Opinion: Smoking Ban Ruling Could Lead to Lawsuits


By: Brad Linzy

Tuesday the Indiana Supreme Court ruled against the Evansville smoking ban, citing the unconstitutionality of the Aztar/Tropicana exemption.

As most well know, this ban has drawn the ire of libertarians on the basis of property rights arguments, but the Aztar/Tropicana’s exception – which was introduced into the amendment by Councilman Dr. Dan Adams and approved by an 8-1 vote – raised the eyebrows of even those generally supportive of the ban.

While, at the time of its passage, Council members voting for the smoking ban downplayed any potential negative economic impact to Evansville’s bars, they granted this exemption to one business – from which the city has garnered a healthy portion of its budget – thus lending de facto acknowledgment of the negative impact.
Brad Linzy

To many observers at the time, the ban reeked of a conspiracy between Aztar and the seven Council members who voted for it. Indeed, it could be argued Casino Aztar could not have asked for a better sweetheart deal if they had written the ordinance themselves.

The list of Evansville bars that have gone out of business or seen reduced revenues since the ban is a further testament to this ill-conceived ban’s disastrous effects, one of the first casualties being Fast Eddy’s, which was located across from Aztar.

It is worth remembering that this ban was approved by seven members of the Evansville City Council. With the exception of Missy Mosby and Jonathan Weaver, every Council member, especially Dr. Dan Adams who introduced the Aztar exemption, should be heavily questioned on why their unwise council led to an unconstitutional city ordinance.

Furthermore, considering this unconstitutionality, it is not outside the realm of possibility the City of Evansville could face lawsuits by businesses adversely and unfairly affected by this ordinance; also any fines levied as a result of the unconstitutional ordinance could be subject to refund.

In several recent cases across the country where red light cameras were found to be in violation of state constitutions, most notably in Missouri and Ohio, the issue of refunds of fines levied using the unconstitutional practice has been brought up. In St. Louis, a judge ruled that fines paid “voluntarily” would not be repaid; however, fines garnered under “protest” could be subject to repayment.


One thing is certain: this smoking ban should never have passed, it was unconstitutional from the start, and the Evansville City Council members who voted for it should see this for exactly what it is – a huge black mark on their records.


  1. Do some real homework instead of blathering. Your decision is from 2012, and in late 2013 a Court further up the food chain found differently.


    In a ruling released this morning, the Missouri Court of Appeals for the Eastern District once again found the use red-light safety cameras to be legally sound. In a challenge to the Creve Coeur ordinance allowing for the use of red-light safety cameras the court stated

    “As we noted in Smith v. City of St. Louis, a red light camera ordinance that reduces the dangerousness of intersections by targeting vehicles that violate traffic regulations is rationally and substantially related to the health, safety, peace, comfort, and general welfare of the public, and is a valid exercise of a city’s police power.”


    “We also note this Court has already determined that the Ordinance bears a rational relationship to public safety.”

    Among the many notable court rulings that affirm the use of red-light cameras in Missouri, two decisions stand out. One is the 2009 federal ruling that found the city of Arnold’s red-light safety camera ordinance to be both legal and constitutional (see Kilper et. al. v. City of Arnold, Missouri, et al., 2009). The other, from the Eastern District Missouri Court of Appeals, upheld the city of Creve Coeur’s red-light safety camera program that treated the violation as a civil penalty and issued tickets to vehicle owners. The ruling found the city’s ordinance and program fulfilled all constitutional due process requirements (see Nottebrok v. City of Creve Coeur, Missouri, et al., 2011). Along with these significant cases, circuit court judges also struck down five class action lawsuits against red-light cameras in Missouri in 2012.

    Step down, Bradly, your libertarian point is annoying (as usual)

    • It was just one example to illustrate my point about the fines and from another state at that. It’s not the only example. your tangential point does not nullify the possibility of lawsuits coming from adversely affected Evansville businesses, regardless of your negative view of my personal politics.

  2. …..


    I take it you acknowledge full and comprehensive smoking bans are Constitutional (i.e., those not providing exceptions)?

  3. Regarding Fast Eddy’s, they went down because they were getting major ghetto. Has happened to several bars/night clubs. Icon being another example; Hammerheads is next. If I opened a bar I would not allow rap or cognac.

  4. This will be civil action to the point of making the sewer treatment bill look like chump change. Any investors wanting a piece of the action might want to join the new venture capital group funding the cases. Clearly it will earn many times more than any local investment group supporting Gage portfolio candidates.

    • …..So, what’s the ROI projected on this? Is the return preferred? Minimum investor criteria? Are investors restricted to smokers? Is there a pool reserved for smoker survivor groups w/ an even higher estimated return? Slam dunk investment huh?

      • ROI will approach infinity. Success breeds success. As the initial suits are publicized, every establishment impacted (count with a lot more than fingers and toes) will be able to use the case as precedence. As council tries to reserve budget funds to the point other community services are cut, continued flight from the city will respond to avoid the required tax increase. Watch closely, with the sewer, stadium, center, and other bills there is a ‘time’ element to spread payments. Not so with the settlements. This one is going to be pretty painful, pretty fast to the tax payer.

        On the other hand, to the plaintiff case investment pool, the returns will just keep on coming.

        On the question of a special reserve pool… I don’t think so. Isn’t treating one group differently the very basis of the underlying case. LOL

  5. I hold property rights sacrosanct. It is my belief that property owners should be able to allow or disallow whatever they wish on their own property, provided they have given ample warning to any patron or visitor to their property of any known dangers. I acknowledge the State of Indiana does not see it this way.

    Regardless, the possibility of lawsuits stemming from those bar owners whose businesses were demonstrably adversely, and unequally affected by the unconstitutional ban looms very large. If I was on the Council right now, I’d start budgeting for some legal defense. This could get very ugly.

    • “I hold property rights sacrosanct. It is my belief that property owners should be able to allow or disallow whatever they wish on their own property, provided they have given ample warning to any patron or visitor to their property of any known dangers.”

      In this particular situation, I believe you are as tommiromo would say, “right on.”

      I wouldn’t put one of those cancer sticks to my mouth for no amount of money. But to tell a business owner who has his financial ass on the line if he (or she) makes the wrong judgement on this issue is up to the nanny state, I believe is wrong.

      Obviously if you can’t stand smoke, don’t go there.

      If enough people don’t go there, I’ll garenf__kintee you the proprietor will get the point.

      When it comes to the “Boat,” the same people bitching about the smoke will be the same people bitching about the revenue when it is lost.

      So There

      • Word is, the Peephole on Main is going back to smoking. In their FB announcement, non-smokers flooded the comments urging them to reconsider.

        This is the way societal shifts should happen, through the democracy of free markets, not through the strong arm of government coercion.

        The trend was already headed for non-smoking anyway. The ban was unnecessary and not in the spirit of a free Republic.

  6. Dan Adams really cost the taxpayer millions of dollars. I hope he gets his ass beat if he runs again.

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