Read Roark & Hardee LP v. City of Austin, 06-51670

In a suit seeking a declaratory judgment and injunctive relief relating to the enforcement of the City of Austin's ordinance prohibiting smoking in enclosed public places, the district court's judgment that the "necessary steps" provision of the ordinance was unconstitutionally vague on its face and grant of a permanent injunction preventing the city from enforcing the provision is reversed where: 1) the ordinance did not threaten to inhibit constitutionally protected conduct; 2) plaintiffs failed to demonstrate that the "necessary steps" provision is so indefinite as to provide them with no standard of conduct at all; 3) the district court abused its discretion in issuing a permanent injunction preventing enforcement of the provision. Injunction against other portions of the statute and denial of plaintiffs' motion for attorney's fees are affirmed.

Appellate Information

• Decided 03/28/2008
• Published 03/28/2008

Judges

• KING, Circuit Judge:, Before KING, DeMOSS and SOUTHWICK, Circuit Judges.

Court

• United States Fifth Circuit

Counsel

• For Appellant:
  
• Jennifer Scott Riggs, Riggs & Aleshire, Austin, TX, for GMC Investment, Inc., Canary Roost, Inc., Canary Hut, Inc. and Gail Johnson., Meghan Lee Riley (argued), Lynn Ellen Carter, City of Austin Law Dept., Austin, TX, for City of Austin., B. Craig Deats, Deats, Durst, Owen & Levy, Austin, TX, Clifford E. Douglas, Ann Arbor, MI, for Tobacco Control Legal Consortium, Am. Heart Ass'n, Am. Cancer Soc., Am. Lung Ass'n, Campaign for Tobacco-Free Kids and Americans for Nonsmokers Rights, Amici Curiae.


• For Appellees:
  
• Marc Aron Levin (argued), Potts & Reilly, Austin, TX, for Plaintiffs-Appellees.