Bar owners in quandary over smoking ban

The owners of PT's Pub thought they were complying with Nevada's smoke ban when they spent tens of thousands of dollars building walls separating some of its kitchens from bars and creating separate corporations to deliver food to its customers.

The tavern's owner, Golden Tavern Gaming, is also one of two companies seeking to drop its name from a long list of Southern Nevada bar and tavern owners who are challenging the Nevada Clean Indoor Air Act in the Nevada Supreme Court.

"We're trying to do a good job," said James Wadhams, attorney for Golden Tavern Gaming.

But enforcement of the ban in Southern Nevada has been inconsistent, he said. So actions the pub owners thought would help it come into compliance with the law have turned out to cost the business money. That's because interpretation of the ban is still as confusing as it was in March when company representatives first met with health district staff about compliance and keeping smoking customers happy, he said.

"The problem appears, to me, that the health district is dealing with an act that is not related to health but more akin to a zoning ordinance," Wadhams said.

A main point of contention is under what circumstances food can be served to patrons at stand-alone bars. Health district officials say customers can't order food from a third party, but PT's officials and many other business owners thought they could.

Golden Tavern officials said they have had at least eight "positive meetings" with the health district, which is responsible for enforcement of Question 5, enacted by voters in November.

Still, Wadhams plans to address the district's Board of Health on Thursday about giving the agency's staff some direction on enforcement.

Stephen Minagil, attorney for the health district, agreed there is a "difference of opinion" on interpretation of the Nevada Clean Indoor Air Act. He also agrees that the agency's staff needs direction from its health board. But, he said, any confusion over interpretation stems from businesses that disagree with the health district on food service.

Wadhams says the disagreements arise from a March discussion Golden Tavern representatives had with health district officials about whether the business could allow its customers at stand-alone bars to order take-out from restaurants such as Dominos or Pizza Hut.

The health district's response in an April letter was essentially yes, "as long as the bar was not involved in the service of the food,'' he said.

With that in mind, at some of its PT's locations, Golden Tavern Gaming separated its kitchens from bars with a wall, then created a new corporation for those kitchens known as Golden Tavern Restaurants, or PT's to Go. The idea was to provide its bar patrons an opportunity to order food from PT's to Go, which they considered a separate business, and remain in compliance with the law.

"The law doesn't prohibit people from eating where there is smoking,'' Wadhams said.

But in June the company received a letter from the health district saying the law doesn't allow third-party service into stand-alone bars. That letter was followed by an Aug. 28 letter in which Minagil wrote that it's never been the health district's position "that simply by securing a permit for its kitchen operation under the name of an operator different from the permittee of its bar operations could food prepared in the kitchen be served in the bar under the same roof where smoking is not prohibited."

The letter went on to say that earlier references about "Dominos and Pizza Hut" delivering food to stand-alone bars were "hypothetical" and only dealt with food delivered by restaurants off site.

Minagil said when Golden Tavern created separate corporations in order to serve food to customers in their stand-alone bars, other taverns followed suit, which led to numerous complaints from the public.

"Somehow the answer they (Golden Tavern Gaming) took from our conversations led them to put their kitchens under a separate corporation,'' Minagil said. "They weren't told that.''

A second issue Golden Tavern has with the health district's interpretation of the law is whether a business can operate as smoking and nonsmoking, but at separate hours of the day. Wadhams said he had heard the health district was allowing some businesses to operate like this in the spring but then abruptly changed.

In March, the health district's plan review supervisor Paul Klouse told the Review-Journal that when a business goes from a smoking to nonsmoking operation, all of the air must be vented.

Over the next few months, Minagil said, the health district allowed about 10 businesses to temporarily operate as smoking and nonsmoking establishments under a dual permitting system. Those permits have expired and were only to be used on an experimental basis.

Minagil said the health district sided against allowing dual permits because most businesses in the trial did not comply, and that scientific data from the federal Centers for Disease Control and Prevention on air quality did not favor this type of ventilation.

Still, Wadhams' concern is that the health district allowed some bars and taverns to operate one way one day, then another way the next day.

Passed by voters in November, the Nevada Clean Indoor Air Act bans smoking in grocery stores, restaurants and bars that serve food.

The law was challenged by Southern Nevada businesses in December.

Clark County District Court Judge Douglas Herndon later upheld the law but removed criminal penalties for violators of the ban, making the health district sole enforcers of the law. He preserved the $100 fine for violators.

The law outlaws smoking in many indoor places, but it does not require bar owners or workers to enforce the ban.

Many of the same lawyers for the Southern Nevada businesses who had challenged the law in December have filed an appeal with the state's Supreme Court.

Wadhams said PT's decision to remove its name from the appeal is based on the fact that it has had positive meetings with the health district and its belief that a smoking ban will eventually be upheld.

Minagil said the health district is in the process of submitting regulations to its board that should help with enforcement and take away some of the confusion. He said those regulations will be presented to the board in the "near future.''

Contact reporter Annette Wells at awells@reviewjournal.com or (702) 383-0283.