Supreme Court: Smoking in Cigar Bars, Tobacco Shops is Unconstitutional

MGN Online
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The Nebraska Supreme Court has struck down two exceptions to the state's public smoking ban, dealing a blow to cigar bars and tobacco shops, but sparing the exception for some hotel guestrooms that allow smoking.

The decision Friday came in the case of Big John's Billiards, an Omaha pool hall, whose owner sued after Nebraska enacted a statewide public smoking ban in 2009. The law bans smoking in all public buildings and private businesses, including bars and restaurants. However, the law provided exceptions for cigar bars, some hotel rooms and tobacco-only retailers.

In a split decision, the state's high court found that the exception for hotel rooms is permissible, because hotel guestrooms are akin to private homes. But it found the exceptions for cigar bars and tobacco retailers unconstitutional.

Three indoor areas were originally exempted from the smoking prohibition:
(1) Guestrooms and suites that are rented to guests and are designated as smoking rooms, except that not more than twenty percent of rooms rented to guests in an establishment may be designated as smoking rooms.
(2) Indoor areas used in connection with a research study on the health effects of smoking conducted in a scientific or analytical laboratory under state or federal law or at a college or university approved by the Coordinating Commission for Postsecondary Education.
(3) Tobacco retail outlets.
As defined by the Act, a “tobacco retail outlet” is “a store that sells only tobacco and products directly related to tobacco.

In 2009, the Legislature added a fourth exemption for “cigar bars,” which are defined as “an establishment operated by a holder of a Class C liquor license” which “does not sell food,” “annually receives ten percent or more of its gross revenue from the sale of cigars” and related tobacco products other than cigarettes, “has a walk-in humidor on the premises,” and “does not permit the smoking of cigarettes.” A cigar bar may serve alcohol.

In 2011 a Lancaster County Judge ruled all of the business exemptions were unconstitutional and only the research facilities should remain exempt.

Since then there have been several appeals before reaching the Supreme Court.