Judge upholds Nebraska's indoor smoking ban - Omaha.com
Published Wednesday, September 18, 2013 at 12:00 am / Updated at 4:35 am
Judge upholds Nebraska's indoor smoking ban

LINCOLN — Nebraska's indoor smoking ban has racked up a win against an Omaha pool hall that sought to have the ban declared illegal.

Lancaster County District Judge Jodi Nelson last week upheld the constitutionality of the statewide prohibition on smoking in public places. Big John's Billiards in southwest Omaha failed to convince the judge that the ban represented an illegal taking of rights from the business.

The Legislature's intent, when it passed the ban in 2008, was to protect the health, safety or welfare of the citizens of Nebraska, the judge wrote in her dismissal of the lawsuit.
“This is an entirely permissible, legitimate exercise of the state's sovereign power,” Nelson said.

Two years ago, the same judge ruled that the state misused its power when it allowed smoking to continue in cigar bars, motel rooms and tobacco stores. The judge ruled that the exemptions represented unconstitutional special legislation.

Nebraska Attorney General Jon Bruning, who defended the smoking ban, will now file a second appeal of the 2011 ruling on exemptions. The Nebraska Supreme Court declined to rule on the first appeal because the larger lawsuit had not yet been decided.

Ted Boecker, the attorney for Big John's, said Tuesday he was disappointed that the judge failed to strike down the overall smoking ban. His clients are now hopeful that the state's high court will agree that allowing smoking at some businesses while banning it in others is patently unfair.

If the exemptions are struck down, state lawmakers will have to revisit the issue.
“In the real world, there is an economic impact from these statutes,” Boecker said.

Cigar bars and other exempted businesses have continued to operate while the case is being litigated.

Bill Prout, co-owner of Big John's, said the smoking ban has cut his revenues by nearly a third. For three months last winter, when Big John's openly ignored the ban, business increased by 20 percent, he said.

Prout was cited and fined for violating the smoking ban. He has appealed the fine in Douglas County District Court.

The lawsuit challenging the smoking ban named as defendants the Nebraska Department of Health and Human Services, the State Liquor Control Commission and the Douglas County Health Department.

By enforcing the ban, the state impaired Big John's ability to generate the revenue to pay its vendors and landlord, the lawsuit alleged. The business was forced to close a Lincoln location after the ban took effect.

But the judge said the smoking ban did not prevent Big John's from operating as a billiards hall, bar and restaurant.

“Allowing smoking in the business is not a substantive right,” the judge ruled.
She also cited rulings from courts outside Nebraska that upheld local and state smoking bans.

Contact the writer: Joe Duggan

joe.duggan@owh.com    |  

Joe works in the Lincoln bureau, where he helps cover state government, the Legislature, state Supreme Court and southeast Nebraska.

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