Judge Strengthens Omaha Smoking Ban

A District Court judge made Omaha's smoking ban even stronger. As Channel 6 News broke the store Thursday at 10pm, experts were still questioning the importance of the ruling considering a statewide ban in Nebraska takes effect June 1.

District Court Judge Mark Ashford ruled that several exceptions are unconstitutional -- such as some nursing homes, tobacco-only retail outlets, hotels and research projects that allow smoking. The only exemption he decided that is constitutional is smoking in a private home.

The ruling is in response to Big John's Billiards taking Omaha to court. The owner wants the entire smoking ban to be ruled unconstitutional.

Big John's Billiards is pleased the court felt some of the ban was unconstitutional. Bill Prout tells Channel Six, "We have so much invested in this, we're not stopping until we hear one way or another about the smoking ban itself."

Mark Welsch helped craft Omaha's smoking ban. "They will never declare the whole law unconstitutional. The judge was very clear, that only these parts are unconstitutional."

The ruling begs the question: What happens when the statewide smoking ban takes effect June 1? Remember, lawmakers have included exceptions. Cigar bars around the state are expected to get permission to have smoking. The legislature votes on the bill Friday morning.

But will the courts rule those unconstitutional too? Omaha Senator Scott Lautenbaugh who crafted the Cigar Bar exception says, 'No!'

He says Nebraska has legislative history on its side which Omaha did not.

In 2008, the Nebraska Supreme Court ruled that the exception where bars with Keno could allow smoking was unconstitutional. The court said Omaha didn't explain the reasons for the exception well enough before the ordinance took effect.

"Our city ordinance has been stronger in a couple areas where we don't allow smoking in places that sell tobacco," says Welsch, "And no smoking in commercial vehicles which a lot of people still don't realize."

Early on, many attorneys who read the ruling along with bar owners wondered whether the "outdoor areas of places of employment" that were deemed unconstitutional by the judge meant outdoor patios could no longer allow smoking.

Deputy City Attorney Tom Mumgaard tells Channel 6 he doesn't think it impacts that since the specific law mentions 'Enclosed areas' which an outdoor patio is not.

Last year, many bars rushed to get permits for outdoor seating construction for the specific reason of offering smokers a place to smoke.

The changes won't be taking effect tomorrow or even the next day. The judge didn't write an order for that to happen.

Both sides may appeal the District Court's decision which could delay the timetable for Omaha's changes to take effect.

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