Opponents tell justices that smoking ban is unfair to taverns, bars

Opponents of Nevada’s smoking ban challenged the constitutionality of the 2006 law Monday before the state Supreme Court, arguing that it should be overturned because it’s vague and unfairly targets small bars and taverns.

Challengers also said that a district judge shouldn’t have upheld the ban during a contentious court fight several years ago. At issue is a ruling by District Judge Douglas Herndon that allowed the enactment of the smoking ban but threw out any criminal penalties people might face.

“This act started with the best intentions. But intentions cannot cure constitutional flaws,” said attorney Mark Ferrario, who argued against the ban on behalf of the Nevada Tavern Owners Association.

Challengers are fighting to overturn the law or have its flaws corrected. The Supreme Court will issue its decision within 30 to 90 days.

Ferrario argued that the ban is too unclear and doesn’t define exactly who can be fined for violating the law. Is it the person lighting up? The cocktail waitress who serves the patron? The bar owner? The landlord of the property?

It also doesn’t define what is banned, he said. A can of soda, for example, could be considered “smoking paraphernalia” if a customer uses it as an ashtray.
To illustrate his point, Ferrario pulled out a cigar case and waved it in front of the Supreme Court justices.

“I have a cigar,” he said. “Some people would call this smoking tobacco. If this is smoking tobacco, I just violated the first section of the act because I brought this into a public facility.”

But authorities said this is the wrong way to look at it. The argument, they said, comes down to a better understanding of the English language. Simply put, the ban isn’t on the substance of tobacco but on the act of smoking tobacco, said Nancy Savage, senior deputy attorney general.

Voters passed the Nevada Clean Air Act in 2006. It bans smoking in restaurants, grocery stores, bars that serve food and most places open to children. Casino gaming floors, strip bars and stand-alone bars are exempt.

Smokers violating the law can face a $100 civil fine.

Bar and tavern owners, as well as customers, have expressed anger and confusion over the law since it was enacted. To get around the ban, some bars spent tens of thousands of dollars building walls separating kitchens from bars or creating separate entities to deliver food to customers.

The arguments before the Supreme Court on Monday were similar to those Herndon heard in December 2006, when the District Court was tasked with hearing challenges to the law.

Bradley Scott Schrager, who represents Flamingo Paradise Gaming, took issue with Herndon’s ruling. He stated that the Nevada Clean Air Act was sold to voters as one of the strictest smoking bans in the nation because it originally contained criminal penalties. When Herndon removed those criminal penalties, he essentially interpreted what voters wanted.

But it’s impossible to know whether voters would have wanted the criminal penalties taken out, Schrager said.

Authorities, however, argued that the law shouldn’t be overturned.

The law does three things: it prohibits people from smoking tobacco; it requires bar owners to post signs informing customers about the ban; and it orders bar owners to remove ashtrays and other smoking paraphernalia from the area, said Chief Deputy Attorney General Christine Guerci-Nyhus, who argued on behalf of the state.

Todd Bice, who represents the Nevada Resort Association, also argued in favor of the smoking ban. He said it’s acceptable to apply it to bars and taverns and not casinos because of the way the businesses are categorized.

Locations where the ban applies, like grocery stores or restaurants, are places that families go to. Casinos, on the other hand, cater to tourists and conventioneers.

Contact reporter David Kihara at dkihara@reviewjournal.com or 702-380-1039.

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