State Supreme Court ruling won’t affect Lincoln ban, attorney says

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BY CLARENCE MABIN / Lincoln Journal Star

A Nebraska Supreme Court ruling striking down a portion of Omaha’s smoking ban won’t affect the Lincoln law, an attorney for the city of Lincoln said.

On Friday, the court declared unconstitutional a section of the Omaha ban that temporarily exempted some stand-alone bars and keno parlors, horse racing simulcasting locations and tobacco retail outlets.

Writing for the court, Chief Justice Michael Heavican said the exemption provision was an unreasonable way to distinguish businesses and amounted to special legislation.

“Nothing in the ordinance’s stated purpose would explain why employees of exempted facilities or members of the public who wish to patronize those establishments are not entitled to breathe smoke-free air or have their health and welfare protected,” he wrote.

Tonya Skinner, an assistant city attorney for the city of Lincoln, said the ruling would not affect Lincoln’s smoking ordinance, which took effect Jan. 1, 2005.

The Lincoln ordinance includes only a small number of exemptions, and, compared to anti-smoking laws nationwide, is considered a 100 percent ban, Skinner said.

“The Lincoln City Council deserves a lot of credit for keeping away from a lot of exemptions,” she said. “They did it right.”

Sites that conduct research on the effects of smoking and hotel and motel rooms are exempt under the Lincoln ordinance. It permits smoking in 20 percent of the rooms in a given hotel or motel, regardless of the establishment’s total number of rooms, Skinner said.

She said the two exemptions were also included in the Omaha ordinance. The ruling Friday did not apply to those exemptions.

K.C. Engdahl, attorney for Marylebone Tavern co-owner Michelle Hug, the plaintiff in the Omaha case, said the court reached the right decision.

He said Hug was not challenging the ban, but was seeking a level playing field with businesses that could claim the exemption.

“The exemption was unacceptable,” Engdahl said. “The delay in implementing it for some establishments was irrelevant. The fact that it had a sunset provision for some doesn’t change the fact that it’s illegal.”

The Omaha City Council adopted the ordinance in June 2006, “‘to protect the public health and welfare by prohibiting smoking in public gathering places and places of employment,’’” according to the ruling Friday.

Council members exempted certain businesses from compliance until May 2011.

Nebraska will enact a statewide smoking ban June 1, 2009. The only workplace exemptions to the statewide ban are for retail tobacco shops and places where smoking research is done.

Reach Clarence Mabin at 473-7234 or cmabin@journalstar.com.