Friday, March 18, 2005 | 8:26 a.m.
CARSON CITY -- Taverns and convenience stores have sued to stop voters from deciding on an anti-smoking petition in the statewide election in 2006.
The lawsuit, filed in District Court in Carson City, seeks an injunction to prevent the secretary of state's office from placing the Nevada Clean Indoor Air Act from being on the ballot. It says the petition is "impermissibly vague" and violates the Nevada Constitution.
Herbst Gaming, Nevada Tavern Owners Association, United Coin Co. and the Nevada Petroleum Marketers and Convenience Store Association are the plaintiffs. The Nevada secretary of state is the defendant.
Buffy Martin, government relations officer for the American Cancer Society, said Thursday that the lawsuit is "is a tactic by big tobacco that does this in every state."
"They file junk suit after junk suit, hoping that the nonprofits will run out of money. "Why don't they just let the voters decide?"
She noted there was a competing, less restrictive initiative also on the ballot, backed by gaming interests.
District Judge Bill Maddox will hold a hearing Tuesday on the motion to either grant the injunction or to dismiss the suit. Martin said whichever way Maddox rules, the issue will go to the Nevada Supreme Court.
The American Cancer Society, the American Heart Association and the American Lung Association gathered 64,871 signatures of registered voters to qualify the petition. It and the competing smoking petition backed by gaming were sent to the Nevada Legislature.
The Assembly Judiciary Committee decided not to take any action, so both will appear on the 2006 election ballot.
The suit, filed by Las Vegas lawyer Kirk Lenhard, alleges that the signers of the clean air petition were "misled" into believing that every bar and tavern would be exempt from the no-smoking provision in the proposed initiative.
Lenhard said the reality is that almost every bar or tavern would be affected by the smoking prohibition.
The smoking petition violates the Nevada Constitution, Lenhard said, because it will require the spending of money for health officials and police to enforce it. There is nothing in the petition for a tax to support these efforts, he said.
But J. Thomas Susich, an attorney representing the health groups, said health officials and police are already enforcing smoking regulations. And he has asked Maddox to dismiss the suit.
Lenhard argues that if the voters approve the petition, it will invalidate several laws that were approved by the Legislature and signed by the governor. He said this can be done only by a referendum, not an initiative petition.
The initiative is unclear, said Lenhard, about whether the proposed prohibition on indoor places of employment would extend to rooms in hotels or resorts where housekeepers or other employees work. It is "impermissibly vague" if the no-smoking prohibition on indoor places of employment extends to casinos where underage persons are not permitted, the suit says.
The civil action, first filed Feb. 11, said the definition of a bar in the initiative petition is different than the definition in state law or local ordinances of bars and taverns.
"Consequently no bar, tavern or saloon that holds a license to serve food is considered a stand alone bar, tavern or saloon," that would be exempt from the smoking prohibition, said the suit.
A bar that sells chicken wings would be prohibited from allowing smoking, for example, Lenhard said.
If even one allegation in the suit is found to be true, then the initiative petition should not be allowed on the ballot, the lawsuit argues.
Susich denied the petition was vague or unconstitutional. And, he said, if parts of the petition are found to be invalid, they should be removed and the rest of the petition should be on the ballot.
Senior Deputy Attorney General Joshua Hicks, representing the secretary of state's office, said the state office was not a real party to this issue. He said, "The sufficiency of the initiative should be resolved between the proponents and opponents," referring to the health groups and those that filed the suit.
The cancer, lung and heart groups and the Nevada Tobacco Prevention Coalition were not originally named in the suit. Susich is asking permission to join the the court battle to argue against the proposed injunction.
Both petitions would permit smoking in casinos.
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