ILNews

Smoking-ban lawsuits face long odds, legal expert says

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT