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by linkup
on Tue May 01, 2007 7:33 am |
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http://www.helenair.com/articles/2007/05/01/montana/a07050107_04.txt
Las Vegas bar draws first lawsuit over smoking ban
By KEN RITTER - Associated Press Writer - 05/01/07
LAS VEGAS — A tavern owner who refused to remove ash trays was sued Monday by health officials under Nevada’s voter-approved smoking ban.
‘‘Most businesses are complying,’’ Southern Nevada Health District lawyer Stephen Minagil said as he blamed the corporate owner of Bilbo’s Bar and Grill for not abiding by the smoking ban that was approved by voters in November and upheld by a judge in January.
‘‘This is really the recalcitrant business owner who says, ‘No, I won’t,’’’ Minagil said.
Minagil said the district wants a Clark County District Court judge to fine Bilbo’s owner, Three B’s Inc., at least $200 — or $100 for each of two smokers observed smoking in the bar April 12. The health district also asks that the business be ordered to comply with the Nevada Clean Indoor Air Act, which prohibits smoking in nearly all public places, including restaurants and bars that serve food. Casino floors are exempt.
Lawyer Robert Peccole, representing Three B’s and Bilbo’s, welcomed the chance to challenge what he called a confusing, vague and unconstitutionally flawed law — as well as the chance to tell the government to keep its nose out of the bar business.
He said the neighborhood tavern about eight miles west of the Las Vegas strip posted ‘‘no smoking’’ signs but balked at removing ash trays.
‘‘The ash trays were left out so we could get a court test,’’ Peccole told The Associated Press. ‘‘I’m born and raised here. I don’t like that someone can come in and tell you how to operate your business — who can smoke, and who can’t smoke.’’
Peccole said the ash trays bear advertising and represent a protected form of commercial speech. He called the order to remove them a violation of Bilbo’s First Amendment rights.
The lawsuit alleging ‘‘willful disobedience’’ is the first legal action initiated by the district to enforce the ban. No citations have been issued, officials said.
In March, a retail tobacco shop in the Caesars Palace Forum Shops won an injunction to allow smoking on its patio outside the store. Casa Fuente’s parent company, South Street LLC, had sued the health district in February to stop the district from citing the shop in the indoor mall.
Las Vegas-area bar owners have appealed to the Nevada Supreme Court to overturn a judge’s January ruling allowing the enforcement of civil penalties for violations of the measure. The judge threw out criminal penalties.
The Nevada Tavern Owners’ Association has until October to file legal arguments against the measure.
After a campaign to educate smokers and businesses about the ban, Las Vegas and Reno-area health officials said last week that they intended to begin issuing citations for violations.
On Monday, Washoe Health District spokeswoman Tracie Douglas said no lawsuits had been filed in the Reno area, and officials were pleased with compliance.
‘‘We only have a couple of people we’re dealing with,’’ she said.
The Southern Nevada Health District has fielded more than 2,000 complaints about 590 businesses during the past five months in the Las Vegas area, spokeswoman Jennifer Sizemore said.
The health district, which regulates 16,000 businesses, recently sent letters to eight businesses seeking compliance, Minagil said. Only Bilbo’s was sued.
An initial court hearing was set for June 6. |
Last edited by linkup on Tue May 01, 2007 8:08 am; edited 1 time in total |
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linkup
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by BWilliams
on Tue May 01, 2007 7:54 am |
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| This looks like an awesome case I want to keep my eye on. |
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BWilliams
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by linkup
on Tue May 01, 2007 8:27 am |
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linkup
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by Torquemeda
on Tue May 01, 2007 8:54 pm |
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The Southern Nevada Health District has fielded more than 2,000 complaints about 590 businesses during the past five months
Kinda sounds like the 80's when kids were turning in their parents for smoking pot. |
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Torquemeda
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by linkup
on Sat May 05, 2007 9:03 pm |
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http://www.kvbc.com/Global/story.asp?S=6466938
Have Nevada bars given up the smoking habit?
May 4, 2007 08:57 AM MST
Have Nevada bars given up the smoking habit?
Six months ago, a majority of Nevada voters passed Question 5, the Nevada Clean Indoor Air Act. It made substantial changes to Nevada's smoking laws, but is it working? The Crime Tracker 3 Team went undercover to find out if local bars and restaurants are in compliance.
If they aren't, who's really responsible for making sure they're punished?
News 3 producer: So can I smoke in here still?"
Bar employee: Yeah
News 3 producer: Am I able to smoke in here?
Bar employee #2: Yeah, well you're not supposed to, but we have other smokers in here so it's okay.
We went to ten bars with an undercover camera and asked one simple question: Can I smoke in here? Out of the ten locations we visited, only two places told us no. But half of the places that told us yes were not necessarily breaking the law.
Stephen Minigil with the Clark County Health District explains. "The law says that smoking is prohibited in restaurants and smoking is not prohibited in stand-alone bars that don't serve food."
Two of the places we visited have closed their restaurants to allow smoking and stay in compliance. The other exception to the law applies to bars that serve food that have a non-restricted license. "A non-restricted license is something that all the casinos and hotels have, and it's over a certain amount of machines so there are a couple of establishments around town that have that license," Minigil explains.
Two of the bars we went to have that license so it was completely legal for them to let us eat and smoke at the same time. But four of the bars we visited have restricted licenses and serve food.
By law, those locations are required to do two things: post a no-smoking sign at the entrance and remove all ashtrays, which they did. However, when we pulled out a pack of cigarettes and asked for an ashtray...
Bar employee: I'm not supposed to give you this ashtray, but I'm going to anyway.
One bartender even walked around with a lit cigarette in his hand while making drinks.
"I think that some business owners are concluding that they don't have any obligation under the law or that their obligations are only limited to posting a sign, they don't have other affirmative obligations. That's an issue," Minigil told Crime Tracker 3.
Nevada has historically been a state very tolerant of smoking. Nothing has changed in the casinos. But the Nevada Clean Indoor Air Act snuffed out smoking in most other local establishments.
Still, something is missing. That act does not spell out who's responsible for enforcing the smoking ban.
"Those interests that don't support the law say that the law does not require the bartender or the bar owner or operator to open their mouths one iota." Mark Ferarrio represents the Nevada Tavern Owner's Association. He says the enforcement piece of Question 5 was poorly drafted. "I understand the predicament the Health District is in. Now I think we are all suffering from the fact that this law, while it might have been well intended, as I said in court, it wasn't drafted appropriately."
A judge has already determined the law is ambiguous in a criminal context, so it became a civil issue. Which means law enforcement officers are not responsible for policing the no-smoking ban. That job falls in the hands of Health District employees. "Who aren't police officers, who aren't armed, who dont have the training or capacity to confront a perhaps intoxicated individual at a bar," Ferarrio points out.
That's why, so far, even though the Health District has identified bars who allow patrons to smoke, not one ticket or citation has been issued. "Well, we haven't issued any tickets at this time, but we are preparing civil actions against the people we think are recasogenic business owners," Minigil said.
"I dont know what he's contemplating," counters Ferarrio, "sueing them civilly for a $100 fine? That just doesn't make any sense."
On Monday April 30, the first law suit was filed. It's against Bilbos on West Charelston.
Ultimately, we'll find out who's really responsible for enforcing the Clean Indoor Air Act when the courts make a decision about that lawsuit. |
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linkup
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