Roark & Hardee LP v. City of Austin

REVISED APRIL 24, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 27, 2008

No. 06-51670 Charles R. Fulbruge III

Clerk

ROARK & HARDEE LP, doing business as Warehouse Saloon & Billiards;

PUB DRAUGHT INC., doing business as Lovejoys Tap Room & Brewery;

JOSEPH CHIP TAIT; GMC INVESTMENT INC, doing business as Ego’s;

CANARY ROOST INC; CANARAY HUT INC; GAIL E JOHNSON; KEEP

AUSTIN FREE PAC; TONY SIRGO; EDWARD CHECK; BILL HARDEE

Plaintiffs - Appellees

v.

CITY OF AUSTIN

Defendant - Appellant

_____________________________________________________________________

Consolidated with

No. 07-50441

ROARK & HARDEE LP, doing business as Warehouse Saloon & Billiards;

PUB DRAUGHT INC., doing business as Lovejoys Tap Room & Brewery;

JOSEPH CHIP TAIT; KEEP AUSTIN FREE PAC; TONY SIRGO; EDWARD

CHECK; BILL HARDEE

Plaintiffs - Appellants

v.

CITY OF AUSTIN

Defendant - Appellee

No. 06-51670

Appeals from the United States District Court

for the Western District of Texas, Austin

USDC No. 1:05-CV-837

Before KING, DeMOSS, and SOUTHWICK, Circuit Judges.

KING, Circuit Judge:

Plaintiffs are owners of stand-alone bars in Austin, Texas. They filed this

action against the City of Austin seeking a declaratory judgment and injunctive

relief relating to the enforcement of Austin’s ordinance prohibiting smoking in

enclosed public places, including bars, restaurants, and workplaces. The district

court declared the “necessary steps” provision of the ordinance

unconstitutionally vague on its face and permanently enjoined the City of Austin

from enforcing it. The City of Austin appeals the district court’s judgment and

injunction, arguing that: (1) the case is nonjusticiable because plaintiffs lack

standing and their claims are not ripe; (2) the “necessary steps” provision is not

unconstitutionally vague; and (3) the district court abused its discretion in

permanently enjoining the enforcement of the “necessary steps” provision. Some

plaintiffs have also appealed the district court’s denial of their motion for

attorneys’ fees. Plaintiffs’ appeal has been consolidated with the City of Austin’s

appeal.

We REVERSE that portion of the district court’s judgment declaring the

“necessary steps” provision of the ordinance unconstitutionally vague, VACATE

the provision of the permanent injunction enjoining enforcement of said

provision, and otherwise AFFIRM the judgment. We also AFFIRM the district

court’s denial of attorneys’ fees.

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I. FACTUAL AND PROCEDURAL BACKGROUND

On May 7, 2005, the citizens of Austin, Texas adopted the “Smoking in

Public Places” ordinance (the “ordinance”) by way of a ballot initiative.1 The

purpose of the ordinance is to protect persons in public places and employees in

their occupational environments from second-hand smoke. The ordinance took

effect on September 1, 2005, and its principal goal is to prohibit smoking in all

“public place[s]” within the City of Austin (the “City”). AUSTIN, TEX., CODE

ch. 10-6.

The ordinance defines “public place” broadly to include any “enclosed area

to which the public is invited or in which the public is permitted.”2 Id. § 10-6-

1(6). This definition includes bars and restaurants and is subject to few

exceptions. See § 10-6-3. The ordinance expands the City’s prior smoking

ordinance, which gave those bars and restaurants with substantial revenue

from the sale of alcoholic beverages the option of obtaining a permit to allow

smoking. The new ordinance abolishes this permit option.

1

As the district court pointed out, the fact that the ordinance was enacted via the voter

initiative process placed the City in an unusual posture. The City Charter provides that an

ordinance adopted via initiative cannot be amended or repealed until it has been in effect for

two years. AUSTIN CITY CHARTER, art. IV, § 6. Therefore, the City is in the position of

defending the ordinance “as is” even though the City did not draft or enact it.

2

The full definition states:

PUBLIC PLACE means an enclosed area to which the public is

invited or in which the public is permitted, including but not

limited to, banks, bars, educational facilities, health care

facilities, laundromats, public transportation facilities, reception

areas, restaurants, retail food production and marketing

establishments, retail service establishments, retail stores,

shopping malls, sports arenas, theaters, and waiting rooms. A

private residence is not a “public place” unless it is used as a child

care, adult day care, or health care facility.

§ 10-6-1(6).

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A violation of the ordinance is a Class C misdemeanor punishable by a

fine, not to exceed $2,000, or by revocation or suspension of the license or permit

of a violating establishment by the city manager.3 § 10-6-11(A)–(B). An

individual violates the ordinance by smoking in a public place, § 10-6-2(A),

smoking in a building owned or operated by the City, § 10-6-2(B), or smoking

within fifteen feet of an entrance or openable window of a building in which

smoking is prohibited, § 10-6-2(D). In addition to the restrictions placed on

individuals, the ordinance provides that an owner or operator of a public place

violates the ordinance if he or she “fails to take necessary steps to prevent or stop

another person from smoking in an enclosed area in a public place.” § 10-6-2(E)

(emphasis added). Certain steps—including posting “no smoking” signs and

removing ashtrays—are explicitly set out in the ordinance. § 10-6-8.

Shortly after the ordinance took effect, the following plaintiffs (collectively,

“Plaintiffs”) filed suit in state court challenging the constitutionality of the

ordinance and seeking a temporary restraining order and a declaratory

judgment: (1) three owners of stand-alone bars in the City—Bill Hardee; Joseph

Chip Tait; and Gail E. Johnson; (2) Hardee’s stand-alone bar—Roark and

Hardee L.P., doing business as Warehouse Saloon and Billiards; (3) Tait’s stand-

3

The penalty provision provides:

VIOLATION AND PENALTY

(A) A person who violates the provisions of this chapter commits a

Class C misdemeanor, punishable . . . by a fine not to exceed

$2,000. A culpable mental state is not required for a violation of

this chapter, and need not be proved.

(B) The city manager may suspend or revoke a permit or license

issued to the operator of a public place or workplace where a

violation of this chapter occurs.

(C) Each day an offense occurs is a separate violation.

§ 10-6-11.

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alone bar—Pub Draught Inc., doing business as Lovejoys Tap Room and

Brewery; (4) Johnson’s stand-alone bars— GMC Investment Inc., doing business

as Ego’s; Canary Roost Inc.; and Canary Hut Inc.; (5) an organization of bars

fighting the citizen initiative, KEEP AUSTIN FREE PAC; and (6) a couple of

concerned citizens, Tony Sirgo and Edward Check.4 Plaintiffs alleged that the

ordinance violated the First, Fourth, and Fourteenth Amendments, the

Supremacy Clause, a number of federal statutes, as well as the Texas State

Constitution, Texas statutes, and the Austin City Charter. The City

subsequently removed the case to federal district court.

On October 11, 2005, the district court held an evidentiary hearing on

Plaintiffs’ motion for a preliminary injunction. Plaintiffs’ primary attack

challenged the ordinance as “unconstitutionally vague on its face because it is

so indefinite that it does not give fair notice as to what conduct is prohibited and

lacks explicit standards for enforcement.” Roark & Hardee L.P. v. City of Austin,

394 F. Supp. 2d 911, 916 (W.D. Tex. 2005). The district court ruled that

Plaintiffs did not have a likelihood of success on the merits with regard to their

vagueness, First Amendment, or overbreadth challenges. Id. at 916–19.

However, the district court did enjoin two aspects of the penalty section of the

ordinance. First, the district court concluded that the provision of the ordinance

allowing the city manager to suspend or revoke the licenses or permits of “public

places” violated the Due Process Clause of the Fourteenth Amendment and

enjoined that provision to the extent that the City did not provide “expeditious

judicial review.”5 Id. at 921. Second, the district court enjoined the City from

4

When the suit was initiated, more plaintiffs were joined, but by the time of the trial

and judgment, Plaintiffs, listed above, were the only ones remaining.

5

The only type of permits or licenses the City Manager has authority to suspend are

those issued by the City. Roark & Hardee L.P., 394 F. Supp. 2d at 921 n.11.

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seeking fines of more than $500 under § 10-6-11, so that the ordinance was in

compliance with Texas Penal Code § 6.02(f).6 Id. at 919–20 & n.9.

This preliminary injunction hearing was followed by a trial on the merits

almost a year later on August 17, 2006. By that time, the posture of the

litigation had undergone a significant change. The City had sent notices of

violation and filed charges, which were still pending in municipal court, against

two Plaintiff bar owners, Bill Hardee and Gail E. Johnson, for failing to take the

“necessary steps” to prevent or stop another person from smoking in their bars,

Roark and Hardee L.P., doing business as Warehouse Saloon and Billiards,

Canary Hut, and Canary Roost. The remaining Plaintiff owners and bars,

Joseph Chip Tait; Pub Draught, Inc., doing business as Lovejoys Tap Room and

Brewery; and GMC Investment Inc., doing business as Ego’s, had not been cited.

At trial, Plaintiffs focused their attack on the words “necessary steps” in

§ 10-6-2(E) of the ordinance. The City presented evidence that since the

ordinance’s passage, the City’s Health and Human Services Department, the

department charged under the statute with enforcement, see § 10-6-10(D), had

enacted two sets of guidelines to provide clarification of the “necessary steps”

provision. The first set of guidelines provided: “Necessary steps include no

smoking signs, absence of ash trays, asking the patron to stop smoking, asking

the patron to leave the establishment if they refuse to stop smoking and

following your standard business practices for enforcing house rules.” After

receiving requests for more clarification, the second set of guidelines was

released, which added the step of refusing service to a person who is smoking.7

6

Section 6.02(f) was enacted at the same time as the ordinance and provides that a

municipal ordinance “may not dispense with the requirement of a culpable mental state if the

offense is punishable by a fine exceeding [$500].” TEX. PEN. CODE § 6.02(f).

7

The second set of guidelines issued to Plaintiff bar owners on March 9, 2006, state:

SMOKING IN PUBLIC PLACES ORDINANCE No. 050303-05. Frequently

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The district court found that the issuance of these two additional sets of

guidelines weighed in favor of finding the ordinance vague. Roark & Hardee

L.P. v. City of Austin, No. A-05-CA-837-SS, 2006 WL 2854399, at *4 (W.D. Tex.

Oct. 4, 2006) (“The fact that the guidelines regarding ‘necessary steps’ are

subject to change over time indicates that the term ‘necessary steps’ is vague and

is not controlled by any discernible, explicit standard.”). What the district court

found “[e]ven more troubling” than the guidelines issued by the City was that

“the five steps under the guidelines are not exclusive and that following all of the

guidelines does not create a safe harbor from liability for business owners and

operators.” Id. The district court held that the City could not provide “definitive

guidance to business owners and operators about how they might avoid liability

under the ordinance” or the precise actions required of business owners to satisfy

the “necessary steps” standard and avoid prosecution. Id. at *5. Because the

City had not provided business owners with clear guidance beyond the two

actions specifically mentioned in the ordinance—posting no smoking signs and

removing all ashtrays—the district court found the “necessary steps” provision

of the ordinance facially vague and consequently unconstitutional.8 Id. at *5–6.

Asked Questions.

After receiving requests for clarification, the City issued “further guidance” to

business owner/operators which provided a “progressive enforcement process”

for businesses to comply with the ordinance:

1. Post no-smoking signs and remove all ashtrays.

2. Verbally ask a patron who is smoking to extinguish the

cigarette, cigar, smoking apparatus, etc. (Sign interpretation or

in written form for the hearing impaired)

3. Refuse service to a person who is smoking.

4. Verbally ask anyone smoking to leave the premises. (Sign

interpretation or in written form for the hearing impaired)

5. Apply standard business procedures in the same manner for

violations of house rules or local ordinances or state laws.

8

In addition, the district court addressed and denied Plaintiffs’ other claims, which have

not been raised on appeal. Specifically, the district court rejected Plaintiffs’: (1) allegations

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After the trial, the district court entered a judgment granting Plaintiffs a

permanent injunction in three respects: (1) enjoining the City from enforcing the

“necessary steps” provision against owners and operators of public places beyond

the two steps of posting no smoking signs and removing ashtrays; (2) enjoining

the City from suspending or revoking any city permits or licenses without

providing “expeditious judicial review”; and (3) enjoining the City from imposing

fines under the ordinance that violate Texas Penal Code § 6.02(f) by exceeding

$500. Id. at *10. Following entry of the judgment, Plaintiffs sought an award

of attorneys’ fees pursuant to 28 U.S.C. § 1988, as a “prevailing party” in the

litigation. The district court denied the motion. The City filed a timely notice

of appeal challenging the district court’s grant of permanent injunctive relief.

Subsequently, a few Plaintiffs—Roark and Hardee L.P., doing business as

Warehouse Saloon & Billiards; Pub Draught Inc., doing business as Lovejoys

Tap Room and Brewery; Joseph Chip Tait; KEEP AUSTIN FREE PAC; Tony

Sirgo; Edward Check; and Bill Hardee—filed a cross-appeal arguing that the

district court abused its discretion in denying the motion for attorneys’ fees.

II. DISCUSSION

A. Standing and Ripeness

The City first argues that this case is nonjusticiable because Plaintiffs lack

standing and their claims are not ripe for adjudication. Thus, before considering

the merits of this appeal, we must answer the threshold question whether

Plaintiffs “present[] an ‘actual controversy,’ a requirement imposed by Art. III

of the Constitution and the express terms of the Federal Declaratory Judgment

that the terms “smoking” and “smoking accessory” in the ordinance were vague, id. at *6; (2)

argument that their equal protection rights had been violated because the City admittedly

enforced the ordinance against businesses but not against individuals, id. at *7; and (3) First

Amendment and overbreadth claims, id. at *8. Finally, the district court found “that any of

Plaintiffs’ remaining claims for relief not specifically addressed herein fail as a matter of law.”

Id. at *9.

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Act, 28 U.S.C. § 2201.” Steffel v. Thompson, 415 U.S. 452, 458 (1974). The many

doctrines that have fleshed out that “actual controversy” requirement—standing,

mootness, ripeness, political question, and the like—are “founded in concern

about the proper—and properly limited—role of the courts in a democratic

society.” Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422

U.S. 490, 498 (1975)). These “doctrines state fundamental limits on federal

judicial power in our system of government.” Id. As such, we review all

justiciability issues, including standing and ripeness, de novo. Ctr. for

Individual Freedom v. Carmouche, 449 F.3d 655, 659 (5th Cir. 2006) (citing

Bissonet Invs., L.L.C. v. Quinlan, 320 F.3d 520, 522 (5th Cir. 2003); Sample v.

Morrison, 406 F.3d 310, 312 (5th Cir. 2005)).

The “essence” of standing is “whether the litigant is entitled to have the

court decide the merits of the dispute or of particular issues.” Warth, 422 U.S.

at 498. In order to have standing, a plaintiff must “allege personal injury fairly

traceable to the defendant’s allegedly unlawful conduct and likely to be

redressed by the requested relief.” Allen, 468 U.S. at 751 (citing Valley Forge

Christian College v. Ams. United for Separation of Church & State, Inc., 454 U.S.

464, 472 (1982)). Although the question of standing is one of degree and is “not

discernible by any precise test,” Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 297 (1979), federal courts have established the following elements

that “a plaintiff must show: (1) it has suffered, or imminently will suffer, a

concrete and particularized injury-in-fact; (2) the injury is fairly traceable to the

defendant’s conduct; and (3) a favorable judgment is likely to redress the injury.”

Houston Chronicle Publ’g Co. v. City of League City, Tex., 488 F.3d 613, 617 (5th

Cir. 2007) (citation omitted). Moreover, a “plaintiff can meet the standing

requirements when suit is brought under the Declaratory Judgment Act, 28

U.S.C. §§ 2201–02, by establishing ‘actual present harm or a significant

possibility of future harm.’” Bauer v. Texas, 341 F.3d 352, 357–58 (5th Cir. 2003)

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(quoting Peoples Rights Org. v. City of Columbus, 152 F.3d 522, 527 (6th Cir.

1998)).

The City argues that Plaintiffs do not have standing because they have not

suffered a particularized injury-in-fact. With regard to the penalty provisions

of the ordinance, the City claims that Plaintiffs “cannot show . . . that a fine in

excess of $500 has been sought against them or that the City has threatened to

suspend or revoke any license or permit.” The City further maintains that

although some Plaintiffs were prosecuted under the ordinance, those

prosecutions were for clear violations explicitly provided in either the ordinance

itself or its concomitant guidelines, and thus Plaintiffs have not been injured by

an application of the challenged “necessary steps” provision. According to the

City, the issues raised by Plaintiffs would be more properly addressed in the

normal course of their individual prosecutions under the ordinance.

The injury-in-fact element requires that a plaintiff show that he or she

“‘has sustained or is immediately in danger of sustaining some direct injury’ as

the result of the challenged official conduct and the injury or threat of injury

must be both ‘real and immediate,’ not ‘conjectural or hypothetical.’” City of Los

Angeles v. Lyons, 461 U.S. 95, 102 (1983) (emphasis added and citations

omitted); see Allen, 468 U.S. at 751 (“The injury alleged must be . . . distinct and

palpable . . . and not abstract or conjectural or hypothetical.”) (internal citations

and quotations omitted).

When Plaintiffs brought suit for declaratory and injunctive relief, the

ordinance had been in effect for approximately two weeks, and the City had not

noticed or charged any Plaintiffs for violations. However, the City’s admitted

enforcement strategy is to use a complaint-driven scheme, whereby inspectors

investigate violations after reports are made to the City’s Health and Human

Services Department, and the City follows-up with notices of violation and

charges in municipal court. According to the City, the bars, restaurants, and

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No. 06-51670

other enclosed public places to which the ordinance applies have control over

their respective environments, and thus noticing and prosecuting them, rather

than individual smokers, for violations is the most efficient and best use of the

City’s resources. Therefore, from the ordinance’s effective date, City inspectors

were targeting Plaintiff bar owners. Further, the injuries resulting from a

criminal prosecution for violating the “necessary steps” provision, which

Plaintiffs contend is unconstitutionally vague, and from being liable for its

penalties, which Plaintiffs allege violate procedural due process and state law,

were real and immediate threats.

Moreover, as this case progressed, the threat of enforcement became real

as some Plaintiffs actually were noticed for violations and charged under the

ordinance. Although the City claims that these prosecutions were not for

violations of the “necessary steps” provision of the ordinance, an assertion

contested by Plaintiffs,9 nowhere in the record does the City suggest that it will

refrain from enforcing the “necessary steps” provision against Plaintiffs. Rather,

the City continues to publish guidelines explaining the “necessary steps,” a clear

indication that the City is intent on enforcing this section. Additionally, even if

the City has resisted enforcing the $2,000 fine against Plaintiffs and revoking

Plaintiff bar owners’ licenses or permits at this stage, the City may seek to

enforce these penalties later.10 This circuit has recognized that a party has

9

All the complaints produced at trial specifically allege that the owner or operator

“knowingly fail[ed] to take necessary steps to prevent or stop another person from smoking in

an enclosed area in a public place.” (Emphasis added).

10

The City’s restraint likely stemmed from the district court’s preliminary injunction,

which temporarily enjoined said enforcement provisions starting before any Plaintiffs were

cited, and lasting until the permanent injunction replaced it. If we look to the first set of

guidelines, issued before Plaintiffs initiated this case, the City stated in response to a

frequently asked question regarding the consequences of a violation that “[c]ontinued

violations will be cause for enforcement action through the City of Austin Municipal Court” and

that “[t]he Violations and Penalties are set forth in the new code.” Notably, lacking any

limiting instruction, the guidelines imply that the City intended from the beginning to enforce

all the penalties under the ordinance.

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standing when it has faced prosecution under a criminal ordinance in the past

and faces the real possibility of prosecution in the future. Reed v. Giarusso, 462

F.2d 706, 710–11 (5th Cir. 1972). We conclude that because some Plaintiff bar

owners have been charged under the ordinance and all Plaintiff bar owners face

the real potential of immediate criminal prosecution, they have standing to bring

their claims. See Diamond v. Charles, 476 U.S. 54, 64 (1986) (noting that a

“conflict between state officials empowered to enforce a law and private parties

subject to prosecution under that law is a classic ‘case’ or ‘controversy’ within the

meaning of Art. III”); see also Hejira Corp. v. MacFarlane, 660 F.2d 1356, 1360

(10th Cir. 1981) (finding the existence of a case or controversy under Article III

because the plaintiffs faced “real and genuine threats of prosecution” under the

Colorado Drug Paraphernalia statute, although no criminal prosecution had

commenced as a result of its enforcement).

The causation and redressability requirements for standing are satisfied

as well. The significant threat of prosecution that Plaintiff bar owners face is

directly traceable to the City’s intention to enforce the ordinance against them,

and a judicial invalidation of the ordinance would give Plaintiffs direct relief

from being prosecuted.11

Even though Plaintiff bar owners have standing, their claims also must

be ripe for adjudication. The Supreme Court has stated that the “ripeness

doctrine is drawn both from Article III limitations on judicial power and from

prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Social

Servs., Inc., 509 U.S. 43, 57 n.18 (1993) (citing Buckley v. Valeo, 424 U.S. 1, 114

11

Inasmuch as Plaintiff bar owners have standing, the question whether the other

Plaintiffs have standing is, under the circumstances here, of no consequence. See Rumsfeld

v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (“[T]he presence

of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”)

(citing Bowsher v. Synar, 478 U.S. 714, 721 (1986)). The claims asserted by the non-bar-owner

Plaintiffs were not addressed by the district court, and the failure to address those claims is

not appealed.

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(1976) (per curiam)). But, “[e]ven when a ripeness question in a particular case

is prudential, we may raise it on our own motion, and ‘cannot be bound by the

wishes of the parties.’” Id. (citing Reg’l Rail Reorganization Act Cases, 419 U.S.

102, 138 (1974)). The “basic rationale [behind the ripeness doctrine] is to

prevent the courts, through avoidance of premature adjudication, from

entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387

U.S. 136, 148 (1967).12 For these reasons, a ripeness inquiry is often required

when a party is seeking pre-enforcement review of a law or regulation. See, e.g.,

Poe v. Ullman, 367 U.S. 497 (1961); Lake Carriers’ Ass’n v. MacMullan, 406 U.S.

498 (1972).

When this case was initiated, all Plaintiffs were seeking pre-enforcement

review. By the time of trial, Plaintiffs Hardee and Johnson had received

criminal citations under the ordinance for failing to take the “necessary steps to

prevent or stop smoking” in their establishments. Although the municipal court

had not fully adjudicated the complaints against Plaintiffs Hardee and Johnson

when trial commenced in this case, a concrete dispute had formed, thus avoiding

the risk of premature review. Therefore, the issue whether Plaintiffs Hardee’s

and Johnson’s void-for-vagueness claims were initially ripe for review has been

mooted by the change in posture of the litigation at the time of trial and appeal.

See Reg’l Rail Reorganization Act Cases, 419 U.S. at 102 (“[S]ince ripeness is

peculiarly a question of timing, it is the situation now rather than the situation

at the time of the District Court’s decision that must govern.”). However, the

remaining Plaintiff bar owners have not been cited, and the City has not

12

“While standing is concerned with who is a proper party to litigate a particular

matter, ripeness . . . determine[s] when that litigation may occur. Specifically, the ripeness

doctrine seeks to separate matters that are premature for review because the injury is

speculative and may never occur, from those cases that are appropriate for federal court

action.” ERWIN CHEMERINSKEY, FEDERAL JURISDICTION § 2.4.1 (5th ed. 2007) (emphasis

added).

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enforced the challenged fine or license revocation penalties against any Plaintiff.

Thus, a ripeness inquiry is still necessary.

“A court should dismiss a case for lack of ‘ripeness’ when the case is

abstract or hypothetical.” Monk v. Huston, 340 F.3d 279, 282 (5th Cir. 2003)

(quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583,

586 (5th Cir.1987)). The Supreme Court has expounded that “[t]he key

considerations [for ripeness] are the fitness of the issues for judicial decision and

the hardship to the parties of withholding court consideration.” Id. (citing

Abbott Labs., 387 U.S. at 149) (internal quotation omitted). “A case is generally

ripe if any remaining questions are purely legal ones; conversely, a case is not

ripe if further factual development is required.” Id. Yet, “even where an issue

presents purely legal questions, the plaintiff must show some hardship in order

to establish ripeness.” Cent. & Sw. Servs. v. E.P.A., 220 F.3d 683, 690 (5th Cir.

2000).

The City argues the case is not ripe because Plaintiffs have not shown

hardship or that the case is fit for adjudication. Specifically, the City contends

pre-enforcement review is unnecessary because complying with the ordinance

would not affect the exercise of Plaintiffs’ First Amendment or fundamental

constitutional rights or cause economic injury or other significant harm.

Further, the City asserts that Plaintiffs’ case for injunctive relief required

additional factual development, rather than relying on the hypothetical facts

upon which the district court based its decision.

Looking first at the element of hardship, we find that all Plaintiff bars and

owners would suffer hardship were we to deny review. “[W]here a regulation

requires an immediate and significant change in the plaintiffs’ conduct of their

affairs with serious penalties attached to noncompliance, hardship has been

demonstrated.” Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 743–44

(1997) (citing Abbott Labs., 387 U.S. at 153). Plaintiffs have alleged that the

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“necessary steps” provision of the ordinance is unconstitutionally vague on its

face because it does not provide fair notice of what conduct is proscribed and

thus allows for arbitrary enforcement. Plaintiffs assert that, at their own risk,

they must guess the requirements of the “necessary steps” provision and then

implement those mandates daily to avoid a violation. Their failure correctly to

ascertain and implement that which is demanded under the ordinance will

subject them to heavy fines of up to $2,000 per day and possible revocation of

their licenses and permits issued by the City without judicial review.13 In

addition, testimony of a City official at trial revealed that a single municipal

conviction may precipitate the revocation of an establishment’s liquor license.

See TEX ADMIN. CODE § 35.31(c)(16); TEX. ALCO. BEV. CODE §§ 11.61(b)(7),

104.01(8). Because Plaintiffs have shown the real possibility of irremediable

adverse consequences were we to deny review, Plaintiffs have shown hardship.14

13

At the time of trial, Plaintiff Johnson already had five complaints filed against him

in municipal court. Depending on the outcome and fine applied in each case, these stand-alone

bars could face heavy financial burdens, along with multiple criminal convictions.

14

Plaintiffs point to the peculiarities of state court review of convictions under the

ordinance. Prosecutions under the ordinance are brought in the City of Austin Municipal

Court, a court of limited jurisdiction over criminal cases. See TEX. GOV’T CODE ANN. §§ 29.003,

30.00005 (West 2007). Although a municipal judge could dismiss a criminal case on

constitutional grounds, she could not issue declaratory or injunctive relief that would prevent

the refiling of the case or of similar cases. See State v. Morales, 869 S.W.2d 941, 942 (Tex.

1994) (explaining the state’s bifurcated system of civil and criminal jurisdiction and that a civil

court has equity jurisdiction to declare constitutionally invalid and enjoin the enforcement of

a criminal statute). If a person convicted for violating the ordinance is fined $100 or less, his

right of appeal of a constitutional issue ends with the county court. See Alexander v. State,

240 S.W.3d 72, 75–76 (Tex. App.—Austin 2007, no pet. h.) (holding that the defendant who

was convicted in a municipal court of record and fined $100 or less, and whose conviction was

affirmed by the county court at law, could not appeal to the Court of Appeals to challenge the

constitutionality of the city’s smoking ordinance on which his conviction was based). We note

that the defendant bar owner who was appealing his conviction under the smoking ordinance

in Alexander v. State had tried to intervene in this case, but was denied intervention on the

basis of Younger abstention because the charges against him were already pending when he

tried to enter the suit. Because the evidence of hardship described supra is more than

adequate to support our conclusion that the case is ripe for adjudication, we do not address the

alleged hardship component of the state court review procedures.

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No. 06-51670

See Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164–65 (1967) (finding minimal

present harm to denying review where the challenged regulation required no

advance action on the part of petitioners and no irremediable adverse

consequences, such as “heavy fines,” “adverse publicity,” or “possible criminal

liability”).

Turning our attention to the second ripeness element, we consider whether

the facts of Plaintiffs’ claims are fit for review. Plaintiffs challenged the penalty

provision, permitting a fine of up to $2,000, for being in violation of the Texas

Penal Code, and the enforcement provision, giving the city manager discretion

to revoke permits and licenses, for failing to provide procedural due process. To

determine the merits of both of those claims, no further factual development is

necessary, as they are both purely legal inquiries in the context of this case.

Consequently, they are ripe.

Now, the only remaining issue is whether Plaintiffs’ primary claim, that

the ordinance is unconstitutionally vague on its face, is fit for review. Many

times void-for-vagueness challenges are successfully made when laws have the

capacity “to chill constitutionally protected conduct, especially conduct protected

by the First Amendment.” United States v. Gaudreau, 860 F.2d 357, 360 (10th

Cir. 1988); see, e.g., Coates v. City of Cincinnati, 402 U.S. 611, 615–16 (1971);

Colautti v. Franklin, 439 U.S. 379, 390–91 (1979). Nevertheless, laws that do

not threaten to infringe constitutionally protected conduct also may be

challenged facially as unduly vague, in violation of due process. Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982). In

the latter scenario,“the complainant must demonstrate that the law is

impermissibly vague in all of its applications.” Id. In undertaking that analysis,

however, a reviewing court should “examine the complainant’s conduct before

analyzing other hypothetical applications of the law” because “[a] plaintiff who

engages in some conduct that is clearly proscribed cannot complain of the

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No. 06-51670

vagueness of the law as applied to the conduct of others.” Id. (emphasis added);

see also United States v. Mazurie, 419 U.S. 544, 550 (1975) (“[V]agueness

challenges to statutes which do not involve First Amendment freedoms must be

examined in the light of the facts of the case at hand.”).

Here, we are wrestling with the second scenario as the ordinance does not

threaten to inhibit any constitutionally protected conduct.15 In the context of

pre-enforcement review, which is still the case for the uncharged Plaintiff bar

owners, examining facial vagueness is often difficult, perhaps impossible,

because facts are generally scarce. However, in this case, both Plaintiffs Hardee

and Johnson had been issued multiple notices of violation and charged for

violating the ordinance prior to the evidentiary hearing. Due to this

development, the evidence adduced at trial provided an adequate record of the

ordinance’s operation and particularized harmful effect on all Plaintiff bars and

owners to permit a determination of whether the “necessary steps” provision is

impermissibly vague in all its applications. Compare Socialist Labor Party v.

Gilligan, 406 U.S. 583, 587–88 (1972) (determining constitutional and void-for-

vagueness claims were unfit for review because of the skimpy factual record:

very little was known about the operation of the challenged affidavit

requirement and its potential effect on claimants). Accordingly, we may review

the vagueness challenge in light of the conduct of the charged Plaintiffs, Hardee

and Johnson, to determine first if at least some of their conduct is clearly

proscribed by the “necessary steps” provision. If that inquiry is answered

affirmatively, it must be the case that neither the charged nor the uncharged

Plaintiffs can prove that the statute is impermissibly vague in all of its

applications because it has been validly applied to Johnson and Hardee.

15

Plaintiffs have failed to provide sufficient evidence that the ordinance threatens to

inhibit constitutionally protected conduct. Although ripeness is a justiciability issue, typically

a pre-merits inquiry, in ascertaining whether there is an adequate factual record, we must

consider, to some extent, the merits.

17

No. 06-51670

However, if that inquiry is answered negatively, we must further examine other

hypothetical applications of the “necessary steps” provision to determine

whether it is impermissibly vague in all its applications.

B. Facial Vagueness Challenge

Tasked with the difficult challenge of considering facial vagueness, the

district court evaluated: (1) whether the ordinance’s “necessary steps” provision

provided fair notice that would enable ordinary people to understand the conduct

prohibited; and (2) whether it authorized and encouraged arbitrary enforcement.

See United States v. Escalante, 239 F.3d 678, 680 (5th Cir. 2001) (citing City of

Chicago v. Morales, 527 U.S. 41, 56 (1999) (plurality)). In holding that the City’s

“necessary steps” provision failed to satisfy this test, the court noted that neither

the ordinance nor the guidelines contained an exclusive list or safe harbor

provision, and that the guidelines were subject to amendment and differing

interpretations. The district court’s decision was greatly influenced by City

officials who could not detail the steps that a business would have to implement

to satisfy the “necessary steps” requirement under certain hypothetical fact

scenarios.

The City asserts that the district court erred in its overall analysis of facial

vagueness. The City argues that even though the district court applied the

aforementioned test, albeit erroneously, it failed to consider the complete legal

test for facial vagueness. Specifically, the City notes that this court and others

have previously provided, in cases involving no constitutionally-protected

conduct, that “[a] facial challenge to a legislative Act is, of course, the most

difficult challenge to mount successfully, since the challenger must establish that

no set of circumstances exists under which the Act would be valid.” United States

v. Robinson, 367 F.3d 278, 290 (5th Cir. 2004) (emphasis added) (quoting United

States v. Salerno, 481 U.S. 739, 745 (1987)). The City maintains that the

ordinance is valid in many of its applications, and thus Plaintiffs cannot carry

18

No. 06-51670

their burden. The City further contends that the “necessary steps” provision

should be given its common, ordinary meaning and argues that owners and

operators of bars are sufficiently capable of employing their experience and

common sense to interpret their duties under the law to prohibit smoking in

their establishments. See Steffes v. City of Lawrence, 160 P.3d 843, 852 (Kan.

2007) (holding that business owners must take enforcement efforts to prevent

smoking in their establishments and that “common understanding and practice

play a large role” in determining whether a business has complied with the

ordinance).

Plaintiffs argue that the “necessary steps” provision establishes no

standard at all. In fact, they contend, that it is a “tautology.” According to

Plaintiffs, the “ever-changing” guidelines are non-binding and thus fail to cure

the vagueness of the “necessary steps” standard.

At a threshold level, Plaintiffs confront a heavy burden in advancing a

facial constitutional challenge to an ordinance. See Nat’l Endowment for the Arts

v. Finley, 524 U.S. 569, 580 (1998) (“Facial invalidation is, manifestly, strong

medicine that has been employed by the Court sparingly and only as a last

resort.”) (internal quotation omitted); Sabri v. United States, 541 U.S. 600, 609

(2004) (“Facial adjudication carries too much promise of ‘premature

interpretatio[n] of statutes’ on the basis of factually barebones records.”)

(quoting United States v. Raines, 362 U.S. 17, 22 (1960)). For the reasons stated

below, we agree with the City and conclude that Plaintiffs have fallen short of

meeting this heavy burden.

As previously noted, in Village of Hoffman Estates the Supreme Court

announced the proper procedure for analyzing a facial vagueness challenge. 455

U.S. at 494–95. To begin, the court must consider whether the ordinance

reaches a substantial amount of constitutionally protected conduct. Id. at 494.

“[A]ssuming the enactment implicates no constitutionally protected conduct, [a

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No. 06-51670

court] should uphold the challenge only if the enactment is impermissibly vague

in all of its applications.” Id. at 494–95. However, “[a] plaintiff who engages in

some conduct that is clearly proscribed cannot complain of the vagueness of the

law as applied to the conduct of others.” Id. (emphasis added). Thus, the

complainant’s conduct should be analyzed before the court considers other

hypothetical applications of the law. Id. at 495.

In Plaintiffs’ Amended Complaint, which was the live pleading at trial,

they alleged, as the district court styled it, “everything-but-the-kitchen-sink.”

With respect to many of the allegations, Plaintiffs failed to provide useful

evidence at either the preliminary injunction or trial stages. Thus, the district

court summarily dismissed most of Plaintiffs’ claims and, in the end, only

granted Plaintiffs relief on their facial vagueness challenge to the “necessary

steps” provision of the ordinance, as well as their two penalty provision issues.

The City appealed the district court’s judgment on the vagueness claim.

Plaintiffs cross-appealed, arguing only that the district court abused its

discretion in denying them attorneys’ fees. Significantly, Plaintiffs did not

appeal any of their constitutional claims; however, they attempt to resurrect

them in their appellee briefs in urging this court to apply a stricter void-for-

vagueness test because constitutionally protected conduct is at issue. Although

a timely notice of appeal is a prerequisite for the exercise of our jurisdiction, U.S.

v. Carr, 979 F.2d 51, 55 (5th Cir. 1992), to the extent that the Village of Hoffman

Estates test requires consideration of whether the ordinance reaches

constitutionally protected conduct, we will consider Plaintiffs’ arguments that

were properly raised before and decided by the district court, namely, the

allegations regarding their First Amendment interest to be free of compelled

speech and their liberty interest in the pursuit of the profession of one’s choice.16

16

Plaintiffs’ argument that the ordinance violates their Fifth Amendment interest in

avoiding self-incrimination was excluded from Plaintiffs’ Amended Complaint. Thus, even the

20

No. 06-51670

Plaintiffs assert that the ordinance violates their First Amendment right

to be free from compelled speech. In particular, Plaintiffs allege that the

guidelines compel them to speak against their will by mandating verbal

confrontation with their patrons—verbally requesting them to stop smoking and

to leave the premises. The district court rejected this argument in both the

preliminary injunction order and its final judgment due to Plaintiffs’ failure to

provide useful evidence on the issue. We agree.

Recently in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

(“FAIR”), 547 U.S. 47, 60 (2006), the Supreme Court upheld the Solomon

Amendment, a congressional regulation that denies federal funding to

institutions of higher education that prohibit military access to and assistance

for recruiting services, against a challenge brought by an association of law

schools that it unconstitutionally compelled their speech. The Court first

explained that “[a]s a general matter, the [statute] regulates conduct, not

speech” and that the “[l]aw schools remain free . . . to express whatever views

they have on” the mandated policy. Id. The Court further noted that “[t]he

compelled speech to which the law schools point[—sending emails and posting

notices on behalf of the military—] is plainly incidental to [that] regulation of

conduct.” Id. at 62 (emphasis added). And finally, in rejecting the claim, the

Court stated that the law schools’ suggestion that the “compelled” emails and

notices were similar to “forcing a student to pledge allegiance,” see W. Virginia

Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943), “or forcing a Jehovah’s Witness

district court’s determination that all remaining claims fail as a matter of law did not dispose

of this argument, and it is waived on appeal. See Harris County, Tex. v. CarMax Auto

Superstores, Inc., 177 F.3d 306, 326 (5th Cir. 1999) (“Typically we will not consider on appeal

matters not presented to the trial court.”) (citation omitted). Even if we were to review this

claim, it would fail, as a matter of law, because Plaintiffs provide no useful evidence on the

issue.

21

No. 06-51670

to display the motto ‘Live Free or Die,’” see Wooley v. Maynard, 430 U.S. 705, 717

(1977), “trivializes the freedom protected” in those cases. FAIR, 547 U.S. at 62.

Similarly, we find that Plaintiffs’ contention here, that the ordinance

unconstitutionally compels their speech, trivializes the freedom protected in

Barnette and Wooley. The ordinance’s goal is to prohibit smoking in enclosed

public places in order to protect the City’s population from the harmful effects

of second-hand smoke. To achieve that goal, the ordinance requires Plaintiffs to

take the “necessary steps” to stop another person from smoking. Thus, as a

general matter, the ordinance regulates Plaintiffs’ conduct, not speech. Plaintiff

bar owners and their employees remain free to express whatever views they

have on the ordinance. And, although the amended guidelines call for Plaintiffs

to “verbally” request smokers to extinguish cigarettes or leave the premises, this

speech is plainly incidental to the ordinance’s regulation of conduct. After all,

the guidelines were amended to include these verbal requirements only after

Plaintiffs “allegedly” experienced difficulty in implementing the ordinance.17 Cf.

Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949) (“[I]t has never

been deemed an abridgment of freedom of speech or press to make a course of

conduct illegal merely because the conduct was in part initiated, evidenced, or

carried out by means of language, either spoken, written or printed.”). In short,

we conclude the ordinance does not threaten to affect Plaintiffs’ First

Amendment right to be free from compelled speech. See Dutchess/Putnam Rest.

& Tavern Ass’n, Inc. v. Putnam County Dep’t of Health, 178 F. Supp. 2d 396,

405–06 (S.D.N.Y. 2001) (rejecting a First Amendment challenge to a smoking

regulation’s requirement of posting no smoking signs or symbols); cf. Players,

17

Testimony at trial revealed that some Plaintiffs were trying to skirt the ordinance’s

obligation to enforce the smoking ban in their establishments by allowing smokers to continue

smoking as long as they signed forms acknowledging that the bar owners asked them to quit

smoking and to leave the premises, when that was not, in fact, the case.

22

No. 06-51670

Inc. v. City of New York, 371 F. Supp. 2d 522, 543 (S.D.N.Y. 2005) (finding

smoking bans not to be overbroad because they are “entirely targeted at

conduct—the act of smoking in certain places—rather than at speech,

association, or assembly”).18

Plaintiffs further contend that the vagueness of the “necessary steps”

provision permits unreasonable government interference in the operation of

their businesses, a protected liberty interest. As support for this proposition,

Plaintiffs invoke Stidham v. Texas Commission on Private Security, 418 F.3d 486

(5th Cir. 2005). In that case, the plaintiff claimed that the unauthorized and

threatening letters that were sent to his customers by the investigators for the

Texas Commission on Private Security, who were seeking qualified immunity in

the suit, amounted to a declaration that the plaintiff was guilty before he was

tried. Id. at 490. Those letters indicated that the plaintiff, whose business

provided motorcycle escorts for funeral services, was operating without a

required license, and, as such, those who knowingly contracted with him would

be committing a misdemeanor offense. Id. at 488–89. The plaintiff averred that

the letters effectively destroyed his business. Id. at 490. Applying the test for

qualified immunity, we “confirmed the principle that one has a constitutionally

protected liberty interest in pursuing a chosen occupation” and found the

investigators’ behavior in sending the unauthorized letters unreasonably

interfered with that interest. Id. at 491 (citation omitted). This case is

distinguishable. Although Plaintiff bar owners may have a constitutionally

protected interest in pursuing their chosen profession, that being the operation

of a bar that provides alcohol and other entertainment, the City’s ordinance does

not threaten to interfere with that interest. Unlike in Stidham, the ordinance

at issue here is not only authorized, but a valid exercise of the City’s police

18

We note that in asserting their First Amendment argument, Plaintiffs refrain from

making overbreadth claims with respect to the First Amendment rights of smokers.

23

No. 06-51670

power; it merely regulates smoking to minimize the adverse effects of second-

hand smoke and does not threaten to infringe Plaintiffs’ liberty interest in

pursuing their chosen occupations. See Lexington Fayette County Food &

Beverage Ass’n v. Lexington-Fayette Urban County Gov’t, 131 S.W.3d 745, 752

(Ky. 2004) (holding that an ordinance that prohibited smoking in public

buildings to protect the public from the effects of second-hand smoke did not

improperly infringe on the right of business owners to conduct their business

without impermissible interference from government).

Because the ordinance does not threaten to inhibit constitutionally

protected conduct, we continue under the rubric in Village of Hoffman Estates

and consider whether the ordinance is impermissibly vague in all its

applications, see also United States v. Clinical Leasing Serv., Inc., 925 F.2d 120,

122 (5th Cir. 1991), keeping in mind that we must first apply the statute to

Plaintiffs’ conduct before considering hypothetical scenarios.19 A legislative

enactment is vague in all of its applications if it is so “indefinite that no one

could know what” is prohibited, creating an ordinance that is “substantially

incomprehensible.” Exxon Corp. v. Busbee, 644 F.2d 1030, 1033 (5th Cir. 1981);

see also Coates, 402 U.S. at 614 (noting that an ordinance is not

unconstitutionally vague if “it requires a person to conform his conduct to an

19

Before proceeding, we consider Plaintiffs’ contention that they do not face the burden

of demonstrating the ordinance is vague in all its applications. Specifically, Plaintiffs rely on

City of Chicago v. Morales, to argue that they are required only to prove that “vagueness

permeates the ordinance.” 527 U.S. at 55 n.22 (plurality). Plaintiffs’ reliance on Morales is in

error. In Morales, the Court struck down an anti-loitering ordinance despite possible situations

in which it could constitutionally be applied. Id. at 64. In that case, the Court was applying

a very stringent vagueness test because it was dealing with a criminal ordinance that reached

a substantial amount of constitutionally protected conduct. Id. at 55. In particular, “the

freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process

Clause of the Fourteenth Amendment.” Id. at 53. However, in this case, no constitutionally

protected conduct is threatened by the City’s ordinance. Therefore, we apply the appropriate

test from Village of Hoffman Estates. 455 U.S. at 494–95; see also Robinson, 367 F.3d at 290

(requiring a demonstration that there are “no set of circumstances . . . under which the Act

would be valid” to sustain a facial vagueness attack).

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No. 06-51670

imprecise but comprehensible normative standard”). Furthermore, a statute

that “vests virtually complete discretion in the hands of the police” fails to

provide the “minimal guidelines” required for due process. Kolender v. Lawson,

461 U.S. 352, 358 (1983).

In evaluating vagueness, a reviewing court should consider: (1) whether

the law “give[s] the person of ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act accordingly;” and (2) whether the

law provides explicit standards for those applying them to avoid arbitrary and

discriminatory applications. Grayned v. City of Rockford, 408 U.S. 104, 108–09

(1972). However, these standards should not be “mechanically applied.” Village

of Hoffman Estates, 455 U.S. at 498.

The degree of vagueness that the Constitution

tolerates—as well as the relative importance of fair

notice and fair enforcement—depends in part on the

nature of the enactment. Thus, economic regulation is

subject to a less strict vagueness test because its subject

matter is often more narrow, and because businesses,

which face economic demands to plan behavior

carefully, can be expected to consult relevant legislation

in advance of action. . . . The Court has also expressed

greater tolerance of enactments with civil rather than

criminal penalties because the consequences of

imprecision are qualitatively less severe. And the

Court has recognized that a scienter requirement may

mitigate a law’s vagueness, especially with respect to

the adequacy of notice to the complainant that his

conduct is proscribed.

Id. at 498–99 (citations omitted and emphasis added). Finally, as previously

stated, a more stringent vagueness test should apply where a law “threatens to

inhibit the exercise of constitutionally protected rights.” Id. at 499; see also

Smith v. Goguen, 415 U.S. 566, 573 (1974) (“Where a statute’s literal scope,

unaided by a narrowing state court interpretation, is capable of reaching

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No. 06-51670

expression sheltered by the First Amendment, the [vagueness] doctrine demands

a greater degree of specificity than in other contexts.”).

In this case, although the ordinance’s penalties are criminal in nature and

they explicitly allow for conviction without a scienter requirement,20 the

ordinance does not threaten to inhibit the exercise of constitutionally protected

rights and is akin to the quasi-criminal ordinance in Village of Hoffman Estates

that regulated business activity. The evidence reveals that the owners and

operators regulated by the ordinance may clarify the meaning of its provisions

by their own inquiry. In particular, the City’s proffered guidelines were drafted

after town meetings with the business owners themselves, and the updated

guidelines were issued as a response to requests for clarification of the

“necessary steps” provision by business operators. See Village of Hoffman

Estates, 455 U.S. at 498–99 (stating that regulated business activity is subject

to a less strict vague standard due in part to the enterprise’s “ability to clarify

the meaning of the regulation by its own inquiry, or by resort to an

administrative process”). To be safe, we apply the “relatively strict test”

required for criminal laws. See id. at 499–500.

In order to sustain a vagueness challenge, “a penal statute [must] define

the criminal offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited.” Kolender, 461 U.S. at 357 (emphasis

added). And, although the district court in this case implied that in order for the

ordinance to pass constitutional muster, it must delineate the exact actions a bar

owner would have to take to avoid liability, this high degree of language

precision exceeds the constitutional requirements for upholding a statute. See

Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1951) (“[F]ew words

possess the precision of mathematical symbols, most statutes must deal with

20

However, the City points out that it only charges owners and operators for “knowing”

violations.

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No. 06-51670

untold and unforeseen variations in factual situations, and the practical

necessities of discharging the business of government inevitably limit the

specificity with which legislators can spell out prohibitions.”). In fact, this circuit

has held that “[o]nly a reasonable degree of certainty is required.” United States

v. Tansley, 986 F.2d 880, 885 (5th Cir. 1993) (emphasis added) (citing United

States v. Barnett, 587 F.2d 252, 256 (5th Cir. 1979)).

To begin, we note that the ordinance’s goal, as a whole, is to prevent

smoking in enclosed public places, so as to minimize the health hazards

associated with second-hand smoke. See Grayned, 408 U.S. at 110 (considering

“what the ordinance as a whole prohibits” in analyzing whether the law was

unconstitutionally vague). The title of the ordinance reveals that it is designed

to prohibit “Smoking in Public Places,” and the title of the section at issue, § 10-

6-2, is even more explicit: “Smoking Prohibited.” Furthermore, the language of

the disputed subsection is sufficiently clear to put Plaintiffs on notice of what the

statute governs and at whom it is directed. First, it is limited to “[t]he owner or

operator of a public place,” as defined in the ordinance, and second, it requires

that said owner or operator “take necessary steps to prevent or stop another

person from smoking in an enclosed area in a public place.” § 10-6-2(E).

Next we examine the disputed words “necessary steps,” to determine

whether Plaintiff bar owners had fair notice of what conduct was prohibited, or

mandated, on their part, and whether inspectors were provided definite

standards to avoid arbitrary enforcement.21 In conducting this examination, we

“must, of course, consider any limiting construction that a state court or

enforcement agency has proffered.” Village of Hoffman Estates, 455 U.S. at

494 n.5. This criterion is especially important in a case such as this where the

21

“The same facets of a statute usually raise concerns of both fair notice and adequate

enforcement standards. Hence the analysis of these two concerns tends to overlap.” Gaudreau,

860 F.2d at 359.

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No. 06-51670

ordinance was not drafted by the City but instead enacted via voter initiative,

thereby prohibiting, pursuant to the City Charter, amendment or repeal until

the ordinance has been in effect for two years. AUSTIN CITY CHARTER, art. IV,

§ 6. Accordingly, we look to the City’s two sets of detailed guidelines,

promulgated in an attempt to resolve any uncertainty regarding the scope of the

“necessary steps” provision.

The first set of guidelines explicitly provides that “necessary steps” include

posting no smoking signs, removing ashtrays, asking the patron to stop smoking,

asking the patron to leave the establishment if he continues to smoke, and

following standard business practices for enforcing house rules. On March 9,

2006, an amended set of guidelines was issued, in response to requests for

clarification, adding: (1) that the owners or operators refuse service to a patron

if he continues to smoke; (2) that the requests to stop smoking and to leave the

establishment be verbal; and (3) that the standard business procedures be

applied in the same manner as violations of house rules, local ordinances, or

state laws. These guidelines not only provide standards to those inspectors

enforcing the ordinance but essentially provide Plaintiff bar owners and

operators a clear “how to” guide for avoiding a violation under the “necessary

steps” provision. Nevertheless, evidence at trial revealed that Plaintiff bar

owners often failed to implement any steps to prevent smoking in their

establishments.

For example, Gail Johnson was charged for a clear pattern and practice of

refusing to comply with the ordinance at both his establishments, Canary Hut

and Canary Roost. Specifically, on more than one occasion, inspectors observed

several patrons smoking, and the operators on duty made no attempts to ask

them to stop or leave the premises, or to refuse them service. At one point, an

inspector even gave a bartender the opportunity to implement the steps and

prevent a customer from smoking, to which the bartender responded with a

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No. 06-51670

shoulder shrug, rather than compliance. Bartenders themselves were seen

smoking when inspectors entered the bar, a clear indication that Johnson’s

establishments were intentionally flouting the ordinance. Additionally, although

refusing service was included as a step in the amended guidelines, testimony

revealed that Johnson failed to instruct his employees to refuse service to his

smoking customers.22

Similar attempts to circumvent the obligations of the ordinance were

observed at the bar managed by Bill Hardee—the Warehouse, Saloon and

Billiards. Although no smoking signs were posted there, the operators either

failed to remove ashtrays or instead provided candle holders to be used as

substitutes. In addition, the establishment had customers sign forms

acknowledging that they had been instructed to go outside to smoke, but once

the form was signed, the operators permitted the customers to continue to smoke

inside the establishment. Inspectors observed operators who neither requested

smokers to extinguish their cigarettes nor refused service to those smoking.23

From this evidence, we find it apparent that, most of the time, the only “steps”

taken were in trying to find a loop-hole to avoid enforcing the ordinance. Such

behavior is a clear violation of the “necessary steps” provision. See Tansley, 986

F.2d at 885 (“The requirement that statutes give fair notice cannot be used as

a shield by someone who is already intent on wrongdoing.”) (citing United States

v. Brewer, 835 F.2d 550, 553 (5th Cir. 1987)).

In addition, the danger of arbitrary and discriminatory enforcement is

unfounded. The City’s officials testified that three notices of violation were

issued to Plaintiffs Hardee and Johnson before charges were filed in municipal

22

A Canary Roost employee, who was issued notices of violation, testified that she had

never refused service to a customer who was smoking, but that she believed that refusing

service would stop patrons from smoking at the Canary Roost.

23

A bartender from the Warehouse Saloon and Billiards testified that he never refused

service to a smoking customer.

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No. 06-51670

court, and that the City’s procedure in filing charges only after the third notice

is issued and a management official has had a chance to review the notices is

standard. In addition, the pre-printed forms provided to the inspectors to notice

owners and operators for violations explicitly provide the five steps listed in the

guidelines. Evidence revealed that the inspectors normally circle the steps that

owners and operators failed to implement before issuing a violation. This direct

reference to the guidelines’ progressive steps while actually issuing the notices

to owners and operators helps to standardize enforcement. Furthermore, any

concern the district court had about arbitrary enforcement was based on lengthy

hypothetical questions posed to enforcement officials, whose complete testimony

revealed that they look for a pattern of noncompliance, and that in certain

scenarios, if it is apparent that good faith attempts are not being made to take

“necessary steps” to prevent smoking, then a notice of violation would be issued.

Thus, in light of the evidence at trial, Plaintiffs fail to demonstrate that

the “necessary steps” provision is so indefinite as to provide them with no

standard of conduct at all.24 The ordinance and its concomitant guidelines

24

Although the Texas courts have not had an opportunity to interpret the meaning of

“necessary steps” in the City’s ordinance, the Texas Court of Criminal Appeals has examined

a statute that made it unlawful for a business to “allow patrons” to form a line, or queue, on

the public right-of-way on the River Walk in San Antonio. State v. Guevara, 137 S.W.3d 55,

55–56 (Tex. Crim. App. 2004). A business owner was charged under the ordinance for allowing

patrons to queue outside her business. Id. She challenged the statute as overly vague because

it “failed to describe with reasonable certainty what actions constitute allowing patrons to

queue on the public right-of-way.” Id. at 56. Similar to the ordinance in this case, the Guevara

ordinance established a crime of omission, or failure to act—there, the failure to prevent a

queue from forming and here, failing to take the “necessary steps” to prevent smoking. The

business owner in Guevara argued that the statute’s failure to set out what precise steps the

business had to take to prevent queuing doomed the ordinance, but the Texas Court of

Criminal Appeals disagreed: “[T]he fact that the ordinance did not suggest a method of

preventing queuing is of no significance. . . . There are common-sense methods for preventing

queuing, and it is not necessary or desirable to require the City to codify these methods.” Id.

at 57–58.

The Texas court’s reliance on a business owner’s “common-sense” in Guevara is

supported by federal constitutional law. See Village of Hoffman Estates, 455 U.S. at 501

(asking whether a “business person of ordinary intelligence would understand” what the

ordinance requires); Boyce Motor Lines, 342 U.S. at 340–41 (“The requirement of reasonable

30

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provide adequate notice of the actions required, as well as an ascertainable

standard of guilt for inspectors. Plaintiffs’ void-for-vagueness challenge to the

“necessary steps” provision of the ordinance fails on the record evidence of actual

charged violations; we need not address hypothetical scenarios.

C. Permanent Injunction

The City also challenges the district court’s grant of a permanent

injunction with respect to the “necessary steps” provision.25 We review the

award of a permanent injunction for “abuse of discretion” which occurs if the

district court: “(1) relies on clearly erroneous factual findings; (2) relies on

erroneous conclusions of law; or (3) misapplies the law to the facts.” McClure v.

Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003). In holding that Plaintiffs were

entitled to a permanent injunction, the district court found that they had

established: (1) success on the merits; (2) that a failure to grant the injunction

will result in irreparable injury; (3) that said injury outweighs any damage that

the injunction will cause the opposing party; and (4) that the injunction will not

disserve the public interest. Roark & Hardee LP, 2006 WL 2854399, at *2

(quoting V.R.C. L.L.C. v. City of Dallas, 460 F.3d 607, 611 (5th Cir. 2006)).

certainty does not preclude the use of ordinary terms to express ideas which find adequate

interpretation in common usage and understanding. . . . The use of common experience as a

glossary is necessary to meet the practical demands of legislation.”) (emphasis added and

citation omitted). As business owners of stand-alone bars, Plaintiffs frequently must take

steps to control behavior ranging from inappropriate dress, rowdiness, fighting, underage

drinking, and intoxication. Thus, through prior business experiences, these owners and

operators have knowledge of the “steps” that work best in their establishments. They can

easily draw on those common experiences and implement the same types of steps to enforce

the smoking ordinance. The City even points this out to the owners and operators with the

inclusion of the final step in both sets of guidelines, stating that “necessary steps” requires an

application of the standard business practices for violations of house rules, state laws, and local

ordinances.

25

Although the City appeals the entire judgment, it makes no arguments regarding the

validity of the order permanently enjoining enforcement of the penalty provisions.

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No. 06-51670

Based on our conclusion that the district court erred in finding that the

“necessary steps” provision in the ordinance is unconstitutionally vague, it was

an abuse of discretion to grant a permanent injunction enjoining the City from

enforcing that section of the ordinance.

D. Attorneys’ Fees

Plaintiffs appealing the attorneys’ fees issue argue that the district court

erred in failing to grant them attorneys’ fees as a “prevailing party” in the

litigation. Under 42 U.S.C. § 1988(b), a district court, in its discretion, may

award to the “prevailing party” in a § 1983 action reasonable attorneys’ fees. We

review a district court’s denial of attorneys’ fees under § 1988 for abuse of

discretion. Myers v. City of W. Monroe, 211 F.3d 289, 292 (5th Cir. 2000).

In arguing that they should be considered a “prevailing party” under

§ 1988, those Plaintiffs rely primarily on the district court’s judgment enjoining

the City from holding the owner or operator of a public place liable for failure to

take “necessary steps” to prevent smoking in their establishments. As this

ruling was in error, Plaintiffs’ case for attorneys’ fees is significantly diminished.

The only other constitutional claim within the ambit of § 1988(b) for which the

district court granted relief to Plaintiffs was the due process claim regarding the

suspension and revocation of city permits and licenses without expeditious

judicial review, a holding which was not appealed on its merits. Considering the

numerous other claims Plaintiffs lost and the fact that the City can still enforce

the license revocation provision, as long as it provides expeditious judicial

review, Plaintiffs’ success is, at most, de minimis, and the district court did not

abuse its discretion in denying their claim for attorneys’ fees under § 1988 as a

“prevailing party.” See Texas State Teachers Ass’n v. Garland Indep. Sch. Dist.,

489 U.S. 782, 792 (1989) (stating that if the party succeeds on a “purely

technical” or “de minimus” legal question, then the party is not a “prevailing

party” for purposes of § 1988 attorneys’ fees).

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No. 06-51670

III. CONCLUSION

We REVERSE that portion of the district court’s judgment declaring the

“necessary steps” provision of the ordinance unconstitutionally vague, VACATE

the provision of the permanent injunction enjoining enforcement of said

provision, and otherwise AFFIRM the judgment. We also AFFIRM the district

court’s denial of attorneys’ fees. Plaintiffs shall bear the costs of these appeals.

33