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Neb. Indoor Smoking Ban's Exemptions Ruled Unconstitutional

By Brett Snider, Esq. on September 09, 2014 | Last updated on March 21, 2019

Nebraska's indoor smoking ban remains intact, but the exemptions for smokers to puff inside cigar bars and tobacco stores has been ruled unconstitutional.

In its decision, the Nebraska Supreme Court ruled that there was no substantial difference between a cigar bar and other publicly accessible workplaces, and that special exemptions for these businesses are "directly contrary" to the state's indoor smoking ban. The Lincoln Journal Star reports that the state's attorney general asked the high court on Monday to rehear the case, which may have dire effect on all future legislation.

What did the Nebraska Supreme Court dislike about the smoking ban's exemptions?

Pool Hall Unintentionally Strengthens Smoking Ban

Nebraska's indoor smoking ban, as part of the Nebraska Clean Indoor Air Act of 2008, initially exempted the following types of places:

  • Hotel guestrooms,
  • Indoor areas used for smoking health research, and
  • Tobacco-only retail outlets.

The law was amended in 2009 to add cigar bars to this list of exempted businesses, assuming that cigar bar derived 10 percent of its annual revenue from cigars and had a walk-in humidor on site.

Big John's Billiards Inc., which presumably wanted to allow its customers to smoke, drink, and shoot pool (perhaps in that order), challenged the indoor smoking law as unconstitutional. But instead, the high court in Big John's Billiards Inc. v. State of Nebraska determined that the exemptions were the unconstitutional parts, striking down all but the hotel guestroom exemption. Why?

'Special Legislation' Test

Nebraska wouldn't be the first state to have a successful indoor smoking ban (and many states have even included e-cigs in their bans). But the curious thing about this Nebraska case is that the state Supreme Court axed each exemption as "special legislation."

Nebraska's constitution prohibits passing "special laws" which grant special privileges or immunity to certain businesses and organizations. Special legislation in this case was defined by rules which create an arbitrary or unreasonable method of classification.

Further interpreting the law, the court's "special law" test hinged on whether there was a "difference in circumstances" between the exempted class and other businesses that would justify treating them differently in light of the smoking ban's purpose: to prevent the hazards of second-hand smoke. This purpose did not gel with exempting cigar bars or tobacco stores.

The high court, however, kept the exemption for hotel rooms in tact, as it felt that was closely related to smoking in a private residence.

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