Cheers To You bar owner Robert Brown wants his customers to smoke if they want to.
And Brown said he found a way to keep his private club in Salt Lake City smoker-friendly despite, or maybe because of, the Jan. 1 smoking ban.
But Utah Department of Health officials, in a formal declaration issued Tuesday, said that loophole doesn't exist, and the smoking ban stays.
That was in response to Brown's petition filed earlier Tuesday asking the department to not enforce the smoking ban because cigarettes are technically excluded from the state's tax-code definition of "tobacco product."
And, Brown said, the smoking ban specifically applies only to tobacco products.
"I want them to enforce the language as it's written, which means we would still be allowed to smoke."
The Main Street bar owner said he found the inconsistency a few weeks ago while figuring out what the law banned and if hookahs -- a type of water pipe -- would be permitted. Such pipes are allowed only if nontobacco-based items are used, according to the health department.
Department spokesman Tom Hudachko disputes Brown's contention.
"The definition of a tobacco product is specifically for the purpose of taxing and doesn't apply to the Indoor Clean Air Act," Hudachko said, adding the distinction was made because cigarettes are taxed by pack and other products, like snuff, by weight.
But Brown said he has talked with his lawyer, and that's not legally correct. Right now, he is considering filing an appeal to the department's declaration.
"The real question is, how far am I willing to go to fight this fight?" he said.
The Utah Indoor Clean Air Act prohibits smoking, which is defines as "the possession of any lighted tobacco product in any form."
The Cigarette and Tobacco Tax and Licensing Act of the Utah Code includes three definitions for "tobacco product:" 1) that the product is made or contains tobacco; 2) includes moist snuff, and; 3) "'Tobacco product' does not include a cigarette."
