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ROARK & HARDEE LP v. CITY OF AUSTIN

Nos. 06-51670, 07-50441.

522 F.3d 533 (2008)

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; Canary Roost, Inc.; Canary Hut, Inc.; Gail E. Johnson; Keep Austin Free PAC; Tony Sirgo; Edward Check; Bill Hardee, Plaintiffs-Appellees, v. CITY OF AUSTIN, Defendant-Appellant. Roark & Hardee LP, doing business as Warehouse Saloon & Billiards; Pub Draught, Inc., doing business as Lovejoys Tap Room & Brewery; Joseph Chip Tait; Keep Austin Free PAC; Tony Sirgo; Edward Check; Bill Hardee, Plaintiffs-Appellants, v. City of Austin, Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

March 27, 2008.

Attorney(s) appearing for the Case

Marc Aron Levin (argued), Potts & Reilly, Austin, TX, for Plaintiffs-Appellees.

Jennifer Scott Riggs, Riggs & Aleshire, Austin, TX, for GMC Investment, Inc., Canary Roost, Inc., Canary Hut, Inc. and Gail Johnson.

Meghan Lee Riley (argued), Lynn Ellen Carter, City of Austin Law Dept., Austin, TX, for City of Austin.

B. Craig Deats, Deats, Durst, Owen & Levy, Austin, TX, Clifford E. Douglas, Ann Arbor, MI, for Tobacco Control Legal Consortium, Am. Heart Ass'n, Am. Cancer Soc., Am. Lung Ass'n, Campaign for Tobacco-Free Kids and Americans for Nonsmokers Rights, Amici Curiae.

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...

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