This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
U Otter Stop Inn, Inc.,
d/b/a U Otter Stopp Inn, et al.,
The City of
Filed March 28, 2006
Hennepin County District Court
File No. 05-7572
Randall D.B. Tigue, Randall Tigue Law Office, P.A.,
Jay M. Heffern, Minneapolis City Attorney, James A. Moore, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent)
Considered and decided by Worke, Presiding Judge; Wright, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s denial of a temporary injunction suspending the enforcement of a smoking ban in Minneapolis, appellant establishments argue that (1) they made a sufficient showing of irreparable economic injury for which respondent city will be immune from damages; (2) they made a sufficient showing that they are likely to prevail on the merits of their claim that the Minneapolis anti-smoking ordinance contains an exception for areas in which smoking is permitted under the Minnesota Clean Indoor Air Act; and (3) any security for the injunction should be waived. We affirm.
D E C I S I O N
The sole issue before us
is whether the district court abused its discretion in denying appellants’
motion for a temporary injunction. “A
decision on whether to grant a temporary injunction is left to the discretion
of the [district] court and will not be overturned on review absent a clear
abuse of that discretion.” Carl
Bolander & Sons Co. v. City of
This court considers five factors in
determining whether the district court abused its discretion in denying a
temporary injunction: (1) the nature and relationship of the parties; (2) the
balance of relative harm between the parties; (3) the likelihood of success on
the merits; (4) public policy considerations; and (5) any administrative burden
involving judicial supervision and enforcement.
The first Dahlberg factor requires the court to consider the nature and relationship of the parties. The district court determined that the nature of the parties’ relationship did not affect the outcome. Appellants are business establishments operating in respondent city. Appellants sought to preclude respondent from enforcing its anti-smoking ordinance. The district court did not abuse its discretion in ruling that the relationship of the parties did not either favor or disfavor granting the temporary injunction.
The second Dahlberg factor requires the court to balance the relative harm between the two parties. The district court determined that appellants made a strong showing that they would suffer serious economic injury if the anti-smoking ordinance remained in effect. Conversely, the district court determined that respondent would suffer little, if any, harm because not enforcing the ordinance would put respondent in the position it was in before the ordinance became effective.
A party seeking temporary injunctive relief
must establish that an injunction is necessary “to prevent great and
Appellants argue, however, that respondent
could claim discretionary immunity, thereby leaving appellants without an
adequate remedy at law. Whether a party
has an adequate remedy at law is a legal question that this court reviews de
novo. ServiceMaster of
Appellants also argue that they are harmed because their patrons are forced to smoke outside and may be subject to traffic accidents, and increased loitering will increase violence. The district court determined that appellants’ argument regarding safety concerns failed for two reasons. First, appellants produced no evidence that any safety-related injuries actually occurred. Second, appellants failed to demonstrate that there was not another outdoor area available in which patrons could smoke. There is no evidence in the record to show that appellants’ patrons experienced safety-related injuries or that crime increased. Thus, the district court did not abuse its discretion in determining that appellants’ argument failed. See Bolander, 502 N.W.2d at 209 (stating that in order for relief to be granted, the moving party must offer more than a “mere statement that it is suffering or will suffer irreparable injury”).
Appellants also argue that lost revenues will
result in a significant reduction in charitable gambling revenues. The district court determined that this
consequence was remote and incidental and that respondent did not owe a duty to
appellants’ charitable recipients. Because
the Dahlberg factors compare the moving party’s harm if the injunction is denied to the nonmoving party’s harm if the injunction is granted, the
district court did not abuse its discretion in determining that respondent did
not owe a duty to a third party. See Eason
v. Indep. Sch. Dist. No. 11, 598 N.W.2d 414, 417 (Minn. App.
1999) (citing Dahlberg, 272
The third Dahlberg factor requires the court to consider the likelihood of
success on the merits. This court does
not decide the merits of the case on appeal from a motion for a temporary injunction,
but the likelihood of success is one of the Dahlberg
factors that this court reviews. Miller, 317 N.W.2d at 713. Probability of success in the underlying
action is a “primary factor” in determining whether to issue a temporary
Appellants argue that they are likely to
prevail on the merits. The district
court concluded that appellants were not entitled to the requested relief
because appellants’ likelihood of success on the merits was “very slight at
best.” Evaluating appellants’ likelihood
of success on the merits requires this court to review the city’s
indoor-smoking ordinance and applicable statutes. The interpretation of an existing ordinance
is a question of law, Frank’s Nursery Sales, Inc. v. City of
Roseville, 295 N.W.2d 604, 608 (
The indoor-smoking ordinance states that “[s]moking is prohibited in bowling
alleys and pool and billiard halls and liquor and food establishments.”
The CIAA states: “Smoking areas may be
designated by proprietors or other persons in charge of public places, except in places in which smoking is
prohibited by the fire marshal or by other law, ordinance or rule.” Minn. Stat. § 144.415 (emphasis added). Appellants contend that the CIAA expressly
authorizes smoking in designated areas and that the ordinance permits smoking
in locations expressly authorized by statute; thus, the ordinance permits
smoking in the bars appellants designated as smoking areas. But the CIAA does not expressly authorize smoking in designated areas. The CIAA provides that smoking may be permitted except when prohibited
by an ordinance. The ordinance prohibits
smoking in bowling alleys and pool and billiard halls and liquor and food
establishments. Furthermore, the
Minnesota Health Department Rules implementing the CIAA, which are read in
conjunction with the CIAA, state that nothing in the rules interpreting the
CIAA “shall be construed to affect smoking prohibitions imposed by the fire
marshal or other laws, ordinances, or regulations or to affect the right of
building owners or operators to designate their premises as smoke-free.”
The fourth Dahlberg factor requires the court to contemplate public-policy considerations. Appellants argue that safety issues and charitable concerns affect public-policy considerations. Respondent counters that the public-health concern regarding the effects of second-hand smoke is the reason the ordinance was enacted. The district court determined that arguments regarding policy concerns were not determinative because they were overpowered by the express language of the statute. The district court did not abuse its discretion in determining that public-policy considerations were not determinative.
Finally, the fifth Dahlberg factor requires the court to consider administrative burdens involving judicial supervision and enforcement. The district court determined that there would not be any excessive administrative burden. The parties do not challenge this conclusion. And our review establishes that the district court did not abuse its discretion in determining that the administrative burden would not be excessive.
Because the district court did not clearly abuse its discretion in determining that despite appellants’ showing of serious economic injury appellants would not likely succeed on the merits and the other three Dahlberg factors were neutral, we conclude that the district court did not abuse its discretion in denying appellants’ motion for a temporary injunction.
Appellants argue that security should be waived in the event a temporary injunction is granted. Under Minn. R. Civ. P. 65.03(a) “[n]o temporary restraining order or temporary injunction shall be granted except upon the giving of security by the applicant[.]” But the district court denied appellants’ motion for a temporary injunction, thus we do not need to address this issue.