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Survival in the desert: Getting around a smoking ban

Posted by Kevin Fischer on Nov. 20, 2007

By Ashley Powers
Los Angeles Times Staff Writer

November 19, 2007

LAS VEGAS — Dale Wageman is the kind of barfly this city's taverns are desperate to woo. He likes to settle onto a bar stool each Saturday, glue himself to college football on the tube, and polish off beers. But to win him, Vegas bartenders must contend with his drinking buddy: a pack of USA Gold cigarettes.

A law voters approved a year ago has outlawed smoking in many business that sell food, including a number of bars and taverns. It drove Wageman to abandon his favorite watering hole.

To hang onto customers who smoke, bartenders have dreamed up all sorts of ways to evade the new rules. In lieu of now-prohibited ashtrays, they put out cups of water. They stock foil ashtrays in cigarette machines. They close their grills but, with a wink, hand out menus from nearby restaurants that will deliver to bar patrons.

The result has been a year of headaches for health officials untangling the Nevada Clean Indoor Air Act, a ballot initiative that seems to have left just enough wriggle room for bartender ingenuity. "They are trying to be imaginative so they can keep everything," said Stephen R. Minagil, the Southern Nevada Health District's attorney.

Voters, who approved the ban by 54%, turned down a less restrictive measure and ignored arguments that the law was the handiwork of relocated Californians.

The act bans smoking in most indoor places of employment, but not in strip clubs, brothels, casino gaming floors or bars that don't serve food. Nevada's law joined smoking prohibitions of varying toughness in 30 states and the District of Columbia.

Written to protect the public and workers from secondhand smoke, the law set off a small uprising among bar owners who argued that it unfairly harmed their businesses: They would either lose food revenue or customers who wanted to smoke, but pubs with enough slot machines to be considered casinos could continue to serve food while accommodating smokers.

In some Clark County bars, business plummeted by as much as 40%, said Joseph Wilcock, president of the Nevada Tavern Owners Assn. Wilcock said he poured $75,000 into creating separate spaces -- one that served food and one that did not -- at his Las Vegas watering hole, Brewery Bar & Grill. "We're trying to figure out a way we can all survive," he said.

Some spots -- including the Venetian's Tao and Mandalay Bay's rumjungle -- tried a split strategy: They served food during the day, but closed their kitchens at night to let club-goers light up.

Bilbo's Bar & Grill tested inventive legal arguments. In April, a health inspector found contraband ashtrays and matchbooks -- as well as two smokers -- at Bilbo's. The tavern argued that the ashtrays and matchbooks were 1st Amendment-protected advertising to no avail.

The bar and health inspectors clashed again. During a court hearing to determine whether shot glasses were doubling as ashtrays, attorneys placed an empty shooter on the witness stand. This time the judge sided with the bar.

The rules have proven to be so vexing that when the tavern owners association challenged them in court, law enforcement officers said they weren't sure how to enforce them. A tavern attorney unpacked a grocery bag and asked whether such mixed-drink mainstays as olives and oranges would be allowed under the law. (They are.)

The judge tossed out the law's criminal component, leaving health inspectors as its sole enforcers.

But the judge only has authority in the southern part of the state; elsewhere, sheriff's deputies can issue $100 citations.

"Look, they're not 'big government' people here," said David Damore, an associate professor of political science at University of Nevada, Las Vegas. "They're not going to go bar to bar to look for smokers."

The smoking ban incensed Wageman, the 52-year-old heavy-equipment repairman who has been looking for a new bar.

"It feels like you're a junkie if you go outside to smoke," said Wageman. He said he tried bars that used coffee cups as ashtrays. He tried staying home. He finally settled on a PT's Pub in suburban Henderson, which has a glass wall separating smoking and dining areas.

The pub is part of a large Nevada chain that addressed the smoking ban by installing ventilation systems and splitting up its spaces.

At the bar where Wageman now hangs out, each side of the glass barrier is considered a separate business, with distinct payrolls and workers. If Wageman wants a hamburger, he tells a bar waitress, who tells a restaurant waitress, who delivers his order. Although the health district is questioning that system, it's bonded Wageman to a bar stool for now. He's drained the pint in front of him; in an ashtray are three cigarette butts.


(I KNOW PEOPLE IN VEGAS READ MY BLOGS. I’M CURIOUS IF ANY HAVE A REACTION TO THIS STORY)