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City’s role should be to enforce the law

July 21st, 2006 at 12:44 am

http://www.durangoherald.com



When does a state law not matter? Apparently when local officials do not feel like enforcing it.

That seems to be the case in the matter of a Durango bar whose management does not wish to abide by Colorado's recently enacted statewide smoking ban. A lawyer for the bar's owners offered an imaginative argument claiming that the establishment is exempt from the law, and the city essentially shrugged and said "OK."

It is a decision that usurps the role of the courts and flies in the face of the expressed will of the state Legislature.

The operators of Orio's Roadhouse, in the 600 block of Main Avenue, have not enforced the smoking ban. An attorney and an accountant representing the bar met with Durango's city manager, Bob Ledger, and argued that Orio's need not comply with the ban because it falls under an exemption that allows smoking in "cigar-tobacco" bars.

That provision was meant to grandfather in a half dozen or so cigar bars - all along the Front Range - whose owners have invested in large, expensive humidors that they then rent to patrons for cigar storage. To meet the definition of a cigar bar, an establishment must show that at least 5 percent of its gross income comes from "the on-site sale of tobacco products and the rental of on-site humidors." Those humidors must also have been in place by Dec. 31, 2005. No new cigar bars are allowed.

Orio's books apparently show that at least 5 percent of its gross income comes from tobacco sales. On that basis Ledger decided it was exempt. He then sent a memo to Durango Chief of Police Al Bell advising him that Orio's met the requirements for the exemption.

But what about a humidor? Orio's lawyer explained that away by saying that the "and" in "the on-site sale of tobacco products and the rental of on-site humidors" in the language of the law does not really mean "and." Instead, he says "and" really means "either, or, or a combination of both."

Ledger seems to have accepted that reasoning. His memo to Bell explains the exemption solely in terms of tobacco sales.

But the merits of the exemption notwithstanding, the question is why Ledger or anyone else at the city felt the need to get involved in the first place. It is not the city manager's role to interpret state law; we have courts for that. All the city needed to do was issue a citation and let Orio's lawyer present his argument about what "and" means to a judge.

Cogent arguments can be made to the effect that a smoking ban is unneeded, unwise, a violation of property rights or an infringement of personal liberty. The Legislature heard them all. It then - rightly - decided that the dangers inherent in public smoking outweighed those considerations.

Those who disagree are free to challenge the law in court. For a more lasting fix, they can carry their outrage to the polls and pick lawmakers more to their liking. Or, if they are really upset, they can start putting together their own ballot measure to overturn the ban.

But there is no "I don't want to" exemption to the smoking ban or any other state law. And the city manager has no business aiding an attempt to establish one.

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