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October 31, 2014

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Smoking ban not doing all the banning its sponsors hoped

Many taverns thumb their noses at the law, which has little teeth

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Two years ago — when the economy was humming along fine and nobody was getting hepatitis C from a colonoscopy ­— Nevada’s proposed indoor smoking ban was front-page news.

The measure, passed by voters statewide, took effect in early 2007. But drive around town and it’s still easy to find a place to smoke cigarettes.

Dozens of establishments across the Las Vegas Valley continue to ignore the ban, known as the Nevada Clean Indoor Air Act. Among other places, the ban prohibits smoking in bars and taverns that serve food.

Over the past 18 months, 4,022 complaints have been made to the Southern Nevada Health District.

And how many resulted in citations?

Nil. None. Zero.

It’s tough to blame the bar owners because nobody has ever had to pay the $100 fine for smoking a cigarette indoors in Clark County. That’s partly because no court is accepting the citations. And so, for now, no one is issuing them.

The Health District is working with local justice courts, hoping they soon will accept the citations.

“There’s no place to have hearings,” said Stephen Minagil, an attorney for the Southern Nevada Health District. “We’re ready to write citations. We’re just waiting to hear how the justice court wants to handle them.”

That’s only one of several ongoing dramas that have seemingly made many places nonsmoking only if the bar owners feel like obeying on that particular day.

The smoking ban has been a tough sell from the beginning, starting with the contentious November 2006 ballot initiative.

Since the initiative was passed by 54 percent of voters, several businesses have openly defied the law. Others built expensive partitions blocking their food-serving sections from the bar area. A few places closed.

“There’s probably a couple of hundred establishments that are not complying,” said Christopher Roller, director of advocacy for the American Heart Association of Nevada, one of the initiative’s lead sponsors.

“It is frustrating. We’ve had patience because we know we need a good set of regulations for it to be really enforced.”

A district judge rejected a request from business owners to stop the smoking ban from taking effect in the months following the vote. But at the same time, the judge removed any criminal penalties under the law and made the Health District its sole enforcer.

He also preserved the $100 civil fines for violators — the smokers — a penalty yet to be used.

The case has been appealed to the state Supreme Court by both sides — the Southern Nevada Health District and the Nevada Tavern Owners Association. Both sides have written briefs, but a hearing date has not been set.

Although bar owners have been saying their whiskey prayers, they concede chances are slim that the ban will be repealed.

“I will buy you 12 cold beers if that happens,” said Joe Wilcock, chairman of the Nevada Tavern Owners Association and the owner of The Brewery on Sunset Road.

Legal squabbles were expected by the sponsors of the initiative, including the American Cancer Society and the American Heart Association. But they are satisfied overall with the progress.

“Just from a perspective of going into many restaurants, the compliance is there,” said Tom McCoy, director of government relations for the American Cancer Society of Nevada.

A moment later, though, McCoy admitted that strolling into a bar and expecting it to be smoke-free can be “hit or miss.”

Roller noted that there have no problems with getting convenience stores and supermarkets to comply with the new laws.

The state Health Division last month held a hearing aimed at clarifying the laws. That’s a thankless task, considering that Clark and Washoe counties — along with the rest of the state — have varying interpretations.

“We’re trying to create some kind of statewide regulations,” said Darren Winkelman, environmental division supervisor.

Although the meeting was in Carson City, about 30 bar owners and lawyers joined via video conference from Las Vegas.

“We’re at a stalemate to see what we can and can’t do,” Wilcock said. “I’m sure Steve Minagil is frustrated, as are we.”

Meanwhile, smoke ’em if you got ’em appears to be the theory being used by many. Across the county, bars that serve food allow smoking — providing small cups of water for those needing a third vice to go with the drinking and gambling.

“That’s an ashtray,” the Health District attorney quickly points out.

To combat the open disregard for the law, the Health District sent about 35 letters to the businesses drawing the most complaints.

Most responded by eliminating smoking, according to the Health District’s attorney. Two businesses ignored the letters and ended up in civil court.

Bilbo’s Bar and Grill avoided a contempt charge in civil court, but only after a battle regarding its use of shot glasses as ashtrays. Irene’s Grill on Spring Mountain ended up agreeing to stop allowing employees to bring food to customers who were smoking.

Bilbo’s, which has three locations in the valley, has been the ringleader of the fight for smoking. One of its owners lit a cigar when a Health District inspector paid a visit.

Tavern owners say the ban has been devastating economically, resulting in 10 percent to 15 percent drops in revenue. That detail, like everything else, is disputed by ban supporters.

The one thing everyone seems to agree on is that the law needs to be clarified.

“In hindsight you can see how it should have been written differently,” Minagil said. “It was drafted by tobacco control advocates, not legislators.”

The current headache does not dim Minagil’s hopes for the future.

The Health District may have to add inspectors and find ways to enforce the ban. However, Minagil said the district has no plans to be proactive.

There will not be undercover inspectors looking to crack down on people trying to sneak a Camel Light at the watering hole.

“The last thing on earth they want to do is sit around here and confront patrons,” Wilcock said. “They don’t want to confront this 250-pound bar patron who’s been drinking.”

That doesn’t mean the smoking ban talk will end with resolution of this problem.

The future, Minagil said, is no smoking anywhere inside — including the big casinos.

Now imagine those court battles.

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