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Appeals court upholds Indianapolis smoking ban

November 26, 2013

A federal appeals court on Monday upheld the citywide smoking ban in most Indianapolis bars, denying the injunction request brought by several bar owners who claimed the 2012 law would have a negative impact on their businesses.

The appellate judges noted the bar owners clearly established a negative economic impact as a result of the smoking ban, but a mere loss of future profits was not enough to base a claim.

Smoking is not a fundamental right, the 7th Circuit Court of Appeals pointed out, so the ordinance will stand if it passes rational basis scrutiny.

“There are numerous reasons the city may have chosen to limit smoking in enclosed public spaces, and the bar owners have failed to disprove all of them," Judge Michael Kanne wrote.

"[T]he city could have determined that they wanted to limit smoking in public places because it is annoying to nonsmokers, who are not used to inhaling smoke. It could also have reasoned that by banning smoking in public places, it would encourage more smokers to quit, improving health outcomes for more than just those exposed to secondhand smoke," Kanne wrote. "Whatever the city’s reasoning, the bar owners have failed to demonstrate that there is no rational basis on which a law restricting smoking in public places could be based."

Mayor Greg Ballard signed the ordinance in April 2012 expanding citywide restrictions against indoor public smoking to include most bars. The ordinance exempts tobacco specialty bars like cigar and hookah bars, retail tobacco stores, and private clubs that voted to permit smoking.

The bar owners sought declaratory and injunctive relief from the ordinance, asserting due process, equal protection, takings and freedom of association claims under the federal and Indiana constitutions.

Chief Judge Richard Young in the U.S. District Court for the Southern District of Indiana denied the owners’ request for relief.

The appeals court also rejected the bar owners’ claim that the ordinance denies them equal protection of laws because smoking remains legal in tobacco specialty bars.

“The city thus drew a line between traditional bars, for whom tobacco sales and usage are incidental to their primary business of alcohol and food sales, and tobacco specialty bars, whose business models depend on tobacco sales," Kanne wrote. "The bar owners essentially argue that this line was drawn incorrectly because it does not include their businesses, which also depend significantly upon on-site tobacco usage. But legislation ‘does not violate the Equal Protection Clause merely because the classifications [it makes] are imperfect.'"

The bar owners’ claims under the Indiana Constitution also failed.

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