Home subscribe manage Las Vegas Review-Journal
  Jobs Cars Homes Shopping Travel Weddings Golf Best of Las Vegas Photo   Search:

RECENT EDITIONS
Tue Wed Thu Fri Sat Sun Mon

News
May. 01, 2007
Copyright © Las Vegas Review-Journal

ENFORCING THE STATE SMOKING BAN: Public health vs. free speech

First lawsuit filed against business in valley; bar says ashtrays, matches just advertising

By ANNETTE WELLS
REVIEW-JOURNAL
QUESTION 5
• Passed by voters in November, Question 5 prohibits smoking in nearly all public places in Nevada, including grocery stores, restaurants and bars that serve food. Casino floors, brothels and smoke parlors are exempt.

COMPLIANCE
• Since the law went into effect, the Health District has received more than 2,000 complaints from restaurant and bar patrons who claim businesses are not complying. In the past three months, the Health District has worked with businesses on compliance issues.


Ashtrays and matchbooks advertising the locations of Bilbo's Bar and Grill are displayed Monday at the West Charleston Boulevard location. The accouterments are at the heart of a civil lawsuit filed by the Southern Nevada Health District.
Photo by John Gurzinski.

When Bilbo's Bar and Grill provides matches and ashtrays emblazoned with the restaurant's name, it's not violating the Nevada Clean Indoor Air Act. Instead, it's exercising its First Amendment right to advertise.

At least that's what the restaurant's attorney contends in response to a lawsuit by the Southern Nevada Health District for violating the state's smoking ban.

Newsvine Digg Fark Technorati reddit StumbleUpon del.icio.us Slashdot Propeller Mixx Furl Twitter MySpace Facebook Google Bookmarks Yahoo! Bookmarks Windows Live Favorites Ask MyStuff myAOL Favorites

Most Popular Stories
  • NORM: Simpson planned acquittal party
  • DOUG ELFMAN: Angel's 'Believe' magic: Miffed fans disappear
  • PALACE STATION ROBBERY: O.J. Simpson guilty
  • PALACE STATION ROBBERY: O.J. Simpson guilty
  • LV house is a bargain for under $8 million
  • HOA INVESTIGATION: Retired officer found dead
  • NORM: Wynn ready for another big finish
  • Airport scanner peers through clothing
  • NORM: O.J. leans against leaving Las Vegas
  • REACTIONS TO CONVICTION: EXPERTS: PAST HAUNTED O.J.
  • NORM: Lineup gelling for golf tourney



    • The Health District on Monday filed its first civil lawsuit against a business for violating provisions of the voter-passed Question 5.

    The agency is asking a judge to issue a preliminary injunction requiring Three B's, owners of the eatery on West Charleston Boulevard, to remove ashtrays and other smoking paraphernalia from all areas where smoking is banned. For now, the business faces a $200 penalty for violating the law.

    That amount could go up if Health District inspectors document additional violations between now and a court date scheduled for June 6.

    Bilbo's, which had received a letter from the Health District regarding the violations, provides ashtrays and matches to its patrons that display the business' name and its addresses throughout the Las Vegas Valley.

    "I felt we had a right to leave the ashtrays there. Specifically, we are taking the position that we have a commercial right to free speech,'' Bob Peccole, attorney for Bilbo's Bar and Grill, said about leaving the ashtrays and matches out for customers. "We use our ashtrays for advertisement.''

    Health District attorney Stephen Minagil said that argument doesn't fly.

    "All this lawsuit does is seek to obtain compliance by this particular business," he said.

    "This particular business is just keeping their regular ashtrays and saying that they don't want to comply. They don't want to pull out their matches because matches, they say, are for advertisement."

    Minagil continued, "It is a restaurant. It serves food. It is required to be nonsmoking.''

    Peccole, a former chief attorney general for Southern Nevada and a state gaming commissioner, said the issue is more than just a business owner's right to advertise. He said the law, as a whole, is flawed.

    "We want to challenge the entire act,'' Peccole said.

    In January, tavern owners in Southern Nevada challenged the Nevada Clean Indoor Air Act. District Judge Douglas Herndon upheld the law but took the criminal component out, leaving the Health District with sole enforcement responsibilities.

    Earlier this month, the Nevada Tavern Owners Association filed notice with the Nevada Supreme Court that it intends to appeal Herndon's order. The filing does not state the legal grounds for the challenge, and the association has until October to do so.

    "Certainly this law has lots of vagueness and ambiguity," said Peccole. "Those questions will be raised again on application when someone is charged.''

    During the hearing, Herndon said as a criminal statute, the Nevada Clean Indoor Air Act is facially unconstitutional.

    Passed by voters in November, Question 5 prohibits smoking in nearly all public places in the state, including grocery stores, restaurants and bars that serve food. Casino floors, brothels and smoke parlors are exempt.

    Smokers who violate the act are also subject to a $100 civil fine for each infraction. However, because of Herndon's order, the Health District isn't pursuing bar or restaurant patrons for violating the law, Minagil said.

    "We're not peace officers,'' Minagil said.

    Businesses, on the other hand, can be fined if they fail to post 'No Smoking' signs or fail to remove ashtrays and other smoking paraphernalia.

    Since the law went into effect, the Health District has received more than 2,000 complaints from restaurant and bar patrons who claim businesses are not complying. In the past three months, the Health District has worked with businesses on compliance issues.

    A few continue to disobey, Minagil said.

    About three weeks ago, the Health District began sending out warnings to Clark County businesses that received the most complaints from the public. That was a final effort to get recalcitrant businesses to comply, Minagil said.

    "The Health District has gone out to verify the nature of the complaints and whether businesses were in fact undermining the act. The Health District confirmed on numerous occasions certain businesses doing certain acts or practices to undermine the law,'' he said. "As a result, we sent approximately 10 letters to affected businesses caught in the act. We asked those businesses to communicate and come see us so they could abandon those particular practices.''

    Though the law doesn't spell it out, Health District officials interpret smoking paraphernalia to include improvised ashtrays. Some businesses were warned about providing customers with Styrofoam or plastic cups and condiment containers to use as ashtrays.

    Inspectors carrying cameras made unannounced visits to businesses.

    According to an affidavit by Health District inspector Mark Gillespie, on April 12, he observed two patrons of Bilbo's smoking and using glass ashtrays. Gillespie said that two ashtrays were on the bar top as well as glasses containing matches in several locations.

    Peccole said he relayed to Minagil his position on advertising. "He said, 'So then you don't want to have a sit-down?'

    "I told him I didn't feel there was any need for a conference,'' Peccole said.



    Leave Your Comment 28 Reader Comments
    Terms & Conditions
    The following comments are provided by readers and are the sole responsiblity of the authors. The reviewjournal.com does not review comments before publication nor guarantee their accuracy. By publishing a comment here you agree to abide by the comment policy. If you see a comment that violates the policy, please notify the web editor.

    Some comments may not display immediately due to an automatic filter. These comments will be reviewed within 48 hours. Please do not submit a comment more than once.
    Current Word Count:

    Michael McEuin wrote on May 01, 2007 08:49 PM: To Derrick:

    Q)"Since when did the opinions of the minority outweigh the concensus of the majority"

    The constitution outweighs any mob mentality.

    "The people wanted it!"

    No...I'm guessing that people are just lazy and because of that, they have given up another freedom.

    "Oh Mr. McEuin, when you smoke next to me, you deny my right to Life, Liberty and the pursuit of happiness."

    Apparently, reading is NOT your strong point. The first line of my post was "I don't Smoke..."


    John Teeples wrote on May 01, 2007 07:01 PM: Oh come on now folks. let's face the facts here. this was all built on BS politics. you can smoke in a gaming area, but not a bar that serves food? thats so oxy-moron just like the American heart and lung associations. they are the creators of these inititaves, they are fighting the very thing that makes them so big and money weilding. "CIGGARETTES"!!! its all politics. and so goes the free country theroy down the drain. yes, we are "free-er" than most, but not free. I am still glad to be a citizen, just a tad more let down.


    LEE wrote on May 01, 2007 07:00 PM: SINCE THIS LAW HAS BEEN IN AFFECT I HAVE BEEN TO SOME SMOKE FREE ESTABLISHMENTS THAT WERE PACKED, INCLUDING BARS AND RESTRAUNTS, NO PROBLEMS, MOVIE THEATERS, HOSPITALS, AIRPORTS, STORES, EVERYBODY WILL ADJUST OR THEY WILL JUST BE MISERIBLE, ALANTIC CITY SMOKING BAN JUST PASSED IN THE CASINO FLOORS, VEGAS CASINOS ARE NEXT, THIS IS JUST THE TIP OF THE ICEBERG.


    ron wrote on May 01, 2007 06:37 PM: I have never smoked, yet I voted against this law. It is simply not the government's business to legislate what is good for me. I have the free will to pick where I want to shop/eat, and to decide whether or not to patronize establishments who welcome smokers. While I like being smoke-free; I really like being free even more.


    CJ wrote on May 01, 2007 05:48 PM: i do not smoke, but the backlash of this idiotic law has left tens of thousands of people without jobs. They have lost thir jobs at all the bars that many people love to get decent food at a low price. The law is a joke. If you're in a casino you can smoke, but you cant in a bar? You cant smoke at restaurants in the casino, but if you walk 5 feet out of the restaurant, you can smoke. IDIOTIC
    Bars need to have the choice of what they want to do, that's why people go there. they want to eat, smoke, drink, and gamble.
    When this was on the ballot, most people didn't know what kind of effect it would have. No food, tens of thousands of out jobs, etc. I'm willing to bet if this was on the ballot next year knowing what we know now, it would never pass.
    Thanks for giving it to us once again Big Brother


    Derrick wrote on May 01, 2007 05:09 PM: Since when did the opinions of the minority outweigh the concensus of the majority. You people seem to forget that the citizens and residents of the state of Nevada voted in favor of this law. It was not some beaurocratic effort to control you or take away your rights. The people wanted it! Oh Mr. McEuin, when you smoke next to me, you deny my right to Life, Liberty and the pursuit of happiness.


    Bill C. wrote on May 01, 2007 04:24 PM: Public areas are anywhere that the general public can enter. If you are charging for food and, by law, collecting sales taxes, you are required to follow public health laws. Would you want to eat in a restaurant that did not follow standards of washing dishes? If it's left to the decision of the restaurant's owner and it is more cost-efficient to not wash dishes, should they be allowed to not wash dishes?! This is simply a public health issue. Smoke affects everyone in the restaurant, not just the person smoking. It's not a constitutional right to be allowed to smoke anywhere.


    Marc D wrote on May 01, 2007 03:48 PM: If there is such a public demand for smokeless bar, then why doesn't someone open up a bar that advertises that it is smokeless and let the public decide.

    Oh, I'm sorry, we aren't supposed to make sense when the Nanny state is trying to "help" us make up our minds.


    Brian wrote on May 01, 2007 03:37 PM: I am in full upoort of this law and I love that it is being taken serious by our health department. The majority of Las Vegas supports this law. That is why it passed.

    @Lee, it is the right of the business to open and allow smoking. But, it is the right of the city to deny them the license to operate in Nevada.


    Jordan wrote on May 01, 2007 03:01 PM: I don't smoke but I know it is wrong when poor legislation is enacted. This is a case of out-of-state PAC's trying to control Nevada business interests. Why are only taverns and convenience stores covered under the ban and the large casino's not? Who does the Nevada Resort Authority lobby for? Hmmmm. No impact analysis was done on how this ban would affect small business owners either, let alone the tipped employees who could face reduced business levels. Voters were confused to begin with and so is the Health Department on how to enforce this stupid law. Throw it out already.


    Read All Comments