Judge Allows Smoking Ban

A Nevada judge said Thursday that he will let a voter-approved smoking ban take effect in Clark County, but without criminal penalties.

Clark County District Court Judge Douglas Herndon issued a preliminary injunction against part of measure that would make it a misdemeanor offense to smoke in bars and restaurants, in slot machine sections of grocery and convenience stores, and at video arcades, shopping malls, schools and day-care centers.

The law still allows smoking on the gambling floors of casinos on and off the Las Vegas Strip.

Herndon said civil fines for smoking had been reviewed by courts in other states, and said he would not issue an injunction preventing individual smokers in Nevada from being ticketed by health officials. The fine for a conviction on a civil summons would be $100 under the initiative.

A lawyer for the Southern Nevada Health District said it was unlikely that anyone in the Las Vegas area would be issued a summons immediately.

"We're going to enforce by education first," health district lawyer Stephen Minagil said.

A trio of lawyers who challenged the initiative on behalf of more than 220 taverns, supermarkets and convenience stores said they wanted to review the judge's complex decision before commenting.

The ruling was expected to have a statewide effect well beyond the Las Vegas-area businesses that challenged the Clean Indoor Air Act. Law enforcement and health officials in other parts of the state delayed enforcement after Herndon imposed a temporary restraining order Dec. 7. That move prevented the act from taking effect Dec. 8 in the state's most populous county.

"We have not issued tickets," said Tracie Douglas, spokeswoman for the Washoe County District Health Department in Reno. "But we're doing a great deal of education and outreach."

"The whole state's in this together on a new level," she said.

Michael Hackett, an official with Nevadans for Tobacco-Free Kids and leader of the campaign for Question 5, declared proponents satisfied that Herndon let the law go into effect in public places in Clark County with civil penalties for violations.

"We appreciate the careful deliberation by Judge Herndon," Hackett said, "especially the effort taken to review smoke-free laws in other states."

The judge acknowledged that his ruling Thursday left key questions unanswered about the constitutionality of the Nevada measure, which was approved 54 percent to 46 percent on the Nov. 7 ballot.

He said he received many letters, e-mails and telephone messages, and characterized them as telling him, "this was the will of the people and the courts need to get out of the way."

But the judge said the Nevada initiative was stricter than smoking laws in cities such as New York and Tucson, Ariz., and states including New Jersey and Colorado.

It would be unfair for someone to be jailed on a smoking charge in Nevada while the constitutionality of the initiative was in question, he said.

He pointed to affidavits from Clark County Sheriff Bill Young and Henderson Police Chief Richard Perkins, which said the initiative left unanswered questions about how deputies and officers should enforce it.

"There would be irreparable harm if an unconstitutional criminal statute goes into effect," the judge said.

Herndon scheduled a Jan. 23 hearing to consider a request from defendants, including state Attorney General George Chanos, to decide whether the ban passes constitutional muster - a step that lawyers on both sides say would clear the way for appeals to the Nevada Supreme Court.

"This particular initiative has problems," Herndon said, "how things are defined, what isn't defined, how it's supposed to be applied."

"The public is probably going to get tired of this case as it is litigated."

Opponents including southern Nevada tavern owners say the ban
unfairly discriminates against certain businesses and does not make
clear whether smokers or business owners should be punished for
offenses. They suggested the state Legislature could write a law that would be constitutional and satisfy competing interests.

Health groups, such as the American Cancer Society, the American
Lung Association and the American Heart Association, which promoted
the smoking ban, argue secondhand smoke is dangerous.