In a two-fold decision, Clark County District Court Judge Douglas Herndon issued preliminary injunction against part of measure that would make it a misdemeanor offense to smoke in bars and restaurants that serve food, 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.
However, he decided to allow civil penalties, which means a smoker breaking the law faces a $100 fine but will not face jail time.
The ruling represents a win for both sides, but a victory for the voters who supported Question 5 in the November election.
Stephen Minagil, attorney for the health district, said, "The will of the people to make restaurants smoke-free is going to happen now."
The Southern Nevada Health District will enforce the smoking ban, but Minagil added that does not mean they will become the smoking police out waiting to write a ticket.
"We sit down with people. We talk with them; educate them about the laws and requirements. We work with them to get them under the regulatory umbrella," Minagil explained.
Chief Deputy Attorney General Christine Guerci-Nyhus says it's a short learning curve. "The initiative goes into effect. Businesses need to comply. There are no criminal penalties attached, but there are still civil penalties a $100 violation," she stated.
In the order, Judge Doug Herndon specified that the smoker would get the fine. Business owners only have to remove the ashtrays and post a no smoking sign.
Still, the owner of the Three Angry Wives bar and restaurant wants to look over the ruling before commenting. "We need to understand what this means to us. We have to go back and forth with our attorneys. We need to understand what this means," Sean Higgins said.
The judge believes this is only part of the court process for this law. He said the first step was when the Nevada Supreme Court allowed it to be on the ballot.
Judge Herndon acknowledged that his ruling left unanswered key questions about the constitutionality of the measure, which was approved 54 percent to 46 percent as Question 5 on the Nov. 7 ballot.
An appeal and any court action disputing a future violation could be a next step.
The order does not become final until the judge signs it, and that can't happen until the transcripts on this week's hearing are complete. The written order is expected to happen sometime late next week.
This decision represents only the second step in a long process of likely court challenges, according to the judge. The health department says it's a step in the right direction.
Judge Herndon said, "The constitution is not just a piece of paper. It is not something that you learn about in school and set aside when it's inconvenient to consider."
Herndon says it's the role of judicial branch to make sure laws are legal and contribute to the checks and balances system of democracy.
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.
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