Putting out the fire from smoking ban

If you followed news coverage of the Nevada Clean Indoor Air Act in 2007, you probably got the impression that the voter-approved law wreaked havoc throughout the state, with jackbooted health inspectors depriving citizens of their rights and driving businesses into bankruptcy.

But it wasn’t really like that.

The act, approved by 54 percent of Nevada voters in 2006, actually was implemented with very few problems in the large majority of establishments where it applies, including schools, child-care centers, retail shops, supermarkets, convenience stores and movie theaters. In general, these places quickly complied with the new smoking restrictions and most everybody appreciated breathing fresher air.

It wasn’t a huge deal.

This, however, was not the case for one industry: taverns that serve food. Some of these folks had a tough time in 2007.

The law does not apply to taverns that focus on what taverns traditionally do best: serve alcohol. Go into one of these places and you can smoke like a fiend without fear of repercussions.

But for those taverns with a restaurant attached — the “bar and grill” formula — the law presented a challenge. If they wanted to continue to serve food in and around their bars, they would have to ban smoking. But if they didn’t want to ban smoking, they would have to wall off the restaurant area so secondhand smoke does not seep into the dining room.

Simple enough, right? But some of the taverns had a cow. Some dreamed up creative ways to skirt the law. A few took the defiant stance, challenging the authorities to force them to comply. When the authorities took up the challenge, the bars and their barflies screeched that their rights were under assault. It’s a losing battle, but no doubt they feel good about standing up to The Man.

The bigger tavern chains took the legal approach, challenging whether the law really says what it appears to say. They, too, face an uphill battle. Their only real hope will be to persuade the state Legislature to change the law in 2009.

The big picture, however, looks a little different from the skirmishes we’ve seen this year between health officials and disgruntled taverns. In the big picture, Nevada looks pretty darn good.

I’m still surprised. Back in November 2006 when the Nevada Clean Indoor Air Act came up for a vote, I figured it would lose. After all, this is Nevada, the last frontier, home of the live-and-let-live philosophy. And it’s a place where the percentage of smokers is well above the national average.

Yet a healthy majority of Nevadans upended the conventional wisdom, making it clear they don’t believe they should have to inhale other people’s cancerous pollution. What’s more, they bypassed a less-restrictive ballot measure in favor of the stricter one.

If you think about it, this wasn’t really that radical. In fact, Nevada voters acted in accordance with a basic tenet of libertarian philosophy. According to www.libertarianism.com: “Libertarians believe you should be free to do as you choose with your own life and property, as long as you don’t harm the person and property of others.”

That last clause is the clincher. Go ahead and smoke a hundred cigarettes a day in your house or car if that’s what you want to do, but if you’re smoking in public and thereby damaging the health of others, the presumption of freedom no longer exists.

I spent a little time recently talking with Stephen Minagil, legal counsel for the Southern Nevada Health District and the most prominent enforcer of the Nevada Clean Indoor Air Act. In the eyes of angry tavern owners, Minagil is the devil, or at least a royal pain in the butt.

But Minagil’s position is he’s just doing his job. He’s feeling his way through the thicket of legal interpretation just like everybody else. It’s been a tough year, but Minagil believes the issues are starting to smooth out.

“Every week gets better,” he says. “Every week the compliance is better. Every week the complaints are down. The people in the taverns are getting the idea.”

Minagil believes a set of specific guidelines for taverns statewide, slated to be issued early next year, will settle any outstanding questions. “We are really hopeful and feel good about the regulations,” he says.

Some tavern owners will never be happy, of course. The anti-smoking law is hurting their business, they believe. While similar laws did not damage the bottom line for taverns in other states, the Nevada Clean Indoor Air Act is having a fiscal impact on some of Nevada’s watering holes, although the overall economic downturn also is a factor.

It’s an unfortunate side effect of the law, and not to be taken lightly. One reason is that the law does not apply to casinos. If you want to smoke, eat and play slots all at the same time, you can still go to a casino. This puts the taverns at a competitive disadvantage.

But the solution is not to repeal the law as it applies to bar-and-grill joints. That would be a step backward for Nevada, which is among 24 states with expansive clean indoor air laws.

The answer is to level the playing field by expanding the act to include stand-alone bars and casinos. It won’t happen right away — the casinos, for their part, are too politically powerful. But eventually the public will demand it, and the bars and casinos will relent.

Like a lot of vices and bad habits, smoking will always be with us. That’s OK. Live and let live. But it doesn’t mean we must tolerate secondhand smoke in public venues where it’s an undeniable hazard to the health of others.

Ask anyone who’s contracted a serious illness or disease, and they’ll tell you the most important thing in life is your health. And the most important thing in our lives shouldn’t be sacrificed so nicotine addicts can light up wherever they please.

Geoff Schumacher (gschumacher@reviewjournal.com) is Stephens Media’s director of community publications. He is the author of “Sun, Sin & Suburbia: An Essential History of Modern Las Vegas” and, coming in February, “Howard Hughes: Power, Paranoia & Palace Intrigue.” His column appears Sunday.