Johnson: Let's light up and cheer Roadhouse ruling

By Bill Johnson, Rocky Mountain News (Contact)

Published September 1, 2006 at midnight

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It has always been a bad bill, and not simply because it criminalizes a perfectly legal commodity, or because it is full of holes large enough for a big rig to drive through.

No, it is has always been a bad bill simply because it is state-sanctioned killing of small businesses, while it turns a blind eye to large, well-heeled, politically connected, similarly offending eating-and-drinking establishments.

In short, Colorado's 2-month-old anti-smoking law has never been fair.

It is why today we should all raise a glass to Rob and Heidi Orio, who stood fast and refused to simply go along. They actually read the new law and jammed it back down the throats of its unthinking authors, who threatened their only livelihood.

On Thursday, they and their attorney persuaded a Durango district court judge to issue a preliminary injunction that bars the local DA from prosecuting them for allowing their patrons to smoke, in the belief that they are exempt by fully meeting the law's 5 percent tobacco-sale requirement.

In short, you can smoke legally inside Orio's Roadhouse in Durango.

"Rob and Heidi had already proved to the city that they were in compliance," their attorney, Todd Risberg, said in an interview. "The DA disagreed."

The couple continued to allow smoking in the Roadhouse for 20 days after the July 1 effective date of the law, believing they had met its 5 percent-of-income standard, mostly through the sale of cigarettes.

Yet they had no humidor, which the legislature stuffed into the law to provide cover and a way out for a handful of upscale Colorado cigar bars.

Indeed, it was Rep. Mark Larson, of Cortez, who initially blew the whistle on the Roadhouse, his chief complaint being it had no humidor and wasn't upscale enough.

Attempts to reach Mark Larson were unsuccessful.

On Thursday, among the first people to light up inside the Roadhouse were its waitresses, the very workers the law ostensibly was designed to protect.

"I thought I had a shot," attorney Todd Risberg said of his going before the judge. "It is a legitimate issue. There are still some things to work out, like do we have the (5 percent) number or not, and the whole issue over the humidor. Whichever way it goes, we will live with that."

The judge has set a Jan. 17 hearing on the matter. And until then, Roadhouse patrons are free to light up. Legally.

The ruling has given a sliver of hope to other tavern owners, scores of whom in recent weeks have spoken publicly of impending fiscal disaster and potentially closing their doors if relief doesn't come soon.

"I'm right on the verge," said John Plessinger, who has owned the Nob Hill Inn, a downtown Denver beer-and-a-shot joint, for nearly 30 years.

"My daytime business is just gone. I've lost all the retired guys, who are just staying home and drinking in their own (places).

"They've been drinking and smoking for 50 years, a stubborn group that isn't about to change, and that really scares me. But then, I don't blame 'em. I wouldn't go stand outside, either."

The worst, he says, is he hasn't gotten a single new customer in exchange. And it hasn't been for not trying.

He installed new carpet to cut down the smell of smoke, cleaned the booths "as best as I can," purchased new bar stools and even replaced the joint's decrepit backdoor.

"There's not much else I can do," John Plessinger says.

So he's relying, he says, on a study he once read that says it takes about two months for business to bounce back after smoking bans go into effect.

"At least I'm hoping it's right, that the old guys get tired of being at home and want to come back and visit with their friends, even if it's half as many times. Right now, they're not coming in at all."

He figures he can wait to see what September brings, but has drawn a mental line in the sand, over which he will not cross. He will not stay in business if it doesn't pay.

"Most of us struggling now aren't newcomers to this business," John Plessinger said. "We know how to run a bar. But half of us (tavern owners), I guarantee you are going out of business soon.

"It's a hard road some of us will have to take. The worst part is, when we fail, it will be through no fault of our own."

Stupid law.

Bill Johnson's column appears Wednesday, Friday and Saturday. Call him at 303-954-2763 or e-mail him at johnsonw@RockyMountainNews.com.

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