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Judge upholds Delaware County smoking ban

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Delaware Circuit Judge Marianne Vorhees refused to strike down an ordinance passed this summer by the county commissioners that enhanced the county’s smoking ban by prohibiting smoking in bars and private clubs. In her ruling Wednesday, she said those who are unhappy with the ordinance should use the political process to try to change it.

The Delaware County Licensed Beverage Assoc., along with four American Legion posts and Low Bob’s Tobacco, filed a lawsuit against the Delaware County Board of Commissioners and the county health board claiming the enhanced ordinance is unconstitutional under the state and federal constitutions.

The plaintiffs took issue with the evidence relied upon by the county commissioners to pass the ordinance. Vorhees found that the commissioners had reliable scientific evidence on which to base their conclusion that secondhand smoke causes disease in nonsmokers and that the public interest would be served by eliminating secondhand smoke in public places.

The judge noted in her order that the Delaware County Health Department provided evidence showing no bar/restaurant had gone out of business since the ordinance’s effective date, and that in fact, 21 new restaurants had opened in the county since the ordinance went into effect, with eight of those serving alcohol.

Vorhees saw the issue as ultimately a political one. She wrote if people aren’t satisfied with the decisions made by the county commissioners, they can use the political process to change or repeal the ordinance. She then pointed out she wasn’t advocating that voters remove any of the commissioners because they passed the ordinance.

“This Court will decline to find the ordinance at issue unconstitutional … But the Court hopes Plaintiffs will seek review by a higher court. The appellate courts in Indiana have not addressed this issue. These courts may see the issue in a different light from the trial court,” she wrote.

 

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