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Supreme Court weighs arguments in smoking-ban case

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The Indiana Supreme Court will decide whether the city of Evansville gets to exempt the only casino in town from a law that bans smoking nearly everywhere else.

At issue in part is whether one business or industry can make enough money to be exempted from rules that apply to all others. The decision could have repercussions in communities throughout the state.

An attorney representing Evansville bars and private clubs – which are subject to the smoking ban – told the Supreme Court on Thursday that the Evansville ordinance violates the Indiana Constitution’s equal privileges clause, which limits opportunities for one group that aren’t extended to others.

“Our quarrel – if I can use that word – is that the city of Evansville overreached” by classifying the bars and clubs differently than the Tropicana casino – and in ways that are not realistic, said attorney Charles Berger.

But Keith Vonderahe, an attorney representing the Evansville City Council, said the Indiana Supreme Court has allowed legislative bodies to carve out special rules and exceptions when the types of business affected are inherently different.

And in this case, he said, the casino qualifies because its tax structure, customer base, regulation and relationship to the city make it substantially different than bars and private clubs, including veterans and social organizations.

“Clearly if there was another casino in town, they would have to be treated the same,” Vonderahe told the Supreme Court justices.

He said extending the smoking ban to the casino floor would cut its business by roughly 30 percent, which would lead to a $4.3 million annual loss to the city’s capital improvement fund. That impact differentiates the casino from other businesses, he said.

But Justice Mark Massa said that argument means essentially the casino has “purchased special treatment.” That’s just the thing the state’s constitution was trying to prevent, said Chief Justice Brent Dickson.

And Justice Robert Rucker said that Evansville is unlikely to lose that money because if the court strikes down the ordinance, the city council could amend it to exempt bars and clubs as well. “Isn’t that the more likely scenario?” he asked Vonderahe.

The attorney called that the “probable outcome” but he said he couldn’t know what the city council would actually do.

Rucker said it’s obvious that casinos differ from bars in the way they’re regulated and the way they pay taxes. But he asked what that had to do with the smoking ban. “What is it about casinos and private clubs that make the smoking ban different?” he asked.

Vonderahe said the casino’s demographics are unique. He said that about 87 percent of gamblers come from outside Evansville, while most bar patrons are local. He said the city council has an interest in protecting its own residents from second-hand smoke, something that would be less effective at the casino.

He said the casino has also invested heavily in an air-circulation system that helps to minimize the affects of smoking.

But Dickson said such investments have “nothing to do with any inherent differences” that would qualify the casino for special rules under a 1994 Supreme Court decision that allows for some differentiation between groups.

That decision said courts should give substantial discretion to legislative bodies and set high standards that must be overcome before a court can declare a state or local ordinance unconstitutional. The decision also said that someone challenging a law or ordinance “bears the burden to negate every conceivable basis” for the law.

“No matter how unwise or how unsound the legislation is, it’s still given that substantial deference,” Vonderahe said.

But on Thursday, Dickson asked whether that deference should be narrowed. He said “that word ‘conceivable’ is scary.”

“It’s broad,” he told Berger, the attorney for the clubs and bars. “Your burden is to negate every conceivable basis. How do you get over that?”

Berger told the court that he believed his clients had indeed shown that the city had no reason for differentiating the casino from the bars and clubs.

“They’re being treated differently because they give less to the community from a financial standpoint,” he said.

The Indiana Supreme Court did not rule immediately. A decision is expected in the next several months.

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  • It's All About The Money
    Smoking Bans have been brought about by big pharmaceutical companies like Johnson and Johnson who funnel hundreds of millions of dollars to groups and organizations like the Robert Wood Johnson Foundation, the American Cancer Society, the American Lung Association, local health departments, community activists, etc. which is then used to pressure and incentivize law makers to pass smoking bans - all for the purpose of increasing the sales of nicotine cessation products like Chantix, Nicoderm, patches, gums, etc. They want to turn tobacco money into big pharma money and everybody down their food chain benefits. Casinos have enough money to fight back but local clubs and bars don’t and many end up shutting down. These companies and organizations should be able to help encourage people to stop smoking in accordance with the first amendment but having the government impose it by force in truly a sad time in American history.
  • Legal
    Why is any legal product that you can buy over the counter illegal to use in the first place? Lets expand this to food and how many calories that you can buy.
  • Closing
    Sadly, Mike, there have been a number of bars closed due to the smoking ban. The claim that bar owners were dumb, that they just didn't know the ban would help their business hasn't proven to be true. Many of those small neighborhood bars have clientele that is 90% smokers. Now instead of coming to the bar and spending hours, they have one beer and head home. When winter comes the loss of business will be much worse.
  • 30 percent Loss
    So it appears that all business establishments will lose roughly 30 percent of their revenue because of the smoking ban times the number of bars etc sounds like enough to push some to close.

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