Roark & Hardee LP v. City of Austin ( 2008 )

  •                  REVISED APRIL 24, 2008
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit
                                                               March 27, 2008
                                 No. 06-51670               Charles R. Fulbruge III
    ROARK & HARDEE LP, doing business as Warehouse Saloon & Billiards;
    PUB DRAUGHT INC., doing business as Lovejoys Tap Room & Brewery;
    JOSEPH CHIP TAIT; GMC INVESTMENT INC, doing business as Ego’s;
                                          Plaintiffs - Appellees
                                          Defendant - Appellant
                               Consolidated with
                                 No. 07-50441
    ROARK & HARDEE LP, doing business as Warehouse Saloon & Billiards;
    PUB DRAUGHT INC., doing business as Lovejoys Tap Room & Brewery;
                                          Plaintiffs - Appellants
                                          Defendant - Appellee
                                         No. 06-51670
                      Appeals from the United States District Court
                        for the Western District of Texas, Austin
                                 USDC No. 1:05-CV-837
    Before KING, DeMOSS, and SOUTHWICK, Circuit Judges.
    KING, Circuit Judge:
            Plaintiffs are owners of stand-alone bars in Austin, Texas. They filed this
    action against the City of Austin seeking a declaratory judgment and injunctive
    relief relating to the enforcement of Austin’s ordinance prohibiting smoking in
    enclosed public places, including bars, restaurants, and workplaces. The district
    court     declared   the   “necessary    steps”     provision   of   the   ordinance
    unconstitutionally vague on its face and permanently enjoined the City of Austin
    from enforcing it. The City of Austin appeals the district court’s judgment and
    injunction, arguing that: (1) the case is nonjusticiable because plaintiffs lack
    standing and their claims are not ripe; (2) the “necessary steps” provision is not
    unconstitutionally vague; and (3) the district court abused its discretion in
    permanently enjoining the enforcement of the “necessary steps” provision. Some
    plaintiffs have also appealed the district court’s denial of their motion for
    attorneys’ fees. Plaintiffs’ appeal has been consolidated with the City of Austin’s
            We REVERSE that portion of the district court’s judgment declaring the
    “necessary steps” provision of the ordinance unconstitutionally vague, VACATE
    the provision of the permanent injunction enjoining enforcement of said
    provision, and otherwise AFFIRM the judgment. We also AFFIRM the district
    court’s denial of attorneys’ fees.
                                                No. 06-51670
            On May 7, 2005, the citizens of Austin, Texas adopted the “Smoking in
    Public Places” ordinance (the “ordinance”) by way of a ballot initiative.1 The
    purpose of the ordinance is to protect persons in public places and employees in
    their occupational environments from second-hand smoke. The ordinance took
    effect on September 1, 2005, and its principal goal is to prohibit smoking in all
    “public place[s]” within the City of Austin (the “City”). AUSTIN, TEX., CODE
    ch. 10-6.
            The ordinance defines “public place” broadly to include any “enclosed area
    to which the public is invited or in which the public is permitted.”2 Id. § 10-6-
    1(6).       This definition includes bars and restaurants and is subject to few
    exceptions. See § 10-6-3. The ordinance expands the City’s prior smoking
    ordinance, which gave those bars and restaurants with substantial revenue
    from the sale of alcoholic beverages the option of obtaining a permit to allow
    smoking. The new ordinance abolishes this permit option.
             As the district court pointed out, the fact that the ordinance was enacted via the voter
    initiative process placed the City in an unusual posture. The City Charter provides that an
    ordinance adopted via initiative cannot be amended or repealed until it has been in effect for
    two years. AUSTIN CITY CHARTER, art. IV, § 6. Therefore, the City is in the position of
    defending the ordinance “as is” even though the City did not draft or enact it.
                The full definition states:
                      PUBLIC PLACE means 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, health care
                      facilities, laundromats, public transportation facilities, reception
                      areas, restaurants, retail food production and marketing
                      establishments, retail service establishments, retail stores,
                      shopping malls, sports arenas, theaters, and waiting rooms. A
                      private residence is not a “public place” unless it is used as a child
                      care, adult day care, or health care facility.
    § 10-6-1(6).
                                            No. 06-51670
           A violation of the ordinance is a Class C misdemeanor punishable by a
    fine, not to exceed $2,000, or by revocation or suspension of the license or permit
    of a violating establishment by the city manager.3                  § 10-6-11(A)–(B).       An
    individual violates the ordinance by smoking in a public place, § 10-6-2(A),
    smoking in a building owned or operated by the City, § 10-6-2(B), or smoking
    within fifteen feet of an entrance or openable window of a building in which
    smoking is prohibited, § 10-6-2(D). In addition to the restrictions placed on
    individuals, the ordinance provides that an owner or operator of a public place
    violates the ordinance if he or she “fails to take necessary steps to prevent or stop
    another person from smoking in an enclosed area in a public place.” § 10-6-2(E)
    (emphasis added). Certain steps—including posting “no smoking” signs and
    removing ashtrays—are explicitly set out in the ordinance. § 10-6-8.
           Shortly after the ordinance took effect, the following plaintiffs (collectively,
    “Plaintiffs”) filed suit in state court challenging the constitutionality of the
    ordinance and seeking a temporary restraining order and a declaratory
    judgment: (1) three owners of stand-alone bars in the City—Bill Hardee; Joseph
    Chip Tait; and Gail E. Johnson; (2) Hardee’s stand-alone bar—Roark and
    Hardee L.P., doing business as Warehouse Saloon and Billiards; (3) Tait’s stand-
               The penalty provision provides:
                    VIOLATION AND PENALTY
                    (A)    A person who violates the provisions of this chapter commits a
                           Class C misdemeanor, punishable . . . by a fine not to exceed
                           $2,000. A culpable mental state is not required for a violation of
                           this chapter, and need not be proved.
                    (B)    The city manager may suspend or revoke a permit or license
                           issued to the operator of a public place or workplace where a
                           violation of this chapter occurs.
                    (C)    Each day an offense occurs is a separate violation.
    § 10-6-11.
                                           No. 06-51670
    alone bar—Pub Draught Inc., doing business as Lovejoys Tap Room and
    Brewery; (4) Johnson’s stand-alone bars— GMC Investment Inc., doing business
    as Ego’s; Canary Roost Inc.; and Canary Hut Inc.; (5) an organization of bars
    fighting the citizen initiative, KEEP AUSTIN FREE PAC; and (6) a couple of
    concerned citizens, Tony Sirgo and Edward Check.4 Plaintiffs alleged that the
    ordinance violated the First, Fourth, and Fourteenth Amendments, the
    Supremacy Clause, a number of federal statutes, as well as the Texas State
    Constitution, Texas statutes, and the Austin City Charter.                        The City
    subsequently removed the case to federal district court.
           On October 11, 2005, the district court held an evidentiary hearing on
    Plaintiffs’ motion for a preliminary injunction.             Plaintiffs’ primary attack
    challenged the ordinance as “unconstitutionally vague on its face because it is
    so indefinite that it does not give fair notice as to what conduct is prohibited and
    lacks explicit standards for enforcement.” Roark & Hardee L.P. v. City of Austin,
    394 F. Supp. 2d 911
    , 916 (W.D. Tex. 2005). The district court ruled that
    Plaintiffs did not have a likelihood of success on the merits with regard to their
    vagueness, First Amendment, or overbreadth challenges.                     Id. at 916–19.
    However, the district court did enjoin two aspects of the penalty section of the
    ordinance. First, the district court concluded that the provision of the ordinance
    allowing the city manager to suspend or revoke the licenses or permits of “public
    places” violated the Due Process Clause of the Fourteenth Amendment and
    enjoined that provision to the extent that the City did not provide “expeditious
    judicial review.”5 Id. at 921. Second, the district court enjoined the City from
            When the suit was initiated, more plaintiffs were joined, but by the time of the trial
    and judgment, Plaintiffs, listed above, were the only ones remaining.
             The only type of permits or licenses the City Manager has authority to suspend are
    those issued by the City. Roark & Hardee L.P., 394 F. Supp. 2d at 921 n.11.
                                             No. 06-51670
    seeking fines of more than $500 under § 10-6-11, so that the ordinance was in
    compliance with Texas Penal Code § 6.02(f).6 Id. at 919–20 & n.9.
           This preliminary injunction hearing was followed by a trial on the merits
    almost a year later on August 17, 2006. By that time, the posture of the
    litigation had undergone a significant change. The City had sent notices of
    violation and filed charges, which were still pending in municipal court, against
    two Plaintiff bar owners, Bill Hardee and Gail E. Johnson, for failing to take the
    “necessary steps” to prevent or stop another person from smoking in their bars,
    Roark and Hardee L.P., doing business as Warehouse Saloon and Billiards,
    Canary Hut, and Canary Roost. The remaining Plaintiff owners and bars,
    Joseph Chip Tait; Pub Draught, Inc., doing business as Lovejoys Tap Room and
    Brewery; and GMC Investment Inc., doing business as Ego’s, had not been cited.
           At trial, Plaintiffs focused their attack on the words “necessary steps” in
    § 10-6-2(E) of the ordinance.            The City presented evidence that since the
    ordinance’s passage, the City’s Health and Human Services Department, the
    department charged under the statute with enforcement, see § 10-6-10(D), had
    enacted two sets of guidelines to provide clarification of the “necessary steps”
    provision. The first set of guidelines provided: “Necessary steps include no
    smoking signs, absence of ash trays, asking the patron to stop smoking, asking
    the patron to leave the establishment if they refuse to stop smoking and
    following your standard business practices for enforcing house rules.” After
    receiving requests for more clarification, the second set of guidelines was
    released, which added the step of refusing service to a person who is smoking.7
             Section 6.02(f) was enacted at the same time as the ordinance and provides that a
    municipal ordinance “may not dispense with the requirement of a culpable mental state if the
    offense is punishable by a fine exceeding [$500].” TEX. PEN. CODE § 6.02(f).
               The second set of guidelines issued to Plaintiff bar owners on March 9, 2006, state:
           SMOKING IN PUBLIC PLACES ORDINANCE No. 050303-05. Frequently
                                            No. 06-51670
           The district court found that the issuance of these two additional sets of
    guidelines weighed in favor of finding the ordinance vague. Roark & Hardee
    L.P. v. City of Austin, No. A-05-CA-837-SS, 
    2006 WL 2854399
    , at *4 (W.D. Tex.
    Oct. 4, 2006) (“The fact that the guidelines regarding ‘necessary steps’ are
    subject to change over time indicates that the term ‘necessary steps’ is vague and
    is not controlled by any discernible, explicit standard.”). What the district court
    found “[e]ven more troubling” than the guidelines issued by the City was that
    “the five steps under the guidelines are not exclusive and that following all of the
    guidelines does not create a safe harbor from liability for business owners and
    operators.” Id. The district court held that the City could not provide “definitive
    guidance to business owners and operators about how they might avoid liability
    under the ordinance” or the precise actions required of business owners to satisfy
    the “necessary steps” standard and avoid prosecution. Id. at *5. Because the
    City had not provided business owners with clear guidance beyond the two
    actions specifically mentioned in the ordinance—posting no smoking signs and
    removing all ashtrays—the district court found the “necessary steps” provision
    of the ordinance facially vague and consequently unconstitutional.8 Id. at *5–6.
           Asked Questions.
           After receiving requests for clarification, the City issued “further guidance” to
           business owner/operators which provided a “progressive enforcement process”
           for businesses to comply with the ordinance:
                  1. Post no-smoking signs and remove all ashtrays.
                  2. Verbally ask a patron who is smoking to extinguish the
                  cigarette, cigar, smoking apparatus, etc. (Sign interpretation or
                  in written form for the hearing impaired)
                  3. Refuse service to a person who is smoking.
                  4. Verbally ask anyone smoking to leave the premises. (Sign
                  interpretation or in written form for the hearing impaired)
                  5. Apply standard business procedures in the same manner for
                  violations of house rules or local ordinances or state laws.
            In addition, the district court addressed and denied Plaintiffs’ other claims, which have
    not been raised on appeal. Specifically, the district court rejected Plaintiffs’: (1) allegations
                                             No. 06-51670
           After the trial, the district court entered a judgment granting Plaintiffs a
    permanent injunction in three respects: (1) enjoining the City from enforcing the
    “necessary steps” provision against owners and operators of public places beyond
    the two steps of posting no smoking signs and removing ashtrays; (2) enjoining
    the City from suspending or revoking any city permits or licenses without
    providing “expeditious judicial review”; and (3) enjoining the City from imposing
    fines under the ordinance that violate Texas Penal Code § 6.02(f) by exceeding
    $500. Id. at *10. Following entry of the judgment, Plaintiffs sought an award
    of attorneys’ fees pursuant to 28 U.S.C. § 1988, as a “prevailing party” in the
    litigation. The district court denied the motion. The City filed a timely notice
    of appeal challenging the district court’s grant of permanent injunctive relief.
    Subsequently, a few Plaintiffs—Roark and Hardee L.P., doing business as
    Warehouse Saloon & Billiards; Pub Draught Inc., doing business as Lovejoys
    Tap Room and Brewery; Joseph Chip Tait; KEEP AUSTIN FREE PAC; Tony
    Sirgo; Edward Check; and Bill Hardee—filed a cross-appeal arguing that the
    district court abused its discretion in denying the motion for attorneys’ fees.
                                         II. DISCUSSION
                                     A. Standing and Ripeness
           The City first argues that this case is nonjusticiable because Plaintiffs lack
    standing and their claims are not ripe for adjudication. Thus, before considering
    the merits of this appeal, we must answer the threshold question whether
    Plaintiffs “present[] an ‘actual controversy,’ a requirement imposed by Art. III
    of the Constitution and the express terms of the Federal Declaratory Judgment
    that the terms “smoking” and “smoking accessory” in the ordinance were vague, id. at *6; (2)
    argument that their equal protection rights had been violated because the City admittedly
    enforced the ordinance against businesses but not against individuals, id. at *7; and (3) First
    Amendment and overbreadth claims, id. at *8. Finally, the district court found “that any of
    Plaintiffs’ remaining claims for relief not specifically addressed herein fail as a matter of law.”
    Id. at *9.
                                       No. 06-51670
    Act, 28 U.S.C. § 2201.” Steffel v. Thompson, 
    415 U.S. 452
    , 458 (1974). The many
    doctrines that have fleshed out that “actual controversy” requirement—standing,
    mootness, ripeness, political question, and the like—are “founded in concern
    about the proper—and properly limited—role of the courts in a democratic
    society.” Allen v. Wright, 
    468 U.S. 737
    , 750 (1984) (quoting Warth v. Seldin, 
    422 U.S. 490
    , 498 (1975)). These “doctrines state fundamental limits on federal
    judicial power in our system of government.” Id. As such, we review all
    justiciability issues, including standing and ripeness, de novo.            Ctr. for
    Individual Freedom v. Carmouche, 
    449 F.3d 655
    , 659 (5th Cir. 2006) (citing
    Bissonet Invs., L.L.C. v. Quinlan, 
    320 F.3d 520
    , 522 (5th Cir. 2003); Sample v.
    406 F.3d 310
    , 312 (5th Cir. 2005)).
          The “essence” of standing is “whether the litigant is entitled to have the
    court decide the merits of the dispute or of particular issues.” Warth, 422 U.S.
    at 498. In order to have standing, a plaintiff must “allege personal injury fairly
    traceable to the defendant’s allegedly unlawful conduct and likely to be
    redressed by the requested relief.” Allen, 468 U.S. at 751 (citing Valley Forge
    Christian College v. Ams. United for Separation of Church & State, Inc., 
    454 U.S. 464
    , 472 (1982)). Although the question of standing is one of degree and is “not
    discernible by any precise test,” Babbitt v. United Farm Workers Nat’l Union,
    442 U.S. 289
    , 297 (1979), federal courts have established the following elements
    that “a plaintiff must show: (1) it has suffered, or imminently will suffer, a
    concrete and particularized injury-in-fact; (2) the injury is fairly traceable to the
    defendant’s conduct; and (3) a favorable judgment is likely to redress the injury.”
    Houston Chronicle Publ’g Co. v. City of League City, Tex., 
    488 F.3d 613
    , 617 (5th
    Cir. 2007) (citation omitted). Moreover, a “plaintiff can meet the standing
    requirements when suit is brought under the Declaratory Judgment Act, 28
    U.S.C. §§ 2201–02, by establishing ‘actual present harm or a significant
    possibility of future harm.’” Bauer v. Texas, 
    341 F.3d 352
    , 357–58 (5th Cir. 2003)
                                       No. 06-51670
    (quoting Peoples Rights Org. v. City of Columbus, 
    152 F.3d 522
    , 527 (6th Cir.
          The City argues that Plaintiffs do not have standing because they have not
    suffered a particularized injury-in-fact. With regard to the penalty provisions
    of the ordinance, the City claims that Plaintiffs “cannot show . . . that a fine in
    excess of $500 has been sought against them or that the City has threatened to
    suspend or revoke any license or permit.” The City further maintains that
    although some Plaintiffs were prosecuted under the ordinance, those
    prosecutions were for clear violations explicitly provided in either the ordinance
    itself or its concomitant guidelines, and thus Plaintiffs have not been injured by
    an application of the challenged “necessary steps” provision. According to the
    City, the issues raised by Plaintiffs would be more properly addressed in the
    normal course of their individual prosecutions under the ordinance.
          The injury-in-fact element requires that a plaintiff show that he or she
    “‘has sustained or is immediately in danger of sustaining some direct injury’ as
    the result of the challenged official conduct and the injury or threat of injury
    must be both ‘real and immediate,’ not ‘conjectural or hypothetical.’” City of Los
    Angeles v. Lyons, 
    461 U.S. 95
    , 102 (1983) (emphasis added and citations
    omitted); see Allen, 468 U.S. at 751 (“The injury alleged must be . . . distinct and
    palpable . . . and not abstract or conjectural or hypothetical.”) (internal citations
    and quotations omitted).
          When Plaintiffs brought suit for declaratory and injunctive relief, the
    ordinance had been in effect for approximately two weeks, and the City had not
    noticed or charged any Plaintiffs for violations. However, the City’s admitted
    enforcement strategy is to use a complaint-driven scheme, whereby inspectors
    investigate violations after reports are made to the City’s Health and Human
    Services Department, and the City follows-up with notices of violation and
    charges in municipal court. According to the City, the bars, restaurants, and
                                           No. 06-51670
    other enclosed public places to which the ordinance applies have control over
    their respective environments, and thus noticing and prosecuting them, rather
    than individual smokers, for violations is the most efficient and best use of the
    City’s resources. Therefore, from the ordinance’s effective date, City inspectors
    were targeting Plaintiff bar owners. Further, the injuries resulting from a
    criminal prosecution for violating the “necessary steps” provision, which
    Plaintiffs contend is unconstitutionally vague, and from being liable for its
    penalties, which Plaintiffs allege violate procedural due process and state law,
    were real and immediate threats.
           Moreover, as this case progressed, the threat of enforcement became real
    as some Plaintiffs actually were noticed for violations and charged under the
    ordinance. Although the City claims that these prosecutions were not for
    violations of the “necessary steps” provision of the ordinance, an assertion
    contested by Plaintiffs,9 nowhere in the record does the City suggest that it will
    refrain from enforcing the “necessary steps” provision against Plaintiffs. Rather,
    the City continues to publish guidelines explaining the “necessary steps,” a clear
    indication that the City is intent on enforcing this section. Additionally, even if
    the City has resisted enforcing the $2,000 fine against Plaintiffs and revoking
    Plaintiff bar owners’ licenses or permits at this stage, the City may seek to
    enforce these penalties later.10 This circuit has recognized that a party has
             All the complaints produced at trial specifically allege that the owner or operator
    “knowingly fail[ed] to take necessary steps to prevent or stop another person from smoking in
    an enclosed area in a public place.” (Emphasis added).
              The City’s restraint likely stemmed from the district court’s preliminary injunction,
    which temporarily enjoined said enforcement provisions starting before any Plaintiffs were
    cited, and lasting until the permanent injunction replaced it. If we look to the first set of
    guidelines, issued before Plaintiffs initiated this case, the City stated in response to a
    frequently asked question regarding the consequences of a violation that “[c]ontinued
    violations will be cause for enforcement action through the City of Austin Municipal Court” and
    that “[t]he Violations and Penalties are set forth in the new code.” Notably, lacking any
    limiting instruction, the guidelines imply that the City intended from the beginning to enforce
    all the penalties under the ordinance.
                                             No. 06-51670
    standing when it has faced prosecution under a criminal ordinance in the past
    and faces the real possibility of prosecution in the future. Reed v. Giarusso, 
    462 F.2d 706
    , 710–11 (5th Cir. 1972). We conclude that because some Plaintiff bar
    owners have been charged under the ordinance and all Plaintiff bar owners face
    the real potential of immediate criminal prosecution, they have standing to bring
    their claims. See Diamond v. Charles, 
    476 U.S. 54
    , 64 (1986) (noting that a
    “conflict between state officials empowered to enforce a law and private parties
    subject to prosecution under that law is a classic ‘case’ or ‘controversy’ within the
    meaning of Art. III”); see also Hejira Corp. v. MacFarlane, 
    660 F.2d 1356
    , 1360
    (10th Cir. 1981) (finding the existence of a case or controversy under Article III
    because the plaintiffs faced “real and genuine threats of prosecution” under the
    Colorado Drug Paraphernalia statute, although no criminal prosecution had
    commenced as a result of its enforcement).
           The causation and redressability requirements for standing are satisfied
    as well. The significant threat of prosecution that Plaintiff bar owners face is
    directly traceable to the City’s intention to enforce the ordinance against them,
    and a judicial invalidation of the ordinance would give Plaintiffs direct relief
    from being prosecuted.11
           Even though Plaintiff bar owners have standing, their claims also must
    be ripe for adjudication. The Supreme Court has stated that the “ripeness
    doctrine is drawn both from Article III limitations on judicial power and from
    prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Social
    Servs., Inc., 
    509 U.S. 43
    , 57 n.18 (1993) (citing Buckley v. Valeo, 
    424 U.S. 1
    , 114
               Inasmuch as Plaintiff bar owners have standing, the question whether the other
    Plaintiffs have standing is, under the circumstances here, of no consequence. See Rumsfeld
    v. Forum for Academic & Institutional Rights, Inc., 
    547 U.S. 47
    , 52 n.2 (2006) (“[T]he presence
    of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”)
    (citing Bowsher v. Synar, 
    478 U.S. 714
    , 721 (1986)). The claims asserted by the non-bar-owner
    Plaintiffs were not addressed by the district court, and the failure to address those claims is
    not appealed.
                                           No. 06-51670
    (1976) (per curiam)). But, “[e]ven when a ripeness question in a particular case
    is prudential, we may raise it on our own motion, and ‘cannot be bound by the
    wishes of the parties.’” Id. (citing Reg’l Rail Reorganization Act Cases, 
    419 U.S. 102
    , 138 (1974)). The “basic rationale [behind the ripeness doctrine] is to
    prevent the courts, through avoidance of premature adjudication, from
    entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 
    387 U.S. 136
    , 148 (1967).12 For these reasons, a ripeness inquiry is often required
    when a party is seeking pre-enforcement review of a law or regulation. See, e.g.,
    Poe v. Ullman, 
    367 U.S. 497
     (1961); Lake Carriers’ Ass’n v. MacMullan, 
    406 U.S. 498
           When this case was initiated, all Plaintiffs were seeking pre-enforcement
    review. By the time of trial, Plaintiffs Hardee and Johnson had received
    criminal citations under the ordinance for failing to take the “necessary steps to
    prevent or stop smoking” in their establishments. Although the municipal court
    had not fully adjudicated the complaints against Plaintiffs Hardee and Johnson
    when trial commenced in this case, a concrete dispute had formed, thus avoiding
    the risk of premature review. Therefore, the issue whether Plaintiffs Hardee’s
    and Johnson’s void-for-vagueness claims were initially ripe for review has been
    mooted by the change in posture of the litigation at the time of trial and appeal.
    See Reg’l Rail Reorganization Act Cases, 419 U.S. at 102 (“[S]ince ripeness is
    peculiarly a question of timing, it is the situation now rather than the situation
    at the time of the District Court’s decision that must govern.”). However, the
    remaining Plaintiff bar owners have not been cited, and the City has not
              “While standing is concerned with who is a proper party to litigate a particular
    matter, ripeness . . . determine[s] when that litigation may occur. Specifically, the ripeness
    doctrine seeks to separate matters that are premature for review because the injury is
    speculative and may never occur, from those cases that are appropriate for federal court
    action.” ERWIN CHEMERINSKEY, FEDERAL JURISDICTION § 2.4.1 (5th ed. 2007) (emphasis
                                       No. 06-51670
    enforced the challenged fine or license revocation penalties against any Plaintiff.
    Thus, a ripeness inquiry is still necessary.
          “A court should dismiss a case for lack of ‘ripeness’ when the case is
    abstract or hypothetical.” Monk v. Huston, 
    340 F.3d 279
    , 282 (5th Cir. 2003)
    (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 
    833 F.2d 583
    586 (5th Cir.1987)).     The Supreme Court has expounded that “[t]he key
    considerations [for ripeness] are the fitness of the issues for judicial decision and
    the hardship to the parties of withholding court consideration.” Id. (citing
    Abbott Labs., 387 U.S. at 149) (internal quotation omitted). “A case is generally
    ripe if any remaining questions are purely legal ones; conversely, a case is not
    ripe if further factual development is required.” Id. Yet, “even where an issue
    presents purely legal questions, the plaintiff must show some hardship in order
    to establish ripeness.” Cent. & Sw. Servs. v. E.P.A., 
    220 F.3d 683
    , 690 (5th Cir.
          The City argues the case is not ripe because Plaintiffs have not shown
    hardship or that the case is fit for adjudication. Specifically, the City contends
    pre-enforcement review is unnecessary because complying with the ordinance
    would not affect the exercise of Plaintiffs’ First Amendment or fundamental
    constitutional rights or cause economic injury or other significant harm.
    Further, the City asserts that Plaintiffs’ case for injunctive relief required
    additional factual development, rather than relying on the hypothetical facts
    upon which the district court based its decision.
          Looking first at the element of hardship, we find that all Plaintiff bars and
    owners would suffer hardship were we to deny review. “[W]here a regulation
    requires an immediate and significant change in the plaintiffs’ conduct of their
    affairs with serious penalties attached to noncompliance, hardship has been
    demonstrated.” Suitum v. Tahoe Reg’l Planning Agency, 
    520 U.S. 725
    , 743–44
    (1997) (citing Abbott Labs., 387 U.S. at 153). Plaintiffs have alleged that the
                                             No. 06-51670
    “necessary steps” provision of the ordinance is unconstitutionally vague on its
    face because it does not provide fair notice of what conduct is proscribed and
    thus allows for arbitrary enforcement. Plaintiffs assert that, at their own risk,
    they must guess the requirements of the “necessary steps” provision and then
    implement those mandates daily to avoid a violation. Their failure correctly to
    ascertain and implement that which is demanded under the ordinance will
    subject them to heavy fines of up to $2,000 per day and possible revocation of
    their licenses and permits issued by the City without judicial review.13 In
    addition, testimony of a City official at trial revealed that a single municipal
    conviction may precipitate the revocation of an establishment’s liquor license.
    See TEX ADMIN. CODE § 35.31(c)(16); TEX. ALCO. BEV. CODE §§ 11.61(b)(7),
    104.01(8). Because Plaintiffs have shown the real possibility of irremediable
    adverse consequences were we to deny review, Plaintiffs have shown hardship.14
             At the time of trial, Plaintiff Johnson already had five complaints filed against him
    in municipal court. Depending on the outcome and fine applied in each case, these stand-alone
    bars could face heavy financial burdens, along with multiple criminal convictions.
               Plaintiffs point to the peculiarities of state court review of convictions under the
    ordinance. Prosecutions under the ordinance are brought in the City of Austin Municipal
    Court, a court of limited jurisdiction over criminal cases. See TEX. GOV’T CODE ANN. §§ 29.003,
    30.00005 (West 2007). Although a municipal judge could dismiss a criminal case on
    constitutional grounds, she could not issue declaratory or injunctive relief that would prevent
    the refiling of the case or of similar cases. See State v. Morales, 
    869 S.W.2d 941
    , 942 (Tex.
    1994) (explaining the state’s bifurcated system of civil and criminal jurisdiction and that a civil
    court has equity jurisdiction to declare constitutionally invalid and enjoin the enforcement of
    a criminal statute). If a person convicted for violating the ordinance is fined $100 or less, his
    right of appeal of a constitutional issue ends with the county court. See Alexander v. State,
    240 S.W.3d 72
    , 75–76 (Tex. App.—Austin 2007, no pet. h.) (holding that the defendant who
    was convicted in a municipal court of record and fined $100 or less, and whose conviction was
    affirmed by the county court at law, could not appeal to the Court of Appeals to challenge the
    constitutionality of the city’s smoking ordinance on which his conviction was based). We note
    that the defendant bar owner who was appealing his conviction under the smoking ordinance
    in Alexander v. State had tried to intervene in this case, but was denied intervention on the
    basis of Younger abstention because the charges against him were already pending when he
    tried to enter the suit. Because the evidence of hardship described supra is more than
    adequate to support our conclusion that the case is ripe for adjudication, we do not address the
    alleged hardship component of the state court review procedures.
                                       No. 06-51670
    See Toilet Goods Ass’n v. Gardner, 
    387 U.S. 158
    , 164–65 (1967) (finding minimal
    present harm to denying review where the challenged regulation required no
    advance action on the part of petitioners and no irremediable adverse
    consequences, such as “heavy fines,” “adverse publicity,” or “possible criminal
           Turning our attention to the second ripeness element, we consider whether
    the facts of Plaintiffs’ claims are fit for review. Plaintiffs challenged the penalty
    provision, permitting a fine of up to $2,000, for being in violation of the Texas
    Penal Code, and the enforcement provision, giving the city manager discretion
    to revoke permits and licenses, for failing to provide procedural due process. To
    determine the merits of both of those claims, no further factual development is
    necessary, as they are both purely legal inquiries in the context of this case.
    Consequently, they are ripe.
           Now, the only remaining issue is whether Plaintiffs’ primary claim, that
    the ordinance is unconstitutionally vague on its face, is fit for review. Many
    times void-for-vagueness challenges are successfully made when laws have the
    capacity “to chill constitutionally protected conduct, especially conduct protected
    by the First Amendment.” United States v. Gaudreau, 
    860 F.2d 357
    , 360 (10th
    Cir. 1988); see, e.g., Coates v. City of Cincinnati, 
    402 U.S. 611
    , 615–16 (1971);
    Colautti v. Franklin, 
    439 U.S. 379
    , 390–91 (1979). Nevertheless, laws that do
    not threaten to infringe constitutionally protected conduct also may be
    challenged facially as unduly vague, in violation of due process. Village of
    Hoffman Estates v. Flipside, Hoffman Estates, Inc., 
    455 U.S. 489
    , 497 (1982). In
    the latter scenario,“the complainant must demonstrate that the law is
    impermissibly vague in all of its applications.” Id. In undertaking that analysis,
    however, a reviewing court should “examine the complainant’s conduct before
    analyzing other hypothetical applications of the law” because “[a] plaintiff who
    engages in some conduct that is clearly proscribed cannot complain of the
                                            No. 06-51670
    vagueness of the law as applied to the conduct of others.” Id. (emphasis added);
    see also United States v. Mazurie, 
    419 U.S. 544
    , 550 (1975) (“[V]agueness
    challenges to statutes which do not involve First Amendment freedoms must be
    examined in the light of the facts of the case at hand.”).
           Here, we are wrestling with the second scenario as the ordinance does not
    threaten to inhibit any constitutionally protected conduct.15 In the context of
    pre-enforcement review, which is still the case for the uncharged Plaintiff bar
    owners, examining facial vagueness is often difficult, perhaps impossible,
    because facts are generally scarce. However, in this case, both Plaintiffs Hardee
    and Johnson had been issued multiple notices of violation and charged for
    violating the ordinance prior to the evidentiary hearing.                        Due to this
    development, the evidence adduced at trial provided an adequate record of the
    ordinance’s operation and particularized harmful effect on all Plaintiff bars and
    owners to permit a determination of whether the “necessary steps” provision is
    impermissibly vague in all its applications. Compare Socialist Labor Party v.
    406 U.S. 583
    , 587–88 (1972) (determining constitutional and void-for-
    vagueness claims were unfit for review because of the skimpy factual record:
    very little was known about the operation of the challenged affidavit
    requirement and its potential effect on claimants). Accordingly, we may review
    the vagueness challenge in light of the conduct of the charged Plaintiffs, Hardee
    and Johnson, to determine first if at least some of their conduct is clearly
    proscribed by the “necessary steps” provision. If that inquiry is answered
    affirmatively, it must be the case that neither the charged nor the uncharged
    Plaintiffs can prove that the statute is impermissibly vague in all of its
    applications because it has been validly applied to Johnson and Hardee.
              Plaintiffs have failed to provide sufficient evidence that the ordinance threatens to
    inhibit constitutionally protected conduct. Although ripeness is a justiciability issue, typically
    a pre-merits inquiry, in ascertaining whether there is an adequate factual record, we must
    consider, to some extent, the merits.
                                       No. 06-51670
    However, if that inquiry is answered negatively, we must further examine other
    hypothetical applications of the “necessary steps” provision to determine
    whether it is impermissibly vague in all its applications.
                             B. Facial Vagueness Challenge
          Tasked with the difficult challenge of considering facial vagueness, the
    district court evaluated: (1) whether the ordinance’s “necessary steps” provision
    provided fair notice that would enable ordinary people to understand the conduct
    prohibited; and (2) whether it authorized and encouraged arbitrary enforcement.
    See United States v. Escalante, 
    239 F.3d 678
    , 680 (5th Cir. 2001) (citing City of
    Chicago v. Morales, 
    527 U.S. 41
    , 56 (1999) (plurality)). In holding that the City’s
    “necessary steps” provision failed to satisfy this test, the court noted that neither
    the ordinance nor the guidelines contained an exclusive list or safe harbor
    provision, and that the guidelines were subject to amendment and differing
    interpretations. The district court’s decision was greatly influenced by City
    officials who could not detail the steps that a business would have to implement
    to satisfy the “necessary steps” requirement under certain hypothetical fact
          The City asserts that the district court erred in its overall analysis of facial
    vagueness. The City argues that even though the district court applied the
    aforementioned test, albeit erroneously, it failed to consider the complete legal
    test for facial vagueness. Specifically, the City notes that this court and others
    have previously provided, in cases involving no constitutionally-protected
    conduct, that “[a] facial challenge to a legislative Act is, of course, the most
    difficult challenge to mount successfully, since the challenger must establish that
    no set of circumstances exists under which the Act would be valid.” United States
    v. Robinson, 
    367 F.3d 278
    , 290 (5th Cir. 2004) (emphasis added) (quoting United
    States v. Salerno, 
    481 U.S. 739
    , 745 (1987)). The City maintains that the
    ordinance is valid in many of its applications, and thus Plaintiffs cannot carry
                                     No. 06-51670
    their burden. The City further contends that the “necessary steps” provision
    should be given its common, ordinary meaning and argues that owners and
    operators of bars are sufficiently capable of employing their experience and
    common sense to interpret their duties under the law to prohibit smoking in
    their establishments. See Steffes v. City of Lawrence, 
    160 P.3d 843
    , 852 (Kan.
    2007) (holding that business owners must take enforcement efforts to prevent
    smoking in their establishments and that “common understanding and practice
    play a large role” in determining whether a business has complied with the
          Plaintiffs argue that the “necessary steps” provision establishes no
    standard at all. In fact, they contend, that it is a “tautology.” According to
    Plaintiffs, the “ever-changing” guidelines are non-binding and thus fail to cure
    the vagueness of the “necessary steps” standard.
          At a threshold level, Plaintiffs confront a heavy burden in advancing a
    facial constitutional challenge to an ordinance. See Nat’l Endowment for the Arts
    v. Finley, 
    524 U.S. 569
    , 580 (1998) (“Facial invalidation is, manifestly, strong
    medicine that has been employed by the Court sparingly and only as a last
    resort.”) (internal quotation omitted); Sabri v. United States, 
    541 U.S. 600
    , 609
    (2004) (“Facial adjudication carries too much promise of ‘premature
    interpretatio[n] of statutes’ on the basis of factually barebones records.”)
    (quoting United States v. Raines, 
    362 U.S. 17
    , 22 (1960)). For the reasons stated
    below, we agree with the City and conclude that Plaintiffs have fallen short of
    meeting this heavy burden.
          As previously noted, in Village of Hoffman Estates the Supreme Court
    announced the proper procedure for analyzing a facial vagueness challenge. 455
    U.S. at 494–95. To begin, the court must consider whether the ordinance
    reaches a substantial amount of constitutionally protected conduct. Id. at 494.
    “[A]ssuming the enactment implicates no constitutionally protected conduct, [a
                                         No. 06-51670
    court] should uphold the challenge only if the enactment is impermissibly vague
    in all of its applications.” Id. at 494–95. However, “[a] plaintiff who engages in
    some conduct that is clearly proscribed cannot complain of the vagueness of the
    law as applied to the conduct of others.” Id. (emphasis added). Thus, the
    complainant’s conduct should be analyzed before the court considers other
    hypothetical applications of the law. Id. at 495.
          In Plaintiffs’ Amended Complaint, which was the live pleading at trial,
    they alleged, as the district court styled it, “everything-but-the-kitchen-sink.”
    With respect to many of the allegations, Plaintiffs failed to provide useful
    evidence at either the preliminary injunction or trial stages. Thus, the district
    court summarily dismissed most of Plaintiffs’ claims and, in the end, only
    granted Plaintiffs relief on their facial vagueness challenge to the “necessary
    steps” provision of the ordinance, as well as their two penalty provision issues.
    The City appealed the district court’s judgment on the vagueness claim.
    Plaintiffs cross-appealed, arguing only that the district court abused its
    discretion in denying them attorneys’ fees. Significantly, Plaintiffs did not
    appeal any of their constitutional claims; however, they attempt to resurrect
    them in their appellee briefs in urging this court to apply a stricter void-for-
    vagueness test because constitutionally protected conduct is at issue. Although
    a timely notice of appeal is a prerequisite for the exercise of our jurisdiction, U.S.
    v. Carr, 
    979 F.2d 51
    , 55 (5th Cir. 1992), to the extent that the Village of Hoffman
    Estates test requires consideration of whether the ordinance reaches
    constitutionally protected conduct, we will consider Plaintiffs’ arguments that
    were properly raised before and decided by the district court, namely, the
    allegations regarding their First Amendment interest to be free of compelled
    speech and their liberty interest in the pursuit of the profession of one’s choice.16
             Plaintiffs’ argument that the ordinance violates their Fifth Amendment interest in
    avoiding self-incrimination was excluded from Plaintiffs’ Amended Complaint. Thus, even the
                                           No. 06-51670
           Plaintiffs assert that the ordinance violates their First Amendment right
    to be free from compelled speech. In particular, Plaintiffs allege that the
    guidelines compel them to speak against their will by mandating verbal
    confrontation with their patrons—verbally requesting them to stop smoking and
    to leave the premises. The district court rejected this argument in both the
    preliminary injunction order and its final judgment due to Plaintiffs’ failure to
    provide useful evidence on the issue. We agree.
           Recently in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.
    547 U.S. 47
    , 60 (2006), the Supreme Court upheld the Solomon
    Amendment, a congressional regulation that denies federal funding to
    institutions of higher education that prohibit military access to and assistance
    for recruiting services, against a challenge brought by an association of law
    schools that it unconstitutionally compelled their speech.                  The Court first
    explained that “[a]s a general matter, the [statute] regulates conduct, not
    speech” and that the “[l]aw schools remain free . . . to express whatever views
    they have on” the mandated policy. Id. The Court further noted that “[t]he
    compelled speech to which the law schools point[—sending emails and posting
    notices on behalf of the military—] is plainly incidental to [that] regulation of
    conduct.” Id. at 62 (emphasis added). And finally, in rejecting the claim, the
    Court stated that the law schools’ suggestion that the “compelled” emails and
    notices were similar to “forcing a student to pledge allegiance,” see W. Virginia
    Bd. of Ed. v. Barnette, 
    319 U.S. 624
    , 642 (1943), “or forcing a Jehovah’s Witness
    district court’s determination that all remaining claims fail as a matter of law did not dispose
    of this argument, and it is waived on appeal. See Harris County, Tex. v. CarMax Auto
    Superstores, Inc., 
    177 F.3d 306
    , 326 (5th Cir. 1999) (“Typically we will not consider on appeal
    matters not presented to the trial court.”) (citation omitted). Even if we were to review this
    claim, it would fail, as a matter of law, because Plaintiffs provide no useful evidence on the
                                           No. 06-51670
    to display the motto ‘Live Free or Die,’” see Wooley v. Maynard, 
    430 U.S. 705
    , 717
    (1977), “trivializes the freedom protected” in those cases. FAIR, 547 U.S. at 62.
           Similarly, we find that Plaintiffs’ contention here, that the ordinance
    unconstitutionally compels their speech, trivializes the freedom protected in
    Barnette and Wooley. The ordinance’s goal is to prohibit smoking in enclosed
    public places in order to protect the City’s population from the harmful effects
    of second-hand smoke. To achieve that goal, the ordinance requires Plaintiffs to
    take the “necessary steps” to stop another person from smoking. Thus, as a
    general matter, the ordinance regulates Plaintiffs’ conduct, not speech. Plaintiff
    bar owners and their employees remain free to express whatever views they
    have on the ordinance. And, although the amended guidelines call for Plaintiffs
    to “verbally” request smokers to extinguish cigarettes or leave the premises, this
    speech is plainly incidental to the ordinance’s regulation of conduct. After all,
    the guidelines were amended to include these verbal requirements only after
    Plaintiffs “allegedly” experienced difficulty in implementing the ordinance.17 Cf.
    Giboney v. Empire Storage & Ice Co., 
    336 U.S. 490
    , 502 (1949) (“[I]t has never
    been deemed an abridgment of freedom of speech or press to make a course of
    conduct illegal merely because the conduct was in part initiated, evidenced, or
    carried out by means of language, either spoken, written or printed.”). In short,
    we conclude the ordinance does not threaten to affect Plaintiffs’ First
    Amendment right to be free from compelled speech. See Dutchess/Putnam Rest.
    & Tavern Ass’n, Inc. v. Putnam County Dep’t of Health, 
    178 F. Supp. 2d 396
    405–06 (S.D.N.Y. 2001) (rejecting a First Amendment challenge to a smoking
    regulation’s requirement of posting no smoking signs or symbols); cf. Players,
             Testimony at trial revealed that some Plaintiffs were trying to skirt the ordinance’s
    obligation to enforce the smoking ban in their establishments by allowing smokers to continue
    smoking as long as they signed forms acknowledging that the bar owners asked them to quit
    smoking and to leave the premises, when that was not, in fact, the case.
                                         No. 06-51670
    Inc. v. City of New York, 
    371 F. Supp. 2d 522
    , 543 (S.D.N.Y. 2005) (finding
    smoking bans not to be overbroad because they are “entirely targeted at
    conduct—the act of smoking in certain places—rather than at speech,
    association, or assembly”).18
          Plaintiffs further contend that the vagueness of the “necessary steps”
    provision permits unreasonable government interference in the operation of
    their businesses, a protected liberty interest. As support for this proposition,
    Plaintiffs invoke Stidham v. Texas Commission on Private Security, 
    418 F.3d 486
    (5th Cir. 2005). In that case, the plaintiff claimed that the unauthorized and
    threatening letters that were sent to his customers by the investigators for the
    Texas Commission on Private Security, who were seeking qualified immunity in
    the suit, amounted to a declaration that the plaintiff was guilty before he was
    tried. Id. at 490. Those letters indicated that the plaintiff, whose business
    provided motorcycle escorts for funeral services, was operating without a
    required license, and, as such, those who knowingly contracted with him would
    be committing a misdemeanor offense. Id. at 488–89. The plaintiff averred that
    the letters effectively destroyed his business. Id. at 490. Applying the test for
    qualified immunity, we “confirmed the principle that one has a constitutionally
    protected liberty interest in pursuing a chosen occupation” and found the
    investigators’ behavior in sending the unauthorized letters unreasonably
    interfered with that interest.       Id. at 491 (citation omitted).       This case is
    distinguishable. Although Plaintiff bar owners may have a constitutionally
    protected interest in pursuing their chosen profession, that being the operation
    of a bar that provides alcohol and other entertainment, the City’s ordinance does
    not threaten to interfere with that interest. Unlike in Stidham, the ordinance
    at issue here is not only authorized, but a valid exercise of the City’s police
            We note that in asserting their First Amendment argument, Plaintiffs refrain from
    making overbreadth claims with respect to the First Amendment rights of smokers.
                                            No. 06-51670
    power; it merely regulates smoking to minimize the adverse effects of second-
    hand smoke and does not threaten to infringe Plaintiffs’ liberty interest in
    pursuing their chosen occupations.             See Lexington Fayette County Food &
    Beverage Ass’n v. Lexington-Fayette Urban County Gov’t, 
    131 S.W.3d 745
    , 752
    (Ky. 2004) (holding that an ordinance that prohibited smoking in public
    buildings to protect the public from the effects of second-hand smoke did not
    improperly infringe on the right of business owners to conduct their business
    without impermissible interference from government).
           Because the ordinance does not threaten to inhibit constitutionally
    protected conduct, we continue under the rubric in Village of Hoffman Estates
    and consider whether the ordinance is impermissibly vague in all its
    applications, see also United States v. Clinical Leasing Serv., Inc., 
    925 F.2d 120
    122 (5th Cir. 1991), keeping in mind that we must first apply the statute to
    Plaintiffs’ conduct before considering hypothetical scenarios.19 A legislative
    enactment is vague in all of its applications if it is so “indefinite that no one
    could know what” is prohibited, creating an ordinance that is “substantially
    incomprehensible.” Exxon Corp. v. Busbee, 
    644 F.2d 1030
    , 1033 (5th Cir. 1981);
    see also Coates, 402 U.S. at 614 (noting that an ordinance is not
    unconstitutionally vague if “it requires a person to conform his conduct to an
              Before proceeding, we consider Plaintiffs’ contention that they do not face the burden
    of demonstrating the ordinance is vague in all its applications. Specifically, Plaintiffs rely on
    City of Chicago v. Morales, to argue that they are required only to prove that “vagueness
    permeates the ordinance.” 527 U.S. at 55 n.22 (plurality). Plaintiffs’ reliance on Morales is in
    error. In Morales, the Court struck down an anti-loitering ordinance despite possible situations
    in which it could constitutionally be applied. Id. at 64. In that case, the Court was applying
    a very stringent vagueness test because it was dealing with a criminal ordinance that reached
    a substantial amount of constitutionally protected conduct. Id. at 55. In particular, “the
    freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process
    Clause of the Fourteenth Amendment.” Id. at 53. However, in this case, no constitutionally
    protected conduct is threatened by the City’s ordinance. Therefore, we apply the appropriate
    test from Village of Hoffman Estates. 455 U.S. at 494–95; see also Robinson, 367 F.3d at 290
    (requiring a demonstration that there are “no set of circumstances . . . under which the Act
    would be valid” to sustain a facial vagueness attack).
                                      No. 06-51670
    imprecise but comprehensible normative standard”). Furthermore, a statute
    that “vests virtually complete discretion in the hands of the police” fails to
    provide the “minimal guidelines” required for due process. Kolender v. Lawson,
    461 U.S. 352
    , 358 (1983).
          In evaluating vagueness, a reviewing court should consider: (1) whether
    the law “give[s] the person of ordinary intelligence a reasonable opportunity to
    know what is prohibited, so that he may act accordingly;” and (2) whether the
    law provides explicit standards for those applying them to avoid arbitrary and
    discriminatory applications. Grayned v. City of Rockford, 
    408 U.S. 104
    , 108–09
    (1972). However, these standards should not be “mechanically applied.” Village
    of Hoffman Estates, 455 U.S. at 498.
                The degree of vagueness that the Constitution
                tolerates—as well as the relative importance of fair
                notice and fair enforcement—depends in part on the
                nature of the enactment. Thus, economic regulation is
                subject to a less strict vagueness test because its subject
                matter is often more narrow, and because businesses,
                which face economic demands to plan behavior
                carefully, can be expected to consult relevant legislation
                in advance of action. . . . The Court has also expressed
                greater tolerance of enactments with civil rather than
                criminal penalties because the consequences of
                imprecision are qualitatively less severe. And the
                Court has recognized that a scienter requirement may
                mitigate a law’s vagueness, especially with respect to
                the adequacy of notice to the complainant that his
                conduct is proscribed.
    Id. at 498–99 (citations omitted and emphasis added). Finally, as previously
    stated, a more stringent vagueness test should apply where a law “threatens to
    inhibit the exercise of constitutionally protected rights.” Id. at 499; see also
    Smith v. Goguen, 
    415 U.S. 566
    , 573 (1974) (“Where a statute’s literal scope,
    unaided by a narrowing state court interpretation, is capable of reaching
                                          No. 06-51670
    expression sheltered by the First Amendment, the [vagueness] doctrine demands
    a greater degree of specificity than in other contexts.”).
           In this case, although the ordinance’s penalties are criminal in nature and
    they explicitly allow for conviction without a scienter requirement,20 the
    ordinance does not threaten to inhibit the exercise of constitutionally protected
    rights and is akin to the quasi-criminal ordinance in Village of Hoffman Estates
    that regulated business activity. The evidence reveals that the owners and
    operators regulated by the ordinance may clarify the meaning of its provisions
    by their own inquiry. In particular, the City’s proffered guidelines were drafted
    after town meetings with the business owners themselves, and the updated
    guidelines were issued as a response to requests for clarification of the
    “necessary steps” provision by business operators. See Village of Hoffman
    Estates, 455 U.S. at 498–99 (stating that regulated business activity is subject
    to a less strict vague standard due in part to the enterprise’s “ability to clarify
    the meaning of the regulation by its own inquiry, or by resort to an
    administrative process”).       To be safe, we apply the “relatively strict test”
    required for criminal laws. See id. at 499–500.
           In order to sustain a vagueness challenge, “a penal statute [must] define
    the criminal offense with sufficient definiteness that ordinary people can
    understand what conduct is prohibited.” Kolender, 461 U.S. at 357 (emphasis
    added). And, although the district court in this case implied that in order for the
    ordinance to pass constitutional muster, it must delineate the exact actions a bar
    owner would have to take to avoid liability, this high degree of language
    precision exceeds the constitutional requirements for upholding a statute. See
    Boyce Motor Lines v. United States, 
    342 U.S. 337
    , 340 (1951) (“[F]ew words
    possess the precision of mathematical symbols, most statutes must deal with
             However, the City points out that it only charges owners and operators for “knowing”
                                          No. 06-51670
    untold and unforeseen variations in factual situations, and the practical
    necessities of discharging the business of government inevitably limit the
    specificity with which legislators can spell out prohibitions.”). In fact, this circuit
    has held that “[o]nly a reasonable degree of certainty is required.” United States
    v. Tansley, 
    986 F.2d 880
    , 885 (5th Cir. 1993) (emphasis added) (citing United
    States v. Barnett, 
    587 F.2d 252
    , 256 (5th Cir. 1979)).
           To begin, we note that the ordinance’s goal, as a whole, is to prevent
    smoking in enclosed public places, so as to minimize the health hazards
    associated with second-hand smoke. See Grayned, 408 U.S. at 110 (considering
    “what the ordinance as a whole prohibits” in analyzing whether the law was
    unconstitutionally vague). The title of the ordinance reveals that it is designed
    to prohibit “Smoking in Public Places,” and the title of the section at issue, § 10-
    6-2, is even more explicit: “Smoking Prohibited.” Furthermore, the language of
    the disputed subsection is sufficiently clear to put Plaintiffs on notice of what the
    statute governs and at whom it is directed. First, it is limited to “[t]he owner or
    operator of a public place,” as defined in the ordinance, and second, it requires
    that said owner or operator “take necessary steps to prevent or stop another
    person from smoking in an enclosed area in a public place.” § 10-6-2(E).
           Next we examine the disputed words “necessary steps,” to determine
    whether Plaintiff bar owners had fair notice of what conduct was prohibited, or
    mandated, on their part, and whether inspectors were provided definite
    standards to avoid arbitrary enforcement.21 In conducting this examination, we
    “must, of course, consider any limiting construction that a state court or
    enforcement agency has proffered.” Village of Hoffman Estates, 455 U.S. at
    494 n.5. This criterion is especially important in a case such as this where the
            “The same facets of a statute usually raise concerns of both fair notice and adequate
    enforcement standards. Hence the analysis of these two concerns tends to overlap.” Gaudreau,
    860 F.2d at 359.
                                       No. 06-51670
    ordinance was not drafted by the City but instead enacted via voter initiative,
    thereby prohibiting, pursuant to the City Charter, amendment or repeal until
    the ordinance has been in effect for two years. AUSTIN CITY CHARTER, art. IV,
    § 6.   Accordingly, we look to the City’s two sets of detailed guidelines,
    promulgated in an attempt to resolve any uncertainty regarding the scope of the
    “necessary steps” provision.
           The first set of guidelines explicitly provides that “necessary steps” include
    posting no smoking signs, removing ashtrays, asking the patron to stop smoking,
    asking the patron to leave the establishment if he continues to smoke, and
    following standard business practices for enforcing house rules. On March 9,
    2006, an amended set of guidelines was issued, in response to requests for
    clarification, adding: (1) that the owners or operators refuse service to a patron
    if he continues to smoke; (2) that the requests to stop smoking and to leave the
    establishment be verbal; and (3) that the standard business procedures be
    applied in the same manner as violations of house rules, local ordinances, or
    state laws. These guidelines not only provide standards to those inspectors
    enforcing the ordinance but essentially provide Plaintiff bar owners and
    operators a clear “how to” guide for avoiding a violation under the “necessary
    steps” provision. Nevertheless, evidence at trial revealed that Plaintiff bar
    owners often failed to implement any steps to prevent smoking in their
           For example, Gail Johnson was charged for a clear pattern and practice of
    refusing to comply with the ordinance at both his establishments, Canary Hut
    and Canary Roost. Specifically, on more than one occasion, inspectors observed
    several patrons smoking, and the operators on duty made no attempts to ask
    them to stop or leave the premises, or to refuse them service. At one point, an
    inspector even gave a bartender the opportunity to implement the steps and
    prevent a customer from smoking, to which the bartender responded with a
                                          No. 06-51670
    shoulder shrug, rather than compliance. Bartenders themselves were seen
    smoking when inspectors entered the bar, a clear indication that Johnson’s
    establishments were intentionally flouting the ordinance. Additionally, although
    refusing service was included as a step in the amended guidelines, testimony
    revealed that Johnson failed to instruct his employees to refuse service to his
    smoking customers.22
           Similar attempts to circumvent the obligations of the ordinance were
    observed at the bar managed by Bill Hardee—the Warehouse, Saloon and
    Billiards. Although no smoking signs were posted there, the operators either
    failed to remove ashtrays or instead provided candle holders to be used as
    substitutes.     In addition, the establishment had customers sign forms
    acknowledging that they had been instructed to go outside to smoke, but once
    the form was signed, the operators permitted the customers to continue to smoke
    inside the establishment. Inspectors observed operators who neither requested
    smokers to extinguish their cigarettes nor refused service to those smoking.23
    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. See Tansley, 986
    F.2d at 885 (“The requirement that statutes give fair notice cannot be used as
    a shield by someone who is already intent on wrongdoing.”) (citing United States
    v. Brewer, 
    835 F.2d 550
    , 553 (5th Cir. 1987)).
           In addition, the danger of arbitrary and discriminatory enforcement is
    unfounded. The City’s officials testified that three notices of violation were
    issued to Plaintiffs Hardee and Johnson before charges were filed in municipal
             A Canary Roost employee, who was issued notices of violation, testified that she had
    never refused service to a customer who was smoking, but that she believed that refusing
    service would stop patrons from smoking at the Canary Roost.
              A bartender from the Warehouse Saloon and Billiards testified that he never refused
    service to a smoking customer.
                                           No. 06-51670
    court, and that the City’s procedure in filing charges only after the third notice
    is issued and a management official has had a chance to review the notices is
    standard. In addition, the pre-printed forms provided to the inspectors to notice
    owners and operators for violations explicitly provide the five steps listed in the
    guidelines. Evidence revealed that the inspectors normally circle the steps that
    owners and operators failed to implement before issuing a violation. This direct
    reference to the guidelines’ progressive steps while actually issuing the notices
    to owners and operators helps to standardize enforcement. Furthermore, any
    concern the district court had about arbitrary enforcement was based on lengthy
    hypothetical questions posed to enforcement officials, whose complete testimony
    revealed that they look for a pattern of noncompliance, and that in certain
    scenarios, if it is apparent that good faith attempts are not being made to take
    “necessary steps” to prevent smoking, then a notice of violation would be issued.
           Thus, in light of the evidence at trial, Plaintiffs fail to demonstrate that
    the “necessary steps” provision is so indefinite as to provide them with no
    standard of conduct at all.24 The ordinance and its concomitant guidelines
               Although the Texas courts have not had an opportunity to interpret the meaning of
    “necessary steps” in the City’s ordinance, the Texas Court of Criminal Appeals has examined
    a statute that made it unlawful for a business to “allow patrons” to form a line, or queue, on
    the public right-of-way on the River Walk in San Antonio. State v. Guevara, 
    137 S.W.3d 55
    55–56 (Tex. Crim. App. 2004). A business owner was charged under the ordinance for allowing
    patrons to queue outside her business. Id. She challenged the statute as overly vague because
    it “failed to describe with reasonable certainty what actions constitute allowing patrons to
    queue on the public right-of-way.” Id. at 56. Similar to the ordinance in this case, the Guevara
    ordinance established a crime of omission, or failure to act—there, the failure to prevent a
    queue from forming and here, failing to take the “necessary steps” to prevent smoking. The
    business owner in Guevara argued that the statute’s failure to set out what precise steps the
    business had to take to prevent queuing doomed the ordinance, but the Texas Court of
    Criminal Appeals disagreed: “[T]he fact that the ordinance did not suggest a method of
    preventing queuing is of no significance. . . . There are common-sense methods for preventing
    queuing, and it is not necessary or desirable to require the City to codify these methods.” Id.
    at 57–58.
             The Texas court’s reliance on a business owner’s “common-sense” in Guevara is
    supported by federal constitutional law. See Village of Hoffman Estates, 455 U.S. at 501
    (asking whether a “business person of ordinary intelligence would understand” what the
    ordinance requires); Boyce Motor Lines, 342 U.S. at 340–41 (“The requirement of reasonable
                                             No. 06-51670
    provide adequate notice of the actions required, as well as an ascertainable
    standard of guilt for inspectors. Plaintiffs’ void-for-vagueness challenge to the
    “necessary steps” provision of the ordinance fails on the record evidence of actual
    charged violations; we need not address hypothetical scenarios.
                                     C. Permanent Injunction
           The City also challenges the district court’s grant of a permanent
    injunction with respect to the “necessary steps” provision.25 We review the
    award of a permanent injunction for “abuse of discretion” which occurs if the
    district court: “(1) relies on clearly erroneous factual findings; (2) relies on
    erroneous conclusions of law; or (3) misapplies the law to the facts.” McClure v.
    335 F.3d 404
    , 408 (5th Cir. 2003). In holding that Plaintiffs were
    entitled to a permanent injunction, the district court found that they had
    established: (1) success on the merits; (2) that a failure to grant the injunction
    will result in irreparable injury; (3) that said injury outweighs any damage that
    the injunction will cause the opposing party; and (4) that the injunction will not
    disserve the public interest. Roark & Hardee LP, 
    2006 WL 2854399
    , at *2
    (quoting V.R.C. L.L.C. v. City of Dallas, 
    460 F.3d 607
    , 611 (5th Cir. 2006)).
    certainty does not preclude the use of ordinary terms to express ideas which find adequate
    interpretation in common usage and understanding. . . . The use of common experience as a
    glossary is necessary to meet the practical demands of legislation.”) (emphasis added and
    citation omitted). As business owners of stand-alone bars, Plaintiffs frequently must take
    steps to control behavior ranging from inappropriate dress, rowdiness, fighting, underage
    drinking, and intoxication. Thus, through prior business experiences, these owners and
    operators have knowledge of the “steps” that work best in their establishments. They can
    easily draw on those common experiences and implement the same types of steps to enforce
    the smoking ordinance. The City even points this out to the owners and operators with the
    inclusion of the final step in both sets of guidelines, stating that “necessary steps” requires an
    application of the standard business practices for violations of house rules, state laws, and local
              Although the City appeals the entire judgment, it makes no arguments regarding the
    validity of the order permanently enjoining enforcement of the penalty provisions.
                                       No. 06-51670
          Based on our conclusion that the district court erred in finding that the
    “necessary steps” provision in the ordinance is unconstitutionally vague, it was
    an abuse of discretion to grant a permanent injunction enjoining the City from
    enforcing that section of the ordinance.
                                     D. Attorneys’ Fees
          Plaintiffs appealing the attorneys’ fees issue argue that the district court
    erred in failing to grant them attorneys’ fees as a “prevailing party” in the
    litigation. Under 42 U.S.C. § 1988(b), a district court, in its discretion, may
    award to the “prevailing party” in a § 1983 action reasonable attorneys’ fees. We
    review a district court’s denial of attorneys’ fees under § 1988 for abuse of
    discretion. Myers v. City of W. Monroe, 
    211 F.3d 289
    , 292 (5th Cir. 2000).
          In arguing that they should be considered a “prevailing party” under
    § 1988, those Plaintiffs rely primarily on the district court’s judgment enjoining
    the City from holding the owner or operator of a public place liable for failure to
    take “necessary steps” to prevent smoking in their establishments. As this
    ruling was in error, Plaintiffs’ case for attorneys’ fees is significantly diminished.
    The only other constitutional claim within the ambit of § 1988(b) for which the
    district court granted relief to Plaintiffs was the due process claim regarding the
    suspension and revocation of city permits and licenses without expeditious
    judicial review, a holding which was not appealed on its merits. Considering the
    numerous other claims Plaintiffs lost and the fact that the City can still enforce
    the license revocation provision, as long as it provides expeditious judicial
    review, Plaintiffs’ success is, at most, de minimis, and the district court did not
    abuse its discretion in denying their claim for attorneys’ fees under § 1988 as a
    “prevailing party.” See Texas State Teachers Ass’n v. Garland Indep. Sch. Dist.,
    489 U.S. 782
    , 792 (1989) (stating that if the party succeeds on a “purely
    technical” or “de minimus” legal question, then the party is not a “prevailing
    party” for purposes of § 1988 attorneys’ fees).
                                      No. 06-51670
                                   III. CONCLUSION
          We REVERSE that portion of the district court’s judgment declaring the
    “necessary steps” provision of the ordinance unconstitutionally vague, VACATE
    the provision of the permanent injunction enjoining enforcement of said
    provision, and otherwise AFFIRM the judgment. We also AFFIRM the district
    court’s denial of attorneys’ fees. Plaintiffs shall bear the costs of these appeals.