News
Judge dismisses Omaha pool hall's smoking ban lawsuit
Monday, September 16, 2013
Lincoln Journal Star
An Omaha pool hall owner lost his fight against a statewide smoking ban in court Friday, but an earlier decision in the case now could have bigger implications for cigar bars, tobacco stores and hotels.
That's likely little consolation for Big John's Billiards, which also had a pool hall in Lincoln and has fought the smoking ban since Lincoln enacted one in 2006. The business expanded its lawsuit after the statewide ban went into effect in 2009.
In court, Ted Boecker, the attorney representing Big John's, argued the business had a right to allow smoking and that not being able to had reduced its revenue.
On Friday, Lancaster County District Judge Jodi Nelson rejected Big John's claims, finding the smoking ban a permissible, legitimate exercise of sovereign power.
"Even if the court had found that the act somehow impaired plaintiff's contracts, the act is reasonable and necessary to the furtherance of the important public purpose identified by the Legislature, of protecting the public health and welfare of the citizens of the state," she wrote in dismissing the case. "Plaintiff's claim that the state has unconstitutionally interfered with its contracts is wholly without merit."
Boecker did not return a message seeking comment Monday afternoon.
Even if the pool hall doesn't appeal to the Nebraska Supreme Court, the state plans to because of a 2011 ruling in which Nelson struck down exceptions to the ban lawmakers had carved out for certain businesses.
In that order, she found certain exceptions to the statewide ban -- specifically those that allow smoking in cigar bars, tobacco stores and some hotel rooms -- unconstitutional special treatment for those businesses.
Two days later, the state appealed. But the Nebraska high court eventually sent the case back to the district court, saying there wasn't a final order for the state to appeal.
Friday's order opened the door for the state to do that.
Reached late in the afternoon, Shannon Kingery, a spokeswoman for the Nebraska attorney general's office, said an appeal was planned.
"We are pleased the court granted our motion for summary judgment and are preparing our appeal to the previous ruling," Kingery said.
State law bans smoking in public buildings and private businesses, including bars and restaurants. As passed, the law included exceptions for cigar bars, some hotel rooms, tobacco-only retailers and facilities that research the health effects of smoking.
On Monday, it wasn't yet clear how long it would be before the exceptions would go away.
Those in favor of the exceptions have argued that the nature of cigar bars, tobacco stores and hotels is different from those of businesses covered by the ban.
Indoor areas used in connection with research on the health effects of smoking conducted in a laboratory still would be allowed.
