Smoke ruling faces appeal

There was never a question of whether Las Vegas bar owners would appeal to the Nevada Supreme Court a judge's ruling upholding the recently enacted smoking ban.

The only question was when, and that was answered Wednesday, when the Nevada Tavern Owners' Association filed a notice of appeal with the high court.

The five-page document did not include the legal grounds the group will stake out in its challenge to Question 5, the measure passed last year by voters who decided that they didn't want smoking in Nevada restaurants, grocery stores and bars that serve food.

Repeated calls to Mark Ferrario, the association's attorney, were not returned.

Tom Harris, an assistant clerk with the Supreme Court, said that the notice doesn't have to lay out the plaintiff's case and that the association has 120 days to file its legal argument.

"We're not surprised if they have filed an appeal,'' said Michael Hackett, spokesman for the Nevada Clean Indoor Air Act campaign.

Stephen Minagil, attorney for the Southern Nevada Health District, said that he wasn't surprised by the appeal, either, but that he was disappointed it came from the tavern association.

Lawyers for Clark County bar and tavern owners first challenged Question 5 in District Court in December, arguing that it was unconstitutional and unfairly banned smoking in some businesses while allowing it in others. The law makes an exception for casinos.

In January, District Judge Douglas Herndon heard the case and upheld the law and its civil penalties. Smokers who violate the act are subject to a $100 civil fine for each infraction, but Herndon threw out criminal penalties that violators might have faced.

Minagil said he thought the tavern association could have lived with that ruling. "We've spoken with many tavern owners on how to get their particular establishments into compliance with the act,'' Minagil said Thursday. "We're talking with businesses every day. We're a little disappointed they are wanting to fight.''

Herndon's decision also put enforcement of the law squarely on the shoulders of the Health District.

Last month, the Health District proposed regulation changes that would allow a $600 administrative fee on top of the $100 civil penalty to offset the costs of enforcement and called for a hearing officer to handle disputes from alleged violators. Those regulations were tabled after the tavern association and some Clark County residents questioned the Health District's authority to impose such regulations.

As of Thursday, the Health District had received 1,885 complaints from citizens regarding businesses failing to comply with Question 5.

Minagil said the biggest complaint is that businesses are trying to undermine the law by removing ash trays and putting up no-smoking signs but still are allowing customers to smoke. Citizens have complained to the Health District that some businesses hand out paper cups or condiment containers to smoking customers instead.

At the Outside Inn on West Charleston Boulevard, general manager Scooter Johnson said he's done his part -- smoking paraphernalia was removed and no-smoking signs were posted shortly after the law went into effect. The business, however, is in the top five for complaints in the Las Vegas Valley, with 39.

Since Feb. 1, Johnson said, Health District inspectors have visited the pub twice in response to smoking complaints. "I have a form from them saying I am in compliance with this law. I don't know what else they want,'' he said. "We used to sell cigars. I even got rid of all the cigar cutters because I figured they were considered smoking paraphernalia.''

Additionally, Johnson said he has incorporated a patio area in back of the business for his smoking customers. However, when asked whether people still light up inside the business, Johnson said he was sure it happens.

"That's not my job. It's not my responsibility to enforce the law. That's their responsibility,'' Johnson said, referring to the Health District.

Minagil said educating businesses about the law has neared an end. He said it is now time to enforce it.

"All of the inspectors have gone out and talked to all of the businesses with the complaints. We are now down to identifying the recalcitrant business owners who have no intention of abiding by the law,'' he said. "The Health District is going to go to these places and verify the exact nature of the disobedience. We will verify through observation, then we are going to go back and make one last-ditch effort to get them to comply. After that, there will be civil action.''

Despite the complaints and the pending appeal, Minagil said he is still optimistic that the law will be followed. The businesses not complying, he said, are a small minority.