A Phoenix cigar shop has won a battle against the state Department of Health Services that will allow it to continue to allow smoking on the premises even though the shop also sells liquor.
The Arizona Supreme Court on March 17 refused to hear the Arizona Department of Health Services' appeal of a previous court ruling that gave immunity from the 2006 voter-approved statewide smoking ban to Magnum's Cigar, Wine and Liquor Emporium.
The decision appears to bring an ending to a clash between the department and the owners of Magnum's, a north Phoenix cigar shop that opened a bar last year to allow customers to drink and smoke on the premises.
The 2006 Smoke-Free Arizona Act forbids smoking in public establishments such as restaurants and bars, but left a loophole for businesses that earned more than 50 percent of their revenue from the sales of tobacco and tobacco-related products.
Owners Amar and Mahendra Patel were given multiple assurances by the Department of Health Services in 2006 and 2007 that constructing and operating a bar within the shop would not violate the terms of voter-approved initiative or the department guidelines.
The assurances were also echoed by the city of Phoenix Planning Department, which agreed the cigar shop fully complied with the act and granted a permit to start construction in May 2007, according to court documents.
However, in October 2007, the Department of Health Services issued a substantive policy statement that effectively outlawed smoking in businesses that also sold food or alcoholic beverages.
The Patels filed a lawsuit claiming that DHS sought to circumvent the act's intentions, and specifically sought to damage tobacco stores that were targeted by state enforcers of the Smoke-Free Arizona Act.
As proof, Kraig Marton, an attorney hired by the Patels, produced documents obtained through public records requests that showed the department knew 13 of 26 known tobacco stores would be affected by the policy switch, as well as 25 identified “hookah bars.”
But, the store's legal battles were restricted to whether the department had correctly interpreted that a liquor license held by Magnum's allowing on-site consumption invalidated the shop's exemption from the smoking ban.
In September 2007, Maricopa County Superior Court Judge Richard Trujillo ruled that it did by creating a non-existing exemption for “cigar bars” that violated the "spirit and purpose" of the law.
Will Humble, then assistant director of the Arizona Department of Health Services, responded by releasing a statement through a department spokesman that called Trujillo's ruling “an important victory for Arizona's Smoke-Free Act.”
“The real winners, though, are the employees and customers who no longer have to involuntarily breathe someone else's toxic smoke," according to the statement by Humble, who is now the department's acting director.
But the department victory was short-lived. A three-judge panel of the Court of Appeals unanimously overturned the ruling, finding no basis for the department's interpretation of the act.
“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 of sales,” wrote Judge John Gemmill.