Sometime Monday morning, Miles Johnston will step out from behind the counter at Cliff's Smoke Shop, move to the store's smoking area and light his pipe.

The nicotine fix may constitute Johnston's first violation of the city's brand-new smoking ban, a Jan. 1 law the tobacco shop co-owner says doesn't legally apply to his business.

Lincoln's police force, health department and city attorney's office will probably beg to differ, likely leading to the first court challenge of the ban.

"I'm still going to allow customers to smoke. I'm still going to smoke," Johnston said Wednesday afternoon, sitting in the closed, darkened bar adjacent to the shop he's co-owned for three years at 140 N. 12th St.

"This is serious. … It's going to have to be decided by a judge."

The tobacco shop owner is serious enough that he's already changed the shop to a members-only club, requiring patrons to pay a $1 membership fee to enter.

But the smoking ban is written in such a way that "members only" businesses still must be smoke-free to protect employees from cigarette, cigar and pipe smoke.

Johnston's way around that is simple: He doesn't employ anyone.

The store co-owner says he's the only person who works behind the counter of the smoke shop, which is next to the separately owned Cliff's Lounge. Johnston's wife sometimes fills in when he wants to play golf on a Wednesday afternoon, but he claims that practice will end once the ban begins.

"It's my position that if it's not a public place — which it's not — and it's not a place of employment — which it's not — then the law doesn't apply.

"I'm just taking the law at face value."

Assistant City Attorney Tanya Skinner sees several problems with Johnston's interpretation of the ban.

Case law in Nebraska and elsewhere states that a small membership fee doesn't necessarily make a    business a private club, Skinner says.

Often, the law requires that members have a common thread beyond the membership fee before a group is recognized as private, she says.

The city attorney's office will have to research the ban's definitions of "employee" and "employed" if Johnston is cited for violating the smoking ban and decides to contest the citation, the assistant city attorney says.  

"We would have to look into his legal status, how that company is owned … before we make any sort of determination."

The tobacco store owner, a former Lincoln attorney who was disbarred, believes he'll be cited soon after Jan. 1. Several Lincoln police officers have told him as much, he says.

On Thursday, Police Chief Tom Casady said he hadn't heard that Johnston planned to continue to allow smoking in Cliff's Smoke Shop after New Year's Day. The chief laughed when told of his plan.

"If Mr. Johnston violates the law, I'll help him to self-actualize in his attempt at civil disobedience," Casady said.

He also reiterated that his officers will begin enforcing the ban at the stroke of midnight, 2005, one hour before the city's bars close for the night.

He isn't concerned about the possibility of provoking hundreds of New Year's Eve revelers.

"I don't see how it's any more volatile than … any one of dozens and dozens of other violations," he said. "I don't know how I can make this any more clear. We're going to start at midnight."

Johnston is safe until Monday since the smoke shop won't be open Saturday or Sunday. He said he'll plead not guilty to the first offense — a misdemeanor carrying a $100 fine — and hire a lawyer to argue the case on his behalf.

The challenge has little to do with his bottom line, he said.

Few patrons actually smoke their purchases in the store, although a lone customer, University of Nebraska-Lincoln professor Paul Demers, smoked an $8 Arturo Fuente cigar Wednesday afternoon.

"I like to sit here, relax, chat with Miles, talk history, politics and world affairs and smoke," he said.

Lately, Johnston has talked a lot about how smoke shops should be exempted from the ban.

The earlier, so-called "partial ban" discussed by the City Council did exempt them, as do bans in California, New York and Florida, he says.

"I mean, 90 percent of people who are in here are smokers. It makes sense,"

It doesn't make legal sense to the assistant city attorney, who says the city's residents don't eat food inside grocery stores or drink alcohol inside liquor stores.

"I recognize the (tobacco store) argument, but carving out exceptions isn't something that's legally sound to start," she says.

"Everybody can argue: ‘Hey, why not me?'"

The legal arguments are sure to commence early in 2005, although both Skinner and Casady say they think most Lincoln businesses and smokers will adhere to the ban with no complaint.

Until he's cited and has his day in court, Johnston will continue to smoke his pipe indoors, as he has for the past 40 years.

He'll also continue to blow a little smoke city officials' way for what he considers unfair treatment of smokers and smoking establishments.

The best example may be Cliff's Smoke Shop's third, unwritten membership rule.

The first two are posted on the tobacco shop's door, explaining that members must be 18 and pay a $1 membership fee.

The third, which Johnston admits he didn't have the guts to write down:

"You can't be Glen Friendt."

Reach Matthew Hansen at 473-7245 or mhansen@journalstar.com.