(INDIANAPOLIS) - A Marion County judge says he will rule by the end of this week on a lawsuit challenging the smoking ban in Indianapolis.
Superior Court Judge James Osborn heard a motion on Monday to rule in favor of two bars who are challenging the ban based on the State Supreme Court's striking down of the strict smoking ban in Evansville.
A 3-to-2 majority of the Supreme Court ruled that Evansville's ban was unconstitutional because it banned smoking at bars except for the bar at the city's riverboat casino.
The bars suing in Marion County court, the Whistle Stop Inn and the Thirsty Turtle, were not part of the federal lawsuit challenging the ban that was turned aside by a U.S. district judge and the 7th Circuit Court of Appeals in Chicago last year.
The newer lawsuit was filed shortly after oral arguments were heard in the Evansville case.
"Our complaint was identical to the complaint filed in Evansville except for the names of the parties and the specific ordinance citation", said Mark Small the attorney for the Indianapolis bars.
"The only difference between the two laws is that in Evansville, there is an exemption for riverboat casinos. In Indianapolis, there is an exemption for satellite gambling bars."
The day of Supreme Court decision in the Evansville case, Small filed a motion asking Judge Osborn for an immediate ruling in the Indianapolis bars' favor. An attorney for the city-county government first tried to argue that the ban was legal since it was upheld in federal court. But Small says the federal court ruling was referenced by State Supreme Court Chief Justice Brent Dickson in his opinion in the Evansville case. Justice Dickson said the federal court left the question of equal application of the ban unanswered, and says that question is covered under state law.
The smoking ban in Indianapolis contains more exemptions than Evansville's now-former ban. In addition to the satellite betting bar, specialty tobacco bars like cigar and hookah bars can allow smoking, as can retail tobacco stores and private clubs whose members vote in favor of smoking. But Small claims the crux of the Evansville ruling is that one type of bar was favored over another.
"The exemption that was at issue in Evansville was the gambling boat. That's what they hung their hats on, and that's what we have cited in our case."
The lone off-track betting facility in Indianapolis, Winner's Circle on Pennsylvania Avenue, also has a bar and restaurant. It is owned by Hoosier Park Racing and Casino in Anderson and was exempted from the smoking ban largely for the same reason Evansville exempted it's casino - the amount of tax revenue it generates for local government.
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