Judge to Weigh Nevada's Smoking Ban Arguments - 8 News NOW

Mark Sayre, Investigative Reporter

Judge to Weigh Nevada's Smoking Ban Arguments

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The debate over a new smoking ban took all day in court Tuesday. Attorneys made arguments for and against the Nevada Clean Indoor Air Act. A ruling is expected when the judge resumes at 3 p.m. Wednesday.

You can watch live streaming video of the hearing on LasVegasNOW.com.

Legal heavyweights battled it out in front of the judge with the state's voter-passed smoking restrictions hanging in the balance.

The question District Court Judge Doug Herndon is trying to answer is whether the new smoking ban unfairly targets some businesses and violates their constitutional rights.

The decision will have a big impact on hundreds of establishments

The hearing began shortly after 9 a.m. Tuesday in front of District Court Judge Doug Herndon who will decide whether the smoking ban is constitutional.  Currently, the ban is on hold due to a restraining order.

The deadline for all briefs and motions in this high-profile case was 12 p.m. Monday. 

Nevada's Attorney General George Chanos turned in a 40-page document Monday refuting point-by-point claims submitted last week by attorneys for Clark County tavern and bars owners. 

They are arguing they will suffer irreparable financial harm if the smoking ban goes into effect. But in its response, the Attorney General says all the potential harm is purely "speculative."

The A.G. Chanos also says that perfectly valid health and safety laws sometimes mean that owners of property may not get the maximum economic return.

Read the Attorney General's Response to the Question 5 Lawsuit.    

Nevada voters approved Question 5 by a margin of 54-to-46 percent in November's election.

It calls for a smoking ban in all public places, except in gaming areas of major casinos and in bars that do not serve food.

Attorneys for bars and taverns claim the law violates both their "due process" and "equal protection" rights under the U.S. Constitution.

UNLV law professor Peter Bayer says an "equal protection" claim needs to be very specific. "The core of an equal protection claim has a strong similarity to due process. It asks fundamentally "has the government treated different groups fairly." 

Bayer continued, "The challenger, the plaintiffs will say, I am being treated differently from other groups, which are similarly situated. That is there are no meaningful differences, and yet I have to do something that the other groups don't have to do or they get something that I don't."

The attorney general weighed to the fray with his 40-page brief. It says the culture of Nevada has changed and specifically contradicts the legal claims made by bars and taverns.

Attorney General George Chanos says:

  • "This fear about the potential economic losses is only speculative."
  • The "plaintiffs are trying to shoehorn themselves into the casino exemption."
  • And says "social and economic legislation... carries with it a presumption of validity that can only be overcome by a clear showing of arbitrariness and irrationality."

Law Professor Peter Bayer added, "The courts grant the government extreme leeway. The presumption is that the legislation is lawful and the challenger has an extremely heavy burden to prove that it isn't."

Bayer said the judge may simply "clarify" the law, while careful not to actually rewrite it. "So I would be very hesitant to strike this will of the people as unconstitutional," he said. 

The Nevada Resort Association has also weighed into this case. Big hotels and casinos are concerned that the lawsuit filed by the bars and taverns could actually extend the smoking ban to hotel and motel rooms.

All the biggest players and most influential law firms are now involved in the debate.

Judge Herndon's three most likely options:

  • Issue preliminary injunction, set trial date.
  • Deny the motion and allow law to go into effect.
  • Take under advisement.

This issue continues to generate a lot of interest. Catch up on what Nevadans are saying and then weigh in on your opinion.

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