                                                                          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.


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