A05-1335

U Otter Stop Inn, Inc.,

d/b/a U Otter Stopp Inn, et al.,

Appellants,

vs.

The City of Minneapolis,

Respondent.

Filed March 28, 2006

Affirmed

Worke, Judge

Hennepin County District Court

File No. 05-7572

Randall D.B. Tigue, Randall Tigue Law Office, P.A., 3960 Minnehaha Avenue South, Suite 100, Minneapolis, MN 55406 (for appellants)

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

WORKE, Judge

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 Minneapolis, 502 N.W.2d 203, 209 (Minn. 1993). We consider the facts in the 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 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. Id. at 220-21; Dahlberg Bros., Inc. 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. 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 irreparable injury.” Minn. Twins, 638 N.W.2d at 222. To be granted relief, the moving party must offer more than a “mere statement that it is suffering or will suffer irreparable injury[.]” Bolander, 502 N.W.2d at 209. “Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence [of a temporary injunction], are not enough.” Miller v. Foley,317 N.W.2d 710, 713 (Minn. 1982) (quotation omitted). Generally, the injury must be of such a nature that money damages alone would not provide adequate relief. Morse, 458 N.W.2d at 729-30. Relying on affidavits provided by appellants, the district court determined that it was possible that some, if not all, appellants would eventually go out of business. Appellants’ economic injuries, however, can be adequately compensated with monetary damages and this is generally insufficient to establish irreparable harm. See Miller, 317 N.W.2d at 713.

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 St. Cloud v. GAB Bus. Servs., Inc., 544 N.W.2d 302, 305 (Minn. 1996). Appellants cite Minn. Stat. § 466.03, subds. 5, 6 (2004), as authority under which respondent could assert immunity. Local governmental entities are subject to liability for their torts. Minn. Stat. § 466.02 (2004). Immunity is granted, however, for “[a]ny claim based upon an act or omission of an officer or employee, exercising due care, in the execution of a valid or invalid statute, charter, ordinance, resolution, or rule.” Minn. Stat. § 466.03, subd. 5. Immunity is also available for “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” Minn. Stat. § 466.03, subd. 6. But appellants fail to articulate any underlying tort claim that would trigger respondent’s immunity. Minnesota law does not support appellants’ assertion that the availability of an immunity defense necessarily renders a claimant devoid of an adequate legal remedy.

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 Minn. at 274-75, 137 N.W.2d at 321-22). The district court did not abuse its discretion in determining that appellants would suffer severe economic harm but would not be harmed by safety-related concerns or reductions in charitable gambling revenues.

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 injunction. Minneapolis Fed’n of Teachers v. Minneapolis Pub. Schs., 512 N.W.2d 107, 110 (Minn. App. 1994), review denied (Minn. Mar. 31, 1994). Even when a petitioner makes a strong showing of irreparable harm, a district court should not grant a temporary injunction where the petitioner has demonstrated no likelihood of success on the merits. Sanborn Mfg. Co. v. Currie, 500 N.W.2d 161, 165 (Minn. App. 1993).

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 (Minn. 1980), and statutory construction is a question of law which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

The indoor-smoking ordinance states that “[s]moking is prohibited in bowling alleys and pool and billiard halls and liquor and food establishments.” Minneapolis, Minn., Code of Ordinances § 234.20 (2004). Not included in the prohibition are hotel or motel guest rooms, outdoor spaces, locations where smoking is expressly authorized by state or federal law or rule, or the use of tobacco as part of a recognized religious ritual or activity. Id. The ordinance was drafted with the intent that it would complement the Minnesota Clean Indoor Air Act (CIAA), Minn. Stat. §§ 144.411-.417 (2004). Minneapolis, Minn., Code of Ordinances § 234.70 (2004).

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.” Minn. R. 4620.0050 (2005). Moreover, an attorney general opinion states that the Minnesota legislature addressed smoking in 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). While not determinative on its own, the opinion of the attorney general is entitled to great weight. N. States Power Co. v. Williams, 343 N.W.2d 627, 632 (Minn. 1984). Given the language of the city’s ordinance, the CIAA, and the attorney general’s opinion, the district court did not abuse its discretion in determining that appellants failed to establish a likelihood of success on the merits.

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.

Affirmed.