Group sues to toss out smoking restrictions

A group of Southern Nevada tavern owners and casino operators have filed a lawsuit to block enforcement of the public smoking restrictions approved by Nevada voters Nov. 7.

But a temporary order stopping the new law, if approved, would only apply in Clark County.

The Nevada Clean Indoor Air Act was approved by more than 310,000 voters, 54 percent to 46 percent - a victory margin of more than 45,000 votes. The statute is designed to ban smoking in all places where children are present including school grounds, day-care centers, government buildings, malls, restaurants, grocery stores and all bars where food is served. Sponsored by groups including the American Cancer Society and Heart Association, the ban does not apply to hotel or motel rooms, casinos or to stand-alone bars that don't have food- handling licenses.

The same taverns and small casinos, including Terrible's Hotel and Casino, that fought unsuccessfully to remove Question 5 from the ballot before the election, on Tuesday filed suit in Clark County District Court to prevent it from becoming law Friday. They have argued all along the statute will seriously damage their businesses.

The lawsuit is accompanied by a motion for a temporary restraining order that would bar Southern Nevada law enforcement and health officials from attempting to enforce the new statute.

Because the lawsuit was filed in Clark County District Court, the law will go into effect everywhere outside of Clark even if there is a ruling approving the restraining order before Friday. Kirk Lenhard of the Jones Vargas law firm, author of the suit, said the case will undoubtedly end up before the Nevada Supreme Court no matter which side prevails and, in that case, he expects northern and western Nevada tavern owners and others would seek to join the lawsuit.

"It's getting a lot of interest up north so I would hope other counties would follow suit," he said. "But, if the judge enters an order here, frankly it's limited to Clark County."

Opponents of the Nevada Clean Indoor Air Act charge its language is unclear, forcing businesses to speculate on how to comply. They say it treats similar businesses unequally and is therefore discriminatory, citing as examples taverns and sports bars that serve liquor and food but welcome families as well as adults. They would be prohibited from allowing smoking while "stand-alone bars" without food service licenses would be allowed to. In addition, restricted and non-restricted gaming licensees would be treated differently, which the lawsuit also argues is unfair.

The lawsuit says the language describing which businesses can and can't permit smoking is impermissibly vague" and, therefore, unconstitutional.

To allow the law to be enforced before its constitutionality is decided, opponents say, would violate due process and "inflict irreparable injury upon the plaintiffs."

Their challenge of the law itself argues the act is unconstitutional under the equal protection clause of the 14th Amendment, as well as Nevada's Constitution because of unequal treatment of different businesses. It also says many of the act's mandates are not rationally related to the stated purpose of protecting children and families from being exposed to secondhand smoke or any other legitimate government interest.

The plaintiffs are asking the court for an order permanently barring enforcement of the statute.

• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.