Critics: Law is blowing smoke

Bar patron Barbara Doughty's interpretation of the state's smoking ban is simple: If you have a bar where food is being served and there is gaming, smoking is not allowed.

Proponents of the Nevada Clean Indoor Air Act think it's simple, too: With some exceptions, smoking is banned in any business with a food-handling license.

But you'll forgive Doughty and other Nevadans if they're still confused over a law that bans smoking inside a place like Bilbo's Bar and Grill but not one like Big Dog's Bar and Grill.

Both serve food. Both have gaming. But Big Dog's Bar and Grill on Nellis Boulevard has a nonrestricted gaming license because it has more than 15 slot machines, so it's exempt from the ban.

Bilbo's, which has a restricted gaming license because it has 15 or fewer slot machines, isn't exempt from the smoking ban.

The Southern Nevada Health District, tasked with enforcing the law, continues to field complaints from people about businesses allowing patrons to smoke. Some complaints involve businesses with nonrestricted gaming licenses, health officials say.

"It's clear to the tavern owners and the casinos but not to the citizens,'' Stephen Minagil, attorney for the Health District, said about the difference between a business with a nonrestricted license and one with a restricted gaming license.

The 15 machine threshold isn't the only criterion used in determining who gets an unrestricted license. A nonrestricted gaming license also can be granted to a business that has at least one machine and live gaming such as blackjack, poker, or sports betting, said Jim Martin, chief of investigations for the state's Gaming Control Board.

The major difference between the two types of licensees is that nonrestricted businesses depend primarily on gaming for revenue. In businesses with restricted gaming licenses, gaming machines are incidental to their primary function, he said.

For purposes of the Nevada Clean Indoor Air Act though, a nonrestricted gaming license is just a way to define what is or isn't a casino.

"If you have more than (15 machines), and you have an unrestricted gaming license, you're considered a casino,'' Minagil said.

But the language of Question 5 also says a casino "typically uses the word casino as part of its proper name.''

Several businesses in Southern Nevada holding nonrestricted gaming licenses, such as Big Dog's, do not have "casino" in their names. So, are they really exempt under the law?

Minagil acknowledges there's room for interpretation on that point.

"The way the law reads, they should have casino in their name,'' Minagil said. "We would suggest it to make sure they are compliant under the law.''

Michael Hackett, who worked on the Question 5 campaign, said any establishment that does not have "casino" in its name is subject to the ban.

However, if Big Dog's Bar and Grill suddenly became Big Dog's Casino, that would not resolve it for Hackett.

"Those businesses are not casinos; they aren't even taxed like casinos,'' he said.

Approved by voters in November, Question 5 prohibits smoking in nearly all public places in the state, including grocery stores, restaurants and bars that serve food. Exempt are casino floors, brothels and smoke parlors.

During a public forum at UNLV on enforcement of the Nevada Clean Indoor Air Act earlier this month, Mark Ferrario, attorney for the Nevada Tavern Owners Association, said the issue of nonrestricted and restricted gaming licenses is a sticking point.

Restricted licensees continue to complain that exempting certain businesses from the law creates an uneven playing field.

"If you have a restricted gaming license, you fall into the nonsmoking category; if you have a nonrestricted license, then it is OK to smoke,'' Ferrario said during the forum. "That is the line of demarcation. What does that have to do with health? ... We challenged that and the big casinos came in and argued that this should be an appropriate line to draw. We disagreed.''

The tavern association has filed notice it will appeal to the Nevada Supreme Court a Clark County district judge's ruling upholding the law.

The judge, Douglas Herndon, acknowledged the definition of a casino was vague when making his ruling.

"Do I like the use of restricted versus nonrestricted in the context of a smoking ban? Absolutely not," Herndon said at the time.

Still, he added, that aspect of the law probably would pass constitutional muster.

Ferrario said the appeals process will likely take about two years.

Bob Peccole, attorney for Bilbo's Bar and Grill, brought the restricted versus unrestricted issue up this month after District Judge Valerie Adair ruled Bilbo's had to remove ashtrays, matches and other smoking paraphernalia from its locations.

Peccole said it is not fair to a business that looks the same as another to be penalized for having fewer than 15 gaming machines.

Since the smoking ban took effect, Martin said, the Control Board hasn't received any more applications for nonrestricted gaming licenses than in the past. He said most businesses that aren't casinos prefer restricted licenses because they don't cost as much.

The cost of investigating a business applying for a restricted license is just a few thousand dollars. For nonrestricted licenses, investigations cost $40,000 to $100,000 each, Martin said.

"Those fees can be kind of expensive to the small business owner,'' he said.

According to the Control Board's Web site, several Albertsons and Vons grocery stores also have nonrestricted gaming licenses. But under the law, smoking is not allowed in any part of a grocery or convenience store, Minagil said.

Doughty, who lives in northwest Las Vegas, says it seems businesses are constantly looking for loopholes to allow smoking. She said one of her favorite neighborhood bars, which didn't allow smoking before the ban, now permits it.

"I can't go to my neighborhood bar anymore because they allow smoking. That's exactly what the businesses were afraid of, they were going to lose business to the big casinos," she said.