Whistle Stop Inn, Inc. v. City of Indianapolis

36 N.E.3d 1118, 2015 Ind. App. LEXIS 480, 2015 WL 3891972
CourtIndiana Court of Appeals
DecidedJune 24, 2015
DocketNo. 49A02-1407-MI-519
StatusPublished
Cited by1 cases

This text of 36 N.E.3d 1118 (Whistle Stop Inn, Inc. v. City of Indianapolis) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whistle Stop Inn, Inc. v. City of Indianapolis, 36 N.E.3d 1118, 2015 Ind. App. LEXIS 480, 2015 WL 3891972 (Ind. Ct. App. 2015).

Opinion

BAKER, Judge.

[1] In this case we consider whether an exception to the Indianapolis No-Sfioking 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 Touise Tiford 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, ETC (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 [1121]*1121that 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-treat-ed 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.

Facts1

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). Under 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. Thé 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, 2012,' the' Hoosier Park Winner’s Circle OTB (OTB) was the [1122]*1122only business that held a license to operate as a satellite facility.

The Litigation

[5] On October 17, 2013, the appellants filed suit seeking a judicial declaration that the Indianapolis No-Smoking Ordinance was invalid. They argued that the Ordinance violated the Equal Privileges and Immunities Clause of the Indiana Constitution because it banned smoking in traditional restaurants and bars, but allowed smoking in private clubs, tobacco shops, and satellite facilities. They argued that the exceptions were “arbitrary and capricious classification^] of properties and establishments for which smoking is prohibited,” and contended that the “only bases for these exceptions intimated by any member of the City-County Council was the threat by Mayor Ballard to veto any ordinance to prohibit smoking that omitted these exceptions.” Appellants’ App. p. 45.

[6] On December 11, 2013, the City filed its Answer, denying that 1) the appellants were bars and restaurants, 2) appellants were not exempted from the ordinance, 3) the only rational basis for the exceptions was a mayoral veto, 4) the exceptions bore no rational basis to the ordinance or were otherwise arbitrary, and 5) the exceptions had no paramount interest.

[7] On .February 11, 2014, the appellants filed an emergency motion for declaratory judgment and relief. The motion was based on our Supreme Court’s decision in Paul Stieler Enterprises, Inc. v. City of Evansville, 2 N.E.3d 1269 (Ind.2014). In Stieler, our Supreme Court found that an amended Evansville smoking ordinance violated the Equal Privileges and Immunities Clause of the Indiana Constitution by exempting riverboat casinos because the disparate treatment between bars/restaurants and riverboats was “not reasonably related to the inherent differences between the divergently-treat-ed classes.” Id. at 1278. Holding that the provision was not severable, our Supreme Court invalidated the amended ordinance and restored the Evansville smoking ordinance as it existed before the amendment. Id. In their emergency motion, the appellants argued that Stieler

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36 N.E.3d 1118, 2015 Ind. App. LEXIS 480, 2015 WL 3891972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whistle-stop-inn-inc-v-city-of-indianapolis-indctapp-2015.