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Smoking-ban lawsuits face long odds, legal expert says

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Ten bar owners who are taking Indianapolis to court over a new citywide smoking ban that takes effect Friday at 6 a.m. stand little chance of stopping the ordinance, an Indianapolis law professor predicts.

The federal suits, filed over the past two weeks, claim the ordinance violates the Fourth and 14th amendments to the U.S. Constitution. The Fourth Amendment guards against unreasonable searches and seizures, and the 14th Amendment provides equal protection under the law.

The owners, who are representing themselves without an attorney, say they’re being deprived of the same rights afforded to private clubs, which are exempt from the ban.

They also charge that the ban violates other sections of the Constitution by allowing smoking in bars in Beech Grove, Lawrence, Speedway and Southport, also  located within Marion County.

The bar owners are asking a federal judge to issue a temporary restraining order or preliminary injunction to halt the ban until their arguments are heard.

The ordinance, signed by Indianapolis Mayor Greg Ballard April 19, expands existing citywide restrictions against indoor public smoking to include bowling alleys, hotel rooms and most bars. Tobacco shops, hookah bars, existing not-for-profit private clubs and downtown's off-track betting parlor are exempt from the ban.

David Orentlicher, a constitutional law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis, said he doubts the lawsuits will succeed.

“We’ve had smoking bans in a lot of states for quite some time, and there is no question about their constitutional validity,” he said. “You’re regulating businesses, and the Constitution allows that.”

The bar owners' Fourth Amendment argument would pertain to fair enforcement of the law rather than its passage, Orentlicher said. And to bring a 14th Amendment claim, the owners would need to argue that the ban is perhaps discriminatory by targeting a specific race or gender.

“They would have to prove [that the city is] acting on biases rather than legitimate public policy,” Orentlicher said. “There’s nothing in the smoking ban that suggests that.”

Rhoda Walker, who owns the Casino Lounge at 1711 E. Minnesota St., disagrees, saying that the smoking rights afforded to private clubs and other bars within Marion County are a violation of her constitutional rights.

“You can’t give one group rights and take them away from the other group,” she said. “Why would they come to my bar when they can go to Beech Grove and smoke.”

Other bars challenging the ban are Blue Chaparral, 5030 Southeastern Ave.; Catalina Bar, 3032 E. Washington St.; Colonial Inn, 4343 Madison Ave.; DJ’s Lounge, 1707 Prospect St.; Dancers, 8013 W. Washington St.; Maggie’s Lounge, 453 N. Rural St.; Riff Raff’s Bar, 2409 English Ave.; Road Dog Saloon, 4861 Southeastern Ave.; and Sugar Shack, 5560 Brookville Road

Meanwhile, City officials say they haven’t seen the lawsuits but are not surprised considering that similar challenges have been filed in other cities with smoking bans.

“We’re confident we’re going to prevail,” said Mark Lotter, spokesman for Ballard.

Tobacco specialty bars need to apply for a new license from the city’s Department of Code Enforcement to allow smoking in their establishments. The department has identified about a dozen that should apply for the specialty license. As of Tuesday, only three had applied, said Kate Johnson, spokeswoman for the department.

Those are Nicky Blaines at 20 N. Meridian St.; Indy Cigar Bar at 3357 E. 86th St.; and Egyptian Cafe & Hookah Bar at 6265 Carrollton Ave.

Those that fail to apply for the license will receive a “uniform traffic ticket” with a court date. The city prosecutor will drop the charge if they apply for a license before their court date, Johnson said.

To ensure bars are complying with the ban, the city has 24 property, safety and maintenance inspectors who can investigate violation complaints the city might receive.

The first citation is a $100 fine, the second is $200 and the third will lead to an appearance in the city’s environmental court, where a judge might levy a $2,500 penalty.

Citations can be issued to the bar or property owner, as well as the smoker.

Although the city will rely on citizen complaints to drive enforcement, Johnson said businesses that choose to ignore the ban won’t fly under the radar for long.

“We’ll do a lot of sweeps,” she said.

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  1. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

  2. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  3. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  4. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  5. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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