A district court judge ruled today that the state has the right to ban smoking where it sees fit — a decision that dashed the efforts of an Adams County topless club to permit smoking by its patrons.
“The public interest in protecting the health of non-smoking patrons from harm…is a legitimate exercise of the state’s police powers,” said District Judge Chris Melonakis.
The Oasis Cabaret in Adams County had won a widely reported victory in April when Adams County Judge Robert S. Doyle ruled the state’s smoking ban was unconstitutional because of an exemption for cigar bars.
The Oasis had been cited four months earlier for allowing smoking and decided to fight the ticket.
Doyle sided with the Oasis in their fight, ruling that the smoking ban violated the due-process of owners because it didn’t give them the chance to establish their businesses as cigar bars. The law specifically exempted cigar bars from its provisions.
But in overturning Doyle and ruling that the state can enforce the ban at the Oasis, Melonakis said that Doyle heard legal arguments only and was presented no evidence.
As a result, Melonakis said, he was not bound by Doyle’s ruling.
Melonakis said that the Colorado Supreme Court has repeatedly held that when a party — such as the Oasis — challenges the constitutionality of a law, it must prove it is unconstitutional beyond a reasonable doubt. In addition, the Oasis had to show that there were no “conceivable set of circumstances” where the challenged law could ever be applied in a legal fashion, he said.
He noted that in October of 2006, Chief U.S. District Judge Lewis Babcock upheld the state smoking ban which had been challenged by a coalition of tavern and bowling-alley owners.
In doing so, Babcock said that legislatures have broad discretion to make economic and social distinctions in the “pursuit of valid public policy goals.” Courts, Babcock declared, may strike such legislation only if the distinctions are irrational and completely unrelated to any conceivable public policy.
At the time, the exceptions to the smoking ban included casinos, cigar bars, airport lounges and small businesses.
Melonakis said he was adopting Babcock’s constitutional analysis. In doing so, he said he found that the Oasis failed to show that the smoking ban’s classification lacked a rational basis or there are any conceivable set of circumstances where the law couldn’t be applied legally.
“While (Oasis) asserted…that the act violated equal protection because cigar bars were exempted from the act’s penal provisions, Judge Babcock’s reasoning is equally applicable to the cigar bar exemption,” Melonakis said. “The legislature has a conceivable legitimate basis to distinguish between other public buildings and cigar bars because the latter are regulated establishments that have substantial sales of lawful tobacco products as (a) primary focus of their business.”
Staff writer Howard Pankratz can be reached at 303-954-1939 or hpankratz@denverpost.com.
