March 15, 2000

What Law? Diners Keep On Puffing


Say you're having dinner somewhere hot on a hot date, and things are moving to the next level, when a cancerous cloud wafts across your table. Four people at the next booth seem to have lighted up a pack of Marlboros simultaneously. A waiter hurries over -- and hands them an ashtray. Your date begins to cough. 

This was not supposed to happen in New York anymore. Smoking in restaurants with more than 35 seats has been banned since the Smoke-Free Air Act was passed in 1995. Even antismoking advocates, content to have won the war over the dining room, have shifted their crusade to the bar. But while fewer diners may be consuming first- or secondhand smoke, a newly hardened resistance is digging in. Social and serial smokers are puffing away at an underground network of restaurants that would rather risk a health inspection than alienate valued customers. 

"I don't enforce the law," said Raju Mirchandani, who owns two East Side bistros, Le Bateau Ivre and L'Ivre. "I prefer to leave it on a courtesy basis." 

Mr. Mirchandani said 90 percent of his clientele smokes, "so the majority rules." He has had inspectors come in and post the necessary signs. "But in most cases, people ignore them, and we look the other way." And nobody complains? "You get the odd person who snarls at the smoke, but they don't say anything. They just don't come back." 

Andrew Friedman is one of those people: the passive nonsmoker. The last time he was victimized by other people's smoke, he said he "did the sort of wimpy eye-rolling, but that was it." 

It happened at Waterloo, the Belgian restaurant at Washington and Charles Streets, where the clothing usually matches the mussel shells. Mr. Friedman, who writes cookbooks for a living, was next to a table of four, who fired up and had an ashtray handed to them by their waiter. 

"I used to smoke," he said. "I really don't care. But these people were on top of us. And neither they nor the waiter asked us." 

One of Waterloo's owners, Aymen Bourjini, said he allows smoking but tries to secure the consent of nonsmoking diners. "The later crowd wants to smoke," he said. "We let them around 11:30 or 12." 

At a City Council hearing convened three weeks ago to assess how effective the Smoke-Free Air Act has been, Dr. Neal L. Cohen, the commissioner of health, announced that in 1999 his inspectors found 751 violations in the five boroughs, down from 895 the previous year. The list runs the gustatory gamut from McDonald's and Sushiden to Harry Cipriani. 

Whether that statistic means less smoking or simply relaxed enforcement is debatable. None of the restaurant owners interviewed for this article said they had received a notice of violation. And some who had, denied it. "We do not permit smoking, ever, except at the bar," said Hassan Elgarrahy, general manager of Harry Cipriani, despite the Health Department citation. 

Where the rich, famous or putatively hip gather, you will often find smoke. It tends to be a late-night thing. The menu at the new 71 Clinton, with fewer than 35 seats, on the Lower East Side, even encourages it, declaring, "Smoking permitted after dinner hours" on the same line where it prohibits cell phones. Places cultivating European or louche ambience have to allow smoking by their louche European (or American) patrons. The relationship between the smoker and the smoked upon at such establishments is distinctly hierarchical: a tyrrany of the minority. The smokers are the cool ones, cowing nonsmokers into silent fuming. For many New Yorkers, the desire not to seem unsophisticated is even stronger than the instinct to complain. And so, much off-the-books smoking goes unreported. 

Anna Kriston, 26, an Austrian businesswoman who has lived in New York for three and a half years, has a personal Zagat's of smoke-friendly restaurants. A favorite is Les Halles, on Park Avenue South, where she has dinner once or twice a week. Les Halles was in the brasserie business 10 years before it was fashionable to be. The walls look genuinely nicotine-stained, not as if one of Keith McNally's decorators had spent hours touching them up. 

One recent night there, Ms. Kriston was with a group of friends: Moroccans, Europeans, some Americans. Many of them began smoking, as is their wont, and were supplied with ashtrays. She said she usually waits until late in the evening, when the place starts emptying out. But this time it was only about 10, maybe 10:30. 

"We normally ask around, but I guess we'd had a lot of wine," Ms. Kriston said. 

Camelia Cassin, the manager at Les Halles, said her smoking section by the bar is so small -- just four tables -- that late at night she relaxes the rules. "I have no problem with letting people smoke," she said. 

When the rules are not broken, they are sometimes creatively interpreted. The law allows smoking in the bar area of any restaurant. The management of L'Actuel, the glamorous brasserie on East 50th Street, extends the definition of bar to include lounge tables in the front. There Sonny Mehta, the editor in chief of Aldred A. Knopf, sat one afternoon last month, smoking through lunch. 

Christophe Lhopitault, an owner and the general manager of L'Actuel, said he is eager to accommodate smokers and nonsmokers alike. "We have a smoking section, but we won't use it if we have too many nonsmokers," he said. "If I get any complaints, I'll ask the smoker not to smoke." 

If the Health Department's complaint line gets news of a smoking violation, it is supposed to dispatch an inspector. As with other health code violations, the restaurant's management has the option of defending itself at a hearing or just paying a fine, which runs from $200 to $2,000, for repeat offenders. (In California, which extended its no-smoking laws to bars two years ago, the fines start at $100 for a first offense and go up to $7,000 for a fourth.) 

But even $2,000 is small potatoes, considering the big tabs smokers rack up. "They stay longer, they drink more," Mr. Mirchandani said. "They're better customers." 

Some New York restaurateurs say that inspections may be happening less now. Mr. Mirchandani said smoke-friendly establishments like his "haven't been busted as much as they used to be busted." He thinks the city has lightened up on lighting up. "I don't think it's compliance," he said of the decreased number of violations. "I think they've eased up." 

Asked if the Health Department had backed off, John Gadd, a spokesman, said, "Inspections are done on a routine basis and in response to complaints." 

A restaurant owner in a trendily bohemian section of Brooklyn, who asked not to be named because he did not want inspectors snooping around, said that 95 percent of his clientele smokes. "I lie and say we're under 35 seats," he said, adding, "I've never had a serious complaint, and I've never had the Health Department check me out." 

The owner, a smoker himself, is part of a this-ain't-California brigade. "For me, the idea that I could eat a steak and have an appetizer and a glass of wine and have a cigarette in between is a nice idea," he said. "Otherwise, it just becomes this food thing, and you eat it quickly and go out to a bar to smoke." 

If he went to the Morrell Wine Bar and Cafe in Rockefeller Center, his presence would be noisily noted by the ventilation system, which makes a sound like a bug zapper when ingesting large quantities of smoke. "I don't want to be drawing in smokers," said Deirdre Regan, the general manager. 

The antismoking movement, led by Coalition for a Smoke-Free New York, has unwittingly ensured that cigarettes have regained their status as instruments of transgression. Christopher Buckley, the author of the 1994 novel "Thank You for Smoking," observed that restaurant smoking has become "a recherché pleasure, and slightly dangerous: you might be asked to leave." 

Or offered a light. 


The 751 restaurants in New York cited for smoking violations in 1999 included some of Manhattan's most prominent. Among them: 

Cibi Cibi, 200 East 60th Street 
Coco Pazzo, 23 East 74th Street 
Duane Park Cafe, 157 Duane Street 
Etats-Unis, 242 East 81st Street 
Felidia, 243 East 58th Street 
Harry Cipriani, 781 Fifth Avenue 
Il Cantinori, 32 East 10th Street 
Inagiku, 111 East 49th Street 
Indochine, 430 Lafayette Street 
L'Absinthe, 227 East 67th Street 
Le Madri, 168 West 18th Street 
One if by Land, Two if by Sea, 17 Barrow Street 
Oyster Bar, Grand Central Terminal 
Palm Too, 840 Second Avenue 
Park Avenue Cafe, 100 East 63rd Street 
Provence, 38 Macdougal Street 
San Domenico, 240 Central Park South 
San Pietro, 18 East 54th Street 
Sushiden, 19 East 49th Street 
Trois Jean, 154 East 79th Street 
Tropica Bar and Seafood House, 200 Park Avenue 
``21'' Club, 21 West 52nd Street 
Union Square Cafe, 21 East 16th Street 
Trattoria Dell'Arte, 900 Seventh Avenue 
Steak Frites, 9 East 16th Street 



Home | Site Index | Site Search | Forums | Archives | Marketplace  

Quick News | Page One Plus | International | National/N.Y. | Business | Technology | Science | Sports | Weather | Editorial | Op-Ed | Arts | Automobiles | Books | Diversions | Job Market | Real Estate | Travel  

Help/Feedback | Classifieds | Services | New York Today 

Copyright 2000 The New York Times Company