Appeal from Douglas district court; JACK A. MURPHY judge.
1. An appellate court review of whether a city ordinance is preempted by statute, like interpretation of statutes and ordinances, is a question of law; the standard of review is therefore unlimited.
2. The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. An appellate court must give effect to that intent, which the legislature is initially presumed to have expressed through the language it used. When language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.
3. A test frequently used to determine whether conflict exists between the terms of an ordinance and a statute is whether the ordinance permits or licenses that which the statute forbids or prohibits that which the statute authorizes; if so, there is conflict. However, where both an ordinance and the statute are prohibitory and the only difference is that the ordinance goes further in its prohibition but not counter to the prohibition in the statute, and the city does not attempt to authorize by the ordinance that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict.
4. An appellate court's standard of review of a constitutional challenge to an ordinance is de novo. The party asserting unconstitutionality, however, has a weighty burden. This is because an appellate court has a duty to preserve the validity of an ordinance and to search for ways to uphold its constitutionality. The court must presume that the ordinance is constitutional, resolve all doubts in favor of validity, and uphold the ordinance if there is any reasonable way to construe it as constitutional; before striking the ordinance, the court must conclude that it clearly appears to be unconstitutional.
5. Although an appellate court reviews de novo a constitutional challenge to an ordinance, attacks based upon vagueness require additional considerations. First, the ordinance must convey sufficient definite warning and fair notice as to the prohibited conduct in light of common understanding and practice. Second, the ordinance must also adequately guard against arbitrary and discriminatory enforcement.
6. An appellate court reviews the grant or denial of injunctive relief for an abuse of discretion. The party alleging the error has the burden of showing the abuse of discretion.
7. Among the factors a moving party must establish before obtaining a temporary injunction is a substantial likelihood of eventually prevailing on the merits.
8. Among the factors a moving party must establish before obtaining a permanent injunction is to actually prevail on the merits.
9. Under the facts of this case, the district court did not err in concluding that the city's ordinance regulating smoking is not preempted by state law and is not unconstitutionally vague. The court did not err in denying injunctive relief.
The opinion of the court was delivered by: Nuss, J.
Bar owner Dennis Steffes was cited for violating the Lawrence city ordinance regulating smoking in public places. He appeals the district court's denial of his request to declare the ordinance invalid and to enjoin its enforcement. Our jurisdiction is pursuant to K.S.A. 20-3018(b) (transfer from the Court of Appeals on Steffes' motion).
The issues on appeal, and this court's accompanying holdings, are as follows:
1. Did the district court err in concluding that K.S.A. 21-4010 does not preempt the ordinance? No.
2. Did the district court err in concluding that ordinance Sections 9-810 and 9-812 are not unconstitutionally vague? No.
3. Did the district court err in denying injunctive relief? No.
As a result, the district court is affirmed.
On May 11, 2004, the City Commission for the City of Lawrence (City) passed Ordinance No. 7782 regulating smoking. The ordinance's stated purpose was to "(1) improve and protect the public's health by eliminating smoking in public places of employment; (2) guarantee the right of nonsmokers to breathe smoke-free air; and (3) recognize that the need to breathe smoke-free air shall have priority over the choice to smoke." The ordinance, which consisted of Sections 9-801 through 9-814, took effect July 1, 2004.
Subject to several exclusions found in Section 9-807, the ordinance prohibited smoking in public places (Section 9-803) and places of employment (Section 9-804). It also imposed certain obligations upon the "owner, manager, or other person having control of such building or other areas where smoking is prohibited . . . ."
On July 18, 2005, Dennis Steffes, business owner of Tremors, Inc., doing business as the bars Coyotes and Last Call, petitioned the district court for declaratory judgment and injunctive relief prohibiting the City from enforcing the ordinance. He argued that the ordinance was both unconstitutionally vague and preempted by state law. The petition recited that Steffes was cited on September 1, 25, 29, and October 23, 2004, for allegedly (1) failing to provide a smoke-free workplace for employees and (2) failing to prohibit smoking inside of a bar. Steffes noted that he was found not guilty in all but one case. He also asserted that he lost "approximately 40% in sales."
On September 20, 2005, the City amended the ordinance. The enforcement Section, 9-810, reads as follows:
"(A) The Fire Chief or his or her designated agent shall be responsible for enforcing the provisions of this Article within the City, but nothing in this section shall be interpreted to prohibit any other person who would otherwise be lawfully entitled to enforce the provisions of this Article from taking enforcement action under this Article.
"(B) Notice of the provisions set forth in this Article shall be given to all applicants for a City retail liquor or drinking establishment license.
"(C) Any person may register a complaint under this Article to initiate enforcement with the fire chief.
"(D) The Lawrence-Douglas Fire & Medical Department, the Lawrence Police Department, the Lawrence-Douglas County Health Department, and the Codes Enforcement Division of the Department of Neighborhood Resources Department shall, while an establishment is undergoing otherwise mandated inspections, inspect for compliance of this Article.
"(E) Any owner, manager, operator or employee of any premises regulated by this Article shall be responsible for informing persons violating this Article of the provisions through appropriate signage."
The City's September 2005 action also amended the ordinance's violations and penalties Section, 9-812, to read:
"(A) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this Article to fail to comply with all of its provisions.
"(B) It shall be unlawful for any person who owns, manages, operates or otherwise controls any premises subject to regulation under this Article to allow smoking to occur where prohibited by this Article. Any such person allows smoking to occur under this subsection if he or she:
"1. has knowledge that smoking is occurring, and;
"2. acquiesces to the smoking under the totality of ...