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February 11, 2012

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Court: Smoking ban constitutional, minus criminal sanctions

By Cy Ryan (contact)

Thursday, Sept. 24, 2009 | 4:37 p.m.

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CARSON CITY – The Nevada Supreme Court has ruled that a voter-approved ban on smoking in such places as schools and indoor places of employment was constitutional.

But the court held that the criminal sanctions could not be imposed because the language was vague.

Voters in 2006 approved a change in the law to ban smoking in such places as schools and indoor places of employment. But the law exempted gaming areas in casinos, stand-alone bars, strip clubs and brothels.

The passage was immediately challenged by businesses including Flamingo Paradise Gaming, Terrible’s Hotel and Casino, the Nevada Tavern Owners Association and Cardivan Corporation.

Clark County District Judge Douglas Herndon ruled the law was unconstitutionally vague for criminal enforcement. But it survived the test for civil enforcement.

Chief Justice James Hardesty, who wrote the majority Supreme Court opinion, said the criminal portion of the law failed to provide sufficient notice of what conduct is prohibited and it allows for arbitrary enforcement.

He said it was unclear whether a business owner was required to stop somebody from smoking in these restricted places and whether the owner has to call the police if the person doesn’t stop.

“While it is clear that a person cannot smoke in a restricted area, it is unclear if there is an obligation to affirmatively prevent smoking by a business owner, manager or employee,” Hardesty said.

But the civil ban on smoking, he said, requires a lower standard in judging whether it is vague. In the civil section, he said smoking is clearly prohibited in certain areas, including bars and restaurants where food is served.

The law is also clear, he said, that certain businesses cannot allow smoking and must post no-smoking signs.

Hardesty the law "is sufficiently clear to provide notice of what conduct is prohibited and adequate guidance to enforcement officials to avoid arbitrary or discriminatory enforcement."

The civil ban applies to restaurants, child care facilities, schools, hospitals, medical offices, theaters, concert halls, video arcades, government buildings, grocery stores and convenience stores. Smoking is allowed in casinos, bars that don’t serve food, and private residences, including hotel and motel rooms.

Those who filed suit argued the law violates equal protection because the ban is applied to businesses with restricted gaming licenses that allow 15 or fewer slot machines but not to casinos with non-restricted licenses.

The 34-page majority opinion said the casinos with non-restricted licenses have gaming as their primary business and minors are barred. But the small slot machine places offer other services “which makes it more difficult, if not impossible, to provide and exclusion from the smoking ban for their gaming areas.”

Justice Michael Cherry dissented from the majority ruling that the civil part of the law was valid. He said the purpose of the law was to protect families and children from secondhand smoke.

He said permitting smoking in casinos but not in places which have restricted gaming licenses “has no rational basis and is contrary to the statute’s purpose.” He said the second hand smoke in the casinos carries beyond its areas and “still impacts families and children that are located beyond those areas.”

Cherry wrote the decision of the majority to uphold the civil section of the law does “not bear a rational relation to the statute’s purpose” to protect people from second-hand smoke.

Justice Mark Gibbons, in a concurring opinion, said aggrieved parties, such as those that brought the suit, could challenge the law on “an applied” basis. He said if a party received a civil sanction, he does not make any finding whether the law provided sufficient guidance to the patron.

The court also rejected the argument of the Nevada Tavern Owners Association that the law prevents them from using their airspace and this constitutes a permanent invasion.

Hardesty said the law “only forbids certain uses of the space and does not give the government physical possession of the airspace.

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