declaratory relief and injunction form

07-1-00320Assignment 6Document 1

Republic of the PhilippinesRegion VII

Regional Trial CourtBranch 32, Dumaguete City

ASSOCIATION OF RETAILERS (AOR), representing affected members, Civil Case No. XXXXX

Plaintiff-versus-

CITY COUNCIL OF DUMAGUETE, HON. WOODY WOOD-PECKER, in his official capacity as Vice-Mayor, FRANKLIN ROOSEVELT., ARTHUR MCARTHUR, FERLITA CORAZON, BOBBY PROMETHEUS, RIDICULE HERCULES, PETRA MAHALIMUYAK, ISDA LAPU-LAPU, CARAMELA LABLAB, TSOKOLATE PUTO, MANGGA MATAMIS, in their official capacity as City Councilors,

COMPLAINT FOR DECLARATORY RELIEF AND INJUNCTION

DefendantsX-------------------------------------------------\

JURISDICTION AND VENUE

This case assails the constitutionality of an ordinance within this Court’s

jurisdiction under Rule 63 of the Rules of Court.

This Court has the authority to grant declaratory relief pursuant to the same Rule.

PARTIES

Plaintiff ASSOCIATION OF RETAILERS (AOR) is a duly registered Filipino

association with place of business at Dumaguete City. It is represented by its President,

Wishing Well;

Defendant CITY COUNCIL OF DUMAGUETE is the legislative body of

Dumaguete City;

Defendant HON. WOODY WOOD-PECKER is the Vice-Mayor of Dumaguete

City and the ex-officio presiding officer of the City Council of Dumaguete;

Defendants FRANKLIN ROOSEVELT., ARTHUR MCARTHUR, FERLITA

CORAZON, BOBBY PROMETHEUS, RIDICULE HERCULES, PETRA

MAHALIMUYAK, ISDA LAPU-LAPU, CARAMELA LABLAB, TSOKOLATE PUTO,

MANGGA MATAMIS, are the members of the City Council of Dumaguete City.


COMPLAINT FOR INJUNCTION AND DECLARATORY RELIEF

Plaintiff, thru counsel, respectfully states that:

1. Defendants City Council of Dumaguete City and its members has adopted Ordinance

No. XXXX (Ordinance) banning tobacco advertising on billboards, store windows,

any site within 1,000 feet of a school, and “any other location where minors under the

age of 18 years traditionally gather;”

2. The above-quoted portion is overbroad and ambiguous so that it violated the

plaintiff’s and its member’s right to commercial speech;

3. The apparent purpose of the ordinance is to discourage school-age children from

smoking;

4. The Ordinance is unconstitutional for failing on three points:

a. While the Ordinance has a substantial purpose, however, such is not directly

advanced by the ordinance. The interest the law wishes to protect may be

advanced by other direct means such as education about smoking, rather than

a ban on billboards;

b. The Ordinance is overbroad because it failed to define the scope of the ban

narrowly. The ordinance sweeps within it a wide range of “tobacco

advertising” at bookstores, newspaper and magazine stands, restaurants, and

theaters, where adults are reading or hearing both commercial and non-

commercial speech which is constitutionally protected speech;

c. The Ordinance is ambiguous because it uses ambiguous terms, such as “any

other location where minors . . . traditionally gather.” This provision fails to

notify commercial speakers what venues are within the ordinance’s purview.

Moreover, such a provision gives city officials wide discretion to favour or

disfavour speech content depending on what venues they decide are included

within the ordinance. There has been no standard of construction in

Dumaguete City of the phrase “traditionally gather,” thus, such a phrase fails

to pass constitutionality.

5. The petitioner has a clear legal right to commercial speech which is protected by

Article III, Section 3 of the 1987 Constitution and recognized in Pharmaceutical and

Health Care Association of the Philippines vs. Duque III, 535 SCRA 265. It is also

clear that petitioner’s tobacco advertising is a lawful activity and not misleading.

6. Unless declaratory relief and/or restraint is granted, plaintiff and its members will

suffer grave and irreparable injury because the Ordinance deprives plaintiff and its


members needed advertising revenue.

WHEREFORE, plaintiff respectfully prays that this Honorable Court annul the

Ordinance for being unconstitutional and grant the declaratory relief and/or injunction.

Other just and equitable relief under the foregoing are likewise being prayed for.

Respectfully submitted.

Dumaguete City, Philippines. March 3, 2014.

Sgd.Procopio Magsaltamingan

Counsel for PlaintiffDumaguete City


VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING

I, Wishing Well, of legal age, President of Association of Retailers do hereby state

that: I am representing the plaintiff in the pleading entitled COMPLAINT FOR

DECLARATORY RELIEF AND INJUNCTION and in such capacity, caused this

Complaint to be prepared; I have read its contents and affirm that they are true and

correct to the best of my own personal knowledge; I hereby certify that there is no other

case commenced or pending before any court involving the same parties and the same

issue and that, should I learn of such a case, I shall notify the court within five (5) days

from my notice.

IN WITNESS WHEREOF, I have signed this instrument on March 3, 2014.

Sgd.

Hantok Dekalar

SUBSCRIBED AND SWORN TO before me in Dumaguete City on March 3 2014,

affiant exhibiting before me his Government Issued ID no. G02-1-1234 issued on March

25, 2013 at the Land Transportation Office, Dumaguete City.

declaratory relief and injunction form

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