CLEAN INDOOR AIR ACT
Anyone who has been to Las Vegas and spent time in one of the casinos is well aware that smoking is allowed indoors in some places. However, that does not mean that all indoor areas allow smoking. The Nevada Clean Indoor Air Act explains where in Nevada smoking is allowed indoors. Violators of the Nevada Clean Air Act can be subject to harsh penalties.
What is the Nevada Clean Air Act?
The Nevada Clean Air Act is codified in NRS 202.2483.
NRS 202.2483 – Smoking tobacco: Prohibited in certain areas; voluntary creation of nonsmoking areas; local regulation; posting signs; removal of paraphernalia; enforcement; retaliation prohibited.
- Except as otherwise provided in subsection 3, smoking tobacco in any form is prohibited within indoor places of employment including, but not limited to, the following;
- Child care facilities;
- Movie theatres;
- Video arcades;
- Government buildings and public places;
- Malls and retail establishments;
- All areas of grocery stores; and
- All indoor areas within restaurants.
- Without exception, smoking tobacco in any form is prohibited within school buildings and on school property.
- Smoking is not prohibited in:
- Areas within casinos where loitering by minors is already prohibited by state law pursuant to NRS 463.350;
- Completely enclosed areas with stand-alone bars, taverns and saloons in which patrons under 21 years of age are prohibited from entering;
- Age-restricted stand-alone bars, taverns and saloons;
- Strip clubs or brothels;
- Retail tobacco stores;
- The area of a convention facility in which a meeting or trade show is being held, during the time the meeting or trade show is occurring, if the meeting or trade show:
- Is not open to the public;
- Is being produced or organized by a business relating to tobacco or a professional association for convenience stores; and
- Involves the display of tobacco products; and
- Private residences, including private residences which may serve as an office workplace, except if used as a child care, an adult day care or a health care facility.
- A supervisor on duty or employee of an age-restricted stand-alone bar, tavern or saloon or a stand-alone bar, tavern or saloon shall not allow a person who is under 21 years of age to loiter in an age-restricted stand-alone bar, tavern or saloon or an area of a stand-alone bar, tavern or saloon where smoking is allowed pursuant to this section. A person who violates the provisions of this subsection is guilty of a misdemeanor.
- If a supervisor on duty or employee of an age-restricted stand-alone bar, tavern or saloon or a stand-alone bar, tavern or saloon violates the provisions of subsection 4, the age-restricted stand-alone bar, tavern or saloon or stand-alone bar, tavern or saloon is liable for a civil penalty of:
- For the first offense $1,000.
- For a second or subsequent offense, $2,000.
- In any prosecution or other proceeding for a violation of the provisions of subsection 4 or 5, it is no excuse for a supervisor, employee, age-restricted bar, tavern or saloon, or stand-alone bar, tavern or saloon alleged to have committed the violation to plead that a supervisor or employee believed that the person who was permitted to loiter was 21 years of age or older.
- In areas or establishments where smoking is not prohibited by this section, nothing in state law shall be construed to prohibit the owners of said establishments from voluntarily creating nonsmoking sections or designating the entire establishment as smoke free.
- Nothing in state law shall be construed to restrict local control or otherwise prohibit a county, city or town from adopting and enforcing local tobacco control measures that meet or exceed the minimum applicable standards set forth in this section.
- “No Smoking” signs or the international “No Smoking” symbol shall be clearly and conspicuously posted in every public place and place of employment where smoking is prohibited by this section. Each public place and place of employment where smoking is prohibited shall post, at every entrance, a conspicuous sign clearly stating that smoking is prohibited. All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited.
- Health authorities, police officers of cities or towns, sheriffs and their deputies shall, within their respective jurisdictions, enforce the provisions of this section and shall issue citations for violations of this section pursuant to NRS 202.2492 and 202.24925.
- No person or employer shall retaliate against an employee, applicant or customer for exercising any rights afforded by, or attempts to prosecute a violation of, this section.
- For the purposes of this section, the following terms have the following definitions:
- “Age-restricted stand-alone bar, tavern or saloon” means an establishment:
- Devoted primarily to the sale of alcoholic beverages to be consumed on the premises;
- In which food service or sales may or may not be incidental food services or sales, in the discretion of the operator of the establishment;
- In which patrons under 21 years of age are prohibited at all times from entering the premises; and
- That must be located within:
- A physically independent building that does not share a common entryway or indoor area with a restaurant, public place or any other indoor workplace where smoking is prohibited by this section; or
- A completely enclosed area of a larger structure, which may include, without limitation, a strip mall or an airport, provided that indoor windows must remain closed at all times and doors must remain closed when not actively in use.
- “Casino” means an entity that contains a building or large room devoted to gambling games or wagering on a variety of events. A casino must possess a nonrestricted gaming license as described in NRS 463.0177 and typically uses the word ‘casino’ as part of its proper name.
- “Child care facility” has the meaning ascribed to it in NRS 441A.030.
- “Completely enclosed area” means an area that is enclosed on all sides by any combination of solid walls, windows or doors that extend from the floor to the ceiling.
- “Government building” means any building or office space owned or occupied by:
- Any component of the Nevada System of Higher Education and used for any purpose related to the System;
- The State of Nevada and used for any public purpose; or
- Any county, city, school district or other political subdivision of the State and used for any public purpose.
- “Health authority” has the meaning ascribed to it in NRS 202.2485.
- “Incidental food service or sales” means the service of prepackaged food items including, but not limited to, peanuts popcorn, chips, pretzels or any other incidental food items that are exempt from food licensing requirements pursuant to subsection 2 of NRS 446.870.
- “Place of employment
I’ve been to the casinos in Las Vegas, and people are smoking everywhere. How is it possible that there are laws against smoking indoors?
The Nevada Smoking laws are not the same as smoking laws in many other states: in Nevada, the Clean Air Act only prohibits smoking in certain areas, there are many other areas where smoking is still allowed.
Okay, so where is smoking prohibited?
The quick answer is “anywhere that is age-restricted so that only adults are permitted.”
The Nevada Clean Indoor Air Act clarifies the areas where smoking is allowed, including:
- Inside casinos, in areas where minors are not allowed to loiter. In other words, smoking is allowed in all gaming areas and bars (though not in restaurants);
- Strip clubs or brothels;
- Retail Tobacco stores (this only applies to stores whose main function is the sale of tobacco products. It does not apply to stores who sell tobacco products as a part of the goods that are offered);
- Age-restricted stand-alone bars, taverns, and saloons. As with casinos, smoking in bars is only allowed if the bar is age-restricted. Consequently, if the bar allows minors inside, it is probably defined as a restaurant and smoking is prohibited;
- Completely enclosed areas within stand-alone bars, taverns and saloons in which patrons under twenty-one-years old are not allowed to enter. This is essentially the converse restriction as the previous, but applies to bars, taverns and saloons that permit minors, but have a “smoking area” that is age-restricted and is also completely closed off from the “non-smoking area”;
- Private residences – This should be obvious, as it would be far over-reaching the powers of the government to intrude on whether you could smoke tobacco products in your own home;
- Private Residences used as an office or workplace, so long as the residence is not being used to provide care to others. In other words, if the residence is being used for child care, adult day care, or health care, then smoking is still prohibited;
- Convention Facilities, during a meeting or trade show, but only in very specific circumstances:
- The facility cannot be open to the pubic;
- The meeting or trade show is being produced by a tobacco-related business or professional association for convenience stores; and
- The meeting or trade show involves tobacco products displays.
Please Note: Just because the Nevada Clean Indoor Air Act permits smoking in the places listed above does not mean that it is a requirement that smoking be permitted in those areas. Local governments are invested with the power to pass ordinances that would prohibit smoking in places where it is allowed by state law. Also, business owners have the right to ban smoking on the premises of their business, even if state law permits smoking.
Okay, so it’s illegal to smoke in areas that are not part of that list. What else do I need to know?
The Nevada Clean Indoor Air Act actually creates two separate crimes:
- It is illegal to smoke in an area that is deemed non-smoking by law; and
- It is illegal to allow a person under 21 years of age to enter and/or loiter in an age-restricted bar, tavern or saloon that allows smoking.
Please Note: In the second of these two crimes, it would not be a defense that the person who was younger than 21 years of age had lied to the business, or had used a fake ID, to gain admittance.
This all seems extreme. Are people actually arrested for smoking tobacco indoors?
Generally, no. Someone who lights a cigarette or other tobacco product indoors will first be asked to extinguish the tobacco product or leave. However, if they refuse to comply with the request and/or continue to smoke indoors, the business has the right to call the police to have the person cited, removed, and/or arrested.
What do you mean by “tobacco product”?
The Nevada Clean Indoor Air Act prohibits smoking tobacco products.
The most common forms of Tobacco products that can be smoked are:
- Cigarettes – manufactured or hand-rolled;
- Hookahs; and
- E-cigs and “Vaping”. This is currently a controversial topic, given the recent rise in “vaping.” However, under the Clean Indoor Air Act, smoking tobacco in any form is prohibited in the areas not listed above.
But I don’t smoke tobacco when I vape, so how would that apply?
Basically, it is impossible to know for certain whether someone has tobacco in their vape or not, so the assumption is that they all do. Rather than force everyone wanting to vape to provide proof that they have no tobacco, or force businesses to make such determinations, the current form of the law prohibits all forms of vaping. This may not always seem fair, but is the easiest way to maintain compliance with the law and make sure that everyone follows it.
What are the possible penalties?
Smoking in a non-smoking area is a misdemeanor in Nevada, carrying with it possible penalties of:
- Up to 6 months in jail; and/or
- Possible fines up to $1,000; as well as
- A civil penalty of $100 for each violation.
It is also a misdemeanor for an employee of an age-restricted location that permits smoking to allow a person under 21 to be on the premises. The possible penalties include:
- Up to 6 months in jail; and/or
- Possible fines up to $1,000; as well as
- Civil Penalties up to $1,000 for the first offense; or
- Civil Penalties up to $2,000 for any subsequent offense.
Are there any Defenses?
Yes, of course there are. Some of the most common defenses include:
- Insufficient Evidence – This is probably THE most common defense to a charge of violating the Nevada Clean Indoor Act. If the prosecution does not have enough evidence to prove, beyond a reasonable doubt, that you violated the Act, then the charges against you should be dropped or dismissed.
- Smoking was allowed – The Nevada Clean Air Act allows for smoking in certain areas. Because there are places where smoking is allowed, there are two common scenarios where someone might be falsely accused of violating the Act. In the first, the location allows smoking but someone is under the impression it does not and notifies authorities. In this case, since there was no violation, the charges against you should be dropped or dismissed. In the second scenario, smoke from a smoking section travels into an area where smoking is not allowed (usually through an open door). In this scenario, you would not have violated the Act and as such, the charges against you should be dropped or dismissed. It is possible that the location may be fined, if the ventilation system was not properly installed and allowed smoke to travel from the area where smoking is permitted into other sections where it is not.
Please Note: It is not a defense to blame the location for not posting enough (or visible enough) “No Smoking” signs. Because of the prevalence of the Act, it is assumed that people are aware where they can and cannot smoke indoors. Moreover, given that law enforcement officers will not be called until after the offender has been asked to leave or put out their cigarette, there is an assumption that by the time authorities are involved, the offender is aware that they have violated the Act.
What should I do if I’ve been charged with Violating the Nevada Clean Air Act?
As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.