Judge Rules Nevada Smoking Ban is Constitutional - 8 News NOW

Edward Lawrence, Reporter

Judge Rules Nevada Smoking Ban is Constitutional

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The smoking ban law is constitutional. A judge Tuesday morning upheld the Nevada Clean Indoor Air Act passed by voters last November.

The court hearing lasted about two hours. When the dust settled taverns and restaurants, in addition to schools, movie theaters, and the airport must become smoke free.

Click here for the Nevada Clean Indoor Air Act Complaint Form

He reiterated his previous ruling, that criminal charges can't be imposed on people who violate it but that civil penalties -- fines -- can be.

The judge ruled the criminal aspect of the law is unconstitutional, meaning no one will go to jail for smoking. He also ruled the civil penalties were constitutional, meaning smokers could get a $100 ticket.

Christine Guerci-Nyhus, Chief Deputy Attorney General, says businesses in Northern Nevada followed the law while taverns and restaurants in Southern Nevada largely ignored it.

"We are pleased because the law gets to go into effect. That means everyone has to comply. Businesses have to comply. Individuals have to comply. There's no criminal penalties but there are civil penalties," said Guerci-Nyhus.

The argument in court centered around splitting the law, throwing out the criminal penalties while keeping the civil fines.

"The voters would have wanted the statute to stand with the unconstitutional portion marked out," said Guerci-Nyhus.

The debate became heated at one point with verbal assaults launched at the court.

Mark Ferrario, the Tavern Association Attorney said, "It's not the province of the court to figure out what these voters wanted and start playing king and hacking the statute up. That is exactly what you were doing."

In the end, the judge ruled with the majority of voters who passed the Nevada Clean Indoor Air Act last November.

Pleased? Not pleased? Post your comments the Nevada Smoking Ban blog.

Judge Doug Herndon, District Courts said, "So is separating out a criminal penalty and allowing a civil penalty to stay. Allow the measure to go forward with its full operation and purpose which is to ban smoking. Yes, I think it can be done."

It's a blow to Sean Higgins. He owns Three Angry Wives and has seen a slight decrease in business now that the tavern is non-smoking.

"We obviously have to start deciding how we are going to do this. Are we going to build outdoor patios for smoking or stop serving food?" said Higgins.

The choices will either cost money or jobs.

The businesses have options. The owners meet last week with the Southern Nevada Health District. The county agency is developing guidelines for businesses. Those guidelines went to the printer Tuesday and will be mailed out Wednesday.

The Health District also added a complaint form online. It will track businesses with a lot of complaints and make visits to catch smokers breaking the law.

Email your comments to Reporter Edward Lawrence.

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