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Brian Haynes

Casinos join smoking battle

19 December 2006

NEVADA -- As they head back into court today, supporters of the state's new anti-smoking law have a surprising ally in their fight to uphold the law.

The Nevada Resort Association, the lobbying arm of the largest and most powerful casino companies, filed court papers Monday opposing the bar and tavern owners' lawsuit that seeks to throw out the smoking ban.

Because the association had supported a less-restrictive anti-smoking law on the November ballot, the American Cancer Society's Buffy Martin-Tarbox said she was "perplexed and shocked" at the association's move. "Maybe they came to their senses," she said.

Bill Bible, the resort association's president, could not be reached for comment Monday, and the association's lawyer, Todd Bice, declined to comment.

The association's filing to intervene in the case came a day before supporters and opponents of the law were to make their arguments to District Judge Douglas Herndon.

According to the association's filing, the group was prompted to join the court battle by a couple of the claims of the law's opponents: that the law's treatment of businesses with restricted and unrestricted gaming licenses is unconstitutional and that it is unclear whether the new smoking ban applies to hotel rooms.

The association's lawyer wrote that no one except the bar and tavern owners is suggesting that the law affects hotel rooms.

"Since no one is claiming that it applies to hotel and motel rooms, and the proponents concede that it does not, where is the case or controversy today regarding this issue?" Bice wrote.

As for the law's different treatment of businesses with restricted and unrestricted gaming licenses, Brice wrote: "The drafters of the NCIAA made a valid decision to distinguish between the two in determining where smoking would be prohibited, a distinction the law allows them to make. To hold otherwise would invalidate decades of gaming law and regulatory structure."

Opponents of the law, dubbed the Nevada Clean Indoor Air Act, allege it is unconstitutional and would hurt business at bars and taverns across the state. Supporters contend the law is constitutional and should stand because it was approved by voters.

Nevadans passed the law with 54 percent of the vote on Nov. 7. The law bans smoking in restaurants and bars that serve food. Smoking would be allowed in casino gaming areas and stand-alone bars.

The new prohibitions were scheduled to take effect Dec. 8, but a group of bar and tavern owners filed a lawsuit against state Attorney General George Chanos and local police and health agencies to stop the law

The lawsuit said that the law was "impermissibly vague" and that it unfairly targeted certain businesses while exempting others, a violation of the equal protection clauses in the state and federal constitutions.

Herndon issued a temporary restraining order that put enforcement on hold until he could hear and rule on the legal challenges.

The Nevada Tavern Owners Association joined the lawsuit and argued the law violates the U.S. Constitution because it requires a public taking of the airspace within private businesses with no compensation to the businesses.

Chief Deputy Attorney General Christine Guerci-Nyhus' reply was: "The state and its local governments must protect the health, safety and welfare of the public by enacting statutes and state and local agencies follow through with regulations, many of which have a significant impact on the economic value of an owner's real property. This does not, however, entitle a landowner to compensation for these impacts and owners must expect some limitation on the use of their property in order to protect the public."

She wrote that "the fact that some interpretation may be required at certain junctures does not cause the statute to be vague or unconstitutional."

"A public restaurant has no fundamental right in allowing its customers to smoke," she wrote, citing similar cases in Colorado, New Jersey and Florida, where courts have upheld anti-smoking laws that apply to various businesses.

As for the bar and tavern owners' argument that business would be hurt by the ban, Guerci-Nyhus recounted New York's experience.

When New York Mayor Michael Bloomberg proposed a citywide smoking ban in 2003, New York bar owner James McBratney, president of the Staten Island Restaurant and Tavern Association, opposed it and said it would hurt small businesses.

Two years later, McBratney said that his fears were unfounded and that the smoking ban had not hurt business.

Foes of the Nevada law have argued that other states' bans are not comparable because in Nevada an issue is which businesses will be patronized by gamblers who smoke.