Editorial: Crossing out the ‘no’

Friday, Dec. 8, 2006 | 7:11 a.m.

Signs saying "No Smoking" were supposed to go up in most public places today as the result of last month's election in which voters passed Question 5.

But a District Court judge's decision means smokers can puff away in restaurants, taverns and at the slot machines in grocery stores for at least another 15 days.

More than 220 businesses, most them bars and restaurants, asked Judge Douglas Herndon for a restraining order preventing the restrictions from taking effect before a hearing could be held on the ballot question's constitutionality.

Herndon, in a decision Thursday, granted the restraining order.

Question 5 does not apply to casino gaming areas, where minors are prohibited, but does apply to other public places, including establishments that serve food prepared on the premises. The question was backed by health groups that say scientific studies have proved that secondhand smoke is harmful to nonsmokers. Their argument was that nonsmokers have a right to patronize public places without jeopardizing their health.

But the tavern and restaurant owners fear they will lose enough customers to harm their businesses if smoking is banned. They see the question as being unfairly discriminatory against them. They argue the question was vague and therefore unenforceable. They even argue, under the Fifth Amendment, that the restrictions represent an unfair "taking" of airspace within their buildings without just compensation.

Herndon ruled that the arguments were reasonable enough to deserve a formal hearing, which he set for Dec. 19. Lawyers for the Southern Nevada Health District will argue for the majority of voters at the hearing.

We are disappointed in the judge's decision. We believe the vote of the people should be the final word on this issue, and we hope Herndon sees it that way after the hearing.