High court hears tavern smoking ban challenge

Four and a half years after the smoking ban went into effect, the Nevada Supreme Court is considering a case that could overturn the law some taverns owners say has ruined their businesses.

The full court heard oral arguments Monday in Carson City from an attorney for Bilbo's Bar & Grill. The establishment's parent company, Bent Barrel, is suing the Southern Nevada Health District and challenging the constitutionality of the Nevada Clean Indoor Air Act as it is applied to businesses.

Bilbo's lawsuit, on appeal from the Clark County District Court, claims the law violates the bar owner's right to commercial free speech by requiring it to remove shot glasses, ashtrays and matches Bilbo's uses for advertising.

Terry Coffing, the Health District's attorney, tried to convince the justices that the Bilbo's advertising argument was just a cover to allow its patrons to break the law by smoking.

"They only gave them out to people who were lighting up," he said of shot glasses and ashtrays. "If you call it an ashtray, it is an ashtray."

At least some of the court's justices seemed sympathetic to Bilbo's argument that its advertising is being unfairly stifled.

"I used matches to light my barbecue," Justice Mark Gibbons, a nonsmoker, pointed out.

Robert Peccole, the lawyer for Bilbo's and a shareholder in the company, also told the justices that the law's use of the phrase "smoking paraphernalia" is unconstitutionally vague. He further argued that the District Court erred when it required Bilbo's to tell employees smoking was prohibited in certain areas.

"In this case, as it is applied, you have a situation where the statute is being arbitrarily enforced," Peccole said. "For one, the Health District has not cited a single person who puffs on a cigarette."

The 2006 passage of the Nevada Clean Indoor Air Act resulted in a ban on smoking in taverns that serve food, and on most other public places. The drafters of the smoking ban exempted casinos, which included taverns with unrestricted gaming licenses.

Bilbo's and other taverns with restricted gaming licenses claimed that violated their right to equal protection. Bars with more than 15 slot machines have unrestricted gaming licenses, can serve food and can allow smoking. Peccole, however, ran out of time to argue that point before the justices Monday.

In 2009, the Nevada Supreme Court ruled the smoking ban was constitutional on its face, as a civil law. But the justices left the door open for a future constitutional challenge based on the way the law was applied.

Peccole repeatedly quoted from the justices' past comments on the Nevada Clean Indoor Air Act to make his case.

"You warned them, 'If you make a (bar) owner do your duty ... you are looking at a challenge,'" he told the justices.

Contact reporter Valerie Miller at vmiller@lvbusinesspress.com or 702-387-5286.