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HEALTH DISTRICT: Smokers may face $600 fee
Money would be part of enforcement of the Nevada Clean Indoor Air Act

2/25/07
By ANNETTE WELLS

A $100 civil penalty may not seem like too stiff a price to pay for flouting the state’s new smoking ban, especially since no one has yet been made to cough up that amount for a violation.

But a new administrative fee being considered by the Southern Nevada Health District could increase that by sevenfold, meaning smokers and businesses could face the types of financial punishments that are incurred by first-time convicted drunken drivers.

A staff-proposed administrative fee of $600 is being considered as an add-on to the state-mandated $100 civil penalty. Workshops will be held this week in Las Vegas, Mesquite and Laughlin to determine if the fee should be part of the Health District’s enforcement of the Nevada Clean Indoor Air Act, also known as Question 5.

“It is not fair to put this much on the small-business owner when no one really knows how to enforce this law. No one has any real solid control over this issue,” Corinna Boldman, an employee of Mulligan’s Landing Bar and Grill on Rancho Drive, said Friday.

She said she understood the Health District’s point that it needs to recover costs to enforce the law and to force business owners and customers to comply. Still, she called a $600 fee “a little excessive.”

“We’re not police, and we shouldn’t have to get into fights with our customers to get them to put out their cigarettes or go outside,” she said.

Based on what happens during the workshops, the administrative fee proposal will be submitted to the Health District board for approval during its upcoming March meeting.

The board could approve it, turn it down or make revisions to the proposal such as lowering the recommendation, said Stephen Minagil, the agency’s attorney. If a fee is approved by the Health District, a final approval will have to be given by the state’s Health Division board.

“That ($600) is the number being proposed by the Health District staff at this time,” Minagil said. “The staff of the Health District is charged with the responsibility of enforcement, without any funding from any source.”

The fee, he said, is “similar to fees and charges in other areas like solid waste enforcement and food establishment permits. If there are actions of the Health District expended, the board of health tries to correlate fees and charge to recover those kinds of costs. Remember, this is an unfunded law.”

Minagil said the fee is the result of a large number of complaints and reports about business owners and managers who would rather absorb the $100 civil penalty than lose their smoking customers who pump money into their gaming machines.

More than 600 complaints from the public regarding smoking violations have been received by the Health District. No fines have been assessed.

The $100 fine imposed under the law goes to a state education fund, not the Health District. So, Minagil noted, the administrative fee is a way for the district to legally recover costs associated with enforcement; the amount is based upon a review of what it would cost for the agency to comply with the obligations under the Nevada Clean Indoor Air Act.

“They’ve (staff) analyzed what it costs, approximately, to do a citation and to give due process of the law. They (the district) can’t just send something and say you owe this and they (violators) say ‘no thank you,”’ Minagil said. “Due process requires some notice and a hearing process. The second level is the administrative staff because they have to send out written notice of a hearing date. Then we have attorneys’ fees because they are either going to be present as the case is being heard or providing the violator with information about the law.”

The Health District staff also is proposing to enlist the help of a hearing officer to review disputes under the Nevada Clean Indoor Air Act.

The hearing officer would be like a mediator. As it stands now, should a violator contest the citation, the Health District would have to take that individual to District Court to get the $100 fine, which officials say is not an effective use of its resources.

“If we really want to get technical, there’s also the overhead costs of using the Clemens Room where the (dispute) hearings will be held,” Minagil said.

Approved 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. Exempt are casino floors, brothels and smoke parlors.

Tavern owners filed suit in Southern Nevada to get the law overturned. A District Court judge upheld it but took out the criminal component. The Health District was left with the responsibility of enforcement.

The Nevada Tavern Association, which filed the lawsuit, could not be reached for comment on the proposed fee Friday.

Under the law, owners of businesses can be cited for failing to post smoking signs and making ashtrays and other smoking paraphernalia available for customers; individual smokers can be cited if they are caught lighting up in an establishment where smoking is banned.

Vickie Anderson, a bartender at Mulligan’s, said there’s still confusion about the law. She said Mulligan’s closes its kitchen during the swing shift and reopens it during the day. There is no smoking allowed during the day.

On Friday, the restaurant area of the establishment, which is partially separated by a wall, was blocked off by a chain and floor sign, which noted the restaurant was closed.

The Department of Motor Vehicles’ Web site says that a first-time DUI offender can face a minimum of about $670 in criminal fines, fees and assessments. In Henderson, motorists caught driving 21 to 30 mph over the speed limit in a school zone face a $517 criminal fine.

But individual smokers interviewed at Mulligan’s were not so much angry over the potential penalties as they were the passage of Question 5 in the first place.

Bruce Crosley, 44, a construction worker, said it wasn’t fair that Mulligan’s kitchen had to be closed. But, he said, “I should have voted. None of us did. We should have stepped up to our civic duty. We didn’t even dream that it would pass.”

Another patron, Doug, who gave his first name only, walked up to Crosley and offered him a Girl Scout cookie, which Mulligan’s is providing to patrons to soak up the alcohol. “It’s not pot roast, I don’t want it,” Crosley said.

Although some taverns with food service have removed smoking paraphernalia and posted no-smoking signs, as is required, they are turning a blind-eye to smokers. Minagil told the Health District board that some smokers are putting ashes in coffee cups and on the floor.

“If you are a business owner and continue to not comply with the law, you have to be held accountable,” said Michael Hackett, a spokesman for backers of the Nevada Clean Indoor Air Act. “What’s going on is the Southern Nevada Health District is developing regulations, which are going to make the businesses accountable for their violations and violators. These types of regulations are being developed in other health districts throughout the state.”

Tracie Douglas, a spokeswoman for the Washoe County Health District, said the agency hasn’t experienced the type of noncompliance issues as has the Southern Nevada Health District.

She said about 90 percent of the businesses have been complying since Question 5 became law.

“We are just getting ready to start citing those that aren’t compliant. We’ve written letters and talked to some businesses several times, but for the most part we have just a handful that don’t want to play,” Douglas said.

In addition to adding the administrative fee and the hearing officer, the Health District staff also is proposing changing its food establishment regulations to include a 12th substantial health hazard: secondhand smoke.

Currently, there are 11 such hazards that establishments holding food licenses must adhere to in order to receive a good grade and stay open.

“So you mean our restaurant grade could drop from an A to a C because we expose people to smoke?” Boldman asked at Mulligan’s. “Wow!”

The Health District conducts random inspections of local restaurants and other establishments that hold food licenses. These establishments receive grades based on how well they do on those inspections.

“Just like the food establishment permit holder has a responsibility to make sure the other 11 substantial health hazard areas aren’t present in their facility, such as toxic food, they will have to make sure customers aren’t exposed to secondhand smoke,” Minagil said.

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Nuclear official’s stark farewell: Scrap Yucca
Member of regulatory panel says it ‘may be time to stop digging’

February 07, 2007
By Lisa Mascaro, Las Vegas Sun

WASHINGTON – The longest serving member of the Nuclear Regulatory Commission is stepping down, and, on his way out, saying something about Yucca Mountain that few in government dare to suggest out loud: “It may be time to stop digging.”

The reason Commissioner Edward McGaffigan Jr. gives for his conclusion, however, is not that the mountain is a bad site or the science of storing radioactive fuel is unsound, two of the major arguments critics have mounted.

Rather, Yucca Mountain is unlikely to ever open as a storage site for nuclear waste largely because the politics were flawed at the start, he said. Nevada never wanted it.

The state has fought the project for two decades, finding allies in science and environmental quarters, and elsewhere. Together, those critics have created a machine dedicated to one purpose. The only option McGaffigan sees at this point – $9 billion later – is to start over.

“There is no chance Yucca can go forward under current statute,” McGaffigan said. “I would go back to the beginning. When you go out of process it’s a problem, it’s a huge political problem. If a process is done fairly, I think you have a shot.”

McGaffigan feels free to speak his mind because he is dying.

The cancer he knocked back six years ago returned last summer with new aggression. What started as a bout of melanoma now checkers his brain.

McGaffigan notified President Bush in January that he could not finish his term on the commission, where he has served since 1996.

In an interview with the Sun last week, as McGaffigan sat with his back to a window on suburban Rockville, Md., it was clear that cancer drugs have taken a toll. They have robbed him of the flop of preppy gray hair seen in pictures on the hallway walls and the ID card dangling from his neck.

His departure from the Nuclear Regulatory Commission will end a distinguished career for the 58-year-old Harvard-trained physicist, one that included two years in Moscow as an American diplomat and a second master’s degree, in public policy. The experiences have shaped a mind that answers questions nimbly, in a soft voice that moves nonstop, the words tumbling from history to science to public policy.

After returning from Moscow, he worked in President Ronald Reagan’s science office in the 1980s. He was there when Congress passed the 1982 Nuclear Waste Policy Act that set the course for creating a repository, officially kicking off the hunt for a site.

McGaffigan said he barely remembers passage of the 1987 legislation dubbed by the state as the “Screw Nevada Bill.” In it, Congress designated Yucca Mountain the only site for the nuclear waste repository. After joining the Nuclear Regulatory Commission a decade later, McGaffigan began studying Yucca Mountain. He says he didn’t like what he found.

He doubted that downwinders in Nevada could be protected for 1 million years from cancer-causing radiation, as required by the law. He thought it was an impossible standard.

His doubts grew as scientists and bureaucrats were found not documenting their work with the rigor required by the regulatory community, forcing do-overs, including the $25 million now being spent on water infiltration data that may have been falsified. “Rework is not a good sign of a healthy project,” he said.

Through those early years, he saw Yucca directors come and go. He got the feeling their strategy at the Energy Department was “to promise dates – and good luck to our successors in making those dates work.”

The original 1998 opening date had long since been abandoned, burdening the government with a projected $7 billion liability from utility company lawsuits. The department next missed its 2000 deadline for applying for a license.

By 2002 McGaffigan’s thinking shifted further. President Bush gave final approval on years of study, moving Yucca Mountain forward as the nation’s repository. The state, under the original law, was offered an extraordinary veto power, which then-Gov. Kenny Guinn exercised that year.

When Congress used its ability to override the veto, “I knew it had problems,” McGaffigan said.

That year was a turning point for him, he said. Here was the chance for the Energy Department to face up to the opposition by admitting shortcomings and push for changes needed in land and water rights, funding, transportation and storage capacity.

But no one spoke up. Energy Department officials seemed to operate on the vague idea that “someday Nevada’s going to sue for peace, and we’ll make this all part of the package.”

McGaffigan calls that naive.

“They weren’t telling Congress – their friends, the people who wanted to help them, ‘Here’s what’s needed to open the repository.’ There was a time when they might have gotten it done.”

McGaffigan started speaking out a bit during these years. He was quoted in the Sun in 2003 as saying the 2010 opening date was just about impossible. He wonders now whether he should have said more.

As a commissioner, he was bound to stay neutral or forgo participation in Yucca Mountain issues. But by 2004, he said he knew the law as written could never work – and he suspected the Energy Department officials realized as much 15 years earlier.

“They managed to lock themselves into solutions that didn’t work. I grew more frustrated over time that we weren’t honestly dealing with the issue.”

Last year, the department brought many of the problems to Congress with its “Fix Yucca Bill” that drew little support on Capitol Hill. With Democrats, led by Senate Majority Leader Harry Reid of Nevada, now in charge, the bill is given virtually no chance of passing.

As McGaffigan prepared last fall for his latest rounds of chemotherapy, he decided he had to speak out. He told Reid as well as the boss he had before he took the commission job, Sen. Jeff Bingaman, D-N.M., of his plans.

McGaffigan said he believes that Congress should set up a bipartisan commission to study new sites and hand a report to the new president in 2009.

“This is not that hard a problem,” he said. “We need to put this on a path where states are treated from the get-go with great respect and deference – and I don’t believe that will result in 50 states saying no.

“If you chose a course that is hostile to the state ? if you try to jam something down a state’s throat, it won’t work.”

After McGaffigan began speaking out, the Energy Department attacked him initially, then softened its criticism in deference to the commissioner’s health.

Deputy Energy Secretary Clay Sell told reporters this week the department still has “some level of confidence” it can meet the new deadline to apply for a license by 2008. The opening, now scheduled for 2017, could well be put off until 2020, he said.

But Sell said there’s “no question in my mind” the Nevada site can work. At the Nuclear Regulatory Commission office, McGaffigan’s cadence quickens and his eyes light up as he strives to make a point: He supports nuclear power, always has. He sees it as critical to solving global warming and meeting the nation’s rising energy needs.

It’s just that he no longer supports Yucca Mountain. “I knew I had a very limited time left, and this was one of the first things that came into my mind,” he said.

“I didn’t want my legacy just to be that, ‘He and his colleagues did a good job managing NRC for a decade.’ I wanted this issue to be dealt with.”

Lisa Mascaro can be reached at (202) 662-7436 or at lisa.mascaro@lasvegassun.com.

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Judge Lets Nevada Smoking Ban Stand

Feb 1, 2007?

A Nevada judge let stand a voter-approved smoking ban on Tuesday, ruling that parts of the measure providing for a civil fine of up to $100 were constitutional while ruling out stiffer penalties including jail time.

Clark County District Court Judge Douglas Herndon acknowledged that his ruling was similar to a preliminary injunction he issued last month.

Both found that some elements of Question 5 were flawed, but others passed constitutional muster.

“My opinion really hasn’t changed,” the judge said. “The central intent of the measure, in my mind, is banning smoking.”

But the judge said the wording of parts of Question 5 making lighting up a criminal offense punishable by up to six months in jail and a $1,000 fine were too flawed to let stand.

The measure, dubbed the Clean Indoor Air Act, was approved 54 percent to 46 percent on the Nov. 7 ballot. It has been in effect in most parts of the state since Dec. 8.

Enforcement was postponed in more than 220 Clark County taverns, supermarkets and convenience stores after they filed suit challenging its constitutionality.

The measure prohibits smoking in bars and restaurants, in slot machine sections of grocery and convenience stores, and at video arcades, shopping malls, schools and day-care centers.

The law still allows smoking on gambling floors of casinos.

Lawyer Stephen Minagil, representing the Southern Nevada Health District, said outside court Tuesday that Las Vegas-area health inspectors can issue citations to smokers who light up or bar owners who fail to remove ash trays and post “no smoking” signs. He called it unlikely that bartenders or managers would be fined.

Minagil said the health district board will have to determine whether those who receive summonses should appear before a judge or before a health department administrative hearing officer.

“We’re going to build a better way to enforce it, to give people an efficient way to challenge (a summons),” he said.

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How Ironic!

25th January 2007.
Bob Feal-Martinez

Darren Denenberg, a professor at University of Nevada, Las Vegas and a regular customer of a recently closed Nevada deli-restaurant, said the restaurant’s fate has affected his whole thought process on the issue of smoking bans.

Denenberg supported Question 5 when anti-smoking advocates had the law placed on the ballot in November, but he now laments what he calls the ‘unintended consequences’ of the referendum.

The owners of Doc Holliday’s, the bar that the deli shared space with, decided that preserving indoor smoking would be more lucrative than continuing to have food service on the premises.

Though the deli was within the bar, it was separated from Doc Holliday’s by a wall with open entries on either side, and it shared ventilation and restrooms with the tavern. Unlike its co-tenant, the New York Deli was a nonsmoking eatery before Question 5 was passed.

‘It never really crossed my mind that a nonsmoking establishment would be put out of business because of a nonsmoking law,’ Denenberg said. ‘I still have trouble understanding it. Quite Bizarre isn’t it?……

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Health District clearing the air about smoking ban

Jan 18, 2007

The order has been signed by a judge. The newly passed smoking ban has passed and now it’s time for tavern owners to obey the law. There’s been some confusion about what the law says but by next week that should be cleared up.

The Health District is just about finished with a mailer that will be sent out by next week to all those business affected by the new anti-smoking law. Some businesses are already in compliance posting no-smoking signs and removing ashtrays. But many more are choosing the ignore the new law.

The Health District is also in the process of creating a phone hotline and web address where people can report violators. “We’ll be able to go out to that establishment, send them a warning letter, really work with them so they understand what they need to be doing,” explains Southern Nevada Health District’s Jennifer Sizemore. “But we will have that complaint process in place and we’ll be using that to do a lot of our enforcement activities.”

As of last week when a judge overruled the smoking ban challenge he also made it so that breaking the law is no longer a criminal offense. And while the Health District can show up at a business unannounced, it’s unlikely now they’ll be showing up with Metro officers ready to make arrests.

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Judge Allows Smoking Ban

Dec. 22, 2006

A Nevada judge said Thursday that he will let a voter-approved smoking ban take effect in Clark County, but without criminal penalties.

Clark County District Court Judge Douglas Herndon issued a preliminary injunction against part of measure that would make it a misdemeanor offense to smoke in bars and restaurants, in slot machine sections of grocery and convenience stores, and at video arcades, shopping malls, schools and day-care centers.
The law still allows smoking on the gambling floors of casinos on and off the Las Vegas Strip.

Herndon said civil fines for smoking had been reviewed by courts in other states, and said he would not issue an injunction preventing individual smokers in Nevada from being ticketed by health officials. The fine for a conviction on a civil summons would be $100 under the initiative.

A lawyer for the Southern Nevada Health District said it was unlikely that anyone in the Las Vegas area would be issued a summons immediately.

“We’re going to enforce by education first,” health district lawyer Stephen Minagil said.

A trio of lawyers who challenged the initiative on behalf of more than 220 taverns, supermarkets and convenience stores said they wanted to review the judge’s complex decision before commenting.

The ruling was expected to have a statewide effect well beyond the Las Vegas-area businesses that challenged the Clean Indoor Air Act. Law enforcement and health officials in other parts of the state delayed enforcement after Herndon imposed a temporary restraining order Dec. 7. That move prevented the act from taking effect Dec. 8 in the state’s most populous county.

“We have not issued tickets,” said Tracie Douglas, spokeswoman for the Washoe County District Health Department in Reno. “But we’re doing a great deal of education and outreach.”

“The whole state’s in this together on a new level,” she said.

Michael Hackett, an official with Nevadans for Tobacco-Free Kids and leader of the campaign for Question 5, declared proponents satisfied that Herndon let the law go into effect in public places in Clark County with civil penalties for violations.

“We appreciate the careful deliberation by Judge Herndon,” Hackett said, “especially the effort taken to review smoke-free laws in other states.”

The judge acknowledged that his ruling Thursday left key questions unanswered about the constitutionality of the Nevada measure, which was approved 54 percent to 46 percent on the Nov. 7 ballot.

He said he received many letters, e-mails and telephone messages, and characterized them as telling him, “this was the will of the people and the courts need to get out of the way.”

But the judge said the Nevada initiative was stricter than smoking laws in cities such as New York and Tucson, Ariz., and states including New Jersey and Colorado.

It would be unfair for someone to be jailed on a smoking charge in Nevada while the constitutionality of the initiative was in question, he said.

He pointed to affidavits from Clark County Sheriff Bill Young and Henderson Police Chief Richard Perkins, which said the initiative left unanswered questions about how deputies and officers should enforce it.

“There would be irreparable harm if an unconstitutional criminal statute goes into effect,” the judge said.

Herndon scheduled a Jan. 23 hearing to consider a request from defendants, including state Attorney General George Chanos, to decide whether the ban passes constitutional muster – a step that lawyers on both sides say would clear the way for appeals to the Nevada Supreme Court.

“This particular initiative has problems,” Herndon said, “how things are defined, what isn’t defined, how it’s supposed to be applied.”

“The public is probably going to get tired of this case as it is litigated.”

Opponents including southern Nevada tavern owners say the ban unfairly discriminates against certain businesses and does not make clear whether smokers or business owners should be punished for offenses. They suggested the state Legislature could write a law that would be constitutional and satisfy competing interests.

Health groups, such as the American Cancer Society, the American Lung Association and the American Heart Association, which promoted the smoking ban, argue secondhand smoke is dangerous.

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Nevada judge allows part of smoking ban

Dec. 21, 2006

LAS VEGAS — A Nevada judge said Thursday that he will allow a voter-approved smoking ban to take effect in Clark County but without criminal penalties.

Clark County District Court Judge Douglas Herndon issued a preliminary injunction against part of measure that would make smoking illegal in bars and restaurants, in slot machine sections of grocery and convenience stores, and at video arcades, shopping malls, schools and day-care centers.

The judge made a distinction between criminal enforcement by police and civil enforcement by health inspectors, and declined to issue an injunction preventing individual smokers from being ticketed.

A lawyer for the Southern Nevada Health District said actual enforcement would follow a review of the judge’s complex decision.

“We’re going to enforce by education first,” district lawyer Stephen Minagil said.

The ruling is expected to have a statewide effect well beyond the Las Vegas-area businesses that challenged the Clean Indoor Air Act.

Law enforcement and health officials in other parts of the state have said they wanted to wait for Herndon’s ruling after he imposed a temporary restraining order Dec. 7. That move prevented the act from taking effect Dec. 8 in the state’s most populous county.

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Nevada Smoking Ban Supported by Major Casinos

12/19/06
By Suzanne Moore
The Nevada Resort Association has filed a district court brief in the name of most major casinos in the state, against efforts to put off southern Nevada police and prosecutors from enforcing a statewide smoking ban, which was approved by the voters.

The association’s attorneys said the intervention is required due to the legal action taken by business owners in southern Nevada who are opposing the smoking ban. The hearing regarding the dispute over the stipulations of the Nevada Clean Indoor Air Act will be on Tuesday before Clark County District Court Judge Douglas Herndon.

The Nevada Resort Association requested on Friday for a ruling against businesses that oppose the ban and also to clarify that the ban does not apply to hotel or motel rooms. In the legal brief that the association filed on Friday they also wished to refute the claim that the ban makes an unfairly distinguishes between major gambling venues and smaller gambling halls with a limited license, usually for slot machines.

Representatives of the small businesses filed suit for an injunction and a restraining order that will stall police from enforcing the ban, under the claim that it is unclear, unconstitutional and discriminates against some establishments over the others.

The number of plaintiffs against the ban has grown to 220 businesses following the support of the Nevada Association of Tavern Owners.

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Opponents File Court Briefs Against Nevada Anti-Smoking Law
Dec 12, 2006
Nevada’s anti-smoking law is unconstitutionally vague because it doesn’t specify who should be held accountable if someone lights up. That’s what opponents say in court filings submitted Monday against the Nevada Clean Indoor Air Act.

Court blocks Vegas smoking ban for slots in non-casino businesses
12/10/2006
LAS VEGAS – A judge has granted a 15-day restraining order to block a new ban on smoking at some bars and around the slot machines at supermarkets, gas stations and convenience stores in southern Nevada.
Read

Smoke on this!
By Steve Sebelius
December 11, 2006
The smoke has hardly cleared from Judge Douglas Herndon’s ruling last week that suspended enforcement of the anti-smoking Nevada Clean Indoor Air Act, but there are definitely developments.

NV: Churchill County not enforcing ban.

NV: Nye County not enforcing ban.

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Vegas smoking ban may crap out
December 08, 2006
LAS VEGAS — A judge yesterday granted a 15-day restraining order to block a new ban on smoking at some bars and around the slot machines at supermarkets, gas stations and convenience stores.
Clark County District Court Judge Douglas Herndon said yesterday that there was a reasonable likelihood that a group of business owners could persuade him that the voter-approved ban, to take effect today, was unconstitutional.
“This is not an issue of my telling the voters their vote is wrong. It’s an issue of the constitutionality of the law they voted on,” Herndon said.
A hearing on the law was set for Dec. 19.
Nevada voters approved the ballot measure last month, coming as a surprise to many in the home of all-night casino gambling, on-the-house booze and legalized prostitution. The smoke ban would not effect gambling areas of casinos.
The business group filed suit Tuesday asking for an injunction and a restraining order to keep police from enforcing the law, claiming it was unconstitutional, too vague to comply with, and unfairly discriminated against some businesses.

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Court Delays Nevada Smoking Ban

Dec 7, 2006

LAS VEGAS (AP) — A judge on Thursday granted a 15-day restraining order to block a new ban on smoking at some bars and around the slot machines at supermarkets, gas stations and convenience stores in southern Nevada.

Clark County District Court Judge Douglas Herndon said Thursday that there was a reasonable likelihood that a group of business owners could persuade him that the voter-approved ban, to take effect on Friday, was unconstitutional.

“This is not an issue of my telling the voters their vote is wrong. It’s an issue of the constitutionality of the law they voted on,” Herndon said.

A hearing on the law was set for Dec. 19.

Nevada voters approved the ballot measure last month, coming as a surprise to many in the home of all-night casino gambling, on-the-house booze and legalized prostitution. The smoking ban would not affect gambling areas of casinos.

The business group filed suit Tuesday asking for an injunction and a restraining order to keep police in the southern part of the state from enforcing the law, claiming it was unconstitutional, too vague to comply with, and unfairly discriminated against some businesses.

The law can technically be enforced in northern Nevada, though it was unclear Thursday whether it would go forward.

In the northeastern part of the state, Elko County Sheriff Neil Harris said he wanted more information before he enforces the new law.

If a smoker lights up in a restaurant, “we’re not going to do anything with it, we need more direction from the attorney general or the district attorney before we can enforce it,” Harris said.

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Court grants 15-day reprieve on Nevada smoking ban

December 07, 2006
KATHLEEN HENNESSEY

A Las Vegas judge has granted a 15-day restraining order to prevent southern Nevada police and prosecutors from enforcing a voter-approved statewide smoking ban that was to take effect Friday.

Clark County District Court Judge Douglas Herndon said Thursday that there was a sufficient likelihood that a group of southern Nevada business owners could persuade him the ban was unconstitutional, and ordered both sides to present their cases at a Dec. 19 hearing.

Herndon was cautious to note that he was not taking a position on the ban or undermining the vote of the people.

“In terms of the view of activist judges, this is not an issue of my telling the voters their vote is wrong. It’s an issue of the constitutionality of the law they voted on,” Herndon said.

The groups’ lawyer, Kirk Lenhard, had asked for a “breathing period” in which both parties could prepare briefs on the constitutionality of the measure.

The Clean Indoor Air Act, approved as Question 5 on the Nov. 7 ballot, 54 percent to 46 percent, would ban smoking in bars that serve meals; in slot machine sections of grocery and convenience stores; and at video arcades, shopping malls, schools and day-care centers.

It would allow smoking in the gambling areas of casinos.

The business group filed suit Tuesday asking for an injunction and a restraining order to keep law enforcement officials from enforcing the law, claiming it was unconstitutional, too vague to comply with, and unfairly discriminated against some businesses.

Besides the attorney general’s office, the group named only Las Vegas-area law enforcement agencies as defendants in the suit, so the restraining order applies only to those agencies, Herndon said. His ruling does not affect enforcement of the smoking ban in other parts of the state, and the attorney general’s office said its role was to defend the state law, not enforce its provisions.

Lenhard pointed to guidelines recently drafted by the Southern Nevada Public Health District as evidence the district was “filling in the blanks” left by holes in the measure.

“What has happened here is the health department is now legislating,” he said.

Southern Nevada Public Health District lawyer Stephen Minagil said because the measure “is open to interpretation … does not make the statute constitutionally vague.”

Business owners, which include bars and operators of convenience and grocery store slot machines, argued that there would be no harm in withholding enforcement of the law until a court could rule on their claims.

“We’ve been smoking in bars for 140 or 145 years. How is two weeks additional time smoking in bars going to be the end of the universe?” Lenhard argued. “It is not.”

Minagil, along with the Nevada attorney general’s office, argued the business owners had not proved they would be “irreparably harmed” if the measure were to be enacted immediately.

“What harm is it to remove the ash tray, post the sign and ask people to simply go outside?” Minagil said.

He called the business owners’ claims of possible employee layoffs and lost business “speculative.”

But Herndon said the law requires a lower threshold for obtaining a restraining order in a constitutional question.

Business owners were joined in the case Thursday by the Nevada Association of Tavern Owners, bringing the number of plaintiffs seeking to challenge the ban to more than 220 establishments.

The association’s lawyer Mark, Ferrario, said his group will add an argument to the case. Ferrario called the smoking ban a “taking of airspace” in which the state was inappropriately usurping and controlling space belonging to the business.

“We believe that if you’re going to take that there needs to be compensation,” he said.

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Nevada Businesses Sue to Halt the Ban

December 06, 2006
By Michael Moretti

A consortium of Nevada businesses comprised mostly of Las Vegas-based taverns and casinos filed a lawsuit yesterday in the Clark County District Court, calling the state’s smoking ban unconstitutional.

The group, which includes such franchises as Terrible’s Hotel and Casino and Village Pub, is seeking temporary relief from the Nevada Clean Indoor Air Act, scheduled to go into effect Friday, on the grounds that the law violates the right to due process and equal protection under the Fifth and Fourteenth Amendments to the U. S. Constitution. The suit argues that by banning indoor smoking in taverns and grocery stores with restricted gaming licenses and in taverns that serve food, the law is not rationally relating to its original purpose, which is to prevent children and families from being exposed to secondhand smoke.

The Nevada Tavern Owners Association and the Nevada Restaurant Association, which represent businesses that say they will be negatively affected by the ban, as well as other industries with gaming and hospitality interests, backed a more lenient initiative on the November ballot that lost by 30,000 votes.

Controversial smoking ban contested

December 06, 2006
DAVE TULEY
Visiting Las Vegas is great, and from my point of view, living here is even better.

There are major events happening all the time and there is always something to do. It’s truly the city that never sleeps as the casinos are open 24/7 and if you’re looking for a party, you can find one. There is also a live-and-let-live philosophy that is very appealing. There is also the perception – perpetuated by the “What happens here, stays here” slogan – that anything goes in Vegas.

But while most of this is true, it’s not as extreme as many outsiders think. For example, a lot of people think prostitution is legal in Las Vegas, and that’s just not true. It is legal in Nevada counties with fewer than 400,000 residents, but that rules out Clark County (where Vegas is located) and Washoe County (which includes Reno).

As for other vices, it has pretty much been legal to drink and smoke anywhere and at any time you want – at all casinos and a lot of bars, there is no “last call,” and there is no “open-container law” in the resort areas – and the no-smoking areas have traditionally been few and far between, but times they are a-changing.

The drinking appears safe for now, but a new non-smoking law is set to go into effect on Friday. In the November elections, voters were given two choices on the ballot to ban smoking in public. One, labeled Question 4, called for no smoking in restaurants but allowed an exemption for casinos and bars that served food, while Question 5 was more restrictive and also banned smoking from grocery and convenience stores as well as bars that served food.

Both passed, but it was mandated that the one with the most votes would be the one to go into law, and that was Question 5, which was renamed the Nevada Clean Indoor Air Act and was slated to take effect on Dec. 8.

The backlash came after the elections when it was determined that a lot of bar and grills would either have to ban smoking or stop serving food. It was also seen as unfair that these businesses would be at a competitive disadvantage vs. similar establishments that are part of casinos or have more slot machines (Big Gaming gets all the breaks here, if you didn’t know).

Part of the problem is that the ballot questions were poorly worded and a lot of people couldn’t tell the difference between the two. Another issue is that the way it was written, most people, including legal experts, say the law is unclear as to how it would be enforced.

Many people have spoken up after the fact that there should have been a third alternative that allowed smoking at over-21 businesses such as bar and grills while banning smoking at supposedly family-friendly places like the grocery and convenience stores. My wife, for instance, said she voted for Question 5 by default because she doesn’t want to expose the kids to a smoky environment when simply going grocery shopping but felt it was unfair that she was also voting against bars where she wouldn’t be taking the children.

There is usually opposition to change, and this time is no different. On Tuesday, a group of 20 local businesses filed a lawsuit with the District Court to get a temporary restraining order or an injunction to stop the law from being implemented. The petition calls the law “impermissibly vague” and a violation of the plaintiffs’ due process.

Judge Douglas Herndon was expected to make a ruling by Friday’s implementation day.

So, if you’re in town this weekend for the rodeo or other activities and wander off the Strip to eat, you might have to check your cigarettes at the door along with your coat.

Personally, I don’t smoke, but the mere fact that this is possibly becoming a law is a step back for the liberal lifestyle that most of us have come to expect in Las Vegas. We’ve already lost the opportunity to get a marriage license at any time of the day as the Marriage License Bureau is no longer open 24/7, even on weekends. Again, that’s not a rule that affects me personally, but any limits in freedom should be discouraged. A slogan “What happens here is only okay if it’s not against our increasingly puritanical laws” isn’t as appealing.

Cancer Society Response to Smoking Ban Lawsuit
Dec 5, 2006
American Cancer Society released their response to the smoking ban lawsuit.
Government Relations Director for Nevada Buffy Martin Tarbox said, “While, we are not surprised by this desperate act to attempt to skirt the new law, we hoped the opponents of the Nevada Clean Indoor Air law would abide by the will of the people who voted to enact smoke free laws in Nevada.
“However, we are confident this new lawsuit will lose in Clark County District Court, just as our opponents previous lawsuits have failed in two other Nevada courts.
“This new lawsuit is completely without merit.
Nevadans are tired of second hand smoke poisoning our air, and spoke loud and clear by passing the Nevada Clean Indoor Air Act with a majority vote. It’s truly disappointing that some business owners think they are above the law.”

Business owners demand injunction against Nevada smoking ban

December 05, 2006

LAS VEGAS (AP) – A group of southern Nevada business owners sought an eleventh-hour injunction Tuesday against a state smoking ban that voters approved in November, arguing the law was unconstitutional and would harm their businesses.

The group, which includes owners of such chains as Village Pub and Terrible’s Hotel and Casino, asked for a temporary restraining order to keep Attorney General George Chanos and county prosecutors from enforcing the restrictions, which are scheduled to go into effect Friday.

“The interest of the general public is best served if defendants are enjoined from enforcing a criminal statute whose constitutionality is highly questionable,” the suit said.

The suit was filed Tuesday morning in Clark County District Court. No hearing was immediately scheduled.

Nevadans supported Question 5, or the Clean Indoor Air Act, by a margin of 54 percent to 46 percent in the Nov. 7 election.

The legislation already has passed two court challenges, including at the state Supreme Court in early September.

Its backers, which include cancer, heart and lung associations, said they hoped the new challenge would fail.

“It’s just disappointing to us, the nonprofit organizations that passed Question 5, that certain business owners are doing everything they can to skirt the law, the will of the people,” said Buffy Martin Tarbox, government relations director for the American Cancer Society in Nevada.

“Question 5 went through two separate Nevada courts this year, including the Nevada Supreme Court, and both of those courts have upheld this law,” she said. “So we’re fairly confident that the Clark County District Court will also find it legally sound.”

Chanos said in a statement he “intends to do his duty to vigorously defend” the act, but said the courts would properly decide the issues raised in the suit.

The new law bans smoking in bars that serve meals; in slot machine sections of grocery and convenience stores; and at video arcades, shopping malls, schools and day-care centers. It allows smoking in the gambling areas of casinos.

The group said the law unfairly discriminated against some businesses and was too vague to comply with, putting bar owners at risk of a $1,000 fine and six months of jail time.

The owner of La Havana Cigar Lounge claimed in the suit its operation relied on all three pillars of service to run its business: smoking, eating and drinking.

It would lose its liquor license if it stopped serving food, and relied on smoking on its premises for most of its tobacco sales.

The new law “failed to account for specialty business models such as Havana’s,” the suit said. “This plaintiff will be in constant danger of violating the (act) because it cannot discern how to comply with its provisions.”

The suit also challenged the law’s definition of a casino and claimed it does not make clear who would be penalized for illegal smoking, smokers or the owners of the business, or both.