Thursday, July 20 2006
DURANGO, CO - In a single-page letter dated Wednesday, District Attorney Craig Westberg advises Orio's Roadhouse to comply with the smoking ban by 6 p.m. today or face the consequences.
"The choice is up to them," Westberg said in a telephone interview. "The ball is in their court right now. And if they fail to comply with the law, we'll take appropriate actions."
Westberg plans to send an investigator into the downtown bar at 6 p.m. today, and if patrons persist in smoking, the investigator will issue a citation to business owner Heidi LaCombe.
The petty offense is punishable with a $200 fine on the first offense, $300 on the second offense and $500 on subsequent offenses. The citation does not result in an arrest.
Whether Orio's will comply with Westberg's recommendation to cease and desist remains to be seen.
A bartender declined to comment, and the owner was out of town. Orio's attorney Eric Sanford said no decision had been made as of Wednesday night.
Sanford had little reaction to Westberg's letter.
"It is what it is," he said. "I have no idea why they're choosing to prosecute this."
In an earlier interview with The Durango Herald , Sanford said Orio's is exempt from the statewide ban because 5-percent of its sales are tobacco-related.
Last week, City Manager Bob Ledger told the Herald that an attorney and an accountant representing Orio's presented evidence to his office that the bar should be allowed to skip the smoking ban under a provision exempting "cigar-tobacco" bars.
The state's smoking-ban legislation defines a cigar-tobacco bar as a bar that generates at least 5 percent of its gross income from the "on-site sale of tobacco products and the rental of on-site humidors."
"It appeared, just on the surface - and we didn't do any in-depth analysis - they were probably eligible for exemption," Ledger told the Herald last week.
Ledger sent a memo to the Durango Police Department advising it of the city's conclusion.
However, state Rep. Mark Larson, a sponsor of the state's smoking-ban legislation, objected to Orio's claim for exemption. Larson said the lawmakers' exemption for cigar-tobacco bars referred to only a handful of cigar bars that had made large financial investments in walk-in humidors.
If the case goes to court, a large focus will be on wording of the state statute, Westberg and Sanford said.
"It is our intention to persevere and get a clear and concise resolution of this in the court system," Westberg said.
Source: Shane Benjamin (
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), writer for the Durango Herald in Colorado
Published: July 20, 2006
