It’s no secret that some business establishments — mostly bars and restaurants — are continuing to defy Colorado’s new smoking ban.
That’s why we were glad to see state District Judge Chris Melonakis’ ruling last week on the subject, which paved the way for an appeal to the Colorado Supreme Court, where we might finally get clarification on the constitutionality of the new law.
Melonakis’ ruling overturned a lower court in a case involving the Oasis Cabaret bar and strip club in Adams County. The club was cited last year for allowing smoking in violation of the law. The county court dismissed the citation on grounds that Colorado’s statewide smoking ban is unconstitutional because it unfairly exempts casinos and cigar bars.
Melonakis disagreed, saying in court documents, “Permitting smoking in establishments that rely upon tobacco sales as a basis of income while precluding smoking in other establishments that derive income from other activities is not an irrational classification. The public interest in protecting the health of non- smoking patrons from harm in the latter establishments is a legitimate exercise of the state’s police powers.”
The legislature in 2006 passed a no-smoking law, called the Colorado Clean Indoor Air Act, prohibiting smoking in most indoor public places. Its goal was to protect nonsmokers from involuntary exposure to the ill effects of secondhand smoke. Numerous studies have underscored the dangers. The law, which took effect July 1 of last year, contained exemptions for casinos and cigar bars, among a few places.
Earlier this year, after fervid debate, the legislature wisely repealed the casino exemption effective July 1, 2008.
Still, numerous bars and taverns around the state have ignored the law, claiming the cigar-bar exemption which says that smoking is allowed if a business can show at least 5 percent or $50,000 of sales are from tobacco products and on-site rental of humidors. Some establishments have included cigarette sales in an effort to meet the 5 percent “cigar” bar standard or claimed they’re working toward the standard.
Earlier this year, a judge in La Plata County ruled that a Durango bar could count its cigarette receipts and does not have to have cigars or a humidor to qualify for the exemption.
The overwhelming majority of Coloradans have said in public opinion surveys that they wanted a smoking ban in public places. The legislature passed the law, in part, to avoid the patchwork of prohibitions that were cropping up in different jurisdictions around the state, creating an unfair playing field for some businesses.
It’s time for this smoking debate to be put to rest. We look forward to a quick legal resolution.
