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Ex parte Woodall

Court of Appeals of Texas, Eighth District, El Paso

December 9, 2004

EX PARTE: PHYLLIS WOODALL

          Appeal from 384th District Court of El Paso County, Texas (TC# 20030D00623)

          Before Panel No. 4 Barajas, C.J., Larsen, and McClure, JJ.

          OPINION

          ANN CRAWFORD McCLURE, JUSTICE

         Phyllis Woodall appeals from an order denying habeas corpus relief. At issue is the facial constitutionality of the municipal anti-smoking ordinance. We affirm.

         FACTUAL SUMMARY

         In 2001, the City of El Paso adopted an ordinance which prohibits smoking in all enclosed public places within the city, including food establishments, nightclubs, and bars. El Paso, Tex., Code § 9.50.030(7)(2001). It is unlawful for any person to smoke in any area where smoking is prohibited. El Paso, Tex., Code § 9.50.130(B)(2001). It is also unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this chapter to fail to comply with all of its provisions. El Paso, Tex., Code § 9.50.130(A)(2001). A person who is found guilty of violating the anti-smoking ordinance is subject to the following punishment:

1. A fine not exceeding one hundred dollars for the first violation;
2. A fine not exceeding two hundred dollars for a second violation within a one year period of the first violation;
3. A fine not exceeding five hundred dollars for an additional violation within a one year period of the first violation.

         El Paso, Tex., Code § 9.50.130(C)(1)-(3) (2001).

         The City of El Paso enacted the ordinance for three stated purposes: (1) to improve and protect public health by eliminating smoking in public places and places of employment; (2) to guarantee the right of nonsmokers to breathe smoke-free air; and, (3) to recognize that the need to breathe smoke-free air shall have priority over the choice to smoke. El Paso, Tex., Code § 9.50.010 (2001).

         Woodall is part-owner of the Naked Harem Nightclub in El Paso and the land on which it is located. Prior to adoption of the City's anti-smoking ordinance, Woodall had permitted both employees and patrons to smoke in the restrooms [1] of the nightclub. On January 21, 2003, Woodall was smoking in the club when Officer Lance Lanahan of the El Paso Police Department approached and asked her to extinguish the cigarette. When Woodall refused, Lanahan issued her a citation for violating the ordinance by smoking in an enclosed public place. [2] Lanahan did not observe anyone else smoking a cigarette in the nightclub. Woodall signed a promise to appear before a municipal court judge.

         Woodall subsequently filed an application for writ of habeas corpus in district court challenging the constitutionality of the anti-smoking ordinance. The district court issued the writ, but after conducting a hearing on ...


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