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November 25, 2014

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Smoking ban is ignored by many

While health officials say Reno bars are mostly complying with the state's new smoking restrictions, the Nevada Clean Indoor Air Act is being widely ignored in Clark County, where business owners from Las Vegas' largest casino operator down to the neighborhood slot bar say they didn't know the ban became law nearly a month ago.

"This is all so sad," said Buffy Martin, government relations director for the American Cancer Society of Nevada, one of the groups backing the voter-approved smoking ban.

When operators of more than two dozen bars challenged the ban on Dec. 5, there was rampant confusion over the law as well as the lawsuit it triggered.

And apparently there still is, given how some gaming companies are reacting to the law.

Businesses including MGM Mirage and many large tavern chains around town say they aren't intending to flout the ban - but aren't complying with it because a District Court judge in Clark County hasn't yet signed an order putting the ban's enforcement in the hands of the Southern Nevada Health District. The businesses say it is their understanding that the signed order will make the ban official and clarify any outstanding enforcement issues.

Not quite, according to officials with the attorney general's office and the Health District. Businesses that didn't participate in the challenge have been subject to the ban since Dec. 8 - the day it went into effect statewide, the authorities say.

The relatively few businesses that challenged the ban on constitutional grounds have been subject to the ban since the end of business Dec. 22. That is when a temporary restraining order that had prevented enforcement of the ban expired.

The signed order, based on District Judge Douglas Herndon's oral ruling Dec. 21, would simply remove criminal liability for those bars. Until the order is signed, the law - which bans smoking in virtually all public buildings except for casino floors and bars that don't serve food - is technically enforceable with criminal as well as civil penalties, Chief Deputy Attorney General Christine Guerci-Nyhus said.

Health authorities have said they have no intention of slapping cuffs on anyone. As in other states with smoking bans, Health District officials will have the ability to issue citations to smokers who violate the ban, although officials say they are counting on businesses to comply on their own without the threat of fines.

The Health District, charged with educating the public about the new smoking ban, seems to have added to the confusion.

Even though the ban is in effect, the district is waiting for Herndon's order to decriminalize the law before educating the public about the ban, spokeswoman Stephanie Bethel said.

The district also has pulled from its Web site guidelines for complying with the ban, which says nothing about the ban's effective date and includes only a brief mention of Herndon's Dec. 21 ruling. Bethel said the guidelines were removed so they could be revised in light of the judge's pending order.

"We're reviewing everything," Bethel said. Still, "when people call us, we are letting them know that the law is in effect."

Reworded guidelines, she said, will soon be distributed to businesses and posted on the district's Web site.

That's little help to people like Marianna Reynolds, night shift manager at Nikki Lee's Sports Bar & Grille in Las Vegas.

"We're all confused," Reynolds said. "I've heard that the (effective) date has constantly changed, from early December to around Christmas to New Year's. If it's the law now, that's fine - just let us know. We want to comply. We have a good reputation and good clientele and don't want to jeopardize that."

MGM Mirage spokesman Alan Feldman said the company is "standing by and ready" to implement the ban in the more than 100 company-owned restaurants scheduled to become smoke-free once the order is signed.

"Quite frankly it's been confusing as to when the ban applied, who it applied to, whether it just applied in Clark County," Feldman said. "When there's a change in law you usually look to the enforcement agencies for guidance. But both the Health District and Metro have been hard pressed to be clear about what the rules are. It would only add to the confusion to implement a ruling and then to read the ruling and find out things have changed."

Martin of the American Cancer Society said she hasn't yet received any calls about violators in Reno, but is fielding calls from Clark County residents about local bars and restaurants still allowing smoking.

"Businesses are telling them that they don't have to do anything until the judge signs the order, which is untrue," Martin said. The information is coming from employees who are legitimately confused as well as owners who should know better, she said.

The fight against the voter-initiated ban, known as Question 5 on the November ballot, may not be over. The bars that challenged the ban could appeal Herndon's ruling to the Nevada Supreme Court - or appeal the outcome of any future rulings.

Meanwhile, even though Herndon refused the tavern owners' request to immediately halt enforcement of the ban, the original challenge is moving forward, with a motion by the attorney general's office to throw out the case, which has a Jan. 23 hearing.

Any bar also could challenge the law. State law allows health officials to file suit to collect $100 civil fines for smoking violations. By allowing smoking, and then being cited by the Health District, the business could refuse to pay the fine and trigger future court battles.

Martin said she expects a drawn-out fight.

"We have been fought every step of the way on this project for the past 3 1/2 to four years," she said. "I would expect an appeal."

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