Durango – A legal cloud has lifted from Orio’s Roadhouse – a Durango bar whose owners challenged the statewide smoking ban.
“Yes, there is smoking at Orio’s. They are exempt, at least for the rest of this year, from the indoor smoking ban,” said Joel Fry, the business owner’s attorney.
District Attorney Craig Westberg announced Wednesday that he was dropping the criminal case against Robert Orio, charged in mid-September with violating the state’s Clean Indoor Air Act.
Orio’s is the sole establishment in Westberg’s district claiming an exemption from the statewide smoking ban.
Orio said he was exempt because, as per the law, his tobacco sales accounted for at least 5 percent of the bar’s gross revenues.
In launching the first criminal prosecution in the state under the new law, Westberg contended that he simply had to show that a person was smoking in the bar. It was up to the bar to prove in court that it qualified for the exemption.
“I really think the presumption of innocence got lost in the political correctness,” said Fry, who said he was disturbed by Westberg’s zealous prosecution.
La Plata County Judge Martha Minot recently found that Orio simply had to raise the 5-percent defense and provide a scintilla of evidence for it; then the burden of proof was on the district attorney.
Westberg said he couldn’t get enough other evidence or testimony to refute Orio’s claim, and he dismissed the charges.
“The Clean Indoor Act was enacted to prohibit indoor smoking in public areas, with certain limited exceptions,” Westberg said. “One of those exceptions was, I believe, to permit smoking in a few establishments that specifically cater to smoking cigars and derive a substantial percentage of their income from (tobacco sales and) the rental of on-site humidors.”
Orio has no humidors, but he argued he didn’t need both tobacco sales and humidor rentals.
His next day in court is a trial set for Jan. 27. District Judge David Dickinson will make a ruling then on the humidor issue.
Staff writer Electa Draper can be reached at 970-385-0917 or at edraper@denverpost.com.
