Smoking ban turns to Nevada Supreme Court
April 7, 2009
LAS VEGAS” Nevada’s smoking ban is now in the hands of the state Supreme Court.
Justices on Monday heard arguments on a challenge to the ban, which has been the subject of a legal fight since it was passed by voters in 2006.
The Nevada Tavern Owners Association and other opponents argued that the ban is unconstitutional because it unfairly targets small businesses and is too vague.
Challengers also told the court that a district judge should not have upheld the ban years ago. At issue is a ruling by District Judge Douglas Herndon that allowed the enactment of the smoking ban but threw out any criminal penalties.
“This act started with the best intentions. But intentions cannot cure constitutional flaws,” said Mark Ferrario, attorney for the Nevada Tavern Owners Association.
The industry group is fighting to overturn the law or have the flaws it cited corrected. The Supreme Court will issue its decision within 30 to 90 days.
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The Nevada Clean Indoor Air Act prohibits smoking in restaurants and bars that serve food, in slot machine sections of grocery and convenience stores, and at video arcades, shopping malls, schools and day-care centers. Smoking is still allowed on gambling floors of casinos.
Smokers violating the law can face a $100 civil fine.
Ferrario argued the ban does not define exactly whether the smoker or the establishment is subject to the fine and suggests someone could be fined simply for carrying tobacco.
He also said it does not precisely define what is considered “smoking paraphernalia” under the law.
State authorities defending the ban argued the law is clear. It bans the act of smoking tobacco in the prohibited areas, said Nancy Savage, senior deputy attorney general.
The arguments before the Supreme Court on Monday were similar to those Herndon heard in December 2006, when the District Court was tasked with hearing challenges to the law.