Defiance: NM Roswell Ban Suit

New Mexico City files second motion against CRC smoke suit

Shannon Goble
Record Staff Writer
December 12, 2004

The city of Roswell has filed a second motion to dismiss the Citizens’ Rights Committee lawsuit against the city delaying the temporary injunction hearing that was slated to be heard before Friday.

The CRC filed the lawsuit against the city Aug. 10 stating the Smoke-Free Air Act of 2004 is hurting some businesses and may cause them to shut down.

It also stated it violates the First, Fourth and 14th Amendments to the U.S. Constitution “in that the rights to assemble, be free from unreasonable taking of property without just compensation, be free from unreasonable searches and seizures, and to be afforded procedural and substantive due process.”

The first motion to dismiss the CRC’s lawsuit, that asks for a temporary restraining order of the ordinance, was filed by the city Sept. 9.

Michael Stout, CRC’s attorney, said when the first motion to dismiss was filed from the city, the CRC agreed to file another complaint rather than fight the motion.

The first motion to dismiss stated the plaintiff – the CRC – is an “unincorporated” organization and does not have standing to challenge the “constitutionality” of the ordinance on its own behalf or its members. It also states the CRC’s alleged claims that the ordinance has caused economic loss is not backed up by facts to show that the CRC has a “personal stake” in the lawsuit.

The CRC then refiled their complaint Oct. 28, this time naming particular members of the CRC – Brenda McKenzie of Variety Liquor and Lounge, Billy Ray of Billy Ray’s Restaurant and Lounge, and Neal Roe of Peppers Grill and Bar – that states their businesses have incurred economic loss because of the ordinance.

In response to the new complaint, the city filed a second motion to dismiss Nov. 19, delaying the hearing. The second motion adds that the newly named plaintiffs also lack the standing to challenge the ordinance.

Stout said the city’s lawyers, Rodey, Dickason, Sloan, Akin and Robb, P.A., a firm in Albuquerque, keep filing motions to delay the hearing.

“Our goal is to get to the merits of the case to have the judge hear the case so we can reach a conclusion on the case,” Stout said. “Apparently, the defense is to try to keep that hearing from happening so they are filing motions to keep from having the hearing.”

Andrew Schultz, the city’s attorney, declined comment on the case.

The second motion also states the CRC has not shown proof that the plaintiffs have lost business or that they are on the “brink of losing their businesses” due to the ordinance.

In November, Marilyn Wynn, manager of Variety on West Second Street, told the Daily Record the bar has lost about 40 percent of its business since the ordinance was implemented. She said at the rate business is going, they may have to close down.

Stout added the CRC just wants the case to be heard so a judge can decide if the ordinance is constitutional.

“The people of Roswell are not having their case determined very quickly,” Stout said. “Which ever way the case goes, I think everybody would prefer that it be heard on the merits so that people can know and businesses can know how they should act with respect to the ordinance.”

The CRC’s complaint also asks for a judgment that would declare the ordinance unconstitutional and unenforceable, and the city pay for the CRC’s attorney fees and any other relief the court may deem fair.

The Roswell City Council passed the ordinance in May, citing second-hand smoke as a significant health problem to residents in public places. In a 1986 report, the Surgeon General warned second-hand smoke causes illness and death in non-smokers.

The ordinance, which began Aug. 1, outlaws smoking in all enclosed public places including restaurants, bars, patios attached to restaurants and fraternal organizations such as the Elks Lodge.

In addition, it forbids smoking in public transportation vehicles, malls, theaters and places of employment. Smoking is also prohibited within 10 feet of any public entrance outside a building where smoking is prohibited.

Larry Loy, Roswell’s Special Services administrator, said the city receives about one complaint a week from residents who see individuals smoking in non-smoking areas, but the city has not given any citations.
http://www.roswell-record.com/archives/121204/news06.html

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