DENVER—Bar owners who say Colorado’s smoking ban is pushing them out of business asked a federal appeals court on Thursday to overturn the ban, even though some fear a decision won’t come soon enough to save them.
A coalition of bars, taverns, bowling alleys and bingo halls asked the 10th U.S. Circuit Court of Appeals to rule the ban is unconstitutional. They argue the ban discriminates against them because the original law exempted casinos, cigar bars and smoking lounges at Denver International Airport.
The state argued it has logical reasons for granting exemptions and lawmakers have since extended the ban to casinos starting Jan. 1, 2008.
Appeals court judges heard oral arguments from both sides Thursday. Rulings in appeals cases usually take weeks or months.
Opponents of the ban filed suit after the law was passed in 2006. A U.S. District Court judge ruled against them last year, and they appealed to the 10th Circuit.
Joel Spector, a lawyer representing the coalition free of charge, told the appeals judges that exempting some businesses made no sense because the stated purpose for the law was to protect people from secondhand smoke.
The judges asked if that argument was still relevant, since lawmakers later expanded the ban to casinos.
Spector said the case is still valid because the state could reverse itself and allow smoking in casinos if it loses a lot of tax revenue.
Judge David Ebel said lawmakers can take incremental steps to fight smoking by exempting some businesses but still serve the purpose of protecting people from smoke.
“There’s less smoking after the statute than there was before the statute,” he said.
Jason Dunn, a former state assistant attorney general representing state government in the case, said Colorado had a right to exclude casinos because of the tax revenue they provide to the state—about $100 million in 2006.
Some of the revenue supports the state’s historical society and the three historic mountain towns where the casinos are located.
He said the airport was excluded because many of the smokers in the lounges are passing through the state and cannot go outside to smoke for security reasons.
Cigar bars were excluded because they were businesses that relied so much tobacco sales, he said.
To be exempt, cigar bars must have gotten at least 5 percent of their revenue from selling tobacco and renting humidors to patrons before the law passed.
Ebel seemed doubtful that revenue was enough reason to exclude casinos.
“You’re saying the almighty dollar trumps the equal protection clause?” Ebel asked, drawing a nod from one of the bar owners watching the hearing.
Ebel wondered whether a tire company could ask the government to put its competitor out of business if it agreed to pay higher taxes.
Dunn said economic reasons are valid as long as they have legitimate underlying state interest. In the tire example, he said, the state wouldn’t have a good reason to allow only one of the tire companies to exist, he said.
After the hearing, James Von Feldt, the owner of Billy’s Tavern in Denver, said he’s already decided to close his bar after New Year’s Eve, but a favorable court ruling could help other bar owners.
Von Feldt said nonsmoking patrons haven’t replaced the smokers, as some ban proponents predicted, and his revenue has dropped about 35 percent since the law passed. He said he had to subsidize the business by refinancing his home and borrowing against his house.
Before leaving, he shook Spector’s hand and invited him to his bar’s final night.
“I’ll buy you a beer,” Von Feldt said.
