Smoked

Despite the smoking ban, patrons are still happily smoking away inside Paris on the Platte at 15th and Platte streets. The venerable coffee shop is holding firm that it is exempt from the state's new Colorado Clean Indoor Air Act because it derives more than 5 percent of total gross income from tobacco sales, which is the law's litmus test for determining that a facility is a "cigar bar."

"For the past twenty years, we've sold import cigarettes and cigars way over 5 percent of our gross sales," owner Jeffrey Maguire told Westword last month (Off Limits, July 13). "Eventually, I'm sure we'll have to go to court and get an injunction and show that we've met the guidelines of the law. But Denver has not been responsible in getting some way of going out and verifying the sales figure so that you could have a certificate or something that would designate you as a cigar bar."

Since then, we've been trying to track down anyone — anyone! — who knows precisely what agency would be responsible for verifying tobacco sales and handing out official certifications. It seems Representative Mark Larson was wondering the same thing, and he asked the state's Office of Legislative Legal Services for a ruling on whether individual establishments can personally decide they are cigar bars based on their sales.

On July 31, the agency came back with this memo, and it's bad news for Maguire. The ruling is very Clinton-esque -- but instead of turning on the definition of "is," it all comes down to the definition of "and." The law states that income has to be derived from sales and humidor rental. So, according to OLLS, no humidor, no dice, no matter how much you made from the cancer sticks.

We still have no idea who will be deciding who is — and who is not — a cigar bar under the law, but here's the official memo from OLLS, retyped in its entirety. -- Amy Haimerl

LEGAL MEMORANDUM

TO: Representative Mark Larson

FROM: Office of Legislative Legal Services

DATE: July 31, 2006

SUBJECT: Smoking ban: Scope of "Cigar-Tobacco Bar" exemption

    I. Background

You have asked that this office provide you with our analysis of the intended scope of the "Cigar-Tobacco Bar" exemption from the "Colorado Clean Indoor Air Act" (Act), House Bill 06-1175. Specifically, you inquire whether a bar that generated zero income from the rental of on-site humidors during calendar year 2005 could ever qualify for the exemption.

    II. Issue Presented

Would a bar that, in the calendar year ending December 31, 2005, generated 5% of its total annual gross income or $50,000 in annual sales from the on-site sale of tobacco products (other than through vending machines), but no income from the rental of on-site humidors, qualify for the exemption provided by 25-14-203 (4), C.R.S., for a "cigar-tobacco bar"?

    III. Conclusion

No. Section 25-14-203 (4), C.R.S., sets fourth a threshold for requirements for income derived from tobacco sales and humidor rentals. Reading the "and" as an "or," or disregarding the humidor element entirely, would violate long-standing rules of statutory construction and create a loophole contrary to the clearly stated purposes of the Act.

    IV. Analysis

A. The statutory language

Section 25-14-203 (4), C.R.S., provides:

    25-14-203. Definitions. As used in this part 2, unless the context otherwise requires:

(4) "Cigar-tobacco bar" means a bar that, in the calendar year ending December 31, 2005, generated at least five percent or more of its total annual gross income or fifty thousand dollars in annual sales from the on-site sale of tobacco products and the rental of on-site humidors, not including any sales from vending machines. In any calendar year after December 31, 2005, a bar that fails to generate at least five percent of its total annual gross income or fifty thousand dollars in annual sales from the on-site sale of tobacco products and the rental of on-site humidors shall not be defined as a "cigar-tobacco bar" and shall not thereafter be included in the definition regardless of sales figures.

Id. (emphasis added)

On its face, the quoted section requires that the annual income threshold be calculated by using two elements, both derived from on-site activity. The elements are: (1) sales of tobacco products, and (2) rental of humidors. No dollar value is stated for either one separately, but together they must equal or exceed the threshold figure.

B. Plain meaning rule

The Colorado General Assembly has adopted statues to guide courts and the public in interpreting its enactments. The first of these, 2-4-101, C.R.S., embodies what is generally known as the "plain meaning rule." That section states:

    2-4-101. Common and technical usage. Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be constructed accordingly.

Id. According to the rules of grammar and common usage, "and" is a conjunction. The Merriam-Webster Third New International Dictionary (2002 cd., unabridged) gives a list of examples of usage and the equivalent phrases including "along with or together with"; "added to or linked to"; "as well as", etc. None of these examples suggests that "and" may imply a choice between alternatives, or that one of two items linked by "and" should be disregarded.

Similarly, "humidor" has a commonly understood meaning. A humidor is "a case or enclosure (as for storing cigars) in which the air is kept properly humidified : also : a contrivance (as a tube containing moistened sponges) placed in a case to keep the air moist." (Merriam-Webster, supra.) In the context of tobacco sales, particularly in view of the prevalence of the phrase "cigar bar", the meaning of this term cannot reasonably be questioned.

    C. Rule against disregarding words and phrases

Colorado courts have consistently emphasized the importannce of giving meaning to every word or phrase in a statue whenever possible. An 1889 opinion of the Colorado Court of Appeals (Thomas v. City of Grand Junction, 13 Colo. App. 80, 56 P. 665 1889) announced this rule, and it has been cited and applied by the Colorado Supreme Court as recently as 2001:

    An appellate court interpreting statutory provisions must attempt to effectuate the intent of the legislature. ... The plain language of the statue is the best indication of legislative intent, and clear and unambiguous language eliminates the need to resort to other principles of statutory construction such as legislative history or external circumstances at the time the statute was enacted. ... Courts should not presume that the legislature used language "idly and with no intent that meaning should be given to its language." McMillin v. State, 158 Colo. 183, 188, 405 P.2D 672, 674 (1965).

People v. J.J.H., 17 P.3d 159, 162 (Colo. 2001) (citations omitted). To the same effect, more strongly worded, is the statement in Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992) that "[a]bsent constitution infirmity, it is not within the judicial power to exclude from a statute that which the legislature expressly includes." Id. At 244. This principle has also been codified at 2-4-201 (1) (b), C.R.S:

    2-4-201. Intentions in the enactment of statues.
    (1) In enacting a statute, it is presumed that:
    (b) The entire statue is intended to be effective[.]

2-4-201 (1) (b), C.R.S.

Here, substitution of "or" for "and" in 25-14-203 (4), C.R.S. (allowing the annual income threshold to be met with reference to "the on-site sale of tobacco products or the rental of on-site humidors"), or disregarding the humidor language entirely, would effectively strike from the statue a distinct and meaningful element that the General Assembly evidently intended to include.

In Thomas v. City of Grand Junction, supra (Thomas supra. 13 Colo. App. At 83, 84, 56 P. at 667), the Colorado Court of Appeals substituted "and" for "or" in a statute empowering the city to "purchase or erect waterworks, ..., or to authorize the erection of the same by others." This was done in furtherance of legislative intent, so that the City could exercise all of its available powers to serve its citizens through the construction of a water system of its own, in addition to contracting for water service provided by a franchisee. The franchisee had contended that under the statue as written, the City could either purchase waterworks or erect waterworks, but not both. (Id.)

In contrast the suggested interpretration of 25-14-203 (4) C.R.S. would frustrate, rather than advance, the stated legislative intent of the Act by opening an unintended loophole and creating a new class of exempt business. Section 25-14-202, C.R.S., declares that:

    [I]t is in the best interest of the people of this state to protect nonsmokers from involuntary exposure to environmental tobacco smoke in most indoor areas open to the public, public meetings, food service establishment. ... [T]he purpose of this [Act] is to preserve and improve the health, comfort, and environment of the people of this state by limiting exposure to tobacco smoke.

Id. Given this clear statement of legislative intent, and the predictable result of eliminating the requirement that some income, greater than zero, be derived from the on-site rental of humidors to qualify under 25-14-203 (4), C.R.S., it is clear that the definition of a "cigar-tobacco bar" should be applied as written.

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