Flamingo Paradise Gaming, LLC, et al. v. Chanos, et al.
Various business entities challenged the facial constitutionality of the Nevada Clean Indoor Air Act's regulations of smoking in most indoor public places, which mandated both civil and criminal penalties for violations of the regulations. The court affirmed the lower court's holding that the statute violated due process vagueness doctrine when considered as a criminal measure, finding that the statute failed to provide clear standards for enforcement. The court further affirmed that, as a civil measure severed from the criminal prohibitions, the statute comported with due process vagueness doctrine. The court additionally held that the statute's differing treatment of establishments holding various types of gaming licenses did not violate equal protection standards and that neither the statute's smoking prohibition nor the statute's requirement that no-smoking signs be posted on private premises constituted an unconstitutional taking of property.
Flamingo Paradise Gaming, LLC, et al. v. Chanos, et al., 217 P.3d 546, Supreme Court of Nevada (2009).
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
A claim of a violation of a tobacco control law or statute.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"We therefore conclude that the NCIAA does not constitute a governmental taking of private property. Business owners still maintain
possession and control over their property. The fact that they are subject to certain regulations does not result in the government taking complete control over their airspace or building property. Thus, NTOA's taking argument is without merit and cannot serve as a basis for invalidating the NCIAA."
"A "nonrestricted gaming license" allows for, among other things, the operation of 16 or more slot machines or the combination of any amount of slot machines in connection with the operation of other. games or sports pool. NRS 463.0177. A "restricted gaming license" only allows for the operation of 15 or fewer slot machines and no other types of gaming, and requires that the slot machines operation is "incidental to the primary business of the establishment." NRS 463.0189. There are a number of reasons why the different treatment of license holders passes equal protection requirements. First, in the case of nonrestricted gaming licensees, their primary business is gaming and their other operations and services are incidental to. gaming; the other services offered by the nonrestricted license holder are still subject to the Act...A second reason for different treatment stems from the businesses' primary functions. Nonrestricted gaming licensees are in the business of gaming, NRS 463.0177, whereas restricted gaming licensees are primarily in the retail and restaurant businesses, and thus, gaming is minimal to the primary purpose of the business. NRS 463.0189. Thus, while both types of business licensees contribute to the gaming economy, a business operating under a nonrestricted license contributes substantially more to the state's economy. Therefore, economics provides a rational basis for distinction in the statute....As a result, the NCIAA does not violate equal protection~ Because restricted gaming licensees are not similarly situated with nonrestricted gaming licensees, it is permissible to treat them differently if a rational basis exists. There are rational reasons for the differing treatment of nonrestricted and restricted license holders. Therefore, the statute does not violate equal protection."
"We conclude that the statute is not vague in all its applications and, therefore, survives a facial challenge for civil enforcement because there are very clear applications of the statute in which no one could reasonably question whether a particular act would violate the statute. For example, smoking is clearly prohibited in certain areas, including bars and restaurants where food is served. This prohibition is unquestionably enforceable against someone who is smoking inside these restricted areas and, thus, illustrates how the statute is not impermissibly vague in all its applications. Another example as to why the statute survives a facial challenge is that the statute is clear that certain businesses cannot allow smoking and must post no-smoking signs. 13 It cannot be reasonably disputed that· this portion of the statute clearly outlines the requirements that a business owner prohibit smoking and post no-smoking signs. Once again, this requirement demonstrates that the statute is not unconstitutional in all its applications. Thus, under the lower level test of requiring appellants to show vagueness in all its applications, the statute is sufficiently clear to provide notice of what conduct is prohibited and adequate guidance to enforcement officials to avoid arbitrary or discriminatory enforcement."
"We conclude that vagueness permeates the NCIAA text in that it fails to provide sufficient notice of what conduct is prohibited and allows for arbitrary enforcement. With regards to both notice and arbitrary enforcement, the statute fails to adequately define to whom the Act is enforced against. While it is clear that a person cannot smoke in a restricted area, it is unclear if there is an obligation to affirmatively prevent smoking by a business owner, manager, or employee. The statute fails to explain whether business owners, such as appellants, have a responsibility to stop someone who is smoking in violation of the Act, and if so, what that responsibility entails. Consequently, we question whether it is sufficient, under the statute, to ask the person to stop smoking, or does the business owner have to demand that the person leave the premises, and if the person refuses to leave the premises, is the owner required to call the police? The statute fails to provide guidelines as to what action is required and how the statute is enforced, and therefore, it creates the possibility of arbitrary and discriminatory enforcement."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Various business entities challenged the facial constitutionality of the Nevada Clean Indoor Air Act's regulations of smoking in most indoor public places, which mandated both civil and criminal penalties for violations of the regulations. The court affirmed the lower court's holding that the statute violated due process vagueness doctrine when considered as a criminal measure, finding that the statute failed to provide clear standards for enforcement. The court further affirmed that, as a civil measure severed from the criminal prohibitions, the statute comported with due process vagueness doctrine. The court additionally held that the statute's differing treatment of establishments holding various types of gaming licenses did not violate equal protection standards and that neither the statute's smoking prohibition nor the statute's requirement that no-smoking signs be posted on private premises constituted an unconstitutional taking of property.