Defiance: NE Smoking ban violations

Omaha pool hall’s ticket adds fuel to smoking ban fight
November 22, 2012
By Joe Duggan
LINCOLN — An Omaha pool hall that was ticketed for allowing a customer to smoke will fight the citation as part of its ongoing crusade against Nebraska’s smoking ban.
On the evening of Nov. 10, Omaha police wrote two tickets at Big John’s Billiards, 9819 M St. — one was issued to a customer who was smoking and the other to general manager Bill Prout for allowing the violation of the state’s indoor smoking ban. As first offenses, the citations carry a maximum fine of $100.
Prout will challenge the citation, using it to further his claim that the smoking ban is unconstitutional, said Ted Boecker, an attorney representing Big John’s in its lawsuit against the state.
The business won a partial victory in 2011, when Lancaster County District Judge Jodi Nelson struck down exceptions to the ban that allow smoking in cigar bars, tobacco retailers and designated motel rooms. The law that created the exceptions violates the constitutional prohibition against special legislation, the judge ruled.
Nebraska Attorney General Jon Bruning appealed the judge’s ruling, but the State Supreme Court said the appeal was filed prematurely. The high court sent the case back down so that Nelson can rule on all the legal issues raised in the lawsuit.
Boecker said the state has continued to allow certain businesses to profit from the exceptions, and now it has chosen to enforce the law against Big John’s.
“We think any law cannot be selectively enforced,” he said. “It is being enforced in what we think is a discriminatory manner.”
Big John’s had been openly defying the ban, posting signs that read, “This is a smoking establishment” and “Warning: Smoker friendly pool hall.” The Nov. 10 police action represents the first time that tickets have been written at the business.
Meanwhile, the pool hall’s lawsuit against the state continues to progress in Lancaster County District Court. On Tuesday, the judge found that the business could not be held in contempt for violating the smoking ban because she had not specifically ordered it not to allow smoking.
The Douglas County Attorney’s Office sought a contempt order after the pool hall failed a smoking ban compliance check in October.
Prout has said he was forced to close a Big John’s location in Lincoln because of the revenue lost since the smoking ban took effect.

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Officials want court to enforce smoking ban

Jan 25, 2010

OMAHA – State officials have asked a court to step in and force a thrice-cited Broken Bow bar owner to comply with a statewide smoking ban.

Although the Nebraska Department of Health and Human Services has received dozens of complaints of smoking-ban violations since the law took effect June 1, officials say this is the first time they’ve resorted to such enforcement measures.

Sylvester’s Bar & Lounge owner Henry “Fred” Schumacher is accused of violating the Nebraska Clean Indoor Act, which bans smoking inside all public buildings and private businesses, including bars and restaurants.

Schumacher declined to comment on the case and refused to identify his attorney to speak on his behalf. Custer County District Court officials say Schumacher doesn’t have an attorney on file.

A Feb. 4 hearing is set in the case.

Statewide, officials have received 134 complaints of smoking-ban violations through Friday, including 45 complaints received in June alone.

Most of the complaints came from outside Omaha, Lincoln, Grand Island and Humboldt, where smoking bans were previously in effect, HHS spokeswoman Marla Augustine said.

Eight complaints have been received about Sylvester’s Bar, she said. They led to three citations for Schumacher. Court documents show Schumacher was fined a total of $500.

Cigar bars, some hotel rooms, tobacco-only retailers, facilities that research the health effects of smoking and private homes are exempt from the law.

Those exemptions are at the center of arguments made by the owner of an Omaha pool hall, who has a pending lawsuit against the state. Among other things, an attorney for Big John’s Billiards owner Will Prout argues the exceptions make the ban unconstitutional.

In June, a Lancaster County district judge denied Prout’s initial request to stop the law from taking effect.