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Lafayette Journal and Courier Threat of suit wafts over WL smoking ban April 10, 2006 Though nothing has been filed, Mary Cook, who owns Harry's Chocolate Shop in West Lafayette, plans a meeting with Lafayette attorney Tom Herr sometime this week. Several other city bar and restaurant owners will also be at the meeting, Cook said. "We're still considering what to do. We're looking at our options." After the meeting, the owners will decide what to do next, Cook said, noting several lawsuits or none might be filed. "Different businesses have different situations." Herr thinks the ordinance's stated purpose to protect the health of employees and the fact that some businesses are exempted might violate the 14th Amendment to the Constitution, which says in part that a state can't create laws denying "any person within its jurisdiction the equal protection of the laws." Herr also thinks the ordinance could violate Article 1, Section 23 of the Indiana constitution, which says, "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." A Purdue University associate professor of political science, Will McLauchlan, thinks that argument is plausible. But it could be difficult to use in court, he said. "The state can make exclusions," McLauchlan said. Plus "state courts are generally a little shy about the equal protection argument." Any lawsuit would be hard to win, McLauchlan said. The state or city can by ordinance exercise police powers. If that power is challenged in court, the courts usually rule on the side of protecting citizens' health and welfare, he said. Dr. Stephen Jay agrees. Chairman of the public health department at the Indiana University School of Medicine in Indianapolis, Jay is a board member for Indiana Tobacco Prevention and Cessation. "Litigation against smoking bans typically don't work," he said. A Valparaiso University law professor who is an expert on federal constitutional law thinks it could be an interesting argument. Many times when the constitutionality of ordinances are challenged, courts ask simply "Is this rational?" said Ivan Bodensteiner. While protecting health seems to be a legitimate government issue, making exceptions could create problems. If a lawsuit prevails, "the city could just go back and ban it across the board," Bodensteiner said. There are some examples where the right to smoke has prevailed. Garnet Dawn Scheuer is the Midwest regional director for the Smokers Club Inc., an international organization dedicated to promoting the freedom to smoke. She cited a 2005 case of a Missouri inmate who sued the state claiming he was being harmed by secondhand smoke in prison. The lawsuit was defeated when the court decided there was not enough information supporting the harm caused by secondhand smoke, Scheuer said. Since some studies support the idea of secondhand smoke causing harm and other studies say there's no evidence that it does, the conflicting information meant the inmate had no proof. Though that lawsuit didn't challenge a smoking ban, it created the potential for others to challenge bans, Scheuer said. Customers at Harry's, which is one of the establishments at the center of the argument, had mixed opinions Friday afternoon. "They're very similar to exemptions elsewhere," said Eric Ball of Palmetto, Fla. He was in town for a special event at Purdue. But in Florida, there's a constitutional amendment banning smoking in workplaces, which passed by referendum, he said. Ball was unsure if a lawsuit would make sense. "I don't think it's fair that some bars are excluded," said Purdue student Ryan McHugh of Cleveland, Ohio. "That seems unconstitutional." But even if the ban is upheld, McHugh, a smoker, said he would still come to Harry's.
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