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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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