ATTORNEY FOR APPELLANTS

Mark Small

Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE INDIANA

ASSOCIATION OF CITIES AND TOWNS AND 

INDIANA MUNICIPAL LAWYERS ASSOCIATION

J. Lee McNeely

Cynthia A. Bedrick

Scott A. Milkey

McNeely Stephenson

Shelbyville, Indiana

ATTORNEYS FOR AMICUS CURIAE CITY OF 

GARY

George A. Gasper

Eric J. McKeown

Ice Miller LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE CITY OF 

INDIANAPOLIS, MAYOR GREG BALLARD,

INDIANAPOLIS CITY-COUNTY COUNCIL

Andrew P. Seiwert

Adriana Katzen

Amanda J. Dinges

Pamela G. Schneeman

Office of Corporation Counsel

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

HOOSIER PARK, LLC

A. Scott Chinn

Anne K. Ricchiuto

Brian J. Paul

Faegre Baker Daniels LLP

Indianapolis, Indiana

Mark Crandley

Peter J. Rusthoven

Barnes & Thornburg LLP

Indianapolis, Indiana

_____________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 49S02-1604-MI-175

WHISTLE STOP INN, INC. AND 

LOUISE LIFORD D/B/A THIRSTY TURTLE, Appellants-Plaintiffs,

v.

CITY OF INDIANAPOLIS,

MAYOR GREG BALLARD,

INDIANAPOLIS CITY- COUNTY COUNCIL, AND Appellees-Defendants

HOOSIER PARK, LLC, Appellee-Intervening

Defendant

_________________________________

Appeal from the Marion Superior Court, No. 49D14-1310-MI-38464

The Honorable James B. Osborn, Judge

_________________________________

On Transfer from the Indiana Court of Appeals, No. 49A02-1407-MI-519 

_________________________________
2

April 11, 2016

Dickson, Justice.

We uphold Indianapolis' non-smoking ordinance ("Ordinance"), finding that it does not 

violate the Equal Privileges and Immunities Clause of Article 1, Section 23 of the Indiana 

Constitution. While the Ordinance provides an exemption to satellite gambling facilities but not 

to bars and restaurants, Article 1, Section 23 does not prohibit this disparate treatment. We 

affirm the trial court's grant of summary judgment in favor of the city.

Indianapolis first passed the Ordinance in 2005, banning smoking in public businesses 

but providing some exemptions, including for bars and taverns that had liquor licenses and

neither served nor employed anyone under the age of eighteen. See CITY OF INDIANAPOLIS AND 

MARION COUNTY, IND., REV. CODE tit. III ch. 616 (2005). A 2012 amendment removed the 

exemption for bars and taverns, but exempted businesses licensed as satellite gambling facilities

by April 1, 2012.

1 INDIANAPOLIS REV. CODE tit. III ch. 616 sec. 204(a)(5) (2012). The plaintiffs

sued, claiming that the Ordinance violated the Equal Privileges and Immunities Clause of the 

Indiana Constitution because it applied to them as bars and restaurants but exempted satellite 

gambling facilities. Hoosier Park, as a licensed satellite gambling facility2 exempted from the 

Ordinance, intervened as a defendant. The defendants filed motions for summary judgment,

which the trial court granted, finding that the Ordinance's exemptions did not violate the Indiana 

Constitution.

The plaintiffs appealed, arguing that the trial court erred by denying the plaintiffs' 

motions for emergency relief and judgment on the pleadings, by granting Hoosier Park's Motion 

to Intervene, and by granting summary judgment for the defendants on the Equal Privileges and 

Immunities claim. The defendants responded to these arguments and the City also asserted that 

 1 The satellite gambling facilities exemption required licensing from the Indiana Horse Racing 

Commission under Indiana Code chapter 4-31-5.5, which governs satellite facilities providing off-track 

pari-mutual wagering on horse races. 

2 To be licensed as a satellite gambling facility, Hoosier Park submitted to the Indiana Horse Racing 

Commission a Tobacco Management Plan which "tried to accommodate the needs of both customers who 

smoke and those who do not." Appellants' App'x at 17.
3

the plaintiffs' claims were barred by res judicata. The Court of Appeals reversed the trial court, 

holding that the plaintiffs' claims were not barred by res judicata, that Hoosier Park was properly 

permitted to intervene, that judgment on the pleadings would have been inappropriate, and that 

the Ordinance's exemption for satellite facilities violated the Equal Privileges and Immunities 

Clause as compared to bars and restaurants. Whistle Stop Inn, Inc. v. City of Indianapolis, 36 

N.E.3d 1118, 1130 (Ind. Ct. App. 2015). The Court of Appeals severed the satellite facility 

exemption, finding that the rest of the Ordinance could still be given its intended effect. Id. The 

plaintiffs and Hoosier Park each petitioned for transfer,

3 and we now address the

constitutionality of the Ordinance's exemptions under the Indiana Constitution's Equal Privileges 

and Immunities Clause, and, except for severability,

4 summarily affirm the Court of Appeals on 

the other issues.

Article 1, Section 23 of the Indiana Constitution provides that "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." This Court in Collins v. Day "adopted a 

preeminent two-part standard for determining a statute's validity" under this provision: 

First, 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.

Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1273 (Ind. 2014) (quoting Collins 

v. Day, 644 N.E.2d 72, 80 (Ind. 1994)). This test applies to municipal ordinances as well as state 

statutes, and both prongs must be satisfied for the enactment to be constitutional. Id. "Whether a 

statute or ordinance is constitutional on its face is a question of law and we review the matter de 

novo," though it "stands before this Court clothed with the presumption of constitutionality until 

clearly overcome by a contrary showing." Id. at 1272-73 (internal quotations and citations

omitted). 

 3 In previous orders we denied the plaintiffs' transfer petition and now grant Hoosier Park's transfer 

petition.

4 Because we uphold the constitutionality of the satellite facility exemption, we do not address 

severability or summarily affirm the Court of Appeals on this issue.
4

As established in Collins, we "must accord considerable deference to the manner in 

which the legislature has balanced the competing interests involved." 644 N.E.2d at 80 (citation 

omitted). We "[p]resum[e] the statute to be constitutional," placing "the burden upon the 

challenger to negat[e] every conceivable basis which might have supported the classification." 

Id. (internal quotation omitted). This deference, however, does "not eviscerate the two-prong 

constitutional test established," but "merely emphasize[s] the importance of appropriate 

legislative deference, especially with regard to legislative classifications." Paul Stieler, 2 N.E.3d 

at 1277. "[I]t is within the province of this Court to determine whether the exercise of legislative 

discretion violates express provisions of the Indiana and Federal constitutions." Id. (emphasis in 

original).

The plaintiffs argue that applying the Article 1, Section 23 test may be unnecessary 

because "[i]f Paul Stieler controls, there is no need for further analysis." Appellants' Br. at 25.

While Paul Stieler did involve a superficially similar ordinance and constitutional claim, 

important differences prevent it from controlling our decision here. Instead, we apply anew the 

two-part Collins test to the challenged exemptions in this Ordinance. Because of differing views 

among the parties, we particularly address inherent characteristics of classes and the role of 

legislative deference.

1. The First Collins Prong

Under the first prong of the Collins test, "the disparate treatment accorded by the 

legislation must be reasonably related to inherent characteristics which distinguish the unequally 

treated classes." 644 N.E.2d at 80. In this case, the disparately treated classes are satellite 

gambling facilities, which are exempted from the Ordinance, and bars and restaurants, where the 

Ordinance bans smoking. "In analyzing a Section 23 challenge, it is the disparate classification 

alleged by the challenger, not other classifications, that warrants review." Myers v. CrouseHinds Div. of Cooper Indus., Inc., --- N.E.3d ----, ---- (Ind. 2016); 2016 WL 825111 at *3. But 

those classifications must "have a sufficient basis in the challenged legislation." Id. Here, the 

plaintiffs argued in their Motion for Judgment on the Pleadings that the Ordinance violates 

Article 1, Section 23 "in that smoking is banned in taverns and restaurants but allowed in satellite 
5

gambling facilities." Appellants' App'x at 85. See also Appellants' Br. at 13 (arguing that 

Indianapolis "has not established the inherent qualities that justify unequal treatment of Bar 

Owners and Hoosier Park"). This class distinction has a sufficient basis in the Ordinance, which

exempts "[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" but did not exempt bars and 

restaurants such as the plaintiffs. INDIANAPOLIS REV. CODE tit. III ch. 616 sec. 204(a)(5). Under 

this first prong we therefore examine whether the Ordinance's disparate treatment is reasonably 

related to any of these classes' inherent characteristics. 

a. Inherent Characteristics

The plaintiffs and defendants apply different definitions of "inherent" when identifying 

potentially inherent characteristics. The plaintiffs cite several dictionaries, arguing that

"inherent" characteristics are "permanent," "essential," "intrinsic," and "inalienable." Appellants' 

Br. at 31. Hoosier Park responds that under Indiana case law, "different regulatory treatment 

between legislatively created classes" may be "inherent for purposes of equal privileges and 

immunities analysis." Appellee Hoosier Park's Pet. to Tr. Reply Br. at 1. Under Indiana's Equal 

Privileges and Immunities Clause, "inherent" does not refer only to immutable or intrinsic 

attributes, but to any characteristic sufficiently related to the subject matter of the relevant 

Collins classes.

Collins itself was not concerned with dictionary definitions of "inherent," but with longstanding precedent that "[t]here must be inherent differences in situation related to the subjectmatter of the legislation which require, necessitate, or make expedient different or exclusive

legislation with respect to the members of the class." 644 N.E.2d at 78 (quoting Heckler v. 

Conter, 206 Ind. 376, 381, 187 N.E. 878, 879 (1933)). Such difference must have "reference to 

the subject matter." Collins, 644 N.E.2d at 80. Differences unrelated to the subject matter

cannot satisfy the Equal Privileges and Immunities Clause's inherency requirement, which 

"incorporates and satisfies the often expressed concerns that such legislative classifications be 

'just,' 'natural,' 'reasonable,' 'substantial,' 'not artificial,' 'not capricious,' and 'not arbitrary.'" Id. at 

79 (citations omitted).
6

This meaning of "inherent" is reflected in our Article 1, Section 23 decisions. In Collins, 

"the prevalence of sole proprietorships and small employment units" and "the distinctive nature 

of farm work" were among inherent characteristics of Indiana agricultural employers. 644 

N.E.2d at 81. In Gambill v. State, the presence of mental illness was inherent to "those who are 

mentally ill and commit crimes, but who also appreciate the wrongfulness of their conduct." 675 

N.E.2d 668, 677 (Ind. 1996). In Martin v. Richey, medical treatment and medical malpractice 

insurance were inherent to health care providers and medical malpractice victims. 711 N.E.2d 

1273, 1281 (Ind. 1999). And in Horseman v. Keller and League of Women Voters of Indiana, 

Inc. v. Rokita, not being present at the Election Day polling site was inherent to being an 

absentee voter. 841 N.E.2d 164, 172 (Ind. 2006); 929 N.E.2d 758, 770 (Ind. 2010). These 

characteristics refer to the subject matter distinguishing the classes and are therefore inherent for 

purposes of Article 1, Section 23.

We have also found that some attributes are not inherent to certain class distinctions. 

Preserving rural land around urban areas and preventing cities from annexing each other's land 

are not inherent to a county with a population of 200,000-300,000. Mun. City of South Bend v. 

Kimsey, 781 N.E.2d 683, 694 (Ind. 2003). Likewise, a high percentage of out-of-town 

customers and recent upgrades to ventilation systems are not inherent to riverboat gambling 

facilities. Paul Stieler, 2 N.E.3d at 1275. When, as in these cases, a difference is so unrelated to 

the relevant classes that it does not refer to the subject matter distinguishing the classes, it is not 

inherent and cannot serve as a basis for disparate treatment under Article 1, Section 23. 

In this case, the satellite facility exemption in the Ordinance requires that the facility hold 

"a [satellite gambling facility] license pursuant to IC 4-31-5.5. . . ." INDIANAPOLIS REV. CODE tit.

III ch. 616 sec. 204(a)(5). To become licensed, a satellite facility must submit an application to 

the Indiana Horse Racing Commission which includes "[a] description of the heating and air 

conditioning units, smoke removal equipment, and other climate control devices at the proposed 

satellite facility." Ind. Code § 4-31-5.5-4(11). The plaintiffs argue that this licensing 

requirement is not an inherent difference because "[a] legislative body may not, by its mere label 

of groups or conference of status upon those groups imbue those groups with 'inherent' 
7

characteristics for purposes of Art. 1 § 23." Appellants' Br. at 32. But the City of Indianapolis 

did not imbue the satellite gambling facility with its inherent characteristic as a state-licensed 

facility. The City chose to treat differently two classes which already possessed distinguishing 

inherent attributes that "require, necessitate, or make expedient different or exclusive legislation 

with respect to the members of the class." Collins, 644 N.E.2d at 78. 

Here, the application requirement is inherent because Indiana's legislature has made it a 

prerequisite to being a licensed satellite gambling facility. Without specifying "the heating and 

air conditioning units, smoke removal equipment, and other climate control devices," a facility 

cannot be licensed under Indiana Code section 4-31-5.5 and therefore would not be exempted 

from the Ordinance. Ind. Code § 4-31-5.5-4(11). A satellite gambling facility authorized under 

this statute cannot exist without compliance with this provision, which thus makes it an inherent 

characteristic of such a facility. The City chose to use this statutory licensing requirement as the 

basis of an Ordinance exemption. We give "considerable deference" to these choices because 

"[t]he question of classification under Section 23 is primarily a legislative question." Collins, 

644 N.E.2d at 80. "[W]e will not substitute our judgment for that of the legislature; nor will we 

inquire into the legislative motives prompting such classification." Id.

5

 We conclude that the 

first prong of Collins is satisfied because the disparate application of the Ordinance constitutes 

treatment that is reasonably related to the inherent characteristics that differentiate bars and 

restaurants from state-licensed satellite gambling facilities. 

b. Reasonable Relation

Under Collins' first prong, disparate treatment must also be reasonably related to an

inherent characteristic differentiating the classes. Id. The plaintiffs correctly argue that "[t]here 

is no requirement in the Indianapolis ordinance that 'tobacco management' be part of a licensure 

process." Appellants' Br. at 27. But obtaining a license in accordance with the Ordinance does 

require a description of "the heating and air conditioning units, smoke removal equipment, and 

 5 The plaintiffs also argue that "smoking is not inherent to gambling and drinking." Appellants' Br. at 33. 

We do not consider this argument because we look at "inherent characteristics which rationally 

distinguish the unequally treated classes," and the classes here are not gambling and drinking. Collins, 

644 N.E.2d at 79.
8

other climate control devices." Ind. Code § 4-31-5.5-4(11). This description allows the Indiana 

Horse Racing Commission to consider the effects of smoking in making its licensing decisions, 

making it reasonably related to the Ordinance's exemption for satellite gambling facilities.6 We 

"accord considerable deference to the manner in which the [City] has balanced the competing 

interests involved" in finding that the licensing requirement is reasonably related to the decision 

to exempt satellite gaming facilities but not bars and restaurants. Collins, 644 N.E.2d at 80.

Paul Stieler also holds that because certain factors were "not embodied" in its challenged 

ordinance "as prerequisites," they were "clearly not inherent distinguishing characteristics" and 

were not reasonably related to the disparately treated classes. 2 N.E.3d at 1275. After the Court 

of Appeals in this case applied that language, amici curiae City of Gary, Indiana Association of 

Cities and Towns, and Indiana Municipal Lawyers Association filed briefs requesting 

clarification of this precedent. Specifically, amici are concerned that a municipality may be 

required "to specifically identify, on the face of all class-creating ordinances, all distinguishing 

characteristics of each class and the reasons for those distinctions." Br. of Amici Curiae Ind. 

Ass'n of Cities and Towns and Ind. Mun. Lawyers Ass'n at 2. We clarify today that inherent 

distinguishing characteristics and how they are reasonably related to disparate treatment do not 

have to be specifically stated or explained in an ordinance. As Collins noted, it is enough that

"[t]he legislative classification may have been based upon various features reasonably 

distinguishing Indiana agricultural employers from other employers . . . ." 644 N.E.2d at 81

(emphasis added). Disparate treatment may be related to structural differences embodied in an 

ordinance or statute which create inherent distinguishing characteristics that are reasonably 

related to the disparate treatment. 

2. The Second Collins Prong

The plaintiffs also argue that the Ordinance violates the second prong of the Collins test 

because it "creates a monopoly" and "creates a preference and establishes an inequality among a 

 6 The comprehensive Tobacco Management Plan, which the Indiana Horse Racing Commission required 

Hoosier Park to complete, exemplifies why the Ordinance exemption is reasonably related to the licensing 

requirement–though the reasonable relation exists without it.
9

class of citizens all of whom are equally meritorious." Appellants' Br. at 35, 37. "[U]nder the 

second element of the Collins analysis, any 'preferential treatment must be uniformly applicable 

and equally available to all persons similarly situated.'" Myers, --- N.E.3d at ----; 2016 WL at *4

(quoting Collins, 644 N.E.2d at 80). The preferential treatment here–exemption from the 

Ordinance–does not violate the second prong because the restaurants and bars are not similarly 

situated with satellite gambling facilities. The plaintiffs are correct that the "[l]egislature cannot 

take what might be termed a natural class of persons, split that class in two, and then arbitrarily 

designate . . . the original unit as two classes, and thereupon enact different rules for the 

government of each." Appellants' Br. at 32. See Myers, --- N.E.3d at ----; 2016 WL at *4

(finding that Collins' second prong was violated when the legislature treated two classes of 

similarly situated tort plaintiffs differently based only on the nature of the tortfeasor). But here, 

satellite gambling facilities are significantly different from bars and restaurants–they are distinct 

types of businesses with separate licensing requirements and provide different services. The 

applicable licensing requirements and regulations are not arbitrary, but are tailored to the type of 

business. Indiana Code Title 4 Article 31 regulates "Pari-Mutual Wagering on Horse Races" 

including "Satellite Facilities." This article contains thirteen Chapters and dozens of Sections 

regulating myriad areas of horse racing and horse-race gambling, all tailored to this specific area 

of business. These regulations apply to Hoosier Park, but not to bars and restaurants. Under this 

analysis, the classes are not "similarly situated," and the second prong is not violated. Collins, 

644 N.E.2d at 80.

The Ordinance also does not violate Article 1, Section 23 by relying on "solely 

economic" rationales. Appellants' Br. at 38. The plaintiffs argue that this case is like Paul 

Stieler, where the smoking ban exemption was "tantamount to the government 'selling' an 

exemption from the Smoking Ban for the bonus of anticipated financial benefits while 

burdening other citizens and snubbing our framers' intent in drafting Article 1, Section 23." 2 

N.E.3d at 1276. The plaintiffs here make essentially the same argument as the Paul Stieler

plaintiffs: "fiscal considerations can never be used to justify disparate treatment." 2 N.E.3d at 

1275. See also Appellants' Br. at 38 ("The basis for Hoosier Park's exemption is solely 

economic."). This argument "misses the point" because "we focus not on the purposes 

presumably motivating the enactment, but on the disparate treatment it accords." 2 N.E.3d at 
10

1275 (emphasis in original). The disparate treatment resulting from the Ordinance satisfies both 

prongs of the Collins test for reasons wholly distinct from economic justifications. But even 

looking at the legislative purposes, which "may be considered," does nothing to change this 

analysis. Id. The Ordinance's purposes are not economic, but "are (1) to protect the public 

health and welfare by prohibiting smoking in public places, and place of employment; and (2) to 

guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to 

breathe smoke-free air shall have priority over the desire to smoke." Appellees' Joint App'x at 

403.

Furthermore, even if the Ordinance's stated purposes were pretextual and the City 

included the satellite gambling facility exemption in part to gain economic benefits, the 

Ordinance would not violate Article 1, Section 23. As the historical analyses in Paul Stieler and 

Collins make clear, an enactment violates the Equal Privileges and Immunities Clause when "[i]t 

condones a privilege for purchase" and "is tantamount to the government 'selling' an exemption . 

. . for the bonus of anticipated financial benefits while burdening other citizens . . . ." 2 N.E.3d 

at 1276 (rejecting a solely economic rationale for disparate treatment); 644 N.E.2d at 76-77.

While economic benefit alone cannot justify treating citizens disparately, "[t]he Delegates of the 

Constitutional Convention of 1850 to 1851 did not see Article 1, Section 23 as an obstacle for 

legislation that advanced the public good." Paul Stieler, 2 N.E.3d at 1280 n.1 (Rush, J., 

dissenting). The plaintiffs' argument that "Hoosier Park advocated economic benefits [that the]

City would realize" does not establish a privilege for purchase–especially considering the 

defendants' non-economic justifications for the exemptions. Appellants' Br. at 40.

The plaintiffs' arguments do not "negate every conceivable basis which might have 

supported the classification." Paul Stieler, 2 N.E.3d at 1277. The plaintiffs argue that under Paul 

Stieler, they "do not have to negate every possible basis for the ordinance." Appellants' Br. at 

41. Of course, plaintiffs are not required to come up with dozens of possible legislative 

rationales and refute each one in a complaint or appellate brief. See Paul Stieler, 2 N.E.3d at 

1277. The requirement to "negate every conceivable basis," however, reflects the heavy burden 

on plaintiffs in establishing the unconstitutionality of a statute. Id. If the challenged statute itself 

or a defendant advances a rationale which would satisfy Article 1, Section 23, plaintiffs must 
11

negate it in order to carry the burden of proof.7

Conclusion

The challenged Ordinance does not violate the Equal Privileges and Immunities Clause of 

the Indiana Constitution. The Ordinance's exemption for satellite gambling facilities is 

reasonably related to the inherent differences distinguishing satellite gambling facilities from 

bars and restaurants. The Ordinance also does not create a monopoly or treat similarly situated

classes disparately in violation of Article 1 Section 23. We affirm the trial court's grant of 

summary judgment in favor of the City.

Rush, C.J., and Rucker, David, and Massa, JJ., concur.

 7 Paul Stieler did not hold, as the plaintiffs contend, that "where the matter is unconstitutional on its face 

as here, [plaintiffs] are relieved of th[e] burden [to negate every conceivable basis which might have 

supported the classification]." Appellants' Br. at 13.