Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of the City of St. Louis 1522-CC11362
Honorable David L. Dowd.
P. PAGE, JUDGE.
City of St. Louis Smoke Free Air Act of 2009
("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.
facts of this matter are not disputed. In November 2009, by a
vote of 20-7, the City's Board of Aldermen approved the
The City of St. Louis Smoke Free Air Act of 2009
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
4. Bingo facilities.
9. Gaming facilities, except casino gaming areas as outlined
in Section Seven.
Id. at § 4.
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.
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. "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.
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
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.
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.
the Mayor's execution, the Ordinance became effective on
January 2, 2011. Accordingly, the Bar Exemption expired on
January 2, 2016.
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.
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. 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.
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" 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.).
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.
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
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