Smoking ban’s effect hazy

By Marshall Allen

Wednesday, Dec. 20, 2006 | 7:19 a.m.

RENO - Two off-duty bartenders - a smoker and a nonsmoker - are throwing back drinks at the Breakaway tavern downtown, and there's something unusual about the place.

It's got the ubiquitous neon signs, jukebox and pool table. But it smells fresh.

It's smoke-free.

The state's new smoking restrictions are the law here, even though a judge in Las Vegas has delayed their enforcement in Clark County while he ponders whether they are constitutional.

And if there's a lesson in Reno - where not everyone is taking kindly to the selective ban - it's that hard feelings can be expected if and when the smoking ban is enforced in Clark County.

"You can hire a prostitute at 4 in the morning, but you have to go outside to smoke a cigarette!" Jeff Ricard, the smoker, cries.

Dustin Hunter, the nonsmoker, not only defends the ban but has single-handedly enforced it. Just last night, he said, he tossed eight smokers out of the bar where he works. He's had to call security to remove some obstinate customers who refuse to snuff their smokes. The booze-stoked arguments are nothing, he says; sometimes fights break out.

That's the kind of tension that's rising even now between Hunter and Ricard, as their argument escalates. Exasperated, they're now cursing beyond the threshold of typical bar-stool banter.

Indeed, implementing the state's sweeping limited-smoking ban has sparked conflict, confusion and defiances in Reno, signaling what may be in store for Las Vegas. In several Reno taverns, managers give a wink as customers rebelliously light up. Some owners say they won't comply until they're officially notified of the new rules. Others say they're complying - but then matter-of-factly pass ashtrays to their regulars so they can smoke and continue playing video poker.

Outside the Breakaway, beneath the sign boasting, "Home of the 99 Bottles of Beer on the Wall," and where the ground is snowy, the roads are icy and it's 20 degrees, Greg Kukuk is smoking a cigarette. Kukuk notes the irony that he can't smoke inside the tavern. He owns the place.

Smoking and video poker go hand in hand, the frustrated Kukuk says. A tavern without smoking is like "a casino without a hotel room."

"They're just taking another thing away from the little guy," Kukuk said. "It hasn't affected the casinos."

Kukuk and other tavern owners said there's great confusion about the ban, which effectively eliminates indoor smoking in any place except on the floor of casinos, or in strip clubs, brothels or bars without food licenses.

Adding to the confusion is the legal challenge to the ban by tavern owners in Las Vegas, who say the restrictions are unconstitutional. At their request, District Judge Douglas Herndon granted a 15-day restraining order and, on Tuesday, heard arguments from both sides on whether to issue a permanent injunction. He is expected to make a ruling today . Whatever he decides will likely reach the Nevada Supreme Court on appeal.

Even if the law is upheld, Clark County law enforcement and health officials say they won't take a proactive enforcement approach. Instead, the law will largely be self-enforced by business owners and customers.

If tavern owners in Reno feel as if nobody's worrying too much for now about enforcing the ban, little wonder.

The tavern owners have not received personal notification from the Washoe County District Health Department explaining the law, although the agency has specific instructions on its Web site. And while the health department is enforcing the ban as part of its ongoing inspections, there is no cadre of inspectors specifically on smoke patrol.

Reno Police Chief Michael Poehlman said officers will not issue citations, but will write reports and pass them to the Washoe County district attorney's office for possible prosecution.

The ban puts tavern owners who have video poker machines at the most financial risk, because of the large number of gamblers who smoke. Many of these Reno business owners are looking for wiggle room so they won't have to close the kitchen to keep their customers who smoke.

Robert Sack, division director of environmental health services with the health department, said implementing the smoking ban has been a challenge because it was widespread and took effect almost immediately. Most regulations go through a long public process, he said.

Sack said his goal is to educate business owners about the law so they will self-police. The health department is not prepared to enter taverns and confront drunken smokers, Sack said, because with only 15 food inspectors, his crew already is pressed just to visit the 3,500 establishments annually for regular inspections.

Health officials, however, are responding to customer complaints - there have been 25 so far, mostly coming from sports bars - and they will send formal notices and issue citations, Sack said. A lack of compliance could put a business' food license at risk, Sack said.

Hundreds of business owners have called Sack, seeking flexibility under the law, but he said it's rigid. He said most seem to be complying. For instance, the Silver Legacy casino has No Smoking signs posted throughout the nongaming areas. And many taverns in Reno, including the Bully's chain of sports bars and Shenanigans Olde English Pub, are obeying the law.

It's a different matter at Coach's, where patrons scandalously puff at smokes while owner Richard Allegretti looks on with approval. A cigarette machine - advertising "Kool and Mild Today" - sits inside the door. Butts are stubbed out in ashtrays. The air smells of smoke.

Allegretti said he won't enforce the ban until all legal challenges are resolved - which could take many months.

"If the officials tried to enforce it they would get egg on their face if it is found to be unconstitutional," he said.

Almost everyone who gambles at Coach's is a smoker, and if they go, "I'll have to shut my doors," Allegretti said. But he's also proud of his kitchen, which also attracts nonsmokers for its affordable jumbo shrimp, fettuccine and calamari rings.

Allegretti blames the government, not voters, for putting him between the law and his customers.

"I put in all my time, my effort, my money, and they basically dictate what I can and can't do," he said.

Truck driver Thomas Prochnau, enjoying a smoke with his 20-ounce mug of ale, said smokers were stunned by the voters' decision. Everyone said it would never happen in Nevada, he said.

Voters who approved the ban are the types "who love to live in homeowners associations where they have control over everybody," Prochnau said.

Sparky's pubs, with four locations in Reno and Sparks, have also ignored the smoking ban. They are owned by Golden Gaming, which is seeking the injunction in Clark County.

Company officials did not return calls for comment, but a Sparky's manager said the pubs were waiting to see what happened with the legal challenge in Clark County.

Business owners who are ignoring the new law are taking advantage of those who obey the law, said Rollin Lazzarone, who owns two adjacent taverns in Reno, Scruples and Scruples Annex. He said it's ridiculous for business owners to think they can ignore the law until they're personally contacted by the health department. And it's too late for the legal challenges, he said.

Lazzarone created the two establishments about a year ago, without considering the ban. They both have video poker and originally had a kitchen each. But in an effort to comply with the smoking ban, he turned Scruples Annex into a smoking-legal bar.

Lazzarone said it's too early to tell how the ban will affect business. Either way, it's better to implement it right away, he said. He wants customers to be consistent, and besides, business owners need to comply with state law.

"I thought we were supposed to be doing that here," he said.

Sun reporters Mark Hansel and Liz Benston contributed to this story.