Tenth Circuit Court of Appeals Judges David M. Ebel, Mary Beck Briscoe and Michael R. Murphy heard arguments today from attorney Joel Spector, who is representing bar owners, and Jason Dunn, an attorney for the state of Colorado.
The bar owners are appealing a decision to uphold the smoking ban made by U.S. District Judge Lewis T. Babcock in October 2006.
The bar owners say the law violates the U.S. Constitution’s Equal Protection Clause because cigar bars and smoking lounges at Denver International Airport are exempt from the ban.
Casinos were exempt, but the legislature has now included casinos in the ban to take effect Jan. 1, which could make the appellants’ argument on that point moot.
However, the appellants believe that the legislature could always decide that the casinos are losing too much money and reinstate the exemption.
Dunn argued that the smoking lounges at the airport serve travelers from all over the world who would not otherwise have a place to go and smoke.
He also said that cigar bars are exempt because they are businesses that specifically sell tobacco.
The exemption for casinos, Dunn said, was initially allowed because there could be an adverse impact on the economy of mountain towns.
While the judges asked questions on both sides of the issues, Ebel wondered if exempting casinos that provide revenue to the state was unfair to independent bar owners.
“It seems to say the almighty dollar trumps the protection clause,” the judge said.
Felisa Cardona: 303-954-1219 or fcardona@denverpost.com
