Las Vegas Sun

September 20, 2017

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Haze hangs over state’s smoking ban

Bill, lawsuit complicate enforcement plan — just as the air began to clear


Leila Navidi / FILE

Robyn and Larry Gable smoke as they play video poker at Mulligan’s Border Bar & Grill, where a glass wall separates the nonsmoking restaurant from the bar. The Southern Nevada Health District has devised a plan to crack down on taverns that don’t comply with a partial state smoking ban, but a Senate bill would change the rules.

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After months of collaboration with local justice courts, the Southern Nevada Health District has finally devised a plan to issue civil citations to violators of the smoking ban in taverns and restaurants.

But just as all that work, prompted by a court ruling two years ago that prohibited authorities from pursuing criminal violations, finally came together, a bill popped up in the Legislature that would take enforcement of the ban away from local authorities and put it in the hands of state health officials.

Senate Bill 372, which is to be heard Friday by the Senate Judiciary Committee, also would carve away part of the ban voters passed overwhelmingly in November 2006; the measure would allow smoking in taverns that qualify as “adult stand-alone” establishments.

Judiciary Committee Chairman Terry Care, D-Las Vegas, said the bill, which does not list a sponsor, is being pushed by tavern owners who have been fighting the smoking ban the past two years, complaining that it has decimated their businesses.

“It’s being perceived as a bill that undoes everything,” Care said. “But I have a policy of giving every bill a hearing.”

Maria Azzarelli, the tobacco control coordinator of the health district, said if the bill passes, it will be a giant step backward for health officials in their ongoing campaign to protect the public from the effects of smoking. Local authorities are best equipped to enforce the ban and now have the plan in place to do so, she said.

The battle grew even more complicated Wednesday, when a Reno supporter of the ban, formally known as the Nevada Clean Indoor Air Act, filed a suit asking the Nevada Supreme Court to prevent the Legislature from moving forward with SB372.

Kendall Stagg, a former candidate for Reno City Council, argued in his suit that SB372 would violate the Nevada Constitution. The constitution, the suit notes, says an initiative petition approved by the voters “shall not be amended, annulled, repealed, set aside or suspended by the Legislature within three years from the date it takes effect.”

The bill seeks to get around that prohibition by postponing the effective date of the change.

The Nevada Supreme Court had been poised to enter the legal fray over the ban anyway. The justices will hear arguments on its constitutionality Monday in Las Vegas. Many tavern owners want the law stricken entirely, and health officials want the high court to give them back the ability to file criminal charges against violators, an option a district judge removed from the ballot initiative two years ago. Criminal charges carry the potential of jail time in addition to fines.

Stephen Minagil, the health district’s former legal counsel who spearheaded the civil enforcement efforts, said developments at the Supreme Court and the Legislature have not stopped officials from moving forward with the civil citation plan.

“We’re just about ready to go with it,” he said. “We’ve been training selected staff members how to write citations and deal with situations involving the public that would require a citation.”

Authorities have created a one-page form that allows health inspectors making the rounds to issue citations for three separate offenses — one for patrons caught smoking in a bar and two for owners who do not post “no-smoking” signs or remove ashtrays and other smoking paraphernalia.

The citation tells the smoker or the tavern owner to pay a $100 fine to the health district for each offense by a specific date.

If the fine is not paid, officials said, the health district can file the citation as a small-claims complaint with the appropriate local justice court.

At Las Vegas Justice Court, officials plan to set up periodic court dates for smoking violators to appear before small-claims referees to answer the complaints.

The referees, lawyers who are appointed on a part-time basis to handle small-claims matters, have the authority to issue judgments for the $100 against the smokers.

Minagil said the process of defining the civil enforcement procedure took longer than expected because of “administrative challenges” the health district faced when dealing with the courts.

Some courts initially questioned whether they had jurisdiction over the cases, and when that issue was resolved, the courts had to find a way to fit the process into their busy calendars, he explained.

But if the proponents of the ban think the civil citation plan will result in the smoke clearing regarding the ban, they are mistaken, said Bob Peccole, an attorney who represented Bilbo’s Bar and Grill on West Charleston Avenue in its fight against the health district over the law.

“They can put something through Justice Court, but that’s going to wind up at the Supreme Court, too, because there’s no authority for it,” Peccole said.

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