whistle-stop-inn-inc-and-louise-liford-dba-thirsty-turtle-v-city-of ( 2015 )

Jun 24 2015, 10:12 am
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Mark Small CITY OF INDIANAPOLIS, MAYOR
Indianapolis, Indiana GREG BALLARD, INDIANAPOLIS
CITY-COUNTY COUNCIL
Andrew P. Seiwert
Adriana Katzen
Amanda J. Dinges
Office of Corporation Counsel
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
HOOSIER PARK
A. Scott Chinn
Anne K. Ricchiuto
Faegre Baker Daniels LLP
Indianapolis, Indiana
Mark Crandley
Barnes & Thornburg LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Whistle Stop Inn, Inc., and June 24, 2015
Louise Liford Court of Appeals Case No.
d/b/a Thirsty Turtle, 49A02-1407-MI-519
Appeal from the Marion Superior
Appellants-Plaintiffs,
Court.
The Honorable James B. Osborn,
v. Judge.
Cause No. 49D14-1310-MI-38464
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 1 of 24
City of Indianapolis, Mayor
Greg Ballard, Indianapolis City-
County Council,
Appellees-Defendants
and
Hoosier Park, LLC,
Appellee-Intervening Defendant
Baker, Judge.
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 2 of 24
[1] In this case we consider whether an exception to the Indianapolis No-Smoking
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 Louise Liford 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, LLC (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
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 3 of 24
Hoosier Park (collectively, the appellees) argue that the exception does not
violate the Privileges and Immunities Clause and ask that 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-treated
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.
Facts 1
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).
1
We heard oral argument in this case on May 18, 2014, in Indianapolis, Indiana. We thank counsel for the
parties for their exceptional oral advocacy.
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 4 of 24
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. The 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
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 5 of 24
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 only 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[s] 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
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 6 of 24
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-treated 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 was dispositive of the instant case because their complaint
raised “claims identical to those raised in the complaint” in Stieler. Appellants’
App. p. 63. The trial court eventually set an evidentiary hearing date of April 7,
2014.
[8] On March 3, 2014, the appellants filed a written motion for judgment on the
pleadings. They argued that Stieler was dispositive of the instant case and
contended that, under Stieler, the “City-Council General Ordinance is
unconstitutional on its face.” Appellants’ App. p. 85.
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 7 of 24
[9] On March 4, 2014, the City, with leave of the trial court, filed an amended
answer, asserting the affirmative defenses that the appellants’ claims were
precluded by res judicata and collateral estoppel because they were previously
litigated in Goodpaster v. City of Indianapolis, 736 F.3d 1060 (7th Cir. 2013). In
Goodpaster, the Seventh Circuit Court of Appeals upheld the Indianapolis No-
Smoking Ordinance, finding that the differing treatment of bars and restaurants
and specialty tobacco stores was permissible under the Indiana Constitution’s
Equal Privileges and Immunities Clause. It reasoned that, “[f]or traditional
neighborhood bars, smoking is incidental to the sale of food and alcohol. But
for cigar bars and hookah bars, smoking and tobacco sales are their raison d'être.
The distinction is thus reasonably related to the City’s decision to ordinance
smoking in traditional bars but not cigar or hookah bars.” Id. at 1076. On
March 11, 2014, the appellants filed a motion to strike the affirmative defenses
of res judicata and collateral estoppel. The trial court denied the motion.
[10] On March 21, 2014, Hoosier Park filed a motion to intervene, seeking
intervention as a matter of right and/or permissive intervention due to its
substantial interest in the outcome of the matter. On March 24, 2014, the
appellants filed their objection to the motion to intervene. Also on March 24,
2014, the parties appeared before the trial court for a hearing on the motion to
intervene. The trial court allowed Hoosier Park to intervene as a matter of
right.
[11] On April 1, 2014, Hoosier Park filed a motion for partial summary judgment.
Also on April 1, 2014, the City filed a response in opposition to the appellants’
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 8 of 24
motion for judgment on the pleadings as well as a motion for summary
judgment.
[12] Following a hearing on April 24, 2014, the trial court issued an order denying
the appellants’ motion for judgment on the pleadings. The trial court noted that
it must, for purposes of deciding a motion for judgment on the pleadings, deem
the moving party to have admitted the untruth of its allegations that have been
denied by the non-moving party. Thus, for the purposes of the appellants’
motion for judgment on the pleadings, the trial court deemed true the City’s
denial that the appellants were bar and restaurant owners and that they were
not exempt from the Indianapolis No-Smoking Ordinance. On that basis, the
trial court found that the appellants had not “established the jurisdictional
element of standing” and denied the appellants’ motion for judgment on the
pleadings. Appellants’ App. p. 6. In addition, the trial court stated that it
would issue orders on the appellees’ motions for summary judgment and partial
summary judgment at a later date.
[13] On July 25, 2014, the trial court issued its order granting the appellees’
respective motions for summary judgment. In its order, the trial court also laid
out the undisputed facts, principles of law, and conclusions of law underlying
its decision to grant summary judgment. The trial court determined that 1) the
doctrine of res judicata did not bar the appellants’ claim, as they were not in
privity with the Goodpaster plaintiffs, and 2) the exceptions from the
Indianapolis No-Smoking Ordinance for private clubs/fraternal organizations,
specialty tobacco shops, and satellite facilities were constitutional under the
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 9 of 24
Indiana Constitution’s Equal Privileges and Immunities Clause. Appellants
now appeal.
Discussion and Decision
I. Res Judicata
[14] The City argues that the appellants’ claim is barred by res judicata. “Res
judicata, whether in the form of claim preclusion or issue preclusion (also called
collateral estoppel), aims to prevent repetitious litigation of disputes that are
essentially the same, by holding a prior final judgment binding against both the
original parties and their privies.” Becker v. State, 992 N.E.2d 697, 700 (Ind.
2013). For a claim to be precluded under res judicata, four requirements must
be satisfied:
1) the former judgment must have been rendered by a court of
competent jurisdiction; 2) the matter now in issue was determined in
the former suit; 3) the particular controversy adjudicated in the former
action must have been between parties to the present suit or their
privies; and 4) the judgment in the former suit must have been
rendered on the merits.
Luxury Townhomes, LLC. v. McKinley Props., Inc., 992 N.E.2d 810, 817 (Ind. Ct.
App. 2013) (internal citations removed). The City argues that the appellants
should have been precluded from litigating this suit because the claim was
litigated in Goodpaster. 736 F.3d at 1060.
[15] As noted in the facts section above, in Goodpaster, the Seventh Circuit Court of
Appeals upheld the Indianapolis No-Smoking Ordinance, finding that the
differing treatment of bars and restaurants and specialty tobacco stores was
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 10 of 24
permissible under the Indiana Constitution’s Equal Privileges and Immunities
Clause. 736 F.3d at 1060. It held that, “[t]he distinction is thus reasonably
related to the City’s decision to ordinance smoking in traditional bars but not
cigar or hookah bars.” Id. at 1076. The appellees argue that the above case
precludes the appellants from litigating this claim due to res judicata.
[16] It is readily apparent that the matter now at issue was not litigated and
determined in Goodpaster. This appeal focuses on the exception for satellite
facilities contained in the Indianapolis No-Smoking Ordinance, whereas the
Goodpaster decision focused on the exception for tobacco and hookah bars. 736
F.3d 1060, 1075. Our analysis of the exception under the Equal Privileges and
Immunities Clause of the Indiana Constitution will be entirely different.
Therefore, the appellants’ claim is not barred by res judicata.
II. Hoosier Park as an Intervening Defendant
[17] The appellants also argue that the trial court erred when it granted Hoosier
Park’s motion to intervene. The trial court found that Hoosier Park was
entitled to intervene as of right under Indiana Trial Rule 24, which provides:
(A) Intervention of right. Upon timely motion anyone shall be
permitted to intervene in an action:
(1) when a statute confers an unconditional right to intervene;
or
(2) when the applicant claims an interest relating to a property,
fund or transaction which is the subject of the action and he is
so situated that the disposition of the action may as a practical
matter impair or impede his ability to protect his interest in the
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 11 of 24
property, fund or transaction, unless the applicant’s interest is
adequately represented by existing parties.
In addition, intervention as a matter of right is based on a three-part test.
Developmental Disabilities Residential Facilities Council v. Metro. Dev. Comm’n of
Marion Cnty., 455 N.E.2d 960, 963 (Ind. Ct. App. 1983). “The intervenors must
show: (1) an interest in the subject of the action, (2) disposition in the action
may as practical matter impede protection of that interest, and (3)
representation of the interest by existing parties is inadequate.” Id at 963-64.
[18] The appellants argue that Hoosier Park’s interest in the instant case is neither
immediate nor direct. See id. at 964 (“An applicant seeking intervention must
claim an immediate and direct interest in the proceedings.”). The appellants
argue that, if the outcome they desire—the Indianapolis No-Smoking
Ordinance is found unconstitutional—is achieved in this litigation, then
Hoosier Park is not harmed. The appellants maintain that, in fact, the only
possible outcome that would harm Hoosier Park is an outcome in which this
Court finds the exception for satellite facilities to be unconstitutional and severs
the exception, leaving the Indianapolis No-Smoking Ordinance otherwise
intact. The appellants also argue that the severability clause is not relevant to
the disposition of this matter, and therefore, Hoosier Park cannot have a direct
interest.2
2
The severability of the exception is discussed in section V of this opinion.
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 12 of 24
[19] We find that Hoosier Park did have an immediate and direct interest in these
proceedings. It is clear that Hoosier Park’s interests are in conflict with the
City’s interests, as Hoosier Park has no interest in invalidating the Indianapolis
No-Smoking Ordinance as a whole. At oral argument, counsel for the City
argued that the exception was severable from the Indianapolis No-Smoking
Ordinance as a whole, illustrating that its interests were in conflict with Hoosier
Park’s. We agree with Hoosier Park that “it would be an odd result that denied
Hoosier Park the right to participate in litigation in which Plaintiff’s argument
determined the viability of a regulatory framework that applied only to Hoosier
Park.” Hoosier Park’s Br. at 39.
[20] We also agree that the City could not adequately represent Hoosier Park’s
interests in the instant case. First, the City was not a party to the satellite
facility licensing or amendment process. Therefore, Hoosier Park is the party
with the most knowledge and understanding regarding the licensing
commission’s approval and how that approval might differentiate Hoosier Park
and the appellants. Second, as noted above, while Hoosier Park is interested
only in the exceptions for satellite facilities, the City’s interest is in defending
the Indianapolis No-Smoking Ordinance as a whole. As the Indianapolis No-
Smoking Ordinance contains a severability clause, the City could decide to
defend only certain exceptions or to take the position that all exceptions could
be severed. Therefore, the trial court did not err in determining that Hoosier
Park’s presence is required to adequately protect its interests and allowing
Hoosier Park to intervene.
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 13 of 24
III. Judgment on the Pleadings
[21] The appellants also appeal the trial court’s denial of their motion for judgment
on the pleadings, as they believe the Stieler case is dispositive.3 A motion for
judgment on the pleadings pursuant to Indiana Trial Rule 12(C) attacks the
legal sufficiency of the pleadings. Eskew v. Cornett, 744 N.E.2d 954, 956 (Ind.
Ct. App. 2001). A judgment on the pleadings is proper only when there are no
genuine issues of material fact and when the facts shown by the pleadings
clearly establish that the non-moving party cannot in any way succeed under
the facts and allegations therein. Id. In reviewing a trial court’s decision on a
motion for judgment on the pleadings pursuant to Trial Rule 12(C), this Court
conducts a de novo review. Id. In making this assessment, we look only to the
pleadings. Id. We will accept as true the well-pleaded material facts alleged,
and we will not affirm if there are any genuine issues of material fact. Id. In
addition, when we consider a motion for judgment on the pleadings, we deem
the moving party to have admitted all well-pleaded facts, and the untruth of his
own allegations that have been denied. Shepherd v. Truex, 823 N.E.2d 320, 324
(Ind. Ct. App. 2005).
3
The appellants also argue that the trial court erred in denying their motion for emergency declaratory relief,
which they contend should have been treated as a motion for judgment on the pleadings. The appellants
seem to argue that, although they did not frame the motion as a motion for judgment on the pleadings, the
trial court should have granted judgment on the pleadings when they orally requested that it do so at the
February 24 hearing. Appellants assert that the trial court’s decision citing complex “constitutional issues” as
the basis not to grant the emergency motion was wrong, because any “constitutional issues had been resolved
by the Indiana Supreme Court in the Paul Stieler case.” Appellants’ App. p. 71; Appellants’ Br. p. 17. The
analysis below also applies to this argument.
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 14 of 24
[22] The appellants argue that the trial court erred in denying their motion for
judgment on the pleadings because the instant case is controlled by our
Supreme Court’s decision in Stieler. In that case, our Supreme Court found that
an Evansville no-smoking ordinance was unconstitutional because the disparate
treatment between bars/restaurants and riverboats was not reasonably related
to the inherent differences between the divergently-treated classes. 2 N.E.3d at
1275.
[23] The appellants argue that the Stieler case disposed of the issue in instant case,
because “the Evansville ordinance was substantively equivalent to the Marion
County Ordinance.” Appellants’ Br. p. 26. They maintain that, just as the
divergent treatment in Stieler was not reasonably related to inherent differences,
neither is the divergent treatment at issue here.
[24] We find that the trial court did not err in denying judgment on the pleadings
because the instant case is not controlled by the Stieler opinion. Just as we
found that the Goodpaster decision did not control this case, as it focused on the
exception for tobacco and hookah bars, we do not find that Stieler—which
determined the constitutionality of a different exception from a different
ordinance—controls. 736 F.3d 1060, 1075. While we find Stieler instructive,
our analysis of the exception under the Equal Privileges and Immunities Clause
of the Indiana Constitution will be entirely different. We agree with the City
that the exception in the Evansville Ordinance determined to be
unconstitutional in Stieler differs from the exception in the Indianapolis No-
Smoking Ordinance under discussion in the instant case and, therefore, the trial
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 15 of 24
court correctly denied a motion for judgment on the pleadings based exclusively
on Stieler.4
IV. Constitutionality of the Indianapolis No-Smoking
Ordinance
[25] The appellants argue that the trial court erred in granting summary judgment in
favor of the appellees because they maintain that the Indianapolis No-Smoking
Ordinance violates the Equal Privileges and Immunities Clause of the Indiana
Constitution. When we review the grant or denial of a summary judgment
motion, we apply the same standard as the trial court. Kroger Co. v. Plonski, 930
N.E.2d 1, 4-5 (Ind. 2010). Summary judgment is appropriate only where the
evidence shows that no genuine issue of material fact exists and the moving
party is entitled to judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All
facts and reasonable inferences drawn from those facts are construed in favor of
the non-moving party, and all doubts concerning the existence of a material
issue must be resolved against the non-moving party. Id. Nevertheless, the trial
4
Appellants also contend that the trial court could not base its denial of their motion for judgment on the
pleadings on this issue of standing, as standing is a jurisdictional issue that should have been raised as an
affirmative defense by the appellees. See Domain Indust., Inc. v. Universal Pool Supply, 403 N.E.2d 889 (Ind. Ct.
App. 1980) (“The capacity of plaintiff to bring suit is an affirmative defense to be specially pleaded by the
defendant.”). They argue that “the trial court could not first deny Bar Owners’ Motion for Judgment on the
Pleadings on the ground Bar Owners lacked standing, then consider either City’s or Hoosier Park’s Summary
Judgment motion.” Appellants’ Br. p. 24. We agree that the trial court should not have denied the motion
for judgment on the pleadings on the basis of standing. However, in its answer, the City denied that 1) the
only rational basis for the exceptions was a mayoral veto and 2) the exceptions bore no rational basis to the
ordinance or were otherwise arbitrary. Therefore, judgment on the pleadings would have been inappropriate,
and the trial court did not err in denying appellants’ request for such.
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 16 of 24
court’s grant of summary judgment “enters appellate review clothed with a
presumption of validity,” and the appellant bears the burden of demonstrating
that the trial court erred. Trustcorp Mortg. Co. v. Metro Mortg. Co. Inc., 867
N.E.2d 203, 211 (Ind. Ct. App. 2007).
[26] In order for a statute to be valid under the Equal Privileges and Immunities
Clause, the statute must pass a two-tiered test (the Collins test): “[f]irst, the
disparate treatment accorded by the legislation must be reasonably related to
inherent characteristics which distinguish the unequally treated classes.
Second, the preferential treatment must be uniformly applicable and equally
available to all persons similarly situated.” Collins v. Day, 644 N.E.2d 72, 80
(Ind. 1994). “When an enactment is challenged under the Indiana
Constitution, it stands before this Court clothed with the presumption of
constitutionality until clearly overcome by a contrary showing,” and “the party
challenging the constitutionality of the enactment bears the burden of proof,
and all doubts are resolved against that party.” Dvorak v. City of Bloomington,
796 N.E.2d 236, 237-38 (Ind. 2003) (internal quotations removed).
[27] In addition, our Supreme Court has stated that, in general, the question of
classification for the purposes of the Equal Privileges and Immunities Clause is
a legislative question; it becomes a judicial question “only where the lines
drawn appear arbitrary or manifestly unreasonable.” Collins, 644 N.E.2d at 80
(internal quotations removed). And “[s]o long as the classification is based
upon substantial distinctions with reference to the subject matter,” this Court
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 17 of 24
will not “substitute our judgment for that of the legislature; nor will we inquire
into the legislative motives prompting such classification.” Id.
[28] The appellants contend that the ordinance violates the Equal Privileges and
Immunities Clause because it fails the two-pronged test articulated in Collins, as
the disparate treatment accorded by the legislation is not reasonably related to
inherent characteristics which distinguish the unequally treated classes. Collins,
644 N.E.2d at 80.5 They maintain that it is clear that “[t]he distinctions Hoosier
Park and the trial court assert as inherent characteristics arise from the actions
of the General Assembly. The OTB exists as a satellite facility under the State
Commission’s broad regulation of Indiana’s horseracing industry. These are
not ‘inherent characteristics’ but artificial aspects of the OTB.” Appellants’ Br.
p. 32.
[29] However, the appellees maintain that the distinction is inherent and is evident
in “the unambiguous text of the Indianapolis No-Smoking Ordinance.” City’s
Br. at 37. In support of this argument, appellees point us to the text of the
exception, which requires that a satellite facility hold “a license pursuant to IC
4-31-5.5.” Indpls. Mun. Code § 616-204. They argue that because, under
Indiana Code chapter 4-31-5.5, a satellite facility must obtain a license regulated
by the Indiana Horse Racing Commission and obtain approval of a “tobacco
5
The appellants also argue that the exception fails the second prong of the Collins test, as the preferential
treatment is not uniformly applicable and equally available to all persons similarly situated. However, as we
find the appellant’s argument regarding the disparate treatment dispositive, we need not address this
argument.
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 18 of 24
management plan,” the Indianapolis No-Smoking Ordinance properly
distinguishes these facilities from other entities. Hoosier Park’s Br. p. 19.
Therefore, appellees maintain that, unlike bars and restaurants, which are not
regulated by the commission, satellite facilities must “satisfy statutory
requirements related to a variety of facts of [their] establishments.” Hoosier
Park’s Br. p. 18.
[30] We do not find that the above distinction is a “substantial distinction with
reference to the subject matter” as is required under Collins. 644 N.E.2d at 80.
First, we note that, on the face of the Indianapolis No-Smoking Ban, there is no
indication that the legislature intended to distinguish satellite facilities from bars
and restaurants because satellite facilities are subject to a tobacco management
plan. In Stieler, our Supreme Court held that, although Evansville pointed to
the facts that eighty-seven percent of Casino patrons come from outside the City
and the Casino had recently installed an upgrade to its ventilation system as
reasons for the divergent treatment of riverboat casinos and bars, these factors
were not “embodied in the Amending Ordinance as prerequisites for the
riverboat exception to the Smoking Ordinance and thus are clearly not inherent
distinguishing characteristics.” 2 N.E.3d at 1274. On its face, the ordinance
provides an exception for: “[a]ny 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(5). This simply defines a
“satellite facility” and does not provide any information or inferences as to why
this facility would be different than a bar or restaurant.
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 19 of 24
[31] This absence of information as to distinguishing characteristics is even more
striking when the exception for satellite facilities is compared to the exceptions
for the other entities excepted from the Indianapolis No-Smoking Ordinance.
For example, the exception for tobacco stores is clearly related to the fact that
those stores make their livelihood from selling tobacco. And the exception for
“fraternal clubs” is distinctly distinguished from bars and restaurants because
the Indianapolis No-Smoking Ban requires, in the text of the exception, that the
club “send[] 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.” Indpls. Mun. Code §
616-204(3)(d). In contrast, the exception for satellite facilities does not mention
tobacco at all or in any way suggest a distinction between these facilities and
non-exempt entities.
[32] In addition, we note that Indiana Code chapter 4-31-5.5 does not explicitly
mention any kind of “tobacco management plan.” Rather, the only mention
relating to tobacco or smoke is contained in Indiana Code Section 4-31-5.5-4,
which requires that a facility seeking a license provide “[a] description of the
heating and air conditioning units, smoke removal equipment, and other
climate control devices at the proposed satellite facility.” This requirement
clearly does not amount to a requirement that a satellite facility provide a
tobacco management plan. There is no indication that satellite facilities are
even required to have smoke removal equipment, only to provide a description
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 20 of 24
of the equipment they do have.6 This one statement about smoking in an entire
chapter of the Indiana Code is far too attenuated to amount to an inherent
distinction between satellite facilities and bars and restaurants. Therefore, we
find that the exception for satellite facilities violates the Equal Privileges and
Immunities Clause of the Indiana Constitution because the disparate treatment
is not reasonably related to the inherent differences between the divergently-
treated classes.
[33] Consequently, we find that the trial court erred in granting summary judgment
in favor of the appellees.
V. Severability
[34] Finally, the appellants argue that the exception is not severable from the
Indianapolis No-Smoking Ordinance and ask this Court to invalidate the
ordinance in its entirety. Our Supreme Court has adopted the following test—
articulated by the United States Supreme Court in Dorchy v. Kansas, 264 U.S.
286, 289-90 (1924)—for severability:
A statute bad in part is not necessarily void in its entirety.
Provisions within the legislative power may stand if separable
from the bad. But a provision, inherently unobjectionable, cannot
be deemed separable unless it appears both that, standing alone,
6
We also note that the original no-smoking ordinance, which was codified at Municipal Code 601-101,
contained the following finding: “[t]he Environmental Protection Agency has determined that secondhand
smoke cannot be reduced to safe levels in businesses by high rates of ventilation. Air cleaners, which are only
capable of filtering the particulate matter and odors in smoke, do not eliminate the known toxins in
secondhand smoke.”
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 21 of 24
legal effect can be given to it and that the legislature intended the
provision to stand, in case others included in the act and held bad
should fall.
(internal citations removed). The key question in determining whether a bad
statutory provision is severable from the rest of the statute is whether the
legislature would have passed the statute had it been presented without the
invalid features. State v. Barker, 809 N.E.2d 312, 317 (Ind. 2004). In addition,
“[t]he inclusion of a severability clause creates a presumption that the
remainder of the Act may continue in effect. The absence of a severability
clause creates the opposite presumption: the Legislature intends the Act to be
effective as an entirety or not at all.” Ind. Educ. Emp’t Relations Bd. v. Benton
Cmty. Sch. Corp., 266 Ind. 491, 510, 365 N.E.2d 752, 762 (1977).
[35] Here, we note that the Indianapolis No-Smoking Ordinance was a part of
Indianapolis City-County Ordinance Number 12, which contains a severability
clause that provides:
Should any provision (section, paragraph, sentence, clause, or
any other portion) of this ordinance be declared by a court of
competent jurisdiction to be invalid for any reason, the remaining
provision or provisions shall not be affected, if and only if such
remaining provisions can, without the invalid provision or
provisions, be given the effect intended by the Council in
adopting this ordinance. To this end the provisions of this
ordinance are severable.
City-County Ordinance No. 12 § 7. This clause makes it clear that if the
Indianapolis No-Smoking Ordinance can be given the effect intended by the
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 22 of 24
City-County Council without the exception for satellite facilities, this Court
should sever the exception.
[36] The Appellants argue that, despite the above severability clause, the
Indianapolis No-Smoking Ordinance cannot be given its intended effect
without the exception for satellite facilities.7 They maintain that, because
Mayor Ballard previously vetoed a similar ordinance without exceptions, “[o]ne
may reasonably infer the City Council would not have passed the revised
ordinance, knowing the Mayor would veto it, if it lacked the exceptions.”
Appellants’ Br. p. 22.
[37] However, this argument is unpersuasive. First, we note that, when we interpret
a statute, “we do not impute the opinions of one legislator, even a bill’s
sponsor, to the entire legislature unless those views find statutory expression.”
Utility Center, Inc. v. City of Ft. Wayne, 868 N.E.2d 453, 459 (Ind. 2007) (internal
quotations removed). Second, the severability clause shows a clear intent to
allow provisions of the Indianapolis No-Smoking Ordinance to be severed if
they are found invalid and the remaining provisions can be given the effect
intended by the Council. We find that here, the remaining provisions can
clearly be given such effect.
7
The appellants also argue that, because the severability clause was not pleaded as an affirmative defense, it
is not relevant to the disposition of this matter. This argument is misplaced. The severability clause is a part
of Indianapolis City-County Ordinance Number 12 and would clearly be considered in our statutory
interpretation.
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 23 of 24
VI. Conclusion
[38] Finding that the exception contained in the Indianapolis No-Smoking
Ordinance for satellite facilities is invalid, we (1) affirm the trial court’s ruling
granting Hoosier Park’s motion to intervene and denying the appellants’ motion
for judgment on the pleadings, (2) reverse the trial court’s grant of summary
judgment in favor of the appellees, (3) declare the exception for satellite
facilities unconstitutional and void as a matter of law and sever it from the
Indianapolis No-Smoking Ordinance, and (4) remand to the trial court for
proceedings consistent with this opinion.8
[39] The judgment of the trial court is affirmed in part, reversed in part, and
remanded for further proceedings.
Najam, J., and Friedlander, J., concur.
8
The appellants have not yet filed a motion for summary judgment in the instant case.
Court of Appeals of Indiana | Opinion 49A02-1407-MI-519 | June 24, 2015 Page 24 of 24