hon. Carl D. Baker,Judge
DEFENDANT/APPELLEE'S
PROOF BRIEF AND ARGUMENT
JOHN R. KLAUS ST0002856 FRED L. DORR PK0001300
Ames City Attorney Wasker, Dorr, Wimmer& Marcouiller, P.C.
P.O. Box 811, 515 Clark Ave. 801 Grand Avenue, Suite 3100
Ames, Iowa 50010 Des Moines, Iowa 50309-8036
ATTORNEY FOR DEFENDANT/APPELLEE ATTORNEY FOR PLAINTIFFS/
APPELLANTS and INTERVENOR/
PLAINTIFF/APPELLANT
1
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARGUMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. IT WAS CORRECT FOR THE DISTRICT COURT TO NOT
RESTRICT THE SCOPE OF AN ORDINANCE REGULATING
DESIGNATION OF SMOKING AREAS UNDER SECTION
142B.2(2) IOWA CODE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. IT WAS CORRECT FOR THE DISTRICT COURT TO NOT FIND
AMBIGUITY IN SECTION 142B.2(2) IOWA CODE . . . . . . . . . . . . . . . . . . 9
III. IT WAS CORRECT FOR THE DISTRICT COURT TO NOT
FIND PREEMPTION OF THE CITY ORDINANCE BY STATE LAW . . . 10
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ATTORNEY'S COST CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF FILING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2
TABLE OF AUTHORITIES
Page
Cases:
Cedar Rapids Community School District vs. City of Cedar Rapids
106 N.W.2d 655, 658 (Iowa 1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
Chelsea Theater Corporation v. City of Burlington
258 NW.2d 372 (Iowa 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11
Crippen v. City of Cedar Rapids
618 N.W.2d 562, 568 (Iowa 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
Goodell v. Humboldt County
575 N.W.2d 486, 494, 499, 500 (Iowa 1998) . . . . . . . . . . . . . . . . . . . . . . . . 5, 12, 13
IBP Inc. v. Harker
633 N.W.2d 322, 325 (Iowa 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9
Sioux City Police Officers Association vs. City of Sioux City
495 N.W.2d 687, 693-694 (Iowa 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9
State v. Iowa District Court of Johnson County
630 N.W.2d 838, 842-843 (Iowa 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10
Wyciskalla v. Iowa District Court
588 N.W.2d 403, 407 (Iowa 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12
Statutes:
Sec. 142B.2(2), Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 9, 10, 13
Sec. 142B.2(1), Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 12
Section 17A.23, Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
Sec. 364.2(3), Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 13
Sec. 142B.1(3), Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9, 10
Sec. 14213.6, Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10, 11
Sec. 142B.3, Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11
Sec. 142B.4, Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11
Sec. 137F.3, Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11
Sec. 142B.2(3), Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11
Sec. 723.4(1), Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12
Sec. 364.1, Iowa Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9
3
Other:
Article III, Section 38A, Iowa Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6A McQuillen Mun. Corp, 3"Ed 24.55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18
Chapter 21A, Ames Municipal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7
4
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
I. WAS IT CORRECT FOR THE DISTRICT COURT TO NOT RESTRICT THE SCOPE OF
AN ORDINANCE REGULATING DESIGNATION OF SMOKING AREAS UNDER
SECTION 142B.2(2) IOWA CODE?
Cases:
Cedar Rapids Community School District v. City of Cedar Rapids, 106 N.W.2d 655, 658 (Iowa
1960)
Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 568 (Iowa 2000)
Sioux City Police Officers' Association vs. City of Sioux City, 495 N.W.2d 687, 693-694 (Iowa
1993)
Statutes:
Sec. 142B.2(2), Iowa Code
Sec. 17A.23, Iowa Code
Sec. 364.2(3),Iowa Code
Sec. 142B.1(3)
Sec. 364.1, Iowa Code
Other:
6A McQuillin Mun. Corp 31 ed. 24.55
Article III Section 38A, Iowa Constitution
Chapter 21A, Ames Municipal Code
II. WAS IT CORRECT FOR THE DISTRICT COURT TO NOT FIND AMBIGUITY IN
SECTION 142B.2(2) IOWA CODE?
Cases:
IBP Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001)
State v. Iowa District Court of Johnson County, 630 N.W.2d 838, 842-843 (Iowa 2001)
Statutes:
Sec. 142B.2(2), Iowa Code
Sec. 142B.1(3), Iowa Code
III. WAS IT CORRECT FOR THE DISTRICT COURT TO NOT FIND PREEMPTION OF
THE CITY ORDINANCE BY STATE LAW?
Cases:
Chelsea Theater Corporation v. City of Burlington, 258 N.W.2d 372 (Iowa 1977)
Wyciskalla v. Iowa District Court, 588 N.W.2d 403, 407 (Iowa 1998)
Goodell v. Humboldt County, 575 N.W.2d 486, 494, 499, 500 (Iowa 1998)
5
Statutes:
Sec. 14213.6, Iowa Code
Sec. 142B.3, Iowa Code
Sec. 142B.4, Iowa Code
Sec. 142B.2(1), Iowa Code
Sec. 364.1, Iowa Code
Sec. 13717.3, Iowa Code
Sec. 142B.2(3), Iowa Code
Sec. 723.4(1), Iowa Code
6
STATEMENT OF THE CASE
The Appellee accepts the Appellant's statement of the case.
STATEMENT OF THE FACTS
The City of Ames, Iowa, has enacted an ordinance to regulate the designation of smoking
areas in public places. The State of Iowa has a statute that, at subsection 142B.2(1) Iowa Code,
absolutely prohibits smoking in public places, but at subsection 142B.2(2) Iowa Code 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.". The Ames ordinance, Chapter
21 A of the Municipal Code of the City of Ames,Iowa,prohibits smoking in any public place,with
exceptions, so that as a general rule smoking areas cannot be designated in food service
establishments in Ames between the hours of 6:00 a.m.and 8:30 p.m. The Plaintiffs are owners and
operators of food service establishments that want to be able to designate smoking areas without
restriction by the city ordinance.
ARGUMENT
I. IT WAS CORRECT FOR THE DISTRICT COURT TO NOT RESTRICT THE SCOPE OF
AN ORDINANCE REGULATING DESIGNATION OF SMOKING AREAS UNDER
SECTION 142B.2(2) IOWA CODE.
The Plaintiff/Appellants first argument seems to be that the word"ordinance"in subsection
142B.2(2)Iowa Code must either be encumbered by a construction that will give it a very limited
scope of application, or it will be invalid as conflicting with some state agency rules that allow the
designation of smoking areas in some places. That argument must be rejected as contrary to the
legislature's plain and clearly expressed intent that both state agencies and local governments be
empowered to prohibit smoking. There is no expression of legislative intent that either of those
7
governmental subdivisions have the power to permit smoking where the other has prohibited
smoking. The clear legislative intent that a local government have the power to prohibit smoking
by ordinance in places under local government jurisdiction cannot be nullified by a state agency rule
that allows smoking where a city prohibits smoking. The legislature may vest in city government
a power to regulate a certain subject in a way that will limit or restrict the acts and policies of other
subdivisions of the state. Cedar Rapids Community School District v. City of Cedar Rapids, 106
N.W.2d 655, 658 (Iowa 1960); 6A McQuillin Mun. Corp. 3rd Ed. 24.55. Section 142B.2(2) Iowa
Code is about prohibition of smoking. It does not grant any power to permit smoking in any place
where smoking is prohibited by"...other law,ordinance or regulations." The rule making discretion
of an administrative agency does not extend beyond the statute that grants the rule making authority.
Section 17A.23 states:
"An agency shall have only that authority or discretion delegated to or conferred
upon the agency by law and shall not expand or enlarge its authority or discretion
beyond the powers delegated to or conferred upon the agency."
In contrast to that limited statutory authority for rule making by administrative agencies of the State,
Article III Section 38A of the Iowa Constitution grants to cities a broadly expressed:
"... home rule power and authority, not inconsistent with the laws of the General
Assembly, to determine their local affairs and government . . ."
Under that constitutional home rule power,cities have the authority to act unless a particular power
has been denied them by statute. Crippen v.City of Cedar Rapis 618 N.W.2d 562,568(Iowa 2000).
Section 364.2(3) Iowa Code (2001)plainly states:
44(3) A City may . . set standards and requirements which are higher or more
stringent than those imposed by state law, . . ."
Under home rule, limitations on the municipality's power cannot be implied from administrative
agency rule making. Under the Iowa Constitution, only"the laws of the General Assembly"limit
8
the City's power. Similarly, the scope of city power as expressed in section 364.1 Iowa Code, is
limited only by"the laws of the general assembly". As this Court has declared:
"Limitations on a municipality's power over local affairs are not implied;they must
be imposed by the legislature."
Sioux City Police Officers' Association vs. City of Sioux City, 495 N.W.2d 687, 693-694 (Iowa
1993). Section 142B.2(2) Iowa Code grants the power to prohibit smoking to both state agencies
and to municipalities. The legislature has not vested in either the power to permit smoking where
the other has prohibited it. A state administrative agency cannot nullify the home rule power of a
city to prohibit smoking by ordinance. Only the general assembly could impose that restriction on
the city's powers. By its use of the word"ordinance"in section 142B.2(2)Iowa Code the legislature
has plainly and clearly expressed its intent that the power of a city to prohibit smoking in"public
places" as that term is defined in Section 142B.1(3) Iowa Code shall not be restricted.
II. IT WAS CORRECT FOR THE DISTRICT COURT TO NOT FIND AMBIGUITY IN
SECTION 142B.2(2) IOWA CODE.
Section 142B.2(2) Iowa Code, states that a smoking area cannot be designated where
smoking is prohibited by ordinance. That statutory statement is plain and clear. There is no need
to resort to statutory construction. The trial court interprets an ordinance correctly when it ascertains
and gives effect to the legislative intent manifested by the plain meaning of the words used. IBP Inc.
v. Harker, 633 N.W.2d 322, 325 (Iowa 2001)
"To ascertain legislative intent, we look to what the legislature said. We do not
speculate as to the probable legislative intent apart from the words used in the
statute." Id.
". . . we give words their plain and ordinary meaning." Id.
The Plaintiff/Appellants' argument strains to reach outside the words of 142B.2(2)Iowa Code in an
effort to induce a finding of ambiguity to provide a basis for the court to construe the phrase:
9
". . . prohibited by the fire marshall or by other law, ordinance, or regulation."
as restricting the words "law", "ordinance"and"regulation"to only those pertaining to fire safety.
Such a strained construction is not warranted. As the District Court correctly points out, the word
"other"plainly and clearly separates the fire marshall's prohibition from other unique and different
laws and regulations that prohibit smoking in various places. The District Court gave some
examples of such laws. All of those "other" regulations relate to "public places" as that term is
defined by Section 142B.1(3) Iowa Code, that is:
". . . any enclosed indoor area used by the general public or serving as a place of
work . . .".
Whether the place is publicly owned or privately owned is not determinative of"public place". The
Plaintiff/Appellants' arguments to the contrary point up the inappropriate futility of trying to create
ambiguity where the statute is clear. As declared in State v.Iowa District Court of Johnson County,
630 N.W.2d 838, 842-843 (Iowa 2001)
"When a statute's plain meaning is clear, an attempt to suggest it is ambiguous to
lead to a favorable result must fail.
when a statute is not ambiguous,we are not at liberty to search for meaning outside
its terms . . ."
The District Court is correct in not finding section 142B.2(2) Iowa Code to be ambiguous, and in
giving the statute its plain meaning.
III. IT WAS CORRECT FOR THE DISTRICT COURT TO NOT FIND PREEMPTION OF
THE CITY ORDINANCE BY STATE LAW.
The Plaintiff-Appellants urge the court to view the last unnumbered paragraph of section
14213.6 Iowa Code as a"preemption clause". That paragraph states:
"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
10
or conflicts with the provisions of this chapter."
The Plaintiff-Appellants argue that the addition of that paragraph in 1990 must be seen as
an indication of legislative intent that cities not be able to adopt a local ordinance regulating smoking
in a public place,on the theory that the added wording would not serve any purpose otherwise. The
problem with Plaintiff-Appellants' argument, of course, is that the added paragraph is more easily
seen for what it plainly is,an express declaration that local ordinances in this field are valid so long
as the ordinance is not inconsistent with or in conflict with the provisions of Chapter 142B Iowa
Code. That statutory declaration serves several useful purposes. First,and significantly,the last two
words, "this chapter", make it clear the legislature is concerned with conflicts and inconsistency
within Chapter 142B Iowa Code only. There are at least two ways that an ordinance could conflict
within Chapter 142B Iowa Code. They are:
a) An ordinance could purport to impose penalties other than as specified in section
142B.6.
b) An ordinance could purport to allow designations of smoking areas in some manner
that is not in accordance with the requirements of sections 14213.3 and 14213.4.
Additionally, the statutory directive for:
". . . equitable and uniform implementation, application, and enforcement. . ."
relates to the matter of state inspection processes and duties stated in section 142B.2(3)Iowa Code,
as well as penalties, and sign posting requirements. The added paragraph serves a useful purpose,
but it is not its purpose to pre-empt the authority of a city to enact an ordinance prohibiting smoking
in public places. A preemption provision is one that flatly states its intention that the only regulation
of a certain subject be by state law, and which bars local regulation on the subject in unmistakably
clear terms. See: Chelsea Theater Corporation v. City of Burlington 258 N.W.2d 372(Iowa 1977).
11
The 1990 addition to Section 142B.6 Iowa Code did not modify the existing statute, it served only
the useful purpose of clarifying the statute, because the legislation does not manifest a"clear and
unmistakable" intent to change the law. Wyciskalla v. Iowa District Court, 588 N.W.2d 403, 407
(Iowa 1998).
The Plaintiff/Appellants argue that the ordinance is preempted by section 137F.3 Iowa Code.
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, such preemption of regulations directed specifically to "food establishments" does not
indicate a legislative intent to preempt an ordinance that pertains to the broad array of public places,
of which a food service establishment is but one kind. In other words, section 137F.3 does not
indicate a legislative intent to make a food service establishment a sanctuary from ordinances that
regulate the conduct of people in a public place. For example, a city could have a "disorderly
conduct"ordinance that would prohibit"fighting or violent behavior in any public place"similar to
section 723.4(1)Iowa Code. That ordinance would not be preempted by section 137F.3 Iowa Code.
The Ames ordinance regulates how people conduct themselves in a public place. It is a regulation
of all public places, not a regulation of food establishments.
There is no"field preemption"in the absence of a"high degree of expression"of legislative
intent to eliminate local regulation of the subject. Goodell v. Humboldt County 575 NW.2d 486,
499 (Iowa 1998) A local ordinance is preempted by implication of state law only if the local law
prohibits an act permitted by the state statute,or permits an act prohibited by the statute. Goodell at
500. The Ames ordinance is not preempted because the ordinance does not prohibit that which the
statute permits. It must be remembered that section 142B.2(1) Iowa Code prohibits smoking in
12
public places except in designated smoking areas, and prohibits designation of smoking areas in
places in which smoking is prohibited by ordinance. The City ordinance does not prohibit smoking
in any place where the statute permits smoking. The Plaintiff-Appellants look to Chapter 142B for
a guarantee that smoking areas can be designated in food service establishments, but no such
guarantee can be found in the statute. Contamination of the environment is a matter of local concern
and a proper subject of local regulation—even if the subject has statewide implications. "Goodell"
at 494. The Ames ordinance is a proper, unpreempted, exercise of the city power expressed in
section 364.1 Iowa Code to improve the health and comfort of its residents.
CONCLUSION
The Ames ordinance is well within a city's constitutional and statutory powers. There is no
conflict with the state statute on smoking in public places. Section 142B.2(2) Iowa Code clearly
anticipates that there may be an ordinance that restricts the designation of smoking areas. The plain
meaning of section 142B.2(2) Iowa Code is that places where smoking is prohibited by city
ordinance are not places where smoking areas can be designated. For that reason, the decision of
the District Court should be affirmed.
13
REQUEST FOR ORAL ARGUMENT
Notice is hereby given that Defendant-Appellees desire to be heard orally upon submission
of this case.
By
John R. Klaus
City Attorney
P.O. Box 811, 515 Clark Ave
Ames, Iowa 50010
ATTORNEY FOR DEFENDANT-APPELLEE
ATTORNEY'S COST CERTIFICATE
This is to certify that the true and actual cost ofprinting the foregoing Defendant-Appellees's
brief was the sum of$
By
John R. Klaus
City Attorney
P.O. Box 811, 515 Clark Ave
Ames, Iowa 50010
ATTORNEY FOR DEFENDANT-APPELLEE
14
CERTIFICATE OF SERVICE
I,John R.Klaus,hereby certify that one(1)copy of the attached Defendant-Appellee's Proof
Brief and Argument was served on Fred L.Dorr,801 Grand Avenue, Suite 3100,Des Moines,Iowa
50309-8036, by enclosing the same in an envelope bearing the same address with postage affixed
thereto and by depositing the same in the United States Post Office depository in Ames, Iowa, on
the day of , 2002.
By
John R. Klaus
City Attorney
P.O. Box 811, 515 Clark Ave
Ames, Iowa 50010
ATTORNEY FOR DEFENDANT-APPELLEE
CERTIFICATE OF FILING
The undersigned certifies that two(2)copies of the Proof Brief and Argument attached hereto
were filed by mailing the same, postdate prepaid, to the Clerk of the Iowa Supreme Court on the
day of , 2002.
By
John R. Klaus
City Attorney
P.O. Box 811, 515 Clark Ave
Ames, Iowa 50010
ATTORNEY FOR DEFENDANT-APPELLEE
Hospitality Providers-Supreme Court Brief,052102.wpd
15
11/29/2001 15: 13 NEVADA CLERK OF COURT 4 AMES CITY ATTY NO.802 P002
r... c
IN THE IOWA DISTRICT COURT FOR STORY COUNTY
JAMES ENTERPRISES, INC. ,
ET AL. ,
Cause No . EQCV 40013
Plaintiffs,
v s . ) 0 R D E R
CITY OF AMES, IOWA,
)
Defendant. )
By prior order, the motion for summary judgment filed by
the plaintiff and intervenor/plaintiff was fixed for -hearing
on December 19, 2001, at 9: 00 a.m. , and provided that the
hearing could be conducted by telephone conference call .
Counsel for the plaintiffs has written to the undersigned
judge requesting that the hearing be held in person, rather than
by telephone, so his clients and other interested persons may
be present.
IT IS ORDERED AS FOLLOWS:
1 . The hearing scheduled on December 19 , 2001, at 9:00 a.m. ,
shall be held in the District Courtroom, Story County Courthouse,
Nevada, Iowa.
2 . The Clerk shall notify counsel and the Court Attendant.
Dated at Marshalltown, Iowa, this 28th day of November, 2001.
Carl D. Baker, Judge of the Sec
Judicial District of Iowa
Copies to:
Fred L. Dorr
John R. Klaus
Bert Ann Ray, Ct. Attendant
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'S RESISTANCE TO
PLAINTIFFS' AND INTERVENOR/
Defendant. PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT
LOVISH BEDERAZACK d/b/a
CAFE LOVISH,
Intervenor/Plaintiff
VS.
CITY OF AMES, IOWA,
Defendant.
COMES NOW the Defendant City of Ames, Iowa, and files a resistance to the
Plaintiffs' and Intervenor/Plaintiff's Motion for Summary Judgment, including a
statement of disputed facts, if any, and a memorandum of authorities supporting the
resistance.
Defendant City resists the Motion for Summary Judgment in that:
1) There is a genuine issue of fact as to whether there is any actual present
or impending adverse impact to the Plaintiffs sufficient for a justiciable
controversy.
2) The City ordinance at issue is within the constitutional and statutory
powers of the Defendant City and not in conflict with or preempted by the
laws of this State.
WHEREFORE, it is prayed that the Motion for Summary Judgment be denied.
PROOF OF SERVICE Respectfully submitted,
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 By
the attorneys of record herein at their respective AohnR. Klaus,- ity Attorney ST0002856
addresses disclosed on the pleadings, on this 515Clark Avenue, BOX 811
day of Nc o-e-1 b-e P, 2001. Ames, Iowa 50010
Phone: 515-239-5146
FAX: 515-239-5142
ATTORNEY FOR DEFENDANT
Copy to: Fred L. Dorr
Charles F. Wasker