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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 the a new citywide smoking ban that takes effect Friday at 6 a.m. stand little chance of stopping the ordinance, a local law professor predicts.

The federal suits, filed over the past two weeks, claim the ordinance violates the Fourth and Fourteenth amendments to the U.S. Constitution. The Fourth Amendment guards against unreasonable searches and seizures, and the Fourteenth 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 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 Fourteenth 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 Mayor Greg 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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  • stupidity
    Mary, when you wreck that bike and have brain damage, youll wish you had that helmet. When you wreck that car and become paralized, youll wish you had put that seatbelt on. And when you get lun cancer, youll wish you had not smoked...
  • Pblic Establishment ??
    I may be misinformed but as far as I know pretty much All Bars are Privately owned, I know of no state or local government operated Bars or Restauraunts. Wouldnt that mean they are Private Property with the right to refuse service to anyone ?
  • Law
    Max,

    The "general welfare" language is in the preamble of the US Constitution. Preambles have no legal effect. the federal government doesn't have some blanket right to do something for the general welfare. Rather anything they do has to be authorized by a specific power in Article I, Section 8.

    The thing here though, it isn't the federal govt that passed the law but rather the city. States and municipalities have a lot more power to adopt laws...they don't need a specific authority to do so.

    Nonetheless, smoking bans have been held to be unconstitutional in some states. Most have been upheld, but to say the bans have been upheld 100% of the time is not accurate.

    The IBJ reporter used David Orentlicher as a litigation expert? When is the last time he's ever tried a case...if ever? Call him an expert on litigation is a stretch.
  • Almost there
    The final countdown has begun. Finally...common sense has prevailed. If the smokers wish to keep up their deadly addiction, they can still do it. Just step outside. I work for a company that went non-smoking years before the law was passed - and many of the smokers eventually were glad that something finally served as a reality check and helped them kick the habit. Hopefully it will help many of you do the same thing. Good luck.
  • State Ban
    Chicago politicians are happy that the state banned smoking in bars. They don't have to deal with the issue. The main issue with local police is complaints from the neighbors of the bars that comply.
  • Mary
    Wow....you sound really smart Mary.
  • WTH
    It is our choice to do what we wish with our body's, I smoke, I dont wear a helment when riding, and I dont wear a seatbelt, why? cause its my choice not anyone else's.
    • WTH
      if people dont want to be around cigarette smoke then why in the hell do they continue to work there or even go into places where people smoke, its my right to smoke where ever i want. Bars are going to loose alot of buisness with this law....
    • The hypocrasy
      Since the City and the State make a fortune in tobacco taxes, AND they license the selling of all tobacco products, the case should be based on whether the City should be allowed to sell tobacco licenses. If tobacco is not to be allowed in private property then the City and State should NOT be allowed to sell it. By licensing the selling THEY are saying that the product is not that dangerous!
    • Yes, It's Constitutional
      Ef Pfaff: Where in the Constitution is the part that you can engage in any behavior you choose, especially if it causes harm to others? What specific section? Yes, we are all waiting...I have read the Constitution several times, and I have never come across a right to smoke, nor an unrestricted freedom to engage any other type of behavior you choose.

      Sorry, Charlie, smoking bans are perfectly Constitutional, and they have been upheld against numerous legal challenges, as this one will be.

      People will still be able to smoke after the ban is passed. They simply will not be able to do so in a public establishment. That is how it goes.

    • It's Perfectly Valid
      Brian, no is telling anyone they cannot smoke. What the law does is restrict ones ability to pollute the air in a confined public place.

      Yes, excessive drinking is unhealthy just like smoking, but drinking, in and of itself, has no direct effect on anyone around you. Plenty of people can drink, even excessively, and then just fall asleep or sit around, etc. Of course, for those who do cause problems to others, they face legal consequences for their behavior. Similarly, if someone wants to smoke outside or in his or her own private residence or car where they are not causing an unreasonable health hazard to strangers around them, fine. But, for those who wish to go out into a public place indoor place where their smoking exposes others to carcinogens, etc., the law now restricts this behavior.

      And, behavior, is a key word. Smoking is a behavior choice. If you choose to smoke, just as if you choose to engage in any other type of behavior, then you must choose to do so in a manner that is reasonably safe for those around you.



    • A trade
      Just as smokers have a passion, I have as well. I've been known to have a beer or two on occasion. How would smokers feel if I were to "share" the byproduct of my actions?

      (If you suggest some type of physical harm in return, remember: we reserve to do the same in kind)
    • Dumb law
      I hate being around smokers. It makes me feel ill. I think smokers idiots for choosing to slowly kill themselves. Nevertheless, this is clearly an unconstitutional law infringing on private businesses. If you don't like smoking, don't go to places that allow it, period. I am sure that breathing trace amounts of automobile exhaust is unhealthy too, so why doesn't our omnipotent city ban cars as well?
    • Seriously?!?!?!?!?!?!?!?!?!?!
      I am NOT a smoker, however, I think the smoking ban is BS. First I don't know where they get 25% of the population smokes. I know more people who smoke than don't. That is beside the point though. The point is, if bartenders do not want to work in a place that allows smoking, and still wants to be a bartender; Go work in a bar that doesn't allow it. This should be a decision made by the owners of the establishment to allow, or not to allow, smoking in their business. Smoking in bars does not hurt the "majority of the population" Last time I checked the majority of the population do not go to bars. I don't mind going into a bar that has smokers in it, that is my choice. If you have a problem going into a bar that has smoking, then here is a no-brainer. DON'T GO THERE!!!!! Go somewhere else. Obviously some bar owners have no problem making there bars non-smoking, while others want to keep smoking. There will be enough bars in the area to make everyone happy. The government is over stepping its boundries by doing this. We have WAY TOO MUCH GOVERNMENT. If people want to smoke, what makes them worse than the people who are obviously choosing to drink? Drinking has been proven to be completely unhealthy in its own right. This is the dumbest law that we have wasted our tax payer money on. Leave it up to the business owners and not the people in the government. I don't smoke but I don't presume to tell other people how to live their lives either.
      • To Ed
        I'm sure you'll soon find out - when the lawsuit is thrown out - that the new non-smoking law IS Constitutional. You undoubtedly have been listening to too many far right wackos.
      • Reasonable regulation is reasonable...
        Ed, I'm afraid you misunderstand the Constitution. Just because the Constitution does not explicitly permit something does not mean that it is unconstitutional. Government has the explicit authority to promote the general welfare. It is, for example, constitutional for the government to prohibit you from dumping toxic chemicals on your private property which then poison your neighbor's children. Similarly, the government can act to ensure that U.S. Steel doesn't buy your quiet neighborhood park to turn into a mini-mill.

        This does not make me or anyone else a "nanny-stater" and it doesn't mean that I support the current president. It does mean, however, that I understand the Constitution to allow some government regulation of private property when there is an overwhelming public health issue and where the general welfare is served by such regulation.

        Also, adding volume doesn't increase an argument's persuasiveness.
      • Re: "Silly Eddy"
        1. Spell the name Right
        2. Regardless of all you say, it is STILL UNCONSTITUTIONAL, and you cannot change that with ALL of your Reasoning's, without a Congressional Bill, 3/4 of the States Agreeing, AND a Majority of the People (citizens) voting for it.
        When you get that Done, then it is Constitutional, Until then, IT IS NOT Constitutional!
        But, you apparently are going to be like our current president and NOT ALLOW the Constitution to get in your way...are you?
      • Constitution
        It's a public health issue bro. Businesses aren't FREE to exceed the maximum occupancy. You don't have the CHOICE to visit bars that weren't built following building CODE. There are regulations concerning the cleanliness of the kitchen in restaurants to protect public health.

        Second-hand smoke is clearly not healthy to breathe. Why should I have to reek of smoke and breathe toxic chemicals because of other's poor choices?

        As others have said, in a decade, we will all think it was absolutely crazy that we allowed people to smoke indoors in any public place.

        Remember, they used to allow smoking on planes, and in schools. This was a natural step, and I can't believe how people have lost their minds about it.

        One last point, the idea that businesses suffer has never actually happened. Owners have found that their business increases once the smoking bans are enacted. Something like 25% of the population smokes, why should the majority of the public be burdened for your poor choices?
      • Actually, CK,
        Bar Workers can find a job in another Bar, not looked at the want ads, have you, Tons of bar jobs out there. And, Ballard IS overstepping, but since you obviously Want the Government to tell you how you should live your lives, I can SEE why you would be all for this. Having someone tell you how to live Takes ALL Responsibility for your life out of your hands. Like I said, NANNY-STATE, Cannot think or Choose for yourself, so you want the government to do that for you.
      • Safety is a concern
        Ed, there many situations where citizens, in exercising there freedom, perform unsafe acts. Speeding, not wearing seatbelts and not using child safety seats in cars are just a few. With some of these, you could hurt both yourself along with others. Laws have to be passed to protect people from themselves and to protect others. In this economy, bar workers do not have the option to just find another job. They need to be protected, just like many of us are protected at our worksites. Half of the country has a smoking ban. Ballard is hardly doing any overstepping; he is trying to catch our city up.
        • Re:Marlboro Man-hater
          You have EVERY Right to NOT patronize any place that allows smoking, but you do NOT have a Right to Trample on those establishments RIGHTS to Allow smoking to take place. Private Property is NOT the Governments venue of Authority, or do you have a problem with the Constitution?
        • Get over it...
          People HAVE to breathe, people don't HAVE to smoke, it's a choice that they make. Why should non-smokers be forced to endure YOUR choice?
          • "Constitutional Validity
            David Orentlicher Needs to re-read the Constitution if he thinks the law, regulation or other ordinances regarding a Smoking Ban has consitutional validity. There is NO PLACE within the Constitution that allows a government entity to Dictate how a business operates or how a patron comports themselves, unless you are hurting another person by FORCING them to imbibe against their will. And a Smoking Ban Does Not Do This, no matter what anti-smoking citizens want to say. They have a CHOICE Not to Patronize establishments where smoking is permitted. NO ONE is forcing them to be around smokers, they Have A Right to NOT enter those establishments.
            But, in the NANNY-STATE Mentality that we currently live in, governments feel they have a RIGHT to circumvent the citizens RIGHTS of Expression, but there is NO Legal Authority under the Constitution that gives them this Right.
            Ballard has Overstepped his bounds by trying to enforce HIS WILL on the people in this way, and any Judge who agrees with him on this is also trouncing on his/her OATH of Office to Uphold the Constitution.
            This is not "Soviet America", this is a FREE Country, and government entities need to remember that. Ballard, as a Marine Fought with his life to Uphold the Constitution, and now with this, he is attempting to Trounce that very document!
            • Become a Private Club
              I'm not sure the specifics, but these places could easily become a private club. I've seen it it Alabama where only private clubs can sell liquor, so they sell a membership for $1.00 at the door - good for a set time frame - and allow entrance on with that membership card. Seems like that could solve these bars concerns and allow them to be smoking establishments if they choose. The only thing to remember is that private clubs have to take a vote every two years - the membership decides if the club is smoking or non, so it's still up to someone besides the "owners".
            • Really???
              "ALL of the small bars would close"? Really?

              As a hospital employee, I see every single day how smoking effects the health and well being of my patients. There is a direct link between smoking and poor health. "No one cares"? Really??? We are busting our butts to get people to quit smoking becaue we care about your health. If only you cared about your health as much as you cared about complaining, you would be much healthier. Really.
            • Smoking Allowed in Lawrence, etc?
              I just became aware that the smoking ban does not apply to Lawrence, Beech Grove, Speedway and Southport. Why these towns haven't been swallowed by Indianapolis is crazy and very inefficient - government at its best. This is really Mitch's legacy. Daniels should have push through a state-wide smoking ban like Ohio and Illinois years ago. Now we are still stuck in the muck, wasting time throughout the state debating something that is common sense.
            • The law is for the non-smokers
              I know no one likes for the government to step on anyone's personal rights, but my understanding is that the ban is intended to protect non-smoking employees and customers. A side benefit would be that the smoker would just quit the expensive and senseless habit and enjoy and longer, healthier life. I am a former smoker and am so glad not to smell as bad as I did (and didn't even realize it at the time)
            • No One Cares
              In today’s society no one cares about the smoker. They don't care that tobacco revenues have been funding the children’s health insurance policy (SCHIP) They don't care about the additional tax revenue that is created. They really don't care about the hole in the wall bars. The people that frequent these establishment are undesirables to most of the politicians and policy makers. The smoked filled bars are going to be a thing of the past. All of the small bars will be closing because of it. Look for liquors store sales to go up.

              • Can't wait for this to happen
                As a Broad Ripple resident, I'm looking forward to the many "new" places I (and many of my friends and neighbors) can go for a meal or cocktails. About a year ago we tried Chumleys because we'd heard about the great burgers there - but afterward we vowed never to try that again until someday the place was smoke-free. I agree that someday we'll look back with disbelief that we ever considered it acceptable to allow smoke-filled bars and to Hell with the employees and customers.
              • Ban
                Those little hole-in-the wall bars are trivial in the grand scheme of things. I hope the smoking ban succeeds.

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              1. I am not by any means judging whether this is a good or bad project. It's pretty simple, the developers are not showing a hardship or need for this economic incentive. It is a vacant field, the easiest for development, and the developer already has the money to invest $26 million for construction. If they can afford that, they can afford to pay property taxes just like the rest of the residents do. As well, an average of $15/hour is an absolute joke in terms of economic development. Get in high paying jobs and maybe there's a different story. But that's the problem with this ask, it is speculative and users are just not known.

              2. Shouldn't this be a museum

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