Anti-smoking question stays on the ballot

The petition to ban smoking in almost all indoor areas other than private homes will stay on the November ballot said Monday's ruling by Carson District Judge Bill Maddox.

Supporters of The Nevada Clean Indoor Air Act collected more than enough signatures to qualify the initiative and present it to the Nevada Legislature which chose to take no action. That lack of action sends the petition to the voters who can choose to override the Legislature and make the act part of state law.

"We are very pleased," said Buffy Martin, of the Cancer Society. "We think this is a great victory for Nevada citizens and for public health."

Lee Haney, of Jones Vargas, the law firm which represented gaming, bar and convenience store owners in the case, said no decision has been made whether to appeal the decision yet. She said opponents had already decided to prepare in case the question is on the November ballot.

If it is, it will appear side by side with another smoking petition authored by the casino, restaurant and bar industries which is much less restrictive.

"It's going to be who did the best job of educating the voters if both appear side by side on the ballot," she said. "We do believe there is a need for some additional measure to protect, especially children, from second-hand smoke but this goes too far."

Bob Crowell who represented the act's supporters, said he expects an appeal.

Martin said if voters approve the ballot language, the smoking restrictions would take effect in 10 days.

Under Nevada law, if both receive voter approval, the one receiving the most votes will become law.

The act, authored by the American Heart Association, American Heart Association, American Lung Association and Nevada Tobacco Prevention Coalition, would ban smoking in most public areas including hotel and motel rooms, all restaurants and businesses including bars attached to restaurants.

Smoking would still be allowed in casino areas where minors are prohibited from loitering and in "stand alone" bars and taverns - those where food, if served, is only an incidental part of the business.

In a 19-page opinion, Maddox rejected more than a dozen procedural, constitutional and statutory challenges seeking to keep the proposed clean air act from going before voters.

Maddox rejected the claim the initiative is unconstitutional because it would cost health authorities and police money to enforce but doesn't include a source for that money. That argument was used successfully to challenge the teachers' association attempt to mandate at least half the budget be spent on education each legislative session.

Maddox ruled that case doesn't clearly apply in this situation. He noted the Legislature routinely passes new criminal statutes that must be enforced and always states there is no fiscal impact.

Numerous arguments by the Nevada Resort Association, Herbst Gaming and the other petitioners challenged the ballot question as unconstitutionally vague. But Maddox ruled in each case that the plain language in the petition was clear and understandable to a normal person.

For example, the gaming association and bar owners argued the act was vague as to whether it would prohibit smoking in a lot of bars which also serve food.

"There is nothing vague or misleading about that," Maddox wrote. "The plaintiffs may not like that prohibition and it may certainly be an issue as to whether or not NCIAA should be adopted but it is clear. It is not vague or misleading."

The resort association also argued the proposed law is vague as to whether it would prohibit smoking in hotel-motel rooms. Maddox said there is nothing vague about it: The act would clearly prohibit smoking in hotel and motel rooms "and there is no exception."

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