Indianapolis Bars Will Remain Smoke-Free

     CHICAGO (CN) – Bar owners cannot enjoin a 2012 ban on smoking in Indianapolis bars and taverns, the 7th Circuit ruled.
     In 2005, the City-County Council of Indianapolis banned smoking in most buildings, but provided an exemption for bars, taverns and bowling alleys.
     Last year, the council eliminated these exceptions, except for cigar and hookah bars, making smoking in most Indianapolis bars and taverns illegal.
     A group of Indianapolis county bar owners, led by Wanda Goodpaster, sued the city in federal court, seeking an injunction on the basis of violation to their due process, equal protection and freedom of association rights.
     At the hearing, several of the bar owners testified about the negative economic effects of the ban, although none of them said they faced insolvency.
     The bar owners also presented expert testimony from Dr. John Dunn, an emergency room doctor, who testified that secondhand smoke exposure does not have negative health effects.
     During cross-examination, Dunn readily acknowledged that he had previously described those who oppose smoking as members of the “High Church of Holy Smoke Haters,” and Chicago, which had banned smoking in 2008, as “an anxious, slightly overweight suburbanite fretting over cigarette smoke.”
     Indianapolis presented two medical experts with doctorates in epidemiology who testified that secondhand smoke causes disease. A tourism industry executive also testified for the city that Indianapolis would attract more businesses, convention traffic and tourists with the smoking ban.
     A federal judge found for the city, and the 7th Circuit upheld the ruling Monday.
     “Those attacking a statute on rational basis grounds have the burden to negate ‘every conceivable basis which might support it,'” Judge Michael Kanne wrote for a three-judge panel.
     He continued: “The bar owners have failed to meet this heavy burden. There are numerous reasons the city may have chosen to limit smoking in enclosed public spaces, and the bar owners have failed to disprove all of them.”
     Socializing with friends at a neighborhood bar qualifies neither as an intimate nor an expressive association, according to the 20-page judgment.
     “The relationship between regular patrons of a particular bar is not an intimate association,” Kanne wrote. “A bar’s clientele is not exclusive; any person on the street can drop in for a beer.”
     Furthermore, “the First Amendment does not protect coming together at a local bar to smoke,” the Reagan-appointed judge continued. “Bar regulars are not a group ‘organized to engage in speech,’ or an association that ‘seeks to transmit … a system of values.'”
     And while the bar owners have “clearly established” a decline in sales since the smoking ordinance went into effect, “the mere loss of future profits is a ‘slender reed’ upon which to rest a takings claim,” Kanne found, especially given that the poor economy is a complicating factor.
     Finally, the exemption of cigar and hookah bars is not unfair, because the disparate treatment is reasonably based on the fact that smoking is central to these businesses.
     “The distinction drawn still means that bars for whom tobacco is an integral part of their business model – and not just an incidental yet important part – can permit smoking within their walls while other bars cannot,” the ruling concludes. “Further, even if we do think that the traditional neighborhood bars are more like cigar and hookah bars, the Indiana Supreme Court has refused to invalidate legislation simply because it is marginally over- or under-inclusive.”

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