High court stubs out state appeal for cigar bar smoking

Thursday, November 13, 2014
Lincoln Journal-Star

Cigar bar owners across Nebraska will put an end to indoor smoking in the coming days after a last-ditch effort to preserve the right failed this week.

The Nebraska Supreme Court on Wednesday denied without comment a request by the state to rehear the Big John's Billiards v. Nebraska case, the latest legal challenge to the state's indoor smoking ban by the Omaha pool hall.

State senators in 2009 created exceptions to the 2008 smoking ban allowing smoking inside cigar bars and tobacco shops.

In a split decision Aug. 29, the high court declared those exceptions unconstitutional.

Attorney General Jon Bruning's office responded to that decision with a request for another hearing, arguing the court had erred in its decision.

Liz Eberle, a spokeswoman for the attorney general, had no comment Thursday on the court's decision.

Nebraska's 12 active cigar bars got an indoor smoking extension last month when state liquor regulators allowed them to continue operating while the court considered the request.

Those bar owners now expect decreased revenues and hope senators will address smoking in cigar bars in the upcoming session.

"We knew it was coming,” Jason "Hutch" Hutchison said Thursday. "We were operating on borrowed time.”

Hutchison is co-owner of Jake's Cigars and Spirits in Lincoln and Omaha.

In the August ruling, Supreme Court Judge Kenneth Stephan called the reasoning for the smoking ban exemptions directly contrary to the 2008 Nebraska Clean Indoor Air Act's purpose, which was to outlaw smoking in public buildings and places of employment.

Immediately after the August decision, Hutchison and other bar owners thought they had until the end of October before having to ban smoking, when their state-issued specialty liquor licenses were set to expire.

Bar owners began operating on borrowed time when assistant attorneys general in September asked for a rehearing of the case. The attorneys argued that the court's ruling erred in adopting a new special legislation test that, rather than looking at why the exceptions were created, focused instead only on the purpose of the smoking ban.

Special legislation is any law that grants privileges to some entities but not others and is prohibited by state law.

“The effect of this Court’s opinion is that few, if any, exemptions can ever be created,” the attorneys wrote in their request.

The court then allowed the Nebraska Premium Tobacco Association to weigh in on the rehearing request, a measure that helped buy the bars time.

In an Oct. 21 letter to bar owners, Nebraska Liquor Control Commission Executive Director Hobert Rupe said cigar bar owners could continue to allow smoking as the court considered the request for rehearing.

Rupe said those owners would need to return their special licenses to the commission if the high court issues a mandate in the case, putting its decision into full effect.

The bars will get a different liquor license in exchange, he wrote in the letter.

Rupe didn't respond to a request for comment Thursday.

Bar owners interviewed Thursday said they'll allow smoking on a day-by-day basis while they await a mandate from the court, which might come in the next 10 days.

Rich Bar and Lounge owner Lawrence Chatters said it's a sad day to be one of the state's hookah bars, like his, which operated under the cigar bar licenses.

Hutchison said he hopes state senators will find a workaround that would allow patrons at Jake's and other cigar bars to "enjoy the freedom that they deserve.”

His shop stands to lose at least 10 percent of revenues, in a best-case scenario, he said.

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