Judge says she is likely to rule against bar in smoking case

A judge said Wednesday that she was inclined to issue an injunction against Bilbo's Bar and Grill, a tavern that defied health officials who alleged the eatery on West Charleston Boulevard was violating the state's smoking ban.

Though a written decision will not come until today, District Judge Valerie Adair told attorneys for both sides that she was favoring issuing a preliminary injunction that would order the eatery to remove all ashtrays and matches from the building.

"I expect that I will have a court order issuing the preliminary injunction,'' said Stephen Minagil, attorney for the Southern Nevada Health District, which filed a lawsuit against Bilbo's Bar and Grill in an attempt to force the eatery to pay fines under the Nevada Clean Indoor Air Act.

"I gave her (Adair) our written court order, and she said she would use that and, if she needed to, make changes.

"The injunction does not mean that Bilbo's can't hand those ashtrays out or use them in an area where smoking is allowed. A lot of businesses are creating smoking areas, such as outdoor patios," he said.

Bilbo's attorney Bob Peccole argued the business has a First Amendment right to place the items out as a form of advertising.

If Adair rules against the tavern, he said, he expects the restaurant will abide by the decision.

Minagil said the law is clear: Bilbo's is a restaurant that serves food, and therefore smoking is not allowed. And, under Question 5, ashtrays and other smoking paraphernalia should be removed from any area where smoking is prohibited, he said.

Bilbo's has posted 'No Smoking' signs as required under the law.

Peccole argued that neither the health district nor the law itself defines 'smoking paraphernalia.' He also said the law unfairly favors certain businesses.

Both are arguments that have been brought up in previous hearings regarding the Nevada Clean Indoor Air Act.

Peccole also said the enforcement burden should not fall on the business owner.

"The owner has no responsibility to stop smoking. ... That burden falls on the health district,'' Peccole said. "They cited two people smoking at the bar. What did they do to those people?''

Minagil has said the health district probably will not pursue patrons who violate the law because of a previous order by District Judge Douglas Herndon's removing criminal penalties from the law.

Herndon's decision left the health district with sole enforcement responsibilities.

In April, the Nevada Tavern Owners Association filed notice with the Nevada Supreme Court that it plans to appeal Herndon's order. The filing does not state the legal grounds for the challenge, and the association has until October to do so.

Passed 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. Casino floors, brothels and smoke parlors are exempt, as are businesses with unrestricted gaming licenses.

An establishment with an unrestricted gaming license is one that has 16 or more slot machines and where gaming is the primary focus of the business.

If Adair grants the preliminary injunction, Minagil said, it would be in effect only until after the lawsuit is settled. Then the health district would seek a permanent injunction.

The health district's lawsuit against Bent Barrel, owner and operator of Bilbo's Bar and Grill, is a culmination of months-long inspections and complaints filed by the public against businesses violating the Nevada Clean Indoor Air Act.

In April, Letters were sent to 13 businesses, including Bilbo's, outlining the violations.

In Bilbo's case, the problem was the continued presence of ashtrays and matches, Minagil said.

Minagil said Bilbo's was the only business to respond that it would not comply with the health district's requirements.

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 act are subject to a $100 civil fine for each infraction.

As it stands, Bilbo's faces a $200 fine for violating the law. But health district inspectors have been out to the West Charleston location this month, and more visits are anticipated.

Minagil said the business probably will face a larger fine.

"For us, it is a major first step in having a court determine that all of these challenges do not have much validity and that businesses are going to have to comply with the act," Minagil said.