Durango bar owners file suit seeking smoking ban exemption

DURANGO - A lawsuit in La Plata County District Court could determine whether the statewide smoking ban has a provision that would exempt some bars because of their tobacco sales.

The lawsuit, filed by Orio's Roadhouse owners Rob and Heidi Orio, argues their bar should be exempt because it meets one requirement of the law imposing the ban: that least 5 percent of its income come from tobacco sales.

District Attorney Craig Westberg says the law also requires the bar to have a humidor to qualify for a tobacco-sales exemption. Orio's doesn't have a humidor.

A hearing on the lawsuit is scheduled for Aug. 30.

The statewide ban, which went into effect July 1, prohibits smoking in most indoor public places but exempts casinos, cigar bars, the Denver International Airport smoking lounge and private workplaces with three or fewer employees.

State Rep. Mark Larson, R-Cortez, supports the district attorney's view. Larson said a memorandum from the legal office of the Legislature also says the bar would have to have a humidor to be exempt.

"We should get a reading on this once and for all or find out if the Legislature needs to go back and button some things up," Larson said.

The Orios continued to allow patrons to smoke in their bar until July 20, after Westberg threatened to fine them.

Their attorneys wrote in court filings that Westberg "should not be able to unilaterally impose his reading of the act upon (the Orios) to their economic detriment."

Westberg said he had not acted unilaterally.

"A law has been written, and it is my job to enforce the law, and that's what I intend to do with that or any other state statute," he said. "I'm simply doing my job."

A lawsuit pending in Denver federal court is challenging the constitutionality of the ban.

Zack Ford of the Colorado Licensed Beverage Association, a trade group representing bars, said enforcement of the ban has been uneven. "The ban is not uniform, and it's not being fair," he said.

Several small towns aren't enforcing it, he said.