In October 2006, the City of Houston (our client) adopted an ordinance prohibiting smoking in public places and places of employment with few, very limited exceptions (the “Ordinance”).  Less than a month before it was slated to become effective, Plaintiffs – a bar and an association of bars that would be covered by the Ordinance – filed suit against the City alleging that the Ordinance was preempted by the Texas Alcoholic Beverage Code and that it was void for vagueness on its face under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.  Plaintiffs sought a preliminary injunction prohibiting the City from enforcing the Ordinance pending the outcome of a trial on the merits.

At the end of a day-long evidentiary hearing, U.S. District Judge Gray Miller ruled from the bench and denied the application for a preliminary injunction.  The court found that Plaintiffs failed to prove any of the elements required for a preliminary injunction by a preponderance of the evidence.  First, the court held that Plaintiffs had failed to show a substantial likelihood of success on the merits, as the Ordinance was not unconstitutionally vague, was not preempted by the Texas Alcoholic Beverage Code, and was well within the City’s power to protect the health and safety of its citizens.  Second, the court held that Plaintiffs had failed to show irreparable harm, as their anecdotal evidence that they feared a loss of business if patrons were forbidden to smoke in their establishments was speculative and insufficient to meet their burden of proof.  Third, the court held that the balance of harms did not favor granting the injunction, because the harm to the public interest outweighed the speculative economic harm claimed by Plaintiffs, particularly in light of the City’s evidence of studies showing that smoking bans have no significant economic impact on the hospitality industry and studies showing that there is no safe level of second-hand smoke.  Fourth, the court held that enjoining enforcement of the Ordinance would disserve the public interest given the serious, adverse impact of smoking and second-hand smoke.