Agency to pursue smokers

Southern Nevada smokers who skirt the state's smoking ban by lighting up in bars and restaurants where smoking isn't allowed soon might face a justice of the peace and a $100 fine.

The Southern Nevada Health District is gearing up to issue citations to individual smokers violating the Nevada Clean Indoor Air Act, said its attorney, Stephen Minagil.

"We're just about there,'' he said.

The health district has drafted a citation form for health inspectors to use in citing individuals caught smoking in businesses where the ban applies, but it does not have a system in place yet for the courts to handle the citations.

The health district was left with sole enforcement responsibility in Southern Nevada after a district judge in December removed criminal penalties from the law, taking away any law enforcement role in ensuring compliance.

Up to now, the health district has been taking complaints from customers about businesses, making inspections and in some cases, most notably with Bilbo's Bar and Grill, trying to enforce the provisions of Question 5 through the courts.

Minagil said the health district has the authority to ask individual violators for identification "at every location where we find them violating the act."

The agency plans to speak with judges and Justice Court officials in the next two weeks about finalizing a system to adjudicate cases, he said.

"What that means is, as part of due process, people, or violators, are entitled to it. For our part, we need to include a date, time and location as to where these individuals may go as part of that due process,'' he said. "We are trying to make it as efficient as possible where we would be able to handle all of the cases in one day.''

Once the system is ready, the health district can move to the next step, which is to speak with law enforcement about helping health inspectors in carrying out the citation process.

That will be an attempt by the health district to cover all "potential situations," which might include resistance from bar and restaurant patrons caught smoking, Minagil said.

"We are not peace officers, yet we're in a bar and people are drinking. We just want to avoid any potential future problems. That may include someone not giving us their identification,'' he said. "The Health District staff writing these citations are scientists. They are environmental health specialists who are not armed. They don't have peace officer training.''

If a health inspector is in need of help, Minagil said, the health district would like to be able to call on law enforcement.

The ban, passed in November, prohibits smoking in nearly all places in the state, including grocery stores, restaurants and bars that serve food.

Casino floors, brothels and smoke parlors where tobacco products are sold are exempt. So are certain businesses with unrestricted gaming licenses.

Smokers who violate the act are subject to a $100 fine for each infraction. Businesses can be fined if they do not post 'No Smoking' signs and fail to remove ashtrays and smoking paraphernalia.

Michael Hackett, a spokesman for last year's Question 5 campaign, said all of the difficulties with the law have occurred in Southern Nevada. In Northern Nevada, businesses and individuals are complying.

"There is a lot of creative interpretation going on in Southern Nevada,'' he said. "The issues that are playing out down south, the ongoing litigation and this small group of establishments not trying to comply, we're not having that in any other parts of the state.''

The Nevada Tavern Owners Association and other businesses that challenged the law have appealed to the Nevada Supreme Court the December decision by District Judge Douglas Herndon to uphold civil penalties for violators. They have until October to file their arguments for that appeal, Hackett said.

Still, Hackett said, the law's proponents think the Nevada Clean Indoor Air Act is self-explanatory and "self-enforcing.''

"When someone walks into a restaurant or a bar without a shirt or shoes, obviously they are not allowed in because of public health laws,'' he said. "The smoking law was intended to be the same way. It's a public health law, which means the owner or the manager should tell that person who is smoking to put out the cigarette or leave the business.''

Tracie Douglas, a spokeswoman for the Washoe County Health District, made similar comments. She seemed a little baffled by questions relating to individuals being cited for smoking in locations where it is banned.

"We're not finding individuals smoking in the restaurants,'' she said.

Asked what the Washoe County Health District would do if a health inspector caught someone smoking in a business where it wasn't allowed, Douglas said, "We wouldn't be put in that situation. The Police Department would take action on any individual.''

Douglas said Washoe health inspectors are not sent to handle individuals because they are unarmed.

"That's the kind of situation where you don't want to put anyone in harm's way,'' she said.

Minagil said fines collected from violators of the Nevada Clean Indoor Air Act go to a state education fund.

"The only thing we (the health district) get out of this is protection of the public's health from toxic secondhand cigarette smoke,'' he said.