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Apr. 06, 2009
Copyright © Las Vegas Review-Journal

Opponents tell justices that smoking ban is unfair to taverns, bars

By DAVID KIHARA
LAS VEGAS REVIEW-JOURNAL

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’s vague and unfairly targets small bars and taverns.

Challengers also said that a district judge shouldn’t have upheld the ban during a contentious 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 its flaws corrected. The Supreme Court will issue its decision within 30 to 90 days.

    Ferrario argued that the ban is too unclear and doesn’t 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 doesn’t 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 this 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 isn’t on the substance of tobacco but on the act of smoking tobacco, said Nancy Savage, senior deputy attorney general.

    Voters passed the Nevada Clean 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 stated that the Nevada Clean 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 those 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 shouldn’t 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, like grocery stores or restaurants, are places that families go to. Casinos, on the other hand, cater to tourists and conventioneers.

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

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    East California wrote on April 07, 2009 12:07 AM: @ Jennifer

    If you are so worried about it, don't go to Green Valley Grocery. Go to Whole Foods or Von's. Maybe you should not be exposing your kids to that kind of atmosphere. You do have choices. Make good one's for yourself, not others.


    suzyq wrote on April 06, 2009 11:36 PM: The law that we voted for was vague and confusing. It included taverns, bars, nursery schools all on the same bill. While I would not take my child to a nursery where there was smoking, nor would I take them to a bar. Maybe next we will see prohibition again - or maybe overweight people will be incarcerated for eating too much food in public. Just make the law fair and right for all.


    Susan wrote on April 06, 2009 11:31 PM: Give me a break! First the casinos don't want to have their taxes raised to fund education. Then they lobby for the smoking ban in taverns so locals are forced to go to casinos if they want to smoke, eat, and play. Notice how ALL of their restaurants are totally open to the smoking casino? Is this fair to small business owners? I think not. And despite the greed of the big casinos - they are still all losing their butts. At least the tavern owners have compassion and relationships with their customers. This law is unconstitutional and needs to be amended. Do your job elected officials!!!


    Marty B wrote on April 06, 2009 10:18 PM: Why would people that don't like smoke go to a bar? It makes no sense. It's kind of like people that don't swim complaining about water.


    W-H-A-T-? wrote on April 06, 2009 09:35 PM: What I don't understand is how in the heck does someone start smoking in the first place? How in the world can some who inhales a burning cigarette for the first time in their lives thinks that it tastes or smells good. It tastes like pure a--s--s. I know because I tried it once when I was young.

    I don't get it, I really don't. Smokers do have a right to smoke, but not in public places. It's so nice going into Smith's now and not having to suck pure a--s--s stench before getting to the milk and eggs.


    Jennifer wrote on April 06, 2009 09:16 PM: SMOKERS PAY TAXES: You're right...I don't remember the time when I would walk into a Green Valley Grocery to pay for gas and buy my kids a candy treat, and would walk out with my clothes and hair smelling like I rolled around in your ashtray...and when I would open the candy for my children and the Neccos tasted like cigarettes...and I don't remember going into my local grocery store to buy food for my family with all the smokers gambling away...

    You're right! How dare I take away THEIR rights...my rights don't matter...the fact that I don't smoke has no effect on you...but the fact that you smoke has a severe effect on me and my family. How dare I think of them instead of you...


    Voter wrote on April 06, 2009 09:11 PM: Yes the people voted for this, my guess is that most that voted did not read or understand what they were voting for. Vote against cigarettes, yes it is a disgusting vile habit, now they won't have to smell it while eating out at their favorite establishment. This is not what the vote was about. If this vote were to be put out there now, there is a good chance that it would not pass. How about we put out a vote banning athiest, most people disagree with them, so lets eliminate them. How about no more fast food, it makes people fat. This vote should never have been on the ballot.


    JD wrote on April 06, 2009 08:27 PM: I'm a non-smoker and I can't stand being around cigarette smoke. However, this is Nevada and this state is obviously different from other states. Nevada is synonymous with "sin" AKA "living it up". That's just the nature of this state. And like what was inferred below, non-smokers can patronize restaurants where there are non-smoking sections.

    What I don't like, however, is that people are trying to change this law. Unlike other jurisdictions - where the city government imposes smoking bans - this ban was left up to the people.

    The people voted for it. It is now law.

    I know that many people didn't even bother voting in the first place. Apathy is no excuse for trying to change a law. If people truly want this ban to be modified or eliminated, then bring it up for a vote again. If people want to get rid of the ban, then they'll do so - by their Constitutional right of voting. And if Nevada wants to get rid of the ban, then that's fine.

    However, don't ever try to change the will of the people via lobbyists. That's a dangerous precedent to set and one that goes against the Democracy principles that this country was founded upon.


    Neko wrote on April 06, 2009 08:18 PM: LOL. You smokers are such an arrogant bunch that you don't realize your carcinogenic habit is infringing on others. Pretty ironic that the iconic "Marlboro Man" died of lung cancer, don't you think??? This has nothing to do about "Californication" but rather on good health sense. I wonder how many smokers actually wish they kick the habit?

    As for the tavern owner, if business is so bad, then why is PTs expanding and others are applying for licenses to build new taverns? Perhaps your business plan needs to be revisited?


    what could be more fair than this wrote on April 06, 2009 08:14 PM:
    i get to sit at home with a $125k a year salary, and a huge retirement.

    paramedic local 1908 rules !!!!

    http://www.lvrj.com/news/10284922.html


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