NEVADA SUPREME COURT: Smoking ban foes air challenge - News

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Apr. 07, 2009
Copyright © Las Vegas Review-Journal

NEVADA SUPREME COURT: Smoking ban foes air challenge

Law targeting smoking called vague, unfair

By DAVID KIHARA
LAS VEGAS REVIEW-JOURNAL

Attorney Mark Ferrario argues Monday before the Nevada Supreme Court in Las Vegas that the 2006 smoking ban is unconstitutional.
Photo by Craig L. Moran.

Attorney Todd Bice, who represents the Nevada Resort Association, argues before the Nevada Supreme Court on Monday in favor of the state's smoking ban.
Photo by Craig L. Moran.

Opponents of Nevada's smoking ban challenged the constitutionality of the 2006 law Monday before the state Supreme Court, arguing that it should be overturned because it is vague and unfairly targets small bars and taverns.

Challengers also said that a district judge should not have upheld the ban during a court fight several years ago. At issue is a ruling by District Judge Douglas Herndon that allowed the enactment of the smoking ban but threw out any criminal penalties people might face.

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"This act started with the best intentions. But intentions cannot cure constitutional flaws," said attorney Mark Ferrario, who argued against the ban on behalf of the Nevada Tavern Owners Association.

Challengers are fighting to overturn the law or have the flaws they cite corrected. The Supreme Court will issue its decision within 30 to 90 days.

Ferrario argued that the ban is too unclear and does not define exactly who can be fined for violating the law. Is it the person lighting up? The cocktail waitress who serves the patron? The bar owner? The landlord of the property?

It also does not define what is banned, he said. A can of soda, for example, could be considered "smoking paraphernalia" if a customer uses it as an ashtray.

To illustrate his point, Ferrario pulled out a cigar case and waved it in front of the Supreme Court justices.

"I have a cigar," he said. "Some people would call this smoking tobacco. If this is smoking tobacco, I just violated the first section of the act because I brought this into a public facility."

But authorities said that is the wrong way to look at it. The argument, they said, comes down to a better understanding of the English language. Simply put, the ban is not on the substance of tobacco but on the act of smoking tobacco, said Nancy Savage, senior deputy attorney general.

Voters passed the Nevada Clean Indoor Air Act in 2006. It bans smoking in restaurants, grocery stores, bars that serve food and most places open to children. Casino gaming floors, strip bars and stand-alone bars are exempt.

Smokers violating the law can face a $100 civil fine.

Bar and tavern owners, as well as customers, have expressed anger and confusion over the law since it was enacted. To get around the ban, some bars spent tens of thousands of dollars building walls separating kitchens from bars or creating separate entities to deliver food to customers.

The arguments before the Supreme Court on Monday were similar to those Herndon heard in December 2006, when the District Court was tasked with hearing challenges to the law.

Bradley Scott Schrager, who represents Flamingo Paradise Gaming, took issue with Herndon's ruling. He said the Nevada Clean Indoor Air Act was sold to voters as one of the strictest smoking bans in the nation because it originally contained criminal penalties. When Herndon removed the criminal penalties, he essentially interpreted what voters wanted.

But it's impossible to know whether voters would have wanted the criminal penalties taken out, Schrager said.

Authorities, however, argued that the law should not be overturned.

The law does three things: it prohibits people from smoking tobacco; it requires bar owners to post signs informing customers about the ban; and it orders bar owners to remove ashtrays and other smoking paraphernalia from the area, said Chief Deputy Attorney General Christine Guerci-Nyhus, who argued on behalf of the state.

Todd Bice, who represents the Nevada Resort Association, also argued in favor of the smoking ban. He said it's acceptable to apply it to bars and taverns and not casinos because of the way the businesses are categorized.

Locations where the ban applies, such as grocery stores and restaurants, are places that families go to. Casinos, on the other hand, cater to tourists and conventioneers, he said.

Contact reporter David Kihara at dkihara@reviewjournal.com or 702-380-1039.

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Please enter your name Name: Please enter your email Email: Please enter a comment COMMENTS : (word count limit is 300) You have reached the maximum number of words allowed Current Word Count: Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background. TDM wrote on April 07, 2009 09:33 PM: Sorry for the incorrect spelling. Should read "automobile pieces" litter the land. TDM wrote on April 07, 2009 09:32 PM: Let the business owners decide if they want their establishment to be smoking of non-smoking. And for all the non-smoking whiners out there who complain about how dirty it is, please stop driving your cars, The exhaust pollutes the air, automobile pice litter the land, and oil from the roads runs off into the land, ground water, rivers and oceans. If your going to complain about smoking, don't be a hypocrit. Free Nevada wrote on April 07, 2009 08:23 PM: PROOF Move along if your not contributing wrote on April 07, 2009 08:22 PM: Great, all you people who won't frequent certain taverns, in the first place, why do you think it's alright to cripple their business? I'm sick of right fighters mowing down every business to prove their point..when some businesses shouldn't have to cater to them. We don't necessarily share your vision, you have Applebees, McDonald's and PF Changs...let some tavern's exist without the patronage you wouldn't have given them in the first place. SecretSpook wrote on April 07, 2009 08:10 PM: I see a lot of you have bought into the B.S. that second-hand smoke kills as outright as if you were smoking the cigarette yourself. There is NO medical proof that second-hand smoke kills. Where are the hospital records that state on the death certificate the person died from it? There aren't any because it DOESN'T happen. Show me definitive PROOF of this and I'll change my tune but until it is proven without a shadow of a doubt, stop believing the B.S. Greg wrote on April 07, 2009 07:36 PM: Smoking, including second hand smoke, exacts enormous costs on healthcare, which one way or the other, we all pay for in the long run. When money is tight in Nevada, that is not the time to backtract to special interests and bring back bad habits into public places. The majority of people do not smoke, and the rights of others in public places to smoke stops at the nose of the majority. The Nevada gaming industry is fearful for every dollar lost inside their four walls, when they should, once again, be concerned about the common good. Free will does not apply to those who bring unwanted health risk to others aroundt them. Let them go outside to smoke, or dedicated areas. There are enough Americans who go through the slow, exhausting, painful, and EXPENSIVE march to death from cancer for reasons other than smoking. We don't need to add to the count, FROM smoking. LOL wrote on April 07, 2009 05:31 PM: Your rights stop at the tip of my cigarette. So back off and go polk yourself. You want "fresh" air, then why are you in Vegas? Besides, there are no scientific studies that show "second hand" smoke causes any health hazards, it's all in your little minds. Smoke 'em if you got 'em. Authentic Connecticut Republican wrote on April 07, 2009 04:21 PM: >>"It was and still is the will of the people." Uh....that same line of thinking was used to defend both slavery in this country and death camps in Germany. What it really is, is both confiscation of private property (the restaurant or bar, etc.) as well as tyranny of the majority. julz wrote on April 07, 2009 04:04 PM: "Whine all you want about casinos. It was and still is the will of the people. Guarantee you put it on the ballot again and it will get crushed even harder." Casinos are exempt. I guess you cannot contract health problems if you inhale second-hand smoke in a casino. Or perhaps...the casinos would have mounted such a huge campaign against the law it probably would have been defeated. If they do put it on the ballot, which should not even be legal because it is private property, it at least should be worded: Yes, I want the ban; or, No, I do not want the ban. I do not like strip clubs. I think they are immoral and bad for the community, therefore, I do not patronize them. If you don't like it, don't go. Quit telling people how to live their lives. Lee Yarbrough wrote on April 07, 2009 03:07 PM: I don't smoke but I don't feel I have the right to tell any business man that risks his own money to run a bar or any other business that he does not have the right to server people that are smoking. If a bar wants to cater to nonsmokers then he can state that one his doors. If you don't want to support a bar that allows smoking, don't go into it. Pretty said when someone has the right to tell others how to run their business. When was the last time that those that voted for this law went into a local bar and supported that bar? Not many by the looks of the businesses that are closing down and people being put out of work. Read All Comments