Thursday, July 13 2006
DURANGO, CO - While most of Durango went smoke-free along with the rest of the state July 1, denizens of one Main Avenue waterhole have gone smoking right along, with the tentative support of city officials and the strong opposition of one of the original legislative sponsors of the smoking ban.
City Manager Bob Ledger said an attorney and accountant representing Orio's Roadhouse, 652 Main Ave., presented evidence to his office that the bar should be allowed to skip the smoking ban under a provision exempting "cigar-tobacco bars."
"It appeared, just on the surface - and we didn't do any in-depth analysis - they were probably eligible for exemption," Ledger said.
But state Rep. Mark Larson, R-Cortez, who was among the sponsors of the legislation when it was first presented in 2005, Tuesday called Ledger's actions "inappropriate."
"That quite frankly upset me," Larson said. "Nobody contacted me or sought the legislative intent."
A cigar-tobacco bar is defined in the legislation as a bar generating at least 5 percent of its gross income from "the on-site sale of tobacco products and the rental of on-site humidors."
Orio's attorney Eric Sanford said the bar, to his knowledge, did not have a humidor but qualified by exceeding the 5-percent minimum through tobacco sales.
Ledger said he sent a memo to the Durango Police Department advising it of this conclusion and said to his knowledge the police consider Orio's exempt.
Larson said the Legislature was referring to five or six cigar bars that had made large investments in walk-in humidors when it created the cigar-tobacco bar exemption. While he said the Legislature had been "a little lax in the drafting" of the bill, he said the plain meaning of the passage delineating cigar-tobacco revenue sources was that a humidor was required for an establishment to qualify.
"It's not a loophole," Larson said. "They're obviously circumventing the law."
Sanford disagrees with Larson's interpretation, saying the "and" in "the on-site sale of tobacco products and the rental of on-site humidors" means "either, or, or a combination of both."
The problem is complicated by the law's failure to indicate who can declare an establishment exempt. District Attorney Craig Westberg said in the absence of other clear authority, the court would have to decide disputed exemptions.
"Our position is, if a case is brought to us we will prosecute it and treat (the cigar-tobacco bar exemption) as an affirmative defense," Westberg said.
Meanwhile, a civil action continues in federal court to block the enforcement of the law on the basis of unequal protections created by the exemptions, which include limousines, casinos, areas of the Denver International Airport and the so-called cigar-tobacco bars.
Larson explained the difference between Orio's and the cigar bars legislators had intended to receive the exemption by saying the Durango bar "is not an upscale kind of establishment."
Orio's management referred requests for comment to Sanford.
Another Durango bar, the 8th Avenue Tavern, also is working to keep its smoking clientele, but instead of seeking an exemption, owner Phil Roth has built an outdoor patio for smokers. The corner of the patio is directly adjacent to the bar's front door, but Roth said Tuesday he is aware of the 15- foot no-smoking zone around an entryway required by the law.
"I read that thing word for word several times," Roth said.
He said he would start by allowing smoking in the 5-foot-wide zone at the edge of the patio that is within the new structure but outside the 15-foot radius.
"We'll see how people do," Roth said. "If necessary, I'll move the door down 15 feet."
Source: Thomas Munro,
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, Staff Writer for The Durango Herald in Durango, CO
Published: July 12, 2006
