Durango – A blue haze again fills the dark interior of Orio’s Roadhouse on Main Avenue after La Plata County District Judge David Dickinson issued a preliminary injunction midweek prohibiting prosecution of the bar owners under the statewide smoking ban.
A spokesman for the coalition of bars challenging the ban in federal court extended “congratulations to Orio’s” on Thursday. But Jim VonSeldt, owner of Billy’s Inn at West 44th Avenue and Lowell Boulevard in Denver, quickly added that the decision just proves that the law has created inequities and confusion across the state.
Bob and Heidi Orio claimed an exemption from the state law that went into effect July 1 because, they said, they earned at least 5 percent or more of their 2005 income from tobacco sales.
District Attorney Craig Westberg said the bar also was required to have rented humidors for cigars by the end of 2005 to qualify for an exemption from the ban as a cigar-tobacco bar.
“(The Orios) believe they have the right to run their business as they see fit within the law,” Orio’s attorney Todd Risberg said. “And they believe they are within the law.”
The law reads: “Cigar-tobacco bar means a bar that, in the calendar year ending December 31, 2005, generated at least 5 percent or more of its total annual gross income or $50,000 in annual sales from the on-site sale of tobacco products and the rental of on-site humidors, not including any sales from vending machines.”
Risberg said the Orios interpret the law to mean that their combined income from tobacco sales and any humidor rentals must equal or exceed 5 percent of bar revenues, but it doesn’t necessarily mean that both types of revenues are required.
VonSeldt said the law is similarly interpreted in Aurora, Westminster, Castle Rock and Montrose. But in other places, officials have said bar owners must also have humidors.
The Orios defied the ban until July 20, when Westberg threatened to begin fining them. They then filed for the injunction.
Dickinson said Wednesday that the state statute was probably ambiguous.
His order protects Orio’s from enforcement of the ban at least until a Jan. 17 hearing on whether this bar is the only bar in Durango that qualifies for the exemption.
Risberg said the judge found that it was likely that the ban would have caused his clients to lose money and it was possible to interpret the law, as written, in their favor.
“Right on, Orio’s Roadhouse,” said 30-year-old patron Laura Boyher. “In Durango there were already so many choices of nonsmoking bars before the ban. There were only three or four bars that allowed smoking.”
VonSeldt’s group, Coalition for Equal Rights, is challenging the ban in federal court.
State lawmakers chose to exempt only casinos, tobacco shops, cigar bars, the smoking lounge at Denver International Airport and private workplaces with no more than three employees.
By exempting casinos and not other industries that rely on smoking customers, the law violates the Equal Protection Clause of the U.S. Constitution’s 14th Amendment, the coalition says.
