* * *
LINCOLN — Cigar lovers may get another month before having to snuff their stogies.
That’s the typical time between the Nebraska Supreme Court issuing a ruling and the ruling being formally delivered to the lower court.
Until then, Hobert Rupe, executive director of the Nebraska Liquor Control Commission, said people can continue puffing away in cigar bars and tobacco shops. But a state Supreme Court ruling on Friday means those days are numbered.
The court, in a divided opinion, said exemptions to the state smoking ban that allow smoking in cigar bars and tobacco shops amount to unconstitutional special legislation.
“There is no substantial difference in circumstances between cigar bars and other public places or places of employment that justifies treating cigar bars differently,” the court said.
The purpose of the 2008 Nebraska Clean Indoor Air Act, the court’s ruling stated, is to protect the public health by limiting exposure to secondhand smoke. Allowing smoking in cigar bars, as well as tobacco stores, is directly contrary to that purpose, said the ruling, written by Supreme Court Judge Kenneth Stephan.
As of Friday afternoon, Nebraska’s 11 cigar bars and the shops that sell tobacco products were pondering their options. They were not parties to the case before the Supreme Court but could potentially pursue federal lawsuits.
Attorney General Jon Bruning’s office, which defended the existing law and its exemptions, could ask the court to reconsider the ruling, a request that is rarely granted.
A Bruning spokeswoman said the office was in the process of reviewing the opinion.
There was one bit of good news for smokers on Friday: The court ruled that smoking can be allowed in designated hotel rooms. The judges reasoned that the rooms are akin to private residences, where the law allows smoking, except in homes used as day care centers.
The court’s ruling came in response to an appeal of the state smoking ban by Big John’s Billiards, which had hoped to allow smoking at its pool halls by getting the entire act ruled unconstitutional.
But the Supreme Court, in its 20-page ruling, found that the smoking ban in public places remains enforceable, even though it struck down the exemptions extended to cigar bars and tobacco stores.
Ted Boecker, an Omaha attorney who represented Big John’s, said that while the ruling didn’t help his client in the short term, it could in the long term if the State Legislature revisits the smoking ban law.
State Sen. Bill Kintner of Papillion said it is too early to know whether lawmakers might reconsider the ban.
He said he would need to study the opinion more and weigh the issue along with other possible legislation before deciding whether to offer any proposals.
But a colleague, Sen. John Murante of Gretna, said he doesn’t expect to be rethinking the law.
“I’m not sensing any great enthusiasm from my constituents for undoing the ban,” he said.
In the meantime, Rupe said the liquor control commission has stopped work on any cigar bar license renewals. The licenses expire Oct. 31. He said cigar bars can continue operating as regular bars.
Two judges on Friday dissented from the majority’s opinion concerning tobacco shops. Judges William Cassel and Michael Pirtle said that smoking should be allowed in tobacco shops because there was no other reason to go to one except to subject yourself to smoking.
State Sen. Scott Lautenbaugh of Omaha, the sponsor of the cigar bar bill, said Friday morning that he wanted to read the ruling before commenting.
Three years ago, when Lancaster County District Judge Jodi Nelson ruled that allowing smoking in cigar bars, tobacco shops and hotel rooms was unconstitutional special legislation, Lautenbaugh called the ruling “a way over-reading” of the state’s special legislation restrictions.
At the time, the senator said that such a ruling could imperil all kinds of laws, including those that carve out tax exemptions for certain products and businesses.
The state constitution bans special legislation that offers “special favors” for a specific business or individual as discriminatory. But a group can be treated differently if it can be shown that it is reasonably distinctive from others, and treating it differently fits the purpose of a law.
The question of special legislation and smoking bans has been taken up before by the State Supreme Court.
In 2008, the Nebraska Supreme Court struck down exceptions to a smoking ban enacted by the City of Omaha, ruling that exemptions for keno bars, the Horsemen’s Park racetrack and bars that didn’t serve food represented special legislation.
That ruling made all public places in Omaha smoke-free.
But then the Legislature superseded the city’s ban, passing a statewide smoking ban in 2008. A year later, lawmakers carved out the exemption for cigar bars.
Contact the writer: 402-473-9584, email@example.com