Return of smoking in Cripple Creek casino is generating heat

The smoke has been rising since Monday at Bronco Billy's Casino, and everyone's waiting to see whether it's extinguished . . . or if it spreads.

We're talking about cigarette smoke here, not fires. But the return of smoking in a Cripple Creek casino is generating plenty of heat.

Anti-smoking activists say Bronco Billy's doesn't meet the criteria to be exempt from the statewide smoking ban as a cigar bar, as the casino claims.

Cripple Creek police say they don't have the resources to determine what is a cigar bar. They say it's the state's problem.

The state Division of Liquor and Tobacco Enforcement says no way, the local authorities have to decide.

And the state legislator who wrote the smoking ban says the casinos and city are playing fast and loose with the law.

If it's hard to make out what's going on here, blame it on smoke getting in your eyes.

Bronco Billy's co-owner Marc Murphy designated a quarter of its floor space as a smoking section. He said he's tracked tobacco sales closely since 2005 to make sure they meet the cigar bar requirements - that 5 percent of sales or $50,000 annually come from tobacco sales.

He called another provision in the law, which says part of a cigar bar's proceeds come from the rental of space in a humidor, a "gray area." Bronco Billy's has a humidor, but it's a recent acquisition.

This is where things get sticky. The Cripple Creek police won't decide whether Bronco Billy's meets the criteria for a cigar bar. If the state wants to exempt cigar bars, the state should police the law, Cripple Creek Police Chief Gary Hamilton said.

"It's up to the state to make sure they are in compliance," he said. "I went down there personally and made sure the signs were the right size. I did not check any other compliance issues beyond that."

Not so fast, said Mark Couch, a spokesman for the state Department of Revenue, which includes liquor and tobacco enforcement.

"That's a local law enforcement issue," he said. "We don't enforce the Colorado Clean Indoor Air Act in restaurants, in bars, or in casinos."

State Rep. Anne McGihon, who sponsored both the 2006 Colorado Clean Indoor Air Act and the 2007 revision that removed the exemption for casinos, said that legislators had considered an amendment to give the Department of Revenue that authority, but that it never made it to a vote.

"I suspect that the manager of Revenue (Roxy Huber) is going to want to have a bill for her enforcement issues, and maybe we'll need to have a clarification issue again," she said. "For me, I really think they're all trying to draw loopholes in the law that are not there."

Passing enforcement off to the cities is an unfunded mandate, Cripple Creek city administrator Bill McPherson said. "This is the state's regulation and the state's requirement," he said. "The state is not providing any funds for enforcement. We've got all we can handle right now."

So for now, Cripple Creek's policy is if a casino attests that it meets the requirements to be a cigar bar, it's a cigar bar.

"Bronco Billy's has provided us with certification that they meet the state's requirement," McPherson said. "We take their word for it."

That drives Stephanie Steinberg, chairwoman of Smoke-Free Gaming of Colorado, nuts.

"This is scandalous. It's absolutely scandalous," she said. "It's truly a dereliction of duty when local law enforcement is turning their backs on enforcing state law."

Steinberg hopes the 4th Judicial District Attorney's office will investigate. The district attorney's office usually waits for law enforcement, a victim or complaining witness to ask before investigating, Deputy District Attorney Lin Billings said.

"We don't as a practice initiate our own investigations," she said. "Nobody has contacted us to initiate an investigation."

Perhaps the stakes would be lower if casinos were doing well, but since the smoking ban took effect Jan. 1, revenues have plunged by double-digit margins in Cripple Creek and elsewhere in the state. Casinos have lost millions, as has the state, which taxes casino earnings. The state gaming commission recently lowered tax rates for some midsize casinos to give them a break.

Eric Rose, general manager at the Colorado Grande Casino in Cripple Creek, says his receipts are off 10 to 15 percent this year - about average for the local casinos.

"We do attribute the vast majority of that to the smoking ban," he said.

If only one casino allows smoking, it has a big advantage, Rose said. So far, the other casinos are seeing what happens with Bronco Billy's before deciding to follow soot . . . er, suit.

"We just haven't decided if, one, that's something we want to do; two, do we qualify; three, is Bronco Billy's going to be continued to be allowed to do it?" Rose said. "It's kind of going to depend on what the rest of the market does."

The one casino that almost certainly won't allow smoking is the Wildwood Casino, an $80 million steel and wood edifice at the entrance to Cripple Creek that opened a week ago. Under the cigar bar exemption, the facility had to have met the 5 percent/$50,000 requirement in 2005 and in every year since.

"I don't think we have an opportunity if we wanted to go down that path and say that we're grandfathered in under the cigar bar," said Kevin Werner, general manager at the Wildwood. "We'll all be watching it closely and we'll see how it shakes out."

Meanwhile, at Bronco Billy's, the smokers are laying their bets, but there hasn't been a stampede to come in and light up.

"I probably see a little bit of an increase in business," Murphy said. "The new place (Wildwood) isn't affecting us as much as I thought it would."