La Plata judge upholds smoking in bar

Sara Burnett and Bill Scanlon, Rocky Mountain News

Wednesday, January 31, 2007

A La Plata county judge may have given new hope to bar owners statewide who say they should be exempt from Colorado’s smoking ban because 5 percent or more of their revenues come from cigars and cigarettes.

Judge David Dickinson said revenues — not fancy humidors installed in upscale cigar bars — should determine which businesses are exempt from the ban.

While the ruling applies only in La Plata County, an attorney for the Durango bar owners who filed the lawsuit predicted it will be closely watched statewide.

"(The ban) needs to be fair," said Todd Risberg, attorney for the owners of Orio’s bar.

"Either there’s no smoking or people can smoke. It’s real unfair to favor fancy people and fancy bars over working-class folks who like to have a cigarette. The owners of those bars don’t have money to hire lobbyists to get an exception."

The Colorado Clean Indoor Air Act, approved by the legislature last year, provided an exception for so-called "cigar bars." To qualify, a business needs to prove that at least 5 percent, or $50,000, of its revenue came from the sale of tobacco products during the year ending Dec. 31, 2005.

The 5 percent or $50,000 had to come from tobacco sales — not including cigarettes from vending machines — "and the rental of on-site humidors," according to a memo issued in July by the Office of Legislative Legal Services.

Robert and Heidi Orio, owners of Orio’s bar in Durango, challenged that portion of the law last year, after the La Plata district attorney’s office filed charges against the bar for letting its patrons smoke.

The bar didn’t have a humidor in 2005, but it did make more than 5 percent of its revenues from tobacco products, the Orios said.

On Tuesday, Dickinson granted a permanent injunction prohibiting the district attorney’s office from filing more charges against the bar, provided its tobacco revenues remain high enough to qualify for the "cigar bar" exemption. (The original charges have since been dropped).

Robert Orio said the judge’s ruling "feels good for now." But he also said tavern owners still must fight a law proposed this legislative session that would require a rental humidor on premises to qualify as a cigar bar.

"Smokers need someone to fight for their rights," Orio said. "It seems like it’s just no smoking, no smoking all the time. It cost us a lot to fight this whole deal. We shouldn’t have had to fight it the first time. I should have the right to do what I want with my business as long as it’s within the parameters of the law."

Lawmakers approved the ban as a way of protecting the health of employees.

Orio, a non-smoker, scoffed at that logic, saying adults have a choice of where to work.