Roark & Hardee v. City of Austin, 522 F.3d 533 (5th Cir. 2008)

You are here

Status: Closed

Legal Issue

Whether implementation language in a local smoke-free ordinance was unconstitutionally vague.


Several bars challenged Austin’s smoke-free ordinance that required operators of public places to take “necessary steps” to prevent another person from smoking in an enclosed area in a public place – a provision the challengers said was unconstitutionally vague. The ordinance set out certain steps such as posting “no smoking” signs and removing ashtrays. The district court found the provision unconstitutionally vague and permanently enjoined the City of Austin from enforcing it.

On March 8, 2007, the Tobacco Control Legal Consortium filed an amicus brief supporting the City of Austin, arguing that the U.S. District Court erred in October 2006 when it found that the term “necessary steps” was unconstitutionally vague for failing to spell out in detail the steps a business must take to implement the law. We argued that the permanent injunction should be reversed because of the need to hold accountable proprietors who fail to prevent smoking in public places.

Our brief was written by Cliff Douglas, Executive Director of the University of Michigan Tobacco Research Network, and was joined by five other national public health organizations.


On March 27, 2008, the court upheld Austin’s smoke-free ordinance, finding it provided adequate notice of the actions it required operators of public places to take and an ascertainable standard of guilt for inspectors.  The court minced no words in rejecting the bar owners’ claim, noting pointedly that “from this evidence, we find it apparent that, most of the time, the only ‘steps’ taken were in trying to find a loop-hole to avoid enforcing the ordinance. Such behavior is a clear violation of the ‘necessary steps’ provision.”

Case Documents & Information

Case Documents