Smoking in cigar bars, tobacco outlets ruled unconstitutional
August 29, 2014
By Riley Johnson
The Nebraska Supreme Court on Friday declared unconstitutional the indoor smoking ban exemptions for cigar bars and tobacco retail outlets.
In its decision, the court upheld the overall ban.
Judge Kenneth Stephan, writing for the majority, said there is no substantial difference in circumstances between cigar bars and other public places or workplaces that justifies treating them differently.
In 2008, the Nebraska Legislature amended the Nebraska Clean Indoor Act to make it “unlawful for any person to smoke in a place of employment or a public place.”
But they provided exemptions for hotel guestrooms, indoor areas used for research on the health effects of smoking, and tobacco retail outlets defined as businesses that only sell tobacco or related products.
The next year, they added another exemption for cigar bars, which they defined as any business receiving at least 10 percent of its annual revenue from cigar sales, with a walk-in humidor on site and one that doesn’t allow cigarette smoking.
Big John’s Billiards, an Omaha billiards hall, has fought the state’s smoking ban since its inception.
Friday’s decision followed a 2011 decision by a Lancaster County judge that all three smoking exemptions involving businesses were unconstitutional.
Since the 2011 ruling, the case has been appealed several times before ultimately reaching the state’s highest court.
In that time, the exempted businesses continued to allow smoking. It wasn’t immediately clear what impact Friday’s decision would have on existing businesses exempted from the ban.
The Supreme Court ruled that only the hotel guestrooms exemption is constitutional, because the evidence against it doesn’t overcome its presumption of constitutionality, Stephan wrote.
That’s not the case for tobacco retail outlets and cigar bars, he said.
“Allowing patrons of such shops to smoke simply because it is convenient does not comport with the purpose of the Act, which is to protect the public and employees from the dangers of second-hand smoke,” Stephan wrote.
The justices noted that senators in discussion of the 2009 cigar bar exception said those joints existed to allow smoking.
Stephan called that reasoning “directly contrary” to the Act’s purpose.
In a 2011 ruling, Lancaster County Judge Jodi Nelson said the smoking ban exceptions for businesses were unconstitutional and that they could be severed from the ban.
Friday’s decision affirmed Nelson’s decision in part.
Stephan said the lower court misapplied the special legislation test and erred in determining the hotel guestrooms exception was unconstitutional.
The Supreme Court judges heard oral arguments from Big John’s Billiards Attorney Ted Boecker and Assistant Nebraska Attorney General Dale Comer in May.
There are 11 active cigar bars across the state, according to Nebraska Liquor Control Commission license data. Three are in Lincoln — Jake’s, Rich Bar & Lounge, and AlSultan.
Judge William Cassel dissented in part and Judge John Wright did not participate.
Cassel agreed with the majority’s view on the cigar bar and guestroom exemptions but said the tobacco retail outlet exemption is different and should be constitutional.
People who go into those businesses do so to buy tobacco and tobacco products and use it despite its related risks, Cassel wrote.
“There is no rationale for a patron to enter a tobacco retail outlet other than to facilitate his or her access to firsthand smoke.”