Smokers flout judge’s order

A judge on Thursday made it official: Bilbo's Bar and Grill will have to remove its smoking paraphernalia, making it Southern Nevada's first business reprimanded for violating the Nevada Clean Indoor Air Act.

Customers responded: Kiss my ashtray.

On Thursday night, while watching the NBA Finals, a few customers at Bilbo's on West Charleston Boulevard had their lighters on the bar, cigarettes in hand, discarding their ashes in red plastic cups.

Even if the spirit of the law was going up in flames, the bar was complying with the letter of the law, having removed the ashtrays and matches that it had contended were a form of advertising. The items are emblazoned with the restaurant's name and the addresses of its three locations.

Even nonsmoking customers sympathized.

"I think the law is extreme," said Chris Cleary, a construction worker who quit smoking two years ago.

Earlier in the day, District Judge Valerie Adair issued a preliminary injunction against the eatery, ordering it to remove smoking paraphernalia immediately in accordance with Question 5, the state's smoking ban.

Bilbo's complied. The prohibited items were nowhere in sight Thursday night.

Adair's written decision came a day after she heard arguments from Bilbo's attorney, Bob Peccole, against the request for the preliminary injunction filed by the Southern Nevada Health District. Adair's decision is the first significant ruling in a civil lawsuit pending against the businesses' owner, Bent Barrel Inc., to collect fines for at least two violations.

Peccole and Health District attorney Stephen Minagil both had expected Adair to rule in favor of the health agency.

"The only problem I'm having is whether or not this decision will be a reflection of how she is going to hold the merits of this case,'' Peccole said after Wednesday's hearing. "The full trial has yet to come.''

Peccole, a longtime Nevada attorney, said he felt Adair had "already made her decision" before the parties went to court Wednesday.

Passed by voters in November, Question 5 prohibits smoking in nearly all public places in Nevada, including grocery stores, restaurants and bars that serve food. Casino floors, brothels and smoke parlors are exempt, as are businesses with unrestricted gaming licenses.

Violators 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 the fine if they are caught smoking.

Adair's ruling said removal of the ashtrays and matches potentially used as advertising does not violate the business owners' right to commercial speech. The restriction "is no more extensive than necessary to serve the substantial government interest of mitigating the effects and exposure to secondhand smoke."

Bilbo's, she said, "has numerous other means of engaging in protected commercial speech ... such as swizzle sticks, coasters, glasses and napkins."

Peccole also had argued that the law unfairly favors certain businesses, referring to the exemption given those with unrestricted gaming licenses.

Adair said the law provides a "rational basis for the distinction between businesses with a nonrestricted gaming license and businesses with a restricted gaming license." Because Bent Barrel is the latter, she said, the restrictions of the ban apply.

Both Minagil and Peccole said they expect the civil lawsuit proceedings to take four to six months. "It's going to be a while because we have to get on the civil calendar. It's not going to be a short process,'' Peccole said.