Nevada - State Supreme Court upholds smoking ban, health department prepares top strengthen penalties,,

October 9, 2009 - 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.

On Thursday, September 24, 2009 the Nevada Supreme Court upheld the constitutionality of civil enforcement of Nevada's indoor smoking ban. In a 34-page opinion issued Thursday, September 24th justices said a lower court properly found criminal enforcement of the 2006 voter-approved law was unconstitutional. That provision has already been severed from the statute.

But several Las Vegas businesses appealed the civil provisions, arguing the law violates equal protection guarantees because it exempts gambling areas in large casinos, as well as stand-along taverns and strip clubs.

A five-member majority rejected those arguments, saying the exemptions are proper because minors are prohibited from gambling areas in casinos, unlike in smaller bars and restaurants where slot machines are "incidental" to their overall business.

Background: Faced with competing initiatives on smoking bans in public places, Nevadans voted (over 54% of the vote) on November 7, 2006 to enact the Nevada Clean Indoor Air Act in order to protect themselves and their families from the dangers of secondhand smoke. This ban became a statewide law on December 8, 2006. According to the state law, Nevada's cities and towns are allowed to strengthen smokefree policy further at the local level.

The state Supreme Court dealt a blow to anti-smoking forces Monday, 4/13/2009 when it declined to stop lawmakers from weakening Nevada's smoking ban.

Shortly after the September 24th Supreme 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."

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.

"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.

Related Las Vegas Sun articles:
Study arms smoking foes Dealers display ill effects of secondhand smoke in long-awaited results, by Liz Benston, Las Vegas Sun, 5/7/2009;
Closer look at smoking ban by Nicole Lucht, Las Vegas Sun, 5/1/2009;
Casino restaurant patrons can’t elude secondhand smoke
by Nicole Lucht, Las Vegas Sun, 1/16/2009;
Study finds high pollution levels in casino restaurants
UNLV testing shows 12 of 16 at levels that exceed EPA standards by Amanda Finnegan, Las Vegas Sun, 1/15/2009;
Serve food or allow smoking: Trendy spots may face choice by Liz Benston, 8/15/2007;
Smoking ban tests resourcefulness by Ed Koch, Las Vegas Sun, 7/30/2007;
Smoking ban not doing all the banning its sponsors hoped Many taverns thumb their noses at the law, which has little teeth by Mike Trask, Las Vegas Sun, 6/21/2008;
Smoking ban is ignored by many by Liz Benston, 1/8/2007.

Reference: Officials to strengthen penalties for smoking ban
Draft regulations show authorities plan to pull health permits of bars that ignore rules by Valerie Miller, Las Vegas Business Press, 10/7/2009.
Related news brief: Nevada - lawmakers may weaken smoking ban...