Whew! Being a lawyer is a lot harder than you think, even if, like us, you’re just a fake lawyer! Anyway, we still have some Quick Hits, and here they are:
» Buffy Martin Tarbox, the government relations director for the American Cancer Society, sure is surprised a lot. When she heard about the lawsuit against the smoke banning Nevada Clean Indoor Air Act, she said she was "dumbfounded." And in today’s Review-Journal, the news that the Nevada Resort Association had come out in favor of the smoke ban (from which NRA members are conveniently exempt), left Martin Tarbox "perplexed and shocked."
Look, we’ve read her comments about the smoking issue from the beginning, and so we’re fully prepared to believe she goes through life in a perpetual state of confusion. But still, might not the cancer people want to get somebody a bit more, oh, seasoned?
After all, who in Nevada is perplexed or shocked that the NRA wants special treatment under law that benefits its members and screws the competition? We’re dumbfounded that anybody would be. It perplexes us. And shocks us. Or whatever.
» Meanwhile, Nevada’s prisons prepare to ban indoor smoking. State corrections officers must be so, so pleased.
» Peter "Chris" Christoff, still an idiot. In case anybody was wondering.
» And finally today, U.S. Sen. John Ensign is advocating an "oil trust" modeled after the Alaska Permanent Fund, which pays Alaska residents a royalty for living in a frigid wilderness. (New Rule: If they have to pay you to live there, the place is fucked up. Apologies to Bill Maher.)
Anyway, Ensign thinks that the $560 each Iraqi would get from splitting up to half the oil profits each year would give residents of that country an incentive to keep the pipelines open and undamaged and oil production booming. Not that it’s about oil, of course. Oh, no. Ensign is all about the people, you see.
And here’s how he can prove it: A Nevada Gambling Trust, which would split the profits of the state’s casinos (for which Ensign’s father, Mike, and Ensign himself have toiled) among residents. That way, we’ll have an incentive not to get pissed off when they do things like demand retroactive premises liability laws to get out of expensive judgments or join the fight to ban smoking in the Silver State.
Let’s see. According to the Gaming Control Board, the total win for Nevada casinos in 2005-2006 fiscal year was $12.1 billion. And according to the U.S. Census Bureau, the population of Nevada (as of 2005) was 2,414,807. Let’s add for population growth since and round it off at an even 2,500,000, shall we?
Now we know Ensign would want to be as generous with us Americans as with Iraqis, so we’ll go ahead and peel half of that gaming win for our new Nevada Gambling Trust, for a total of $6.05 billion. And divide that by 2,500,000 residents and that’s $2,420 for each Nevadan, and that’s just for one year!
Yet another reason we’d rather live in Nevada than Iraq. Now, if you’ll excuse us, we’re off to spend our gambling windfall!
As most of you regular readers know, we at Various Things & Stuff are not lawyers. We’ve received most of our legal education from JAG, the many Law & Order shows, L.A. Law, and the new (and surprisingly good) Shark with James Woods. Also, we covered state and federal courts for a time in Sacramento, Calif.
The point: We’re not lawyers. We just play them on this blog. So don’t take anything you read herein as legal advice.
But we feel compelled to give our decidedly non-professional legal take, after reading the Nevada Resort Association’s amicus curiea brief regarding the legal fight against the anti-smoking Nevada Clean Indoor Air Act, which is set for an all-day hearing in District Court Judge Douglas Herndon’s courtroom today. We’re previously reported that the state’s biggest casinos have weighed in favoring the act, which appeared on the November ballot as Question 5.
The NRA’s brief is devastating to the tavern, convenience store, grocery store and slot route owners who are challenging the Nevada Clean Indoor Air Act as vague and in violation of constitutional equal-protection rules. (They make those arguments in part because taverns with unrestricted gaming licenses — the same license the big casinos have — can continue to allow smoking in their facilities, but those with restricted licenses [15 or fewer slot machines] cannot. Moreover, whether the act applies in hotel and motel rooms seems to be a matter of some controversy.)
So, were we standing before Judge Herndon this morning representing the taverns, convenience stores, grocery stores and one cigar bar suing to keep the act from taking effect, here’s what we’d tell the court:
Your honor, the intervenors Nevada Resort Association argue that there is no question the Nevada Clean Indoor Air Act does not apply to hotel and motel rooms. They state on Page 3 of their brief that, "No governmental officers are taking the position that it does apply to hotel/motel rooms. The proponents of this legislation stipulated before the Nevada Supreme Court that it did not apply to hotel/motel rooms and readily conceded that the public was told, when signatures were secured, that it does not apply to hotel and motel rooms. Simply put, there is no one, save the plaintiffs, who is arguing, let alone insinuating, that the restriction reaches hotel/motel rooms. Respectfully, plaintiffs cannot set up a straw man that does not exist in order to claim that the act presents constitutional problems."
Well, your honor, the NRA has created the straw man here. You see, the plaintiffs are not arguing that the act applies to hotel and motel rooms. They are arguing that the act may or may not apply to hotel and motel rooms, and that it is simply unclear.
Consider: The act bans smoking in "indoor places of employment." There is a list of exemptions, and hotel and motel rooms are not found on that list. Maids, maintenance workers and security officers are all employees of casinos. Their jobs regularly require them to enter hotel and motel rooms. Therefore, it would appear that those places are "indoor places of employment."
But don’t just listen to us. Listen to Carson City District Court Judge Bill Maddox, who concluded that the act would apply to hotel and motel rooms if it passed. The state Supreme Court did not say Maddox was wrong; the justices only said it was too early for him to make that call.
And it’s ironic that the NRA (and the state Supreme Court, for that matter) would resort to referencing the intentions of the people who put the Nevada Clean Indoor Air Act on the ballot. Their intentions hardly matter when the initiative they circulated is so full of flaws, and so vague that even they have to guess at its meaning and application. But two can play at that game, your honor. The circulators of the act said it was their goal to keep people, especially children, safe from secondhand smoke. (They even named their group the "Nevadans for Tobacco Free Kids.") But children enter hotel rooms where there is secondhand smoke, don’t they? So then the intention of the framers of this initiative would clearly be to prohibit smoking in hotel and motel rooms, at least when children are present, right? Or would it? Again, your honor, the plaintiffs are not arguing either way; they are simply saying that the matter is vague and therefore unenforceable.
The NRA further argues that it was fully within the rights of the framers of the Clean Indoor Air Act to decide that big casinos (with nonrestricted gaming licenses) could allow smoking on their gaming floors, while smaller operations, say P.T.’s Pub for example, could not, since they generally have restricted gaming licenses.
Leaving aside for a moment whether that is legitimate or good public policy, let’s talk about what the plaintiffs have said in this regard: It appears wrong for two bars that are exactly the same size, do exactly the same thing but just happen to have different kinds of licenses to be treated differently. And yes, the plaintiffs have wondered whether, for example, a grocery store (where smoking is specifically banned) that just happens to have a nonrestricted license (where smoking is apparently allowed) can still let customers smoke if they choose. Once more, it’s vague.
(As a side note, the definition of casino in the act is interesting: "Casino means an entity that contains a building or a large room devoted to gambling games or wagering on a variety of events. A casino must possess a nonrestricted gaming license as described in NRS 463.0177 and typically uses the word ‘casino’ as part of its proper name." Now, how big "a large room" must be to qualify is open to speculation. Not only that, but we checked the websites of several NRA members, and found that none of them use "casino" as part of their proper names. Could smoking only be allowed at the Red Rock Casino from now on?)
The NRA argues that their business — big casinos — are different from the plaintiffs’ businesses, and therefore no equal protection violation can exist. "Restricted licenses are quite different," the NRA says in its brief on Page 9. "They are, for the most part, bar/restaurant, grocery or convenience store operations where family members will more often frequent with children than a nonrestricted gaming license. It is not irrational for the voters to conclude that children are more likely to be exposed to secondhand smoke in a restricted license environment than they are in a nonrestricted license environment."
Now judging the rationality of the voters is a tricky thing, so let us offer a few observations about this argument. First, children are specifically prohibited from entering or loitering in all the areas the NRA identifies, whether it be a slot alcove in a grocery store or the area set aside for gambling in convenience stores. They are for sure banned from bars and taverns. Is it rational for the voters to act to keep children safe from secondhand smoke in places where children may not go by law already? No.
And let’s take a look at some of these big casinos, shall we? Have you been to the Suncoast recently? That hotel has a movie theater, but to get there, you must walk by row upon row of slot machines, or through the sports book. Guess what’s allowed at those slots and in that sports book? Smoking. So family members frequenting the Suncoast certainly aren’t protected by this act.
What about the Mandalay Bay? Family members who want to dine at the House of Blues restaurant or perhaps the buffet will wait in line immediately adjacent to gaming areas where smoking is perfectly legal.
Let’s not even talk about Circus Circus, shall we? But if you want to take your kids shopping at the Forum Shops at Caesars and for some reason shun the valet and park in the hotel’s garage, you’ll be wading through slots and smoke to get there.
Your honor, you may agree with the NRA when it argues thus: "In order to achieve the legitimate economic goal of reducing the citizens of the state of Nevada’s exposure to secondhand smoke, the [act] drew a line regarding where it would and would not regulate smoking. In doing so, the [act] made choices based on [the] economic impact of banning smoking in large hotel casinos with nonrestricted licenses versus bars and taverns with restricted licenses whose primary business is not gaming. The drafters of the [act] made a valid decision to distinguish between the two in determining where smoking would be prohibited, a distinction the law allows them to make."
But what about a more stunning distinction. Consider a tale of two bars. One opened in 1979, had 5,000 square feet of space, serves food (as most bars do), and has a nonrestricted gaming license, which was the kind of license issued at that time in state history. But let’s say for space reasons, the bar only has 15 machines, although it could legally have more.
Now, let’s consider a bar that opened in 2006, also 5,000 square feet, also serving food. As you know, your honor, since 1989, such establishments can only get a restricted gaming license, and thus this second bar is limited to 15 machines, which it has.
Two bars, identical in all respects but for the kind of license issued. One may continue to allow smoking, one may not. These aren’t the different kinds of businesses cited by the NRA in its brief. They are exactly alike, but treated differently under the act. That’s the essence of an equal protection violation.
Finally, the NRA argues that the matter isn’t ripe for a ruling because these are "hypothetical situations," and we don’t know how the act will be implemented in the real world. Nobody has actually been cited for a violation yet, or threatened with a citation. (Of course they haven’t! Your honor issued a temporary restraining order in anticipation of this hearing today!)
But the NRA would have this court punt instead of tell us what this law means. And where does that get us? The plaintiffs don’t know if smoking is allowed or not, or in what areas or not. Customers don’t know if they’ll receive an expensive citation for lighting up a cigarette. Owners don’t know if they can be cited or fined, either. They’re not sure if they should build walls, knock out walls, or lay off their cooks and waitresses.
Yet the NRA is comfortable with this ambiguity? Why?
It is beyond obvious by now, your honor, that the NRA has taken the position that grants maximum benefit to its members, while imposing maximum hardship upon the plaintiffs. The NRA even hinted to the court the same, on Page 8 of its brief, when it wrote: "Clearly, the tourism industry, and casinos in general are Nevada’s driving economic force. The declared public policy of Nevada is that ‘[t]he gaming industry is vitally important to the economy of the state and the general welfare of the inhabitants. See NRS § 463.0129. Additionally, the revenue generated by the taxes imposed on hotels and casinos, in the form of entertainment taxes, gaming taxes, and room taxes, all contribute significantly to the state’s budget."
The plaintiffs don’t disagree that the NRA’s members contribute mightily to the state’s economy. (By the way, it should be noted that the plaintiff’s businesses also pay taxes and do their fair share to contribute to the state’s economy.)
But the plaintiffs do take issue with what’s written between those lines in the NRA brief: "He who has the gold makes the rules." The NRA, by virtue of the fact that it pays taxes, nonetheless does not have the right to get a tailor-made interpretation of state law that tends to hurt the plaintiffs, who, by the way, just happen to be competitors to the NRA’s members! Where do you think smoking customers of the bars, taverns, convenience stores and other businesses who are party to this action will go if they still want to smoke a cigarette and play video poker? To the Strip! To downtown! To a neighborhood casino! To places that still allow smoking.
If the NRA’s members want to compete, let them do so. But don’t let them use this lawsuit as a way to gain a tactical advantage for themselves over the plaintiffs. No amount of taxpaying justifies that.
For all of those reasons, your honor, we ask that you find the Nevada Clean Indoor Air Act is impermissibly vague, that it constitutes a violation of the equal protection doctrines of the U.S. and Nevada constitutions, that there is an instant controversy and that a preliminary restraining order is appropriate. Thank you.
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