So long, cigar bars and hotel smoking rooms.
A Lincoln judge has ruled that certain exceptions to the statewide smoking ban — specifically those that allow smoking in cigar bars, tobacco stores and some hotel rooms — are unconstitutional special treatment for those businesses.
The finding likely will be appealed as early as Thursday.
“I’m just confident that will be the case,” said Omaha Sen. Scott Lautenbaugh, who introduced the 2009 bill that exempted cigar bars from the ban.
Exceptions for tobacco shops and hotel rooms were included in the statewide smoking ban that went into effect June 1, 2009, as was an exception for research facilities.
In this week’s order, in response to a lawsuit by an Omaha billiards hall, Lancaster County District Judge Jodi Nelson said she agrees with the exception for research facilities but that cigar bars, tobacco shops and hotels aren’t different enough from other indoor worksites so as to deserve exemption.
“While this may be a terrific marketing tool, there is nothing … to explain why employees of these facilities or members of the public who enter them should be extended less protection from the harms of smoking/secondhand smoke,” the order says, specifically addressing tobacco stores.
“These places were designed to allow smoking, and that makes them in and of themselves, I think, reasonable to be exempt from the smoking ban,” he said.
At most, there are only a few cigar bars in Lincoln, said Lincoln-Lancaster County Health Director Judy Halstead. She wasn’t sure how many hotels and motels allow smoking but said many have gone entirely smoke-free since the city started enforcing its own ban at the beginning of 2005.
Halstead said she was happy with the news that such public places soon might be forced to go smoke-free.
“We’re pleased that the judge has recognized that all employees should have a right to a clean indoor air environment,” she said. “We also understand that this decision may be appealed.”
Nelson’s ruling was in response to a motion for summary judgment filed by the attorney for Big John’s Billards, an Omaha pool hall. Big John’s lawsuit, filed before the statewide smoking ban went into effect, names the state Department of Health and Human Services, the Liquor Control Commission and the Douglas County Health Department as defendants.
Attorney General Jon Bruning, whose office represents the state in the case, could not be reached for comment Wednesday.
In 2009, Bruning issued an opinion that the cigar bar bill didn’t grant special or exclusive privileges. He said cigar bars are substantially different from other bars and restaurants because they would be forced out of existence without the exemption.
Sen. Bill Avery of Lincoln argued that the opinion ignored the discussion regarding public health and focused on business and the economic effects of the law.
At the time, Avery said he agreed with former Nebraska Supreme Court Judge Norm Krivosha’s prediction that the exception would be found unconstitutional.
“I thought all along that the exception for cigar bars was not proper,” Avery said Wednesday.
Two patrons and a bartender at Jake’s Cigars and Spirits in downtown Lincoln all agreed there’s no reason to keep customers there from lighting up. They said that if people have health concerns, they can work or drink somewhere else.
Mike Vinci, a University of Nebraska-Lincoln student who was smoking a cigar at the bar, said he often does homework and sometimes eats there. Cigar smoking isn’t his only reason for coming, but, he said, it’s important to the bar’s identity.
“It’s just a nice addition in all reality. … It’s Jake’s; it’s known as what it is,” he said.
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