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High court says no smoking at Evansville casino 

click to enlarge COURTESY OF MAG3737 VIA FLICKR CREATIVE COMMONS
  • Courtesy of mag3737 via Flickr Creative Commons


By Jacob Rund

The Indiana Supreme Court ruled on Tuesday that Evansville's only casino could not be treated differently than area bars and clubs under the city's smoking ban.

The ruling concluded that the 2012 ordinance conflicted with the Equal Privileges and Immunities Clause of the Indiana Constitution.

"Today we hold that this clause invalidates an Evansville ordinance expanding the city's smoking ban to bars and restaurants but exempting its only riverboat casino," Chief Justice Brent Dickson said in the decision, which comes over five months after the Supreme Court heard oral arguments in the case.

The decision said a legislative body - such as a city council - can "attack a problem incrementally." But the court said the "resulting disparate treatment must be reasonably related to the inherent characteristics that distinguish the unequally treated classes."

"The 2012 amendment to the smoking ban fails this requirement," the decision said.

A number of bars and clubs jointly filed the lawsuit against the Evansville City Council, which unanimously passed the ordinance.

Justices Steven David and Mark Massa concurred with Dickson's opinion.

The ruling of the Supreme Court did not come unanimously, however. Justices Robert Rucker and Loretta Rush disagreed with the majority opinion. They said a riverboat casino has "inherent characteristics" that make it different from restaurants, bars, and private clubs in the area. The characteristics include the "fiscal impact on the local economy and tax revenues, and out-of-town clientele that other local businesses lack," said Rush in her written dissent.

An attorney for the Evansville City Council argued during the Supreme Court hearing in October that the smoking ban would have a negative economic impact on the Tropicana riverboat casino.

Keith Vonderahe, an attorney representing the Evansville City Council, said then that extending the smoking ban to the casino floor would cut its business by roughly 30 percent, which would lead to a $4.3 million annual loss to the city's capital improvement fund. That impact differentiates the casino from other businesses, he said.

Vonderahe also said the unique demographics of the casino and its customer base make it substantially different from the local bars and clubs. He said that about 87 percent of gamblers come from outside Evansville, while most bar patrons are local.

Charles Berger, the attorney for the bars and clubs, said during the hearing that the businesses he represents are "being treated differently because they give less to the community from a financial standpoint."

Berger could not be reached for comment Tuesday afternoon to comment on the Indiana Supreme Court's ruling.

Evansville Mayor Lloyd Winnecke released a statement expressing his dissatisfaction with the court's decision.

"We are disappointed by today's ruling of the Indiana Supreme Court. The ordinance that was struck down was a bipartisan piece of legislation," Winnecke said. "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. We encourage businesses to continue to enforce a no smoking policy, while the city continues to evaluate the legal implications of this ruling."

Jacob Rund is a reporter for TheStatehouseFile.com, a news service powered by Franklin College journalism students and faculty.
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