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Whistle Stop Inn, Inc. v. City of Indianapolis

Court of Appeals of Indiana

June 24, 2015

Whistle Stop Inn, Inc., and Louise Liford d/b/a Thirsty Turtle, Appellants-Plaintiffs,
v.
City of Indianapolis, Mayor Greg Ballard, Indianapolis City-County Council, Appellees-Defendants and Hoosier Park, LLC, Appellee-Intervening Defendant

Appeal from the Marion Superior Court. The Honorable James B. Osborn, Judge. Cause No. 49D14-1310-MI-38464.

ATTORNEY FOR APPELLANTS: Mark Small, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE, CITY OF INDIANAPOLIS, MAYOR GREG BALLARD, INDIANAPOLIS CITY-COUNTY COUNCIL: Andrew P. Seiwert, Adriana Katzen, Amanda J. Dinges, Office of Corporation Counsel, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE, HOOSIER PARK: A. Scott Chinn, Anne K. Ricchiuto, Faegre Baker Daniels LLP, Indianapolis, Indiana; Mark Crandley, Barnes & Thornburg LLP, Indianapolis, Indiana.

Baker, Judge. Najam, J., and Friedlander, J., concur.

OPINION

Baker, Judge.

[¶1] In this case we consider whether an exception to the Indianapolis No-Smoking Ordinance is constitutional. The Indianapolis No-Smoking Ordinance generally prohibits smoking in public places, but it also contains several exceptions to this rule. For example, tobacco retail stores and fraternal clubs whose members vote to allow smoking are permitted to allow smoking on the premises. Here, we are determining whether an exception that allows smoking in satellite facilities--specifically, Hoosier Park Winner's Circle--violates the Equal Privileges and Immunities Clause of the Indiana Constitution. We find that the exception is unconstitutional because it treats satellite facilities differently than bars and restaurants and this disparate treatment is not reasonably related to the inherent differences between the two entities. Therefore, we sever the exception from the Indianapolis No-Smoking Ordinance.

[¶2] Whistle Stop Inn, Inc., and Louise Liford d/b/a Thirsty Turtle (collectively, the appellants) appeal the trial court's denial of their motion for judgment on the pleadings as well as the trial court's grant of summary judgment in favor of the City of Indianapolis, Mayor Greg Ballard, and The Indianapolis City-County Council (collectively, the City) and partial summary judgment in favor of Hoosier Park, LLC (Hoosier Park). The appellants argue that the exception from the general smoking ban for satellite facilities contained in Indianapolis Municipal Code section 616-204 violates the Equal Privileges and Immunities Clause of the Indiana Constitution. The appellants also argue that the trial court erred in allowing Hoosier Park to intervene as of right. The City and Hoosier Park (collectively, the appellees) argue that the exception does not violate the Privileges and Immunities Clause and ask that we affirm the trial court's grant of summary judgment. The City also asks that we find that this action was barred by res judicata and collateral estoppel. Finding that the disparate treatment between satellite facilities and bars and restaurants is not reasonably related to the inherent differences between the divergently-treated classes, we reverse the trial court's grant of summary judgment in favor of the appellees, sever the exception and declare it unconstitutional and void, and remand to the trial court.

Facts[1]

The Ordinance

[¶3] In 2005, the City-County Council for the Consolidated City of Indianapolis-Marion County (the City-County Council), passed a general no-smoking ordinance, which restricted smoking in most public areas. In 2012, the City-County Council passed Indianapolis City-County Ordinance Number 12, which contained amendments to, and provided certain exceptions from, the original no-smoking ordinance. These were codified at Indianapolis Municipal Code section 616-201, et seq. (The Indianapolis No-Smoking Ordinance). the Indianapolis No-Smoking Ordinance, the following entities are exempted:

(1) Private residences, except when used as a licensed child care, adult day care, or health care facility.
(2) Retail tobacco stores.
(3) Any business that as of April 1, 2012:
a. Is exempt from federal income taxation under 26 U.S.C. § 501(c);
b. Is a " club" as that term is defined by IC 7.1-3-20-1, or a " fraternal club" as that term is defined by IC 7.1-3-20-7;
c. Holds a beer, liquor, or wine retailer's permit under the laws of this state; and
d. Provides food or alcoholic beverages only to its bona fide members and guests; and, in addition,
Sends notice to the Health and Hospital Corporation of Marion County by September 1, 2012, that through a majority-vote of its general membership at a formal meeting or ballot of same, has elected to allow smoking, and that it is otherwise entitled to an exception under this section.
(4) Tobacco businesses licensed under chapter 988 of this Code.
(5) Any business that on or before April 1, 2012 held a license pursuant to IC 4-31-5.5 to operate a satellite facility in the consolidated city and county.

Indpls. Mun. Code § 616-204. The Indianapolis No-Smoking Ordinance also contains a severability clause, which provides that, should any provision of the Ordinance be declared invalid, the " remaining provision or provisions shall not be affected" if the remaining provisions can be given " the effect intended by the council." Appellees' Joint App. p. 420.

[¶4] Under Indianapolis Municipal Code section 616-204, any facility that wished to hold a license to operate a satellite facility--a facility where patrons gather together to watch, and bet on, horseracing--was required to hold such a license by April 12, 2012, to qualify for an exception. Satellite facilities in Indiana are governed by Indiana Code section 4-31-5.5-1, et seq., and pursuant to Indiana Code section 4-31-5.5-2, a state commission issues satellite facility licenses under certain conditions. As of April 1, ...


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