Officials to strengthen penalties for smoking ban

Draft regulations show authorities plan to pull health permits of bars that ignore rules

smoking ban

The Rum Runner on East Tropicana Avenue has separated its restaurant and bar areas to allow smoking for gamblers. Even with those efforts, gambling revenues are down 35 percent to 40 percent from last year, owner Gino Hill said.

The Nevada Supreme Court’s decision to uphold the Nevada Clean Indoor Air Act has the Nevada State Division of Health preparing to strengthen penalties for the ban on smoking in bars.

Shortly after the Sept. 24 court ruling, health authorities began writing a “working draft” of proposed regulations for the Southern Nevada Health District. A copy of the draft rules obtained by the Business Press calls for penalties as severe as health permit revocation for taverns that fail to enforce the smoking ban.

Other proposed rules include a requirement for a “proprietor” of any “indoor place of employment,” where smoking is prohibited, to “request” that those lighting up there “stop smoking immediately.”

The draft of regulations is still a work in progress and not ready for public input, spokeswoman Martha Framsted said.

“It is still a draft,” she said. “It is not finalized and we are still getting input from the local health authorities, the Southern Nevada Health District, the Washoe County Health District and the Carson City Health and Human Services Division.”

Framsted didn’t have a time line for the completion or release of the proposed regulations.

The Nevada Supreme Court’s ruling did have one bright spot for opponents of the anti-smoking law: The court left the door open to challenges, which means lawsuits questioning whether the law is being enforced constitutionally can proceed.

Bilbo’s Bar & Grill in Las Vegas was the first tavern to challenge the ban’s application. The establishment is fighting a lawsuit filed against it by the local health district. Bilbo’s lawyer Robert Peccole expects the Bilbo’s case to go to trial in January.

Although Peccole hasn’t seen the latest working draft regulations, he expressed doubt that the state could impose penalties tougher than the $100 fine stated by the act’s drafters.

“(Health officials) can’t just adopt more penalties,” he said. “They are going to get more litigation and they are asking for more trouble.”

The draft regulations may sound familiar. A year and a half ago, similar rules were proposed and met with stiff resistance from local tavern owners and their advocates. Shortly after a contentious May 2008 public meeting between state and local officials and bar owners, the regulations were put on hold indefinitely. The state environmental specialist Daren Winkelman said then that the health division would likely wait for the Nevada Supreme Court’s ruling on the ban’s constitutionality before pursuing new rules.

The state high court’s decision to uphold the act as constitutional as a civil law was the latest disappointment for the Nevada Tavern Owners Association and slot-route operators. Earlier this year, the Nevada Legislature failed to pass a bill that would have created an exemption to the smoking ban for adult-oriented establishments.

Now, authorities seem poised to proceed. The Southern Nevada Health District has also received 4,354 complaints from the public over alleged violations of the smoking ban as of Sept. 29, health district spokeswoman Stephanie Bethel said.

“Due to these issues, the health district has been awaiting the outcome to move ahead with enforcement,” she said by e-mail. “We have not issued citations. However, we recently received a draft of statewide regulations for the (NCIAA). We are now reviewing them and will be working with our statewide partners.”

Gino Hill, former president of the Nevada Tavern Association, said he couldn’t comment on the draft regulations because he hadn’t seen them. But Hill, who operates five Rum Runner locations locally, didn’t avoid discussing the economic distress the anti-smoking law has caused taverns like his.

“Those waiting for this (decision) may call it quits,” he said. “Between this ruling and the fact more gaming taxes are due, we could see more go out of business by the first of the year.”

Fifty-four local bars closed last year, and Hill expects this year’s tally “to be a lot higher.” He said the court battle seems to be over.

“We won’t have more challenges,” Hill said.

Bradley Scott Schrager, attorney for the other plaintiffs — including Herbst Gaming, ETT and related entities, and Three Angry Wives Pubs — was more guarded about the future.

“I guess there is a possibility that we could file a motion for a rehearing or reconsideration with the Nevada Supreme Court,” he said.

Another remote option would be to file a petition to the U.S. Supreme Court, because the case involved constitutional questions of equal protection and vagueness.

A decision on any such filing must be made by mid-October, Schrager said.

Peccole, who is also a stockholder in Bilbo’s parent company, Bent Barrel Inc., said he is pushing forward.

“These cases will just keep piling up until the law changes,” he said.


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