At Jake’s Cigars & Spirits in Omaha’s Benson area, customers were still puffing Thursday on thick-masted Perdomos and Rocky Patels. They might need to enjoy them while they still can. A Lincoln judge’s ruling earlier this week might snuff out the exemptions that cigar bars, tobacco shops and designated motel rooms enjoy to the state’s two-year-old smoking ban. Lancaster County District Judge Jodi Nelson, citing a 2008 court decision on Omaha’s smoking ban, ruled that those three exemptions were unconstitutional “special legislation” for a specific group and should be wiped out.
An appeal was filed Thursday in the case, which had been brought by Big John’s Billiards in Omaha. The appeal staves off a shutdown of smoking in the establishments involved.
The judge left only one exemption standing: Smoking would still be allowed in indoor areas in connection with scientific research.
Workers at Jake’s were taking the ruling in stride.
“Hopefully, the appeal will be upheld and we’ll be able to keep doing what we’re doing,” said John Larkin, a co-owner of Jake’s.
Sen. Scott Lautenbaugh of Omaha, who sponsored the 2009 law that exempted cigar bars, said the ruling was “a way overreading” of the state’s special legislation restrictions and would wreak havoc on all kinds of laws.
“This is a reasonable exception to a general rule,” Lautenbaugh said. “If it’s struck down, we can’t exempt anything from anything.”
The ruling could put in jeopardy a wide array of sales tax exemptions, he said.
Big John’s filed suit after the Legislature decided against including pool halls as one of the exempt places where smoking would be allowed. The firm had hoped to get the entire smoking ban ruled unconstitutional.
Ted Boecker, the attorney representing Big John’s, said his client plans to continue to press its case that, as a private property owner, it should be able to decide whether to allow smoking in its business.
The Nebraska Attorney General’s Office appealed the ruling Thursday. The office had issued an opinion in 2009 that cigar bars did not constitute a special class and that exempting them would be constitutional.
Nelson cited a Nebraska Supreme Court ruling in 2008 that struck down Omaha’s smoking ban. That ban had provided exemptions until 2011 for keno bars, Horseman’s Park and bars that didn’t serve food, but the high court ruled the exceptions represented special legislation.
The effect of the Omaha ruling was to make all public places smoke-free.
Nelson’s ruling stated that the ban sought to protect people in all workplaces. She stated that nothing in the law or legislative debate explained why patrons and employees of cigar bars, tobacco shops and motels shouldn’t get the same protection.
Cigar bar owners had argued they would suffer financially if they were included in the smoking ban, but Nelson said lots of other businesses had complained about that as well.
“The cigar bar exemption gives those businesses a special privilege over similar businesses without any substantial difference of circumstance to support it,” she wrote.
Lautenbaugh took to the floor of the State Legislature on Thursday to declare that the judge’s ruling was “painfully incorrect” and would be overturned.
At Jake’s, Larkin wasn’t quite as confident, saying that until the legal uncertainties are cleared up, plans to add another Jake’s in the downtown area are on hold.