State accused of plans to gut voter-approved smoking ban

Regulations before the state Health Board today could reverse part of the Nevada Clean Indoor Air Act by opening sports bars and restaurants to smokers.

Voters in 2006 approved a ban on smoking in grocery stores, restaurants, sports bars and most other indoor public businesses and public buildings. Stand-alone bars and casino-resorts are exempt.

Restaurant and bar owners have protested the act, saying it caused serious damage to their businesses.

The proposed regulations, scheduled for a vote today, were drafted by health division staff with input from the affected businesses.

They would allow restaurants to effectively create smoking sections, according to Michael Hackett of Alrus Consulting in Reno, which organized the 2006 initiative petition supported by the American Heart Association, American Cancer Society and other anti-smoking groups.

'To me this is creating an exemption that is not allowed by statute," said Hackett.

"People are now trying to change the petition that was put before the voters," said Scott Craigie, also of Alrus. "You can't go in after the fact and rewrite it."

The voter-approved statute allows smoking in a stand-alone bar or tavern that doesn't prepare and sell food to patrons, but not in restaurants with bars that rely on food sales as well as liquor.

Hackett said the new regulation would permit smoking in a "stand-alone bar, tavern or saloon with a physically segregated restaurant under the same roof or in the same building."

Hackett said the original language permitted smoking in a bar "with a physically independent restaurant under the same roof." The change from "independent" to "segregated," he said, would allow restaurants to, again, subject diners to second-hand smoke.

He said that clearly violates what voters approved, which specifically states that smoking tobacco is prohibited in indoor places including "all areas within restaurants."

Jim Wadhams of Jones/Vargas law firm that represents tavern and bar operators including Herbst and Golden Gaming, said the regulations weren't intended to make a significant change to current practice.

While Hackett said it would allow restaurants to create open smoking sections, Wadhams said there would have to be a complete separation between the two areas - not just a partition.

Wadhams said restaurants wishing to accommodate smokers would have to effectively seal that part of the operation off from the restaurant - including providing separate air handling and ventilation systems.

"It's a fairly consistent approach to what has been going on in Southern Nevada," he said. "You can create a smoking area by having a completely enclosed area with no smoke infiltration."

Hackett said, "They're trying to create a new type of restaurant where smoking is going to be allowed."

He said that violates the clear intent of voters who approved the act banning smoking in nearly every public building in the state.

The group Smoke Free Gaming, which advocates smoke-free environments for gaming employees and patrons, also accused the health division of drafting regulations that would violate the act.

"Not only are the health agencies misapplying the law, they are gutting it," said Stephanie Steinberg, head of the organization.

Wadhams, however, pointed out that the statute isn't etched in stone because of voter approval. He said it can't be changed for three years following passage but, after that, can be modified by the state. The act was approved in November 2006, more than three years ago.

The Nevada State Health Board hearing on the regulations begins at 9 a.m. today, video-conferenced to Room 2134 in the Legislature in Carson City as well as the Grant Sawyer Building in Las Vegas. The American Cancer Society and other anti-smoking groups are expected to testify.