News
Supreme Court gives cigar bar owners chance to argue against smoking ban
Friday, September 26, 2014
Omaha World-Herald
The state’s high court is giving cigar bar and tobacco shop owners one last chance to argue why they shouldn’t be required to snuff out smoking in their establishments.
Earlier this week the Nebraska Supreme Court approved a request by eight businesses to submit arguments to the court about why an exemption allowing smoking in cigar bars and tobacco shops should not end.
Last month, a divided court struck down the exemption. In a 5-2 ruling, the court said that allowing such an exemption was unconstitutional “special legislation” that ran counter to the purpose of the Nebraska Clean Indoor Air Act, which is to protect the public from secondhand smoke.
The Nebraska Attorney General’s Office, which defended the existing law and exemptions, asked the court to reconsider its ruling, arguing that the court had created a new and “unworkable” test for special legislation that would rule out almost any exemption to a law.
The attorney general’s appeal also said the court did not give “proper deference” to the will of the State Legislature.
On Sept. 12, four days after the attorney general weighed in, a group called the Nebraska Premium Tobacco Association requested that it be allowed to submit arguments.
The group, representing eight cigar bars and tobacco shops, argued that the high court had not been adequately advised about the economic hardships that an end to the exemption would cause for such businesses. The court’s decision “effectively bans their businesses,” said the request by the cigar bar owners.
Jeff Doll of Safari Cigars and Lounge in northwest Omaha said that cigar sales represent about 50 percent of his business and that it wouldn’t make sense to remain open without allowing cigars to be smoked.
“My clientele is mostly people who want to smoke a cigar in a comfortable place,” Doll said. “If you can’t have that, I don’t have (a business).”
He added that he was thankful the Supreme Court is allowing the cigar bar owners to state their case. Doll said they didn’t step forward earlier in the legal battle because they didn’t expect it to result in an end to cigar smoking on their premises.
“We kind of got caught flat-footed,” he said.
The challenge to the cigar bar exemption was mounted by Big John’s Billiards, which objected to the cigar bar bill passed in 2009 because state lawmakers didn’t provide an exemption for billiard halls. The main difference: billiard halls serve food; cigar bars, by law, cannot.
Big John’s won the battle — a majority of the court’s judges agreed that cigar bars had been given a special exemption — but it hasn’t won the war to allow smoking in billiard halls.
The Supreme Court’s decision to allow the cigar bars to present their point of view at this late date is rare, Doll and others said.
It would be even rarer for the Supreme Court to overturn its own ruling.
If that doesn’t happen, there is a Plan B to allow smoking to continue in cigar bars.
State Sen. Tyson Larson of O’Neill said he’s hoping to introduce legislation in the 2015 session to restore the exemption for cigar bars and tobacco shops.
Larson said his plan has a couple of “ifs”: He would need to be re-elected in November, and then would introduce a bill only if he is elected chairman of the Legislature’s General Affairs Committee, which oversees tobacco issues. He hasn’t yet announced his candidacy for that chairmanship.
But even if those things don’t happen, he said, he expects another senator will try to restore smoking in cigar bars.
Larson said he was “baffled” by the Supreme Court’s ruling, because the Legislature made it clear that it wanted qualified cigar bars and tobacco shops to be exempted from the smoking ban.
“If the Supreme Court wants to legislate from the bench, maybe they should be paid what legislators are paid,” the senator said. That would be $12,000 a year for lawmakers, which is officially a part-time position; Supreme Court judges are paid $160,540 per year for what is a full-time post.
Larson said he agreed with the court’s minority opinion, which stated that it was “common sense” to continue to allow smoking at tobacco shops, because they dispense only products that produce smoke. Patrons of such shops have chosen to expose themselves to smoke, said the minority opinion.
Larson said the same logic should extend to cigar bars.
“Anyone who goes into a cigar bar knows they’ll inhale smoke. You know the hazards when you walk in,” he said.
