Arguments Made in Court For, Against Indianapolis Smoking Ban

Indianapolis’ off-track horse betting parlor says its exemption from the city’s indoor smoking ban is justified, but several bar owners in the city are fighting it in court.

There a chance, though, the court could decide neither can allow smoking. That's because of one of the arguments being made by the city.

Steve Neal is owner of Harry C’s tavern on Indianapolis’ south side. He says since the city enacted a stronger smoking ban in 2012, his business is off by nearly half.

"A good percentage of our clientele, and especially our regulars, would then go to Beech Grove, where they can still walk in the tavern, go up to the bar, order a beer and light a cigarette," he said.

Neal and other bar owners are challenging the smoking ban. Their fight is based on an exemption to the law that still allows smoking at thecity’s off-track betting facility, Hoosier Park. They say that violates Indiana’s equal protection rules. A similar lawsuit recently struck down Evansville’s indoor smoking ban.

But the OTB’s lawyer, Mark Cramdley, says it’s justified because smoking in the parlor is overseen by state regulators.

"The license is issued by a state-level entity, and that state-level entity is not under the jurisdiction of the city; it can’t change the conditions of that license," he told a panel of appeals judges Monday.

Since state regulators control tobacco use inside the betting parlor with air filters and other measures, the exemption is warranted, Cramdley said.

The OTB and the city are joint defendents in the lawsuit. But that's not stopping the city from possible throwing the OTB under the proverbial bus, as one judge joked.

A lawyer for the city argued to the court that even if that exemption in its law violates the state constitution, judges could strike it down but leave the rest of the ordinance intact. If the court did that, smoking would still be outlawed in bars.

"If it is determined that the exemption for the satellite gaming facilities violates the Indiana Constitution then the severability clause in the Indianapolis ordinance allows this court to carve out the unconstitutional exemption," said city attorney Angela Katzan.

A decision is expected in a few weeks.