Petition for Writ of Certiorari — Castaways Backwater Cafe, Inc. v. Florida Department of Business (No. 06-1393)

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Supreme Court, U.S.

ETE BD ¥

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OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

CASTAWAYS BACKWATER CAFE, INC.,

Petitioner,

v.

STATE OF FLORIDA DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATIONS DIVISION OF ALCHOLIC

BEVERAGES AND TOBACCO; GEOFF LUEBKEMANN,

DIRECTOR DIVISION OF HOTELS & RESTAURANTS;

JOHN O. AGWUNOBI, SECRETARY OF DEPARTMENT OF

HEALTH, STATE OF FLORIDA; PAT PARMER, DIRECTOR,

DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,

STATE OF FLORIDA; SIMONE MARSTILLER, SECRETARY

OF THE DEPARTMENT OF BUSINESS AND PROFESSIONAL

REGULATIONS, STATE OF FLORIDA,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Lupwic J. ABRUZZO

5425 Park Central Court

Naples, Florida 34109

(239)593-1444

Attorney for Petitioner

208169 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTION PRESENTED

The Eleventh Circuit affirmed the District Courts

dismissal with prejudice of Petitioner Amended Complaint

seeking injunctive and declaratory relief and asserting that

the Florida Clean Indoor Air Act (“FCIAA”’), Fla. Stat.

§ 386.01 et seq. was facially unconstitutional because it

banned smoking in some indoor workplaces but included an

exemption for smoking in “stand alone bars” and certain other

areas.

The statute sought to be declared unconstitutional is pre-

ambled as the states intent to prevent the employees and

patrons of restaurants and other public environments from

suffering the effects of second hand smoke. The basis for -

the law is that second hand smoke results in cancer in certain

individuals which results in great expense to the people

inflicted and the State of Florida.

The Petitioner claims in its Complaint that the statute as

written is illegal because it is laden with exceptions based

only on irrational logic because amongst other things, it

allows employees at certain places of businesses to suffering

the effects of second hand smoke while prohibiting it in other

places without a reasonable basis for the exceptions. These

exceptions it is alleged are included in the statute for surely

economic purposes.

The question therefore is: Does the Florida Clean Indoor

Air Act (“FCIAA”) as applied to Petitioner’s business

(restaurant) violate the equal protection clause of the United

States Constitution?

il

STATEMENT PURSUANT TO RULE 29.6

Petitioner, Castaways Backwater Café, Inc., has no parent

corporation and no publicly held company owns 10% or more

of its stock.

iit

TABLE OF CONTENTS

COURS TION PRESEN ccccce ceccscecses

STATEMENT PURSUANT TO RULE 29.6 .....

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .ouc ccc cece ees

STATEMENT OF THE CASE ....-...-e0cnces

REASONS FOR GRANTING THE PETITION ...

SNES Secs abi eektte ee chee ereeees

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iv

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Bush v. Vera, $47 US. 937 (1996) ohn ki cn cians 5

FCC v. Beach Communications, Inc., 508 U.S. 307

Uses | + Aone pete es reli ed gt Ce weaned Gin CP re 6

Lofton v. Sec’y of Department of Children and Family

Servs, 358 F.3d 804 (11 Cir. 2004), cert. denied,

543 U.S. 1081 (2005), quoting Lehr v.

Robertson, 463 U.S. 248 (1983) ............. 6

Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

353 (1942), quoting Yick Wo v. Hopkins, 118 U.S.

BE ce ee or ee eee 6

TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Eleventh Circuit Filed

FUREY 23, DOO vkvekeeeese Raha eee sees

Appendix B — Opinion And Order Of The United

States District Court For The Middle District Of

Florida, Fort Meyers Division Filed August 25,

SN i560 Ga hice eae kw ea ek aoe Rees

Page

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I

OPINION BELOW

The opinion of the Eleventh Circuit is unpublished as filed

on January 23, 2007. The Eleventh Circuit affirmed the opinion

and order of the United States District Court, Middle District

of Florida, dated August 25, 2006, see appendences A and B.

STATEMENT OF JURISDICTION

This Courts jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

The Eleventh Circuit opinion was filed on January 23, 2007.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment V

United State Constitution, Amendment XIV

Constitution of the State of Florida § 20, Art. X

Florida Clean Indoor Air Act, (“FCIAA”), Fla. Stat.

§ 386.201 et seq. (The Florida Statute).

Fla. Stat. § 386.203(11)

“Stand Alone Bar” means any licensed premises

devoted during any time of operation predominantly

or totally to serving alcoholic beverages, intoxicating

beverages, intoxicating liquors, or any combination

thereof, for consumption on the licensed premises;

in which the servicing of food, if any, is merely

incidental to the consumption of such beverages; and

2

the licensed premises is not located within, and does

not share any common entryway or common indoor

area with, any other enclosed indoor workplace,

including any business for which the sale of food or

any other product or service is more than an

incidental source of gross revenue. A place of

business constitutes a stand alone bar in which the

service of food is merely incidental in accordance

with this subsection if the licensed premises derives

no more than 10 percent of its gross revenue from

the sale of food consumed on the licensed premises.

Florida Department of Business and Professional

Regulations Emergency Rule, 61 AERO3-0, FAC provides,

SPECIFIC FACTS AND REASONS FOR

FINDING AN IMMEDIATE DANGER TO THE

PUBLIC HEALTH, SAFETY OR WELFARE: The

citizens of the state of Florida voted to amend the

Florida constitution and created the Florida Health

initiative in s. 20, Art, X of the State Constitution.

The Florida legislature passed House Bill 63A (the

Bill’) to protect people from the health hazards of

second-hand smoke and to implement the

constitution amendment. The bill takes effect July,

1 2003, and the Florida legislature authorized the

Division of Alcoholic Beverages and Tobacco (the

“Division”) to adopt emergency rules to carry out

the provisions of the Bill.

The relevant provisions of the Florida Clean Indoor Air

Act (FCIAA) are lengthy and therefore set out in appendix C.

3

STATEMENT OF THE CASE

Preliminarily, Castaways submits that this case presents

no question concerning the wisdom of the challenged Florida

Statute as it pertains to smoking, the propriety of the

procedures by which they were adopted, or the right of the -

State in general to promulgate restrictions on the use of

tobacco in public places. The degree of scientific support

for the regulations and their unquestionable value in

protecting those who choose not to smoke, are likewise not

pertinent except as background. Nor does Castaways attempt

to make argument concerning the personal freedoms of

smokers or their “right” to smoke in a public place, a habit

that may inflict serious harm on others who must breathe the

same air. However laudable the State’s attempt to protect

the public is however, the inequities promulgated by the

Florida Statute must be reviewed by this Court to give

substance to the Equal Protection Clause. As described in

more detail below, Castaways submits that the exceptions to

the Florida Statute are unconstitutional and in violation of

the Equal Protection Clause because they are not based on

any rational reason and they are wholly inconsistent with

the purposes expressed by the Florida Legislature.

The gravamen of Castaway’s claim is the disparity

between the stated purpose of the law and its exception which

counteract that purpose.

When one considers that stand alone bars that serve food,

regardless of the amount, subject their employees, cooks,

wait staff, bartenders, hosts, and their non-smoking patrons

to second hand smoke, it is easy to realize what a sham such

an exemption makes of the intended purpose of the statute.

4

However, that is not the only flaw. Consider that in areas

of Florida, such as Naples, Tampa, Sarasota, Orlando, and

Key West, where tourism is rampart, free standing bars

generate (30) to (70) thousand dollars gross revenue a week,

10% of these revenues is a substantive amount of food sold

in any given week during season. It points out that hundreds

of patrons and the large wait staff tend to pass through these

establishments; clearly the statute could not have been

intended to prevent second hand smoke and yet allow

substantial exceptions to the law. :

Additionally, smoking is permitted on patios, lanai’s, and

other areas adjacent to restaurants where there business is

predominantly the sale of food, yet these outdoor restaurant

areas are similarly exempt from the requirement of the article.

Query, is second hand smoke is less lethal to the patron on

the outside restaurants area? What protection do the patrons

dinning indoors get in Florida where most restaurants are

entirely opened to the outside during winter months, the

height of tourism? It is respectfully argued none.

It is these disparities that the Petitioner was not permitted

to offer evidence of when the lower court dismissed its

Complaint.

5

REASONS FOR GRANTING THE PETITION

Petitioners Amended Complaint alleges facts sufficient

to survive a Motion to Dismiss pursuant to Federal Rules of

Civil Procedure 12(b)(6). The lower court and the appellate

court, by-passed that issue and made their ruling and it

appears based on their findings, that as a matter of law that

they objected the statute was constitutional. It is therefore

argued that by both courts in their rulings prevented the

Petitioner from submitting proofs of the fact and the

applicable law.

This court has repeatedly held that an alleged

infringement of ones constitutional rights, such as the right

to equal protection under the law, qualifies as a “direct

injury.” Bush v. Vera, 517 U.S. 957, 957 (1996), noting that

a party allegedly denied equal protection because of

legislature action has standard to challenge that action.

The State of Florida argument that Petitioner will be

“worse off,” if it is successful, appears to imply that

Castaways wished the court to re-write the statute for its

benefit, i.e. to allow smoking in its premises. However, it

has been made clear the purpose is merely to have the statute

re-written by the legislature for the protection of all Florida

residents from the dangers of second hand smoke, and seeks

a declaration to the extent permitted by constitutional

principles to create a statute that is equally applied to all and

not one that makes exceptions for the benefit of a certain

few.

-6

The Petitioner submits it has long been held that

“the guaranty” of “equal protection of the laws is a pledge

of the protection of equal laws.” Skinner v. Oklahoma ex rel.

Williamson, 316 U.S.-353, 541 (1942) and quoting Yick Wo v.

Hopkins, 118 U.S. 356, 369 (1890).

While we believe that the United States Constitution is not

a license for courts to judge the wisdom or fairness or logic of

legislative choices, except when a statutory classification

proceeds along suspect lines and infringes fundamental

constitutional nghts. FCC v. Beach Communications, Inc., 508

U.S. 307 (1993).

The Eleventh Circuit finding that there was a rational basis

because the distinction drawn between restaurants and stand

alone bars could be legitimately based on the “regular presence

of children in restaurants,” see Eleventh Circuit Opinion, page

3, as the legitimate government interests that apparently swayed

the lower court and the Eleventh Circuit. It is argued that no

where in the statute objected to does it indicate a purpose to

primarily protect children, as opposed to all human being.

Clearly the mandate of equal protection is to prevent the drawing

of distinction between individuals based solely on differences

that are irrelevant to legitimate government objectives. Lofton

v. Sec’y of Department of Children and Family Servs, 358 F.3d

804 (11" Cir. 2004), cert. denied, 543 U.S. 1081 (2005), quoting

Lehr v. Robertson, 463 U.S. 248, 265 (1983). The lower court

erred in dismissing Petitioner's Complaint. It is believed that

testimony at a trial would have substantiated that bars that serve

food even in limited amounts equally pollute the bar with second

hand smoke which affects children as well as adults.

7

CONCLUSION

For all the foregoing reasons, Petitioner respectfully

requests that the Supreme Court grant review of this matter.

Respectfully submitted,

Lupwic J. ABRUZZO

5425 Park Central Court

Naples, Florida 34109

(239)593-1444

Attorney for Petitioner

APPENDIX

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT FILED JANUARY 23, 2007

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 06-15065

Non-Argument Calendar

D.C. Docket No. 05-00273-CV-FTM-29-SPC

CASTAWAYS BACKWATER CAFE, INC.,

Plaintiff-Appeliant,

versus

STATE OF FLORIDA DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATIONS DIVISION OF

ALCOHOLIC BEVERAGES AND TOBACCO,

GEOFF LUEBKEMANN,

JOHN O. AGWUNOBI,

PAT PARMER,

SIMONE MARSTILLER,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

(January 23, 2007)

2a

Appendix A

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Castaways Backwater Café, Inc. (“Castaways”) appeals

the district court’s dismissal with prejudice of its amended

complaint seeking injunctive and declaratory relief and

asserting that the Florida Clean Indoor Air Act (“FCIAA”),

Fla. Stat. § 386.201 et seq., was facially unconstitutional

because it banned smoking in most indoor workplaces but

included an exemption for smoking in “stand-alone bars.”"

We review a district court’s grant of a motion to dismiss

de novo; and we take as true the facts as alleged in the

complaint. Owens v. Samkle Auto., Inc., 425 F.3d 1318, 1320

(11th Cir.2005). After careful review, we affirm.

In the amended complaint, Castaways alleged that the

defendants, in their official capacities, had attempted to

enforce the FCIAA and thereby prevent Castaways from

allowing its patrons to smoke inside of its business premises.

Castaways sought a declaration that the FCIAA created an

unconstitutional, arbitrary, and capricious classification by

distinguishing between restaurants and stand-alone bars and

thereby violated the Equal Protection Clause of the US.

1. Castaways sought injunctive and declaratory relief against

the Secretary of the Department of Business and Professional

Regulations of the State of Florida, Division of Alcoholic Beverages

and Tobacco; the Director of the Division of Alcoholic Beverages

and Tobacco; the Secretary of the Department of Health of the State

of Florida; and the Director of the Division of Hotels and Restaurants

of the Department of Business and Professional Regulations of the

State of Florida.

3a

Appendix A

Constitution because the classification was not rationally

related to a legitimate government purpose.’ The district court

held that the Florida legislature’s stated objective in enacting

the FCIAA-to protect citizens from the health hazards of

second-hand tobacco smoke-satisfied rational-basis review

because the distinction drawn between restaurants and stand-

alone bars could legitimately be based on the regular presence

of children in the former type of establishment but not the

latter.

In the instant case, no fundamental constitutional right

and no suspect classification is involved. The Equal

Protection Clause thus requires only that the challenged

classification be rationally related to a legitimate government

interest. See Lofton v. Sec’y of Dep’t of Children & Family

Servs., 358 F.3d 804, 818 (1 1th Cir.2004), cert. denied, 543

U.S. 1081, 125 S.Ct. 869, 160 L.Ed.2d 825 (2005). “The

central mandate of the equal protection guarantee is that ‘[t}he

sovereign may not draw distinctions between individuals

based solely on differences that are irrelevant to a legitimate

governmental objective.’ ” /d. at 817 (quoting Lehr vy.

Robertson, 463 U.S. 248, 265, 103 S.Ct. 2985, 77 L.Ed.2d

614 (1983)). Here, we readily conclude that the district court

did not err in its Equal Protection analysis nor in its

conclusion that the Legislature’s distinction between

restaurants and stand-alone bars is rationally related to the

legitimate interest of protecting public health. Accordingly,

the court properly dismissed the amended complaint.

AFFIRMED.

2. Castaways also asserted the FCIAA violated of its substantive

due-process, but has not appealed as to that claim.

ta

APPENDIX B — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA, FORT MEYERS

DIVISION FILED AUGUST 25, 2006

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MEYERS DIVISION

Case No. 2:05-cv-273-FtM-29SPC

CASTAWAYS BACKWATER CAFE, INC.,

Plaintiff,

VS.

SIMONE MARSTILLER, Secretary of the Department of

Business and Professional Regulations, Division of Alcoholic

Veverages and Tobacco, State of Florida, PAT PARMER,

Director, Division of Alcoholic Beverages and Tobacco of

the Department of Business & Professional Regulation, State

of Florida; JOHN O. AGWUNOBI, Secretary, Dept. Of

Health, State of Florida, GEOFF LUEKEMANN, Director,

‘ Division of Hotels & Restaurants of the Dept. Of Business

& Professional Regulations, State of Florida,

Defendants.

OPINION AND ORDER

This matter comes before the Court on defendants’

Motion to Dismiss Amended Complaint (Doc. # 19), to which

plaintiff filed a Memorandum in Opposition (Doc. # 22).

Sa

Appendix B

Defendants filed supplemental authority (Docs.# 27, # 28,

30), which plaintiff opposed (Doc. # 29).

I.

In deciding a motion to dismiss, the Court must accept

all factual allegations in the Amended Complaint as true and

take them in the light most favorable to plaintiff. Christopher

v. Harbury, 536 U.S. 403, 406 (2002); Doe v. Moore, 410

F.3d 1337, 1342 (11th Cir. 2005). The Amended Complaint

(Doc. # 17) alleges that plaintiff Castaways Backwater Café,

Inc. (plaintiff or Castaways) owns and operates a restaurant

in Collier County, Florida. Castaways asks the Court to

declare the Florida Clean Indoor Air Act (FCIAA), Fla. Stat.

§ 386.201 et seg., unconstitutional as a violation of the Fifth

and Fourteenth Amendments to the United States

Constitution. The Amended Complaint names as defendants

Simone Marstiller, Pat Parmer, Dr. M. Rony Francois, and

Geoff Luebkemann (collectively, “defendants’”’) in their

official capacities as State of Florida officials who enforce

the FCIAA.

Plaintiff asserts that the defendants are attempting to

enforce the FCIAA and prevent plaintiff from allowing its

patrons to smoke in its restaurant. The Amended Complaint

alleges that the FCIAA is unconstitutional because:

(1) It contains exceptions to its no-smoking-in-enclosed-

workplaces provision, instead of making the smoking ban

universal in its workplace application (Doc. # 17, { XII);

(2) some exceptions are based solely on economic

considerations, and were enacted to grant special economic

privilege to those holding Florida liquor licenses ¢d., { 1X);

6a

Appendix B

and (3) the exceptions are based on irrational logic, and

without any legitimate interest or rational or plausible reasons

(id., { J IX, XII). The Amended Complaint asserts that -

applying the FCIAA to plaintiff's business “is arbitrary,

Capricious, irrational, violates substantive due process, bears

no reasonable relation to public health safety or welfare and

is therefore void.” @d. at 5.)

II.

In 2002 a citizen initiative sought to amend the Florida

Constitution by adding a provision banning tobacco smoking

in enclosed-workplaces. The proposed text to Section 20,

Art. X of the Florida Constitution was:

(a) Prohibition. As a Florida health initiative to

protect people from the health hazards of second-

hand tobacco smoke, tobacco smoking is

prohibited in enclosed workplaces.

(b) Exceptions. As further explained in the

definitions below, tobacco smoking may be

permitted ... in retail tobacco shops, designated

smoking guest rooms at hotels or other public

lodging establishments; and stand-alone bars.

The citizen initiative included definition of terms, Section

20(c), including ‘stand-alone bar.” The Florida Supreme

Court upheld the ballot initiative against a legal challenge,

Advisory Opinion to Atty. Gen. Re: Protect People From the

Health Hazards of Second-Hand Smoke, 814 So.2d 415

(Fla.2002), and in due course the initiative was passed in a

Ta

Appendix B

general election. As required by the initiative, Section 20(d),

Art. X, Florida Constitution, the Florida legislature enacted

a statute to implement this constitutional initiative.

The FCIAA was enacted effective July 1, 2003, to “protect

people from the health hazards of secondhand tobacco smoke

and to implement the Florida health initiative in § 20, Art. X

of the State Constitution.” Fla. Stat. § 386.202. After defining

terms, Fla. Stat. § 386.203, the FCIAA provides that

“[a] person may not smoke in an enclosed indoor workplace,

except as otherwise provided in s. 386.2045.” Fla. Stat.

§ 386.204. Section 386.2045(1)-(6) allows tobacco smoking

in a(1) private residence (with ccrtain exceptions); (2) retail

tobacco shop; (3) designated smoking guest room; (4) stand-

alone bar; (5) smoking cessation program, medical or

scientific research; and (6) customs smoking room. Of

particular relevance to this case is the “stand-alone bar,”

which is defined as:

any licensed premises devoted during any time of

operation predominantly or totally to serving

alcoholic beverages, intoxicating beverages, or

intoxicating liquors, or any combination thereof,

for consumption on the licensed premises; in

which the serving of food, if any, is merely

incidental to the consumption of any such

beverage; and the licensed premises is not located

within, and does not share any common entryway

or common indoor area with, any other enclosed

indoor workplace, including any business for

which the sale of food or any other product or

service is more than an incidental source of gross

8a

Appendix B

revenue. A place of business constitutes a stand-

alone bar in which the service of food is merely

incidental in accordance with this subsection if

the licensed premised derives no more than 10

percent of its gross revenue from the sale of food

consumed on the licensed premises.

FLA. Stat. § 386.203(11).

Ii]

As a preliminary matter, defendants contend that

plaintiff's claim is not ripe because plaintiff cannot show

that it has sustained, or is in immediate danger of sustaining,

a direct injury as a result of the FCIAA. (Doc. # 19, pp. 1-2.)

Moreover, defendants assert that plaintiff currently enjoys

the exemptions it challenges, and therefore what plaintiff

seeks is essentially an “advisory opinion as to the propriety

of indoor smoking under any circumstances.” @d. at 2.)

The issue of ripeness raises basic questions of

jurisdiction that cannot be waived and goes to the very heart

of the “case or controversy” requirement of Article III.

Florida Ass'n of Rehab. Facilities, Inc. v. State of Fla. Dep't

of Health and Rehabilitative Servs., 225 F.3d 1208, 1227

n. 14 (11th Cir.2000). “To determine whether a claim is ripe

. we must examine whether there is sufficient injury to

meet Article III's requirement of a case or controversy, and

if so, whether the claim is sufficiently mature, and the issues

sufficiently defined and concrete to permit effective decision-

making by the court.” Coalition for the Abolition of

Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1315

9a

Appendix B

(11th Cir.2000) (internal quotations and citations omitted),

See also Nat'l Adver. Co. v. City of Miami, 402 F.3d 1335,

1339 (11th Cir.2005).

The Court finds that this case is ripe for adjudication

and that plaintiff alleges sufficient injury in the Amended

Complaint to satisfy the case or controversy requirement.

The Amended Complaint alleges that defendants “are

attempting to enforce” the FCIAA and “to prevent Plaintiff

from allowing its patrons to smoke in the premises wherein

its business is conducted.” (Doc. # 17, pp. 2-3.) The Amended

Complaint also alleges that “[i] n order to adapt its business

to the statute’s requirements, the plaintiff would either lose

90% of its patrons, or apply for a bar license to serve alcohol

and discontinue service of food over 10%. Both alternatives

will cause Plaintiff serious financial damages and loss of its

very valuable business.” @d. at 5.) Additionally, enforcement

of the FCIAA includes the imposition of monetary civil

penalties. Fla. Stat. § 386.207. The Court concludes that these

allegations are sufficient to establish, for purposes of a motion

to dismiss, that the case is ripe for adjudication.

IV.

The Amended Complaint alleges violations of the

Substantive Due Process Clause and the Equal Protection

Clause of the United States Constitution. While the parties

focus on the equal protection claim, the Court addresses both

constitutional issues. For the reasons set forth below, the

Court concludes that neither ground states a claim upon

which relief may be granted.

10a

Appendix B

A.

The United States Constitution guarantees that “[n]Jo

State shall ... deprive any person of life, liberty, or property,

without due process of law.” U.S. Const. Amend. XIV, § 1.

The substantive due process component “protects

fundamental rights that are so ‘implicit in the concept of

ordered liberty’ that ‘neither liberty nor justice would exist

if they were sacrificed.” ”" Moore, 410 F.3d at 1342-43

(quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

Such fundamental rights are “those guaranteed by the Bill of

Rights as well as certain ‘liberty’ and privacy interests

implicit in the due process clause and the penumbra of

constitutional rights.” Moore, 410 F.3d at 1343. The special

“liberty” interests include “the right to marry, to have

children, to direct the education and upbringing of one’s

children, to marital privacy, to use contraception, to bodily

integrity, and to abortion.” /d. (citation omitted). The

Supreme Court has been very reluctant to recognize new

fundamental rights. /d. (citation omitted).

In analyzing a substantive due process claim, the Court

must first craft a careful description of the asserted right.

The Court then determines whether the asserted right is one

of the fundamental rights and liberties which, viewed

objectively, are deeply rooted in the Nation’s history and

tradition, and implicit in the concept of ordered liberty, such

that neither liberty nor justice would exist if they were

sacrificed. /d. (citations and quotations omitted).

The Amended Complaint contains the required careful

description of the asserted right. The right asserted by plaintiff

lla

Appendix B

is the right of a public restaurant to allow its patrons to smoke

in its business premises. (Doc. # 17, 4 VIII.)

The next question is whether the asserted right to allow

patrons to smoke in a public restaurant is “deeply rooted. in

this Nation’s history and tradition, and implicit in the concept

of ordered liberty, such that neither liberty nor justice would

exist if they were sacrificed.” Moore, 410 F.3d at 1344

(citation omitted). The answer clearly is no. E.g., City of

N. Miami v. Kurtz, 653 So.2d 1025, 1028 (Fla.1995). While

tobacco smoking may have a long history, both liberty and

justice will continue to exist if smoking in a public restaurant

is curtailed or precluded.

Because the FCIAA does not implicate a fundamental

right, the Court reviews whether it is “rationally related to

legitimate governmental interests.” Moore, 410 F.3d at 1345.

This is a highly deferential standard, and the Court will find

a Statute unconstitutional in only the most exceptional

circumstances. /d. The substantive due process analysis at

this point dovetails with the equal protection analysis

discussed below. For the reasons stated below, the Court finds

that the statutory smoking exemptions are rationally related

to legitimate government interests, and therefore do not

violate plaintiff's substantive due process rights.

B.

The Equal Protection Clause of the Fourteenth

Amendment provides that “[nJo State shall ... deny to any

person within its jurisdiction equal protection of the laws.”

U.S. Const. Amend. XIV, § 1. If a statutory classification

12a

Appendix B

infringes on fundamental nights or concerns a suspect class,

the Court will analyze the statute under a strict scrutiny

standard. Moore, 410 F.3d at 1346. Otherwise, “the Equal

Protection Clause requires only that the classification be

rationally related to a legitimate state interest.” Bah v. City

of Atlanta, 103 F.3d 964, 966 (11th Cir .1997) (citations

omitted). Here. as discussed above, there is no fundamental

right at stake or unduly burdened. The Court also concludes

that no suspect class is involved. Suspect classifications

include race, alienage, national origin, gender, and

illegitimacy. Moore, 410 F.3d at 1346 (citation omitted). The

Court finds that smokers are not in a suspect class. Therefore,

strict scrutiny is not the applicable standard, and the Court

applies the rational basis test. /d.

ee

caries a ‘strong presumption of validity.” Bah, 103 F.3d at

967 (citing FCC v. Beach Commc’ns, 508 U.S. 307, 314

(1993)). Additionally, under the rational basis test the

Classification need only be rationally related to the

achievement of some legitimate government interest.

Beauclerc Lakes Condo. Ass'n vy. City of Jacksonville, 115

F.3d 934, 935 (1 Ith Cir.1997); Panama City Med. Diagnostic

Ltd. v. Williams, 13 F.3d 1541, 1545 (11th Cir.1994).

Application of the rational basis test is a two step process.

First, the Court identifies a legitimate government purpose

the enacting governmental body could have been pursuing.

Beauclerc Lakes, 115 F.3d at 935. Second, the Court

determines whether a rational basis exists to believe that the

legislation would further the hypothesized purpose. /d.

l3a

Appendix B

Here, the Florida Constitutional amendment identifies

the intended government purpose being pursued. The

constitutional amendment, and the subsequent enactment of

the FCIAA, were intended as a “health initiative to protect

people from the health hazards of second-hand tobacco

smoke, ...” Section 20(a), Art. X, Florida Constitution.

While there may be other legitimate government interests,

the Court need not go beyond the one articulated by the

Florida Constitution.

The second issue is whether a rational basis exists to

believe that the legislation would further that purpose. “A

Statute is considered constitutional uader the rational basis

test when ‘there is any reasonably conceivable state of facts

that could provide a rational basis for’ it.” Moore, 410 F.3d

at 1346 (quoting Beach Commc’ns, 508 U.S. at 313). As

Lofton v. Secretary of the Department of Children and Family

Services stated:

Rational-basis review, a paradigm of judicial

restraint, does not provide a license for courts to

judge the wisdom, fairness, or logic of legislative

choices. The question is simply whether the

challenged legislation is rationally related to a

legitimate state interest. Under this deferential

standard, a legislative classification is accorded a

strong presumption of validity, and must be upheld

against equal protection challenge if there is any

reasonably conceivable state of facts that could

provide a rational basis for the classification. This

holds true even if the law seems unwise or works

to the disadvantage of a particular group, or if the

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Appendix B

rationale for it seems tenuous. Moreover, a state

has no obligation to produce evidence to sustain

the rationality of a statutory classification. Rather,

the burden is on the one attacking the legislative

alrangement to negative every conceivable basis

which might support it, whether or not the basis

has a foundation in the record.

358 F.3d 804, 817-18 (11th Cir.2004), cert. denied 543 US.

1081 (2005)(internal quotations and citations omitted).

See also Rodrequez v. United States, 169 F.3d 1342, 1350

(llth Cir.1999). Courts must “accept a legislature’s

generalizations even when there is an imperfect fit between

means and ends. A classification does not fail rational-basis

review because it is not made with mathematical nicety or

because in practice it results in some inequality. The problems

of government are practical ones and may justify, if they do

not require, rough accommodations-illogical, it may be, and

unscientific.” Heller v. Doe, 509 U.S. 312, 321 (1993)

(citation omitted).

Applying these principles, the statute easily survives

constitutional challenge. Plaintiff first argues that the

Legislature’s consideration of economic factors in its

Classifications renders the statute void under the Equal

Protection Clause. The Equal Protection Clause does not

preclude consideration of economic factors. Quite the

contrary, “the Supreme Court has clearly held that in cases

involving economic classifications, the rational basis test is

extremely lenient.” Williams, 13 F.3d at 1545. The Eleventh

Circuit quoted the following from Beach Communications,

508 U.S. at 313:

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Appendix B

[E]qual protection is not a license for courts to

judge the wisdom, fairness, or logic of legislative

choices. In areas of social and economic policy, a

Statutory classification that neither proceeds along

suspect lines nor infringes fundamental

constitutional rights must be upheld against equal

protection challenge if there is any reasonably

conceivable state of facts that could provide a

rational basis for the classification.

Williams, 13 F.3d at 1545. See also Georgia Cemetery Ass'n,

Inc. v. Cox, 353 F.3d 1319, 1321 (11th Cir.2003). When

regulating economic entitics a legislature must necessarily

engage in line-drawing, and this “renders the precise

coordinates of the resulting legislative judgment virtually

unreviewable, since the legislature must be allowed leeway

to approach a perceived problem incrementally.” Williams,

13 F.3d at 1346 (quoting Beach Commc’ns, 508 U.S. at 308).

Thus, the consideration of economic factors by the Florida

legislature in constructing the FCIAA does not result in a

violation of equal protection guarantees.

Second, plaintiff argues that given the stated health

objective of the statute, no classifications are permitted, and

it is essentially an all-or-nothing proposition. The Court

disagrees. The line-drawing process in which a state

legislature properly engages will not be _ found

unconstitutional simply because the entirety of a problem is

not addressed in a statute. “Thus, legislatures are not required

to address all aspects of a particular problem in one fell

swoop.” Williams, 13 F.3d at 1546. Plaintiff's all-or-none

argument has been rejected in other equal protection claims.

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Appendix B

E.g., Beauclerc Lakes, 115 F.3d at 935 (“A government is

not required to provide sanitation service to all or none; ...”’).

The Court concludes that the statute does not violate the equal

protection clause simply because it does not take an absolute

approach to the issue of secondhand smoke.

Finally, plaintiff argues that the statute is unconstitutional

because there is no legitimate distinction between its

restaurant and a “stand-alone bar’ in the context of the stated

goal of protecting against the adverse health effects. of

second-hand smoke. In essence, plaintiff argues that even if

classifications are permitted in the context of public health,

this particular classification is impermissible. As discussed

above, plaintiff must negate all rational bases for this

distinction. The Court concludes that plaintiff has not done

so. The Florida legislature could/legitimately conclude that

a restaurant is different from a stand-alone bar. At the very

least, given the legal age limits for persons who can be served

alcohol, the legislature could conclude that the age of a bar’s

clientele differs from that of a restaurant, which typically

serves both adults and families, including children. Given

the undisputed legitimate health care concerns of exposure

to second hand smoke by children and young persons, the

Florida legislature’s line-drawing decision between stand-

alone bars and restaurants does not offend equal protection

guarantees.

Accordingly, it is now

ORDERED:

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Appendix B

1. Defendant’s Amended Motion to Dismiss (Doc. # 19)

is GRANTED, and the Amended Complaint is dismissed

with prejudice.

2. The Clerk of the Court shall enter judgment

accordingly, terminate all pending deadlines as moot, and

close the file.

DONE AND ORDERED at Fort Myers, Florida, this -

25th day of August, 2006.

s/ John E. Seele

JOHN E. STEELE

United States District Judge

18a

APPENDIX C — RELEVANT STATUTES

The 2006 Florida Statutes

Chapter 386

Particular Conditions Affecting Public Health

* * *

PART I

INDOOR AIR: TOBACCO SMOKE

oe

FCIAA Fla. Stat. § 386.201 Popular name.—This part may

be cited by the popular name the “Florida Clean Indoor Air

Act.”

FCIAA Fla. Stat. § 386.202 Legislative intent.—

The purpose of this part is to protect people from the health

hazards of secondhand tobacco smoke and to implement the

Florida health initiative in s. 20, Art. X of the State

Constitution. It is the intent of the Legislature to not inhibit,

or otherwise obstruct, medical or scientific research or

smoking cessation programs approved by the Department of

Health.

FCIAA Fla. Sat. § 386.203 Definitions.—As used in this

part:

(1) “Commercial” use of a private residence means any time

during which the owner, lessee, or other person occupying

or controlling the use of the private residence is furnishing

in the private residence, or causing or allowing to be furnished

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Appendix C

in the private residence, child care, adult care, or health care,

Or any combination thereof, and receiving or expecting to

receive compensation therefor.

(2) “Common area” means a hallway, corridor, lobby, aisle,

water fountain area, restroom, stairwell, entryway, or

conference room in a customs area of an airport terminal

under the authority and control of the Bureau of Customs

and Border Protection of the United States Department of

Homeland Security.

(3) “Department” means the Department of Health.

(4) “Designated smoking guest rooms at public lodging

establishments” means the sleeping rooms and directly

associated private areas, such as bathrooms, living rooms,

and kitchen areas, if any, rented to guests for their exclusive

transient occupancy in public lodging establishments,

including hotels, motels, resort condominiums, transient

apartments, transient lodging establishments, rooming

houses, boarding houses, resort dwellings, bed and breakfast

inns, and the like; and designated by the person or persons

having management authority over such public lodging

establishment as rooms in which smoking may be permitted.

(5) “Enclosed indoor workplace” means any place where one

Or more persons engages in work, and which place is

predominantly or totally bounded on all sides and above by

physical barriers, regardless of whether such barriers consist

of or include, without limitation, uncovered openings;

screened or otherwise partially covered openings; or open

or closed windows, jalousies, doors, or the like. A place is

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Appendix C

“predominantly” bounded by physical barriers during any

time when both of the following conditions exist:

(a) It is more than 50 percent covered from above by a

physical barrier that excludes rain, and

(b) More than 50 percent of the combined surface area

of its sides is covered by closed physical barriers. In

calculating the percentage of side surface area covered

by closed physical barriers, all solid surfaces that block

air flow, except railings, must be considered as closed

physical barriers. This section applies to all such

enclosed indoor workplaces and enclosed parts thereof

without regard to whether work is occurring at any given

time.

(c) The term does not include any facility owned or

_ leased by and used exclusively for noncommercial

activities performed by the members and guests of a

membership association, including social gatherings,

meetings, dining, and dances, if no person or persons

are engaged in work as defined in subsection (12).

(6) “Essential services” means those services that are

essential to the maintenance of any enclosed indoor room,

including, but not limited to, janitorial services, repairs, or

renovations.

(7) “Physical barrier” includes an uncovered opening; a

screened or otherwise partially covered opening; or an open

or closed window, jalousie, or door.

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Appendix C

(8) “Retail tobacco shop” means any enclosed indoor

workplace dedicated to or predominantly for the retail sale

of tobacco, tobacco products, and accessories for such

products, in which the sale of other products or services is

merely incidental. Any enclosed indoor workplace of a

business that manufactures, imports, or distributes tobacco

products or of a tobacco leaf dealer is a business dedicated

to or predominantly for the retail sale of tobacco and tobacco

products when, as a necessary and integral part of the process

of making, manufacturing, importing, or distributing a

tobacco product for the eventual retail sale of such tobacco

or tobacco product, tobacco is heated, burned, or smoked or

a lighted tobacco product is tested.

(9) “Secondhand smoke,” also known as environmental

tobacco smoke (ETS), means smoke emitted from lighted,

smoldering, or burning tobacco when the smoker is not

inhaling; smoke emitted at the mouthpiece during puff

drawing; and smoke exhaled by the smoker.

(10) “Smoking” means inhaling, exhaling, burning, carrying,

or possessing any lighted tobacco product, including

cigarettes, cigars, pipe tobacco, and any other lighted tobacco

product.

(11) “Stand-alone bar” means any licensed premises devoted

during any time of operation predominantly or totally to

serving alcoholic beverages, intoxicating beverages, or

intoxicating liquors, or any combination thereof, for

consumption on the licensed premises; in which the serving

of food, if any, is merely incidental to the consumption of

any such beverage; and the licensed premises is not located

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Appendix C

within, and does not share any common entryway or common

indoor area with, any other enclosed indoor workplace,

including any business for which the sale of food or any other

product or service is more than an incidental source of gross

revenue, A place of business constitutes a stand-alone bar in

which the service of food is merely incidental in accordance

with this subsection if the licensed premises derives no more

than 10 percent of its gross revenue from the sale of food

consumed on the licensed premises.

(12) “Work” means any person’s providing any employment

or employment-type service for or at the request of another

individual or individuals or any public or private entity,

whether for compensation or not, whether full or part time,

whether legally or not. “Work” includes, without limitation,

any such service performed by an employee, independent

contractor, agent, partner, proprietor, manager, officer,

director, apprentice, trainee, associate, servant, volunteer, and

the like. The term does not include noncommercial activities

performed by members of a membership association.

(13) “Membership association” means a charitable,

nonprofit, or veterans’ organization that holds a current

exemption under s. 501(c)(3), (4), (7), (8), (10), or (19) or s.

501(d) of the Internal Revenue Code.

FCIAA Fla. Sat. § 386.204 Prohibition—A person may

not smoke in an enclosed indoor workplace, except as

otherwise provided in s. 386.2045.

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Appendix C

¥CIAA Fla. Stat. § 386.2045 Enclosed indoor workplaces;

specific exceptions.—Notwithstanding s. 386.204, tobacco

smoking may be permitted in each of the following places:

(1) Private residence.—A private residence whenever it is

not being used commercially to provide child care, adult care,

or health care, or any combination thereof as defined in s.

386.203(1).

(2) Retail tobacco shop.—An enclosed indoor workplace

dedicated to or predominantly for the retail sale of tobacco,

tobacco products, and accessories for such products, as

defined in s. 386.203(8).

(3) Designated smoking guest room.—A designated smoking

guest room at a public lodging establishment as defined in s.

386.203(4).

(4) Stand-alone bar.—A business that meets the definition

of a stand-alone bar as defined in s. 386.203(11) and that

otherwise complies with all applicable provisions of the

Beverage Law and this part.

(5) Smoking cessation program, medical or scientific

research.—An enclosed indoor workplace, to the extent that

tobacco smoking is an integral part of a smoking cessation

program approved by the department, or medical or scientific

research conducted therein. Each room in which tobacco

smoking is permitted must comply with the signage

requirements in s. 386.206.

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Appendix C

(6) Customs smoking room.—A customs smoking room in

an airport in- transit lounge under the authority and control

of the Bureau of Customs and Border Protection of the United ~

States Department of Homeland Security subject to the

restrictions contained in s. 386.205.

FCIAA Fila. Sat. § 386.205 Customs smoking rooms.—

A customs smoking room may be designated by the person

in charge of an airport in-transit lounge under the authority

and control of the Bureau of Customs and Border Protection

of the United States Department of Homeland Security. A

customs smoking room may only be designated in an airport

in-transit lounge under the authority and control of the Bureau

of Customs and Border Protection of the United States

Department of Homeland Security. A customs smoking room

may not be designated in an elevator, restroom, or any

common area as defined by s. 386.203. Each customs

smoking room must conform to the following requirements:

(1) Work, other than essential services defined in s.

386.203(6), must not be performed in the room at any given

time.

(2) Tobacco smoking must not be permitted in the room

while any essential services are being performed in the room.

(3) Each customs smoking room must be enclosed by

physical barriers that are impenetrable by secondhand tobacco

smoke and prevent the escape of secondhand tobacco smoke

into the enclosed indoor workplace.

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Appendix C

(4) Each customs smoking room must exhaust tobacco smoke

directly to the outside and away from air intake ducts, and be

maintained under negative pressure, with respect to surrounding

spaces, sufficient to contain tobacco smoke within the room.

(5) Each customs smoking room must comply with the signage

requirements in s. 386.206.

FCIAA Fla. Sat. § 386.206 Posting of signs; requiring

policies.—

(1) The proprietor or other person in charge of an enclosed

indoor workplace must develop and implement a policy

regarding the smoking prohibitions established in this part. The

policy may include, but is not limited to, procedures to be taken

when the proprietor or other person in charge witnesses or is

made aware of a violation of s. 386.204 in the enclosed indoor

workplace and must include a policy which prohibits an

employee from smoking in the enclosed indoor workplace. In

order to increase public awareness, the person in charge of an

enclosed indoor workplace may, at his or her discretion, post

“NO SMOKING” signs as deemed appropriate.

(2) The person in charge of an airport terminal that includes a

designated customs smoking room must conspicuously post,

or cause to be posted, signs stating that no smoking is permitted

except in the designated customs smoking room located in the

customs area of the airport. Each sign posted pursuant to this

section must have letters of reasonable size that can be easily

read. The color, design, and precise locations at which such

Signs are posted shall be left to the discretion of the person in

charge of the premises.

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Appendix C

(3) The proprietor or other person in charge of an enclosed

indoor workplace where a smoking cessation program,

medical research, or scientific research is conducted or

performed must conspicuously post, or cause to be posted,

Signs stating that smoking is permitted for such purposes in

designated areas in the enclosed indoor workplace. Each sign

posted pursuant_to this section must have letters of reasonable

size which can be easily read. The color, design, and precise

locations at which such signs are posted shall be left to the

discretion of the person in charge of the premises.

* * * *