Indiana appeals court hears challenge to Indianapolis smoking ban
- Attorney for 2 bar owners argues that gambling exemption might be unconstitutional.
- Attorney for OTB says case differs from one involving Evansville ordinance that was struck down.
The owners of two Indianapolis bars believe they've found an argument that could overturn the city's 2012 smoking ban once and for all — and it starts with a single question:
Why should the city be allowed to permit smoking in its sole off-track betting facility, while simultaneously prohibiting it in bars that don't offer gambling?
It shouldn't, says attorney Mark Small, who argued Monday before the Indiana Court of Appeals on behalf of the Whistle Stop Inn and the Thirsty Turtle. In fact, Small said, that gambling exemption might be unconstitutional.
"What we have here is simply unequal treatment in Indiana," he said.
The legal challenge heard before the appellate court is the latest attempt to reverse the city's smoking ban, which went into effect in June 2012. A Marion Superior Court judge earlier granted summary judgment to the city in the case.
Small also was involved in a previous case heard before the 7th U.S. Circuit Court of Appeals in November 2013. That court upheld the ban.
The city's smoking prohibition affects bars, restaurants serving only patrons 18 or older, bowling alleys, hotel and motel rooms and nursing homes. The city had implemented an ordinance in 2006 that banned smoking in most other restaurants and workplaces.
But the ban provides exemptions for certain establishments, such as cigar and hookah bars, along with "satellite gambling facilities," including the Winner's Circle on Pennsylvania Avenue Downtown.
Small's case hinged in part on a ruling made by the Indiana Supreme Court in February 2014, when it struck down an Evansville ordinance that extended a city smoking ban to bars and restaurants but exempted the Tropicana casino.
In that case, the court rejected the ordinance, ruling 3-2 that the ban violated the Equal Privileges and Immunity Clause of the Indiana Constitution, which says the General Assembly "shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." If the state wants to carve out an exemption, the court said, it needs to show that there is an "inherent difference" in the item or organization for which that exemption is being made.
The exemption made for the Winner's Circle, Small claims, is no different from the one for the Tropicana casino.
"What is there about betting on horses and drinking that inherently involves smoking?" he said. "That's not an inherent part of the activity."
Mark Crandley, the attorney representing Winner's Circle owner Hoosier Park LLC, argued that the Evansville case is not comparable to the latest challenge.
"In this very unique circumstance, it is different than riverboat gambling," Crandley said, pointing to the differences in how off-track betting facilities and riverboat casinos are regulated. "The General Assembly chose to include in the Horse Racing Commission statute a provision requiring review of the smoke handling and other smoking issues. There is nothing like that in the riverboat casino statute."
Adriana Katzen, an attorney representing the city of Indianapolis, backed that argument. She said the regulations put in place by the Horse Racing Commission require those types of gambling facilities to take into account the "public welfare" and "public interest," including a requirement for air ventilation.
She added, however, that if the court were to decide that the gambling exception violated the constitution, it could be taken out of the city's ordinance without invalidating the rest of the ban.
The appellate court panel, consisting of Judges Ezra H. Friedlander, Edward W. Najam and John G. Baker, does not have a set date by which it must issue a decision in the case.
Star reporter Tim Evans contributed to this story.
Call Star reporter Jill Disis at (317) 444-6137. Follow her on Twitter: @jdisis.