Clark County District Court Judge Douglas Herndon said Thursday a preliminary injunction will be issued in the Question 5 smoking ban case. This means he will allow the voter-approved smoking ban to take effect in Clark County but without criminal penalties.
In court Tuesday, the state and health advocates were on one side and bars and restaurants were on the other. Both sides argued for much of the day over whether the new ban is constitutional.
The judge's decision was expected Wednesday afternoon, but that hearing was postponed until Thursday morning.
The measure passed in November with 54-percent of Nevadans voting to ban smoking in establishments that serve food. But a number of business owners and their attorneys are pulling out all the stops to prove the new law will do more harm than good.
At issue is the new anti-smoking law drafted to protect Nevada children and non-smokers from secondhand smoke.
But lawsuits filed by Clark County business and tavern owners, represented by an army of attorneys, has lead to this showdown in the courtroom.
Mark Ferraro, business owners' attorney, said, "If this injunction is not granted, then my clients have a difficult choice. Do they continue to serve food, expose themselves to criminal prosecution if they want to allow smoking, or cut out smoking, drive customers away, or shut down a kitchen and lay off employees?"
Christine Guerci, Nevada Attorney General's office, said, "Approximately 76-percent of Nevadans are non-smokers. Plaintiffs are fearing that their clients, who come from a limited 23-percent of Nevadans, will leave their establishments, and that the other 76-percent of Nevadans who want to go to a smoke-free environment won't replace them."
Also in question is the matter of confusion. Opponents question how the new law would be enforced and whether law-breaking smokers, or business owners would be ticketed for the misdemeanor offense, if caught.
Don Campbell, tavern owners attorney, said, "You can't leave it to the cop on the beat making the decision based upon a number of factors that he thinks are in the law, but may be not in the law."
Supporters and health officials are asking Clark County District Court Judge Douglas Herndon to re-instate the ban on smoking in bars, stores and malls. If re-instated, the law would allow smoking in the gambling areas of casinos in and around Las Vegas.
The decision is expected to have a statewide effect and could be headed for an appeal to the state Supreme Court.