Indy Smoking Ban Upheld, But Will Be Appealed To State Supreme Court

Jul 29, 2014

No matter the outcome at the appellate level, the case was likely to find its way to the state's highest court.
Credit Raul Lieberwirth / https://www.flickr.com/photos/lanier67/237055775

A judge has upheld Indianapolis' smoking ban in a ruling that will be appealed directly to the Indiana Supreme Court.

In a ruling issued Monday, Marion County Superior Court Judge James Osborn ruled against a lawsuit filed by two members of the Tavern League of Indiana - The Thirsty Turtle and the Whistle Stop Inn.

Their attorney, Mark Small, had asked Osborn for an immediate ruling against the smoking ban after the state Supreme Court struck down Evansville's ban.

The court ruled 3-2 that Evansville‘s ban violated the state constitution‘s Equal Privileges and Immunities Clause because it exempted the city‘s riverboat casino, which had said it would not generate as much tax revenue for Evansville if it was forced to ban smoking.

The bars in Indy claimed the city‘s exemption of its off-track betting facility was identical.

"It‘s a matter of a casino have bought unequal privileges and immunities. Those aspects of [Judge Osborn‘s] decision run counter to what the Supreme Court held late last year," Small says.

The ban in Indianapolis, however, contains other exemptions - tobacco stores, cigar and hookah bars, and private clubs whose members vote to allow smoking.

"Ordinances written similarly across the country have been found to be legal and valid," says Smoke-Free Indy chair Katy Ellis Hilts. "We would love to see all places covered equally so that all workers in Marion County and across the state were protected from the harms of second hand smoke."

Small says he will immediately appeal the ruling. The Supreme Court can either accept the case or refer it to the lower Indiana Court of Appeals.