News
Justices hear challenge to pool hall's smoking ban case
Wednesday, May 28, 2014
Lincoln Journal-Star
Cigar bars would close if their state smoking ban exemption was struck down as unconstitutional, attorneys for the state told the Nebraska Supreme Court Wednesday morning.
"Cigar bars would go out of business if people couldn't smoke cigars (there)," Assistant Attorney General Dale Comer said in oral arguments for Big John’s Billiards v. State of Nebraska.
Comer asked the justices to uphold the constitutionality of the whole Nebraska Clean Indoor Air Act, which was passed in 2008 and then challenged by the Omaha-based pool hall.
The justices will decide whether to uphold a Lancaster County district judge’s September 2013 decision that called the 2009 exceptions for hotel rooms, tobacco-only retailers and cigar bars unconstitutional.
Comer argued that the exemptions are vital to protecting an economic interest for the state, but attorney Ted Boecker called them a special protection that goes against the smoking ban's initial intention.
“Cigar bars existed for a year subject to a smoking ban,” said Boecker, who represents Big John's and noted that there were three then.
“They didn’t go out of business.”
But, he said, his client's "working class" billiards hall in Lincoln did.
Currently, there are 11 active cigar bars across the state, according to Nebraska Liquor Control Commission license data.
Comer argued the cigar bars provide jobs and tax revenue for the state.
“Isn’t that the same argument pools halls could make?” asked Chief Justice Michael Heavican.
Comer responded that the cigar bars would suffer if patrons weren't allowed to smoke cigars indoors because that revenue is crucial to their continued operations.
At pool halls, that's not the case, he argued, saying a pool hall that wanted to allow cigar smoking inside could get a cigar bar license.
It would also have to get a humidor, and cigar sales would need to comprise at least 10 percent of total sales.
Boecker said the exemptions run counter to the original intention of the smoking ban's authors, who wanted to eliminate employee exposure to second-hand smoke indoors.
“You can’t say the health of waitresses in a cigar bar is worth less than the health of a waitress in a pool hall,” he said.
He hopes the court will affirm Lancaster County District Judge Jodi Nelson's ruling, which found the smoking ban exceptions law unconstitutional and that the exemption could be severed from the ban.
Boecker said if lawmakers wanted to only reduce indoor smoke exposure and not outlaw it, then the provision should remain unconstitutional and the issue should return to lawmakers.
“Give the Legislature another bite at the apple to reflect new purpose,” Boecker urged the justices.
The Supreme Court will rule later on the case.
