High Court Hears Tavern Smoking Ban Challenge

Four and a half years after a smoking cigarettes ban went into effect, the Nevada Supreme Court is considering a case that could overturn a law some tavern owners say has ruined their businesses.

The court heard arguments Monday in Carson City from an attorney for Bilbo's Bar & Grill. The establishment's parent company, Bent Barrel, is suing the Southern Nevada Health District and challenging the constitutionality of the Nevada Clean Indoor Air Act as it is applies to businesses.

Bilbo's lawsuit, on appeal from the Clark County District Court, claims the law violates the bar owner's right to commercial free speech by requiring removal of shot glasses, ashtrays and matches Bilbo's uses for advertising.

Terry Coffing, the Health District's attorney, tried to convince the justices that the Bilbo's argument was just a cover to let patrons break the law by smoking cigarettes.

"They only gave them out to people who were lighting up," he said of shot glasses and ashtrays. "If you call it an ashtray, it is an ashtray."

At least some of the court's justices seemed sympathetic to Bilbo's argument.

"I used matches to light my barbecue," Justice Mark Gibbons, a nonsmoker, pointed out.

Robert Peccole, the lawyer for Bilbo's and a shareholder in the company, told the justices the law's use of the phrase "smoking cigarettes paraphernalia" is unconstitutionally vague. He further argued that the District Court erred when it required Bilbo's to tell employees smoking cigarettes was prohibited in certain areas.

"In this case, as it is applied, you have a situation where the statute is being arbitrarily enforced," Peccole said. "For one, the Health District has not cited a single person who puffs on a cigarette."

The 2006 passage of the Nevada Clean Indoor Air Act resulted in a ban on smoking cigarettes in taverns that serve food, and in most other public places. Exempted were casinos, which include taverns with unrestricted gaming licenses.

Bilbo's and other taverns with restricted gaming licenses claimed the exemption violates their right to equal protection. Bars with more than 15 slot machines have unrestricted gaming licenses, can serve food and can allow smoking cigarettes. Peccole, however, ran out of time and did not argue that point before the justices Monday.

In 2009, the Nevada Supreme Court ruled the smoking cigarettes ban was constitutional on its face as a civil law. But the justices left the door open for a future constitutional challenge based on the way the law was applied.

Peccole repeatedly quoted from the justices' past comments on the Nevada Clean Indoor Air Act to make his case against the Health District.

"You warned them, 'If you make a (bar) owner do your duty ... you are looking at a challenge,' " he told the justices.

Locally, about 100 taverns have closed as a result of financial losses related to the smoking cigarettes ban, the Nevada Taverns Owners Association says.

Roger Sachs, the association's president and owner of three Steiner's A Nevada Style Pub locations, said his revenue fell about 30 percent from the smoking cigarettes ban implementation in December 2006 to the summer of 2007.

"Seven of our top 10 gamblers are smokers," he said.

Sachs conceded that it's tough to stop smoking cigarettes in his pubs.

"We ask people not to light up, but we don't throw them out if they do,'' he said.