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City smoking ban dispute heads to Supreme Court

December 30, 2015

The Indiana Supreme Court wants to hear more from Hoosier Park about why patrons at its Winner’s Circle off-track betting parlor in downtown Indianapolis should be allowed to light up when smoking in similar public places is generally banned by city ordinance.

Hoosier Park is challenging a Court of Appeals ruling in June that voided an exemption for the satellite wagering facility from the city’s smoking ban ordinance. The ruling otherwise left Indianapolis’ smoking ban ordinance intact, meaning Winner’s Circle patrons would not be permitted to smoke if the ruling stands.

Justices on Dec. 16 scheduled oral arguments for Jan. 28 to determine whether to grant Hoosier Park’s petition to transfer the case.

Meanwhile, friends of the court who support Hoosier Park filed briefs saying there’s more at stake in this case than puffing while playing the ponies. They argue the lower appeals court ruling that voided the exception for Winner’s Circle also could snuff out municipal decision-making authority.

Indianapolis bar owners who oppose the ban say that argument is just blowing smoke. They contend if Winner’s Circle patrons can smoke, there’s no reason their guests shouldn’t be able to, and that the exemption violates the Equal Privileges and Immunities Clause of the Indiana Constitution. Justices weren’t enamored of that argument, however, and rejected the bar owners’ appeal petition on Dec. 11.

In June, Judge John G. Baker authored the decision that removed the exception after the ordinance was upheld by a Marion Superior trial court. “We find that the exception is unconstitutional because it treats satellite facilities differently than bars and restaurants, and this disparate treatment is not reasonably related to the inherent differences between the two entities.”

Lawyers for Hoosier Park include Peter Rusthoven of Barnes & Thornburg LLP and Scott Chinn of Faegre Baker Daniels LLP. In the petition to transfer, Rusthoven wrote the COA’s conclusion just isn’t accurate. The Indiana Horse Racing Commission regulates racing facilities including satellite wagering locations, and that distinction is an inherent difference between OTBs and bars and taverns, Hoosier Park argues.

“Unlike bars and taverns, the OTB has in fact been subject to extensive scrutiny by a state agency charged with regulating OTBs,” the petition says. This included approval by the commission of a tobacco management plan designating smoking areas, air filtration systems, and how smoking areas would be separated from non-smoking areas.

Hoosier Park also argues the COA decision “upsets decades of Indiana law and invades the province of a legislative body, by disregarding the city’s reasonable decision to defer to the commission.” The ruling also would create intergovernmental conflict between state and local government regulations, the brief argues.

Indianapolis attorney Mark Small represents owners of the Whistle Stop and Thirsty Turtle taverns who say their clientele should be allowed to smoke if Winner’s Circle patrons can. In their petition that was denied transfer, the bar owners noted that Indianapolis Mayor Greg Ballard vetoed a smoking ordinance that didn’t offer an exemption for the OTB, but signed a ban into law when the City-County Council approved an ordinance that included the exemption.

The ordinance amended in 2012 is in conflict with a 2005 Indianapolis ordinance that banned smoking because of the public health risks for people exposed to second-hand smoke, the bar owners argue.

“The city’s statement in support of Hoosier Park’s petition to transfer advances an argument antithetical to both the 2005 Ordinance and to equal privileges and immunities analysis” for Article I, Section 23 of the Indiana Constitution, Small wrote.

The bar owners also reject arguments that the exemption for the OTB should be allowed in deference to the city’s authority to defer to the Horse Racing Commission.

“The notions of local rule advanced here simply is local rule that enables well-heeled interests with resources to employ lobbyists to obtain an exemption and exclude less-monied interests from those same advantages,” Small wrote on behalf of the bar owners.

Money is a big reason Winner’s Circle hasn’t agreed to go smokeless. According to its transfer brief, Rusthoven wrote the facility studied its clientele and found 47 percent smoked, meaning that at least initially, it “could not economically risk making the [OTB] smoke free.”

In February 2014, the Indiana Supreme Court voted 3-2 to throw out Evansville's smoking ordinance because it exempted a local casino. The majority found the amended ordinance violated the equal privileges and immunities clause of the Indiana Constitution.

Meanwhile, the case has generated amicus briefs from the Indiana Association of Cities and Towns and the city of Gary. Both briefs say the Court of Appeals decision constitutes an intrusion on the authority of cities. The briefs focus on a concern that the COA opinion could require municipalities to provide rationales for ordinances they adopt.

“Of greatest concern, the Court of Appeals decision requires a municipality to specifically identify, on the face of all class-creating ordinances, all distinguishing characteristics of each class and the reasons for these distinctions,” Shelbyville attorney J. Lee Neely wrote in the IACT brief. The association believes the appellate decision decreases the level of deference afforded to cities and towns and will result in an unreasonable burden on local legislative bodies.

Ice Miller LLP partner George A. Gasper filed a brief on behalf of Gary, which like Indianapolis, permits smoking in gambling facilities that otherwise is disallowed by ordinance in other public places.

“Gary is particularly concerned that if the (Supreme) Court does not grant transfer, future courts may read the Court of Appeals decision as imposing new limitations on municipal ordinances that defer to state regulation,” Gary’s brief says.

Oral arguments are scheduled for 9:45 a.m. Jan. 28 in the Supreme Court courtroom.•
 

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