Johnson: Anti-smoking zealots get swift kick in the backside

By Bill Johnson, Rocky Mountain News (Contact)

Published March 21, 2007 at midnight

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It has to be the dumbest, most-transparent piece of legislation ever. And in Colorado, that is saying a lot.

It is why, standing face to face with Rob and Heidi Orio after their latest legislative battle, it is almost impossible to know whether to congratulate or resent them for taking on the system and kicking it square in the mouth.

A state Senate committee killed legislation Tuesday that would have eliminated an exemption in last year's Colorado Clean Indoor Air Act that allowed customers in the Orios' restaurant and bar, the Roadhouse, to continue smoking.

The legislation, regardless of what its sponsors repeatedly say, clearly was designed to foil the Orios, who had the guts and money to challenge first the city of Durango and, later, the local district attorney, demonstrating that they, indeed, were in full compliance with terms of the smoking ban enacted a year ago.

In addition to casinos, cigar bars and the smoking lounges at Denver International Airport, the law exempted any establishment that derives 5 percent or $50,000 of its revenue from the over-the-counter sale of tobacco.

The Orios read the law, checked and rechecked their ledgers, and told their customers to light up. Shortly thereafter, Mark Larson, the anti-smoking Republican and then-House representative from Cortez, walked in.

When the city begged off going after them, saying the Orios were in compliance with the law, he went to the DA, who later stepped away from the case when a judge informed him he could not prevail.

The Orios then went before another judge to find out for certain if they were in compliance with the letter and spirit of the law. That judge ultimately ruled in their favor.

Fast forward to January. Ellen Roberts, elected to succeed the term-limited Mark Larson, introduced a bill that would close the 5 percent-or-$50,000 exemption.

She insisted her first-ever bill was not aimed at Rob and Heidi Orio. It easily passed the full House.

The Senate version never made it out of committee.

"I didn't think it was fair," said Sen. Chris Romer, D-Denver, who opposed the measure, "for us to so dramatically affect people's lives on such short notice.

"I'm in favor of a smoking ban, but I've never liked this law's inequity. To me, if it is good enough for the Bud Light group, it ought to be good enough for the martini crowd."

"I want to thank everyone who supported us," Heidi Orio said, standing in the hallway outside the committee room. "Ellen Roberts is our state representative, but it has seemed to us the only person in her district she was representing was Mark Larson. There, I said it."

It is the kind of bitterness that can only come when laws are written that clearly give preferential treatment to a select few moneyed interests.

Legislators who drafted and supported the state's smoking ban will tell you with a straight face that their sole interest was public health. It is nonsense.

The casinos and their lobbyists know this. Black Hawk, Central City and Cripple Creek casinos pump much-needed millions into cash-strapped Colorado's coffers every year.

Who is willing to give up $15 million in tax revenue to improve public health, a casino lobbyist boldly asked the Senate committee last week that was considering whether to extend the smoking ban to casinos.

The bulk of Democratic senators on the committee raised their hands. That bill, yet another makeup from last year's knuckleheaded attempt to make the state smoke-free, is awaiting an official vote in the Senate. In a stunner, it was amended to wipe out all exemptions, including DIA and tobacco bars.

So now Rob and Heidi Orio move into yet another privileged class, their Roadhouse becoming just another smoking haven in a state where lighting up is supposedly outlawed.

And good on them. They didn't write this silly law, only saw through it and abided by it. Their business, as a result, has been booming. They are sheepish when asked about it.

They know, too, their victory likely is temporary, that the legislature undoubtedly will revisit their exemption come next January.

"We will be here," Rob Orio vowed.

In the meantime, scores of other bar and tavern owners, men and women with employees, mortgages and bills to pay, with lives to live, are closing their doors. How foolish of them for not making more money to hire fancy lobbyists and save themselves.

Diane F. Roth of the Colorado Licensed Beverage Association, which represents small bar and tavern owners, said at least 60 establishments have closed their doors since the act went into effect last July.

"It has been so tragic," she said. "So we're working now to just keep others in business."

Once again, this foolery has never once been about smoking or, even, public health. From Day One, it has been about inequality.

And whether you smoke or not, it should just be outrageous.

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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