Neb. high court to hear appeal in smoking ban case

The Nebraska Supreme Court will hear arguments Tuesday in the state's appeal of a court ruling declaring exceptions listed in the statewide smoking ban unconstitutional.

Lancaster County District Judge Jodi Nelson sided earlier this year with an Omaha pool hall that challenged the 2009 state law banning smoking in all public buildings and private businesses, including bars and restaurants. The law includes exceptions for cigar bars, some hotel rooms, tobacco-only retailers and facilities that research the health effects of smoking.

Nelson said only the exception for research facilities is enforceable. The other exceptions, she said, provide special treatment for certain businesses, which is unconstitutional.

The pool hall, Big John's Billiards, also has filed an appeal, saying Nelson made a mistake in not finding the entire smoking ban unconstitutional.

The state claims in its appeal that it is immune from lawsuits like the one brought by Big John's Billiards, and that for that reason, the lower court didn't have authority in the matter.

The Nebraska Attorney General's Office also argues Nelson was wrong in determining the three exceptions were special legislation and, therefore, unconstitutional.

The exception for tobacco retail outlets was based upon the idea that customers of those establishments needed to sample tobacco products before buying them, and the exception for cigar bars was based on evidence that the bars were being forced out of business by smoking bans, the attorney general's office said.

"Application of this analysis by the district court would mean that no exemptions to any legislative act could be created because an exemption by its nature will be in conflict with the purpose or intent of the act as a whole," Assistant Attorney General Lynn Melson wrote in court documents filed with the state's high court.

An attorney for Big John's Billiards defended the lower court's finding that the exceptions were unconstitutional.

"The state cannot adopt a law, which is for the purpose of protecting the health of employees, and then say, `but the health of employees in one type of business is less important than employees in another type of business,'" Omaha attorney Theodore Boecker Jr. wrote in his response.