Durango – A La Plata County judge this morning set an Oct. 16 jury trial for Orio’s Roadhouse, cited last week for violating the statewide smoking ban despite the bar’s claims of exemption from the law.
The bar claims it is exempt because its over-the-counter tobacco sales equal or exceed 5 percent of its gross revenues. Robert Orio’s attorney, Joel Fry, said he filed a motion today raising this affirmative defense.
“All I must do is provide ‘a scintilla of evidence’ that tobacco sales are 5 percent of revenues and, at that point, the burden of proof shifts to the district attorney,” Fry said. “You don’t have to prove innocence in a criminal case.”
District Attorney Craig Westberg has said he simply must show that a person was smoking in the bar, and the bar must then prove it can claim exemption from the ban as a “cigar-tobacco bar.” It will be up to Judge Martha Minot to settle this difference in legal opinion.
Westberg pursued what he believes is the first prosecution of its kind in the state by issuing Orio a ticket Thursday. A district court judge’s preliminary injunction Aug. 30 stopped Westberg from prosecuting Orio’s as non-exempt because it did not provide on-site humidor rentals for cigar smokers. But the injunction, Westberg said, did not prevent prosecution on other grounds.
Orio faces a $200 fine if convicted. However, the real issue, Fry said, is that bar revenues are being irreparably harmed by the smoking prohibition, which the district judge acknowledged in granting his preliminary injunction.
Fry said he asked for a 6-person jury trial because, he said, he wanted a cross-section of the community involved in this case.
Westberg has said the Colorado Indoor Clean Air Act would be unenforceable if prosecutors had to prove that bars don’t meet the 5 percent revenue standard.
Before the law went into effect July 1, legal counsel for bar owners Robert and Heidi Orio asked the city of Durango to review its financial records. City Manager Bob Ledger sent a letter to Police Chief Al Bell stating that, after reviewing revenues, city officials found the bar met the legal requirements as an exempt establishment.
Westberg said the city manager doesn’t have the authority to declare the bar exempt, although it is unclear, under the law, who does.
Staff writer Electa Draper can be reached at 970-385-0917 or at edraper@denverpost.com.
