IPFS Vin Suprynowicz

The Libertarian

Vin Suprynowicz

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Four months ago, Nevada voters approved by a 54-46 margin Question 5, which prohibits tobacco smoking in nearly all public places in the state, including restaurants and bars that serve food. (Though brothels and casino floors are exempted -- the latter a savvy compromise to neutralize opposition from the deep pockets of the state’s powerful casino interests. Why the ladies of the evening are considered immune from the supposed dangers of “second-hand smoke” remains unclear.)

As with any prohibitionist measure, the law is already generating unintended consequences. The owners of many a tavern where food was previously served as a loss leader, unwilling to drive away smoking customers, have simply closed their kitchens, laying off blameless cooks and waiters. Presumably these Nevadans are now enjoying the smoke-free air of the unemployment lines.

Tavern owners filed suit to get the new law overturned. A District Court judge upheld the law but removed the criminal penalties on constitutional grounds, leaving the county health districts with sole enforcement duties.

Surprise -- it appears the prohibitionists neglected to have voters consider the added enforcement costs for the health districts -- a tax impact which could well have spelled the measure’s defeat, if the cost of apprehending and fining tens of thousands of smokers currently practicing nonviolent civil disobedience in Nevada eateries had been accurately forecast.

Not to worry. The Clark County Health District may not have the funds to pay inspectors to wander the valley’s thousands of taverns at night or on weekends. (In fact, they have issued not a single $100 fine to date.) But administrators there have come up with a two-birds-with-one-stone remedy: The District now proposes to dragoon tavern owners into becoming its unwilling enforcement agents -- and to simultaneously raise the loot to pay for this new enforcement regime -- through the simple expedient of marking down the grade on a restaurant’s “report card” if tavern owners are found to tolerate smoking in their premises, while also extorting an additional $600 “administrative fee” from any illegal smoker, as well as a penalty of $500 to $5,000 from any food-serving enterprise where customer smoking is found to continue.

The only problem with this set of proposals is that it has no discernible authorization in law.

Question 5 makes it clear restaurant and tavern owners are obliged to remove their ash trays and matches and post “No Smoking” signs. (Actually, even this is not all that clear -- what about taverns that are also licensed as “casinos”?) But the voters did not approve the imposition of any other penalties or unpaid conscript labor obligations on these businessmen -- and the prohibitionists certainly did not make clear to voters that restaurateurs or their waitresses are now obliged to play “bouncer,” expelling or risking fisticuffs with patrons who are willing to risk a $100 fine to practice civil disobedience in defiance of this new and fiscally unwise prohibition.

Were the words “and government agencies can do anything else deemed necessary to meet this goal, no matter what the cost” on the ballot? We can’t find them.

The notion that the Health District has the power to lower a restaurant’s letter “grade” -- an inspection system Nevadans rely on to determine if kitchens are clean and food properly stored -- based on nothing but a customer smoking violation, is particularly odd. Many a Nevada restaurant opens onto a casino floor, where smoking is still allowed. If tobacco fumes wafting from a nearby slot machine really downgrade the “healthfulness” of a restaurant’s food, will every restaurant located in a casino premises now be automatically marked down, making an “A” rating impossible? Why not?

“I know why they jumped off this way,” answered attorney Bob Peccole at a Tuesday “workshop” on this daffy new proposal. “They believe the minute they start talking $500, $600 and $1,000, they are going to force the owners to stop the smoking,” said Mr. Peccole, who represents Bilbo’s Bar & Grill. “But there is nothing in that statute that requires owners to do that. ... I’ve looked at their statutes, and there is nothing that gives them the authority.”

What degree of “smoke exposure” would result in a lowered inspection grade, Mr. Peccole asked. “Do you have a measuring device?”

Other attorneys present at the workshop also voiced doubts that the District has the authority to adopt these wide-ranging new enforcement schemes, absent specific legislative authorization and funding.

Confirming the totalitarian nature of the prohibition, John McDonnell, owner of Lucky’s Tavern, said at the workshop that the reluctance of some tavern owners to get tough with smoking customers “is hurting businesses like mine that are complying.”

Really? Absent more draconian enforcement measures than voters approved or the courts will allow, customers still vote with their feet, preferring to go somewhere where some freedom remains? What a shock. And what is the answer of any totalitarian regime? Why, harsher penalties, of course, while stomping out those exasperating remaining islands of free choice. What shall we try next -- a smokers’ resettlement camp?

If the Health District continues to make stuff up as they go along, they will invite further litigation, and rightly so. If the prohibitionists failed to seek voter authorization for vast new funds to enforce this measure -- a tax impact which could well have spelled defeat for the measure if properly spelled out -- that’s just tough.

They have their law. It will never work -- any more than alcohol Prohibition stopped the use of demon rum, 80 years ago. But they now must live with what they wrote, not what they wish they’d written. The voters did not authorize, “Wait, we’ve got a better idea; let’s try this ...”