AGO 2003-06.

• Case Date: August 12, 2003
• Court: Indiana

Indiana Attorney General Opinions 2003. AGO 2003-06. August 12, 2003OPINION NO. 2003-6The Honorable R. Tiny Adams Indiana House of Representatives State House200 W. Washington Street Indianapolis, IN. 46204 RE: Smoking bansDear Representative Adams: This letter responds to your request for an advisory opinion on the constitutionality of ordinances that provide exemptions to smoking bans in public places. We note by way of background that efforts to ban smoking in restaurants, bars and workplaces are being proposed throughout Indiana. Advocates cite problems associated with the health effects from secondhand smoke and the related rise in medical costs for treating smoking-related health problems such as emphysema, bronchitis and cancer that plague both privately and publicly funded health care programs. [1] Authors of such bans additionally emphasize children, the elderly and certain other individuals may be especially vulnerable to the effects of secondhand smoke. The State of Indiana is also attempting to address the problems associated with the effects of secondhand smoke through public education and awareness programs. [2] Recently, local governments exercising their authority under Indiana's Home Rule statute have begun to address the problem by passing ordinances that completely ban smoking in public places such as restaurants, workplaces and other enclosed areas. [3] Questions have arisen regarding the scope of the authority of local governments to enact such legislation, as well as the appropriate language necessary to craft exceptions that do not offend the constitutional guarantees of equal protection and Privileges and Immunities Clause. The specific ordinance you cite in your question involves a smoking ban ordinance that grants exemptions to restaurants with fully enclosed smoking areas, or bars or taverns that exclusively serve the adult population. That leaves the remainder of owners of restaurants and eateries that are not bars or taverns, or that do not contain fully enclosed smoking areas subject to a smoking ban ordinance. This opinion addresses these questions. BRIEF ANSWER It is our opinion that legislation seeking to provide exceptions to a general ban on smoking will likely survive constitutional scrutiny under an equal protection analysis if the classifications created in the ordinance bear a rational relationship to a legitimate government concern. We further believe the legislation would survive constitutional scrutiny under the Privileges and Immunities Clause if the preferential treatment granted by the ordinance is reasonably related to innate characteristics that distinguish the preferentially treated classes, and the preferential treatment granted is uniformly available to all individuals similarly situated. LEGAL ANALYSIS Equal protection under the law is a right afforded by the United States Constitution. [4] This right is distinct from that granted by the Indiana Constitution under the Privileges and Immunities Clause. [5] This opinion provides an analysis of both of these distinct rights and privileges afforded to the citizens of Indiana. Equal Protection The Equal Protection Clause of the United States Constitution provides "[n]o state shall.deny to any person within its...