Attorney claims smoking ban violates civil rights

Beatriz Costa-Lima

Managing Editor, 5 Rights News


Instead of the usual flow of regular customers to Casino, an Eastside bar, nowadays, patrons buy one drink, step outside to smoke and then leave, according to bar owner Rhoda Walker.

Walker claims the Indianapolis smoking ban is the cause for this shift in business and finds the ban encroaches upon her civil rights.

Indianapolis-based attorney Mark Small, with Ogden Law Firm, filed a motion in Federal District Court on behalf of Walker and 42 other plaintiffs. Walker stated the Ninth Amendment protects the right to smoke on private property.

The ban, which took effect June 1, strengthened the current legislation to restrict smoking in bars with the exception of private clubs, hooka bars and cigar bars.

“The right of an owner of a private business on private property to allow patrons or customers to engage in otherwise legal conduct is among those rights not specifically enumerated in the Constitution or Bill of Rights,” Small said. “[Smoking] would have been a right the framers would have believed unnecessary to specifically protect as they convened over mugs of ale and pipes of tobacco during that summer of 1787 in Philadelphia.”

Before he adresses the media, Indianapolis-based attorney Mark Small, of Ogden Law Firm, speaks with one of his 43 plaintiffs on the steps of the federal district courthouse.

While courts across the nation usually uphold smoking bans, this is the first time an opponent has used the Ninth Amendment in support of smokers’ rights. However, this approach appears more as an act of desperation rather than an argument that will hold up in court, according to Gerard Magliocca, Indiana University School of Law-Indianapolis professor.

“There are very few cases that would use the ninth Amendment to do anything,”

Magliocca said. “There’s just no grounds for that kind of argument. Smoking is a heavily regulated thing. There are all sorts of cities around the world that have smoking bans and few have ever challenged them.”

Legislators regulate businesses in various ways in order to create safe work environments, according to David Orentlicher, Indiana University School of Law-Indianapolis professor.

“The court recognizes that it’s important for the government to regulate this area,” Orentlicher said, “The freedom to decide how exactly to run your business the way you want is not a fundamental right. The government can tell you what minimum wage to pay employees; they can regulate overtime hours…there are all kinds of regulations to create a safe working environment.”

Despite some controversy to the ban, Mark Lotter, spokesperson for Mayor Greg Ballard, believes that with time, people will adjust to the regulations.

“When you saw the 2005 ban go into effect, there were some initial concerns, but over the course of time people adjusted,” Lotter said. “From a public health and business stand point it makes the city more attractive to employers, conventions and visitors. We are seeing generally positive response from the community.”

Small believes that the ban serves as simply one step to further restrictions on citizen’s daily choices.

“Double cheeseburgers with fries [will] probably [be] next,” Small said. “You already see 17 ounce slurpees in New York City are illegal. How can you have a decent slurpee if it’s 16 ounces or less? It makes no sense…how can a mayor, simply acting on his own, say we’re not going to do that?”

In addition, Small doubted the harmful effects of secondhand smoke Wednesday at a news conference outside the federal courthouse. Cigarette smoke, he said, produces the “equivalent of a million cigarettes.” However, a study led by the Tobacco Control Unit of Italy’s National Cancer Institute in Milan suggests that air pollution emitted by cigarettes is 10 times greater than diesel car exhaust. Due to the Clean Air Act of 1970, the Environmental Protection Agency has regulates motor vehicle pollution

With the ban in place, Walker worries if Casino will stay in business much longer with the decrease in customers.

“This is my livelihood,” Walker said. “What can I do?”

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