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The Trophy Room v. City of St. Louis

Court of Appeals of Missouri, Eastern District, First Division

September 19, 2017

THE TROPHY ROOM, et al., Appellants,
CITY OF ST. LOUIS, Respondent.

         Appeal from the Circuit Court of the City of St. Louis 1522-CC11362 Honorable David L. Dowd.

          LISA P. PAGE, JUDGE.

         The City of St. Louis Smoke Free Air Act of 2009[1] ("Ordinance") prohibits smoking in public places and places of employment through the City of St. Louis ("City"), but exempts certain places or facilities from that prohibition. The issues presented in this appeal are whether the Ordinance prohibits smoking in The Trophy Room, Inc. ("Trophy Room") and, if it does, whether the prohibition is constitutional. We affirm.


         The facts of this matter are not disputed. In November 2009, by a vote of 20-7, the City's Board of Aldermen[2] approved the Ordinance.

         A. The City of St. Louis Smoke Free Air Act of 2009

         The Ordinance at issue was enacted for the broad and explicit purposes of protecting the public health of the City and enhancing the promotion of "a smoke free city through the elimination of the presence of secondhand smoke in public places and in the workplace[.]" See Ordinance 68481. Comprised of sixteen separate sections, the Ordinance broadly prohibits smoking in St. Louis City. Specifically, Section 4 of the Ordinance unequivocally prohibits smoking in "all enclosed public places within the City of St. Louis, " including, but not limited to:

3. Bars, except where smoking is not regulated as defined in Section Seven.
4. Bingo facilities.
9. Gaming facilities, except casino gaming areas as outlined in Section Seven.
16. Restaurants.

Id. at § 4.

         Limited and narrow exceptions to the Ordinance's prohibition on smoking are set forth in Section 7. Id. at § 7. One exemption allows for smoking in "[b]ars in existence on the effective date of the ordinance in which only persons aged twenty one (21) years or older are permitted to enter the premises, " and the square footage of said bar was 2000 square feet or less. Id. at § 7 ¶ 7 (hereinafter, "Bar Exemption"). However, the Bar Exemption expired five years after the effective date of the Ordinance. Id. Another Section 7 exemption exists for "casino gaming areas, " which does not expire. Id. at § 7 ¶ 6.

         Section 2 of the Ordinance sets forth fifteen definitions for words and phrases employed therein. Id. at § 2. The Ordinance defines "casino gaming areas" as "the area of a state-licensed gambling facility where gaming is allowed for those 21 years of age or older, including any VIP lounge, accessible only through the game floor, whether or not gaming is allowed in the VIP lounge." Id. at § 2 ¶ 3. "Public place" is defined as "an enclosed area to which the public is invited or in which the public is permitted, including but not limited to, banks, bars, educational facilities, gaming facilities, health care facilities . . . restaurants . . . and waiting rooms." Id. at § 2 ¶ 9.[3] "Bar" is defined as "an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of those beverages, including but not limited to, taverns, nightclubs, cocktail lounges, and cabarets." Id. at § 2 ¶ 1.

         Failure of a public place or place of employment to abide by the Ordinance may result in a $100 fine for the first violation, a $200 fine for the second violation, and a $500 fine for each ensuing violation. Id. at § 12. Furthermore, in addition to the prospect of these fines, a violation of the Ordinance may also result in the suspension or revocation of any other permit or licenses issued by the City. Id.

         The Ordinance incorporates a severability provision in Section 14, which reads:

The sections, conditions, and provisions of this Ordinance or portions thereof shall be severable. If any section, condition, or provision of this Ordinance or portion thereof contained herein is held invalid by the court of competent jurisdiction, such holding shall not invalidate the remaining sections, conditions, or provisions of this Ordinance.

Id. at § 14.

         Finally, Section 16 of the Ordinance (hereinafter, "Sunset Provision") provides for an immediate elimination of the "casino gaming area" exemption set forth in Section 7. Id. at § 16. Section 16 reads, in toto, as follows:

In the event that St. Louis County, and St. Charles County or the City of St. Charles, or the State of Missouri pass ordinances prohibiting smoking in casino gaming areas, the exemption to the smoking regulation contained in Section Seven herein shall be rescinded. Provided, however, that if and when smoking is allowed in casino gaming areas in either Madison or St. Clair Counties, in Illinois, the exemption to the smoking regulation contained in Section Seven herein shall be allowed.


         Upon the Mayor's execution, the Ordinance became effective on January 2, 2011. Accordingly, the Bar Exemption expired on January 2, 2016.

         B. Trophy Room

         Incorporated under the laws of Missouri in July 1997, the Trophy Room is a small bar located at the corner of Arsenal Street and Brannon Avenue in south St. Louis City. Herbert Krischke ("Krischke") has been the president of the Trophy Room since its incorporation. Krischke continues to own, manage, and operate the establishment. The Trophy Room is open to the public for 21 hours per day Monday through Saturday and for 16 hours on Sundays.

         Patrons of the Trophy Room may partake in a wide variety of alcoholic beverages, a limited assortment of food, and entertainment (jukebox, pinball, darts, and pool table). Since its inception in 1997, the Trophy Room has always permitted its patrons to smoke.[4] Additionally, at the time of the litigation, only those patrons 21 years of age or older were permitted on the premises of the Trophy Room.

         Pursuant to the Bar Exemption, Trophy Room submitted an application and was exempted from complying with the smoking ban until January 2, 2016. In December 2015, Trophy Room attempted to pursue a "casino gaming area" exemption by applying for a license from the Missouri State Lottery Commission to operate "Club Keno"[5] in order to avoid compliance with the smoking ban. The license was granted. Trophy Room was required to properly train certain employees, as well as install certain equipment (video monitors, Club Keno cards, Club Keno machines, etc.).

         C. Procedural History

         On December 24, 2015, a mere week before its Bar Exemption was to expire, Trophy Room sought declaratory and injunctive relief against the City in its Second Amended Petition, contending that it met the definition of "casino gaming area" under the Ordinance (Count I). Specifically, Trophy Room claimed that simply being granted a Club Keno license by the Missouri State Lottery Commission conferred "casino gaming area" status upon the establishment, so as to permanently avoid the smoking ban.

         In the alternative, Trophy Room sought a declaratory judgment arguing the entire Ordinance was unconstitutional. Specifically, Trophy Room asserted the Ordinance contravened certain sections of the Missouri Constitution in that: (1) the Ordinance violated the Privileges and Immunities Clause of the Missouri Constitution (Count III); (2) the Ordinance violated the Special Laws Clause the Missouri Constitution (Count V); (3) Section 16 of the Ordinance, the Sunset Provision, was void for vagueness (Count VII); and (4) Section 16 of the Ordinance, the Sunset Provision, was an unlawful delegation of legislative authority (Count VIII).[6]

         After Trophy Room's Second Amended Petition was presented on stipulated facts and the testimony of Krischke, the trial court entered its Judgment, Order and Decree ("Judgment") in favor of the City on Counts I, III, and V, and dismissed Counts VII and VIII for lack of a justiciable controversy.

         This ...

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