Nevada Supreme Court upholds Clean Indoor Air Act

Corrections
<B>CORRECTION, 11/8/11</B> - An article in Thursday's Business section incorrectly identified the co-owner of Bilbo's Bar & Grill noted in a Nevada Supreme Court ruling as having smoked a cigar on premises during a health inspection. The co-owner was Robert Peccole Jr.

The Nevada Supreme Court, ruling in a matter regarded a signature case at its inception, has unanimously knocked down a constitutional challenge of the Nevada Clean Indoor Air Act.

Attorney Robert Peccole Jr., an owner of the two Bilbo's Bar & Grill locations, had resisted enforcement efforts to the point of smoking a cigar during a 2007 inspection by the Southern Nevada Health District. In the subsequent lawsuit, he claimed that the voter-approved law's prohibition on placing ashtrays and "smoking paraphernalia" on tables and counters was unconstitutionally vague and restricted his right to advertise by placing his tavern's logo on such items.

The 16-page ruling, posted Thursday and signed by all seven judges, rejected these arguments but narrowed the impact by making it an unpublished order. This is a legal term that means it applies only to the Bilbo's case and is not intended to set a precedent for others.

"Because of the Supreme Court decision, we are now the only bar in the state of Nevada that has an injunction against putting out ashtrays and matchbooks," said Peccole. "I think this was a political decision."

On a broader scope, state lawmakers amended the law in the most recent legislative session. Now, smoking is not allowed where anyone younger than 21 is served unless a no-smoking area is physically separated from the bar.

"Most (of our members) have gone to 21, so it's not an issue at this point," said Roger Sachs, the president of the Nevada Tavern Owners Association. "We just hope that nobody starts tinkering with the legislation again."

The legislation dampened much of the ruling's impact, said attorney Terry Coffing, who represented the district, but does clarify the law. For that reason, he said he will ask for it to be published.

The law banned smoking in most buildings open to the public, with the notable exception of casinos and bars with no food service.

Despite the limited impact, the health district found value in the ruling because it upheld the responsibility of restaurant owners to order customers to snuff out their cigarettes, spokeswoman Jennifer Sizemore said. The district's checklist for annual health inspections now includes compliance with the smoking law, but there hasn't been a mechanism to cite violations by patrons.

"It has been an issue about how to enforce the law and enforce it equally," said Justin Micatrotto, the current chairman of the Nevada Restaurant Association.

Before the revised checklist, the district relied on outsiders reporting business violators, which then received warning letters. However, an investigator hired by Peccole said he found more than 40 places violating the law without consequence.

According to the court's ruling, the health district had suspended enforcement of legal provisions challenged in the Bilbo's case while awaiting a ruling.

"The difference is that Bilbo's chose to continue its violations of the (clean air act) while other businesses complied with it," the court wrote.

In the ruling, the court singled out Peccole's conduct.

"While other circumstances may have required narrower tailoring, such as only prohibiting ashtrays and not matchbooks, the scope of the injunction was necessitated by Bilbo's repeated flagrant violations of the (law)," according to the opinion.

Places that followed the law might get more leeway on matches, the court noted.

When asked during a 2007 inspection, Peccole removed the ashtrays and matchbooks but handed out shot glasses, mugs and other receptacles for cigarette ashes. This, he said, demonstrated that "smoking paraphernalia" was impossible to define.

But the court disagreed, saying the people of "average intelligence" would understand that the law covered matchbooks and ashtray substitutes.

Further, even though ashtrays and matchbooks can carry advertising, the court found that the ban was legal because it was enacted for health reasons and not to restrict free speech.

The ruling upheld the decision by Clark County District Court Judge Valerie Adair in May 2010.

Contact reporter Tim O'Reiley at toreiley@reviewjournal.com or 702-387-5290.

 

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