Smoking ban ruled legal but enforcement given to Health District

Liz Benston and Marshall Allen

Friday, Dec. 22, 2006 | 7:09 a.m.

A judge put the onus on health inspectors, not cops, in his ruling Thursday that upheld a voter-approved smoking ban at restaurants and bars that serve food.

District Judge Douglas Herndon removed from bar operators, employees and smokers the threat of arrest, saying that violations will be civil, not criminal, matters.

By prohibiting criminal penalties, Herndon took enforcement of the ban from the police and placed it in the hands of Southern Nevada Health District, which will be allowed to issue citations carrying "nominal" fines for violators. He speculated that individual smokers - not business owners - would be liable for lighting up in restricted places.

Herndon said the ban "is going to be difficult to enforce," and he expected it to be challenged. However, bars that prepare food, he said, probably can't allow smoking under the ban.

County health officials said that while the ban is now in effect, they won't be actively enforcing it until they launch an educational campaign for business owners and the public on the details of the new regulations.

"We looked at what's happened in other jurisdictions, and they really don't end up needing a lot of resources," said Jennifer Sizemore, spokeswoman for the Health District. "People usually comply with these types of policies."

The Health District hasn't determined when enforcement will begin, she said.

In court Thursday, Herndon - citing a 1982 U.S. Supreme Court decision - said the smoking ban passed legal muster as a civil law but was insufficiently written to be enforced criminally.

The voter initiative is vague on enforcement and does not say whether the illegal act in question must be performed willfully for a violation to occur, Herndon said.

Perhaps the most dramatic difference between criminal and civil laws is the question of whether a law causes "irreparable harm" to a business, Herndon said.

The bars can't prove they would be economically hurt by the ban - but neither is there evidence that tavern owners will profit by attracting nonsmokers, he concluded.

Health District officials say it's too early to say how they'll enforce the ban, but Nevada is not reinventing the wheel. Based on what has happened in other states, enforcement is not expected to be a problem.

In Reno - where there was no delay in enacting the restrictions - most business owners are complying. There has been some confusion and defiance on the part of some tavern owners and individual smokers, but that's expected to subside.

Reno Police Chief Michael Poehlman said the ban reminded him of 1998, when he was chief of police in Oceanside, Calif., when that state enacted its own smoking ban. He said that within about six months, most people were complying with the new restrictions.

In New Jersey, smoke-free laws applying to bars and restaurants went into effect in April, and the transition has been smooth, said Nathan Rudy, spokesman for the New Jersey Health and Senior Services Department. The smoking ban is similar to other public health laws, Rudy said, that ban barefoot customers in restaurants or unsanitary kitchen conditions. Local health agencies enforce them all the same way, and it hasn't required extra resources or resulted in conflict, he said.

Peter Fisher tracks smoke-free laws as vice president of state issues for the Washington, D.C.-based Campaign for Tobacco Free Kids. The majority of people in every state, including Nevada, are happy with smoke-free laws, Fisher said.

"There's always people who will feel aggrieved and will grumble," Fisher said. "But if you look at the experience in every state and every country that's adopted a smoke-free law, in a few months everyone settles down and adapts, and people enjoy it."