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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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