Lawyer Don Campbell holds up a lemon and an orange during arguments over the constitutionality of the Nevada Clean Indoor Air Act. Photo by Clint Karlsen.

When is a tavern more than a tavern and a lemon more than a cocktail garnish?

As court onlookers learned Tuesday, things aren't always what they seem when the discussion turns to the constitutionality of the state's new anti-smoking law.

In an all-day hearing, lawyers for bar and tavern owners challenged the Nevada Clean Indoor Air Act, saying it's vague and unfairly targets small businesses.

"This was a misguided attempt to achieve a laudable goal," said Mark Ferrario, who represents the more than 200 members of the Nevada Tavern Owners Association. "No one from our side of the table is challenging the goal of protecting children and families from secondhand smoke."

Much of the debate in the courtroom of District Judge Douglas Herndon centered on the argument that the law voters passed last month unfairly banned smoking in some businesses while allowing it in others.

The law prohibits smoking in restaurants, including bars that serve food. But it makes an exception for casinos, which it defines in part as businesses that hold a nonrestricted gaming license.

Most neighborhood bars and taverns do not qualify for the exemption because they hold restricted gaming licenses, which limit the number of slot machines in the business to 15.

Lawyer Kirk Lenhard, who represents the tavern owners who sued to stop the law from taking effect, said some of his clients operate taverns that are identical in every way except for the type of gaming licenses they hold. Some of the taverns could allow smoking, but most could not, he said.

That violates constitutional equal protection clauses because similar businesses are arbitrarily treated differently based on the number of slot machines they have, he said.

"It defies explanation how these two locations can be treated differently," Lenhard said.

He argued that the distinction between restricted and nonrestricted gaming licenses should not have been used for the Nevada Clean Indoor Air Act, which was Question 5 on the ballot.

"That line is absolutely arbitrary when it's applied to Question 5 and smoking," Lenhard said. "It was never intended for smoking."

Lawyer Todd Bice of the Nevada Resort Association, the lobbying arm of the state's major casinos, said any ruling on the two-tier gaming license system would affect regulations and laws that have been on the books for decades.

"It will transcend gaming," Bice said.

Similar taverns with different gaming licenses should be treated differently because taverns with nonrestricted gaming licenses could operate as larger casinos if their owners choose.

Bice admitted that he would have set different parameters outlining which businesses would be affected by the law. "If I were czar or king, would I draw the line where the voters drew the line in this case? No, I wouldn't," Bice said.

The Nevada Resort Association supported Question 4, the less-restrictive anti-smoking initiative.

Lenhard disputed Bice's contention that striking down the gaming license distinction for the smoking ban would affect any other laws or regulations.

If the challenge could do that, then the attorney general's office and the Gaming Control Board would have been in court fighting against it, he said.

"Their silence is deafening," Lenhard said. "It tells you how spurious and, frankly, silly that argument is."

He disagreed with Bice's statement that taverns with nonrestricted gaming licenses could grow into large casinos and said local ordinances cap the number of slot machines the taverns can operate.

Some of Lenhard's clients can have up to about 40 machines only.

Ferrario said the Nevada Resort Association took its stance to boost business.

"What dog does he have in this hunt?" Ferrario said of Bice. "The NRA is really here because, I think, if this act is passed ... customers are going to move, and they're going to move to businesses that allow smoking. ... That's really the evil going on here, and that's why the NRA is here."

Herndon said he had concerns about the distinction between restricted and nonrestricted licenses in connection to the smoking ban.

Chief Deputy Attorney General Christine Guerci-Nyhus told the judge that the distinction was reasonable, but Ferrario disagreed.

"Judge, when you step back from this and all the emotion, I don't see any reason for the distinction between a casino and my clients," he said.

Lawyers for the taverns also attacked the anti-smoking law for vagueness and said it was not clear on what behavior was banned and who could be held accountable for it. Even longtime police officers could not make sense of the statute, lawyer Don Campbell said.

"They don't know how to enforce it, and these are not stupid people. They're career law enforcement," Campbell said, referring to sworn statements from Sheriff Bill Young and Henderson Police Chief Richard Perkins.

If they cannot interpret the law, how can the young beat officer decide who gets a citation, Campbell asked.

The law was unclear also about what behavior is prohibited, he said.

Campbell pulled out a bag of groceries to illustrate a problem with the law's requirement to ban smoking where food is served. He produced an orange, a lemon, olives, a pineapple, whipped cream and other food used to make some alcoholic drinks.

If a tavern wanted to allow smoking, it would have to stop making such drinks because that would involve serving food, he said.

Guerci-Nyhus said the law was clear: Smokers cannot smoke, and bar owners must post signs and remove ashtrays. Nowhere does the law imply that anyone but the smoker could be cited for lighting up, she said.

And Nevada authorities have been enforcing other anti-smoking laws for 30 years, and they should know how to enforce them, she said.

Campbell criticized the Southern Nevada Health District for going beyond what is written in the law in its published guidelines for tavern owners.

"They're just making it up as they go along, and they don't get to do that," Campbell said.

Stephen Minagil, lawyer for the health district, said it created the guidelines because the public looked to it for help.

"Do not take Dr. (Donald) Kwalick to task for trying to do his job," Minagil said of the district's chief health officer.

Minagil said none of the tavern owners approached the health district to suggest ways to come to a consensus on what the law meant.

Both sides argued about the definition of a casino, a component in deciding which businesses are exempted from the smoking ban. Part of the definition says a casino has a "large room" for gaming.

"Your large room might be my medium room and their small room," Herndon said. "How is somebody supposed to know based on that very generic description what a large room is?"

Guerci-Nyhus, who agreed that some of the language in the law could be a problem, said any issues with definitions would be addressed during enforcement.

Besides the gaming license issue, the casinos got involved in the lawsuit because the question of whether the law applies to hotel and motel rooms, Bice said.

He said the tavern owners, most of whom have no hotel rooms, raised the issue to get the public "riled up."

He said the supporters of Question 5 agreed it did not apply to hotel rooms, but lawyers for the taverns and Herndon disagreed.

"Show me where this act says you can smoke in a hotel room. It doesn't," Ferrario said.

Said Herndon, "I don't think that issue has been decided at all."

Herndon did not make a decision Tuesday and will return to the bench this afternoon after reading some legal briefs that were filed too late for the judge to read before the hearing.

He did not say whether he would make his decision then.

Herndon said that if he issues a preliminary injunction, it would apply only to the businesses involved in the lawsuit.

Lenhard asked the judge to declare the law unconstitutional and let state lawmakers take up the issue.

"I think the Legislature got the message," Lenhard said. "I realize the Legislature shirked its duty last time. Let's give them a chance to do it next time."

Guerci-Nyhus said the law should be upheld.

"Seventy-six percent of Nevadans don't smoke and have the right to enjoy a night out without being exposed to secondhand smoke," she said.