Early yesterday evening, an attorney for ten Indianapolis bar owners filed a Motion for Preliminary Injunction to stop the enforcement of Indianapolis' smoking ban while the case is being litigated in the federal district court in Indianapolis.
A preliminary injunction is an injunction issued prior to the court's full consideration of the merits of a plaintiff's claims. It is designed to prevent irreparable harm to the plaintiffs while the case is being litigated. If granted, the preliminary injunction would prevent the City of Indianapolis from enforcing the smoking ban until such time as the district court can fully consider the merits of the lawsuit.
In filing the motion, Mark Small, lead counsel for the bar owners, noted that several of the bar owners he represents have lost as much as 60% of their business since the ban took effect on June 1st. They have had to lay off or cut the hours of bar employees. Revenue from pool tables, juke boxes, and dart boards in the bars is also sharply off, according to Small.
"There is no doubt that, contrary to what the proponents of the ban claimed, many Indianapolis' bars have been harmed by the smoking ban. Small continues, "All of my clients' bars are small, neighborhood taverns. Many of the owners have put their life savings into their bars and now they fact the very real possibility that the City's ban will put them out of business."
The bar owners' filing contains a lengthy and detailed attack on the credibility of the studies relied upon by the City to conclude that second hand smoke is dangerous to bar employees, the stated justification for the adoption of the smoking ban. "The ordinance rests on a shaky foundation of flawed studies and junk science," Small said. The United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. has held that junk science is not acceptable evidence in a courtroom."
Copies of the Motion for Preliminary Injunction and Memorandum are available upon request.
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If bar owners want to allow smoking they have rights. If they want to pool their money and run campaign ads, they have no rights. Ersatz rights claims are irrational.
If this case isn't thrown out, it's going to lay down some horrible anti-rights law.
I heard Mr. Small on the radio, this morning. His two quotes were, roughly:
1. "It's put a hurt on these businesses."
2. "It's based on bad science."
Unfortunately, it is a valid exercise of legislative power in this country to hurt any business government targets and to base a law on any grounds, whatsoever.
Neither course is constitutionally proscribed.
Argh, let me repeat myself.
A business owner cannot intentionally allow employees to risk physical harm, like that from secondhand smoke. And employees cannot "agree" to work in a risky environment.
These bar owners are like 19th century coal mine owners who skimped on safety in the name of profit. Those days are thankfully long gone.
If bar owners want to continue to allow smoking, they should seek an amendment allowing that, IF the staff wear air filters like those used by auto spray painters. I'm serious - that would meet the health requirements while enabling the bar to stay smokey.
Unigov, I think your argument is flawed.
Ir$ay owns a football team and employees football players who can definitely be harmed.
What about race car drivers? That sport is so dangerous that you can be harmed (instantly killed) simply by being a spectator.
These are typically the most dangerous jobs in America, and bar maid in a smokers bar isn't on it!
Should we outlaw these professions?
4. Iron/Steel Worker
5. Garbage Collector
As a working musician, I spend alot of my professional life in bar environments, and have seen how backwards this ban really is. I will begin by saying I have never been a smoker, nor do I intend to ever start smoking. In order to enter a bar legally, one has to be 21 years of age and present valid ID proving that fact. In order to buy a pack of smokes, one only has to be 18 years of age in this city. As such, the law is saying that a 21 year old is not capable of consenting to be around a product he/she could buy legally for three years. Bars are a place of unhealthy consumtion anyways, so its foolish to worry about all the alleged 'health consious' patrons who are supposedly flocking to bars and being stricken with panic at the slightly smoky interior. If you don't like being around cigarette smoke, you don't go to bars. That's common sense. I have yet to meet a bartender/bar waiter who doesn't smoke cigarettes, for that matter. How is financially ruining the businesses that they work at "helping" them? Putting loads of bartenders and other employees out of work certainly is not protecting their rights. If cigarettes are legally available for people to smoke around kids or outside, then why not in a place specifically designed for only consenting adults?
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