D.A.B.E., Inc. v. City of Toledo
United States Court of Appeals for the Sixth Circuit 393 F.3d 692 (2005)

The City Council for the City of Toledo, Ohio, passed the Clean Indoor Air Ordinance, No. 509-03, which regulated smoking in public places, including restaurants and bars. A number of bar, restaurant, and bowling alley owners came together as D.A.B.E., Inc., to sue the City of Toledo. D.A.B.E. argued the Clean Indoor Air Ordinance constituted a regulatory taking of their property in violation of the Fifth and Fourteenth Amendments. The district court denied D.A.B.E.'s motions for relief, and D.A.B.E. appealed.

Judge Martin
I
Ordinance No. 509-03 regulates the ability to smoke in public places, such as retail stores, theaters, courtrooms, libraries, museums, health care facilities, and-most relevant to the instant case-restaurants and bars. In enclosed public places, smoking is generally prohibited except in a "separate smoking lounge" that is designated for the exclusive purpose of smoking and that satisfies the following criteria:
1. it cannot constitute more than 30 percent of the total square footage of space to which the public is invited;

2. it must be completely enclosed on all sides by floor-toceiling walls;

3. it must have a separate ventilation system not used by the nonsmoking portion of the establishment;

4. it must not incorporate the sole path to or from the restrooms, to or from the nonsmoking portion of the establishment, or into or out of the building or waiting areas.

5. it cannot be located in an area where employees are required to work.

The ordinance provides for a 120-day exemption within which an establishment may construct a smoking lounge meeting these requirements.

II
We review for abuse of discretion the district court's denial of appellants'request for injunctive relief; within this standard, the district court's legal conclusions are reviewed de novo and its factual findings are upheld unless clearly erroneous. With regard to appellants' request for a declaration that the Clean Indoor Air Ordinance is "void and unenforceable," the district court's legal conclusions are subject to de novo review.

A. Regulatory Taking Claim
The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, provides that private property shall not "be taken for public use, without just compensation." "The Supreme Court has recognized two categories of takings: regulatory and physical." Appellants allege the former. Furthermore, their attack on the ordinance is limited to a facial challenge, which requires them to prove that the "mere enactment" of the ordinance constitutes a taking of their property. According to the Supreme Court, the test to be applied in considering facial challenges such as this one is "fairly straightforward." Under that test, "[a] statute regulating the uses that can be made of property effects a taking if it denies an owner economically viable use of his land."Sustaining such a facial challenge is a "heavy burden."

The evidence presented in this case fails to establish that, on its face, the Clean Indoor Air Ordinance denies appellants "economically viable use"of their respective properties. Appellants have submitted affidavits alleging that they have lost-or fear they will lose-customers as a result of the ordinance, because smoking is an activity in which many customers wish to engage while patronizing their establishments. Even if true, however, those allegations are simply not enough to satisfy appellants' burden of proof.

In Hodel [v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981)], the Supreme Court held that the Surface Mining Control and Reclamation Act did not, on its face, effect a regulatory taking because of three features of the Act: first, it did not, "on its face, prevent beneficial use of coal-bearing lands"; second, it did not "categorically prohibit surface coal mining" but "merely regulate[d] the conditions under which such operations may be conducted"; and third, it did not "purport to regulate alternative uses to which coal-bearing lands may be put." The same factors that compelled the Court's conclusion in Hodel apply in this case. First, there is nothing on the face of the Clean Indoor Air Ordinance that prevents the "beneficial use"of appellants'property.

To the contrary, the ordinance has absolutely no effect on any aspect of appellants' businesses other than to restrict the areas in which appellants' patrons may smoke. Second, the ordinance does not "categorically prohibit" smoking inside appellants' establishments; it "merely regulates the conditions under which" smoking is permitted. We recognize that the construction of separate smoking lounges in most cases will require some financial investment, but an ordinance does not effect a taking merely because compliance with it "requires the expenditure of money." Finally, for obvious reasons, the ordinance does not "purport to regulate alternative uses" of appellants' respective properties. Therefore, pursuant to Hodel, it is clear that appellants have failed to establish that the Clean Indoor Air Ordinance, on its face, effects a regulatory taking of their property.

Affirmed in favor of the Defendant, City of Toledo.

CRITICAL THINKING ABOUT THE LAW
1. What reasons does Judge Martin use to support his conclusion?
Clue: First identify the issue and conclusion, then find the support offered for why the conclusion drawn is appropriate.

2. Upon which ethical norm does Judge Martin's opinion most rely?
Clue: What ethical norm would support D.A.B.E.'s argument that the Clean Indoor Air Ordinance constitutes a regulatory taking?