City of Tucson v. Grezaffi

23 P.3d 675, 200 Ariz. 130
CourtCourt of Appeals of Arizona
DecidedMay 15, 2001
Docket2 CA-CV 00-0172
StatusPublished
Cited by14 cases

This text of 23 P.3d 675 (City of Tucson v. Grezaffi) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Tucson v. Grezaffi, 23 P.3d 675, 200 Ariz. 130 (Ark. Ct. App. 2001).

Opinion

OPINION

PELANDER, J.

¶ 1 Appellant Molly Grezaffi, owner of a Tucson restaurant called Molly G’s, challenges the constitutionality of the City of Tucson’s restaurant smoking ordinance, Tucson Code § 11-19. We conclude that the ordinance is facially valid.

BACKGROUND

¶ 2 In October 1999, Grezaffi was cited on a civil infraction for having violated Code § 11-19(E)(2) which, inter alia, prohibits restaurant owners from allowing persons to smoke in restaurants except in a designated smoking area and from allowing smoke to diffuse or drift from a designated smoking area into a nonsmoking area. After an evi-dentiary hearing, a Tucson City Court magistrate found Grezaffi responsible, imposed a fine or community service, and ordered her to abate the violation. Pursuant to A.R.S. § 22-425(B) and applicable rules, 1 Grezaffi appealed to superior court, which, after briefing and oral argument, denied the appeal. This appeal followed.

DISCUSSION

¶3 Although Grezaffi raises four issues on appeal, jurisdictional constraints limit our review to only one: the constitutionality of Code § 11-19. Section 22-375, A.R.S., permits an appeal from a superior court’s final judgment in an action appealed from a municipal court only in limited circumstances, including actions that involve “the validity of a ... municipal fine or statute.” Our review, however, is strictly limited to the facial validity of the ordinance at issue. See State v. Jean, 98 Ariz. 375, 376, 405 P.2d 808, 809 (1965); State v. Watson, 198 Ariz. 48, ¶ 5, 6 P.3d 752, ¶5 (App.2000). Our jurisdiction does not extend to examining the application of the ordinance to an individual defendant. Watson. See also State v. McLamb, 188 Ariz. 1, 4, 932 P.2d 266, 269 (App.1996); State v. Bolan, 187 Ariz. 159, 160, 927 P.2d 819, 820 (App.1996).

¶4 Thus, we do not address Grezaffi’s various contentions that Code § 11-19 is invalid as applied to her because she allegedly was operating a “private club” rather than a public restaurant when the City cited her; that the evidence presented at the City Court hearing was insufficient to support the magistrate’s ruling, see State v. Jacobson, 121 Ariz. 65, 67, 588 P.2d 358, 360 (App.1978), overruled on other grounds, Levitz v. State, 126 Ariz. 203, 613 P.2d 1259 (1980); or that the City’s ordinances that govern appointment and retention of city magistrates are invalid and deprived her of “a fair hearing from an impartial tribunal.” 2 And, although Grezaffi contends the ordinance violates a laundry list of various provisions in the United States and Arizona Constitutions, we address only those arguments that she at least *134 minimally supports with “reasons” and authoritative “citations,” as Rule 13(a)(6), Ariz. R. Civ.App. P., 17B A.R.S., requires. 3 See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) (“In Arizona, opening briefs must present significant arguments, supported by authority, setting forth an appellant’s position on the issues raised.”); Brown v. United States Fidelity & Guar. Co., 194 Ariz. 85, ¶ 50, 977 P.2d 807, ¶ 50 (App.1998).

¶ 5 The constitutionality of an ordinance is a question of law subject to our de novo review. City of Tucson v. Rineer, 193 Ariz. 160, ¶ 12, 971 P.2d 207, ¶ 12 (App.1998). The party challenging the validity of an ordinance has the burden of overcoming a strong presumption that it is constitutional. Id. See also City of Phoenix v. Oglesby, 112 Ariz. 64, 65, 537 P.2d 934, 935 (1975). When a reasonable, even though debatable, basis supports an ordinance, we will uphold the ordinance unless it is clearly unconstitutional. See In re Brandon H., 195 Ariz. 387, ¶ 8, 988 P.2d 619, ¶ 8 (App.1999).

¶ 6 The ordinance at issue, Code § 11-19, was adopted in 1999 and is entitled, “Regulation of smoking in restaurants.” With certain exceptions not applicable here, the ordinance provides that “[a]ll restaurants shall be smokefree.” Code § 11-19(B). The ordinance defines “restaurant” as follows:

Restaurant means a facility regularly open for the primary purpose of serving food prepared for consumption, either on or off the premises, to customers for compensation, including those that also serve alcoholic beverages from an accessory bar. For purposes of this section only, a “restaurant” shall have annual gross revenue from the sale of food exceeding fifty (50) percent for every consecutive twelve (12) month period. Excluding, however, food such as appetizers, snacks, and other food products consumed in an accessory bar which the owner chooses to designate as a smoking area under this section.

Code § 11-19(A)(5). 4 As noted in ¶ 2 above, the ordinance, inter alia, makes it “unlawful and a civil infraction for any person who owns, manages, operates, or otherwise controls a restaurant or facility regulated by [§ 11-19] to ... [a]llow[ ] a person to smoke in a restaurant except in an area designated as a smoking area” or to “[a]lIow[] smoke from a designated smoking area to diffuse or drift into a non-smoking area.” Code § 11-19(E)(2)(a), (b).

I. Authority to Adopt Ordinance

¶ 7 Grezaffi contends “the City’s attempt to address the perceived health issue of smoking in food establishments by adoption of [§ 11-19] is ultra vires and therefore invalid,” arguing the City lacks lawful authority to promulgate health rules or regulations. None of the statutes on which Grezaffi relies, A.R.S. §§ 36-132, 36-182, 36-184, supports her argument. Those statutes, which relate only to the powers, duties, and procedures of the Arizona Department of Health Services and county health departments, do not expressly or implicitly invalidate the ordinance here.

¶ 8 As a charter city, the City of Tucson “may exercise all powers granted by its charter, provided that the exercise is not inconsistent with either the constitution or general laws of the state.” Rineer, 193 Ariz. 160, ¶ 2, 971 P.2d 207, ¶ 2. Pursuant to its charter, the mayor and city council are empowered to “make all regulations which may be necessary or expedient for the preservation of the health and the suppression of *135 disease” and to “adopt and enforce by ordinance all such measures ...

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Bluebook (online)
23 P.3d 675, 200 Ariz. 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-tucson-v-grezaffi-arizctapp-2001.