A former Nebraska Supreme Court justice said this week the cigar bar bill approaching final reading in the Legislature would be found unconstitutional if challenged.

The American Cancer Society of Nebraska asked Norm Krivosha, a former Nebraska Supreme Court Justice and now an attorney in Naples, Fla., for the opinion on the bill (LB355), the Cancer Society's Dave Holmquist said.

Holmquist said he raised the question of constitutionality at the bill's hearing. His group sought the opinion from Krivosha before first-round debate because officials believed he would render an unbiased opinion.

"Our purpose was simply to get this on the radar screen," Holmquist said. "It's something that has to be seriously considered."

The bill would exempt cigar bars from the Nebraska Clean Indoor Air Act, which goes into effect June 1.

Krivosha said the exemption violates a section of the state Constitution that prohibits granting a corporation, association or person special or exclusive privileges, immunities or franchise.

According to the courts, any exemption must be based on real and substantial differences in situations and circumstances.

Krivosha cited a recent Nebraska Supreme Court case against the city of Omaha on exemptions in its smoking ban. In that case, the court struck down a section of the Omaha ban that temporarily exempted some stand-alone bars and keno parlors, horse-racing simulcasting locations and tobacco retail outlets.

The court said there were no real differences in the exempted businesses, and common sense dictated that they would receive an economic benefit.

The purpose of the Omaha ordinance was to protect public health, the court said.

The purpose of LB355 is for economic purposes, Krivosha said.

Why, he asked, is the smoking of a cigar and the drinking of fine scotch in a cigar bar more important that the smoking of a cigarette with a good Brazilian coffee in a restaurant?

Omaha Sen. Scott Lautenbaugh, who introduced LB355, said Krivosha is "just plain wrong" in saying there's no rational reason for exempting cigar bars.

The reason is the same one the Legislature used in exempting tobacco shops under the statewide smoking ban.

It is not a closed class, Lautenbaugh said. More businesses could enter it. The fact that there weren't many cigar bars in the past and may not be many in the future is determined by the market and financial considerations, he said.

Lautenbaugh said the Cancer Society paying Krivosha for the opinion makes him suspect the former justice's objectivity and motives.

Lincoln Sen. Bill Avery, who opposes the bill, said Krivosha has high standing in the legal community and has presented a well-argued opinion.

Sen. Mike Gloor of Grand Island, who also opposed the bill, said he was considering asking for an attorney general's opinion.

He brought up the constitutionality of the bill during debate Monday, but got no response from senators, he said.

Reach JoAnne Young at 473-7228 or jyoung@journalstar.com.