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Liz Benston

Serve food or allow smoking: Trendy spots may face choice

15 August 2007

LAS VEGAS, Nevada -- Some of Las Vegas' hottest nightclubs and lounges must ban smoking because they also operate as restaurants at other times of the day, health authorities have quietly concluded.

Casino operators Tuesday were reluctant to react to the news, reflecting the lingering confusion over the voter-approved smoking restrictions and how they continue to be interpreted. Smoking has long been banned in nightclubs in other cities, such as Los Angeles and New York.

The administrative decision affects the likes of such high-profile joints as Mandalay Bay's Rumjungle and Venetian's Tao, which have been allowing patrons to smoke at night after kitchens close or in adjacent areas that aren't walled off from where food is served.

Such nightclubs have come under scrutiny for seemingly violating last year's anti-smoking law.

The Southern Nevada Health District had been issuing dual permits for businesses to operate as non smoking restaurants, but as smoking-permitted, nonfood nightclubs.

Businesses with the dual permits were required to stop food service before allowing patrons to light up and had to circulate air long enough to effectively remove smoke. But health officials have now concluded that if smoking is allowed some of the time, the facility is never totally smoke-free .

Despite the initial offering of dual permits, Strip venues didn't obtain them because "a lot of them came to the conclusion on their own that this was something they could do legally," Health District spokeswoman Jennifer Sizemore said.

Clarifying the law for these Strip locations was low on the priority list because the Health District was focusing on locations that had received the most complaints from the public. They tended to be smaller, off-Strip bars and restaurants, she said.

The Health District expects to meet with the hybrid restaurant-nightclub Strip locations, as it has with owners of smaller bar s , to first discuss their concerns before taking action, Sizemore said.

The Health District is allowing bars to serve food in walled-off nonsmoking areas with separate air ventilation systems and restrooms, with negative air pressure dividing the two spaces to prevent smoke from wafting into the nonsmoking area.

Of the dozen or so smaller bars that applied for the dual permits, only a handful was complying with the law by preventing smoking during designated nonsmoking hours, Sizemore said.

The Health District did not immediately make public the list of permit holders, including those not in compliance.

Health officials concluded that allowing businesses to operate both smoking and nonsmoking hours violates the spirit of the Nevada Clean Indoor Air Act because trace amounts of pollutants can remain after smoking has ceased, Sizemore said.

As evidence, the Health District cites research by the Lawrence Berkeley National Lab that measured the presence of pollutants that were absorbed by walls and furniture in a home after smoking had stopped.

"Stopping smoking (for several hours at a time) doesn't protect the public from secondhand smoke," Sizemore said.

Las Vegas' lavish restaurant hybrids aren't serving food in the traditional sense. Rumjungle stops serving food at night and becomes a velvet-rope club, with scantily clad go-go dancers and an extensive selections of rums to lure party-goers. Tao offers a downstairs restaurant as part of its upstairs dance hall experience and is known for models who frolic in bathtubs, expensive bottle service and huge bar tabs that helped it top the list of highest-grossing independent restaurants nationwide last year.

In these clubs, smoking is a common complement to a gin and tonic, while food - although not cheap - takes a back seat to profits generated from alcohol consumption.

The move also affects many smaller, off-Strip bars that had applied for the dual operating permits to keep their kitchens while accommodating smokers after lunch or dinner hours.

Unlike Strip venues, some of these taverns had served food at a loss to lure gamblers to bar-top poker machines.

The sudden shift comes amid back-and-forth discussions between the Health District and tavern owners to clarify requirements under the act.

Many bars have unwittingly spent thousands of dollars on partial renovations without fully walling off nonsmoking areas with separate ventilation systems, said Joseph Wilcock, president of the Nevada Tavern Owners Association and owner of the Brewery Bar & Grill in Las Vegas.

Wilcock said his group wasn't aware of the decision to phase out the dual permits.

"A week ago Friday we submitted guidelines to the Health District, and we've got a half dozen owners waiting to see what comes out of their meetings" before they move forward, he said.

A lawsuit by tavern owners to throw out the ban is on appeal, and other legal fights are pending.

The Health District's first lawsuit against a bar to collect fines for violating the smoking ban is awaiting a final ruling after a judge required the bar to remove ashtrays and other smoking paraphernalia. In a separate case, a cigar bar is fighting a Health District order to prohibit smoking on a patio in the Forum Shops at Caesars .

Many other bars are simply flouting the ban, waiting for a more definitive court ruling or because they think the law is unfair.

Many bar owners are upset with what they say is the hypocrisy of allowing casino floors - where food is served nearby - to allow smoking while prohibiting it in food-serving bars with fewer slot machines. If the ban was intended to prohibit smoking where children could be eating with their families, then kids aren't likely to be found, or admitted, for that matter, into bars and clublike restaurants. Children often roam big casino floors, however, they say.

Some of these bars have lost 30 percent to 50 percent of their revenue because customers are going to the many nearby drinking-only bars or casinos to light up, Wilcock said.

"I don't think anyone in this town dis agrees that smoking is bad for you. But just don't go in there. This idea that the 70 percent of people in Nevada who don't smoke are suddenly going to wake up and become tavern customers is just comical."

One health advocate applauded the Health District's initiative to roll back the permits.

"Nevadans voted for Question 5 to be fully implemented and enforced and nowhere did they vote for any exemptions and loopholes in the law," said Stephanie Steinberg, president of Smoke-Free Gaming of Colorado, a group that lobbies for nonsmoking casinos across the country. "It's also a fairness issue. There's no fairness here to the establishments that are in compliance with the law."

Sizemore said the Health District is caught in the middle of an emotional, drawn-out dispute that's unlikely to dissipate anytime soon.

"We're trying to do what's in the best interest of public health. But we weren't involved in writing this law and working out nuances of it, with our limited staff, has been difficult."