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Brian Haynes

Nevada Clean Indoor Air Act: Anti-smoking law sustained

22 December 2006

and Jennifer Robison

LAS VEGAS, Nevada -- District Judge Douglas Herndon on Thursday upheld the state's anti-smoking law but threw out any criminal penalties associated with lighting up in the wrong places.

Smokers who violate the Nevada Clean Indoor Air Act can still face a $100 civil fine for each infraction, Herndon said.

Supporters of the law, which voters passed last month, hailed the decision.

"It's a victory because exposure to secondhand smoke will be eliminated now. That's a victory for everybody," said Stephen Minagil, a lawyer for the Southern Nevada Health District.

Technically, Herndon's ruling applies only to the businesses that sued to block the law, including PT's Pub and Village Pub and the more than 200 members of the Nevada Tavern Owners Association, but authorities in Southern Nevada and much of the state had been waiting for Herndon's decision before gearing up enforcement.

Thursday's ruling won't become official until the judge signs a written order, which could take up to two weeks.

The law bans smoking in restaurants, grocery stores, bars that serve food and most other indoor gathering places that are open to children. Casino gaming floors, strip bars and standalone bars are exempt.

Minagil said the health district would not immediately enforce the law.

"It was our plan to educate the public first," he said. "We're not going to have people out there armed with citations on the first day."

The ban was to take effect Dec. 8, but Herndon issued a temporary restraining order on Dec. 7 that blocked the law for 15 days. The restraining order was set to expire today.

Lawyers for the bar and tavern owners who had challenged the law declined to comment immediately after the hearing and did not return phone calls Thursday afternoon.

They had argued that the law was unconstitutionally vague and unfairly treated small businesses, and Herndon agreed with many of their points. Herndon agreed that the law was vague in several areas, including the definition of casinos and how authorities are supposed to enforce the law.

"That language is problematic because everyone can say, 'We know it's supposed to apply a certain way.' But what happens when someone says it applies a different way?" Herndon said.

That vagueness gave the law "serious constitutional issues" when looking at it as a criminal statute, he said. The smoking ban called for police to cite offenders with a misdemeanor punishable with jail time. Herndon issued an injunction against that section of the law Thursday.

It would be unfair for someone to be jailed on a misdemeanor smoking charge in Nevada while the constitutionality of the initiative was in question, he said.

He pointed to affidavits from Clark County Sheriff Bill Young and Henderson Police Chief Richard Perkins, which said the initiative left unanswered a number of questions about how deputies and officers should enforce it.

"There would be irreparable harm if an unconstitutional criminal statute goes into effect," the judge said.

But the state and federal constitutions allow more leeway for civil regulations, which is why Herndon let the law stand with the civil penalty intact, he said.

Smoking bans in other states, including Colorado and New Jersey, include only civil penalties.

Herndon took issue with the vague definition of a casino, which under the law is a business with a nonrestricted gaming license and contains a "large room devoted to gambling games." Most neighborhood bars and taverns fall under the smoking ban because they operate with restricted gaming licenses that limit the number of slot machines to 15.

"Do I like the use of restricted versus nonrestricted in the context of a smoking ban? Absolutely not," Herndon said. Still, he added, that aspect of the law probably would pass constitutional muster.

But that distinction might not matter, he said, because a September decision by the Nevada Supreme Court said the law bans smoking in all bars with a food-handling license.

Herndon did not rule Thursday on whether any parts of the law are unconstitutional.

He is to deal with that after a Jan. 23 hearing on the Nevada attorney general's request for summary judgment.

Chief Deputy Attorney General Christine Guerci-Nyhus said, "We want a ruling on what is constitutional and what is unconstitutional and we'll go from there."

Herndon's ruling on the constitutionality of the law will clear the way for appeals to the Nevada Supreme Court, lawyers on both sides said.

Herndon predicted future constitutional challenges to the law by someone who gets an actual citation.

"This particular initiative has problems," Herndon said, "how things are defined, what isn't defined, how it's supposed to be applied."

"The public is probably going to get tired of this case getting litigated," he predicted.

Herndon acknowledged that he received many letters, e-mails and telephone messages, and said he understood the theme: "This was the will of the people and the courts need to get out of the way."

In Washoe County, many businesses have been complying with the ban for two weeks.

Tracie Douglas, spokeswoman for the Washoe County Health Department, said her agency will continue to focus on education and helping business owners comply with the law. In the meantime, health officials there will monitor the Clark County case and change as necessary.

Health inspectors will avoid going into bars to cite violators, she said.

"We are not going to confront anyone (illegally smoking) who may have had too much to drink," Douglas said.

Nye County Sheriff Tony DeMeo, who attended Thursday's hearing, said Herndon's ruling has removed any enforcement responsibilities from his hands.

Yvette Monet, a spokeswoman for MGM Mirage, said the company would proceed with plans to recognize the smoking ban in areas outside casino floors, including restaurants, shopping centers, hotel lobbies and the Mandalay Bay Events Center.

Some Las Vegas tavern owners and employees said Thursday that they already were abiding by the new law, but they added that they were leery of the smoking ban's potential effects.

James Guanci, a partner in Mulligan's Bar & Grill and Mulligan's Landing, said he won't allow smoking so he can continue serving food to avoid laying off loyal workers. He worried that he could lose customers to a casino across the street and said that if gaming revenues take a hit, he will consider giving up food service.

Guanci criticized the double standard in the law that protected smoking in casinos.

"It's a slap in the face to small business owners who own bars with gaming," Guanci said.

"No matter how they cut it, casinos are getting preferential treatment. If they want to safeguard children from secondhand smoke, the law could easily have been written to exclude bar owners with gaming. The casinos are getting away with (allowing smoking) because their gaming floor is limited to people 21 and older, but so is mine."

At PJ McRae's, a piano bar, the kitchen was closed immediately after the smoking ban passed on Nov. 7, forcing the layoffs of a cook and a dishwasher. Business fell 25 percent without the food, bartender Sandy Link said.

She said the law's ambiguity poses the biggest frustration for her. Unresolved, she said, is whether the bar can order food for delivery to patrons or even employees on break. Link said she and the owners of PJ McRae's have yet to see specific rules and regulations from the health district or any other enforcement entity.

"We need clarity on what we can and cannot do," she said. "Can we serve little bags of chips? Are our employees going to get busted if they order in a pizza for lunch?"

Neither Mulligan's nor PJ McRae's were parties in the lawsuit challenging the smoking ban.