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Indianapolis bar owners challenge city's 2012 smoking ban in state appeals court

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INDIANAPOLIS — The owners of two Indianapolis bars who want to overturn the city's 2012 ban on smoking have pleaded their case before the Indiana Court of Appeals.

Attorneys for the owners of the Whistle Stop Inn and the Thirsty Turtle argued before the court Monday that the city shouldn't be allowed to ban smoking at bars that don't offer gambling when it allows smoking at off-track betting facilities.

Attorney Mark Small said the gambling exemption could be considered unconstitutional, the Indianapolis Star (http://indy.st/1B9Nw9r) reported. He told the court that this simply is a case of unequal treatment in Indiana.

The city's smoking ban affects bars, restaurants serving only patrons 18 or older, bowling alleys, hotel and hotel rooms and nursing homes. An ordinance implemented by the city in 2006 already upheld a ban on smoking in most other restaurants and workplaces.

But certain establishments are exempt from the ban, including cigar and hookah bars, as well as "satellite gambling facilities."

Small cited a ruling by the Indiana Supreme Court last November, when it rejected an ordinance that extended a city smoking ban to bars and restaurants but exempted the Tropicana casino. The court decided that the exemption to the ban violated the Equal Privileges and Immunity Clause of the Indiana Constitution, which says the General Assembly "shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens."

The court ruled that the state must show there's an "inherent different" in the item or organization for which the exemption is being made.

Small argued that there's no difference between the Tropicana casino and exemptions made for similar gambling facilities in Indianapolis, such as the Winner's Circle.

"What is there about betting on horses and drinking that inherently involves smoking?" he said. "That's not an inherent part of the activity."

But an attorney representing Winner's Circle's owner Hoosier Park LLC claims that the two cases aren't comparable because there are different regulations for off-track betting facilities and riverboat casinos.

A specific date for the appellate court panel's decision hasn't been set.


Information from: The Indianapolis Star, http://www.indystar.com

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