Opinion
C.A. No. 04A-10-002 RBY.
Submitted: May 17, 2005.
Decided: August 1, 2005.
Upon Request for Judicial Review of Decision of Division of Public Health. AFFIRMED.
Ronald G. Poliquin, Esquire, Young, Malmberg Howard, P.A., Dover, Delaware for the Petitioners.
Kevin R. Slattery, Esquire, Deputy Attorney General, Wilmington, Delaware, for the Respondent.
OPINION
Infante Enterprises, Inc., t/a Bull Dozers Saloon, Frank Infante and Wyatt Infante ("Petitioner") request judicial review of certain provisions of Delaware's Clean Indoor Air Act, 16 Delaware Code, Chapter 29, pursuant to a Writ of Certiorari, following a decision from the Director of the Delaware Division of Public Health, Department of Health and Social Services ("DPH"). The Director's decision found Petitioner in violation of the Clean Indoor Air Act ("CIAA") and imposed a $100.00 civil, administrative penalty. The following is the Court's opinion regarding that request.
The Court finds that the Petitioner has not carried its burden of proof, and has not shown that the CIAA is invalid on its face. Neither has the Petitioner shown that DPH does not have the statutory authority to enforce the CIAA against businesses as well as individuals. The Director's decision is, therefore, affirmed.
STATEMENT OF FACTS AND PROCEDURAL POSTURE
On or about May 23, 2003, the Director of DPH issued a notice of violation to Petitioner alleging a third violation of the CIAA, and assessing an administrative penalty of $500.00. DPH alleged that Petitioner violated the CIAA by permitting customers and employees to smoke tobacco products in its indoor, enclosed establishment on May 8, 2003.
The CIAA, 16 Del. C. § 2903 provides:
Except as is provided in § 2904 of this title, and in order to reduce the levels of exposure to environmental tobacco smoke, smoking shall not be permitted and no person shall smoke in any indoor enclosed area to which the general public is invited or in which the general public is permitted. . . .
On June 9, 2003, Petitioner requested an Administrative Hearing related to the notice of violation. On February 20, 2004, the matter was heard before an Administrative Hearing Officer ("Hearing Officer"). The Department of Justice elected to pursue only the alleged violation of May 8, 2003. The facts, as set forth by the Hearing Officer, alleged that, on May 8, 2003, two inspectors from DPH conducted an inspection of Bull Dozers. The inspectors arrived at around 7:30 p.m. They observed the activity in the bar for approximately thirty minutes. During her observation, one of the inspectors witnessed the bartender leave his post, sit at the bar and smoke a cigarette for approximately ten minutes. The inspector also noticed a patron in the bar sitting at a table with a pack of Marlboro cigarettes, smoking a cigarette. The inspector testified that she smelled tobacco smoke in the bar as distinguished from smoke from herbal cigarettes (which are sold at Bull Dozers). The inspector further testified that the bartender did not make any effort to stop the patron from smoking.
The Hearing Officer issued her Report and Recommendation on May 3, 2004. The Hearing Officer found that the DPH inspector offered the only evidence as to what was being smoked on May 8, 2003 in Bull Dozers Saloon. Based on her findings and conclusions, the Hearing Officer found Bull Dozers Saloon to be in violation of the CIAA. She recommended that a $100.00 administrative penalty for a first violation be imposed, rather than the $500.00 penalty.
Hearing Officers Report, at 20.
On May 6, 2004, the Acting Director of DPH adopted the Hearing Officer's Report and Recommendation, issuing her order assessing a $100.00 administrative penalty against Petitioner.
Petitioner filed its Petition in this matter on October 4, 2004, seeking judicial review by the Superior Court via a Writ of Certiorari.
STANDARD OF REVIEW
In order for a Writ of Certiorari to issue, four requirements must be met: 1) the judgment below was final; 2) the right of appeal was denied; 3) there is no other available basis for review; and 4) the petition presents a "question of grave public policy and interest." If these threshold qualifications are not met, the Court has no jurisdiction to hear the petitioner's claims, and the proceedings will be dismissed. Even if these threshold requirements are met, the Court, on certiorari review, may not review claims that require weighing of evidence. The Court's scope of review is "generally confined to jurisdictional matters, error of law or irregularity of proceedings which appear on the face of the record."
Shoemaker v. State, 375 A.2d 431, 437-38 (Del. 1977) (citing Becker v. State, 185 A. 92, 96 (Del.Super.Ct. 1936)).
In re Butler, 609 A.2d 1080, 1081(Del. 1992).
Id. (citing Castner v. State, 311 A.2d 858 (Del. 1973)).
Id. (citing Goldstein v. City of Wilmington, 598 A.2d 149, 152 (Del. 1991)).
DISCUSSION
DPH does not dispute that the Director's order commanding Petitioner to pay a $100.00 administrative penalty was a final order. Nor does DPH dispute that neither any statute nor any provision of the Regulations provides a right of further review beyond the decision of the Director of DPH. As such, the only means by which the Superior Court may review the Director's decision is through a Writ of Certiorari. Therefore, the first three threshold requirements for granting a Writ of Certiorari have been satisfied. The final threshold requirement involves deciding whether this petition involves a question of "grave public policy and interest."Petitioner argues that there are numerous questions of grave public policy involved in this petition, including a challenge to the facial validity of the CIAA. Most of Petitioner's claims, however, essentially ask the Superior Court to re-examine the findings of the DPH Hearing Officer. For example, Petitioner challenges the Hearing Officer's decision that the product actually being used in the saloon was tobacco. This challenge, however, to the extent that it is not spurious, exceeds the strict limits placed on a reviewing court on a writ of certiorari. The Superior Court may not re-weigh the facts of the case. Neither may the Superior Court review the record to examine the Hearing Officer's determination that the Petitioner did not comply with the requirements of the CIAA.
See Butler, 609 A.2d at 1081.
Id. at 1083 (holding that the Court could not review transcript of proceedings below on certiorari).
The remaining questions appropriate for review on certiorari are: 1) Whether the CIAA is facially valid; and 2) Whether DPH has jurisdiction to enforce the CIAA against Petitioner. The Court concludes that, given the public debate surrounding the effort of the state to provide for clean indoor air to the public, as well as its far-reaching implications, these remaining questions can be said to involve issues of significant public policy. Hence, the matter is appropriate for certiorari review.
I. Constitutionality of the CIAA
Petitioner challenges the facial validity of the CIAA on the basis that it violates the Equal Protection of the Laws as granted by the Delaware Constitution. Unless a statutory classification involves a fundamental right or draws distinctions based on a suspect classification, the constitutionality of the statute is presumed. The classification need only relate rationally to a legitimate state interest. The Petitioner does not argue that the CIAA creates a suspect classification. Nor does the Petitioner appear to argue that the CIAA violates a fundamental right. Therefore, the Court's inquiry is "confined to whether the legislative decision is rationally related to any legitimate governmental objective or purpose." The Petitioner has the burden to show that there can be no rational basis for the challenged law.
Prices Corner Liquors, Inc. v. Delaware Alcoholic Beverage Control Commission, 705 A.2d 571, 575 (Del. 1998); see also Abrams v. State, 689 A.2d 1185, 1188 (Del. 1997).
Prices Corner, 705 A.2d at 575; see also Lowicki v. Unemployment Ins. Appeal Bd., 460 A.2d 535, 539 (Del. 1983).
Kelley v. Johnson, 425 U.S. 238, 247 (1976).
The gravamen of Petitioner's challenge to the validity of the CIAA is that there is no legitimate purpose for the exception in 16 Del. C. § 2904(6) for fraternal organizations. Petitioner argues that the distinction between fraternal organizations and business organizations is false, showing that there is no rational relation between the law and its purpose, which is "to preserve and improve the health, comfort and environment of the people of this State by limiting exposure to tobacco smoke." Petitioner argues that the detrimental health effects of smoking are universal. Therefore, Petitioner says, the effects would be the same on individuals in fraternal organizations as they would on patrons in a business. Petitioner further argues that no other health regulation makes such exceptions for fraternal organizations. So, the Petitioner claims, the exception for fraternal organizations is arbitrary and capricious.
The rational basis test is the most favorable to the State of the various standards of review. In fact, courts rarely find that a law does not pass the low hurdle of a rational basis analysis. Further, the Superior Court is not a super-legislature. As long as there is a rational basis for a classification bearing a reasonable relationship to a legitimate, conceivable purpose, the legislative classification is valid. The conceivable legislative objective need not be the basis actually used by the legislature. In fact, such a basis for the legislative act is "entirely irrelevant" because the legislature is not required to articulate its reasons for enacting a statute. Courts are even permitted to hypothesize as to whether there might be any rational basis to support an act by a legislative body.
Williamson v. New Castle County, 2003 Del. Ch. LEXIS 14, at *17 n. 25.
Prices Corner, 705 A.2d at 575.
Id.
See FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).
See generally Williamson v. Lee Optical Co., 348 U.S. 483, 490 (1955) (speculating as to the legislature's possible motives for enacting a statute regulating visual care). Accord Operation Badlaw, Inc. v. Licking County, 866 F.Supp. 1059, 1064-65 (S.D. Ohio 1992); Freedman v. Longo, 1994 Del. Ch. LEXIS 145, at *16 ("Any conceivable reason for the legislation, even one conjured up by the Court itself, will suffice to provide a rational basis for the regulation.").
The General Assembly's stated purpose in enacting the CIAA was "to preserve and improve the health, comfort and environment of the people of this State by limiting exposure to tobacco smoke." The General Assembly also expressly noted that:
[A] balance should be struck between the health concerns of nonconsumers of tobacco products and the need to minimize unwarranted governmental intrusion into and regulation of private spheres of conduct and choice with respect to the use or nonuse of tobacco products in certain designated public areas and in private places.
Id.
Presumably, then, the General Assembly's unwillingness to restrict smoking in fraternal organizations reflects a desire not to invade too far into the privacy rights of the citizens of Delaware and, perforce, of these private, not-for-profit groups. This exception for fraternal organizations is, in the Court's view, reasonably related to the General Assembly's legitimate desire to avoid intruding too far into the private sphere of conduct.
The description of this threshold basis for validity is certainly not a comment upon the margin by which the State cleared the bar in creating the Clean Indoor Air Act. It merely indicates the State's Constitutional obligation, which is met.
Further, equal protection does not require that the legislature eradicate all evils or none at all. A legislature may even intentionally prohibit some evil in a piecemeal fashion if it so chooses. Accordingly, the General Assembly may regulate smoking in certain areas and not others. Based on these considerations, the Court finds that Petitioner has failed to carry its burden of showing that there is no rational basis for the CIAA.
Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110 (1949).
See, e.g. Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610 (1935).
II. DPH's Jurisdiction Under the CIAA
A. Must Petitioner Prevent Indoor Smoking?
The Petitioner contends that the language of the CIAA does not require operators and employees of indoor business establishments regulated by the CIAA to enforce the CIAA. The Petitioner further argues that it fully complied with the provisions of the CIAA by posting signs, setting up table tents, affixing a window sticker, installing a digital display and handing out pamphlets, all notifying the patrons of Bull Dozers that smoking was not allowed inside. Petitioner argues it had no duty actively to prevent smoking in the saloon. Petitioner maintains that "[t]o require Appellants' management or staff to enforce the regulations of DPH is to mandate that a private employer act as the enforcement agent of the State." Petitioner also contends that to force such compliance "smacks of involuntary servitude."
Petitioner's Opening Brief at 11.
Id.
DPH does not argue that the Petitioner is required to enforce the CIAA; rather it argues that Petitioner actively "permitted" the patron in the bar to smoke in violation of the CIAA. DPH further notes that its investigator also observed one of the Petitioner's employees smoking tobacco inside the bar.
The plain language of the CIAA, as well as its legislative history, indicates that the law was intended to be enforced against establishments and individuals. The text of the CIAA states that "smoking shall not be permitted and no person shall smoke in any indoor enclosed area to which the general public is invited or in which the general public is permitted. . . ." Thus, the statute specifically instructs both that smoking shall not be permitted; and that no individual shall smoke. The plain language of the statute, therefore, indicates that the legislature intended to prevent individuals from smoking in certain indoor areas and that such smoking should not be permitted in such indoor areas.
The State also notes that House Bill 258 ("H.B. 258"), which would have provided that "fines assessed pursuant to 16 Del. C. § 2907(a) are applicable to individual smokers rather than the businesses within which they smoke," was defeated in the General Assembly on June 30, 2003. The State contends that the defeat of this bill indicates that the General Assembly meant to apply such fines to businesses in which smoking was permitted. In the Court's estimation, the State is correct. In interpreting a statute, a court appreciates any signs of legislative intent, given the usual dearth of such information. The defeat of H.B. 258 certainly suggests that the General Assembly considered the possibility that the CIAA was to be enforced against business owners. The General Assembly's express defeat of this bill indicates that it, at the least, contemplated that the CIAA could be enforced against business owners, and clearly did not disapprove of such an outcome.
The State notes, further, that there are other laws, such as liquor laws, that impose similar burdens on business owners and operators. For example, the General Assembly has placed the burden of active compliance on establishments with liquor licenses not to serve alcoholic beverages to persons already intoxicated. In the Court's view, this is an appropriate analogy. The same, minimal, burdens are placed on owners of such establishments not to allow under-age individuals to purchase or consume liquor in their establishments. That duty is more complicated than the duty placed on owners of establishments under the CIAA, who are required merely to prohibit interior smoking across the board.
Therefore, at the very least by discernable implication, the CIAA requires that operators and employees of indoor business establishments not permit smoking.
B. Is DPH the Proper Authority to Assess Fines Against Businesses Under the CIAA?
Petitioner contends that, even if the CIAA is enforceable against an establishment, the Division of Public Health does not have statutory authority to enforce the CIAA against employers and employees.
A regulatory agency is entitled to substantial deference in a suit challenging the agency's actions. Title 29, section 10141(e) of the Delaware Code states that:
Upon review of regulatory action, the agency action shall be presumed to be valid and the complaining party shall have the burden of proving either that the action was taken in a substantially unlawful manner and that the complainant suffered prejudice thereby, or that the regulation, where required, was adopted without a reasonable basis on the record or is otherwise unlawful.
The presumption, therefore, strongly favors the actions of DPH. The Petitioner must shoulder the substantial burden of showing either that the regulatory action taken by DPH was unlawful, or that the regulation itself is unlawful.
Petitioner contends that, according to the plain language of the CIAA, DPH does not have authority to regulate the conduct of employers, which would include obligating an employer to enforce the CIAA against the patrons of its establishment. Petitioner asserts that, under the CIAA's implementation provision, § 2906, DPH, as a division of Department of Health and Social Services, has authority only to "adopt rules and regulations as are necessary and reasonable to implement remaining provisions of this chapter not affecting employers, employees and the work place." Petitioner argues that this plain, statutory language grants authority to the Department of Labor to adopt rules affecting "employers employees, places of employment and the work place" but expressly limits the authority of DPH, restricting DPH from regulating employers and employees.
16 Del. C. § 2906(b) (emphasis added).
The Petitioner further maintains that the DPH regulation requiring managers and employees of establishments to enforce the CIAA also goes beyond the scope of the CIAA. The regulation in question, Regulation 99.202, provides that:
No owner of any indoor enclosed area subject to 16 Delaware Code Chapter 29 and/or person(s) responsible for the management of such area or employee thereof, shall permit or authorize smoking by any person(s) in areas not designated specifically for the smoking of tobacco products. . . .
Delaware Health and Social Services, Reg. § 99.202 (2003) (emphasis added).
DPH responds that the Department of Health and Social Services previously dealt with the issue of the extent of its authority under the CIAA, concluding that it had the authority "to require responsible parties to take reasonable steps to prevent smoking in non-smoking indoor enclosed areas." DPH argues that the General Assembly had the opportunity to challenge this interpretation of the statute but chose not to. In addition, DPH argues that it has the authority under the statute to regulate cases "involving places of public accommodation (e.g., bars, taverns, restaurants, etc . . .) that would typically fall within its purview to regulate in the areas of health and public safety." According to DPH's interpretation of the statute, the Department of Labor regulates the relationship between employers and employees, while DPH has authority to regulate a business establishment's relationship with the general public.
Delaware Register of Regulations, Vol. 6, Issue 5 (Nov. 1, 2002), at 657.
Respondent's Answering Brief, at 14.
Id.
The Court finds DPH's interpretation of the statute persuasive. The Department of Labor's authority under the CIAA, consistent with its traditional function, is to regulate the employer-employee relationship. The DPH, consistent with its traditional role, may regulate a business establishment's relationship with the general public as far as that relationship affects the health and safety of the public. If the Court were to follow the Petitioner's argument, DPH could not regulate any establishments where workers are employed. Therefore, the Court finds DPH's interpretation of the CIAA most logical and persuasive. Accordingly, DPH's assessment of a fine against Petitioner was within its jurisdiction under the CIAA, and the Director's decision will be upheld.
Finally, the Petitioner's "potentially dangerous confrontations" argument lacks merit. The Petitioner argues that, as a matter of safety, owners and operators of establishments should not be required to enforce the CIAA for fear that an abusive patron might harm the employees of the establishment. As noted previously, tavern owners (and people in virtually all commercial endeavors, for that matter) are called upon often to confront illegal activity in their establishments. This argument, then, even in the abstract, is specious. Indeed, the Delaware Register of Regulations describes an orderly, non-threatening process for dealing with an unruly customer; although that would hardly seem necessary, since it appears to be the process anyone using common sense would employ. Further, this argument is particularly weak in this instance: for example, the un-refuted testimony is that the bartender (who was an employee of the Petitioner, and who should have been attending to compliance, rather than creating a violation) was smoking in the bar.
Delaware Register of Regulations, Vol. 6, Issue 5 (Nov. 1, 2002), at 656-57.
CONCLUSION
Therefore, because the Petitioner has failed to carry its burden to show either that the CIAA is facially invalid or that DPH did not have statutory authority to fine Petitioner, the decision of the DPH Director is AFFIRMED.