Mole #??
Mole #3


IS IT TRUE… “MOLE #3” came out of brief retirement from his Florida home to forward a IIT message to us?  … “MOLE #3”  and his Harvard drinking buddies sent us an e-mail suggesting how Evansville City Council can amend the smoking ordinance to make it  constitutionally acceptable?  …Attached below is the e-mail that was sent to us for review and discussion?

Is it true that the City of Evansville can reenact its smoking ban by simply passing a new ordinance that exempts all local establishments with a ventilation system with the same or greater capacity than used by Tropicana?

Is it true that this in affect would exempt Tropicana and no other local establishments because such a ventilation system would be cost prohibitive to bars and clubs?

Is it true that this would pass constitutional muster because the disparity in treatment would be based on public health rather than economic benefits?


  1. Sounds like Snegal advice to me, might as well, Snegal is becoming the norm for Evansville,–“More than one way to skin a Cat!”,–What ever it takes!” –“The end justifies the means!” –The lack of Ethics goes DEEP in Evansville,–sad but true.

  2. More SNEAGAL tactics. Why do this? Most bars aren’t returning to smoking. The attitude among citizens and owners has been overwhelmingly in favor of staying non-smoking. It doesn’t make sense to revisit this issue. Besides, ventilators are measured and marketed by the volume of air moved within a given building. It could be successfully argued that some smaller systems in smaller buildings result in cleaner air than a larger system in a disproportionately large building.

    This approach could land us right back to square one.

    • Brad,

      In most cases, ventilation is measured in the number of times that the system can turn the air in the room. Filtration is measured by microns. Filtration removes airborne pollutants. Most bars are equipped with residential equipment that can be adapted easily to meet any filtration requirements. More so than commercial systems. If the guideline is based solely on the volume of air moved by the HVAC system, that wouldn’t make any sense. Any HVAC professional could prove that loophole to be wrong.

      • The systems seem to be divided into classes of residential, commercial, and industrial. It stands to reason the size of the system required to filter the air will be contingent upon the volume of air inside the structure. If the City Council sees fit to revisit this issue in the way outlined in this IIT, my prediction is we will be right back in this position with the SCOI ruling an arbitrary line based on a requirement of a massively oversized industrial air filtration system posed an unequal burden and violated the same Article I Section 23.

        This would depend on how the case was argued. If the case was presented properly, it might be demonstrated that the crux of the issue was volume of air moved over time, and an arbitrary requirement based on equipment size rather than filtration rates was in violation of the spirit and intent of the section, namely the”same terms” language. It could also be argued that if the Council members knew before passing the ordinance that Tropicana alone had a necessary system to comply with the ordinance, to the exclusion of everyone else, it could still be seen as a special immunity.

        Section 23. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.

        • The cleanliness of air is not a measure of the filtration system. If you want to have a metric, then place that metric on the air. To give perspective, the ambient air outside in a typical urban environment contains 35,000,000 particles per cubic meter in the size range 0.5 μm and larger in diameter. It would be quite simple to devise a specification on the air quality and use that as the metric. Cigarette smoke will have a certain particle size and count. Just set the spec to an acceptable level that is consistent with some public health level and test for it. They test for bacteria in restaurants by testing the food. Why not treat the air the same way?

          • What you’re saying makes sense. This is kinda what I was getting at, but less succinctly. This would constitute a fair metric. The size of the equipment is arbitrary and demonstrably unfair. If we followed Mole #3’s advice, we’d end up right back here. Even so, I still think with the response of bar owners, including the entirety of Franklin St. Businesses and others, so far indicating staying non-smoking is the way forward, revisiting this ordinance is a fool’s errand. A year away from elections, taking on this ban again would be asking for it.

          • To be clear though, I would be extremely reluctant to support handing code police a new toy air quality monitor and allowing smoking on the proviso air quality must pass inspections. I much prefer consumers assume the air is low quality when entering a smoking establishment. “Smoking Allowed” should be signposted conspicuously at entrances. That is one regulation I do support.

          • Editor,You actually are closer than the other comments.

            The unit of measure or [metric] for filtration/ventilation can have several applied definitions.
            The Micron as a unit is also more than one defined parameter,micron units can be a physical size of metric, or, a more commonly used measure, as related to difference in pressure/Hg or per/ inches of mercury.

            I would suggest the typical “toadies” response, such as, the useless information that Phyillp references is of little use.
            To catch a certain sized micron measure by size alone assures only that as the thing stops in the filter device and that it will continue to filter out or exhaust that size particulate.
            Other smaller toxins are not cleared for affect simply because they can pass through or around the filtration system as it becomes more restricted by actual trapped particulates.
            The exchange rate of fresh air intake vs exhaust usually would determine the buildings so called healthy building standards.
            Electrostatics,and other polarity or attractant generated systems can reduced smoking incursions in some conditioned spaces.
            However,the standard particulates of ambient air as drawn into a HVAC system anywhere in evansville or the surrounding area is or can be a molecule of less micron incursion per/size than tobacco smoke,even biologically exhaled or absorbed secondhand smoke.
            Thus any filtration system such as a commercial roll type timed application would require PM schedules that maintained the passiveness of the airflow for circulation without blockage induced bypass,So.

            Even though the casino has adequate ventilation per standard,as you know,the air inside is normally not smoke or odor free,certainly not biologically clear of the actual elements of concern due healthy buildings and smoking,as applied.
            That is a choice of building occupation and personal abstract of purpose.
            There,as,of,any ordinance applied to the standard of one verse’s the many,due ventilation system capabilities would have to reflect that standard upon any commercial structure in which people enter to conduct,or perform defined venues per needs applied,thereof,a bar,dining area,or retail outlet including an office or work place or school library,anyplace else,that never allows smoking anyway.

            Ventilation standards to control tobacco smoke incursion,are darn restrictive to pass requirements.

            Every rental,every school,every commercial building probably anything you’re trying to market or sell in the county that set such standards would be clause included due the equality of those affected.
            As would be shown by this ventilation standard,so the judgement must apply and equate to each building or structure to the same parameters,as well.

            Inforce that equally,smoke or no smoke.

            BTW,the sustainable balance* for such capabilities is easily observed recorded and I suppose published, if the need “would arise.”

            “CAN’O WORMS” you might get just what you ask for,heck I guess the cost and plethora of locations found would generate some business for the HVAC contractors,whether anyone could afford the standard or the PM is a whole other “cause due.”

            Meah,whats money,to the business commerce,its booming there and such,isn’t it?..well isn’t it?

            “semen fit vitis ex se produxerit fructus.”

            “a seed,becomes the vine,from which the fruit is brought.”

            (ole guy in toga,with a itchy rash.)

          • Everything adds up other than why you didn’t capitalize Evansville.

            What’s up with that Visitor?

  3. “Is it true that this would pass constitutional muster because the disparity in treatment would be based on public health rather than economic benefits?”

    Maybe, but now the courts have established “higher levels of scrutiny” which enables them to move the legislative line where they want it to be. I don’t know if that has ever been used in a similar issue, but those men in black love new tools to toy with the law.

  4. Mole #3’s idea is genius. Problem solved. Hopefully Mole #3 can provide more valuable free advice to the City through the wormhole bridge known as the CCO.

  5. Here’s some good news, that just broke:
    A Federal Judge just ruled that KY has to fully recognize same-sex marriage, with all the benefits of any other marriage. Yes, KY has a Constitutional ban on marriage equality, just like the one IN is eyeing.
    The case did not include the question whether the state could be forced to allow same-sex couples to marry there, so there was no ruling on that, but IN needs to take heed!

    • That is not good news. It doesn’t sound constitutional to me but then there are far to many Federal judges that do not care about a States constitutional rights. That sets a very very bad precedence.

      • Time will tell. Indiana is just going to cost itself a lot of money for a law that will be struck down. Scalia, who’s a real conservative, even says marriage equality is on the way.

        • So when Utah legalizes polygamy the Three Amigos can move to their old Kentucky home and have their Utah marriage equally recognized as Blue Grass approved?

          • I don’t have a problem with non abusive polygamy or gay marriage. I simply don’t have this burning desire to control other people’s lives like Christians seem to have. It’s funny that Christians are now playing the victim saying they’re being persecuted because we don’t have a theocracy. If you want that you’re free to move to Iran. Also, why cherry pick hating gays? There are lots of crazy rules in the bible.

          • @ Ghost
            A line will be drawn somewhere and someone will claim discrimination. Even your statement is don’t draw lines is drawing a line. Clearly you have drawn a line against Christianity and feel they should march to your morals, so what makes you better than them?

        • Post a preposterous hypothetical/strawman.

          Argue the hypothetical will result in the “destruction of America” or “the end of morality” Bawk Bawk about the sky is falling or will fall if white christian power and privilege is not maintained and/or worshipped.

          ♫ Same as it ever was ♫

  6. What a crock of s—. Just let the business owners decide on this one. It was already trending that way to begin with. I’m with the libertarians on this one.

    • Agreed +many.

      But letting individuals and businesses decide means the most high dictators of Eville would have one less thing to do and one less thing to use as a distraction. Not that it would matter…. I wonder how the sewer/water lines are doing.

  7. Mole # 3, stay retired !

    No, this approach would not work either. The purpose of the Ordinance was PUBLIC HEALTH. I doubt that the Casino claims that 100% of smoke is cleansed with the ventilation. Unless 100 % is removed–and no one breathes it in before it’s removed–it still negatively impacts PUBLIC HEALTH.

    Also, I doubt if you could find a serious lawyer to support this approach–it is a sham transaction on its face, as the Casino is once again favored in this scenario over the other businesses. The City needs to let go of the Casino titties, and find a new milk source so that we can become SELF SUFFICIENT.

    • I believe the standard would have to be inverted to pass muster. I.e., any swinging d— Bar & Grill that has one of those $ 125 Dust Eater devices from Sam’s could allow smoking. That way, anyone who exceeded that minimum standard could have smoking.

      Of course, this would be a really poor idea, because 2nd Hand Smoke would still be rampant in this smelly City (Bee Slough is bad enough !).

      I’m no freakin’ lawyer, but I bet my idea would get approved before Mole # 3’s !!

  8. They should pass a comprehensive ban and then sell waivers for a yearly not-at-all cheap fee structure. If Tropicana or any other business really wants to allow smoking, they can get their checkbook out and pay the fee. City/county has a new revenue stream that can use for more parks, stadiums, or hotels.

  9. I about as shocked this was overturned as there is gambling going on in Casablanca.

    You can’t have a pay to play system like what was suggested; a ventalation requirement based on size alone would violate what clause of the Constitution? Try 14 again, this time under due process, particlaurly civil due process. I stated before this ruling was a violation of the 14 amendment and that this ruling was biased. Listen to Harvard and you will waste even more money.

    Let’s look at the most recent paper chase of “snegal” shenanigans in Evanspatch, which make us look far less attractive than smoking being allowed in over 21 bars.

    1. Arresting a guy in 2011 for carrying a pistol like Wyatt Earp at the zoo. Distasteful yes but illegal no. Ruling he was disturbing the peace didn’t fly when it was tried in the south with respect to blacks using water fountains in the 1960s. Still in legal proceedings with last action in case being in Jan 2014. How much treasure is spent on this.

    2. The way the Ford Center was funded could not be duplicated given the change in HEA 1001 (modifications to debt referendum laws). This change was made shortly before the Ford Center was approved by a simple vote of our city council. Many believe this act was ammended precisely due to the Ford Center’s methodology of project approval. Our own Cheryl Musgrave wrote a State of Indiana letterhead memo about these changes on 11/25/2008 addressed to local governments; the Ford Center was approved by the council in Dec. 2008.

    3. No bid contract related to EVSC’s new HQ by using the EVSC Foundation as a run around the bidding process; courts ruled in favor of plantiffs on this one.

    Now people want to figure out more ways to infringe on rights. From a President ignoring the law with respect to implementation of the ACA to this, it is no wonder people get fed up. If there was only this much outrage at the decline of family unit most of our problems would be solved. Relax and have a smoke and a cocktail.

  10. Outhouse _Lawyer i’m not totally retiring yet. Please watch my Friday IIT post. My MIT and YALE buddies are having dinner this evening and I hope to post an additional scholarly opinion about the smoking issue. I enjoy reading your posts.

    • Mole 3,

      OK, fair enough. My buddies at Hodgini’s School of the Dance and Law are also formulating new options for the City.

      • WOW! that “Hodgini’s” comment was a real blast from the past, I think your showing your age. 😉

        (Man…I remember mom taking my sister there when I was very young, it was in the Weinbach and Division area was it not?)


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