Public health vs. free speech

When Bilbo’s Bar and Grill provides matches and ashtrays emblazoned with the restaurant’s name, it’s not violating the Nevada Clean Indoor Air Act. Instead, it’s exercising its First Amendment right to advertise.

At least that’s what the restaurant’s attorney contends in response to a lawsuit by the Southern Nevada Health District for violating the state’s smoking ban.

The Health District on Monday filed its first civil lawsuit against a business for violating provisions of the voter-passed Question 5.

The agency is asking a judge to issue a preliminary injunction requiring Three B’s, owners of the eatery on West Charleston Boulevard, to remove ashtrays and other smoking paraphernalia from all areas where smoking is banned. For now, the business faces a $200 penalty for violating the law.

That amount could go up if Health District inspectors document additional violations between now and a court date scheduled for June 6.

Bilbo’s, which had received a letter from the Health District regarding the violations, provides ashtrays and matches to its patrons that display the business’ name and its addresses throughout the Las Vegas Valley.

"I felt we had a right to leave the ashtrays there. Specifically, we are taking the position that we have a commercial right to free speech,” Bob Peccole, attorney for Bilbo’s Bar and Grill, said about leaving the ashtrays and matches out for customers. "We use our ashtrays for advertisement.”

Health District attorney Stephen Minagil said that argument doesn’t fly.

"All this lawsuit does is seek to obtain compliance by this particular business," he said.

"This particular business is just keeping their regular ashtrays and saying that they don’t want to comply. They don’t want to pull out their matches because matches, they say, are for advertisement."

Minagil continued, "It is a restaurant. It serves food. It is required to be nonsmoking.”

Peccole, a former chief attorney general for Southern Nevada and a state gaming commissioner, said the issue is more than just a business owner’s right to advertise. He said the law, as a whole, is flawed.

"We want to challenge the entire act,” Peccole said.

In January, tavern owners in Southern Nevada challenged the Nevada Clean Indoor Air Act. District Judge Douglas Herndon upheld the law but took the criminal component out, leaving the Health District with sole enforcement responsibilities.

Earlier this month, the Nevada Tavern Owners Association filed notice with the Nevada Supreme Court that it intends 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.

"Certainly this law has lots of vagueness and ambiguity," said Peccole. "Those questions will be raised again on application when someone is charged.”

During the hearing, Herndon said as a criminal statute, the Nevada Clean Indoor Air Act is facially unconstitutional.

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.

Smokers who violate the act are also subject to a $100 civil fine for each infraction. However, because of Herndon’s order, the Health District isn’t pursuing bar or restaurant patrons for violating the law, Minagil said.

"We’re not peace officers,” Minagil said.

Businesses, on the other hand, can be fined if they fail to post ‘No Smoking’ signs or fail to remove ashtrays and other smoking paraphernalia.

Since the law went into effect, the Health District has received more than 2,000 complaints from restaurant and bar patrons who claim businesses are not complying. In the past three months, the Health District has worked with businesses on compliance issues.

A few continue to disobey, Minagil said.

About three weeks ago, the Health District began sending out warnings to Clark County businesses that received the most complaints from the public. That was a final effort to get recalcitrant businesses to comply, Minagil said.

"The Health District has gone out to verify the nature of the complaints and whether businesses were in fact undermining the act. The Health District confirmed on numerous occasions certain businesses doing certain acts or practices to undermine the law,” he said. "As a result, we sent approximately 10 letters to affected businesses caught in the act. We asked those businesses to communicate and come see us so they could abandon those particular practices.”

Though the law doesn’t spell it out, Health District officials interpret smoking paraphernalia to include improvised ashtrays. Some businesses were warned about providing customers with Styrofoam or plastic cups and condiment containers to use as ashtrays.

Inspectors carrying cameras made unannounced visits to businesses.

According to an affidavit by Health District inspector Mark Gillespie, on April 12, he observed two patrons of Bilbo’s smoking and using glass ashtrays. Gillespie said that two ashtrays were on the bar top as well as glasses containing matches in several locations.

Peccole said he relayed to Minagil his position on advertising. "He said, ‘So then you don’t want to have a sit-down?’

"I told him I didn’t feel there was any need for a conference,” Peccole said.

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