Amar Patel, co-owner of Magnum’s Cigars, Wine and Spirits

The Arizona Court of Appeals on Sept. 30 delivered a blow against the regulatory powers of the Arizona Department of Health Services by declaring that a luxury Phoenix tobacco shop and bar is exempt from the statewide smoking ban in public places.

The ruling overturns a Maricopa County Superior Court judge's decision in March that validated the department's argument that constructing a bar within Magnum's Cigar, Wine and Liquor Emporium nullified its exclusion from 2006 voter-approved Smoke-Free Act.

The act included several exceptions to the smoking ban, including retail tobacco shops that generate a majority of their sales from tobacco and related accessories. Under the law, retail tobacco shops also must have physical separations to prevent smoke from drifting into areas where smoking is prohibited.

The appeals court found no basis for the department's interpretation of the 2006 act that would forbid smoking in a tobacco shop that sells alcohol or also operates as a bar.

"Although the act specifies that the majority of a retail tobacco store's sales must be from tobacco products and accessories, it places no restrictions on the source of the other 49.9 percent sales," wrote Judge John Gemmill.

"I'm extraordinary pleased and happy for me and my family," said Amar Patel, who owns and operates the north Phoenix cigar lounge with his family. "It's always what we felt was right, and we felt that we were going to win this case."

Although pleased with the result, Patel said the ordeal, which began in 2007, has been extremely costly for the business. He estimated his legal fees will reach more than $100,000, and he said the legal fight has made it difficult to promote his business.

"Since this all started I haven't been able to promote my business in any direction," he said. "I haven't been able to promote it as a cigar shop. I wasn't able to promote it as a bar. This is what the state has cost us."

Don Herrington, bureau chief of Epidemiology and Disease Control for DHS, said he was disappointed by the ruling and said the department is currently examining "all of its options" to stop smoking in all bars and restaurants.

But Herrington acknowledged the most likely avenue will be another trip to court, and not to the Legislature. That's because amendments to voter-approved initiatives must be approved by a supermajority of legislators – a difficult hurdle, Herrington said.

Although the Smoke-Free Act carried an exemption for retail tobacco shops, Herrington said he is positive that voters in 2006 indicated they did not want smoking to occur in bars – as evidenced by the defeat of Prop. 206, a competing smoking measure that exempted restaurants and bars from a ban.

"The voters beat that proposal down," he said. "We clearly think the voters want a smoke-free environment in all bars and restaurants."

To track the progression of the year-long battle between the state and Magnums, see the following Capitol Times online archives: 

Judge Rules Against Cigar Bar (March 10, 2008) http://www.azcapitoltimes.com/story.cfm≠id=8284

Smoke Shop or Bar≠ (March 7, 2008) http://www.azcapitoltimes.com/story.cfm≠id=8276

Smoke and Mirrors (Feb. 29, 2008) http://www.azcapitoltimes.com/story.cfm≠id=8250