Health, business officials differ on loosening smoking ban

By Cy Ryan

Friday, April 3, 2009 | 2:30 p.m.

CARSON CITY – Tavern owners and casino executives say they have lost up to 25 percent of their business since voters in 2006 approved a tough anti-smoking initiative.

“Nevada is a 24-hour town and let the customer decide,” says Joe Wilcock, past president of the Nevada Tavern Association, in advocating for a change in the law.

But Michael Hackett, representing a number of health groups, said there’s no proof the smoking initiative contributed to the downturn in business. He suggested the decline in business is tied to the general economy.

The Senate Judiciary Committee heard three hours of testimony Friday on a bill that would relax the smoking initiative at adult-only taverns.

The battle over the smoking ban switches Monday to the Nevada Supreme Court, which will hear arguments in Las Vegas on whether the law is constitutional. A district judge ruled it was constitutional but that criminal penalties could not be imposed.

Dr. Lawrence Sands, chief health officer for the Southern Nevada Health District, told the committee it would be a “great disservice to undo the progress” that has been made since passage of the initiative petition.

Steve Arcana, CEO of Golden Gaming, which operates 45 taverns, testified the smoking ban has caused a decline in business and has forced the layoff of employees.

“Let’s put Nevadans back to work,” he told the committee.

Other tavern and slot route operators offered similar testimony to the committee, which didn't make any decision on whether to move forward on Senate Bill 372.

A spokesman for the Las Vegas Convention and Visitors Authority said it lost two conventions involving tobacco products because of the prohibition. These conventions meant millions of lost dollars when they moved to New Orleans.

Dr. Mary Anderson, health officer for Washoe County, told the committee, “second-hand smoke knows no boundaries. She disputed claims by industry officials that ventilation systems would remove the harmful smoke from adjoining areas.

SB372 would permit smoking in a place of employment if there was an enclosed area that had a ventilation system that “substantially prevents smoke from infiltrating the other public areas …”

Health advocates complained there is no definition of “substantially” and doubted that all the harmful elements could be removed.

Michael Alonzo, representing Herbst Gaming, and Jim Wadhams, an attorney for Golden Gaming, said the bill would not harm children.

There were arguments whether the Legislature could even act on the bill.

Voters in November 2006 approved the smoking prohibition and the Nevada Constitution said an initiative “shall not be amended, annulled, repealed, set aside or suspended by the Legislature within three years from the date it takes effect.”

Attorneys for taverns and gaming businesses have written the bill so it doesn’t take effect until December, which would be outside the three-year limit.

But Robert Eisenberg, representing the American Cancer Society, said the Legislature cannot “tinker” with the initiative until the three-year limitation has expired. The three years gives a fair opportunity for the law to work.

The Legislature, Eisenberg said is eight months too early.

There is also a petition for a writ filed in the Nevada Supreme Court by a law student that also argues the Legislature is barred from considering any amendment to the initiative. The court has not ruled on the petition by Kendall Stagg, a former candidate for the state Assembly in Washoe County and for the Reno City Council.

He is attending law school in New York but maintains his Nevada residency.

The Senate Committee must make a decision on the bill by next Friday, the deadline for committee action. The bill would take away local control by the health districts and put it in the hands of the state.

State Health Officer Dr. Mary Guinan said passage of the bill would require her to hire five more employees at the cost of $315,000 a year.

Cy Ryan may be reached at (775) 687 5032 or [email protected].