Durango – A La Plata County judge on Tuesday set an Oct. 16 jury trial for a bar owner cited for violating the statewide smoking ban despite his claims of exemption from the law.
Robert Orio said his bar is exempt because tobacco sales equal or exceed 5 percent of its gross revenues. Orio’s attorney, Joel Fry, said he filed a motion Tuesday 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 prove it qualifies for the exemption.
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 Roadhouse as nonexempt because it did not provide on-site humidor rentals for cigar smokers. But the injunction, Westberg said, did not prevent prosecution on other grounds.
