In round one of Bruce Hicks' fight against the state smoking ban, the Colorado Springs bar owner asked his attorney to deliver a knockout blow by showing the law was unconstitutional.
The law still stands.
In round two, Hicks wanted to show that Murray Street Darts was exempt because it qualified as a cigar-tobacco bar; again, he came up empty.
Now, after three years fighting the law and dozens of tickets alleging he broke it, Hicks says he's figured out how he and his customers can continue lighting up without any fear of legal intrusion: He's opened a tobacco shop inside his business at 609 N. Murray Blvd.
"It's a loophole," Hicks says. "It's not going to leave them anything to come after."
The crux of Hicks' claim, as explained by his attorney, James Dodd, is that the smoking ban legislators passed in 2006 is sloppy. It starts out by banning smoking in any indoor space, then lists a number of exceptions. You can smoke in a private home, for instance, as long as it isn't being used for childcare. You can smoke in a limousine, and in some hotel rooms.
And you can smoke in "any retail tobacco business," with no restrictions whatsoever.
That is what Hicks argues his customers have been doing ever since he formed CJ's Tobacco Shop, LLC, in September 2008. The smoke shop covers almost all of Murray Street Darts, except for the small area inside the bar where alcohol is stored.
Dodd argues the exception Hicks is using is just as good as the one that lets you smoke in your living room.
"It's what lawyers get paid for all the time," Dodd says, "and that is to find loopholes."
So far, the legal weight seems to be in Hicks' corner. He and several customers got nine tickets in early 2009, which they fought in court with Dodd's help. In September, El Paso County Judge Regina Walter issued her ruling.
"It's clear to me that the law that is currently written does have a loophole that would allow a bar and a tobacco business to co-exist, and thus avoid the prohibition of [smoking] within the bar," she wrote. "Regardless of what the Legislature intended, the law as written does provide that loophole."
Walter actually upheld the tickets, but only on a technicality. A bar employee sold cigarettes without being an employee of CJ's, thereby blurring the line between the two businesses. (Hicks says he's fixed that and is now appealing the tickets.)
So the loophole stands, and is being acknowledged, according to Colorado Springs police Detective Jeff True: "We have not been enforcing the smoking ban at Murray Street Darts."
Hicks still faces other hurdles, including possible suspension of his liquor license for installing a closet for the tobacco shop without following liquor board procedures. (Hicks and Dodd say, among other arguments, that the change was insignificant and didn't require permission; the matter goes before the board Friday.)
Dozens of bars across the state closed after the smoking ban went into effect in July 2006. Hicks says his business picked up only after he started fighting the next winter.
Though legislators could, theoretically, rework the smoking ban to do away with the smoke-shop loophole, Hicks is hopeful they'll focus on state budget woes and other matters, and leave him alone.
"This is a smoking bar," Hicks says. "I want to continue running this business as a smoking bar."