Goodpaster v. City of Indianapolis
| Decision Date | 06 March 2013 |
| Docket Number | 1:12-cv-669-RLY-DML |
| Parties | WANDA GOODPASTER, et al., Plaintiffs, v. CITY OF INDIANAPOLIS, COUNTY OF MARION, MAYOR GREGORY BALLARD and the INDIANAPOLIS CITY-COUNTY COUNCIL, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Plaintiffs are bars and taverns (and their owners) located within the Consolidated City of Indianapolis ("City") and subject to a Smoking Ordinance that prohibits smoking in their establishments. A consolidated evidentiary hearing on the Plaintiffs' Motion for Preliminary and Permanent Injunction was held on October 24 and 25, 2012. Plaintiffs request the court to declare that the Smoking Ordinance is unconstitutional and to enjoin its enforcement. Being duly advised, the court now enters its Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
1. In 2005, the Consolidated City of Indianapolis and of Marion County (the "City-County Council") passed City-County General Ordinance, No. 44, prohibiting smoking in places of employment and most buildings accessible to the general
public within the City (the "2005 Smoking Ordinance"). (Hearing Ex. FF, General Ordinance 44, 2005).
2. The 2005 Smoking Ordinance did not prohibit smoking in all publicly accessible buildings. Notable exceptions included bars and taverns, "Specialty Tobacco Bars," private clubs, and retail tobacco stores. (Id. at 300-301).
3. According to the City-County Council, the stated purpose of the law was "to protect the public health and welfare by prohibiting smoking in public places, and places of employment," "to guarantee the right of nonsmokers to breath smoke-free air" and "to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke." (Id. at 298-99).
4. The City-County Council based the 2005 Smoking Ordinance on the increasing warnings from governmental agencies about the risks of secondhand smoke ("SHS") and upon scientific and epidemiological evidence linking SHS with serious health issues, such as various forms of cancer, cardiovascular disease, and respiratory disease. (Id.).
5. In 2012, the City-County Council amended the Smoking Ordinance (the "Smoking Ordinance" or "2012 Smoking Ordinance"). (Hearing Ex. GG, City-County Council General Ordinance No. 12, 2012). The 2012 Smoking Ordinance was intended to expand the reach of the 2005 Smoking Ordinance, and was passed without stated findings or intent for the expansion. (See generally, id.).
6. For purposes of this case, the significance of the newly amended 2012 Smoking Ordinance was its inclusion of bars and taverns, and its continued exception for: (1) retail tobacco stores; (2) satellite gaming facilities; (3) private clubs; and (4) tobacco specialty bars. (Id. at 1, 3-5).
7. A "retail tobacco store" means a store that primarily sells tobacco and tobacco-related products, in which the sale of these items accounts for not less than 85% of the store's gross sales. (Id. at 1).
8. A "satellite gaming facility" is a facility that, pursuant to Indiana Code § 4-31-5.5, promotes the horse racing industry by permitting wagers on horse races at a satellite facility located within the City. (Id. at 3).
9. A "private club" is defined as a club that "[p]rovides food or alcoholic beverages only to its bona fide members and guests." (Id. at 3). To qualify for this exception, a private club must provide notice to the Health and Hospital Corporation of Marion County by September 1, 2012, that through a majority vote of its members, it has elected to allow smoking. (Id.).
10. A "tobacco specialty bar" is defined in the 2012 Smoking Ordinance to mean a business that, as of January 1, 2012, was licensed to sell alcohol and "where at least twenty percent (20%) or more of its total annual gross income over the preceding calendar year was derived from the on-site sale of cigars or Hookah tobaccos." (Id. at 5). A "tobacco specialty bar" may not sell cigarettes and may not allow anyone on its premises to smoke cigarettes. (Id.).
11. The amendment was signed by Mayor Ballard on April 19, 2012, and took effect June 1, 2012.
12. The individual Plaintiffs claim the 2012 Smoking Ordinance has negatively affected their respective bar and tavern businesses.
13. At the hearing of this matter, Plaintiffs submitted evidence with respect to three bars: Road Dog Saloon, owned by Wanda Goodpaster ("Goodpaster") and Tammy Jones ("Jones"); Casino Lounge, owned by Rhoda Walker ("Walker"); and Maggie's Lounge, owned by Margaret Brady ("Brady"). (Transcript of the Preliminary and Permanent Injunction ("Hearing Tr.") at 18, 50, 79).
14. These bars do not fall within the definition of a "retail tobacco store" or a "tobacco specialty bar." (Id. at 19, 51, 65, 79, 91).
15. Goodpaster described the Road Dog Saloon as a "country bar" catering to the "working class." (Id. at 31). Walker described the Casino Lounge as a "little neighborhood bar" that hosts dart leagues and dart tournaments. (Id. at 51, 52, 64). Brady described Maggie's bar as a "neighborhood bar" with an Indianapolis Colts' theme. (Id. at 79).
16. Goodpaster estimated ninety percent (90%) of her customers smoke cigarettes; Walker estimated that eighty percent (80%) of her customers smoke cigarettes; and Brady testified that ninety-seven percent (97%) of her customers smoke cigarettes. (Id. at 25, 52, 79).
17. Goodpaster, Jones, Walker, and Brady testified that, since the 2012 Smoking Ordinance went into effect on June 1, 2012, each of their businesses has suffered lost profits. (Id. at 23-26, 53-54, 82; Plaintiffs' Exs. 1, 3). However, none of these businesses are currently facing insolvency. (Hearing Tr. at 30, 70, 93).
18. Dr. Andrew Hyland ("Dr. Hyland") testified as an expert in epidemiology on behalf of the City.
19. Dr. Hyland is chair of the Department of Health Behavior at Roswell Park Cancer Institute in Buffalo, New York. (Hearing Tr. at 304). Dr. Hyland's primary focus is epidemiological research into the health effects of SHS on the public health. (Id. at 305-06).
20. The court determined Dr. Hyland was an expert qualified to give an opinion on the epidemiological evidence linking SHS to disease in otherwise healthy nonsmokers. Plaintiffs posed no objection to his testimony. (Id. at 306) (stipulating to Dr. Hyland's qualifications as an epidemiologist and as an expert in that field).
21. Epidemiology relies upon examinations of broad populations through observational studies to draw conclusions about disease and risk factors - in essence, recording those who are and are not exposed to a particular risk factor and examining the incidence of particular diseases. (Id. at 313-14).
22. The two most famous epidemiological studies relating to SHS are the 1986 and the 2006 Surgeon General's Reports.
23. The 1986 Surgeon General's Report concluded that SHS caused lung cancer in otherwise-healthy nonsmokers. The Report also concluded that smoking has other negative health effects on nonsmokers, including respiratory disease among children. (Hearing Ex. NN at 3-4).
24. The 2006 Surgeon General's Report is the "capstone" or the "definitive piece" on SHS research. (Hearing Tr. at 326). The Report relies upon the same studies in the scientific literature as other, prior reports, and includes the most recent information. (Id. at 325). According to the Report, the three main risks of SHS with an established causal connection to disease in otherwise healthy nonsmokers are: lung cancer, coronary heart disease, and "an array of respiratory conditions in children." (Id. at 327).
25. Dr. Hyland opined that, based on these findings, no "credible scientist can refute the fact that secondhand smoke is a cause of disease in otherwise healthy nonsmokers and in children." (Id. at 326).
26. Dr. Hyland further opined that, based upon all of the available epidemiological evidence, "measures to eliminate secondhand smoke exposure would have a differentially large public health impact in a population that has a lot of secondhand smoke exposure now." (Id. at 342).
27. Epidemiological studies into SHS and its effect on coronary heart disease show that the incidence of coronary events goes down after the implementation of smoke-free laws in a given area. Dr. Hyland noted a study from Helena, Montana,in which the incidence of acute myocardial infarction went down approximately 40-percent and, when the law was repealed, that coronary event went back to the baseline level. (Id. at 343). Although this is just one study, Dr. Hyland testified that there have been approximately fifteen other studies which establish that "smoke-free policies save lives." (Id. at 344).
28. The City presented evidence on the economic impact of the Smoking Ordinance on health care costs in Marion County through the expert testimony of Dr. Terrell Zollinger ("Dr. Zollinger"), a professor of epidemiology at Indiana University's Richard M. Fairbanks School of Public Health, and two reports and a peer-reviewed article co-authored by him. (See Hearing Exs. KK, LL, MM). The court found him qualified by education and experience to give an opinion on that topic. Plaintiffs did not pose an objection to his testimony. (Hearing Tr. at 254).
29. Through Dr. Zollinger's testimony and the exhibits introduced into evidence as Hearing Exhibits KK, LL, and MM, the City established that the healthcare costs and loss-of-life costs in Marion County due to disease and death attributable to SHS in 2002 were $56.2 million. (Hearing Ex. KK at 21; Hearing Tr. at 267). The conclusions of that study were published in a peer-reviewed article in the American Journal of Health Promotion. (Hearing Ex. LL; Hearing Tr. at 268).
30. The City also established that in 2010, healthcare costs and...
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