Prout v. Nebraska Dept. of Health & Human Servs.

146 	275 Nebraska reports
W ill P rouT And biG J oHn ’S billiArdS, inc ., A nebrASkA
corPorATion , APPellAnTS, v . nebrASkA dePArTmenT
of H eAlTH And H umAn S erviceS reGulATion
And licenSure , APPellee .
745 N.W.2d 570
Filed February 22, 2008. 	No. s-06-764.
1. Administrative Law: Judgments: Appeal and Error. a judgment or final order
rendered by a district court in a judicial review pursuant to the administrative
procedure act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record. When reviewing an order of a district court under
the administrative procedure act for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.
appeal from the District Court for Lancaster County: STeven
d. burnS, Judge. affirmed.
andrew M. Loudon and Jacob Wobig, of baylor, evnen,
Curtiss, Grimit & Witt, L.L.p., for appellants.
teresa M. hampton, special assistant attorney General, for
appellee.
H eAvicAn, 	C.J., 	W riGHT, 	connolly, 	G errArd, 	STePHAn,
mccormAck, and miller -lermAn, JJ.
W riGHT, J.
NatUre oF Case
big John’s billiards, Inc., and its owner, Will prout (collec-
tively big John’s), sought a waiver under the Nebraska Clean
Indoor air act (act), Neb. rev. stat. § 71-5701 et seq. (reissue
2003 & Cum. supp. 2006), to allow smoking in pool halls
in Lincoln and omaha. the Nebraska Department of health
and human services regulation and Licensure (Department)
denied the waiver, and big John’s filed a petition for review
in the Lancaster County District Court. the court affirmed the
denial of the waiver. big John’s appeals.
sCope oF reVIeW
[1] a judgment or final order rendered by a district court in
a judicial review pursuant to the administrative procedure act
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

may be reversed, vacated, or modified by an appellate court for
errors appearing on the record. When reviewing an order of a
district court under the administrative procedure act for errors
appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Belle Terrace
v. State, 274 Neb. 612, 742 N.W.2d 237 (2007).
FaCts
the pool halls at issue are located in 13,000-square-foot
buildings. each has only one front door for use by custom-
ers. the pool halls include a bar and a delicatessen where
“burgers and fries” are prepared. the buildings have 18-foot
ceilings, and each building has six large “smoke eaters” to
remove smoke. a warning sign posted on the front door of
each pool hall states: “WarNING[:] ‘sMoker FrIeNDLY
pooL haLL[.]’ the air in this building may be hazard-
ous to your health[.] NoN-sMokers eNter at at [sic]
YoUr oWN rIsk[.] It’s YoUr ChoICe[.] Cigarette smoke
Cleaned electronically[.]”
Under the act, a waiver from its provisions may be granted
by the Department if an applicant demonstrates compelling
reasons for a waiver and establishes that the waiver will not
significantly affect the health and comfort of nonsmokers.
big John’s filed an application seeking a waiver for the pool
halls. the Department determined that big John’s had not
met the requirements of the act, and it denied the request for
a waiver.
after the denial, big John’s requested a hearing before the
Department. evidence at the hearing applied in large part to the
omaha pool hall only because, at the time of the administrative
hearing, Lincoln had passed a city ordinance banning smoking
entirely, and prout said the Lincoln facility was in compliance
with the ordinance. at that time, omaha did not have an ordi-
nance banning smoking in public places.
prout testified that when the pool hall was full, 90 percent
of the customers smoked. he said it was not possible to have
a nonsmoking area at the time he built the pool halls 25 years
ago. he had not attempted to modify the buildings because he
did not believe it was possible to create nonsmoking areas that
proUt v. Nebraska Dept. oF heaLth & hUMaN serVs. 	147
Cite as 275 Neb. 146

148 	275 Nebraska reports
would comply with the act’s requirements. any modification
would require removal of some pool tables to build a second
handicapped ramp. according to prout, the food service area
could not be separated because customers are “wandering
around. they’re playing pinball. they’re going to the dart
machines. they’re playing shuffleboard. they’re sitting there at
the tables.” the pool tables cannot be moved because of their
weight and because the lighting above the tables was installed
25 years ago. a pool cue is 5 feet long, and prout said there
needs to be room between tables to “draw the stick and shoot
the balls.” prout said moving the tables closer together would
create space problems. prout said it did not make sense to
convert 50 percent of the business to nonsmoking when 90
percent of his customers were smokers, because he would
lose revenue.
applications for employment with big John’s had the follow-
ing statement at the top of the form:
big John’s billiards is a smoker friendly pool hall and
your employment will expose you to secondhand smoke.
secondhand smoke is a documented health hazard result-
ing in many diseases that may cause death. the effect of
secondhand smoke is a non-issue to smokers. employment
of non-smokers is at the discretion of the management. by
signing this application you are exercising your right to
work in a building that is not smoke-free and protected by
the laws of the local city government.
todd Falter, who oversaw the act as the environmental
health programs manager for the Department, recommended
denial of the waiver. he testified that big John’s came within
the statutory definition of a retail store because it sold pool
cues and t-shirts, it came within the statutory definition of a
bar because it sold alcohol, and it came within the statutory
definition of a restaurant because it served food. Falter said
the economic effect of the act on a business was not a factor
in determining whether a waiver should be granted. rather, the
decision was based on public health concerns. Falter said one
waiver had been granted in the previous 2 years—for the Lied
Center for performing arts in Lincoln to allow smoking onstage
by performers.

Falter said one factor taken into consideration in denying the
waiver was that food inspectors, liquor commission inspectors,
tax commissioners, and law enforcement representatives could
all be required to enter big John’s as a part of their employ-
ment, and they would be required to be in a smoking area
against their wishes.
Falter stated that the pool hall could be divided to provide a
nonsmoking section which would allow smokers to have access
to all the same facilities available to nonsmokers while not
requiring nonsmokers to pass through the smoking area to use
the amenities of the establishment. the act does not require
that the amenities be equal in both sections. It requires only
that access be provided to all amenities, Falter said.
after the hearing, the Department’s director entered an order
finding that big John’s had not demonstrated a compelling rea-
son to grant a waiver, that big John’s had failed to demonstrate
that the waiver would not significantly affect the health and
comfort of nonsmokers, and that the health and comfort of non-
smokers would not be protected as well with a waiver as they
would be under the provisions of the act. the director affirmed
the denial of the application for the waiver.
big John’s sought review in the district court. the court
affirmed the decision of the Department, finding that big John’s
should not be granted a waiver for either location.
assIGNMeNts oF error
big John’s claims that the district court erred in conclud-
ing (1) that the Department did not err in determining that the
reasons given by big John’s for requesting a waiver from the
act were not compelling and that granting big John’s a waiver
from the act would significantly affect the health and comfort
of nonsmokers and (2) that the refusal of the Department to
grant a waiver from the act was not unreasonable, arbitrary,
and capricious.
aNaLYsIs
the purpose of the act is to “protect the public health, com-
fort, and environment by prohibiting smoking in public places
and at public meetings except in designated smoking areas.”
proUt v. Nebraska Dept. oF heaLth & hUMaN serVs. 	149
Cite as 275 Neb. 146

150 	275 Nebraska reports
§ 71-5702. a waiver from the act’s requirements may be
granted if the Department “determines there are compelling rea-
sons to do so and a waiver will not significantly affect the health
and comfort of nonsmokers.” § 71-5711. the Department’s
regulations provide little additional guidance as to the factors
that will be taken into consideration to determine whether to
grant a waiver. the regulations state: “In order to grant a waiver,
the Department must determine that the health and comfort of
nonsmokers would be protected as well under a waiver as if
there were compliance with the act.” 178 Neb. admin. Code,
ch. 7, § 006.03 (2003).
at the hearing before the Department, prout testified that 90
percent of the customers in the pool halls smoked. he stated
that it would not be possible for him to make part of the build-
ing a nonsmoking area in order to comply with the act. the
compelling reason he presented for the waiver was the decrease
in revenue he believed would occur if smoking was not allowed.
prout said that after the smoking ban was passed in Lincoln, the
revenue for the Lincoln facility was cut in half, dropping from
$600,000 per year to $300,000 per year. however, the record
showed that the Lincoln facility had reopened and was comply-
ing with the city ordinance at the time of the hearing.
there was evidence that the pool halls had only one public
entrance, and even if customers were warned by the sign at the
entrance, other persons, such as food inspectors, liquor com-
mission inspectors, tax commissioners, and law enforcement
representatives would be required to enter big John’s as a part
of their employment. employees were informed on the employ-
ment application that the pool halls allowed smoking, but there
was no area where nonsmokers could avoid the smoke caused
by the 90 percent of the customers who smoked.
a drawing of the layout of the omaha pool hall was entered
into the record. It indicates a single public entrance. Customers
check out billiard balls and request a table at a billiards desk.
prout explained that when customers make a reservation for
a table, they are assigned the next available table regardless
of its location. the billiards desk is located next to a bar and
delicatessen area where food is served. there are 12 pinball
machines near the bathrooms, which are in the corner near the

front entrance. prout said he cannot simply divide the pool hall
in half because there is only one restroom, so he could not make
one restroom available for smokers and one for nonsmokers.
however, Falter stated that the facility could be configured
to come into compliance with the act. the most obvious way
would be to divide the building in half and create a nonsmok-
ing section near the entrance. It could include pool tables and
stools and still allow access to the restrooms and food area.
additional pool tables, other tables, and stools at the rear of the
building could be designated as a smoking area. prout disputed
that the building could be adequately divided because 90 per-
cent of the patrons are smokers.
the district court found that big John’s had not shown that
granting a waiver would not significantly affect the health and
comfort of nonsmokers or that nonsmokers would be protected
as well as they would be if there was compliance. the court
found no merit in the argument by big John’s that it is a public
place that was not contemplated by the Legislature when the
act was written. although big John’s argued that undue finan-
cial burden should be a consideration in granting a waiver, the
district court noted that Nebraska law does not mention finan-
cial burden as a basis for a waiver. the court stated that legis-
lative history suggests financial consideration was not intended
as a factor because the Legislature stated that the health, wel-
fare, and comfort of the citizens far outweighed the economic
effects as a result of the act.
the district court noted that even if financial burden were a
consideration, big John’s had not presented evidence of such.
the omaha facility could come into compliance by designating
half of its existing facility as nonsmoking, but big John’s had
made no attempt to come into compliance. the court found that
nonsmoking members of the public were required to enter the
building, including health inspectors and law enforcement.
a judgment or final order rendered by a district court in a
judicial review pursuant to the administrative procedure act
may be reversed, vacated, or modified by an appellate court
for errors appearing on the record. Belle Terrace v. State, 274
Neb. 612, 742 N.W.2d 237 (2007). When reviewing such an
order, the inquiry is whether the decision conforms to the law,
proUt v. Nebraska Dept. oF heaLth & hUMaN serVs. 	151
Cite as 275 Neb. 146

152 	275 Nebraska reports
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. see id.
the district court’s order was not arbitrary, capricious, or
unreasonable. big John’s did not demonstrate any compelling
reason for a waiver except to argue that it would be impacted
financially. the act does not identify financial burden as a
compelling reason for a waiver. In addition, big John’s did not
show that the health and comfort of nonsmokers would not be
significantly affected if a waiver were granted. simply provid-
ing warnings to persons who enter the building does not protect
them from smoke. and the claim that 90 percent of the custom-
ers smoke does not support a finding that the health and com-
fort of the other 10 percent would not be significantly affected
if a waiver were granted.
prout testified that he had made no attempt to comply with
the act’s requirements. In fact, he did not believe it would be
possible to come into compliance by modifying the pool halls.
however, Falter, the Department’s representative, testified that
big John’s could divide the omaha building into smoking and
nonsmoking areas and thereby comply with the act.
CoNCLUsIoN
We find no error on the record. the record shows that the dis-
trict court’s affirmance of the Department’s denial of a waiver
conformed to the law, was supported by competent evidence,
and was not arbitrary, capricious, or unreasonable. the judg-
ment of the district court is affirmed.
A ffirmed .
lAnA S ue S imPSon , APPellAnT, v .
roberT euGene S imPSon , APPellee .
744 N.W.2d 710
Filed February 22, 2008. 	No. s-06-1461.
1. Modification of Decree: Appeal and Error. Modification of a dissolution decree
is a matter entrusted to the discretion of the trial court, whose order is reviewed
de novo on the record, and which will be affirmed absent an abuse of discretion
by the trial court.