Smoking Ban and Public Safety and Government & Economic Development

Indiana Supreme Court throws out Evansville smoking ban

February 11, 2014

A divided Indiana Supreme Court on Tuesday rejected Evansville’s amended smoking ban, which exempted the former Aztar riverboat casino, now known as Tropicana Evansville.

More than two-dozen tavern and club owners, and several fraternal organizations, including Veterans of Foreign Wars Post 2953, challenged the city’s 2012 amendment to its smoking ban that carved out an exemption that permitted smoking at the casino.

By a 3-2 vote, the Supreme Court majority found the amended ordinance violated the equal privileges and immunities clause of the Indiana Constitution and voided the amendment, leaving in place the city’s 2006 smoking ban. It prohibits smoking in workplaces and other public places, but exempts bars, private clubs and riverboats.

“Today, we hold that this clause invalidates an Evansville ordinance expanding the city’s smoking ban to bars and restaurants but exempting its only riverboat casino,” Chief Justice Brent Dickson wrote, joined by Justices Mark Massa and Steven David.

The majority wasn’t persuaded by the city’s argument that the casino should be treated differently than the bars and clubs that weren’t exempted under the statute  because the casino allowed gambling and produced a unique revenue stream for the city.

“It is tantamount to the government ‘selling’ an exemption from the Smoking Ban for the bonus of anticipated financial benefits while burdening other citizens and snubbing our framers’ intent in drafting Article 1, Section 23,” Dickson wrote. “This limitation on government power cannot be evaded on the sole grounds of financial benefit to a city's coffers.”

But Justice Loretta Rush, writing a dissent joined by Justice Robert Rucker, found the argument persuasive and voted to uphold the smoking exemption for casinos.

“Expanding a smoking ban to cover bars, taverns, and private clubs, but exempting a riverboat, is reasonably related to a riverboat’s inherent characteristics – fiscal impact on the local economy and tax revenues, and out-of-town clientele that other local businesses lack.”

The ruling may have little impact on smoking at the casino because a statewide smoking ban enacted in 2012 exempted casinos along with some private clubs, cigar and hookah stores, and bars and taverns meeting certain criteria.

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