All kinds of weird things are going on with the smoking ban.
To review, last November, Nevada voters passed a new anti-smoking law, the Nevada Clean Indoor Air Act, which bans smoking in all indoor restaurants, bars and taverns that serve meals, and the slot machine sections of supermarkets and convenience stores, video arcades, shopping malls, day-care centers, hospitals and medical offices, and on school grounds. (Read the whole story in QoD 11/27/06.)
Since then, this new law has unleashed a torrent of controversy and confusion. Southern Nevada Health District hearings over interpreting the bill and approving draft regulations have been extremely contentious. When tavern owners filed suit to get the law overturned, a District Court judge upheld it, but removed the criminal component for violations, which put the burden of enforcement squarely on the Health District. Lawyers for the bars continue to question that authority; their challenge of the constitutionality of the law itself might be headed for the Nevada Supreme Court.
Meanwhile, the Health District and its lawyers struggle to balance objections, complaints, and enforcement. One solution surfaced recently: The District announced that establishments could use a wall to separate smoking and non-smoking areas. Previous to their clarification, it was believed that two discrete buildings were required to comply with the anti-smoking regulation. A number of restaurants and bars are now undergoing construction to separate smoking in the drinking and gambling areas from food in the restaurant.
Another little twist to this issue is a new permit that allows establishments to offer alternate hours of smoking and non-smoking. The permit requires that bars "post hours of smoking and non-smoking and allow for a period of one complete air change" between the two. One problem with the permit is that it doesn't specify the amount of time required for the air change; that depends on the air-purification systems and the size of the business. (An air-quality expert maintains that smoking can be allowed one hour after the end of food service.) Magoo's bars and rumjungle at Mandalay Bay have been issued the permit.
Meanwhile, the Health Department is still developing the regulations, and the potential penalties seem to be growing more punitive. The latest batch calls for a hearing process for violators, increased fines, even liquor-license revocation. Worse, the smoking ban might be added to the Health District's food regulations, which would mean that fines could start at $500 and rise to $6,000 a day for repeat offenders, sanctions based on solid-waste violations.
For now, because enforcement is basically overseen by owners and employees of the establishments themselves, compliance also remains a thorny issue and seems to be all over the map, in terms of which bars look the other way and which don't. For example, smoking "paraphernalia," such as ashtrays, must be removed, but it's reported that some bars provide paper and Styrofoam cups, shot glasses, condiment trays, and creamers for cigarette ashes and butts.
That pits tavern owners against each other, where one bar kicks out smokers, only to watch them walk across the street to another bar where they're welcome. And it's not just some taverns themselves that are experiencing a loss of business over the smoking ban. Slot route operators, as well, have seen their business drop off dramatically. Herbst Gaming, for example, claims a 15%-20% decline in revenues so far this year, from lost business at convenience stores, supermarkets, and the like where patrons can no longer smoke at the machines.
As of a few weeks ago, the Health District had received more than 1,300 complaints from the public about illegal smoking around food. No fines have been assessed yet, but the Health District has announced that it’s currently identifying the worst 15 offenders, which will be given one more chance to comply. If they don’t, the punishment will begin.
One final note: While many bars and taverns have closed their kitchens, a lot of them will now provide you with menus from local take-out restaurants and are happy for you to order in a pizza or burger from an outside restaurant while you drink and smoke at their bar.
