This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-637

 

Earl C. Hill Bloomington Post 550, et al.,

Appellants,

 

vs.

 

City of Bloomington,

Respondent,

 

City of Minneapolis,

Respondent,

 

County of Hennepin,

Respondent.

 

Filed February 21, 2006

Affirmed; motion granted in part

Kalitowski, Judge

 

Hennepin County District Court

File No. 05-3733

 

Ryan M. Pacyga, Pacyga & Associates, P.A., 980 Inwood Avenue North, Woodbury, MN 55128 (for appellants)

 

David R. Ornstein, Bloomington City Attorney, 1800 West Old Shakopee Road, Bloomington, MN 55431 (for respondent City of Bloomington)

 

Jay M. Heffern, Minneapolis City Attorney, Peter W. Ginder, Deputy City Attorney, Burt T. Osborne, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402-2453 (for respondent City of Minneapolis)

 

Amy Klobuchar, Hennepin County Attorney, Mark V. Chapin, Assistant County Attorney, A2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County)

 

            Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellants are establishments that are challenging the district court’s decision denying their motion for a temporary injunction to enjoin enforcement of ordinances that ban smoking in certain public places.  Respondents made a motion to strike parts of appellants’ brief and appendix.  We affirm and grant in part respondents’ motion to strike. 

D E C I S I O N

I.

The primary 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 trial court and will not be overturned on review absent a clear abuse of that discretion.”  Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn. 1993).  We consider the facts in a light most favorable to the prevailing party.  Metro. Sports Facilities Comm’n v. Minn. Twins P’ship., 638 N.W.2d 214, 220 (Minn. App. 2002), review denied (Minn. Feb. 4, 2002). 

This court considers five factors in determining whether a temporary injunction should be granted:  (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.  Id. at 220-21 (citing Dahlberg Bros. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965)). 

Because an injunction is an equitable remedy, the party seeking an injunction must demonstrate that there is no adequate legal remedy and that the injunction is necessary to prevent irreparable harm.  Cherne Indus., Inc., v. Grounds & Assocs., Inc.,278 N.W.2d 81, 92 (Minn. 1979).  Generally, the failure to show irreparable harm is, by itself, a sufficient ground for denying a temporary injunction.  Morse v. City of Waterville, 458 N.W.2d 728, 729 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). 

The first Dahlberg factor requires the court to consider the nature and relationship of the parties.  Dahlberg, 272 Minn. at 274, 137 N.W.2d at 321.  The district court found, and the parties do not dispute, that the relationship between and among the parties neither favors nor disfavors injunctive relief.  Appellants are establishments doing business in either Minneapolis or Bloomington, Minnesota.  Both Bloomington and Minneapolis are located within Hennepin County, Minnesota.  Respondents are the City of Bloomington, Minnesota; the City of Minneapolis, Minnesota; and Hennepin County, Minnesota.  By filing their motion, appellants sought to preclude respondents from enforcing their ordinances that prohibit smoking in certain public places.  See Hennepin County, Minn., Ordinance No. 24 § 2.02 (2004) (amended 2005);Bloomington, Minn., City Code ch. 12, § 12.81(a) (2004); Minneapolis, Minn., Code of Ordinances § 234.20 (2004).  We conclude that the district court did not clearly abuse its discretion in finding that the parties’ relationship did not favor or disfavor granting a temporary injunction here. 

The district court also found that respondent Hennepin County’s ordinance does not apply to appellants.  A county board of health “has the powers and duties of a board of health for all territory within its jurisdiction not under the jurisdiction of a city board of health.”  Minn. Stat. § 145A.04, subd. 1 (2004).  Here, respondents City of Minneapolis and City of Bloomington have formed their own health boards.  Accordingly, Hennepin County lacked regulatory authority over appellants, each of which is located in either Minneapolis or Bloomington.  The district court properly determined that the Hennepin County ordinance did not apply to appellants. 

The second Dahlberg factor requires a district court to balance the relative harm between the two parties.  Dahlberg, 272 Minn. at 274-75, 137 N.W.2d at 321.  The district court found that the relative hardship criterion did not favor the issuance of a temporary injunction because appellants failed to demonstrate irreparable harm.  Here, appellants’ anticipated injuries were economic.  And injuries, however substantial, that can be adequately compensated with monetary damages are generally insufficient to establish irreparable harm.  Miller v. Foley,317 N.W.2d 710, 713 (Minn. 1982). 

Appellants argue that respondents could claim discretionary immunity, thereby leaving appellants without an adequate remedy at law.  But Minnesota law does not support appellants’ assertion that the availability of an immunity defense necessarily renders a claimant devoid of an adequate legal remedy.  And appellants neither cite the authority under which respondents could assert a potential immunity claim nor articulate the underlying cause of action that would trigger respondents’ immunity.  In light of the procedural posture of this case and the state of the record before us, we cannot conclude that the district court abused its discretion in finding that the relative harm factor weighed against granting a temporary injunction. 

The third Dahlberg factor requires the court to consider the likelihood of success on the merits.  Dahlberg, 272 Minn. at 275, 137 N.W.2d at 321.  Appellants claim that the Minnesota Clean Indoor Air Act (CIAA), Minn. Stat. §§ 144.411–.417 (2004), precludes respondents’ ordinances.  The district court disagreed, finding that this factor weighed heavily against granting a temporary injunction because appellants failed to show a likelihood of success on the merits.  The purpose of the CIAA is “to protect the public health, comfort and environment by prohibiting smoking in areas where children or ill or injured persons are present, and by limiting smoking in public places and at public meetings to designated smoking areas.”  Minn. Stat. §§ 144.411, 144.412.  The CIAA further 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.

Where smoking areas are designated, existing physical barriers and ventilation systems shall be used to minimize the toxic effect of smoke in adjacent nonsmoking areas.  In the case of public places consisting of a single room, the provisions of this law shall be considered met if one side of the room is reserved and posted as a no smoking area.  No public place other than a bar shall be designated as a smoking area in its entirety.  If a bar is designated as a smoking area in its entirety, this designation shall be posted conspicuously on all entrances normally used by the public.

 

Minn. Stat. § 144.415 (emphasis added).  And nothing in the rules interpreting the CIAA “shall be construed to affect smoking prohibitions imposed by the fire marshal or other law, ordinances, or regulations or to affect the right of building owners or operators to designate their premises as smoke-free.”  Minn. R. 4620.0050 (2005).  Moreover, an attorney general opinion states that the Minnesota legislature addressed smoking in restaurants and other public places through the CIAA “while expressly preserving the power of local government to impose more stringent smoking limitations.”  Op. Att’y Gen. 62b (May 4, 2000).  Although opinions of the attorney general are not binding on the courts, they are helpful and entitled to consideration.  State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991).  Given the language of the CIAA and the attorney general’s opinion interpreting it, we conclude that the district court did not abuse its discretion in finding that appellants failed to establish a likelihood of success on the merits. 

            The fourth Dahlberg factor requires the district court to contemplate the public policy considerations in granting or denying a temporary injunction.  Dahlberg, 272 Minn. at 275, 137 N.W.2d at 321-22.  Without making findings on the health effects of smoking itself, the district court noted that respondents conducted extensive investigations and hearings before enacting their ordinances.  The district court found that public policy considerations favored respondents.  Appellants argue that public policy favors protecting appellants’ rights under the CIAA and promoting business interests, jobs, tax revenue, and economic growth.  Respondents assert that the public is best served when it is free from exposure to second-hand smoke.  Taking the facts in a light most favorable to respondent, the district court did not clearly abuse its discretion by finding that public policy favors respondents. 

            Finally, the fifth Dahlberg factor requires the district court to consider administrative burdens involving judicial supervision and enforcement.  Dahlberg, 272 Minn. at 275, 137 N.W.2d at 322.  The district court stated, and the parties do not dispute, that this factor neither favors nor disfavors relief.  And the record provides no evidence of an unreasonable administrative burden if the temporary injunction were granted.  Thus, the district court did not abuse its discretion by finding that this factor weighed neither in favor nor against granting the injunction.

Because the district court did not clearly abuse its discretion in finding that three of the Dahlberg factors disfavored issuance of the injunction and that the other two factors were neutral, we conclude that the district court did not abuse its discretion by denying appellants’ motion for temporary injunction. 

II.

Respondents moved to strike parts of appellants’ brief and appendix pertaining to affidavits and a case out of Hennepin County District Court.  Generally, this court will not consider evidence outside the district court record and will strike documents in a brief that are not part of the appellate record.  State v. Dalbec, 594 N.W.2d 530, 533 (Minn. App. 1999).  The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.”  Minn. R. Civ. App. P. 110.01. 

Here, appellants included in the appendix to their brief nine affidavits completed after the district court’s March 25, 2005 order denying appellants’ motion for temporary injunction.  Because those affidavits were not part of the district court record, respondents’ motion to strike those affidavits is granted.

The Hennepin County District Court’s order contained in appellants’ appendix was also entered after the district court’s order here.  But a reviewing court may consider cases, statutes, rules, and publicly available articles that were not presented to the district court.  Fairview Hosp. Health Care Servs. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 340 n.3 (Minn. 1995).  Therefore, we deny respondents’ motion to strike the court order from appellants’ appendix and brief.         

            Affirmed; motion granted in part.