Hall Drive-Ins, Inc. v. City of Fort Wayne

747 N.E.2d 643, 2001 WL 493280

Opinions

OPINION

SULLIVAN, Judge.

This is a companion case to Hall Drive, Ins, Inc. d/b/a Don Hall's Guesthouse v. City of Fort Wayne, 747 N.E.2d 638, (Ind. Ct.App.2001) decided today, under Cause No. 02A04-0005-CV-219. Its facts are strikingly similar, but for purposes of clarity we recite the facts of this case insofar as they are deemed to be of import to the decision.

Triangle Park (Triangle), like Don Hall's Guesthouse (Guesthouse) is a restaurant-bar. Also like Guesthouse, the bar area is a separate room within the structure housing the primary restaurant facility, Minors are not permitted in the bar area but are permitted in the remaining restaurant areas.

A City inspection officer cited Triangle for violating a provision of the City Anti-Smoking Ordinance requiring removal of all "ashtrays and other Smoking paraphernalia" from any area where smoking is prohibited. General Ordinance No. G-22-98 § 95.64(C). In this instance the item in question was described as an "ashtray ."

The citation was issued without regard to the application of Indiana Alcoholic Beverage laws vis-G&-vis restaurant/bars subject to the Anti-Smoking Ordinance.

The bar area in question was entered through a "swinging door" from the left side of the reception or lobby area of the building. Access to the restaurant proper was gained by entry through the right side of the reception or lobby area. The swinging door was approximately three and one-half feet in height, open at the bottom and the top. In the back portion of the bar area there was an open doorway, without a door, described as a "passageway" through which food servers accessed food customers in the bar area.

It is not clear from the record but there is evidence that in addition to the swinging front door and the rear open passageway, not all of the interior walls of the bar area extend fully from floor to ceiling.¹

Here, as in Guesthouse, no claim is made for exemption from the Anti-Smoking Ordinance under § 95.63(A)(2). Rather Triangle, as did Greathouse, falls within the first exception to the Smoking prohibition. § 95.683(A)(1).

Upon the authority of Guesthouse, and by applying its rationale to the facts of this case we hereby reverse the judgment of the trial court in favor of the City and direct that judgment be entered for the defendant Triangle Park.

ROBB, J., concur. SHARPNACK, C.J., dissents with separate opinion.

1

. However, relative to separation of bar areas from dining areas where minors are permitted, access to minors need only be reasonably deterred. There is no requirement for doors or gates. In separating a bar area from a family room where minors are permitted the dividing wall need only be "at least seventy-two (72) inches high." 905 Ind.Admin.Code 1-41-2. In the case before us, the evidence was that the wall or walls were higher than seventy-two inches, i.e. they were taller than the witness who was 6' 1" tall, ie. seventy-three inches.