News
High court asked to rehear cigar bar case
Tuesday, September 9, 2014
Lincoln Journal Star
The Nebraska Attorney General's Office on Monday asked the state Supreme Court to rehear the challenge to Nebraska's indoor smoking ban exemptions after the judges declared the exceptions for cigar bars and tobacco shops unconstitutional.
Assistant Attorneys General Lynn Melson and Natalee Hart said the court erred in its Aug. 29 decision that said those exemptions were contrary to the original intent of the the 2008 Nebraska Clean Indoor Air Act and constituted "special legislation," or laws that grant privileges to some entities but not others.
Special legislation is prohibited by state law.
The judges will now decide whether to grant a rehearing in the Big John's Billiards v. Nebraska case, which has already gone before the Supreme Court twice. Big John's has fought the state's smoking ban since its inception.
In their split decision, the judges noted that senators in discussion of the 2009 cigar bar exception said those establishments existed to allow smoking.
Writing for the majority, Judge Kenneth Stephan called that reasoning "directly contrary" to the Clean Indoor Air Act's purpose, which was to outlaw smoking in public buildings and places of employment.
Melson and Hart said the court adopted a new special legislation test that, rather than look at why the exceptions were created, focused instead only on the purpose of the smoking ban.
“The effect of this Court’s opinion is that few, if any, exemptions can ever be created,” Melson and Hart wrote.
“By definition, the Legislature’s purpose in creating an exemption will always be inconsistent with the purpose for a general rule or requirement.”
The assistant attorneys general also said the judges failed to properly consider the reason for the cigar bar and tobacco shop exemptions and cited legislative testimony that those businesses would fail to survive if their customers weren't able to smoke the products on-site as many do occasionally.
