Nevada SC upholds smoking ban, rejects criminal sanctions

By Chris Rizo | Sep 25, 2009

Nevada Supreme Court building

CARSON CITY, Nev. (Legal Newsline)-The Nevada Supreme Court on Thursday said the state's ban smoking indoors is constitutional, but rejected criminal prosecutions to uphold the voter-approved law.

The high court said in a 34-page opinion that while civil actions can be taken against violators, the state cannot prosecute to enforce the measure, approved in 2006.

Business interests sued, challenging the law saying that the indoor smoking ban tramples their equal protection guarantees because it exempts gambling areas in large casinos, stand-along taverns, brothers, smoke shops and strip clubs.

The justices rejected their argument that there was no reason that smoking should be allowed in some casinos based solely on what type of gaming license the business holds.

The justices said the rule is legal because, among other things, minors are prohibited from gambling areas in large casinos.

The court said it is OK to ban smoking in large casinos because gambling is the primary business of holders of nonrestricted gaming licenses, which allows 16 or more slot machines and table games.

"Restricted gaming licenses, however, offer gaming only incidentally to their other primary business, which makes it much more difficult, if not impossible, to provide an exclusion from the smoking ban for the gaming areas," Chief Justice James Hardesty wrote for the court's majority.

The law was challenged by businesses including: Flamingo Paradise Gaming, Terrible's Hotel and Casino and the Nevada Tavern Owners Association.

At trial, Clark County District Judge Douglas Herndon upheld the civil penalties imposed for violating the Nevada Clean Indoor Air Act of 2006. As for the criminal penalties outlined in the law, he said they are unconstitutionally vague.

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

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