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February 12, 2014

Indiana court throws out Evansville smoking ban

INDIANAPOLIS — Evansville officials can't spare a casino from the city's smoking ban, the Indiana Supreme Court ruled Tuesday.

The justices voted 3-2 to throw out the part of the ban that prohibits smoking in taverns and private clubs but exempts the riverboat casino that's docked at the Ohio River city.

Leaving the casino out of the ban violates the Indiana Constitution's Equal Privileges and Immunities Clause, which prohibits giving any citizen or class of citizen privileges or immunities not extended to everyone, the justices said. They reversed an appeals court ruling that upheld the ordinance.

Chief Justice Brent Dickson wrote that granting the casino an exemption was "tantamount to the government selling exemption ... for the bonus of anticipated financial benefits."

But Justice Loretta Rush said those very benefits were part of what made the casino unique and entitled it to exemption.

Rush wrote in her dissent that the casino had "inherent characteristics" that set it apart from other local businesses. Among those were the fact that most of its customers come from out of town, and that including the riverboat in the ban could cost Evansville more than $4.3 million in lost tax revenue and $6.3 million in lost wages of casino employees. Justice Robert Rucker agreed.

Mayor Lloyd Winnecke urged businesses to continue to enforce a no-smoking policy.

"The legislation was designed to protect the health and safety of Evansville residents, not to create the so-called unequal treatment between bars, taverns, private clubs and the riverboat casino," Winnecke said in a statement.

"I'm surprised," Evansville City Council President John Friend told the Evansville Courier & Press. "The only thing we can do is step back, regroup and see what the options are."

The ruling puts the city's 2006 smoking ban back into effect. That ban prohibited smoking in workplaces and other public places but exempted bars, private clubs and riverboats. The ban was later amended to include taverns and clubs, but still exempted the casino. Tavern owners and club officials challenged the ordinance.

The city's smoking ordinance was amended in 2012 and prohibits smoking in all businesses other than the Tropicana Evansville casino. Tavern owners and private club organizers argued that it treated their operations unfairly.

The Indiana Alcohol & Tobacco Commission said establishments that are no longer prohibited from allowing smoking as a result of the ruling must still follow with the state smoking law, which requires the posting of signs and filing for exemptions with the Indiana Excise Police.


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