News From TheBarsOfAmerica.com

May 13, 2009

BOULDER, Colo. - The word "and" allows smoking on the Pearl Street Pub's patio, but "both" could snuff it.

A Boulder District Court judge this month agreed with pub owner James Sonn's interpretation of the word "and" in Colorado's smoking ban, and ruled that it made his business a cigar bar, which meant he could allow patrons to smoke on the patio.

But the patio isn't awash in blue smoke yet. Sonn's lawyer, Ronald Jung, said he's reviewing the Boulder City Council's updated smoking ordinance, approved this spring, which might keep Sonn's and other patios smoke-free.

Jung takes issue with the timing of the public hearing for the city's ordinance, which was held March 17.

"I find it humorously suspicious that public comment in opposition to a smoking ordinance was invited on St. Patrick's Day night," a time when bar owners are likely to be rather busy, he said. "Chalk one up for the tyranny of the majority."

Jerry Gordon, Boulder's city attorney, said the city wasn't trying to exclude bar owners from the smoking debate. But, he said, the smoking ordinance could impact the Pearl Street Pub even though its owner just prevailed in court.

"The decision that was just made in this case was a decision about how the state law should be interpreted," he said. "But businesses in the city are also regulated by the local law."

Sonn's fight with the city of Boulder began last summer, when city environmental enforcement officers ticketed him for allowing patrons to smoke on the patio, in defiance of the state's 2006 Clean Indoor Air Act, which bans smoking with 15 feet of an entrance.

Sonn said the act's prohibitions shouldn't apply to his pub, because his business should be among those grandfathered in as cigar bars -- establishments where smoking is allowed under the act.

The act defines a cigar bar as an establishment that "generated at least 5 percent or more of its annual gross income or $50,000 in annual sales from the on-site sale of tobacco products and the rental of on-site humidors ... ."

Both sides agreed that the pub sold enough cigarettes and cigars to qualify. But Sonn didn't charge patrons to use the humidor, and hence didn't make any money from it.

Lawyers for the city said it wasn't enough to earn more than $50,000 from tobacco sales -- some of the pub's revenue needed to come from humidor rentals to qualify under the act, which requires income from "on-site sale of tobacco products and the rental of on-site humidors."

Sonn's lawyer disagreed: Under the statute, he argued, a cigar bar can earn that $50,000 through tobacco sales as well as humidor rentals, but bringing in money from humidor rentals isn't required.

Last year, Sonn lost his case in Boulder County Court, was fined $50 and court costs, and immediately appealed.

Boulder County District Court Judge M. Gwyneth Whalen sided with Sonn last week.

In her ruling, Whalen said both interpretations are plausible. But, she said, it makes the most sense to interpret the statute as requiring a bar owner to bring in $50,000 in revenue from tobacco as well as humidor rentals, but not necessarily both.

"This usage also may be understood by familiar analogy," Whalen wrote. "Two and two are four, yet four and zero are likewise four..."

In March, the Boulder City Council approved an updated smoking ordinance with several new provisions. One modified the state's language slightly to say that in order to be a cigar bar, an establishment would need to generate its $50,000 from "both the on-site sale of tobacco products, and the rental of on-site humidors..."

Contact Camera Staff Writer Ryan Morgan at 303-473-1333 or morganr@dailycamera.com.