Compromise on smoking regulation could prevent deluge of costly litigation

Kathy Baugh and Joaquin Gonzalez are just the sort of people you'd like to meet at a local bar. They're a handsome couple. He made money in real estate, and she's a nurse at a local hospital. Young and sociable, polite and funny, they like to drink microbrews and play the quarter video poker machines.

Did I mention they smoke?

Yeah, they smoke.

They are what I call polite smokers. They ask before lighting up, decline to smoke if they're next to someone who is eating and don't smoke in front of children. At home, they smoke outside.

The fact they smoke means Kathy and Joaquin, like thousands of other cigarette smokers in Clark County, are waiting to find out whether the act of striking fire to tobacco in a place clearly licensed for adult activities such as drinking and gambling will soon be outlawed. Not outlawed in every bar, mind you, just in bars with 15 or fewer slot machines and depending on whether their proprietors want to serve customers food - even popcorn and peanuts.

I met Joaquin and Kathy the other night at the Kopper Keg at 8725 W. Deer Springs Way while doing field research on the potential impact of the November passage of Question 5, better known as the Nevada Clean Indoor Air Act. (Any more field research, and I'll need a designated driver.) The act has been criticized for falling short of its lofty title, but anti-smoking advocates say it's an enormous breakthrough for cigarette-addicted Nevada.

I don't smoke and have lost family members to smoking-related cancer and lung disease. I voted for Question 5. But none of that changes the fact the clean-air act can't be enforced with credibility if it doesn't fairly balance the interests of the parties involved. On its face, it doesn't yet do that.

Those who endorse it say it's a great start. Those who ridicule it cry that it's patently unfair. Bar owners across the valley are praying it is consumed by the legal smoke of litigation. After seeing their wish for a less smoky state denied so quickly, some Nevada voters are wondering out loud whether their ballot is worth the paper it was once printed on.

District Judge Douglas Herndon on Thursday issued a temporary restraining order in the matter, going so far as to say the bar and restaurant owners' legal argument had a "reasonable likelihood" of success. A hearing is set for Dec. 19.

Between now and then, expect the political rhetoric to fog the air on both sides of the issue. If the anti-smoking act is enforced, does that mean Kathy and Joaquin will quit coming to the Kopper Keg?

No.

Nor will they quit smoking.

Kathy and Joaquin are newcomers to Nevada. Until six months ago, they lived in Fort Lauderdale, Fla., where the anti-smoking wildfire has already swept across the state. Florida's smoking law was amended in 2003.

"We still went to places, but we had to take it outdoors," Joaquin recalled. "Coming here it was like, holy crap, we can smoke again."

"We got used to smoking in places again," Kathy said.

The Florida law bans smoking in restaurants, but allows it in outdoor patios and "stand-alone" bars. By statute, a stand-alone bar is any place licensed to serve alcoholic beverages where serving food is "merely incidental to the consumption of any such beverage." In Florida, a bar that derives no more than 10 percent of its gross revenue from food sales is exempted from the no-smoking law.

Seems perfectly reasonable, and it's already passed constitutional muster. Perhaps someone in Nevada will suggest looking at the Florida law as part of a compromise before the issue becomes hopelessly and needlessly mired in the courts.

If not Florida, then pick another state. There are plenty from which to choose. As usual, most of America is well ahead of Nevada when it comes to public health issues.

Other states have managed to redefine where it's legal and proper to smoke without starting a civil war between smokers and abolitionists, but I'm beginning to wonder whether Nevada can rise to the occasion without some fixer flexing his political muscle.

Kathy and Joaquin, and the rest of us, will be watching.

• John L. Smith's column, reprinted from the Las Vegas Review-Journal, appears on Thursdays on the Appeal's Opinion page. E-mail him at smith@reviewjournal.com or call (702) 383-0295.