Bilbo’s dodges a contempt citation

Bilbo's Bar and Grill and the Southern Nevada Health District are in a public and lengthy feud over the state's smoking ban, but they're not in contempt.

Of a court ruling, that is.

A judge on Wednesday rejected each sides' attempt to slap a contempt finding on the other for violating a previous ruling. The health district said Bilbo's was continuing to openly defy the provisions of the Nevada Indoor Clean Air Act. Bilbo's said it was the health district that was out of line and the eatery was being harassed and singled out for prosecution.

And Bilbo's won a small victory when District Judge Joseph Bonaventure ordered the health district to pay $1,000 in attorneys fees. In doing so, he sent somewhat of a message to the district.

"I do think you need to calm down a little,'' Bonaventure told health district attorney Stephen Minagil. "Think this out. ... Think this through. ... That's my opinion.''

At issue this time was whether Bent Barrel, operators of Bilbo's, had violated the terms of District Judge Valerie Adair's June 6 ruling because customers were using shot glasses, provided by bartenders, to deposit their cigarette butts and ashes.

Adair's preliminary injunction had required Bilbo's to remove all of its signature ashtrays and matches at its West Charleston address.

Although Bilbo's obeyed that order, health district officials claimed that Bilbo's employees merely exchanged its "flat" round glass ashtrays with "tall" round shot glasses.

"That item, the tall glass, is an ashtray,'' Minagil said while pointing at an empty shot glass atop the witness stand podium during Wednesday's hearing. "It is placed out on the bar for patrons to use as an ashtray. And they are not removed when they are used.''

Bob Peccole, attorney for Bent Barrel, argued that the health district was just "picking on Bilbo's.''

After nearly two hours of back and forth, mostly bantering between Minagil and Peccole about the definition of an ashtray and how a shot glass may or may not be considered as such, Bonaventure found there wasn't enough evidence to hold Bilbo's in contempt.

If Bilbo's was providing shot glasses to patrons specifically for ashes it might seem they are violating Adair's order, Bonaventure said. But if patrons were using shot glasses that previously contained a drink, there's no contempt of court, he said.

"I don't see the facts in this situation here where Bilbo's is providing shot glasses to be used as ashtrays intentionally,'' Bonaventure said.

Peccole argued it was the health district that violated Adair's order when the district suggested that Bilbo's employees and representatives -- and not the health district -- were responsible for enforcing the Nevada Clean Indoor Air Act. He also said the health district was "harassing" Bilbo's by sending inspectors to the eatery and photographing its customers.

In his response, Minagil said the health district isn't harassing Bilbo's and that the eatery is but one of 25 establishments to receive a letter from the agency because of compliance issues under Question 5, passed by voters last year.

The smoking ban has been called confusing by some lawmakers, members of the general public, and businesses, especially in Southern Nevada.

The law, which prohibits smoking in nearly all public places in Nevada, including grocery stores, restaurants and bars that serve food, was challenged by Southern Nevada businesses in December.

District Judge Douglas Herndon upheld the law but took the criminal component out in Southern Nevada, leaving the health district with sole enforcement responsibilities. In Northern Nevada, police and health officials are enforcers of the law.

The Nevada Tavern Owners Association has filed a notice of its intent to appeal Herndon's order to the Nevada Supreme Court. The filing does not state the legal grounds for the challenge, and the association has until October to do so.

Since the law went into effect, the Health District has fielded more than 2,000 public complaints regarding Question 5 violations.

Several of the 25 businesses the health district has sent letters to have met with the agency's staff to rectify compliance issues.

Violators of Question 5 are subject to a $100 fine for each infraction.

Businesses can be fined if they fail to post "No Smoking" signs or fail to remove ashtrays and other smoking paraphernalia. Smokers who violate the law are subject to a fine if they are caught smoking, however that hasn't happened yet.

"We think we're seeing compliance from most businesses,'' Minagil said after Bonaventure's decision. "Nobody told us 'No' except for Bilbo's.''

Minagil said the next step is to go back before Adair and ask her to clarify her order, specifically as it relates to what an "ashtray" is.

"He (Bonaventure) thought we should not have asked for the contempt motion,'' Minagil said.

"We thought it was pretty clear. ... This isn't the end of the case. We are in the second of nine innings. Judge Adair still has to make her judgment permanent."

Peccole had a different take on Bonaventure's decision.

"I'm thinking maybe this is time something like this happens to wake them up,'' Peccole said. "What he (Minagil) should do is direct his attention to let's moving along the case (civilly). Let's find out if it's constitutional or not.''

During the hearing, Bonaventure also suggested the health district go after individual smokers.

Minagil said they health district is meeting with the Justice Court about setting up a system where individual smokers caught violating the ban will be cited.