Durango – The owner of Orio’s Roadhouse, the target of what is believed to be the first criminal prosecution under the statewide smoking ban, will appear in La Plata County Court today.
District Attorney Craig Westberg said he believes he can prosecute the Main Avenue bar for violating the Colorado Clean Air Act despite Bob Orio’s assertion that his establishment qualifies as an exempt cigar-tobacco bar because tobacco sales account for more than 5 percent of gross revenues.
“I just have to show that people were smoking in the bar,” Westberg said. “I believe the bar has to prove in court that it is exempt.”
Otherwise, he said, the law, which on July 1 made smoking indoors in public places a petty criminal offense, would be unenforceable.
Westberg initially ordered the bar to stop its patrons from lighting up in mid-July. His take on the law is that exemptions are granted for businesses that meet the sales figure and rent on-site humidors.
A district judge issued an injunction Aug. 30 stopping prosecution until a Jan. 17 hearing on whether Orio’s is the only bar in Durango that qualifies for the exemption.
That ruling prompted the return of indoor smoking to Orio’s.
But Westberg last week ticketed the bar owner for violating the new law. He said he believes he has the authority to proceed because people are smoking indoors, and the bar hasn’t shown to him that it is exempt under the tobacco-sales provision.
Orio attorney Joel Fry said he is frustrated by the vigorous prosecution.
“The DA has written a ticket without probable cause or without any evidence that Orio’s is in violation of the law,” Fry said.
The city of Durango wrote a letter certifying that the bar met the 5 percent standard, Fry said.
But Westberg said he does not believe the city manager has the authority to certify the exemption.
The legislation is silent as to who makes the determination.
“I am not elected to prosecute only those laws which I view as being perfectly drafted,” he said.
Seventh Judicial District Attorney Tom Raynes, who covers Montrose, Gunnison, Ouray, Delta, Hinsdale and San Miguel counties, said his take on the legislation is similar to Westberg’s.
“I believe if there is smoking going on in a bar, it is probably appropriate to cite, and they can raise the affirmative defense of meeting the tobacco-sales requirement,” Raynes said.
Staff writer Electa Draper can be reached at 970-385-0917 or edraper@denverpost.com.
