Indiana News

Justices Hear Arguments on Constitutionality of Evansville Smoking Ban

Bars charge it's unfair to exempt casino and not them

10/3/2013

Evansville bar owners' attempt to undo that city's smoking ban has reached the Indiana Supreme Court.

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Unlike the state smoking ban, Evansville's ordinance includes bars and clubs. But it does exempt Evansville's Casino Aztar. Bars contend that's unequal treatment that makes the law unconstitutional.

Assistant city attorney Keith Vonderahe argues past cases require the court to give "substantial deference" to the city council's decisions -- he says any justification that's not arbitrary or "manifestly unreasonable" is enough to uphold the law.

Vonderahe argues there are at least three valid rationales for treating casinos differently. He says the state's strict regulations on casinos make them inherently different. And he points to a study calculating casino revenue would drop 30% if smoking were banned. Since the city receives a cut of that money under its lease agreement with Aztar, Vonderahe says the city has a financial motive to prevent that from happening.

Chief Justice Brent Dickson and Justice Mark Massa questioned that reasoning. Massa asked if Aztar has in essence purchased special treatment.

But Justice Robert Rucker says the Indiana Court of Appeals has already found another justification persuasive. Since nearly 90% of casino patrons are from out of town, he says, there's an argument that the city has a vested interest in protecting the health of its own citizens, but can choose to draw the line at doing so for casino visitors.

And Rucker wonders aloud whether finding the exemption unconstitutional would produce a result the bars didn't anticipate. He suggests striking down the exemption might not free the bars from the smoking ban, but instead extend it to the casino.

Vonderahe warns striking down the ordinance would prompt a blizzard of similar lawsuits against other smoking bans, each of which would have to be judged individually.

As always, there's no indication of when the court will rule.

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