by Dave Stafford for www.thweindianalawyer.com

A divided Indiana Supreme Court Tuesday rejected Evansville’s amended smoking ban that exempted the former Aztar riverboat casino, now known as Tropicana Evansville.

More than two dozen bar, tavern and club owners and several fraternal organizations, including Veterans of Foreign Wars Post 2953, challenged the city’s 2012 amendment to its smoking ban that carved out an exemption that permitted smoking at the casino.

The Supreme Court majority held the amended ordinance violated the equal privileges and immunities clause of the Indiana Constitution and voided the amendment, leaving in place the city’s 2006 smoking ban.

“Today we hold that this clause invalidates an Evansville ordinance expanding the city’s smoking ban to bars and restaurants but exempting its only riverboat casino,” Chief Justice Brent Dickson wrote, joined by Justices Mark Massa and Steven David.

The case is Paul Stieler Enterprises, Inc., d/b/a Harbor Bay, et al. v. City of Evansville and Evansville Common Council; VFW Post 2953, et al. v. City of Evansville and Evansville Common Council, 82S01-1306-CT-436 and 82S01-1306-PL-437.

The majority wasn’t persuaded by the city’s argument that the casino was situated differently than the bars and clubs that weren’t exempted under the statute, because the casino allowed gambling and produced a unique revenue stream for the city.

“It is tantamount to the government ‘selling’ an exemption from the Smoking Ban for the bonus of anticipated financial benefits while burdening other citizens and snubbing our framers’ intent in drafting Article 1, Section 23,” Dickson wrote. “This limitation on government power cannot be evaded on the sole grounds of financial benefit to a city’s coffers.”

But Justice Loretta Rush, writing a dissent joined by Justice Robert Rucker, found the argument persuasive and would uphold the smoking exemption for casinos.

“Expanding a smoking ban to cover bars, taverns, and private clubs, but exempting a riverboat, is reasonably related to a riverboat’s inherent characteristics – fiscal impact on the local economy and tax revenues, and out-of-town clientele that other local businesses lack.”

The ruling may have little impact on smoking at the casino, because a statewide smoking ban enacted in 2012 exempted casinos along with some private clubs, cigar and hookah stores, and bars and taverns meeting certain criteria.

INDIANAPOLIS-In an effort to address the distressing statistics regarding sexual assaults against young Hoosier girls, State Representative Gail Riecken (D-Evansville) has authored House Resolution 12 which requests the legislative counsel authorize a study committee to investigate human sex trafficking on the Internet.

“The average age when these children are first used in commercial sex is between 12 and 14 years old,” said Riecken. “All children are at risk of being trafficked because they are vulnerable and often fall prey to predators who use them in online advertisements for sex.”

The resolution, which passed unanimously out of the House, states that the study committee would be assigned to analyze the legal issues relating to the regulation of adult services as well as evaluate whether the Indiana courts would have jurisdiction over Internet sites that contain adult service advertisements.

Riecken said that it is common for children to be trafficked on the Internet because it is very difficult for law enforcement to find the victim or apprehend the perpetrator. Often times, these children are sold on escort sites where the trafficker takes pictures of that child scantily dressed, then advertises for customers to exploit her.

“These advertisements have the ability to reach into hundreds of thousands of Hoosier homes on a daily basis,” said Riecken. “We know that these sites have been found to involve illegal activity including sex trafficking.”

Riecken fears that because online advertising is one of the most visible activities of business, more and more children are being victimized and becoming at risk of being a part of the staggering statistics that reveal 1 out of every 6 girls are sexually assaulted or raped.

Tasked with considering how other states have regulated adult service advertisements, the study committee would determine the appropriate sanctions for an entity that advertises services that engage underage children in sex industries.

“Human trafficking is the second largest and fastest growing criminal industry in the world,” said Riecken. “Trafficking of children is a problem in Indiana and there is a critical need to determine the scope of this problem in the age of Internet technology.”

Riverfront REZ Solves the Evansville City Council’s Latest Anti-Smoking Dilemma

By: Joe Wallace

In 1988 the State of California passed a statewide comprehensive smoking ban yet every casino in the state allows smoking on the casino floor. One could legitimately ask how it is possible for every casino in the state to openly and legally refuse to abide by the laws that every other person and business in the state is obligated to live by. It is possible because all of the casinos in California are on Indian Reservations that are not subject to the laws of the state.

Let us make it perfectly clear that if the Evansville City Council moves forward with an exemption to a future smoking ban for Casino Aztar they will be in willful violation of the constitution and the resolution will eventually be struck down if it goes to litigation.

So now that the battle lines have been drawn in the City of Evansville regarding whether or not an exemption should be made for Casino Aztar with respect to a nearly comprehensive smoking ban, maybe the Evansville City Council members can take a lesson from the Golden State and give the land that the city leases to Aztar to a tribe of friendly native Americans. The tribe can then petition the Bureau for Indian Affairs to declare their 20 or so acres on Evansville’s riverfront to become a reservation and subject to none of the smoking ordinances that have been or may be passed by the State of Indiana or the City of Evansville.

This idea as far-fetched as some may interpret it to be is a very elegant way for Casino Aztar to get the smoking rules that it wants, the City of Evansville to preserve its base of revenue, and for the City Council members who have openly stated support for a comprehensive smoking ban to dodge their responsibility without being publically exposed as purveyors of falsehood.

How would the City of Evansville be able to give away this land and still collect the revenue? This can happen with an assignment of the existing lease to the tribe followed by a contract from the tribe to guarantee the revenue to the City at let’s say the total of the 2011 Aztar based payments to the City. The tribe could then enter into an agreement with Aztar for any amount that the two parties are pleased with. Of course if Aztar thrives on the reservation the tribe will get wealthy from the increased payments but the City of Evansville would never get less than it does now soothing the newly found fears of certain City Council members.

If the City Council does not possess the courage to do what a majority of them have clearly and openly stated they would do and pass a comprehensive smoking ban then the best course of action may just be for the City of Evansville to get out of the casino dependency business and let the land become an Indian Reservation. This will allow everyone to get what they want and will enable certain members of the City Council to avoid flip-flopping on this very important public health issue.

Hanta Yo CCO!

Note: Hanta Yo is the Lakota Sioux phrase that translates to “Lead the Way”

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.

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.

http://www.municipalinsider.com/st-louis-judge-first-to-find-missouris-red-light-camera-law-unconstitutional/

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.

WE MAY NOT NEED A CONVENTION HOTEL AFTERALL. It was widely reported that the conventions would flock to Indianapolis after they banned public smoking in 2012. A stadium, an arena, a new 1005 room hotel, and a downtown baseball park did not draw conventions to town but a smoking ban did. What does this mean for Evansville’s plans?

Published Previously

Not so long ago, Indianapolis was passed over time and again for conventions and corporate meetings despite a massive expansion of the Indiana Convention Center and a new 1,005-room, four-star hotel, as well as a new airport terminal that was the talk of the aviation industry and a colossal, retractable-roof stadium that hosted the 2012 Super Bowl.

Why? Air quality.

That all changed June 1, 2012, when citywide restrictions against indoor public smoking were expanded to include bowling alleys, hotel rooms, taxi cabs and most bars. The only exemptions were tobacco shops, hookah bars, existing not-for-profit private clubs and downtown’s off-track betting parlor.

That single law, said Visit Indy CEO Leonard Hoops, opened the door to a cluster of gatherings big and small.

“It’s kind of unbelievable,” Hoops said. “I don’t think there’s any doubt that over time this could mean tens of millions of dollars in economic impact to the city.”

The strict smoking ban was passed following months of intense debate with owners of some bars, bowling alleys and other businesses who warned it would hurt sales. But whatever losses the businesses might have sustained are seen as potential gains for the hospitality industry.

Americans for Nonsmokers’ Rights, a California-based not-for-profit, started the Smokefree Meetings Campaign in 2004 to encourage organizations to host meetings only in smoke-free cities, and

dozens of organizations—including some of the nation’s largest health care groups—joined the campaign.

In the 17 months since the wider Indianapolis ban was enacted, Visit Indy officials have wasted little time reaching out to organizers of more than 90 conventions that wouldn’t have considered Indianapolis. Groups like the American Lung Association, American Heart Association, American Cancer Society and the American Medical Association now have Indianapolis on their radar screens for gatherings.

“I could see it happening now, a gathering in Indianapolis,” said Danielle Patterson, government relations director in the local office of the American Heart Association. “With all the amenities this city has, the compact, clean downtown and the new strict smoking ban, it has definitely opened our eyes to this city.”

The American Heart Association is no small fish. Its annual meeting of scientists and researchers is one of the most sought-after in the country, with 25,000 attendees and an economic impact of more than $25 million. That would make it one of Indianapolis’ four biggest conventions.

A growing number of groups and organizations refuse to meet in cities lacking strong no-smoking laws, said Lindsay Grace, manager of mission services and advocacy for American Lung Association in Indiana. Grace said her group was among the myriad organizations that scratched Indianapolis off their lists prior to June 1, 2012.

”We have to walk the walk,” Patterson said. “Everybody in the health services field felt the same way. Meeting in a city with laws like [Indianapolis had] would have stood in contrast to so much of what this organization is about.”

Broader impact

The gains for Indianapolis’ convention business will extend far beyond health and wellness organizations, said Jay Gladden, dean of the School of Physical Education and Tourism Management at IUPUI. Companies in such fields as technology and manufacturing are increasingly mindful about the harm of smoking.

Hoops said youth and sports-related events, meetings and conventions also will be easier to land.

Even NCAA and Big Ten event organizers in recent years had begun to complain about Indianapolis’ lax smoking laws, hospitality officials said. Bars and restaurants designated as fan headquarters during the Big Ten tournament turned off fans from such schools as Michigan State University, Grace said.

Gladden, who moved from Massachusetts to Indianapolis in 2009, was amazed “at how difficult it was to avoid smokers.”

“It’s definitely something a meeting planner would have noticed on a site visit. Indianapolis was seen as behind the times.”

Global impact

Dirk Ebener, CEO of Atlanta-based NuernbergMesse North America, which represents more than 100 trade shows globally, said the smoking issue is as important to overseas travelers as it is to Americans. The American Coatings Show, which Ebener’s company organized here in 2012, attracted attendees from 69 countries.

Smoking and air quality are some of the more important considerations on his company’s six-page site questionnaire, he said, because a city’s smoking laws have become a front-burner issue with most convention and meeting organizers in the last six to seven years.

“The presence of smoking speaks directly to the overall cleanliness of a city,” Ebener said. “It makes a big difference when I don’t have to encounter it at a place like the airport, the first place a visitor experiences, or while waiting at a taxi stand.”

While Grace said most in the public health industry are aware of the changes in Indianapolis’ smoking laws, she thinks Visit Indy could raise general awareness with targeted marketing to other groups.

Visit Indy hasn’t led with a smoke-free message in its paid marketing, but rather used the fact during one-on-one sales calls to potential conventions, specifically those the organization wasn’t able to bid on hosting pre-ordinance, Hoops said.

Hot prospects

The city has yet to sign a convention deal due primarily to its stricter law, but Hoops said Visit Indy is in ongoing discussions with 17 of the 90-plus organizations that hadn’t previously considered Indianapolis.

As competition for conventions grows, any barrier a city can remove to winning business becomes that much more important, said Jonathan Day, a professor of hospitality at Purdue University.

“Look at the numbers. It’s ultra-competitive,” Day said. “So if there’s a factor that causes a big block of business to turn its back on your city entirely, that puts you at a distinct competitive disadvantage. Not having a strict smoking ban is that kind of factor.”

Competition is indeed intense.

Since 2000, convention center space has grown 35.4 percent, but total convention and trade show attendance has been flat, according to Dallas-based Center for Exhibition Industry Research. President Douglas L. Ducate said the competition among host cities trying to land trade shows and conventions is more competitive now than it has been at any time in 45 years.

“A city’s smoking law is no longer considered to be a small distinction,” Ebener said. “With a growing audience, it’s a major factor.”•

Source: Indiana Business Journal