Alfonso Larriva The Smokers Rights Hero Continues Fight

The Arizona Republic
Jun. 15, 2007 05:53 PM

The smoke will finally clear from four Phoenix bars where the owner was fighting the statewide smoking ban on a technicality.

Maricopa County Superior Court Judge Pendleton Gaines on Friday granted the state's request for a preliminary injunction to stop smoking at the bars owned by Alfonso Larriva.

Larriva, the first business owner to run afoul of the smoking ban that went into effect May 1, argued that windows converted into vents with louvered slats meant his bars were not technically "enclosed areas" and therefore smoking was allowed.

Gaines was not persuaded by the semantical argument, which focused primarily on the definition of "window" and "enclosed."

"It is an effort to defend the indefensible and explain the inexplicable," he said. "I don't think you can take the glass out of a window and make it something else."

In granting the injunction, Gaines said the state has a strong likelihood of winning further arguments if the case goes to trial. The state is seeking more than $100,000 in fines for dozens of smoking violations at Larriva's four bars - Metro Sportz Bar, Boomerang, Maverick Saloon and River City Pockets.

The state argued that every day that smoking continues at those bars, Larriva's competitors could lose business and the state loses credibility.

"We are losing confidence with the public that we have the ability and are effective and can get folks subject to the law complying with the law," said Will Humble, deputy assistant director of the Arizona Department of Health Services. Humble pointed out that Larriva had sent a letter to other bar owners suggesting ways that they, too, could get around the law.

Gaines, a smoker himself, said he agreed that there was a strong public interest in stopping smoking at the bars. Voters passed the law in November, he noted, and it doesn't really matter if everyone likes it or not.

"It may be that a lot of people think it is a dumb law," Gaines said, noting that there is a price to living in a democracy.

"You either believe in a democracy or you don't believe in a democracy, but the people have spoken," he said.

In defending himself, Larriva and his attorney, Douglas Erickson, offered engineering definitions of enclosed spaces and dwelled on how the slats on the openings meant they were no longer windows but vents. Larriva also testified that other state employees with the liquor department and gaming department agreed with him that the law was stupid and that he had found a loophole.

Larriva is the only business owner that has been cited since the law went into effect, though officials have received nearly 1,500 complaints about smoking violations. Humble said that the health department has received more than 50 complaints about Larriva's businesses.

After the hearing, Larriva said that he is weighing an appeal. He is also considering how he can further modify his bars to comply with the law, such as by putting in a large door that could open up a full wall of the building.

The injunction goes into effect when signed by the judge, which is expected within the next 10 days. In the meantime, Humble said health officials will continue to visit Larriva's bars to see if they are coming into compliance and continue to issue citations.