Written by Staff

Wednesday, 30 January 2008

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smoking banstobacco legislation

DENVER - A federal appeals court rejected a challenge of Colorado's smoking ban on Tuesday, concluding that state lawmakers acted rationally when they exempted smoking lounges at Denver International Airport from the ban.

In November, a coalition of over 500 bars, taverns, fraternal orders and other groups asked the 10th U.S. Circuit Court of Appeals to overturn the ban.

They argued Colorado's Clean Indoor Air Act discriminated against them by banning smoking in their buildings while still allowing it casinos and cigar bars as well as the DIA lounges.

The law has since been changed to ban smoking in casinos and that objection is now moot, Judge Mary Beck Briscoe wrote in Tuesday's ruling.

Unless a law infringes on fundamental rights, Briscoe said states have "wide latitude" in deciding who is and who isn't covered by it.

In exempting the DIA lounges, Briscoe noted that the state said many of their customers are not Colorado residents, are in the airport a short time waiting for connecting flights and can't leave the airport to smoke.

"This obviously contrasts with most, if not all, of the patrons of plaintiffs' establishments, who, even with the enactment of the CCIA, have various options as to where they can smoke," she wrote.

The ruling didn't address lawmakers' decision to exempt cigar bars, defined as any bar which gets at least 5 percent of its income from selling tobacco and renting humidors.

That angered coalition member Shari Warren, the owner of the Spirit Keeper bar in Black Forest.

"If it's a health issue, then by gosh, it should be a health concern for everyone," said Warren, who would like to appeal the decision to the U.S. Supreme Court.

Joel Spector, the lawyer for ban opponents, said the court should have taken a look at the cigar bar exemption.

"The Legislature's goal was to protect the health of the non-smoking public. They exist in cigar bars, and in standalone bars and restaurants," said Spector, a lawyer with the Mountain States Legal Foundation who has been representing the group for free.

He said he would talk to members of the coalition to see if they wanted to appeal.

Jason Dunn, a former state assistant attorney general who represented the state in the case, said the court was right to look only at lawmakers' rational basis for the law.

"Regardless of whether you like the law or not, it's clear that the public policy debate ended when the governor signed the law into effect," Dunn said.

Last year, lawmakers considered getting rid of the cigar exemption fearing that bars were turning into cigar bars to skirt the ban but then backed off. The measure was killed in the Senate at the end of the session.

The smoking ban took effect in casinos on Jan. 1 and the Wild Card Casino in Black Hawk has claimed that it should be exempt because it is a cigar bar.

Warren said she's still in business only because she spent $65,000 of her savings on her bar and her only other competitor in the rural area closed after the passage of the ban.

She said the winter is especially hard because smokers sometimes don't stay very long or decide to smoke and drink their own alcohol in their cars rather than standing outside in the freezing weather.

"I don't even want to go to my bar when I'm not working on a cold night so how can I expect them to?" she said.

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