Despite appeal, attorney says questions remain on smoking ban

Publication Date: 2011-01-28

• Author:ZACH PLUHACEK
• Publication:Lincoln Journal Star

Two days after a Lincoln judge nixed most exceptions to Nebraska's smoking ban, the state has taken the first step in appealing the ruling.

The Attorney General's Office filed notice Thursday that it will appeal Tuesday's order by Lancaster County District Judge Jodi Nelson.

In the order, Nelson said exceptions to the 2009 Nebraska Clean Air Act for cigar bars, tobacco stores and hotels are unconstitutional because they give preferential treatment to those businesses.

The order was in response to a motion for summary judgment by Big John's Billiards, an Omaha pool hall that sued the state and the Douglas County Health Department after legislators decided pool halls would not be among the businesses excepted from the smoking ban.

Ted Boecker, the attorney for Big John's, argued not only against the exceptions but against the entire Clean Air Act.

"I think that there are still issues to be resolved before Judge Nelson," Boecker said Thursday. "I think the order ... reflects that she was examining one argument and there were other arguments to ultimately consider.

"Our clients should have the right to operate their business, their private property as they see fit."