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THOUGHT POLICE - Quotes of the month:

"An ashtray is a clear invitation to smoke and to break the law."
Elliott Marcus, assistant commissioner, Food Safety and Community Sanitation, New York City Department of Health and Mental Hygiene.
Letter to the Editor, NY Times, Dec. 4th

"Not having ashtrays and putting up no-smoking signs are two of the strongest ways to discourage smoking and to let people know what the current law is."
Sandra Mullin, spokeswoman for the city's Department of Health and Mental Hygiene.
"No Smoking, and Don't Try Putting It Out," NY Times, Dec. 2nd

The presence of an ashtray might be taken by some people as an invitation to light up.

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December 29, 2003
        Tribe Loses Suit on Tax-Free Tobacco
        By Pam Belluck

BOSTON — A federal judge ruled on Monday that Rhode Island acted legally when it raided a tax-free smoke shop run by the Narragansett Indians and that the state had the right to tax sales of cigarettes on tribal land.

In his ruling, Judge William E. Smith of Federal District Court said the July 14 raid, in which state troopers seeking sales records served a search warrant on the smoke shop in a trailer on the Narragansett reservation in Charlestown, did not violate tribal sovereignty. Tribe members resisted the state troopers, and the resulting melee left eight people with minor injuries and led to the arrest of eight Indians, including the tribal leader.

"The state did not violate federal law or the tribe's sovereign rights when it enforced its criminal statutes by executing a search warrant and making arrests pursuant to that warrant, on tribal land," Judge Smith wrote, rejecting the tribe's argument in a suit saying the state did not have the right to collect the taxes or serve the warrant.

The judge concluded that the state's cigarette tax was a tax on tobacco consumers, not a tax on the tribe. Therefore, he wrote, "the tribe (like other retail sellers of cigarettes), acts merely as an agent for the collection of the tax," an arrangement that is "appropriate" and does not violate tribal sovereignty.

The ruling in the Rhode Island case comes as many states are grappling with tax-free tribal enterprises, including smoke shops, gas stations and Internet cigarette vendors. Indian tax-free sales cost states millions of dollars, especially as deficit-stung states increase cigarette taxes to close budget gaps and end up driving more consumers to tax-free shops. So states from Kansas to Maine have been trying to compel tribes to collect the taxes.

New York, which won a court battle over cigarette taxes in 1994 but has yielded to tribal protests since then and backed away from collecting the taxes, is changing that stance, making plans to start collecting taxes on tribal smoke shops beginning March 1.

Courts, including the Supreme Court, have ruled that states can collect taxes on tribal cigarette sales to non-Indians and to members of other tribes, experts on Indian law say. But the courts have also failed to give states the power to enforce such tax laws, ruling that because tribes are sovereign entities, states cannot sue them if they fail to pay taxes, said Robert N. Clinton, a law professor at Arizona State University.

It was not clear whether Judge Smith's ruling went further for the State of Rhode Island, whose long-contentious relationship with the Indians is governed by a 1978 settlement act, which, unlike laws applying to tribes in most other states, made the Narragansetts subject to the state's criminal and civil laws.

On the one hand, Rhode Island's attorney general, Patrick C. Lynch, said the judge's conclusion that the state execution of the search warrant was legal reinforced the state's contention that it had the ability to enforce the collection of taxes.

But Douglas Luckerman, a lawyer for the tribe, said that while he was disappointed in the ruling he was encouraged that Judge Smith also wrote that "nothing in this opinion should be read to suggest that the state's ability to enter upon tribal land to enforce its criminal/regulatory laws is limitless or that state authorities may act with impunity. It is not; and they may not."

Mr. Luckerman said the tribe had several options, including both an appeal and the path that tribes in some other states have taken, simply operating a smoke shop and refusing to pay the taxes, on the theory that the state cannot force tribal tax collection.

The smoke shop had been operating for two days when it was raided. It has since been turned into an office where the tribe sells merchandise promoting tribal sovereignty. The state estimated that had it been allowed to continue in business as a smoke shop, it would have owed $12 million in taxes.

The tribe's chief, Sachem Matthew Thomas, called the ruling a "minor bump in the road" and said he would recommend to the tribal government that an appeal be filed.

Bella Noka, the tribe's youth director, who was arrested on disorderly conduct charges in the raid, along with her husband, teenage son and daughter, had an angrier reaction, calling the ruling a "rape."

Mr. Lynch and Gov. Donald L. Carcieri were careful to emphasize their respect for the tribe, point out olive branches that have been extended since the raid, and say they hoped the ruling would help resolve things amicably.

"At last, now we have some guidance," Governor Carcieri, a Republican, said. "We know the tax laws apply, the civil and criminal laws apply."

Chief Thomas disagreed.

"I think the governor has misspoken," he said

December 28, 2003
        The Smoking Ban: Clear Air, Murky Economics
        By Winnie Hu

When New York City banned smoking in its bars and restaurants last March, opponents warned that the tough new law would drive away customers and devastate businesses. Supporters insisted that New Yorkers would quickly adjust.

Nine months later, the impact is hardly so clear cut. An examination of government data, public polls, private surveys and interviews with customers, employees and owners of more than three dozen bars and restaurants around the city shows the law having an impact on some businesses, but certainly not on all.

Many bar owners and managers say the smoking ban has hurt business, eroding profits and, in some cases, forcing them to cut back hours or lay off workers. Others say they have seen virtually no effect.

Some restaurants and bars say that business is fine — even thriving, as the economy improves — particularly in places where food is a main draw. Further, a vast majority of New Yorkers have said in recent polls that they are happy with the new law. One survey shows that many regular restaurantgoers see a smoke-free environment as an attraction.

That does not mean, though, that some city night spots are not hurt by the ban. Happy-hour sales on Friday nights at the Whiskey Ward on the Lower East Side have dropped to barely $100, from $600, a co-owner says, and regulars have disappeared along with the ashtrays.

A co-owner of Patroon, a steakhouse in Midtown, says he no longer sees much of a cigar-puffing, after-dinner crowd. And in the meatpacking district, the owner of Hogs & Heifers, where Julia Roberts was once enticed to dance on the bar, says she is considering laying off four employees.

Then there are the many nuisances wrought by the smoking ban, which bar owners and bartenders say just makes it harder to scrape out a living in an already tough business.

"It's harder to keep track of everybody going in and out," said Chuck Zeilfelder, a bartender at Bourbon Street in Bayside, Queens, who opposes the ban. "It's common for people to leave money on the bar, and that becomes an issue — how much they left. Also, people leave their drinks on the bar and go out. The drinks get thrown out, and then you have to buy them another round on the house."

It is unclear whether the complaints about the smoking ban are anything more than growing pains, as a city that prides itself on its night life adjusts to the far-reaching new law. Certainly, where the city goes from here is of great interest to other places around the world, like Ireland, Norway and Lexington, Ky., which are debating their own versions of the law.

The early evidence, however, is that many businesses are unharmed. In fact, though rumors swirl in an environment where every bit of news is trumpeted by the side it favors, a reporter could not verify that one bar, restaurant or club, of the more than 20,000 in the city, had closed solely because of the smoking ban.

In contrast, the owner-chef at Gotham Bar and Grill, Alfred Portale, says more people are dining at the pink granite bar, where the food is served on black lacquer trays. The bar at the Jazz Standard on East 27th Street remains packed every night, its owner says. And the line only grows longer outside McSorley's Old Ale House on East Seventh Street, the "wonderful saloon" chronicled by the writer Joseph Mitchell, though some patrons have grumbled that they miss having a Marlboro with their house ale.

"Believe it or not, it may be helping us because it's driving people to drink," said McSorley's owner, Matthew Maher.

The city's antismoking law was championed by Mayor Michael R. Bloomberg, who saw it as a health initiative to protect restaurant and bar workers from being exposed to secondhand smoke. In July, the state followed with an even tougher smoking ban.

Even if the city were to repeal its ban, the state's would remain in effect — something that has not seemed to make much difference to the smokers and businesses who continue to blame the mayor for their woes and lobby to have the city's law amended.

The ban does not appear to have deterred businesses from opening in New York City. The New York State Liquor Authority, which issues licenses to establishments that serve alcohol, received 127 applications from city businesses last month, compared to 126 in November 2002. The number of licenses granted by the authority in that same period rose to 106 last month, from 75 the year before.

The city's Health Department, which enforces the smoking ban, has also analyzed monthly employment numbers and found no overall job loss in the food service and drinking industry. Critics have countered that such findings are politically motivated, and cannot show when establishments cut back shifts and absorb revenue losses. But many restaurants and bars refuse to divulge their finances, making it difficult to gauge the validity of their complaints.

Polls back the city's contention that New Yorkers have welcomed the ban. A New York Times poll in June showed that 56 percent of the 962 respondents said they approved of the smoking ban. A Quinnipiac University poll in October found that 62 percent supported the ban.

Tim Zagat, the publisher of restaurant guides, surveyed more than 29,000 of his volunteer reviewers this year and found that 96 percent said they would eat out as much, if not more, with the smoking ban. Only 4 percent said they would eat out less. "I don't care how you cut it," Mr. Zagat said. "I think it's long-term good for business."

The industry counters with its own surveys, some of which depend on voluntary responses. Pollsters say such surveys are deceptive because those most prone to complain are also most prone to respond.

The city chapters of the New York State Restaurant Association mailed out a survey to more than 900 members and found that 88 of the 115 city businesses that responded said they had a decline in bar sales since the smoking ban, and 58 said they had a decline in food sales. In addition, 76 reported that their employees had an unfavorable reaction to the ban, while 18 reported a favorable reaction.

Similarly, an October study commissioned by the Vintners Federation of Ireland interviewed 300 bars and nightclubs in the New York region and found that 66 percent reported fewer customers since the smoking ban, while 15 percent reported more. In all, 78 percent said the impact of the ban on their businesses had been negative.

"The nightclub and bar industry are the collateral damage in the admittedly noble fight to get people to stop smoking," said David Rabin, co-owner of Union Bar and Lotus in Manhattan and president of the New York Nightlife Association.

Sales representatives for wine and liquor companies say the impact has trickled down to them.

They say business has dropped between 20 percent and 40 percent since the smoking ban. Similarly, an association for operators of jukeboxes, pinball machines and other games says that revenues have fallen between 10 and 25 percent at bars and nightclubs in New York City.

"If the people are outside smoking, they're not inside drinking, and they're not inside playing my machines," said Kenneth Goldberg, vice president of the Amusement Music Operators Association.

Indeed, a check by a reporter on two blocks of Bell Boulevard in Bayside and three blocks of Northern Boulevard in Little Neck, both thriving night life strips in Queens, showed some impact from the ban, but more in terms of subtle economic and social changes than closings and layoffs.

Owners and employees reported selling fewer drinks and losing customers before dessert. They complained of the need to watch over drinks and money left on the bar and seats left unoccupied by patrons heading out for a smoke. And bartenders said that tips were down, as were overall tabs, and that longtime customers were resorting to alternatives — hotel rooms, private homes and parks — to indulge their smoking and drinking.

But Danny Meyer, who owns a half-dozen restaurants and night spots in Manhattan, including Union Square Café and Gramercy Tavern, said his businesses had seen no impact. He banned smoking in some of his restaurants in 1990, and they have grown more popular, he said.

Mr. Meyer said that he no longer had to worry about his waiters and customers coughing from the smoke or the nightly squabbles between smoking and nonsmoking tables. One of his best customers, Roger W. Straus, a publisher with Farrar Straus & Giroux, had complained when Mr. Meyer started his ban about being separated from his cigarettes, but later credited the restaurant with helping him to give up smoking, Mr. Meyer said.

"New Yorkers will adapt to almost anything," Mr. Meyer said. "They're not going to quit going to great restaurants just because they can't smoke."

Many bars and nightclubs have adopted coping strategies, with varying degrees of success. At the popular China Club near Times Square, smokers are now directed to a 2,000-square-foot terrace.

"It hasn't impacted us that much," said the owner, Danny Fried, of the ban.

O'Neill's Bar and Restaurant in Midtown laid off three people in April and resorted to novelty events like trivia contests and election-night vigils for races in Ireland. Ciaran Staunton, the owner, says he sees his regulars pass by on the street, toting six-packs of beer to drink at home.

Other bars and taverns, like Broadway Dive on the Upper West Side, are placing new emphasis on their food now that they are selling fewer drinks. Since the ban began, alcoholic beverage sales at the Broadway Dive have fallen about one-third, or between $1,500 and $2,000 a week, its owner said.

Amy Sacco, owner of Lot 61 and Bungalow 8 in West Chelsea, said she had to hire an extra security guard just to make sure the smoking crowd outside does not become unruly.

"It makes the job very unhappy," Ms. Sacco said. "Next thing you know, it's prohibition for cocktails. We're all responsible for policing it. It's such a drag."

"It's just a big headache in a job that had enough headaches to start with," she said.

December 14, 2003
        A Ban, Sort Of
        By Georgina Gustin

In one Connecticut bar recently, a bartender served drinks to a row of customers as they tipped their cigarettes into plastic ashtrays, filling the air with smoke.

In another bar, another bartender also served customers, but the bar stood empty of ashtrays and the air was smoke-free.

Both places had all the makings of the classic watering hole - the bottles of liquor, the beer taps, the regulars perching on stools. But, at least for now, that other atmospheric bar ingredient, smoke, is legal in one place and not the other.

Following the lead of other states, including New York, Connecticut lawmakers overwhelmingly approved a law earlier this year banning smoking in all restaurants and bars throughout the state. But there's a difference in Connecticut, one that has customers and restaurateurs perplexed and a little angry, and some legislators pushing to tweak the new rules.

The law is taking effect in two parts. As of Oct. 1, smoking was banned in restaurants, including those with separate bar areas, and owners were required to put up "no smoking" signs. Then, on April 1, 2004, bars have to follow suit.

The lag time between the restaurant smoke ban and the bar ban has Connecticut restaurateurs, many of whom depend on their bar business more than their dining patrons, angry as they watch their regulars file out the door to places where they can still light up. And while the ban is a victory for public health that has delighted nonsmokers and even improved dining business at some restaurants, many in the state's service industry see it as flawed, inconsistent and unfair.

"I used to close down at 1 a.m.," said Nick Jhilal, manager of the Bear and Grill in Fairfield, who estimated that he had lost 30 to 40 percent of his bar patrons to bars where they can still smoke. "Now I close down at 9:30. The next three hours are dead."

In Connecticut there is a range of permits that allow places to serve alcohol. The bulk of permits are issued to restaurants, which serve food as well as liquor, and to bars, which get what is called a "cafe" license and are allowed to serve liquor with food on the side, if they choose.

Restaurants throughout the state, especially those with closed-off bar areas, are being hard-hit by the ban, and the economic effects have some lawmakers wondering about the wisdom of the new rules.

"This legislation damaged the marketplace," said Simon A. Flynn, president of the Connecticut Restaurant Association, who said he had heard from dozens of restaurant owners, one of whom said he lost $10,000 in the first month of the ban. "It doesn't make sense. The bars are luxuriating in this inequity."

In the meantime, many restaurateurs are simply looking the other way as smokers light up because they can't afford to lose their business.

"People leave, people just walk out," said Tina McManus, a bartender and waitress at Black Rock Castle in Bridgeport, which is in a strip of bars and restaurants lining Fairfield Avenue through Fairfield and into Westport. "The whole law is ridiculous."

Ms. McManus, a smoker herself, estimated that 90 percent of the restaurant's customers are smokers and many are going to more smoke-friendly places. That's a financial hit many restaurants apparently aren't willing to take. "They're cheating," Ms. McManus said of other restaurants in the area. "They have to.

"I don't like smelling smoke. I don't like it on my clothes. But I like walking home with a bundle of cash," Ms. McManus added, noting that smokers who are allowed to smoke tend to linger longer and buy more drinks. "If you did a survey of employees, no one would agree with the ban. You're taking money out of our pockets."

Under the new law, people can be fined $99 if they are caught smoking in a no-smoking establishment. The business itself is only required to post "no smoking" signs and can be fined $99 if it does not, but it is not fined if customers are actually smoking. The only people who can issue the $99 tickets are the police, and police departments around the state said they have more pressing issues than tracking errant smokers.

"I wish I had the time to proactively check restaurants," said Louis DeCarlo, chief of the Stamford Police Department. "We're taking the tack that most police departments are. We're only responding to complaints."

According to the State's Liquor Control Division, which issues liquor permits, the license of a restaurant or bar can be revoked by the state for violating the ban. But that would likely happen only if the police or a customer complained to the state, prompting the liquor commission to investigate. And even then it is not clear what would set off the commission's inquiry - an establishment's failure to post signs, as the new law requires, or its failure to actually pluck cigarettes from smokers' mouths.

"We would expect a licensed permit holder to comply with the state law, and if it was found not to be, we would investigate," said John Suchy, director of the division. Then, "Based on our determination we could take regulatory action."

When asked how many times an establishment would have to violate the law, or in what way, before the commission took action, Mr. Suchy said: "It's going to be on a case-by-case basis. I'm not going to say what the commission might do."

Local departments of public health, which issue food permits to restaurants, also do not have a direct enforcement role, although they can revoke a food license for repeated violations of the ban and can subtract points from annual inspections. Under the new law, though, it's not clear how many violations it would take for a health department to rescind a license.

"It says violations, plural," said Michael Lauzier of the American Lung Association of Connecticut.

Some places are willing to take the risk.

"What are they going to do, have a smoking force, like the Gestapo?" said Richard Ball, owner of Jeremiah Donovan's on Washington Street in South Norwalk. "Enforcing the thing's a joke. That's a full-time job."

Mr. Ball said the ban had been a mixed blessing for his business.

"I know there are people who used to come in every night that are going someplace else for now," he said. "But my lunch business is up 25 percent. I think it's very positive. It's a nasty habit and this is what the state is trying to tell you."

Nonetheless, Mr. Ball said, late at night, after the dining rush is over, "People can light up and I probably wouldn't say anything."

Jeremiah Donovan's is among many of the state's restaurants who said business has improved since Oct. 1.

"Actually, it's kind of interesting," said John Black, a bartender at Dunville's Westport. "Our dinner sales have gone up. People are starting to look at us as more of a restaurant than a bar now."

Still, the change hasn't pleased everyone and some lawmakers are responding.

Under the original version of the bill introduced earlier this year, the General Assembly's Public Health Committee adopted a provision that would allow separate smoking rooms in bars, but the idea was dropped. Now, Representative Art Feltman, Democrat of Hartford and House chairman of the committee, said he would support changing the law to include that provision again.

"If there is a huge drop in revenues at bars," Mr. Feltman said, "I'd be open to that proposal."

In early November, Gov. John G. Rowland told a reporter that he believed restaurants and bars should be allowed to establish separate smoking rooms, but Mr. Feltman said he didn't feel a change should go that far. "It should never extend to restaurants," he said.

Dean Pagani, a spokesman for the governor, said Mr. Rowland's remarks were made in an off-hand way. "It got really overblown. He was really just expressing his opinion," Mr. Pagani said. "He's really leaving it up to the Legislature He has no intention of proposing that."

So, for the time being, restaurants are adjusting to the ban and bars are gearing up for what could be a big financial blow. The only establishments that will clearly see a rise in smokers' business are private clubs, like boat clubs or some social clubs, which have different liquor licenses that will allow smoking even after the ban.

"Our sense, from a number of different restaurateurs is that part of the competition they face now is from private clubs," said Mr. Flynn of the restaurant association. "What we're hearing is that clubs are developing different categories of memberships, like associate memberships, to allow more members. Individuals that might not qualify under the rules of membership are now eligible."

At some private clubs, employees rejected the idea of a smoking ban.

"This is not Cuba," said David Duncan, a bartender at a Veterans of Foreign Wars post in Norwalk. "Next thing you know people are going to be telling you to be home at 11 o'clock at night."

But this raises another issue, restaurant owners said. If the bill was intended to protect the health of employees in bars and restaurants, don't employees in clubs deserve the same protection?

"Are they protected under the law or not?" asked Mr. Jhilal of the Bear and Grill, who said he has hired lawyers to look into whether the law violates the 14th amendment of the Constitution, which guarantees equal protection.

"If it is a public health issue, then it should be a statewide ban," Mr. Flynn said. "If they can't do that, they should retreat to a position whereby the only ban on smoking in the state is in dining rooms."

Or smokers can find refuge in Rhode Island, where smoking is still allowed in restaurants and bars, or perhaps New York, where some lawmakers are attempting to roll back a ban that went into effect in July.

The bill, co-sponsored by Republican Assemblymen Howard Mills and Matthew Mirones would allow bars to buy "smoking licenses" for $100 a year.

"I think people should make their own choices, and I was very concerned about the bars in my district that are going out of business," Mr. Mills said, noting that his district abuts New Jersey, where smokers are spilling over the state border to bars that still permit smoking.

"This is based on personal liberty and freedom of choice issues," Mr. Mills added. "I'm not even a smoker myself."

December 2, 2003
        No Smoking, and Don't Try Putting It Out
        By Clyde Haberman

HERE is a story about Casey Stengel and a smoking pipe, from the days when he was a ballplayer, some 90 years ago.

He was on a train one day. Clenched in his teeth was a pipe — unlighted. The conductor came along and told him that smoking was not permitted. Stengel protested that he wasn't smoking.

"You've got a pipe in your mouth," the conductor said.

Stengel replied, "I've got shoes on my feet, but I'm not walking."

The reason for dredging up this yarn is what it says about a latter-day New York City law.

If it is possible to wear shoes yet not be walking, can you have an ashtray but not be smoking? The answer, obviously, is yes. But under the city's antismoking law, that means nothing.

As some New Yorkers have learned the hard way, the mere existence of an ashtray in a place where smoking is prohibited can lead to a summons. It doesn't matter if the ashtray is stored well away from public areas. It doesn't matter if it is used as a decoration, or to hold paper clips or M & M's. No ashtrays are allowed, period.

The reason is simple, said Sandra Mullin, a spokeswoman for the city's Department of Health and Mental Hygiene. The presence of an ashtray might be taken by some people as an invitation to light up.

"Not having ashtrays and putting up no-smoking signs are two of the strongest ways to discourage smoking and to let people know what the current law is," Ms. Mullin said.

Since May 1, when the Health Department began to enforce the law in earnest, about 2,300 summonses have been issued, she said. A little more than 200 were for ashtray violations.

These are hardly huge numbers. Still, some of the summonses are enough to make one scratch his head and invoke the Stengel Corollary about shoes and walking.

In Brooklyn Heights, a video-store owner got a ticket for an ashtray that he says he used only to help a customer who walked in with a lighted cigarette in her hand. She had to put it out in something, no?

A more prominent New Yorker, Graydon Carter, the editor of Vanity Fair, received a summons because of ashtrays in his Times Square office. Inspectors, who had gone there on a complaint about smoking, found no one puffing away. But they did spot the ashtrays. That was enough.

"I keep them around to remind me of my youth," Mr. Carter said in an e-mail message yesterday after being asked about the incident. "They had not been used and did not have cigarette butts in them when we were fined."

One more thing: "Any city that allows you to keep a loaded gun in your office but not an ashtray," he said, "is one with its priorities seriously out of whack."

Many feel the same way at the Players, the theater-themed club on Gramercy Park South. As first reported in The New York Post the other day, health officials, acting on an anonymous tip, insisted last week on inspecting the office of the club's executive director, John Martello.

They found no one smoking. But — shades of Eliot Ness on the trail of rum runners from Canada — they came upon three ashtrays on a shelf behind a desk.

THEY were there just to get them out of the way," Mr. Martello said yesterday. "We had to get them out of the public eye. They were collected. Who thinks about throwing them out?"

"I think what I was most appalled about," he said, "was the constitutionality of them being able to come in and search my office. Unlike the police, they don't need a search warrant. They just walked in on an anonymous tip."

Ms. Mullin acknowledged that "there is some discretion offered to our inspectors."

"If we do see stacks of ashtrays," she said, "it is tantamount to the potential that people are permitting smoking."

But to Richard E. Farley, a lawyer who is advising the Players, the real issue is "Where does this end?"

"Can these people show up," Mr. Farley said, "and disrupt your law firm, your psychiatrist's office, your religious meeting, on the pretext that you're violating this provision of the smoking law?"

It is possible, in the opinion of those challenging this strict application of the no-ashtray rule, to be overzealous in pursuing virtue. One doesn't always get the desired results.

Another Caseyism comes to mind, this one from the 1950's, when Stengel was the manager nonpareil of the Yankees.

"Look at him," he said of a ballplayer. "He doesn't drink, he doesn't smoke, he doesn't chew and he doesn't stay out late.

"And he still can't hit."

November 1, 2003
        Years of Feeding Wall Street Meet Abrupt End at Harry's
        By Frank J. Prial

Harry's Hanover Square, a venerable Financial District restaurant that feted the market's winners and solaced its losers for more than three decades, closed its doors abruptly last night with no plans to reopen anytime soon.

"It's over," said Harry Poulakakos, 65, the restaurant's founder and owner, with mingled sadness and relief. "It was the toughest decision of my life," he said, "but I just don't have the heart for it anymore."

Mr. Poulakakos's wife, Adrienne, who opened the restaurant with him in 1972 and worked at his side there, died of cancer in August.

"We did everything together," he said, "and now it's not the same."

Located in the basement of India House, a landmark at 1 Hanover Square, Harry's was a mecca for some of the most powerful men on Wall Street. At its heyday in the 1980's, Harry's would serve 800 lunches to an almost exclusively male clientele, as well as several hundred dinners.

Some of the bigger brokerage houses had private lines connected to a battery of telephones on a wall in its vast barroom. What's more, the restaurant was surrounded by the major Wall Street firms. "L. F. Rothschild was just over there," Mr. Poulakakos said, pointing out a window. "Kidder Peabody was there, Dillon Read there and First Boston there."

The stock market transactions still flicker across the electronic board over the bar, but these days, there are far fewer upturned faces watching them; maybe 200 at lunchtime, even fewer at dinner. "After the market crash in 1987, everyone moved to Midtown," Mr. Poulakakos said. "But still we did O.K."

"It's interesting," he said. "When the market was down in the 70's and 80's, those were our best years. In the 1990's, when there was so much money around, we didn't do nearly as well."

To Harry's, the change in Wall Street culture was not nearly as devastating as the recent ban on smoking. "Overnight, we lost 60 percent of our evening bar trade," Mr. Poulakakos said, shaking his head. "For the bar, it was the difference in profit and loss. Sales of expensive cigars had been almost as important as the sales of Scotch," he said.

When union negotiations — a task Mrs. Poulakakos, if not her husband, relished — were coming up, Harry's was actually in better shape than it had been for several years, sharing in what many observers saw as a renaissance in downtown Manhattan.

Battery Park City and the new residential areas of TriBeCa and the Lower East Side are within walking distance, and the streets, once deserted in the evening and on weekends, fill up with local residents and tourists.

Harry's notwithstanding, the Poulakakos family will not disappear from Hanover Square. They own the restaurant space, and the upper floors of India House have been transformed into Bayard's, an elegant French-oriented restaurant, at night. Bayard's, where the former Lutèce chef, Eberhard Muller, holds forth, is open on weekends, unlike Harry's, which always followed a Monday through Friday schedule, like its patrons. Bayard's is owned and managed partly by Peter Poulakakos, 27, Harry's son.

In addition, just behind India House are two new casual restaurants, Ulysses and Financier, owned by Peter Poulakakos with partners. Both are doing well, thanks in part to the recent renovation of Stone Street, which runs from Hanover Square to Broad Street and is partially blocked off each day for pedestrians and al fresco dining for Ulysses customers.

At 3 p.m. yesterday, Mr. Poulakakos told his staff of about 50 that it was the last day at Harry's Hanover Square. "They took it pretty well, I thought," he said. A few old-time customers lingered at the bar for a few hours longer.

"One guy told me I looked ten years younger," Mr. Poulakakos said.

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December 24, 2003
        By Stephanie Gaskell

The legendary Players Club filed a lawsuit yesterday to overturn city and state smoking bans, claiming data showing secondhand smoke kills as many as 1,000 New Yorkers a year is junk science.

"We believe that the alleged effects of the secondhand smoke problems that they have based the law upon are at best flawed," said John Martello, executive director of the 115-year-old club on Gramercy Park.

Kevin Mulhearn, the clubs lawyer, said the ban infringes on federal law governing workplace safety under Occupational Safety & Health Administration rules.

Mayor Bloomberg brushed off the suit filed in federal court in Manhattan, saying, "Lets stop killing people and get on with it, shall we?"

December 23, 2003
        By Stephanie Gaskell

The Players Club, a 115-year-old establishment on Gramercy Park South, is expected to file a lawsuit today challenging the state and city anti-smoking laws.

Executive Director John Martello declined to give details about the suit, which will be announced at noon.

"We're the first courageous club to take this step," he told The Post.

The Players Club is acting after getting slapped with fines of $200 to $2,000 last month by city health inspectors for having three stacked ashtrays in Martello's office.

"No cigarettes, nothing. No evidence of smoke, just three stacked ashtrays. I wasn't even there," Martello said.

Martello said he had the ashtrays in his office because it's illegal to have them on the bar, so he had to put them someplace. "I didn't know ashtrays were illegal," he said at the time.

Club officials claim the city's law wasn't designed for inspectors to raid private offices. But the city's anti-smoking laws, which went into effect March 30, ban smoking virtually anywhere indoors.

The state passed an even tougher law in July, closing loopholes that would exempt, for example, owner-operated bars.

Martello said he was suing both the city and the state because if the state repeals its law, the city law would still be in effect.

Both the city and state laws are controversial. The Post reported that 68 percent of state residents surveyed in a recent poll believed the state law went too far.

But Mayor Bloomberg has defended the city law, saying it would save the lives of hundreds of New Yorkers each year from secondhand smoke.

More than 500 city bars, restaurants and other establishments were ticketed in the first six months of the city law.

As of two months ago, 30 places received three tickets, 10 more received four, and two spots acquired five.

Being hit with three or more tickets in a 12-month period puts an establishment at risk of being shut down under the new laws.

The Players Club was founded in 1888 by Edwin Booth, brother of Abraham Lincoln's assassin, John Wilkes Booth, as a private establishment for actors and theater lovers.

The posh establishment in a historic brownstone has boasted as members Gen. William Sherman, Mark Twain, Mayor Fiorello La Guardia, James Cagney, Mayor John Lindsay and now has as another honored member, former Mayor David Dinkins.

December 22, 2003
        Page Six

HEY, hey, he's not smoking! Former Monkee Mickey Dolenz went bananas when Des O'Brien, owner of Langan's on West 47th Street, asked him to sign the New York Night Life/United Restaurant & Tavern Owners Association's joint petition that seeks justifiable amendments to Mayor Bloomberg's draconian anti-smoking law. Dolenz, a vehement anti-smoker who supports the ban, got into a "sometimes testy" exchange with O'Brien. But by the end of the night, Dolenz was sufficiently persuaded - or exhausted - by the Irishman's arguments, and he agreed to sign.

December 21, 2003
        By Jennifer Gould Keil

It's downright UN-healthy.

Staff and diplomats at the United Nations are flouting their own secretary-general's health directive to quit smoking and abide by the rules of the U.N.'s own World Health Organization - not to mention the local laws of New York City.

Walk into the U.N.'s world headquarters on the East River and you'll be hit by the stale smell of smoke.

Throughout the building, clouds of smoke billow from various corners including an espresso bar and the popular delegates lounge, where representatives from 191 countries blatantly puff away, oblivious to the tobacco-stained no-smoking signs.

Last September, U.N. Secretary-General Kofi Annan issued a directive to his staff: No smoking in the building.

Neither Annan nor the city have the power to tell diplomats what to do - that's why the city loses out on millions of dollars in unpaid parking tickets amassed by envoys successfully claiming diplomatic immunity.

But Annan does have the authority to discipline his staff.

For a while, after the directive was issued, the staff stopped smoking - at least publicly. Certain offices and hidden basement areas remained smelly, smoky bastions of defiant, butt-puffing staffers.

"We hope the staff will abide by the rules," a U.N. spokesman said. "Staff could in theory be disciplined for smoking. It's within the secretary-general's authority to do so."

But Annan never got around to setting up enforcement guidelines for his no-smoking directive. Over time, the smokers came out of their hiding holes and resumed puffing - defiantly - in U.N. lounges and coffee spots.

December 20, 2003
        By Laura Italiano

The family of the Club Guernica bouncer who was stabbed to death after asking a patron to stub out his cigarette is suing the club, the accused stabber and his alleged accomplices for $550 million.

Dana "Shazam" Blake was only 32 years old when he died in the April scuffle at the Avenue B nightspot. The stabbing of the well-liked, 6-foot-5 "gentle giant" added controversy to the city's then-new and much debated smoking ban.

A lawsuit filed by Blake's brother Harold blames the nightclub for "failing to properly train, advise and inform its employees . . . regarding proper procedures regarding implementation and/or enforcement of the then recently enacted 'no-smoking law.' "

The club also failed to screen patrons with metal detectors, thereby exposing Blake to "excruciating and agonizing horrific injuries and wounds."

Blake died after a knife pierced the femural artery in his groin area - a knife Manhattan prosecutors say was wielded by Isaias Umali, a 31-year-old martial-arts expert from Jamaica, Queens.

Umali's trial is tentatively scheduled for Jan. 23 in Manhattan Supreme Court.

Lawyers for Blake's family and Club Guernica did not return phone calls yesterday. A lawyer for the Chans declined comment.

December 11, 2003

It's official: The next war has begun.

No, not in the Middle East.

In New York. Among criminals - over cigarettes.

Or, more to the point, among smugglers - over bootlegged cigarettes.

That's right: Mayor Bloomberg and his friends in Albany have managed to spur a brand-new crime war - involving turf battles over bootlegged smokes.

We hate to say we told you so, but . . . well, we did.

Any time you make a popular product illegal - or, in this case, prohibitively expensive - you create a black market.

Criminals rush in and look to corner the market. And they seldom limit themselves to fair business practices to eliminate the competition.

That is exactly what happened when Mayor Mike and lawmakers in Albany imposed what is, in effect, a 75 percent sales tax on cigarettes last year.

Of a $7 price for a pack, $4 goes to the seller and fully $3 goes to City Hall and Albany - that is, if the seller's honest.

Too often, they're not.

Wide tax margins are to bootleggers what raw meat is to lions. Opportunistic free-marketeers buy cartons - hell, cases of cartons - out of state or on Indian reservations and sell them on the street, effectively splitting the price difference with consumers.

Because it's all illegal, cigarette smugglers are (by definition) criminals.

And because Mayor Mike & Co. have made the trade so lucrative, it has attracted a really nasty lot - Russian thugs, Chinatown gangs, even those with ties to terror groups like Hezbollah.

These chaps think nothing of murdering the competition.


* On Tuesday, Yvonne Knox buried her teenage son, Cody, who was stabbed to death last month by rival bootleggers.

It seems Cody was undercutting their per-pack price - by a whole dollar.

* Sherwin Henry, 23, was buying smokes in bulk from a Long Island Indian reservation. He took a fatal bullet in his head last month on a Brooklyn rooftop.

* Two other men were also shot in separate cig-war incidents.

Indeed, so hot has the war become that the NYPD has created a special unit, called the Cigarette Interdiction Group, to deal with growing "butt-legging."

Again, none of this should surprise. Indeed, it's classic.

Remember Prohibition?

Violence among liquor bootleggers spawned a whole genre of movies.

More recently, crack wars ravaged this city. And even today, turf wars among drug dealers continue to take lives - including those of innocent bystanders.

"You can liken [cigarette bootlegging] to narcotics trafficking," Garry McCarthy, an NYPD official, says.

But what's saddest about this war is how unnecessary it is.

Mayor Mike and the Albany geniuses imposed their confiscatory taxes for two terrible reasons:

* To raise money to feed their own addiction - government spending.

* To make it harder for people to smoke - because they know better than smokers that tobacco is bad for you.

In fact, lawmakers aren't raking in nearly as much as they expected to, or curbing smoking, because (see above) the business has gone underground.

Which makes the tobacco-war violence that much more tragic.

How much more escalation will it take before they come to their senses and ditch the tax?

December 11, 2003
        By Steve Dunleavy

FACT: On Dec. 30, 2002, Mayor Michael Bloomberg said of his proposed anti-smoking ban in bars: "We will literally save tens of thousands of lives."

FACT: On May 12 of this year, he apparently revised his figure: "We are going to save over 1,000 lives a year in New York City from smoking-related diseases."

FACT: In October, Bloomberg was saying: "Well over 1,000 people are dying of secondhand smoke, as opposed to 428 people who are murdered. A death is a death."

Mr. Mayor, you may be a business genius and a multimillionaire, but you are also a bumbling, bloody moron. You pushed up the sales tax on cigarettes - and what did that do?

Ask the parents of Sherwin Henry, 23, and Cody Knox, 19, shot dead after they got on the wrong side of a turf war to sell untaxed, bootlegged cigarettes. Ask two other guys who were wounded in The Bronx in a similar turf war what it means to say "A death is a death."

Before you are thrown out of office, please explain how you're saving lives - before you create another Chicago prohibition bloodbath.

If Mad Mike says he's saving 1,000 lives every year for denying freedom of choice to smokers in bars, I presume that tens of thousands of bartenders or waitresses over the past 10 years have died.

Can anyone genuinely believe this?

Where are their mothers, fathers, daughters, sons, brothers and cousins?

Yesterday I tried to speak to Joanne Koldare, the director of the NYC Coalition for a Smoke-Free City, to ask her about all these bartenders and barmaids who have died over the last 10 years.

Ten calls. "I'm sorry, I'm on the telephone or away from my desk," her answering machine responded 10 times.

Brian Nolan, executive director of the United Restaurant and Tavern Owners Association, said: "I don't smoke.

"My father is 89 back in Ireland. Ask him how many cigarettes he smoked a day. This thing is so bizarre. A repressed demand will see profits, exceeding profits. Exceeding profits will bring violence."

Now, Mayor Bloomberg, get off your pinstriped derriere, smell the coffee and stop telling us what we should do.

Put that in your non-existent pipe and smoke it.

December 11, 2003
        By Gersh Kuntzman

The ashtray fiend of Brooklyn has beaten the rap.

In a ruling that could have profound implications for enforcement of the city's Smoke-Free Air Act, an administrative court judge has snuffed out charges of ashtray possession against Brooklyn Heights video store owner Marty Arno.

As reported in The Post, Arno had faced a fine of up to $2,000 for possessing that most villainous of inanimate objects: an ashtray (in this case, a souvenir from the classic 1984 B-movie, "The Rosebud Beach Hotel").

At a hearing yesterday, Arno argued he had the ashtray simply to allow smoking customers to snuff out their illegal tobacco without having to leave the store.

Judge Stanley Trattler accepted that argument.

"I dismissed it on the grounds that it wasn't used as an ashtray," Trattler told The Post.

Although Trattler did not rule on the legality of the city's anti-ashtray law, the decision may blow smoke on ashtray summonses.

Dozens of bars and restaurants have received an ashtray summons.

"Non-food" establishments like Arno's video store are inspected only if the Health Department receives a specific complaint.

December 10, 2003
        Page Six

THE NEW York Nightlife Association is trumpeting a new survey that it says proves Mayor Bloomberg's smoking ban has crippled the city's nightlife industry. The survey, conducted by International Communications Research of 300 bars, hotel lounges and nightclubs, found that 34 percent of bars, hotels and nightclubs have reduced staff by an average 18 percent since the ban took effect, and 74 percent of those establishments blame the layoffs on the ban. The survey also showed that 76 per cent of them have lost customers by an average of 30 percent. And 78 percent of businesses reported a negative impact on their businesses. "Before the smoking ban was passed, we told government leaders that bars and nightclubs would take the brunt of the economic fallout," said NYNA president David Rabin. "This survey confirms that devastation. The smoking ban is driving a multibillion-dollar nightlife industry into the ground."

December 10, 2003
        By Murray Weiss

Two people have been murdered and two others shot in separate acts of violence tied to a surge in cigarette bootlegging that has rocked the Big Apple in the aftermath of the whopping cigarette tax hike.

The allure of easy profit - as much as $50 per carton - has drawn to the lucrative illegal cigarette trade a variety of criminals, from Russian thugs in Brighton Beach to gangs in Chinatown to suspects with ties to the terror group Hezbollah, police and federal officials say.

And now the rival factions are setting their beefs with guns and knives:

* Sherwin Henry, 23, who was re-selling cigarettes bought in bulk from a Long Island Indian reservation, was fatally shot in the head on the rooftop of an East New York, Brooklyn, apartment building on Nov. 19.

* Cody Knox 19, was chased down through a crowd and stabbed to death in broad daylight near Brooklyn's Fulton Mall in a cigarette-selling turf dispute.

* A 25-year-old Bronx man, whose name was withheld, was shot at 1304 Miriam Ave. in another turf war.

* Desmond Jordan, 34, was shot twice allegedly by William Giddens, 45, last May 17 in front of 24 Humboldt St. in yet another battle.

"You can liken this to narcotics trafficking; there are people who buy in bulk, then break it down and distribute to stores or to street dealers who sell them by the cigarette," said Garry McCarthy, the NYPD's deputy commissioner for operations.

The NYPD created a unit called the Cigarette Indiction Group (CIG) to deal with the "anticipated" upturn in "buttlegging" immediately after the city passed a $1.50-a-pack tax increase in July 2002 - an extraordinary 1,900 percent jump from 8 cents a pack.

Since then, the six-member CIG unit has made 146 arrests, seized six cars, $250,000 in cash and 30,000 cartons (6 million) cigarettes - and their work does not include the more than 1,000 cigarette-related collars made by the city's patrol cops, McCarthy said.

McCarthy said the lucrative trafficking and the comparatively modest sanctions suggested the schemes could continue, as could the bloodshed.

"Any money-making scheme will branch into violence," he said.

December 8, 2003
        Page Six

GRAYDON Carter - among the most vocal opponents of Mayor Bloomberg's anti-smoking laws - has been crushed by the Health Dept. enforcers who ticket him each month when they find ashtrays in his office at Conde Nast headquarters.

The Vanity Fair editor in chief was defiant after the third bust at his corner office on the 22nd floor, declaring: "I find Mayor Bloomberg's smoking laws to be nothing short of asinine and their enforcement to be nothing short of harassment."

But a week later, the editor sounded like the victim of overzealous prosecution and implied he never uses the ashtrays.

"I keep them around to remind me of my youth," Carter informed the Times.

The back-tracking led one smoker to lament, "We have lost our leader. Graydon was like Charles de Gaulle commanding the underground against the Nazis. But now they have beaten him into submission."

The storm troopers first raided Carter's office in September after he was ratted out. Health Dept. spokeswoman Sandra Mullin said, "There were several complaints." A Vanity Fair spokesman denied that Carter is trying to find out who betrayed him: "There is no witch hunt."

Conde Nast faces fines of $200 to $2,000 for repeat violations, and it is almost certain the jack-booted city inspectors will return soon for a fourth visit.

"This is harassment on the part of Mike Bloomberg, pure and simple," Carter e-mailed PAGE SIX: "Of the 200 so-called ashtray violations handed out, I have received three of them. This is no coincidence."

Carter seemed surprised by his new persona as a civil-rights leader. "I make the front page of the [International] Herald Tribune not for having written a great book or having painted a great picture or anything, but for having an ashtray in my office."

No longer. His spokeswoman said, "There are no ashtrays." And a source who works nearby told PAGE SIX: "I haven't smelled smoke coming out of his office this week." Sounds like surrender.

However, The Post's Keith Kelly reported that Carter defiantly enjoyed a post-prandial cigarette at the Four Seasons last week after the annual Conde Nast lunch, and lured editorial director James Truman to light up too. So maybe the fight for smokers' rights, while it has moved from Carter's office, still has a spark of life.

December 6, 2003

Where are the New York Civil Liberties Union busybodies when you really need them?

Just sitting on their butts?

While Mayor Bloomberg's ashtray posse is out there kicking down doors?

Recent reports demonstrate only too well what Mayor Mike's anti-smoking holy war has degenerated into.

Now they're busting folks for possession.

Not of cigarettes.

Of ashtrays.

Case in point: The Health Department's "raid" of the venerable Players Club off Gramercy Park, as reported by The Post's Steve Dunleavy last week.

An intimidated assistant of the club executive director was forced to open her boss' private office.

No warrant.

No due process.

And then the inspectors found - are you ready for this? - three ashtrays.

In a stack.

Now, there's a threat to public health.

As Players Executive Director John Martello said: "No cigarettes, nothing. No evidence of smoke, just three stacked ashtrays. I wasn't even there."

The ashtrays had been intentionally removed from the interior bar premises - as the law demands.

Not good enough.

Not for Mayor Mike.

We think the ban is misguided - that's no secret.

Also obvious: the economic damage the ban is inflicting across the five boroughs.

But the latest incidents - Dunleavy's anecdote is but one of many tales of proprietors ticketed just for ashtray possession - suggests that the tobacco dragoons are now totally out of control.

The rationale for the ban is the allegedly damaging effects of exposure to so-called "second-hand" smoke.

The scientific basis for that is dubious, but let that go for now: If that's the concern, then let the health inspectors investigate on that basis - exposure to actual smoke.

If there is clear evidence of smoking going on, go after the perps.

But don't start throwing around tickets because of ashtrays.

A questionable policy from the start, the ban has now become a license to invade New Yorkers' privacy, waste resources and further make New York City seem like an oppressive, over-regulated place in which to do business.

To say nothing of a laughingstock.

NYCLU, do your stuff!

December 4, 2003
        By Keith J. Kelly

It's Christmas season in New York - when the Rockefeller Christmas tree lights are turned on, and the upper echelon of Conde Nast gathers at the Four Seasons restaurant for the annual editors and publishers' holiday bash.

When smoke began wafting through the room late in the luncheon, it did not take long to find the culprit: Vanity Fair Editor-in-Chief Graydon Carter. A bitter foe of Mayor Bloomberg's smoking ban, Carter also enticed Table 5 seatmate Truman to flout the law.

November 28, 2003
        By Steve Dunleavy

LAWYER Rich Farley was steaming like a Thanksgiving turkey.

"It's like making a household glass tumbler illegal during Prohibition because you could pour whiskey into it," he was saying.

Farley was commenting on the latest outrage committed by the nicotine Nazis.

At 3:30 p.m. on Monday, two inspectors for the Health Department "raided" the time-honored Players Club on Gramercy Park South.

Operating on an anonymous tip, the inspectors called on Players Club Executive Director John Martello.

Martello was out of the office and so was his assistant.

"When my assistant returned, the inspectors demanded she open my locked office. Of course, she was intimidated, and indeed opened the office," Martello said.

"There behind the desk, on a low shelf, they found three stacked ashtrays.

"No cigarettes, nothing. No evidence of smoke, just three stacked ashtrays. I wasn't even there."

Martello said the reason the ashtrays were in his office is because the Health Department makes it illegal to have ashtrays on the bar since the smoking ban.

"I didn't know ashtrays were illegal," said Martello.

Farley said: " If you have a kitchen license, the Health Department has the right to inspect you at any time.

"Clearly, the law wasn't made for going into a private office, seeing stacked and stored ashtrays and giving you a citation. Previously, the Health Department in this regard was limited to food and beverage establishments for this law. But now they can go anywhere, they can go into your office building, a psychiatrist office, a hospital.

"Could you imagine if a cop on an anonymous tip went into a private office without probable cause for a search warrant, what would happen?"

The Players Club, founded in 1888 by Edwin Booth, brother of Abraham Lincoln's assassin, John Wilkes Booth, has boasted as members Gen. William Sherman, Mark Twain, Mayor Fiorello La Guardia, James Cagney, Mayor John Lindsay, and now has as another honored member, former Mayor David Dinkins.

The Players Club faces a fine ranging from $200 to $2,000 for a Health Department citation. Department spokesman Sid Dinsay said, "There was a complaint that smoking was occurring in that office. It's routine for us to search every part of an establishment and that includes an office."

Where the hell is the American Civil Liberties Union, that whining bunch of lefties, now?

November 26, 2003
        By Stephanie Gaskell

Likely mayoral candidate Fernando Ferrer was blowing smoke at Mayor Bloomberg last night.

Ferrer - who has been critical of Bloomberg's far-reaching ban on smoking - made a splash at Cigar Aficionado's annual "Big Smoke" event, where he puffed away and created a buzz in the crowd of hundreds by his presence.

"I'm just having fun," Ferrer told The Post as he lit up a stogie at the Marriott Marquis.

The city's new strict smoking ban allows venues to apply for special waivers for tobacco promotion events, so last night's event was legal.

Ferrer's presence raised some eyebrows.

"It's a statement," said Ike Johnson, an international marketing salesman and cigar fancier. "It shows that politicians are against Bloomberg and the smoking ban."

Ferrer recently criticized Bloomberg's smoking ban, telling The Post in an interview last month that the mayor went too far.

"There's a way to protect people in the workplace without denying others the opportunity to exercise their right in the marketplace," Bloomberg said at the time.

While Ferrer last night refused to attack Bloomberg directly for the city's strict smoking rules, he said the Big Smoke was an example of how to strike a balance between those who want to smoke and those citizens who don't want to inhale second-hand smoke.

"I think this is a perfect example of it," said Ferrer, who lost in the mayoral runoff in 2001 and is eyeing another run. "People come here willingly."

"A lot of smokers would like" to hear about Ferrer's participation at such a pro-smoking event, said fellow puffer Sean Moroney.

Moroney, a Manhattan bartender, said he would vote for Ferrer just because of his position on smoking - and he indicated his line of work was a factor.

"I'm not making as much money as I used to," Moroney said.

The city's best-known cigar fan, former mayor Rudy Giuliani, didn't attend the Big Smoke.

November 24, 2003
        By Neil Graves

Two legislators said they are leading a move to have the state's bar and restaurant anti-smoking laws rolled back by permitting qualified establishments to set their own smoking policy.

Deputy Minority Leader Howard Mills (R-Rockland) and Assemblyman Matthew Mirones (R-S.I.) said under their bill, any bar of food-service establishment that already has a liquor license would be able to apply for a license that for $100 would permit on-premise smoking.

The legislators said some businesses are down by 40 percent to 50 percent because of the smoking bans.

During a press conference at an East Side pub yesterday, Mills said many establishments "will be forced to make the critical decision over the next couple of months of whether they will stay in business." Mill, a non-smoker, said although he recognized second-hand smoke was a health problem, the larger issue was "freedom of choice and personal liberty."

Brian Butler, a spokesman for the 2,200-member Empire State Restaurant and Tavern Association, said millions have been lost in the ban, with smokers either going to New Jersey bars or staying home.

"I don't know anybody [in New York] who has benefited from this," said Butler, whose own Newburgh ale house has lost 25 percent of its business.

Christine Quinn (D-Manhattan), chairwoman of the City Council's Health Committee, said she doubted whether Albany would want to "revisit" an issue approved last spring - 97-44 in the Assembly and 57-4 in the Senate. The City Council's vote, in December 2002, was 42-7 with two abstentions.

Quinn said the Mills-Mirones proposal misses the point. "The point is to make the workplace safe for workers," she said

November 24, 2003
        By Stephanie Gaskell

Some of the city's tough new anti-smoking rules are so complicated and confusing that health inspectors and judges don't even know what's kosher and what's not.

Brian Bui knows that all too well. The owner of Mekong restaurant in SoHo got ticketed twice for allowing a customer to smoke outdoors under an awning - but when the cases got to court, one judge ruled for him, and another ruled against him.

Smoking under an awning is definitely illegal - but Bui insists the awning was retracted when he got his two tickets.

If that's the case, Health Department officials admit Bui shouldn't have gotten any tickets.

"A notice of violation should not have been issued if smoking was otherwise allowed and the awning was retracted," said department spokeswoman Sandra Mullin.

"We are going to look into that further to make sure that that is, in fact, what was observed."

The anti-smoking law permits smoking in 25 percent of a bar or restaurant's outdoor area - as long as there is no awning or overhang.

But the inspector wrote on one ticket that Bui "is not allowed to have a smoking area outdoors where [there] is a canopy present, even if the canopy is retracted."

"I tried to explain to her that the awning was retracted," Bui said.

He said the inspector told him "they were instructed to cite it, even though the awning is retracted."

Bui said the inspector never claimed that the awning was open.

"It shows a mean-spiritedness in their interpretation of the law," said Bui's lawyer, Rob Bookman.

Bui fought the first ticket, which was issued in June, and lost.

The administrative judge ruled that Bui didn't make a "good-faith effort" to tell the customer not to smoke and slapped him with a $200 fine.

Bui said, "Even the judge admitted that it's confusing. They're the interpreters of the law and they're not sure."

"From our perspective, the law is clear," said Bookman. "The Health Department appears to be confused."

Just two months later, Bui was ticketed again for the same offense. "I was shocked," he said.

This time, Bui hired Bookman, fought the ticket - and won.

Even after winning that case, Bui is out $3,000 in legal fees lawyers and fines.

November 8, 2003

New Yorkers can rest easy - Mayor Mike's health police are blanketing the city 24/7 in search of illegal ashtrays and missing "No Smoking" signs.

Such is the lesson that Marty Arno learned: As The Post reported yesterday, he faces up to $6,000 in fines after a health inspector discovered an ashtray in his Brooklyn video store.

Not only that - it had a cigarette butt in it.

And not only that, but he had failed to post two required signs - one informing patrons that smoking is illegal, the other outlining his business's official non-smoking policy.

Is Mayor Mike the only one who doesn't think all of this is getting pretty ridiculous?

Apparently so - after all, he's still making offensive and insulting moral equations between the alleged victims of second-hand smoke and the people who were killed at the World Trade Center on 9/11.

That can't possibly be true, you must be thinking. Not even Mayor Mike would stoop that low.

Guess again. Here's what the mayor told Vanity Fair in a newly published interview:

"Talk about all of the press attention to 9/11. That number of people die every year in the city from second-hand smoke."

Which, apart from its appalling insensitivity, is utter nonsense factually. (A leading British medical journal last May reported that "the association between [passive smoke] and coronary heart disease and lung cancer may be considerably weaker than generally believed.")

But it certainly explains why cracking down on smokers seems to be the mayor's top priority these days.

Arno contends a customer entered his video store with a lit cigarette, and rather than send her outside, he offered her an ashtray to extinguish the butt.

Uh-uh, says the city, you can't do that - having an ashtray on the premises, says the department, is "an invitation to smoke in the establishment."

Indeed, the Smoke-Free Air Act, as it's known, specifically states that ashtrays "shall not be used or provided for use."

So it seems the city has the law on its side, however much it may be lacking in common sense.

If only Mayor Mike spent even half as much time solving the city's long-term fiscal woes as he does ensuring that no New Yorker ever again lights a cigarette in public, maybe the municipal budget would be in balance.

What a novel idea.

November 7, 2003
        By Gersh Kuntzman

Freeze, punk! Drop the ashtray!

A Brooklyn video-store owner is facing up to $6,000 in fines after a health inspector caught him with the city's newest controlled substance: an ashtray.

"One (1) ashtray with cigarette butt, and ashes, was seen on the counter of the establishment," inspectors M. Dundas and S. Holloway noted on the ticket that they handed to Marty Arno, owner of Brooklyn Heights Video, last month.

The inspectors also hit Arno with two other violations, one for not having "No Smoking" signs and another for having not posted his company's official nonsmoking policy. The alleged violations carry maximum fines of $2,000 each.

"I'm a tiny video store - it's just me and a girl who comes in part-time," he said. "She knows smoking policy: We don't smoke in the store - it's bad for the videos."

Arno said the illegal ashtray is a case of mistaken identity.

"What happened was that a customer came into the store with a cigarette and rather than make her go all the way back outside, I just let her snuff it out in the ashtray," he said.

Health Department spokesman Andrew Tucker said that the city outlawed ashtrays so that "there is not an invitation to smoke in the establishment."

Arno, whose video store is a favorite of film buffs, took offense at the criminalization of the humble ashtray - in this case, his souvenir from the classic 1984 B-movie, "The Rosebud Beach Hotel."

"How can they take an inanimate object and make it illegal?" he railed. "During Prohibition, alcohol was illegal, but they didn't make the shot glasses illegal. Does anyone even know that this is the law?"

Arno does now. Since receiving his initial summonses, the same inspectors have visited twice. Both times, Arno was in compliance.

"The guy was crawling under the counter looking for the damn ashtray," Arno said. "I said, 'Do you think I'm such a schmuck that I'd leave it out again?' "

Arno says he will fight the fines on the grounds that there is widespread confusion about the less- heralded parts of the city's anti-smoking laws, which took effect this year.

Most of the attention has focused on bars and restaurants, so many businesses and mom-and- pop stores may share Arno's confusion. But the summonses Arno received are right there in the fine print of the Smoke-Free Air Act.

For example, ashtrays "shall not be used or provided for use." "No Smoking" signs must be "conspicuously posted so that they are clearly visible." And "every employer shall establish and/or update a written smoking policy."

Brooklyn Councilman David Yassky said he'll urge the Health Department to better explain the law to owners of small businesses.

November 7, 2003
        By Fredric U. Dicker

ALBANY - Half of New Yorkers say the state's tough new smoking ban should be changed, while clear majorities favor cutting spending and keeping the tough Rockefeller drug laws on the books, a new poll yesterday found.

The Quinnipiac University survey of 1,304 registered voters also found an overwhelming 72 percent of New Yorkers feel that government corruption is a "serious" problem in the state.

The poll found 50 percent of voters want New York's harsh smoking ban in restaurants and bars made "less strict," while 47 percent favor keeping the status quo.

Fifty-one percent of New York City and upstate residents favor a less restrictive smoking ban, while suburbanites, by 54 percent to 45 percent, like the law as is.

New Yorkers in all regions say government corruption is a serious problem: 74 percent in the city, 71 percent in the suburbs and 73 percent upstate.

November 4, 2003
        By Stephanie Gaskell

Mayor Bloomberg, in an unusually sharp jab at Rudy Giuliani, says racial issues tinged every aspect of his predecessor's administration.

"You forget that every single decision, everybody, every story, everything was always couched in terms of race," Bloomberg says in the December issue of Vanity Fair, which hits newsstands tomorrow.

"That's not true anymore," Bloomberg concludes.

In the revealing interview, Bloomberg also stresses that he has a different management style than Giuliani, who is universally credited for his leadership in the city in the aftermath of Sept. 11.

"He made all the decisions . . . particularly when it came to police and fire. Rudy wanted to be the PC [police commissioner]. Rudy wanted to be the fire commissioner. He rushed to the fires," Bloomberg says.

"My attitude is, my job is to pick people and let them do it."

A Giuliani spokeswoman declined comment, saying the ex-mayor hadn't seen the article.

Bloomberg's press secretary, Ed Skyler, defended the mayor's comments.

"No one should infer any criticism of Mayor Giuliani in either of those statements," he said.

Bloomberg also compares the number of deaths caused by secondhand smoke to the number of people killed in the World Trade Center collapse.

Doubling his previous estimates, the mayor says that 2,000 New Yorkers die each year from secondhand smoke.

"Think about all the press attention to 9/11," he says. "That number of people die every year in the city from secondhand smoke.

"Or think about all the press focus on anthrax," he continues. "Six months. Headline stories. Every radio station. Every television station. Every periodical. Every newspaper. Anthrax, anthrax, anthrax.

"There were seven deaths."

Bloomberg also suggests he wouldn't be devastated if he loses his re-election bid in 2005. "If the public decides they don't want me, OK, I'm gonna have another career," the billionaire former businessman says. "For most people, when they leave office, that's the end. That's not true in my case. My Plan B is better than the other guy's Plan A."

Bloomberg admits that being mayor isn't the "highlight of his career."

"You look at people, this is the highlight of their career - in terms of power, access, visibility," he says. "That wasn't the case with me. I can go to any city in the world," he says.

In the nine-page article, Bloomberg also targets Democratic Sen. Chuck Schumer, citing him as a politician who spends his entire term running for re-election.

October 25, 2003
        By Kenneth Lovett

ALBANY - The city Health Department has granted two waivers to the tough smoking ban, officials said yesterday.

Smoking is now legal for patients in the psychiatric ward of Staten Island University Hospital and people at the General Cigar Co. in Manhattan.

The two were among 14 businesses that have applied for waivers. The fate of the other 12 requests wasn't clear last night.

City Health Department spokeswoman Sandra Mullin said General Cigar Co., which manufactures cigars, had sought a waiver on the grounds of economic hardship.

A waiver was granted to the Staten Island hospital on the grounds that compliance is unreasonable, a state official said.

On Aug. 20, the state gave the city the power to grant waivers to a very limited number of businesses and other places that could prove the statewide smoking ban had caused economic hardship or that compliance was unreasonable.

Statewide, hundreds of bars and other businesses have sought waivers to allow smoking, but only five have been granted.

October 24, 2003
        By Steve Dunleavy

MAYOR Bloomberg promised he would save 1,000 lives a year through his secondhand-smoke ban in bars.

With great respect, I suggest he go to A.J. Kelly's Pub on Stone Street off Broadway and speak to saloon owner Brian Kelly.

On Oct. 15 at 9:30 p.m. at Kelly's pub, a disaster of frightening proportions was averted by Fire Co. 15 and Engine 4.

The worst-case scenario would have been Mayor Bloomberg having to go to funerals.

"It was the night of that terrible thing happening on Staten Island, and it was terribly windy," Kelly was saying.

"It was after the Yankee game, and the Chicago game was coming up.

"The place was packed, and the customers went outside into the wind to have a smoke."

One of the customers flicked his lit cigarette on to the street.

The best guess is that the wind blew it under a crack between the bar's storefront.

"Suddenly the customers were saying 'I smell smoke,' " Kelly recounted. "We evacuated the place, and me and the chef started searching all over.

"The cigarette had got into the ceiling of the basement and started a fire," Kelly said.

Of course, it just could have been a passer-by who flicked that cigarette.

"No way. At 9:30 p.m., the only reason why the bar was packed was because of the games; this is a very little traveled street at night. And in 33 years, there hasn't been any fire. Outside the bar, the place was littered with cigarettes because they can't smoke inside and put their cigarettes out in an ashtray."

Kelly estimates the damage was up to $20,000.

Firefighters quickly put out the fire in the basement of A.J. Kelly's Pub, but caution being the best boss, they evacuated the residents of the five-story building. And when one resident did not answer the door, they broke it down just in case someone was sleeping inside. The resident was out.

"This is all because of Bloomberg's silly law. I don't smoke but my wife does. And here is the wife of the owner of the pub having to go outside. I can't tell you how much business I've lost because of this smoking ban. Now comes winter. I will have customers dying of pneumonia."

Postscript: The pub called Fiddler's Green on 48th Street, a durable Irish establishment owned by veteran saloon keeper John Mahon, is closing.

"We have just lost too many customers to this law, which I did not vote for, bar owners did not vote for, bartenders did not vote for, and the public did not vote for," Mahon said.

October 22, 2003
        By Kenneth Lovett

ALBANY - A federal judge yesterday denied efforts by bar and restaurant owners for a preliminary injunction to block the statewide smoking law.

Judge Lawrence Kahn ruled that the Empire State Restaurant and Tavern Association failed to establish a likelihood that its lawsuit to overturn the new law would ultimately be successful.

He also said the association failed to prove the likelihood that bars and restaurants will suffer irreparable harm absent an injunction.

"The court finds that the qualitative differences between adverse business consequences and adverse physical health effects weighs in the favor of [supporters of the law]," Kahn wrote in his 14-page decision.

A disappointed Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, will proceed with the lawsuit, even though the decision "doesn't point to the likelihood to success before this judge."

"If people are looking for relief, this does shift the focus to the legislative process for the time being," he said.

October 20, 2003
        Inside Albany ("Smoke This, Joe Bruno!")
        By Fredric U. Dicker

An angry new rock-'n'-roll song blasting Senate Majority Leader Joseph Bruno for backing the state's anti-smoking law is selling out in his home city of Troy.

"We can't get enough of our CDs into peoples' hands," said James Barrett, lyricist and keyboardist with the Troy-based six-member group The Lawn Sausages.

Entitled "Smoke This, Joe Bruno!" the song takes the powerful Rensselaer County Republican leader to task for pushing through the controversial measure, which banned smoking in bars and restaurants.

"They say Uncle Joe used to smoke a couple packs a day, but now that he's a senator, he's got the nerve to say, 'You can't smoke in restaurants, you can't smoke in bars, you can't even smoke in a corporate car,' " the song begins.

"Now I don't even smoke, and I don't care if you do, but how many more rights can they take away from you?"

"We wrote this in a night about two weeks ago because he's costing a lot of our friends their jobs," Barrett said.

"It's being sold in all the bars in Troy and at local records shops and at the Smokers' Paradise in Troy. The response has been overwhelming."

Barrett said The Lawn Sausages were formed 12 years ago and had earned about $75,000 during that time, performing mostly locally and selling CDs, with all the money going to local food banks and other charities.

Local observers believe Bruno, once a strong pro-business opponent of expanded government powers, has suffered political damage because of his backing of the smoking ban and his support for the biggest tax hike in New York state history.

October 18, 2003
        By Stefan C. Friedman

The city stepped up its war on Internet cigarette distributors yesterday, filing a lawsuit against seven out-of-state Web sites for illegally shipping cigarettes to New York.

The city Corporation Counsel and Finance Department launched a sting operation against the Web sites in an investigation in which two undercover officials purchased cigarettes online and had them delivered to city addresses - a violation of state law.

The city is looking to have an injunction filed against the sites, forcing them to cease shipping smokes to New York state and pay back taxes on the cigarettes they sold to New Yorkers.

"The city is losing millions and millions in tax dollars it should be getting," said city lawyer Eric Proshansky. "The suit is designed to ensure that that money gets collected."

October 17, 2003
        By Stephanie Gaskell

Claiming financial hardship, 14 businesses - including a hospital and several psychiatric centers - have applied for special permits that would allow smoking, health officials said yesterday.

On Aug. 20, the state Health Department gave the city the power to grant waivers to businesses that could prove they lost money because of the statewide smoking ban.

The city is considering each application on a case-by-case basis, according to Health Department spokeswoman Sandra Mullin.

Very few establishments are expected to qualify for waivers - only bars that want to build a ventilated smoking room and owner-operated pubs.

The city had allowed for these exemptions until the stricter state law took effect in July.

The businesses all claim they lost revenues in the first seven months of the ban.

The city ban went into effect on March 30, followed by the statewide ban in July.

October 8, 2003
        By Kenneth Lovett

ALBANY - The state Conservative Party yesterday began a statewide postcard campaign aimed at getting Senate Majority Leader Joseph Bruno to consider changes to the ban on smoking in restaurants and bars.

Conservative Party Chairman Michael Long said Bruno (R-Rensselaer) - a one-time favorite of the party - is being targeted because "he's the biggest zealot on this."

The postcards proclaim, "The smoking ban has gone too far. This onerous law does not allow the free market to work . . . This burdensome law is causing the loss of business and jobs . . . This oppressive law is an affront to freedom."

It goes on to say, "I join with the Conservative Party and urge you to amend the law to allow accommodation of all patrons."

The cards are being sent to restaurants and bars around the state. Customers will be asked to sign them and send them to Bruno's office.

Long said he sent 10,000 cards to Nassau County alone yesterday.

Long said the cards are not being sent to Assembly Speaker Sheldon Silver and Gov. Pataki because he believes Bruno represents the biggest roadblock on the issue.

Bruno spokesman John McArdle had no comment other than to note that it also takes the Assembly and governor to make any changes to the law.

Several Bruno allies have quietly said they would like to see changes in the law, to at least give bars and restaurants the option of providing separately ventilated smoking sections.

Bruno has indicated he might be open to such changes next year.

October 1, 2003
        By Kenneth Lovett

ALBANY - A national anti-smoking group is looking for New York cancer sufferers to feature in a new round of ads designed to keep kids from smoking.

An internal memo sent to the anti-smoking group Smokefree NY, and obtained by The Post, shows that the American Legacy Foundation is looking for New Yorkers whose lives have been harmed by smoking to appear in "a few powerful, reality-based smoke-free commercials."

Perhaps the best-known of such anti-smoking ads was made by actor Yul Brynner and broadcast after he died of cancer in 1985.

Among those real-life victims now being sought:

* A teen who during his life lost a parent to smoking.

* A woman who has lost her hair due to treatment for a smoking-caused disease.

* A hospitality worker with lung cancer caused by exposure to secondhand smoke at work.

* A woman who uses an oxygen tank to breath.

The ads are to be shot in New York and shown nationally, said casting director Mimi Webb Miller.

"We are actively looking for people in those positions to speak to a camera," Miller said. "Those kind of truth ads are real effective with kids."

The nonprofit American Legacy Foundation was formed in 1999 to education kids about smoking and is mostly funded with money from tobacco companies as part of a 1999 settlement with 46 states.

Smokers called the coming ads exploitive.

"They have no shame," Audrey Silk, co-founder of a New York City-based pro-smoking group, CLASH. "They'll do anything for the cause."

Silk added the anti-smoking groups "are starting to sound desperate to me. Oh, I hate them."

Meanwhile, Wal-Mart entered into an agreement with 43 states, including New York, to try to stem tobacco sales to minors, state Attorney General Eliot Spitzer said yesterday.

Wal-Mart agreed to better educate and train employees on the issue, use cash registers that allow for ID checks on all tobacco sales and prohibit self-service displays of tobacco products.

Wal-Mart will also pay $437,500.

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December 24, 2003
        Suit: Smoke ban ash-backward
        By Dave Goldiner

Hands off our stogies, Mayor Bloomberg!

The grumpy old smokers at the century-old Players Club sued yesterday to overturn the smoking ban, saying City Hall should keep its nose out of their venerable cigar-scented lair.

"The only thing smoking causes is second-hand statistics," quipped bon vivant Bert Sugar, gripping a Scotch-and-soda in one hand and a cigar in the other. "George Burns lived till 100. He would've died at 70 if he didn't smoke."

Daily News columnist Sidney Zion was there and angrily invoked the Constitution, the First Amendment and the law of the smoke-filled jungle to blast the mayor, who recently claimed second-hand smoke kills more New Yorkers annually than terrorists did on Sept. 11.

"There's a place called Bellevue for people like that," Zion groused. "It's totally bogus."

The club, founded in 1888 by legendary actor Edwin Booth - who also was the brother of Lincoln assassin John Wilkes Booth - filed suit in federal court yesterday asking a judge to overturn both the city and state smoking bans.

The suit says there is no proof that second-hand smoking is harmful and that private clubs should be free to make their own rules. It also claims the strict law is discriminatory because it exempts a handful of cigar bars.

Bloomberg brushed off the latest challenge, calling it a last-breath effort to derail his successful snuff-the-puff campaign.

"We've been through the smoking business," he said. "Let's stop killing people and get on with it and grow up."

December 23, 2003
        Thanks to smoke ban, I'm outta here
        Ex-bar owner says he's not alone in losing biz
        By Shay Leavy -  Leavy, now a former New York City bar owner, started a new job in Florida a few weeks ago

It has been about six months since the smoking ban went into effect, and perhaps it is somewhat true that bartenders and service people in taverns can now breathe better-quality air. But I wonder if they are really well-served if they lose a portion of their income, or their employment altogether, because their establishment has suffered a significant loss of business.

Thanks to the politically correct crowd that backed the smoking ban, a number of bars and taverns have closed. Many more have suffered a major drop in business. It's a shame that neither Mayor Bloomberg nor Gov. Pataki saw how air purifiers could have served the needs of all interests here.

The smoking-ban advocates claimed that when smoking was prohibited, nonsmokers would patronize establishments where they previously had felt out of place. Well, they didn't come into my establishment. And the other bar owners I talk with haven't seen them either.

I just closed my bar in lower Manhattan about two weeks ago. I felt bad laying off seven workers. Most of them had been with me for the five years Swan's was open. None of them had ever complained about secondhand smoke. Harry's Hanover Square recently closed after 30 years in the Financial District. About a month ago, the century-old, family owned Roesch's Tavern in College Point closed.

Taverns are dropping like flies, but not from smoking or cancer.

December 20, 2003
        Bouncer's kin want 550M
        Sue club, alleged killer in slaying over cig ban
        By Helen Peterson

The family of a nightclub bouncer who was killed while trying to enforce the city's smoking ban is suing the club, his alleged killer and two other men for $550 million.
Dana Blake, 32, nicknamed Shazam, was fatally stabbed during a brawl that erupted when he asked a patron to comply with the ban at a lower East Side club in April.

The suit, filed in Manhattan Supreme Court, accuses Blake's suspected killer, Isaias Umali, of causing the "excruciating and agonizing horrific injuries" that led to Blake's "extremely painful death" by stabbing him in the groin.

The suit also alleges that Jonathan Chan, 29, a Wall Street banker, refused repeated requests by security at Club Guernica to stop smoking before the April 13 murder.

Umali, Chan and his brother, Ching Chan, a 31-year-old medical student, created a "hostile, dangerous and violent atmosphere," according to the lawsuit.

Umali and the Chans, whose father, Wing Yeung Chan, was a notorious Chinatown gang leader, are being sued by the family for assault and battery.

Umali is charged with murder and may stand trial next month. The Chans, and their sister, Alice, were initially arrested but were later released.

The lawsuit also accuses the club of negligence for failing to "train, advise and inform" its employees regarding "implementation and/or enforcement of the then-recently enacted 'no smoking' law."

A lawyer for the Chans, Ivan Fisher, said they were "not pleased" when they learned of the lawsuit yesterday, but declined to comment further because they have not yet seen it.

The suit was filed by Harold Blake, of Queens, who is the administrator of his brother's estate.

December 11, 2003
        NYPD Set To Smoke Out Black Market Cig Trade
        By Michele McPhee

The Police Department has launched a major investigation into bootleg cigarette dealing, a lucrative, cutthroat trade blamed for three recent murders, Police Commissioner Raymond Kelly said yesterday.

"It's a cause of concern.  We have seen violence in the recent past," Kelly said.  "We are always concerned about violence on the streets of the city."

Kelly said the NYPD's cigarette unit is focusing on "organized groups" that drive to Southern states and buy thousands of untaxed cigarettes to sell on the streets of New York at $5 a pack.  A rise in New York City and state sales taxes have pushed the price at local stores to more than $7 a pack.

"We've seen this before, with cartons being sold in bars.  But it's changed to a different kind of business with packs being sold on the streets," Kelly said.  "The money is there.  The profits are going way up."

The NYPD's Cigarette Indiction [sic] Group, composed of six investigators, has made nearly 150 arrests and seized 30,000 cartons of cigarettes since July 2002.

Yesterday, the Daily News reported that three men have been killed in the bootlegging wars in Brooklyn.  The most recent case came on Nov. 25, when Cody Knox, 19, was fatally stabbed by two rival cigarette sellers near the Fulton Mall because he was undercutting their sales of illegal smokes by a buck.

December 10, 2003
        The deadly butt-leg war
        3 slain as cig street trade booms
        By Michele McPhee

A bootleg cigarette war in Brooklyn has claimed the lives of at least three people since the summer, the Daily News has learned.

With city and state taxes boosting the price of cigarettes, hundreds of streetwise hustlers are selling cheap tax-free smokes - an illegal but lucrative trade that is becoming nearly as cutthroat as dealing drugs.

One teenage victim, Cody Knox, was buried yesterday, two weeks after he was chased by two fellow bootleggers and fatally stabbed because he was undercutting cigarette prices by a buck, stealing his rivals' business.

"I loved my son, he was a good boy, he was an artist. He was just trying to find himself, and that cigarette thing was just a little hustle that he did on the side," the victim's mother, Yvonne Knox, told The News last night as her voice trembled with tears.

"It's unbelievable that he had to die like that over cigarettes," Knox said, recalling how police told her a broken knife was found beside her 19-year-old son's body that horrible afternoon on Nov. 25. "A silly thing like cigarettes."

But law enforcement sources said Knox is not the only street seller of cigarettes to meet a violent end in recent months.

There have been at least three slayings in Brooklyn associated with selling packs of untaxed cigarettes on streetcorners, law enforcement sources said.

The business began to explode last year, when both the city and the state levied taxes that boosted the price of a pack of butts to more than $7.

Crafty entrepreneurs began building businesses by driving to Southern states for cheaper nicotine, or enlisting the help of Native Americans to buy untaxed cartons on reservations.

If a dealer is caught, the penalty is just a slap on the wrist.

"These guys are making as much money as drug dealers, but if they get caught, all it is is a summons," said one high-ranking police official.

Bootleggers run their operations like small businesses - or like drug operations using steerers to bring customers to secreted stash houses and lookouts to watch out for cops.

Shirwin Henry, 23, took a legitimate approach to his illegal smokes trade by placing ads in Brooklyn community papers advertising his delivery service. Henry bought cigarettes legally on an Indian reservation in Mastic, L.I., with a Native American buddy but then sold them for a profit using a toll-free number to sell their wares.

On Nov. 17, Henry's body was found on an East New York rooftop where he had gone to deliver a carton of cigarettes to a tenant at 185 Wortman Ave. He had been shot once in the head.

"This guy was making about $1,000 to $1,500 a week selling these untaxed cigarettes," said the law enforcement source. "We believe someone in the neighborhood knew how much money he was making and decided to rob him."

Investigators also are looking at a third cigarette-related slaying, in Bedford-Stuyvesant on Aug. 16. Angel Aponte, 17, was suspected of robbing a cigarette dealer days before he was found shot dead at 544 Throop Ave.

November 24, 2003
        Pols: Let pubs pay for smokes
        By Nicole Bode

A new bill would allow any bar or restaurant to skirt the statewide anti-smoking law for $100 a year - the cost of about a dozen packs of cigarettes.

For a C-note, any business with a liquor license could get a smoking permit from the state Department of Health, under a bill introduced by Assemblyman Howard Mills (R-Orange Co.) and Assemblyman Matthew Mirones (R-S.I., Bay Ridge).

"It's not about smoking. It's about ... freedom of choice and personal liberty," Mills said yesterday at a pub called O'Neill's on Third Ave. near 46th St. in Manhattan.

The bill is among several proposed exemptions to the law, including a hardship waiver under discussion in the GOP-led Senate. The waiver would give exemptions to businesses that can prove they have lost substantial revenue due to the smoking ban.

A spokesman for Gov. Pataki declined comment on the Mills-Mirones bill, which would seem to face an uphill battle. State Department of Health officials did not return calls.

October 3, 2003
        Most say smoking ban is a butt-iful thing
        By Joe Mahoney

ALBANY - Most New Yorkers want to keep the butts out, a new poll shows.

The state's ban on smoking in restaurants and bars is supported by 59% of registered voters in New York, according to a Quinnipiac University poll released yesterday.

New York City voters matched the statewide results, with 59% favoring the ban and 36% opposed to it.

Groups representing bars and restaurants questioned the poll's value, arguing that it lumped bars in with restaurants.

"It's only the bars where we think the ban is problematic," said Scott Wexler, director of the Empire State Restaurant and Tavern Association, which says that many of its members have lost business because of the ban.

Its backers, however, note that new statewide figures show a slight increase in the state's beer and alcohol tax collections in August - $15.2 million, about $800,000 more than the $14.4 million collected in August 2002.

Those collections, however, reflect overall alcohol taxes, not just those pouring in from bars and restaurants.

The same poll had good news for Sen. Hillary Clinton (D-N.Y.), with 61% saying they approve of her and 33% saying they disapprove - her highest favorability rating since she entered politics three years ago.

"She makes sure she gets around all over New York, and people think she is doing her job," said Quinnipiac pollster Mickey Carroll.

There also was an uptick in support for Gov. Pataki, who scored an approval-disapproval rating of 46% to 42%. His approval rating was up three points from a June 25 Quinnipiac survey.

Sen. Chuck Schumer (D-N.Y.) rang up a 60% to 24% positive-over-negative rating, while state Attorney General Eliot Spitzer, expected to run for governor in 2006, had the highest approval rating of any statewide official: 62% to 15%.

The telephone survey was conducted last week and has a margin of error of plus or minus 2.8 percentage points.

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Associated Press - December 31, 2003
        N.Y. to Require Self - Extinguishing Cigs

ALBANY, N.Y. -- New York will be the first state to require that all cigarettes be manufactured with paper that extinguishes itself if smokers don't do the job, state officials said Wednesday.

Advocates say the regulations, which go into effect in June, will prevent many of the fires started by careless smoking.

``This could be the beginning of a global standard for cigarettes,'' said Blair Horner, legislative director for the New York Public Interest Research Group.

The self-extinguishing cigarettes are wrapped in banded paper, with the bands serving as speed bumps to inhibit burning when no one is puffing on the cigarette.

State officials said they will allow retailers to sell off inventories of the old cigarettes after the June deadline.

The lower-ignition paper does nothing to reduce the dangers of smoking.

Every year approximately 900 Americans die, 2,500 are injured and $400 million in damage is caused by fires started by cigarettes, according to the American Burn Association and the federal government.

In many cases, smokers fall asleep and their cigarettes drop onto something flammable, such as clothing, furniture or paper.

News 10 Now - December 31, 2003
        Bars use smoking ban loophole

Even though one smoking ban waiver has been issued to a bar in Onondaga County, in all other bars across the state, it's still illegal.

On New Year's many people make a resolution to quit smoking. Others said the only resolution they’re making is to keep up the fight against the smoking ban.

One such individual is Watertown's new mayor, bar owner Jeff Graham.

He feels the Health Department and tavern owners should be teaming up to ensure patrons' health but that instead, the ban is driving them apart.

“This issue has put us at lager heads and we end up in these tit-for-tats about whether you can have sampling nights or waivers and so on. I think that's the most unfortunate part of the law because if we work together we could come up with ways that we could still do business, still accommodate customers and yet mitigate the effects of smoking,” said Graham.

Graham has applied for a waiver multiple times, to no effect.

“I applied June 20th, I applied October 1st, and again with the new guidelines that come out on December 14th I applied. The State Health Department is refusing to respond to any kind of letters. I'm disturbed by that because these people are public servants, they're supposed to enforce the law, unfortunately their only enforcing the parts of the law they like,” said Graham.

The law does allow bars to host two tobacco sampling nights a year. The events are aimed at letting smokers sample other brands or products.

Graham’s bar, The Speakeasy, scheduled one of their biannual tobacco samplings for New Year’s Eve.

The Speakeasy kept smoking to a designated area. It's the same place they'd put smokers if their smoking ban waiver is ever granted.

New Year’s was their second tobacco sampling party and so far, neither section has complained.

However, according to Graham, these sampling nights are far from the fix.

“You know this is just a chance to show how ludicrous the law is, but long-term, sampling days are not the answer. Waivers could work if the health departments will get over this extremism that they seem to have embraced and start working with businesses on finding solutions,” he said.

The Speakeasy will use the two days they can allow smoking in their bar on December 31st, 2004 and New Year's Day 2005.

The Saratogian - December 31, 2003
        City business owners largely miss smoking ban loophole
        By Brendan McGarry

SARATOGA SPRINGS -- City bar and restaurant owners said Tuesday they would not allow smoking in their businesses today or New Year's Day, as most were unaware of a two-day exemption in the state's anti-smoking law.

Nearly two dozen such establishments in Rochester planned to let patrons smoke on New Year's Eve in legal tobacco promotions, The Associated Press reported Tuesday.

In July, New York law banned smoking in public areas, including bars and restaurants. But it allows smoking two days a year if the businesses are promoting tobacco products, provided they notify the state Health Department or county-designated 'enforcement officer' at least two weeks in advance, do not serve food and post a sign or ad.

'I didn't know about it,' said Carolyn Male, owner of Hurricane Sam's on Caroline Street.

The business was not the only one; the exemption largely flew above the region's radar.

Since the law went into effect, only one business has contacted the state Health Department district office in Glens Falls -- which covers Saratoga, Washington and Warren counties -- requesting the exemption, said Department spokeswoman Claire Pospisil.

'We haven't had a lot of interest in this,' she said.

Pospisil was unable to identify the business.

Although Male attributes a 35 percent dive in winter business to the smoking ban, she said she would not likely try to take advantage of the exemption.

'It would cost me more to promote that than it would to not do anything,' Male said. 'Two days is kind of irrelevant.'

Male said she is less likely to use the exemption because her property can offer outside patio smoking during warmer weather. Even so, she said she lost many patrons to the smoking ban, particularly this time of year.

Eugene Goolic, owner of The Alley Bar on Long Alley, was aware of the exemption but said he was more concerned that the state Health Department is considering granting waivers from the smoking ban to businesses with losses of at least 15 percent.

Since last year, Goolic said his business is down nearly 40 percent.

'I want the permanent waiver,' he said. 'I need the permanent waiver to be able to survive.'

Peter DiCarlo, owner of City Tavern on Caroline Street, didn't know about the temporary exemption. He said his business, which opened a year ago November, is too new to determine if there has been any impact from the smoking ban.

'I don't think it matters,' he said of business. 'Most people are very respectful of the law.'

DiCarlo said most affected by the ban was the city's image, with nighttime crowds periodically glutting sidewalks, littering them with piles of cigarette butts.

'They look like a mob,' he said. 'Is that the image we want of Saratoga?'

NY Sun - December 30, 2003
        Bars Owners Think Smoking Waiver Plan Is Just Huffing and Puffing
        By Dina Temple-Raston

    A little-noticed hearing at the New York City Department of Health and Mental Hygiene earlier this month floated revisions to the city’s smoking ban that would permit a handful of bars and restaurants to receive waivers that will allow customers to light up.

    Bar owners suspect the city and the state are determined to make the waiver process onerous, so they can say they have provided a program for relief without really having to step back from their decision to ban smoking.

    “The truth is the city and the state don’t want to create a standard in which waivers can be granted,” said Robert Bookman, a lawyer for the New York Nightlife Association.“They don’t want, for political reasons, any scenario in which they will have to concede the smoking law has been a hardship.They are just going through the motions with these hearings.”

    Jeffrey Brust attended the city’s waiver hearings earlier this month and said they were a farce.“There were only about 40 people there and anyone who went would tell you this was all window dressing,” Mr. Brust said. “This wasn’t about the city looking for wiggle room, this was about them looking for cover.”

    Mr. Brust owns a 20,000-square-foot pool hall in the Bronx called Fieldston Recreation. A fixture in the neighborhood for more than 40 years, Mr. Brust said he would have to shutter the place unless the smoking ban is rolled back. He reckons he will be out of business in the next six to eight months.

    “People want a cigarette and a drink when they play pool and the city says you can’t do it,” he said. “The government can’t get involved with everything we do. Seat belts? Okay. Safety helmets for kids? That’s fine too. But this smoking ban is killing us. I’ve already got real estate guys coming in so I can sell the building.”

    The city’s smoking ban went into effect April 1; the state smoking ban has been in force since July. As if to underscore the low priority waivers hold, the state has yet to pull together a waiver application. The city doesn’t have one either. Businesses that want an exemption have to write a letter and hope they provide the appropriate documentation. Officials hope to have a form by early next year.

    “We’re feeling our way through the process,”said the public information officer of the New York State Department of Health, Claire Pospisil. “The beginning will be a little slow but we expect several hundred waivers will be considered in the in the next couple of weeks.”

    That is not to say the latest waiver provisions under consideration are useless to everyone.

    One bar that could slip through the sliver of a loophole is a small establishment on East 5th Street called Fish Bar. It is part of tiny subset of city bars that are owner-operated or have a separate smoking room, both of which allow them to be eligible for waivers from both the state and the city smoking bans. Managers from the Fish Bar declined to be interviewed for fear they would jinx the process.

    “If the Department of Health adopts the rules and regulations they [recently] drafted, then an owner operated bar or a separate smoking room could apply and they might get a waiver,” said the executive director of the Empire State Restaurant & Tavern Association, Scott Wexler. “Essentially our members who were exempt from the city’s ban before the state law went into effect could end up qualifying for a waiver and from what we can tell the Fish Bar fits in the category. Not many people do.”

    Upstate, the Syracuse Brigadiers Inc., which runs a bingo hall in Onondaga County, became the first business in the country to win a waiver from the state’s smoking law.

    The county health commissioner, Dr. Lloyd Novick, determined the ban was causing “undue financial hardship,” so bingo players in the 800-seat hall will be allowed to smoke.

    Most bar owners feel they won’t be as lucky as Brigadiers.

    “I’m having to rethink my business and I am having the kinds of problems I have never had before,” said Lee Seinfeld, who owns Broadway Dive, Dive 75, and The Dive Bar on the West Side. “Now littering and security is a problem. I used to be seen as a positive force in the neighborhood, but now it is a negative because I have customers in the street all the time. I have been trying to change the mix in the bar to make food my selling point. I used to be in the liquor business — not anymore.”

News 10 Now - December 30, 2003
        Damon's granted smoking waiver

The state's first bar to have a smoking waiver is in Onondaga County.

The owner of Damon's Party House found out last week his bar met the requirements set by state law.

Now his customers are free to light up.

Dave Damon is doing something he hasn't been able to do legally for quite a while - smoke a cigarette in his own bar.

"You don't own the business, the business owns you,” said Damon.

Since the smoking ban went into effect last July, Damon said his profits have gone down 40%.

That drop in dollars has been bad news for the last five months, but good news for his application on the smoking waiver.

"I think the government's gone too far in taking away the choices of the people. I really do. I think that, I'm not an advocate of smoking. I have six children none of them smoke and I think that's great, but I don't think that choice should be taken away from people,” said Damon.

Damon's was one of twenty-five businesses to submit an application.

Of those, nine have already been denied, but those who make the decision on which bars get the go-ahead say the more selective they are the better it is for the law.

"The law did not say in no case issue any waivers. The law specifically set out guidelines and benchmarks for waivers, so the fact that a small number of waivers are provided really strengthens the ability to enforce the law,” said Onondaga County Health Commissioner Dr. Lloyd Novick.

There are two qualifications businesses have to make in order to be eligible for a waiver.

One, a significant loss in revenue.

And two, they must provide an area for people who don't want to be exposed to smoke.

"A beer and a cigarette go in hand,” said Dawn Redden, who runs a karaoke service that travels to different taverns.

Dawn Redden said she's seen other bars go out of business because of the smoking ban.

Redden stopped by Damon's Tuesday evening to say congratulations.

Since the ban took effect, Dawn's equipment has been gathering dust.

Now she's hoping to wipe it off and start making some money again.

"A lot of people don't come in and when they do it's a small crowd, so by eleven, twelve o'clock you only have twelve people in the bar you cut your losses, pack it up, and go home,” said Redden.

There is still the provision giving bars the chance to have two nights a year where tobacco companies can bring in promotions.

Seven bars will be taking advantage of that on New Years Eve.

Only one other place has been granted one of the waivers.

That's the Brigadier Bingo Hall, in Syracuse.

Associated Press - December 30, 2003
        Gambling Opponents Try To Keep Profits From State

(Niagara Falls, NY ) -- Seneca gambling opponents are trying to stop Indian casino profits from going to New York state until the state stops trying to collect taxes on Seneca cigarette and gasoline sales.

Senecas for Justice and Preservation was formed earlier this year to fight Seneca casinos. They filed a motion asking the nation's Peacemakers Court to temporarily bar payment of slot machine profits to the state.

Group co-chairman H. Lloyd Jacobs said it makes no sense for the Senecas to turn over slot machine money when the state has vowed to start collecting tax on sales of cigarettes and gas to non-Senecas March 1.

Seneca Nation President Rickey Armstrong said he hasn't seen the petition, but he also says that the Senecas have an obligation to carry out the revenue sharing agreement with the state.

Seneca officials have said they'll give the state about $38 million on Friday. That's the 18 percent of slot revenues called for in the compact that allows slot machines in the Seneca Niagara Casino.

Post Standard - December 30, 2003
        First smoking waiver goes to Cicero Bar
        Damon's Party House proves the tobacco ban was becoming too costly.
        By Mike McAndrew

Damon's Party House in Cicero is the first bar in Onondaga County - and possibly the first in the state - to win a waiver allowing tobacco smoking inside its premises because of financial hardship.

Damon's was granted a one-year smoking-ban waiver Friday by county Health Commissioner Dr. Lloyd Novick after presenting evidence it had lost approximately 40 percent of its bar business in three months. The state's smoking ban took effect July 24.

Bar owner Dave Damon had to agree to limit smoking to an adjacent banquet room at his business on Damon Road near Route 31, said Gary Sauda, a health department official.

Damon's customers will not be permitted to sit at his bar and smoke, but they are allowed to buy a drink, carry it into a larger banquet room, and light up there, said Damon, who opened the bar six years ago and runs it by himself.

Scott Wexler, president of the Empire State Restaurant and Tavern Association, said he does not know of any other bars or taverns in the state that have received such a waiver from the Clean Indoor Air Act.

Damon said he worked hard to get his waiver.

"I jumped through a lot of hoops. It wasn't an easy thing to get," said Damon, 69. "I had to go to an accountant and a lawyer and make several trips to the health department. It's just my tenacious way of getting things done. I hate to be told no."

Before getting a waiver, Damon's was one of five bars in Onondaga County to be fined for violating the law, which prohibits smoking indoors at almost every worksite in the state. Damon's was fined $250 earlier this month after health department inspectors said they saw customers smoking cigarettes in the tavern. Damon said he will pay the fine.

His tavern, which is open Tuesdays through Saturdays, lost most of its regular customers after the smoking ban became effective July 24, Damon said.

His patrons - generally an older happy-hour crowd - drifted away as the weather got cold because they didn't want to have to go outside to smoke, said Damon, who smokes just under a pack a day. Damon said he hopes his regulars return now.

The health department is reviewing waiver applications from several other taverns, said Sauda, director of the department's bureau of environmental health.

Applicants have to prove the smoking ban is causing their business an "undue financial hardship" and present a plan to protect their employees and the public from the hazards of second-hand smoke. The county has rejected a number of waiver requests from bars and restaurants because they did not meet both criteria.

In addition to Damon's, Onondaga County this month fined three other taverns accused of violating the smoking law, Sauda said.

The End Zone, 110 Old Liverpool Road, Liverpool, was fined $500. OC Tavern, 1227 Milton Ave., and Cerio's Tavern, 1711 Grant Blvd., were fined $250.

The Empire State Restaurant and Tavern Association has sued New York over the law in federal court. The suit is pending.

One Syracuse bar, Awful Al's, 321 Clinton St., received an exemption from the law in the summer because it qualified as a "cigar bar." To meet that criterion, a business must show that 10 percent of its gross revenue came from sales of tobacco products.

In November, the Brigadiers Bingo Hall at 1860 W. Fayette St., won a waiver under the financial hardship provision. It is a hall operated by a nonprofit group, not a commercial bar.

Associated Press - December 29, 2003
        State figures indicate Indians selling huge amounts of cigarettes

SYRACUSE, N.Y. -- New York state could have collected up to $388 million in excise taxes and an estimated $48 million in sales taxes on cigarette sales by Indian vendors in 2002, a newspaper has concluded.

The Post-Standard of Syracuse, which obtained sales figures last week under a Freedom of Information Law request, said Native American stores sold nearly 28 million cartons of tax-free cigarettes last year.

According to the state Department of Taxation and Finance figures, businesses on Indian territories in New York have sold 168 million cartons of untaxed cigarettes since 1996, when Gov. George Pataki first proposed taxing Indian tobacco sales to non-natives.

The figures also show that tax-free cigarette sales by Native American stores accounted for approximately 30 percent of the cigarettes sold in New York in 2002. And in the first nine months of 2003, Native American stores sold 26.2 million cartons of tax-free cigarettes, putting them on a pace to sell 35 million cartons this year.

The Seneca Nation in western New York, where independently owned businesses sell cigarettes in retail shops and over the Internet, sold 14.5 million cartons of tax-free cigarettes in 2002, more than every other Indian nation combined. But tax department spokesman Tom Bergin said state officials believe a "majority" of the Indian cigarette sales gets shipped out of state.

The state Legislature in May passed a bill requiring Pataki to begin taxing cigarette and gasoline sales by Native American businesses to non-Indian customers. Distributors would pay the taxes upfront before the products reach the reservations.

The state has been under pressure from the New York Association of Convenience Stores to tax cigarette sales by Native American stores to tax the Indian sales. The Legislature has also been casting around for untapped sources of state revenue in the wake of the recession and economic losses from Sept. 11, 2001.

The Pataki administration dropped a 1996 attempt to collect the taxes after violence started to flare up on Indian lands.

Then, as now, Indian nations have complained that the tax-collection regulation -- which would take effect after March 1 -- violates their sovereignty. They also claim the plan would be financially devastating to their reservations, since non-Indians would have no incentive to patronize their businesses.

In 1994, the U.S. Supreme Court ruled that New York could tax cigarette sales by Native American stores to non-native customers.

On Monday, a federal appeals court made much the same ruling in a case involving Rhode Island's attempts to collect state tobacco taxes from its Indian vendors.

Non-Indian stores generally charge $15 to $25 more per carton of cigarettes than stores on Indian territories. The state excise tax has been $15 per carton since April 3, 2002.

WROC TV - December 29, 2003
        Some Local Bars Get "Smoking Rights" For New Year's Eve

Tobacco smoke will fill the air again in almost 2 dozen local bars and taverns this New Year's Eve.

They've all received an exemption from the state's indoor smoking ban for one night only.

The exemptions are possible, because they're billed mainly as "tobacco sampling" promotional events.

Also, smoking is allowed only in bar areas or separate rooms, and no food -- except for dry snacks -- can be served during that time.

The establishments that have received exemptions are:

-- Salinger's
-- Richmond's
-- Milestone's
-- Coyote Joe's
-- Jungle
-- Alexander Street Pub
-- Rain
-- Woody's
-- Fat Moe's
-- Antonietta's
-- Perlo's
-- Mr. Dominic's
-- Curley's Saloon
-- Maxwell's Bar & Grill
-- Acme Bar
-- Bruno's Italian Cuisine
-- Rizzi's
-- J.D. Oxford's Pub
-- Lola Bistro & Bar
-- Karma 355/Barfly
-- Pulse/Steel Nightclub

Monroe County Public Health Director Dr. Andrew Doniger says while the law does allow for such one-night exemptions twice a year, he is not sure that future interpretations of the law will allow such exemptions to ever happen again.

He did add it seemed like a "practical" way to allow people to celebrate New Year's Eve in the manner to which they're accustomed.

Staten Island Advance - December 29, 2003
        Sense and the smoking ban

The long-term financial effects of the City of New York's strict ban on smoking in bars and restaurants remains to be seen, but there is no doubt that the law makes sense from a health standpoint.

However, we've long suspected that there is a sort of creeping prohibition at work here -- that some of the people behind the smoking ban are not just looking to protect the health of non-smoking New Yorkers, but out to ban smoking altogether. We have the suspicion that anti-smoking zealots want to outlaw smoking not just in indoor public facilities, where second-hand smoke actually affects non-smokers, but in public parks and streets, and eventually in other venues.

The question of the degree to which this form of zealotry affects some of the people in New York City government was raised last week with the announcement of an interesting clash between the city's anti-smoking effort and a private club. It seems that just before Thanksgiving, inspectors from the city Department of Health visited the Players Club in the Gramercy Park section of Manhattan and found...ashtrays.

The inspectors didn't spot any smoking going on in this 115-year-old private club, mind you, but they did find a stack of ashtrays behind a desk in the club executive director's office.

So they issued a ticket that carries a $2,000 fine.

We can only imagine what the perceived offense might be here: Possession of an ashtray with intent to smoke?

The Players Club is not taking the summons lying down. Last week, the club announced that it was filing a lawsuit seeking to overturn the city and state bans on smoking, claiming that they violate the members' First Amendment rights to expressive association. The club had been considering the lawsuit ever since the ban went into effect, but the $2,000 ticket for possessing ashtrays was the last straw.

The lawsuit was filed on behalf of New York's beleaguered and harassed smokers, according to the club's announcement, which was made last week at a press event featuring an open bar and a buffet lunch at which reporters were offered cigars, packets of cigarettes and pocket-sized copies of the Constitution.

This is a private club, said executive director John Martello, who said inspectors searched his office for ashtrays on the basis of an anonymous tip. People in the health department have a real job to do. They shouldn't be saddled with running around town looking for ashtrays.

The Players Club is also contesting the basis for the city's ban, arguing that the scientific evidence of the health effects of second-hand smoke is dubious.

The Players Club is off base on the second-hand smoke claims. There is no doubt that the health of non-smokers is affected by smoke from people smoking nearby. It's foolish to argue otherwise.

However, the question of what the City of New York's priorities are is a good one. In a city that's got a monumental budget problem, is paying inspectors to go around looking for ashtrays the best use of limited resources? We don't think so.

NY Newsday - December 28, 2003
        Taking A Cold Smoke Break
        City says most abiding by law
        By Deborah S. Morris

This is the winter of their discontent.

Smokers who have been huddling outside bars and restaurants since the city's Smoke-Free Air Act went into effect March 30 now have to do so in sometimes subfreezing temperatures.

Inside, some bar and restaurant owners say they're feeling the heat with decreased business.

The ban has spawned at least one lawsuit challenging its legality, and nearly $180,000 in fines.

"I don't mind the cold so much, but the law is terrible," said Tim McAleavey, 41, of Stewart Manor in Nassau County as he stood outside the Santa Fe Steakhouse in Forest Hills one recent Friday when the temperature dipped into the 30s. "I don't know why they can't have a smoking section. I pay a lot of taxes and spend good money to go out to eat. I shouldn't have to go outside to have a smoke."

The city issued about 2,300 violations to establishments throughout the five boroughs between May 1 and Nov. 22, the last date for which figures were available. Most were for not having a "No Smoking" sign conspicuously posted, not providing an appropriate workplace smoking policy, or for having ashtrays present. A total of 233 violations were issued for observed smoking.

Those fines translated to $179,725 in collected fees for the city. Fines go to the city's finance department, which places them in a general fund.

"More than 98 percent of the city's restaurants and bars fully comply with the law, and we expect all employers to treat their employees' health with that level of regard," said Andrew Tucker, spokesman for the city Department of Health and Mental Hygiene, which enforces the ban.

Indeed, Jeff Blath, manager of Mardi Gras restaurant on Austin Street in Forest Hills, said pushing the law is just not worth it.

"We don't want trouble. We follow the law," he said. "The guys in the local precinct are our friends and we like it that way. If customers or employees want to smoke, they must go outside."

But Blath said business is down, especially at the bar. He said bartenders' tips are lower because people are not lingering, and added that the economic effect goes even further.

"When I speak to my liquor rep he is really hurting. His business is down maybe at least 30 percent," Blath said.

Telly Hatzigeorgiou, an owner of Play, a bar, lounge and bowling alley on Queens Boulevard in Long Island City, has gone a step further to try and satisfy everyone. He and his partners are building a smoking room.

"We had to do something," he said. "We were hurt heavily in our other businesses. We have taken a big hit."

Hatzigeorgiou owns four other clubs in Queens and Manhattan where revenue dropped. He said people do not come out as much or stay as long because they cannot smoke and drink at the same time.

"We strictly enforce the law. A lot of places don't and that hurts us. I don't want to worry about getting a fine or being in violation," he said. "The smoking room was just an option that we took."

The Smoke-Free Air Act allows a bar or restaurant to have a separate room for smoking - until 2006.

"I think it will be good, although it is extremely expensive," Hatzigeorgiou said of the $50,000 construction project that began in April. "Just the response of people coming in wanting to know when it will be ready has been amazing. It's going to be huge."

The smoke room at Play is slated to open on New Year's Eve. And what happens to it when 2006 rolls around?

"We'll open up the top and make an outside garden," Hatzigeorgiou said.

Just this week the Players Club, a private establishment in Gramercy Park, sued to overturn the smoking ban, after it was ticketed last month for keeping ashtrays behind an office desk. Ashtrays may not be present in a smoke-free area. The club says the ban violates its members First Amendment rights to "expressive association."

"The law is hypocritical. They sell cigarettes and they tax you," said Melissa Caraballo, 32, a computer billing clerk from Flushing, outside TGI Friday's in Forest Hills on a recent Friday evening. "But at the same time your rights are limited as to where you can smoke.

"It's a money game. Cigarettes bring too much money and jobs to the city and all cities for this to go much further," she said as she took one final drag on her cigarette. " ... But you know, smokers are going to do whatever they have to to smoke, no matter what the weather."

Frommer's - December 24, 2003
        Smoke 'Em if You Got 'Em: World's Only Non-Smoking Ship to Light Up in 2004

In 1998, Carnival inaugurated Paradise, touted as the world's only totally smoke-free ship. So stringent was the line that shipyard workers weren't allowed to light up during construction, and any passenger caught sneaking a butt was fined $250, booted off at the next port of call, and left to fly home at his own expense. No more: When the ship relocates to the west coast in September 2004, it leaves its "No Fumar" signs behind.

Currently sailing weeklong eastern and western Caribbean cruises from Miami, Paradise will replace Carnival's Ecstasy in California, sailing 3- and 4-night Baja Peninsula cruises from Carnival's new Long Beach cruise terminal, directly adjacent to the classic liner Queen Mary, which has been berthed here as a hotel and tourist attraction since 1967. (Packages that include pre- or post-cruise hotel stays on the Mary are available through Carnival.)

In commenting on Carnival's change of heart regarding Paradise's smoking policy, president and CEO Bob Dickinson noted that "When we analyzed our redeployment strategy, the Paradise, based on its size and attributes, was the obvious choice to offer a fresh new short cruise alternative from California. And, with only one ship operating that program, we could not limit it to non-smokers."

The switch is no surprise, since reports have suggested that the ship's typical passengers not only refrained from smoking but drank a whole lot less too, depriving Carnival of critical onboard revenue.

Gannett News Service - December 24, 2003
        Chemung tavern seeks smoking waiver
        By Brooke J. Sherman

The Chemung County Health Department mailed applications for smoking ban waivers to 37 businesses last week and only one business had returned the four-page form as of Tuesday.

Bonnie Marks, owner of Blondie's Tavern at 256 East 14th Street in Elmira Heights, completed it quickly.

"My application (arrived) on Wednesday and then I completed the application and got it to the county Health Department by 4:15 on Thursday," she said. "I was ready for it and I wasn't getting up until it was done."

Marks said her business has seen revenue fall 25 percent since the amended Clean Indoor Air Act went into effect on July 24.

"This is a matter of survival," she said.

A nonrefundable $150 fee is required to apply for the waiver, which considers the following reasons for granting a waiver:

Undue financial hardship because of a loss of revenue of 15 percent or more;

Undue financial hardship because of capital expenditures prior to the law;

Undue financial hardship because of other exceptional circumstances;

Compliance unreasonable because of safety and security factors;

Compliance unreasonable because of other exceptional circumstances.
Businesses must prove one of the five to qualify for a waiver.

In addition, the businesses have to demonstrate how they will minimize the adverse effects of the waiver to people facing secondhand smoke, said Tom Kump, director of environmental health for Chemung County.

Kump said he expects most applications come in after Jan. 1 and has promised that the waiver applications will take no more than 30 days to process.

The county Health Department mails applications to businesses when requested.

Shirl Wilson, co-owner of George and Shirl's Tiny Tavern in Southport with her husband, George, is also frustrated with the ban and worried about lost revenue.

Shirl Wilson said she has not completed her application and is confused by the wording and requirements of the waiver.

"I'm just not ready to give $150 away," she said. "We've lost so much money already."

Wilson said her small tavern, which accommodates up to 35 customers, has experienced revenue losses of more than $2,000 each month.

In October 2002, the bar made $6,000. this past October, after the ban went into effect, they made just $3,500, she said.

Fred Foster, head bartender at the Elmira Heights American Legion, said he is still reeling from the impact the ban has had on business there.

He said the legion has lost up to 60 percent of its revenue in bar sales, bingo and games of chance since the ban was established.

The legion will complete its application next week, he said, and he expects it to be approved.

"We are willing to settle," he said. "Just let our patrons still smoke and not have to go outside."

Foster said he didn't believe the law was well thought-out because even though it was meant to protect bar workers, most people he knows who work in the business also smoke.

"It has impacted the employees the most. Tips have gone down over half," he said. "Sure we might be healthy, but now we are broke."

Associated Press - December 23, 2003
        Club ticketed for ashtrays sues to kill N.Y. smoke ban

The Players Club is a place of red-leather couches and Scotch and waters, a private world where white-haired men savor midday drinks, heavy buffet lunches and cigars in the billiards room.

Health inspectors enforcing the city’s recent smoking ban invaded this Gramercy Park sanctum in November, when they ticketed the club for keeping ashtrays behind an office desk, the club said.

Now, the players are striking back. The 115-year-old club filed a lawsuit on Tuesday, seeking to overturn the city and state smoking bans with claims that they violate members’ First Amendment rights to “expressive association.”

“This is a private club,” said executive director John Martello, who claimed inspectors searched his office for illegal ashtrays on the basis of an anonymous tip.

“People in the health department have a real job to do. They shouldn’t be saddled with running around town looking for ashtrays.”

The health department offered no comment on its dealings with the Players Club. A city law department spokeswoman said attorneys had yet to evaluate the club’s lawsuit. But Mayor Bloomberg had a sharply worded response to the suit by the club, which said it counts Carol Burnett, Angela Lansbury and Walter Cronkite among its roughly 700 members and actor Timothy Hutton as its president.

“We’ve been through the smoking business,” Bloomberg, a former smoker, told reporters. “Let’s stop killing people and get on with it and grow up.”

The club announced the lawsuit at a press conference bracketed by an open bar and a buffet lunch honoring “New York’s beleaguered and harassed smokers.”

Reporters were offered free cigars, packets of Nat Sherman premium cigarettes and pocket-size copies of the Constitution. Martello, the club’s executive director, said he had been considering the suit even before inspectors showed up on the day before Thanksgiving.

The inspectors told Martello’s assistant to open his office. When she did, they found three clean ashtrays stacked on a shelf behind his desk and issued the club a ticket. The club is awaiting a hearing on the ticket, which carries a $2,000 fine, Martello said.

A city law that went into effect in March bans smoking from all restaurants, bars, offices and private clubs with paid staff and requires them to remove their ashtrays.

Bloomberg, the billionaire founder of the Bloomberg LP financial information company, had made the ban a signature issue, saying it will save thousands of lives — but inadvertently arming critics who say he is out of touch with working- and middle-class New Yorkers.

A recent poll showed most New Yorkers approve of the smoking ban and at many bars and restaurants business has been level or improved.

“The vast majority of scientific evidence shows that second-hand smoke is a known carcinogen,” health department spokeswoman Sandra Mullin said in an e-mailed statement.

“Since the smoking ban went into effect, thousands of waitresses and bartenders are healthier.”

The Players Club claims, however, that scientific evidence of second-hand smoke’s health effects is bogus and the ban violates its rights to due process and equal protection.

Oswego Daily News - December 22, 2003
        Tobacco Settlement Funds Wipe Out Load Of County Debt
        By Nicole M. Reome

Oswego County is planning to use more than $19 million in tobacco settlement money to pay off millions of dollars of debt that it accumulated over the past 12 years.

At the tail end of Thursday's Oswego County Legislature meeting, County Attorney Bruce Clark announced that the county closed on its tobacco securitization transactions.

After selling its tobacco assets, Clark said the county received an escrow account in the amount of $19,244,416.33.

Tobacco securitization is issuing bonds that are financially backed by revenues awarded under the 1998 master settlement agreement with tobacco companies. Under the settlement, tobacco companies agreed to pay billions of dollars over 25 years to compensate taxpayers for smoking-related public health costs.

New York was one of 46 states slated to receive funds under the settlement. The funds were broken down with the state receiving just over 51 percent, New York City receiving just under 27 percent and counties outside of New York City sharing the remaining money based on population.

The Oswego County Legislature voted earlier this year to securitize its tobacco settlement money and receive a lump sum payment, rather than receive smaller payments over the next 25 years.

County Legislature Chairman Morris Sorbello, R-Granby, said in November that the securitization of tobacco payments was "a trade-off of revenues and expenses." He noted while the county will be able to pay debt obligations with the funds, it would lose approximately $1.75 million in tobacco payments by taking the money upfront.

Clark explained Thursday that the money will be used to wipe out much of the county's debt load.

"The second page of the budget book... the debt page, is eliminated," Clark said.

The debt page included three outstanding bonds from the general fund that were issued at various times from 1991 to 1999. The total outstanding balance of the three was listed as $16,650,000.

The first bond on the page, for public improvements to the county communications system, was issued Nov. 15, 1996. The bond was issued with a 4.5 percent interest rate. As of Jan. 1, 2004, the outstanding balance was $1.5 million with $700,000 due toward the principal balance and interest of $67,500. The loan was expected to mature on Nov. 15, 2005.

The second bond was to retrofit the energy recovery facility. The bond was issued April 15, 1999 with a 4.2 percent interest rate. As of Jan. 1, 2004, the outstanding balance was $5,850,000 with $1,050,000 due toward the principal balance and interest of $224,275. The bond maturity date was listed as April 15, 2008.

The third bond was for the public safety department and was issued on Nov. 15, 1991 with a 6.6 percent interest rate. As of Jan. 1, 2004, the outstanding balance was $9.3 million with $1 million due toward the principal balance and interest of $587,100. The bond was expected to mature June 15, 2012.

Clark noted that the county would have enough money from the tobacco transaction to pay the bonds off, including interest, as well as reduce a bond anticipation note for an HVAC project from $1.5 million to approximately $500,000.

Democrat and Chronicle - December 21, 2003
        Smoking waivers unlikely for most
        Businesses seeking exemptions from ban need ‘good reasons.'
        By Joseph Spector

If the state’s new exemption to the smoking ban has Monroe County businesses hopeful they can sidestep the law, extinguish those thoughts.

That’s the message from county Health Director Andrew Doniger, who says smoking waivers will be issued sparingly.

“It’s unlikely that we would have a policy that would allow a large number of waivers,” Doniger said.

Counties across New York are struggling to determine how waivers will affect the controversial 5-month-old law that bans smoking in restaurants and bars, after the state earlier this month outlined its criteria for receiving a waiver.

Anti-smoking groups fear waivers will weaken the ban; critics of the law say waivers will provide struggling businesses with much-needed relief.

The rules used for granting waivers may ultimately vary from county to county and therefore threaten to make for an uneven playing field on which businesses operate.

“It is a concern, and that’s what we were trying to look at — having something uniform,” said Joan Ellison, health director in Livingston County.

The potential discrepancies lie in the fact that the state oversees public health in some counties, while other counties oversee it themselves.

When the state Health Department on Dec. 12 issued rules for obtaining a smoking waiver, it was doing so for the 21 counties it serves, including Ontario, Wayne and Yates counties in the Rochester/Finger Lakes region.

The main criterion for applying for and potentially receiving a waiver, the state said, was if a businesscan prove it lost as least 15 percent of its profits due to the smoking ban.

The state’s 41 other counties could adopt the state’s waiver rules or establish their own.

And that could create different smoking rules in neighboring counties.

A bar in Ontario County, for example, might get a waiver to allow smoking with one set of guidelines, but a bar in Monroe County facing the same financial hardship might not.

“My concern has always been that the playing field be level,” said Peter Psyllos, owner of The Distillery on Mt. Hope Avenue. “With waivers, it clouds up the issue significantly.”

The law, enacted on July 24, essentially bans smoking in all indoor workplaces, which includes restaurants, bars and office buildings.

But it allows health departments to grant waivers in two instances: if a workplace can prove an undue financial burden or can prove that compliance is unreasonable.

It’s unknown what criteria Monroe County and other counties will set for a business to prove financial hardship. Doniger said the county has so far ruled on a case-by-case basis.

Monroe County has received more than 20 waiver requests but granted only two, both for compliance reasons.

Eastman Kodak Co. received one because of the plant’s size; Geva Theatre received one because a performance included smoking on stage.

Critics of the law say waivers would prevent hundreds of bars and restaurants from going broke. Many establishments report sales are down 30 percent to 40 percent following the ban.

“We’ve just been limping along,” said Jesse Thompson, owner of Rain, a nightclub on Monroe Avenue.

Thompson, whose club was denied a waiver, said business is off 80 percent since the ban took effect. “It was like the faucet was turned off.”

At Tipsy McStaggers, a bar and restaurant in Henrietta, owners were denied a waiver but hoped the installation of outdoor heaters would keep exiled smokers warm and prevent them from leaving.

Still, business is down 20 percent to 25 percent.

“We are doing everything we can, but it’s not working,” said Joe McKenzie, one of the owners.

The waivers, based on the state’s financial hardship criteria, could potentially lead to one in 10 bars and restaurants allowing smoking, according to the Empire State Restaurant and Tavern Association, which is fighting the law in court.

The American Cancer Society and other anti-smoking groups are urging that waivers be granted infrequently.

Once the criteria are developed, health officials said they face another problem: They are not accountants and are ill-trained to study financial documents and determine their validity.

Doniger, nonetheless, said all good laws allow for some flexibility, as the smoking law does. Even if waivers were granted, restrictions would ensure the safety of workers and the public from secondhand smoke, he said.

Health directors across New York “are pretty much of the same mind-set I am, which, as stewards of the health of the public, is that we should not issue too many waivers,” he said.

Bottom line: “Somebody better give us a very good reason to do this.”

Buffalo News - December 20, 2003
        Option lets some bargoers light up Dec. 31
        By Lisa Haarlander

Champagne and cigarettes may go hand in hand at some bars on New Year's Eve.

A little-known provision in the new smoking ban allows bars and restaurants to allow smoking twice a year - if it's part of a tobacco promotion or sampling event.

The Erie County Health Department has approved 18 tobacco sampling nights, and another 40 businesses have requested applications. Many bars are choosing to hold the events New Year's Eve.

The tobacco sampling nights are different from the waivers some businesses have been requesting. The waivers - none of which have been granted in Western New York - would be good for two years; the sampling nights are one-day events.

"This is something from a health perspective the Health Department would prefer not to do, but it is part of the law," said Peter Coppola, chief enforcement officer for the Erie County Health Department. "The waiver more or less becomes a permanent OK to allow smoking. This is two days a year."

Slick Willie's Billiard Hall on Niagara Falls Boulevard in the Town of Tonawanda held its first tobacco promotion Friday and will hold another New Year's Eve.

"It makes business better than what it's been," said owner Rudy Bersani. "The smokers are coming in and not leaving. Usually they come in, have a quick lunch and leave."

The pool hall business has fallen by 33 percent and the bar business by 22 percent since the smoking ban took effect July 24, Bersani said. The business is still making a small profit.

It remains to be seen whether the increased business offsets the cost of the event, which can include the tobacco samples, staff from the tobacco retailer and a $98 fee to the Health Department.

"When you spend $98, you have to do three times that much business to make it up," Bersani said.

Other bars approved to hold New Year's Eve tobacco nights are the Village Inn on Cedar Street, Akron; Dottie's Pub on Seneca Street; Jack's Place on Millersport Highway, Amherst; Milligan's Pub on Abbott Road, Town of Orchard Park; and the Bradford Grill on West Chippewa Street.

Businesses must apply 14 days in advance, and the sponsor of the tobacco sampling must have a certificate to sell tobacco products.

Robert Colasanti, co-owner of the Virgil Avenue Tobacconist in Buffalo, has received many calls from bars inquiring about having him sponsor a tobacco night, but he has had no takers once he explained the cost.

"They just want to have the smoking, and it doesn't translate into any sales for the sponsor," he said. "So far, no one has been willing to pay the fee schedule to have someone in their establishment."

Steve Dvorak, owner of the Tinder Box cigar shop on Transit Road, is working with Milligan's Pub and the Bradford Grill on New Year's Eve. Dvorak is hoping that people there primarily to smoke cigarettes will buy a cigar or two.

"Even before the no-smoking ban, we did cigar dinners at country clubs, but we haven't ventured into bars before," he said.

Bars and restaurants have campaigned against the smoking ban, saying it will put many of them out of business. The owner of the Royal Pheasant on Forest Avenue said she closed the 59-year-old business because the smoking ban killed her alcohol sales.

The owners of Jimmy Mac's Bar on Elmwood Avenue and the Buffalo Irish Center on Abbott Road have taken the county Health Department to court over their requests for a waiver. A judge Friday gave the Health Department a deadline to respond to their waiver requests but barred public disclosure of the deadline. The Health Department said it will have specific criteria and an application by Jan. 23.

The state released guidelines earlier this month setting a 15 percent decline in profits as the minimum to obtain a waiver. But the rules apply only to the 21 counties that don't have their own health departments. All eight counties in Western New York have their own health departments, which will set their own criteria.

Observer - December 19, 2003
        Celoron bingo is granted smoking waiver
        By Pat Holcombe and Dennis Phillips

CELORON - The phrase ''can I have a light'' was back in use last night at the Celoron Volunteer Fire Department's bingo night.

''We were given permission (Wednesday) to allow for smoking (last night) for bingo,'' said Rick Ross, vice president of the Celoron Volunteer Fire Department. ''We have the affidavit verifying that we are allowed. Steve Johnson, from the county health department, said that we were the first ones to call and ask about it.''

Ross said he called on Tuesday about being exempt from the smoking ban and that the volunteer fire department has been abiding by the state's law since July 1 when the smoking ban went into effect.

''We have been following the rules and our attendance has dropped tremendously,'' Ross said. ''Between 30 and 35 people a week less then what we had before the smoking ban.''

Celoron Volunteer Fire Department bingo made available one room for non-smokers and two rooms for smokers last night.

Smoking will be allowed in all-volunteer membership organizations, according to new guidelines from the state that exempt some clubs from being governed by the Clean Indoor Air Act that prohibits tobacco smoking in public places.

Johnson, director of the county's Environmental Health Services, said the new guidance from the state does not require certain organizations to prohibit smoking.

''In general, this guidance states that membership associations that meet the criteria in the law are not subject to any of the provisions of the Clean Indoor Air Act,'' Johnson said. ''Such organizations could allow smoking in facilities that serve food and alcoholic beverages, operate bingo games or other fund-raising activities. These activities could be attended by members, member guests and the general public.''

According to an excerpt from the state law, any organization seeking exemption must show that it is a not-for-profit entity that has been created for charitable, philanthropic, educational, political, social or other similar purpose, and all of the duties with respect to the operation of such an entity are performed by members who do not receive compensation of any kind for the performance of such duties.

''Compensation of any kind,'' is described by the state as: ''pay, tips, free membership, life insurance, drinks, meals, lodging or any other items that would be considered compensation for performance of duties. Exempted organizations, including many volunteer fire departments, may ignore the smoking law and continue to offer food and beverages in their buildings. Secretarial, reception and security services may continue, as long as work is not compensated for by the organization or any other entity.

Johnson said any organization who feels it may qualify for exemption, should send a letter to the Health Department signed by its chief officer, executive director or president, stating that the organization meets the exemption requirements.

In the meantime, state law allows other businesses who have experienced a financial loss as a result of the smoking ban, to apply for a waiver. County Health Department officials are in the process of accepting, evaluating and granting immediate temporary waivers until a process can be developed for granting and enforcing permanent waivers.

Approximately 60 restaurant, lounge or bar businesses - or 10 percent of the local industry - have applied for waivers, claiming financial losses totalling $175,000 countywide since the law was adopted by the state in July.

Health Department officials estimate a dozen of them will qualify for the exemption status, while the balance of the applicants may qualify for a waiver if they can prove a financial hardship.

Associated Press - December 17, 2003
        Tavern Group Passes Hat For Smoke-Ban Fight
        Group Says Few Have Donated To Help Fight Ban

ALBANY, N.Y. -- Facing lagging donations to finance its legal battle against the state's new smoking ban, a statewide tavern owners' group imposed a special assessment on its members, according to documents obtained Tuesday.

In a letter to members, a copy of which was obtained by The Associated Press, the executive director of the Empire State Restaurant & Tavern Association told them about the $50, one-time assessment imposed by the group's board of directors.

"We have tried several fund-raisers to improve our financial condition, with little success," wrote Scott Wexler.

"In order to understand our need, it may be helpful for you to know that we have received donations to support our fight against the smoking ban from less than 5 percent of our members," Wexler added in the letter dated Oct. 1.

Wexler said Tuesday the association's 1,700 dues-paying members have responded "generously" since then.

"We were having cash flow problems in September," he said. "The members are responding very well ... They are stepping up to the plate as they never have."

But Russell Sciandra, of the American Lung Association-affiliated Center for a Tobacco Free New York, said the letter was evidence that "Wexler's complaints about this law represent only a tiny minority of tavern operators because they're not willing to financially support this effort."

Not so, according to Wexler, who said the special assessment has already raised more than $50,000 and that only a "handful" of members have refused to pay it.

"The lawsuit has cost us $100,000 -- obviously an unbudgeted expense," he said.

The state's smoking ban, approved by the state Legislature and Gov. George Pataki in March, took effect in July. It bans smoking in workplaces, including almost all bars and restaurants.

The association's federal court challenge to the new law is continuing.

On Friday, the state announced rules for bars that are seeking financial hardship waivers allowed as part of the new law. Under the rules, bars that can prove a financial loss of 15 percent or more can seek a waiver that would allow smoking to continue.

National Post - December 17, 2003
        Gangs feed on N.Y. smoke tax
        Smuggling turf wars: Mayor's bid to save lives costs them instead
        By Steven Edwards

NEW YORK - It was all being done for the good of New Yorkers: whopping tax hikes on cigarettes would mean residents smoked less and lived longer.

Unless, of course, they happened to be among the victims of a burgeoning turf war over bootlegged smokes.

Two young New York men have been murdered recently, and two others are recovering from gunshot wounds after separate street battles linked to cigarette smuggling.

The four are all suspected smugglers, so some might say their fate was their own doing.

But the violence erupted in neighbourhoods where law-abiding people walk the streets. The death of a child caught in gangland crossfire last month shows that bullets, once fired, can strike the innocent as well as the guilty.

The beginning of this month marked the 70th anniversary of the repeal of America's most misguided attempt to abruptly change people's habits for their own good: Prohibition.

The violence spawned by banning alcohol in the 1920s has become legendary. Prohibition ended up costing society more in death and economic loss than would have been the case had alcohol remained legal.

Similarly, the violence over cigarette smuggling in New York is a direct result of making a popular product artificially scarce.

Last year, Mayor Michael Bloomberg and state lawmakers engineered the equivalent of a 75% tax increase on packages of cigarettes sold in the city.

This year, the Mayor extended his anti-smoking crusade by pushing through a city-wide ban on smoking in bars and restaurants.

He claimed the moves would save "tens of thousands of lives" as more and more smokers kicked the habit and the numbers of people exposed to second-hand smoke plummeted.

But Mr. Bloomberg's statistics are questionable, especially since the science on the harm done by second-hand smoke is less than solid.

What is certain is that the bar and restaurant ban turned deadly two weeks after it was introduced on March 30.

A bouncer in a Lower Manhattan watering hole was the first victim of nicotine rage: he was stabbed to death for asking a man to put out his cigarette.

"It's so ironic," said the owner of the bar next door. "Something that's supposed to save lives has already taken a life."

Of course, the bouncer's assassin was probably a ticking time bomb who might have interpreted any type of confrontation as provocation.

However, the violence spurred by the tax hikes has created a spike in an otherwise downward trend in crime figures.

As the city heads toward its lowest murder rate in 40 years, national statistics released this week show New York is the safest large metropolitan area in the country.

But police fear the profits to be made in cigarette smuggling and the ensuing violence will erase any gains. With US$3 in tax on a pack of cigarettes that would normally cost US$4, the stakes are high.

Russian mafia and Chinatown gangs are becoming increasingly involved in the trade, police say.

The smugglers buy lower- or non-taxed cigarettes on Indian reserves or in other states and peddle them illegally at fire sale prices, avoiding the city and state tax bite.

And the recent battles between smugglers show how ferociously they defend their turf and deal with the competition.

One of those who died was chased through a crowd and stabbed to death in broad daylight near Brooklyn's Fulton Mall. He was 19. A 23-year-old shot to death last month had two bullets pumped into his head on a rooftop apartment block in Brooklyn.

The other two men shot in recent months were aged 25 and 34.

To anti-smoking activists, the price is acceptable.

They long ago rejected arguments in favour of respecting people's right to choose. Some are even calling for a total ban, despite the lessons of Prohibition.

An article that appeared this month in The Lancet, a leading medical journal, said making tobacco possession illegal would lead to a drastic fall in the number of smokers.

It might also lead to a drastic rise in the number of victims of cigarette smuggling.

WOKR 13 TV - December 16, 2003
        Bingo Halls Suffering From Smoking Ban

(Rochester, NY) -- Five Rochester-area Bingo halls say that their numbers may be up unless Monroe County grants them a waiver from the smoking ban that went into effect in July. The halls have jointly applied for the smoking waiver claiming a 50 percent drop in profits and a 20 percent drop in attendance.

The Monroe County Health Department will review the waiver application. A similar request by a bingo parlor in Syracuse was granted, but Bingo supporters say their numbers alone prove their case.

All of the halls benefit schools, churches, and other non-profit organizations.

Dan Plonka of Bingo Caller Magazine said, "Some organizations have completely lost every single penny of profit--their losses have been over 100 percent. Other organizations are down about 10 to 15 percent; most are down about 50 percent of the profits.

Frances Epping plays Bingo often. Although she doesn't smoke, she said that since the smoking law was passed, fewer people are playing the game, and that means lower jackpots.

"At times they have to lower the prize money, because they don't have enough people in here," she said.

Earlier, all halls built separate rooms for smokers. However, some non-smokers say the situation is worse now because they have to walk through a cloud of smoke outside to get in the Bingo hall.

Niagra Falls Reporter - December 16, 2003
        Analysis by David Staba

When Sam Morreale and Dave Melloni got a letter from the Niagara County Health Department saying that they were being fined for allowing smoking in Culbert's, the Buffalo Avenue tavern they purchased last March, they decided to appeal.

They came away from Wednesday's hearing, the first in the county since the statewide smoking prohibition went into effect in July, wondering why they bothered.

"I didn't do two tours of duty in Vietnam so I could have my civil rights taken away," Morreale said.

Yet that's exactly what happened, or more accurately, continued on Wednesday.

Ignoring assertions by Morreale and Melloni that they actively tried to stop people from smoking inside their business, as well as flaws in the violation report itself, Niagara County Public Health Director Paulette Kline upheld the $250 fine.

Kline's imperious behavior throughout Wednesday's hearing drew several interruptions from Assistant County Attorney Michael Fitzgerald, who nervously suggested that she should listen to some of the explanations offered.

Kline, who was appointed by the county Board of Health and whose term ends in October 2004, would have none of it.

"I have to enforce this law, and I will demand compliance in Niagara County," Kline ruled from on high.

When Melloni called the proceeding a "kangaroo court" and said he wouldn't pay the fine, Kline haughtily quadrupled it.

Demanding $1,000 from people who actually work for a living as punishment for failing to show her proper deference is in line with Kline's lack of regard for those who pay her salary. In the past, when all county department heads were ordered to cut spending, she not only ignored the dictate, but submitted a budget larger than the year before. She got away with such impudence due to the patronage of county Legislator John Cole, who leaves office Jan. 1, several county government sources said.

Apparently, Kline believes her lofty position and those of her friends allow her to ignore basic tenets of due process. Her inspectors skulk anonymously into private businesses -- the narc in the Culbert's case said she was in the bar for "20 or 30 seconds" -- then flee before being discovered.

"It's ridiculous," Melloni said. "How does she know that I didn't just tell the person to put out his cigarette? How does she know that Sam or I wasn't in back, and the person lit up without us knowing?"

Business owners got a brochure explaining the law before it went into effect telling them not to call the police if a patron refuses to extinguish his or her cigarette.

"They told us not to call the cops, but we get fined if someone won't put out their cigarette when we tell them," Melloni said. "What are we supposed to do?"

Owners get a letter in the mail days or even weeks later, notifying them of the violation without giving any specifics of the incident, making it virtually impossible to prepare a defense should they appeal.

That tactic gives the Health Department powers law enforcement officials can only dream of.

"Imagine the police sending someone a letter saying that an anonymous witness saw them selling drugs, so they have to report to jail," said the owner of another Niagara County business smacked with a fine. "The courts would never stand for it."

The courts will likely be where these cases and others like them wind up, one reason the assistant county attorney tried to stem Kline's arrogance.

One legal problem with the state law will likely be its unequal application in different areas. Less than a week before Kline's performance, a Chautauqua County hearing officer recommended no fines for two bars that had been fined.

Kline's enforcement tactics could also expose the county to litigation, and even make her a defendant in lawsuits brought by business owners. In 1991's Hafer v. Melo decision, the U.S. Supreme Court ruled that government figures can be held personally liable for actions taken in their official capacities.

In another sign that she's not up to her job, Kline has yet to spell out guidelines for hardship waivers, nearly five months after the ban went into effect and eight months after it was signed into law.

Last week, the state Health Department set a standard requiring restaurants and taverns to show a 15 percent loss in business to receive a waiver in counties that don't have their own health departments. Counties like Niagara with their own enforcement systems would seem bound to follow suit or risk being sued over unequal enforcement, but Kline's conduct indicates she believes her powers are divine, rather than bureaucratic.

She also sicced an inspector on the Loyal Order of Eagles Post in Wheatfield, apparently unaware that such all-volunteer organizations are specifically exempted from the ban.

To be fair, Kline didn't institute the smoking ban. But her chosen method of enforcing it points up some of the many flaws in the nation's strictest prohibition, and her high-handedness should embarrass her and the government she represents.

Whether Kline will complete her term is anything but certain, given her unrealistic budgetary demands in the past and questionable use of limited resources in enforcing the smoking ban. But last week's proceedings made a few things very clear:

Niagara County has decided to treat the ban the way some municipalities treat speed traps -- as a revenue source. Not to pick on North Tonawanda, or anything.

Giving a sycophantic bureaucrat the sort of power Kline believes she wields is a very, very bad idea. But who didn't know that already?

No one is guaranteed any rights, civil or otherwise, no matter what they may have done to ensure them in the past. The fight for those never ends.

News 10 - December 15, 2003
        Onondaga County cracks down on smoking ban

The Onondaga Health Department has charged OC's Tavern and Damon's with violating the Clean Indoor Air Act. They said that both locations allowed smoking inside their establishments on more than one occasion

Dave Damon said that he works hard to keep his bar smoke-free. Recently, someone lit up inside. Damon said that he missed it.

"Fellow from North Carolina came in, he didn't know the law, I was talking with him, he's an old friend, I went to answer the phone and when I came back he had a cigarette in lit up,” said Damon.

Onondaga County Health inspectors who were there witnessed the man light up.

Damon's is one the first establishments in Onondaga County to be charged with violating the Clean Indoor Air Act. Because of that charge, Damon himself had to go to the Civic Center for a hearing.

“Essentially, we started out doing a lot of education over a period of time, and once that process was completed we made it known publicly that we were not going to tolerate violations of this law,” said Gary Sauda, Director of Onondaga County Environmental Health.

Sauda says the hearings and subsequent fines will continue. While Damon waits to hear if the county will fine him, he said he is more concerned about the smoking ban in general.

"I think the smoking law should have been a matter of choice. Let the bar owners make that decision. If non-smoking bars were the thing to do with all the bars in Onondaga County, there would have been a number of non-smoking bars long ago,” said Damon.

Despite the opinions of bar owners, the smoking law is in effect, and the county is enforcing it.
"In think we've made it clear publicly that if there are violations, we’ll continue to cite people. There are other people we have cited and other hearings have or will be scheduling for this type of situation,” said Sauda.

Alex's Grill has already gone through the hearing and received a five hundred dollar fine earlier this month.

They refused to pay.

The Times Herald - December 15, 2003
        Smoking waiver to trigger county action
        By Rick Miller

OLEAN — The state Health Department’s decision to begin accepting smoking ban waivers from bars and other businesses will hasten development of a waiver procedure in Cattaraugus County.

On Friday, the state Health Department said it will begin accepting smoking ban waiver applications for businesses that can show at least a 15 percent drop in profits in the 21 counties it administers.

None of the eight Western New York counties are covered by that announcement since they all have their own county Health Departments capable of enforcing the state’s 5-month-old smoking ban.

“This doesn’t come as a surprise,” Cattaraugus County Public Health Director Barbara J. Hastings told The Times Herald today. “This was supposed to have come first in October and then in November. We’ve been waiting for it.”

County health departments across the state are now waiting for the New York State Association of County Health Officials to issue guidelines based on the state Health Department’s waiver process.

The state waiver criteria may become a template for Cattaraugus County and other counties across the state, she said.

“The law says we may issue waivers, not that we must,” Mrs. Hastings said. “It’s a very complicated situation. There is no easy answer. Once you grant a waiver, you open up the possibility down the road of someone else suffering a financial hardship.”
The Board of Health is expected to address the waiver issue when it meets in early February, she said.

In the meantime, the Health Department’s smoking ban enforcement actions will continue, Mrs. Hastings said.
“Enforcement actions are triggered by complaints,” she said.

Waivers would not be automatic, Mrs. Hastings cautioned. The state law states there would still have to be some conditions or restrictions to minimize the adverse effects of the waiver on persons subjected to involuntary exposure to second hand smoke.
Mrs. Hastings said the New York State Association of County Health Officials is expected to issue its guidelines on smoking ban waivers soon.

“We will then be reviewing it internally,” said Mrs. Hastings. The health department will then make recommendations to the Board of Health.

“We need to ensure the waiver is consistent with the general purpose of the law,” Mrs. Hastings said. “There needs to be consideration for people who are getting involuntary exposure to second-hand smoke.”

Several bars in the county have been cited for violating the smoking ban. The fine for a first offense has been $500. Some bars have been cited a second time.

The Health Department is considering a $100 fee for waiver applications, she said.

A separate smoking room with its own ventilation may be one of the options that could be considered, she said. “It depends on what the Board of Health wants to do.”

The Health Department recently sent out letters to taverns and bars regarding outside shelters for smokers during the cold winter months.

“I call them butt huts,” said Mrs. Hastings. They can be three-sided structures with the fourth side no more than 50 percent enclosed.

Also, it cannot require patrons to walk through the enclosure to get into the bar or tavern, Mrs. Hastings said.

“With winter coming, we wanted to let bars know what they could do for customers who go outside to smoke to give them some protection from the elements.

One area bar, Younger’s on West State Street in Olean, has erected a heated enclosure for patrons who smoke.

WOKR 13 TV - December 15, 2003
        State Gives Counties Discretion In Granting Smoking Waivers

Evan Dawson (Rochester, NY) 12/15/03 - Some health officials across New York are worried that the state is giving up on the newest smoking ban. This weekend, the state health department released their recommendations for which businesses should receive smoking ban waivers.

Under the state plan, any business that shows a drop of at least 15 percent in revenue can apply for a waiver,. However, each individual county has to make their own guidelines, which means smoking won't make a return very easily.

At Woody's on Monroe Avenue in Rochester, owner Brandon Thompson sees the empty barstools and empty tables. He doesn't yet have the sales receipts to prove the smoking ban has lost business, but he's looking forward to a chance to apply for a waiver.

"I think everybody would jump on board, for the most part. I'd guess 90 percent would jump on board," he said.

At Welker's on Dewey Avenue, sales receipts show that business is about the same, but  owner Bill Sweet said that's because two other bars nearby closed recently. While he's pleased with the state's recommendations, he wonders if Monroe County will follow them.

"I've heard a lot of rumors about a lot of things since this started," Sweet said. "When I see it, I'll believe it."

Sweet knows Monroe County will make its own waiver guidelines. Businesses will likely have to prove their drop in business is related to the smoking ban, not the economy or other factors.

Also, a waiver is not the same as an exemption. Businesses that receive waivers would still have to make accommodations, such as creating separate smoking rooms.

Dr. Andrew Doniger of the Monroe County Health Department said, "How many bars or restaurants or other facilities might possibly be granted waivers? My guess is that it's going to be very, very, very few."

Only the 21 counties that don't have their own health departments have to follow the state recommendations.

Most counties in our area will make their own rules, but source say that the state is putting pressure on these counties to create waiver guidelines quickly if they decide not to follow the state plan.

Monroe County Health Department officials have not made a final decision; they still have the authority to create whatever guidelines they find appropriate.

Buffalo News - December 13, 2003
        Guidelines set for waiver from smoking ban in parts of state
        By Tom Ernst

The state has established 15 percent as the minimum amount of profit a bar or restaurant must prove it lost in order to obtain a waiver from the state's new smoking ban.

However, the state Health Department rules announced Friday apply only to the 21 counties that don't have their own health departments, not the 41 other boroughs or counties - including Western New York's eight counties - that do. Those counties could adopt the state exemptions or establish their own rules, potentially creating different smoking rules in neighboring counties.

Still, the state's action could result in 15 percent becoming the benchmark to prove a hardship.

Patrick H. Hoak, president of the Innkeepers Association of Western New York, was happy to hear the figure Friday night.

"More than half the bars would meet that," he predicted.

But Dr. Anthony J. Billittier IV, Erie County health commissioner, said it remains to be seen how the hardship would be calculated here. The county is currently drafting exemptions.

"Fifteen percent of what? Profits? Sales? And over what period of time?" he said.

He said counties are free to set their own figure.

"And the next question becomes, was (the drop in profits) due to the smoking ban or some other factor? Is it because of more competition? A change in hours? The bar down the street lowering its prices?"

And if Erie County should grant a waiver, "it would not be a return to business as usual. The enforcement officer would need to see that the spirit of the law is carried out, and that means protecting workers and others from secondhand tobacco smoke," he said.

The waiver might allow smoking in a certain area, for example, but it would not lift all restrictions, Billittier said.

But Hoak said there is no doubt but that the smoking ban is hurting - in some cases crippling - the bar business.

He said he was told by a beer distributor that 39 liquor licenses have been surrendered in Erie County in recent months.

He said 89 waiver requests have been filed with the county, "and that will triple or quadruple within two weeks" of waiver rules being adopted.

"If there is no change in the law, I predict that by Feb. 1 there will be 100 bars out of business," Hoak said.

He said his business, Hoak's Armor Inn on Abbott Road, Hamburg, has lost more than $7,000 in revenue since July 24, when the indoor smoking ban took effect.

Also part of the state waivers:

• Clubs and other membership organizations that use only volunteer workers.

• "Cigar bars" in which at least 10 percent of annual gross income is from the sale of tobacco products and the rental of humidors, excluding vending machines.

The waivers applying to the 21 counties are for two years, and the businesses will be subject to inspection and investigation of complaints. The waivers can't be transferred with the sale of an establishment, and the law contains a provision to create waivers based on financial hardship.

Russell Sciandra of the Center for a Tobacco Free New York has said the 15 percent threshold for lost income is "arbitrary." He said the waivers should be issued rarely so that the smoking ban isn't undermined.

Sciandra said Friday the state Health Department didn't consult with health advocates in developing the waivers. He said he's concerned that the waivers won't protect nonsmokers and employees from secondhand smoke.

Associated Press - December 12, 2003
        State issues ways to exempt bars from smoking ban
        By Michael Gormley

ALBANY, N.Y. -- Bars and other businesses that can prove they lost at least 15 percent of their profits to the state's new smoking ban will be able to apply for waivers in much of the state, according to rules released by the Pataki administration Friday.

The waivers could potentially lead to one in 10 bars and restaurants statewide allowing smoking despite the 5-month-old ban on indoor smoking in workplaces, an advocate of the waivers said.

The state Health Department issued the rules to obtain smoking ban waivers for the 21 counties served by the state department. The other 41 counties and boroughs could adopt the waiver rules as well or establish their own rules, potentially creating different smoking rules in neighboring counties.

Hundreds of business owners have inquired about waivers since the indoor smoking ban went into effect July 24. Scott Wexler of The Empire State Restaurant & Tavern Association roughly estimated, based on applicants in one county, that as much as 10 percent of the state's thousands of bars and restaurants could allow smoking if most localities adopt the state's rules.

The rules would allow business to apply for waivers to the smoking ban if they:

_Can show they lost 15 percent of their business since the ban was established compared to similar periods.

_Are clubs and other membership organizations that use only volunteer workers.

_Are a "cigar bar" in which at least 10 percent of annual gross income is from the sale of tobacco products and the rental of humidors, excluding vending machines.

The waivers will cover two years and the businesses will be subject to inspection and investigation of complaints. The waivers can't be transferred with the sale of the establishment, according to the rules. The law contains a provision to create waivers based on financial hardship.

"We worked with local governments, advocates and the business community to develop a reasonable approach and this criteria reflects that effort," said Health Department spokesman William Van Slyke.

Wexler, however, said the waivers are not enough to help what he said are the many businesses hurt by the smoking ban.

"While the waiver criteria will be helpful to the hundreds of small business owners in the 21 counties where the state Department of Health is in charge, we still need an amendment to the law," Wexler said.

Last week, state Senate Majority Leader Joseph Bruno, an increasingly vocal foe of smoking and its health effects, said the Senate will monitor the granting of waivers and whether they are hurting the smoking ban.

Russell Sciandra of the Center for a Tobacco Free New York has said the 15 percent threshold for lost income is "arbitrary." He said the waivers should rarely be issued so that the smoking ban isn't undermined.

Sciandra was unavailable for comment late Friday afternoon, when Gov. George Pataki's administration released the controversial rules.

Pataki spokesman Todd Alhart said "The law requires the Department of Health to develop waiver guidelines and the department is fulfilling that legal requirement."

PRNewswire - December 12, 2003
        Carnival to Reposition 'Fun Ship' Paradise to Long Beach to Operate
        Three- and Four-Day Baja Cruises in Oct. 2004

Carnival Cruise Lines' 2,052-passenger "Fun Ship" Paradise will begin year-round three- and four-day cruises from Long Beach, Calif., in Sept. 20, 2004, becoming the newest cruise ship to ever operate short cruises from the West Coast.

"We are very enthused to introduce the Paradise to the West Coast market on three- and four-day Baja cruises," said Bob Dickinson, Carnival president and CEO.

Dickinson indicated that the Paradise, which has operated since its introduction in 1998 as a smoke-free vessel, will no longer retain that designation. "When we analyzed our redeployment strategy, the Paradise, based on its size and attributes, was the obvious choice to offer a fresh new short cruise alternative from California. And, with only one ship operating that program, we could not limit it to non-smokers," he said.

Oneida Daily Dispatch - December 11, 2003
        Officials say 'tax parity' bad deal for counties
        By Mike Ackerman

WAMPSVILLE - If local politicians have their way, a sales tax parity agreement between the Oneida Indian Nation and New York state will never come to pass.

On Tuesday, a Washington D.C. attorney representing the Oneidas said, in his opinion, the Nation and New York were close to an agreement on sales tax.

Eric Facer said the essential ingredients in a tax parity agreement have been laid out and he is optimistic a deal can be reached in the near future.

The Oneida Nation owns about 12 Sav-On convenient stores around Madison and Oneida counties and currently does not pay any sales tax to New York state on retail sales. The main commodities in discussion are tobacco and fuel of which the Oneidas sell at a much lower price than non-Indian retailers.

Last May, state legislators brought the sales tax issue to the forefront, insisting Gov. Pataki take action on the issue. The tax parity format designed by the Nation is one used successfully by several other Indian nations in many Midwest and Western states.

According to the terms the Oneidas have outlined:

* The state will collect no taxes on reservation sales by Indians.

* The Oneidas will enact and collect taxes that are at least equal to state and local sales tax.

* The Nation will set prices for tobacco and fuels that are equal to the cost of the item to the Nation, including a tribal tax of 5 percent.

* The funds the Nation collects through taxes will be used for governmental services and won't be used to fund commercial enterprises such as the Turning Stone Casino and Resort.

* The state and the Nation will share information and submit to binding arbitration and judicial review to ensure compliance.

On Wednesday, Assemblyman Bill Magee, D-111, said the provisions of the proposed agreement are absurd.

"It's a joke ... it's ridiculous," said Magee. "They say their prices will be comparable to other retailers, but the presence of their enterprises is so significant in Madison County that it's not going to send consumers to non-Indian retailers ... there will still be those people who will go to the Indians to save a few pennies."

The retail taxes collected by the Nation will be dedicated to government functions such as infrastructure, health, education, and housing.

Magee questions how that part of the proposed agreement can ever be watched over, and just what infrastructure is the Nation speaking of.

"How can we really know what they do with their money and their government doesn't have anything else to spend their money excepting the benefit of their casino."

Magee said as far as funding for housing, the Oneida Nation's White Pines Village was paid for through federal HUD money.

The assemblyman added that he couldn't gauge support on the tax parity issue from fellow legislators but did say he constantly tries to educate his colleagues on the Native American issues in his district.

Assembly Speaker Sheldon Silver did say that the tax parity idea should be looked at, according to Magee.

"I don't know how much support there is for this. All I can say is that gas taxes are used to build and maintain roads ... the only roads they need to maintain lead to the casino.

"In a sense, they're already collecting taxes, and now in Madison County, they've got an extra 1 percent edge in sales tax since the county passed that resolution this week.".

Madison County Board of Supervisors Chairman Rocco DiVeronica agreed with Magee's stance.

"Our position is very clear. We want the Oneida Indian Nation to be a part of the Central New York community and if they want to be a part of it, stop looking for ways to shift the tax burden to everyone else ... be constructive, and accept the responsibilities along with the benefits."

In the city of Oneida, the largest population center in the county, only two of the seven gas stations are non-Indian. DiVeronica says no non-Indian convenience stores or gas stations are going to want to come into Oneida with the Nation as competition.

"Price parity or not ... it's not going to happen," said DiVeronica. "I know, you know it, and Eric Facer knows it, price parity is too little, too late."

In 1995, there were 32 non-Indian gas station/convenience stores near or in the land claim area. Since that time, eight have closed and eight have been purchased by the Oneidas.

"A tax parity agreement with the Oneida Indian Nation is a bad idea for Madison County. Under such an agreement, the Nation's tobacco and fuel prices will still be lower than at non-Oneida stores.

"They have already eliminated the competition. The Oneida Indian Nation will still have most of the sales ... and now at higher prices."

"I wrote an open letter to Gov. Pataki," said Oneida Mayor James Chappell. "Basically, tax parity is a shame.

"The state is strapped for money, the loss of sales tax to the counties, and the cities like Oneida and Sherrill make it hard for us to service our citizens.

"And, it's really a consumer tax, not a tax on Indians."

Post Standard - December 11, 2003
        Health officials deny six smoking waivers
        By Mike McAndrew

The Onondaga County Health Department this week denied four taverns, an American Legion post and a restaurant special permission to allow tobacco smoking inside their premises.

Denied were requests for waivers submitted by these city businesses:

Henson's Family Restaurant, 4629 S. Salina St., which recently closed.

Lenny's Place, 211 Pond St.

Pro's Grill, 137 N. Warren St.

P's Pub, 278 Hickok Ave.

Trexx, 323 N. Clinton St.

Valley American Legion Post 1468, 110 Academy St.

Gary Sauda, director of the health department's environmental health unit, said the six requests for waivers from the Clean Indoor Air Act were denied for either of two reasons: The businesses did not meet the county's criteria for demonstrating the smoking ban caused them "undue financial hardship," or they did not submit acceptable plans for protecting employees and the public from secondhand smoke.

The businesses may appeal their cases by going to a health department administrative hearing officer or by filing an Article 78 suit in court.

The Clean Indoor Air Act, which became effective July 24, banned smoking inside virtually every workplace in the state.

Sauda said the department is reviewing waiver applications from about 14 other businesses. The county is likely to allow smoking at some of those businesses, he said.

Syracuse Brigadiers, a drum corps that operates a multimillion-dollar bingo hall, is the only business to win a waiver from the county so far.

Times Untion - December 11, 2003
        County eyes waiver law for smoking ban
        Troy-- Legislators to take up bill to authorize Health Department to set fees for exemptions
        By Danielle T. Furfaro

By the end of the year, customers may once again be able to smoke in a handful of Rensselaer County establishments if the County Legislature moves ahead with a resolution allowing the county Health Department to set its own fees for smoking ban waivers.

The resolution, which delegates the power of setting the fee to the Health Department, went before the legislature for the first time at its Tuesday night meeting. Legislators will vote on it Dec. 18.

"I want to get this local law accomplished in the month of December," said Neil Kelleher, chairman of the legislature, who said he felt that the legislature should allow the Health Department to take the lead on the fees, and that he hoped the fee would be reasonable.

"The intent is not to beat people over the head with this," said Kelleher, a reformed smoker. "They have already suffered a financial hardship because of the law."

Since the state, in passing the smoking ban in June, set up provisions for counties to establish their own waiver systems for businesses that could prove financial hardship or an inability to enforce the law, the legislature does not need to vote on whether waivers will be allowed. But they did need to vote on the fee schedule.

Denise Ayers, director of the Health Department, said she plans to charge a $100 fee per waiver application. That fee will go toward administering a three-member panel that will review the applications. One member will look at the financial hardship suffered by the business as a result of the smoking ban, another will look at the physical setup of the facility and a third will look at the potential health risks from second-hand smoke.

"This is going to be a lot of work," said Ayers. "If we just rubber-stamp it, what's the point?"

So far, the Health Department has received about five waiver applications. The first one they are investigating is from the Capital District Celtic Cultural Organization, which holds a weekly bingo game at the Troy Atrium.

"Since the smoking ban went into effect, attendance has dropped off by 30 or 35 percent and that 30 percent represents the profit margin," said Kevin Roe, who is on the group's board of directors. "From July 25 through Nov. 1, we are down about $12,000 from the same period last year."

WIVB TV - December 10, 2003
        Two Bar Owners Fined

Niagara County is showing no mercy to bars and restaurant owners who allow smoking. Two bar owners were fined Wednesday. News 4's Marie Rice was in court for one of the hearings.

A Niagara County Health Department inspector said Wednesday she saw three people smoking at Culbert's on Buffalo Avenue in Niagara Falls during a compliance check in October.

"I noticed the ash tray and looked down and saw the cigarette."

"Were the cigarettes lit?"


Culbert's owner Dave Melloni said, "I've had people throw it down on our new floor. And butt it out right in front of me, cause I told them they can't smoke."

Sam Morreale of Culbert's said, "How do you know that we didn't - we hadn't already confronted these people? I wasn't aware we had to do it in front of you."

Culbert's owners pleaded their case at an administrative hearing Wednesday at the health department.

Assistant County Attorney Michael Fitzgerald said one complaint had been received against the establishment for being in violation of New York's new smoking ban.

Melloni and Morreale faced a 250 dollar fine.

Fitzgerald said, "I would though give some consideration to the fact of what the owners are telling you."

But, hearing officer Niagara County Public Health Director Paulette Kline was not swayed.

Kline said, "I have to enforce this law, and I will demand compliance in Niagara county. As a first time offense, I'm going to fine you in the amount of 250 dollars."

Dave Melloni: "This is a kangaroo court. As far as I'm concerned. We're not paying it. We're going to court. See you."

Kline: "...and you can expect that fine will be a thousand dollars."

"Whatever you got to do. Thanks for threatening us."

Dave Melloni said, "It was a travesty of justice. They did not even listen to what we tried to do to keep people from smoking in our establishment. All they wanted to do is extort money from us."

Bars and restaurants in Niagara County estimate a 17 per cent loss of business is on the low end since the smoking ban went into effect. I'm told business at some establishments is down by 50 per cent and more.

Post Standard - December 8, 2003
        State probes Brigadiers bingo
        License is on the line at hearing next month before Racing and Wagering Board.
        By Frank Brieaddy

The state Racing and Wagering Board has accused the Syracuse Brigadiers of breaking rules in its bingo operations and improperly using bingo earnings. The Brigadiers dispute the accusation. Proof of the accusation could put Brigadiers bingo out of business.

At the heart of the matter is the contention that the Brigadiers operate commercial bingo under the guise of supporting a drum and bugle corps rather than a nonprofit musical group using bingo to raise money. In a 28-item show-cause order, the Racing and Wagering Board contends Brigadiers bingo was set up improperly, pays people to run games that should be operated by volunteers and spends bingo earnings on expenses not allowed by state law.

The matter was scheduled for a hearing today in Albany, but the state Racing and Wagering Board agreed Wednesday to postpone the hearing until at least mid-January.

The Brigadiers have been ordered to show why the state shouldn't revoke its license for at least a year. The show-cause order states that because of the way the group operates, the Brigadiers are not a nonprofit allowed to conduct bingo and other games of chance under the state's general municipal law.

The Brigadiers counter that they have been in constant contact with the Racing and Wagering Board in an attempt to comply with regulations that are often difficult to decipher.

"Did we do something wrong? Yes. But we've tried to clean things up," said Joe Geswaldo, Brigadiers' spokesman and chief financial officer, a paid employee.

Stacy Clifford, speaking for the Racing and Wagering Board in Albany, said the state agency could not comment on the enforcement action because it is a pending legal matter.

The Brigadiers - including their subsidiaries the Brigadiers Alumni Club and Brigadier Booster Club - handle about $6.2 million a year in income from bingo and pull-tab wagers before prize money is distributed. Pull tabs, sometimes called bell jars, are individual-sale, small-stakes gambling products allowed by the state for use by nonprofits.

The revenue after prize money, license fees and gaming expenses is about $1.4 million.

The Brigadiers have used their bingo earnings for a corps performance budget of $879,854 this year. The rest goes to running the bingo hall.

The drum and bugle corps has 160 members; the Boosters Club has about 300 members; and the Alumni Club numbers 40.

Both Geswaldo and Clifford said the Brigadier nonprofit gaming operation is one of the largest in the state other than those operated on Native American territory. The operation supports a successful organization that won four national championships in a row before coming in second this year in Scranton, Pa.

The state contends the Brigadiers leased their building six years ago at 1860 W. Fayette St. to be used only as a bingo hall, which would require separate licensing that was never obtained for the building owner.

The Brigadiers argue the building is the group's headquarters and is used for more than bingo. The Brigadiers use the building for storage, meetings, occasional practices and offices.

The show-cause order alleges the Brigadiers improperly borrowed money for bingo hall construction from Wacon Ltd., a Long Island-based charitable gaming supplies and consulting firm, and improperly paid off those loans with bingo earnings.

Geswaldo contends Brigadier bingo was patterned after other operations around the state and operates the same way.

"There's seven halls in Rochester structured the same way as us," he said. All seven are run by drum and bugle corps, including Syracuse's rivals the Rochester Crusaders and Empire Statesmen who ran large bingo operations before the Brigadiers.

Robert Ventre, a Syracuse lawyer representing the Brigadiers, said state Racing and Wagering Board regulations are often difficult to interpret.

"They don't give seminars in this," he said.

Ventre said that in almost every instance when the state cited the Brigadiers for improper use of bingo earnings, corps members put that money back into appropriate accounts.

"There is nothing illegal going on with the use of these monies," he said.

The state Racing and Wagering Board shares regulation of bingo with local municipalities.

City of Syracuse Corporation Counsel Terri Bright said the administration of Mayor Matt Driscoll has had no problems with the Brigadiers and has not participated in the state's regulation action.

But former Mayor Roy Bernardi was concerned about the size of the Brigadier operation and his corporation counsel, Rick Guy, worked with the state to rein in the bingo hall, which he called a "bingo mall."

He voiced concern that a large bingo operation hurt smaller nonprofits.

Geswaldo said he hasn't figured out why his organization has drawn state attention, except that Brigadiers bingo competes with smaller operations.

"I'm still trying to figure out where the animosity was formed," he said. "One day people liked us; the next day they didn't."

Clifford, from the Racing and Wagering Board, said no other similar enforcement action is under way against another nonprofit bingo operation in the state.

NYC C.L.A.S.H. Note:  The only business in Onondaga County to qualify so far for the nearly non-existant state smoking ban waiver criteria is now under investigation and threatened with closure.  So much for opening your books to prove the ban is hurting your business.

WKBW Buffalo - December 8, 2003
        Business closes due to smoking ban

A popular hang-out on the queen city's west side has been shut down for good. This after its owner says the restaurant couldn't bounce back from the state's smoking ban.

The Royal Pheasant restaurant has seen many things in its 59 years but owner Jackie O'Brien never thought “no smoking” would mean no business.

“We didn't even foresee it really ourselves,” said O’Brien.

The establishment was handed down to O'Brien from her father back in the 80's. Customers who frequent the place say a piece of them is closing, too.

“I can't believe it's closed,” said Christopher Elmore, a city resident. “I used to love this place.”

“I knew a lot of my old school teachers used to come eat here and stuff man, it used to be a real big place,” added Mohommad Elabed, also a city resident.

 To O'Brien, it was another home. Her customers were extended family. Some of her staff worked here for more than 20 years.

“It's hard to see something just close up and the doors just bolted shut because there's always so much life and there's so many memories,” said O’Brien. “People come back here for birthdays and anniversaries.”

Once the smoking ban took effect this summer, O'Brien had no idea what she'd be up against. An instant 80 percent decrease in revenue.

“This is a hard area to keep going and economics are just bad,” said O’Brien.

O'Brien says she doesn't know what she's going to do now; this restaurant was her life. She just hopes her staff of about 20 can find other jobs, especially with Christmas just weeks away.

O'Brien says once she saw the plunge in profit, she wanted to try and stay open until after the holidays, but financially it just wouldn't work. Last night, the doors closed for good.

She says she's angry at the smoking ban and adds that she won't be surprised if other small businesses like hers shut down in the future as well.

Associated Press - December 7, 2003
        Merchants, Anti-smoking Forces Wait for State Guidelines
        By Joel Stashenko

ALBANY, N.Y. -- The limited granting of waivers to prevent economic ruin for some businessmen due to the state's workplace smoking ban is acceptable, a powerful state legislator says.

State Senate Majority Leader Joseph Bruno, an increasingly vocal foe of smoking and its health effects, said the Senate will monitor the granting of waivers and whether they are hurting the smoking ban.

"The intent was never to put a business out of business," said Bruno, a Rensselaer County Republican. "If they are dealing with criteria, and they relate to that criteria and it's equal for anyone that applies for a waiver, then we're comfortable with that."

The state Health Department's release of guidelines on granting waivers is imminent, state Health Department spokesman William Van Slyke said late last week.

The smoking ban, which went into effect July 24, prohibits smoking in all indoor work places. A provision of an earlier indoor smoking law enacted 15 years ago was continued with the new statute, allowing businessmen who can show they suffered "undue" economic damages because of the ban to get waivers from adhering to the law.

A draft of the Health Department's guidelines dated Oct. 22 placed "undue" damages as a 15 percent drop-off in business that an owner could trace to the smoking ban.

The Health Department's guidelines will technically apply only to the 21 mostly rural counties where the department will directly decide on waiver applications. But, in effect, they will also serve as the standard to be used by county health officials elsewhere in the state.

Bruno, who refused to amend the smoking ban statute this summer and fall amid complaints by some bar and tavern owners, said the state is "not trying to create hardships" for businessmen.

"We're trying to improve the quality of life for people," he said.

The Empire State Restaurant & Tavern Association said the state must get the waiver guidelines in place so the state and county health departments can process applications. The group contended that every day's delay is harming the businesses of establishments that can show the necessary "undue" damage to their operations.

Association President Scott Wexler said some businesses have already closed because of the smoking ban and that scores have or are ready to apply for waivers.

"Waivers are our members' best hope for survival," Wexler said.

Anti-smoking forces see the waivers differently.

Russell Sciandra of the Center for a Tobacco Free New York was "disturbed" by draft regulations. He called the 15 percent figure on lost income "arbitrary" and contended that establishments given waivers would be allowed to put smokers and non-smokers in the same room.

"We think that waivers should be rare and should be given out, as the law says, only for "undue" financial hardship," Sciandra said. "Our expectation is that there shouldn't be many of these ... But those who do (prove hardship) and can protect non-smokers and all employees can get their waivers."

Post Standard - December 5, 2003
        Bar vows to fight $500 smoking fine
        Mike Bersani, of Alex's Grill, says Clean Indoor Air Act intrudes on people's rights.
        By Mike McAndrew

The first Onondaga County bar fined for violating the state's smoking ban says it won't pay a penny.

On Wednesday, County Health Commissioner Dr. Lloyd Novick levied a $500 fine on Alex's Grill, 316 Wilkinson St., for allowing patrons to smoke at the bar Sept. 15.

"New York state is in for a fight," vowed Mike Bersani, the son of the bar's owner. "A $10 fine would have caused me to appeal. It's the principle."

Alex's has 30 days to pay the fine or appeal the commissioner's decision by filing an Article 78 lawsuit.

The county held another hearing Thursday for Cerio's Tavern, 1711 Grant Blvd., to resolve alleged violations of the state's Clean Indoor Air Act, but it issued no decision.

Hearings are scheduled Dec. 15 and 16 for five other taverns accused of allowing smoking.

"I don't believe in this law. It intrudes on our rights as Americans," Bersani said. "This is our bar and people still want to smoke."

Alex's has been a West End landmark for more than 100 years. A bar opened at the site in the 1890s. Bersani's father took over the business in September 2002.

Ten months later, the state law prohibiting tobacco smoking inside virtually every workplace took effect.

"People who smoke know they harm themselves. The science tells us they also harm innocent bystanders. Sixty-two thousand others die every year in this country by inhaling secondhand smoke," said Glenn Ivers, executive director of the American Lung Association of Central New York. "Smoke-free workplaces are essential to public health."

Novick said the number of complaints that his staff is receiving about smoking violations is decreasing.

"It's really only a minority of establishments receiving violations," he said.

The health department charged Alex's with four violations of the Clean Indoor Air Act, alleging that inspectors saw patrons smoking inside the bar on four dates in September and October.

The law allows county health commissioners to impose fines of up to $1,000 per violation.

Bersani said Alex's employees - who are all Bersani relatives - tell patrons they are not allowed to smoke. They do not otherwise enforce the law.

The bar also distributes free tobacco-free herbal cigarettes.

At a Nov. 6 hearing on the alleged violations, Bersani said he argued that health inspectors failed to offer proof that the cigarettes patrons were smoking contained tobacco.

Salamanca Press - December 4, 2003
        Do smoking rules apply to reservation? Vets’ club seeks tribal court review
        By Kimberly Gasber

SALAMANCA — Several Salamanca businesses and the county health department are struggling with interpretations of the Clean Indoor Air Act.

The law itself does not discuss exceptions for establishments on a Native American reservations, leaving all sides questioning when the act can be enforced on the reservation.

The Salamanca Veterans of Foreign Wars Post 5296 was cited by the health department as going against the act due to observed smoking in the Wildwood Avenue establishment on Oct. 25. The act prohibits all indoor smoking in public buildings, including bars and restaurants.

The VFW asked that the matter be heard by the Peacemakers Court in their hearing with the health department.

Eugene C. Frost and Stanley Milanowski, respondents from the organization, offered evidence at their hearing Nov. 25, including a photo ofg the sign from the Dudley Hotel saying “smoking permitted,” and a copy of a 1986 law that “gives the Seneca Nation the complete authority and jurisdiction over county health department to see over all its Seneca-owned businesses on its own reservation.”

The respondents wrote in a statement that the organization has 20 percent Native American members, and the matters should be brought before the Seneca Nation’s Peacemakers Court for decision as per the 1986 law. The respondents also submitted a copy of a newspaper article describing a smoking waiver given out by Onondaga County for a bingo hall. Frost apologized for the incident.

The health department’s recommendation on enforcement was to wait for the respondents to “submit motions in a legal manner and the CCHD can submit its answers. Respondent’s motions shall be in the hands of the CCHD no later than Dec. 19, 2003. The CCHD shall prepare its answers for presentation at the first Board of Health meeting in 2004.”

The act does not have jurisdiction over Native American-owned businesses on the reservation, said Environmental Health Director Eric Wholers.

However, at the Board of Health meeting Wednesday, Public Health Director Barbara Hastings said there may be a complication with such establishments. She said she had been in contact with Sandra Abrams, owner of the Dudley Hotel, to discuss the issue.

Wholers said the issue is not with the law itself, but rather a clause on liquor licenses. Liquor licenses are given out with the stipulation that the establishment will follow all state health laws.

“The liquor license is the connection,” he said.

In the first four months the act has been in affect, the health department has sent 40 official warning notices, conducted inspections and personal interviews.

On an enforcement level, 11 facilities have been formally cited for violations. Two businesses are repeat offenders, fined $1000 each. Otherwise fines are $500 for a first offense and in one case $250.

Waivers are still not being granted because the department is waiting for state direction on criteria for determining financial hardship, said Hastings.

She said the state will not give a date for completion of those criteria.

Post Standard - December 4, 2003
        Bar owner fumes over smoking fine
        Woman claims law shouldn't apply to her city bar because she has no employees.
        By John Stith

An Auburn bar is the first tavern in Cayuga County to be fined under the state's smoking ban, and the bar's owner has refused to pay.

"Why would I pay a fine if I've done nothing wrong?" owner Patty Glanville said a few minutes before the 5 p.m. Wednesday deadline to pay.

Glanville, 57, of Bluefield Road, Fleming, had been asked by the Cayuga County Board of Health to agree to a $100 fine as part of a consent order dated Nov. 12 to settle a complaint that patrons at her bar, Costello's on Aurelius Avenue, were smoking in violation of the state's Clean Indoor Air Act.

Glanville, who doesn't smoke, claims her bar should be exempt from the law because she has no employees. She is the owner and the only person who works at the bar.

Costello's serves only beer, wine and liquor, she said, but no food.

The law went into effect July 24. County Environmental Health Director Eileen O'Connor said Costello's is the first bar in Cayuga County to be fined under the law. If the fine isn't paid, O'Connor said, Glanville will be asked to answer the complaint at a hearing.

O'Connor said Costello's had been asked to pay the fine after the county received three complaints about smoking in the bar.

After the first complaint, the Board of Health sent Costello's a letter and included information about the law, O'Connor said. The second complaint generated a visit to the bar by a Board of Health representative and an official warning.

The third complaint was followed by the fine and consent order, O'Connor said.

In general, O'Connor said, businesses in the county have complied with the smoking ban.

"We're not getting a lot of complaints," she said.

Glanville said the smoking law was enacted to protect employees from the dangers of second-hand smoke. County health department officials don't buy her argument and fined her business.

MidHudson News - December 2, 2003
        Support grows for smoking exemptions

Areas of Rockland County are on the New Jersey border and because New York State has a smoking ban and New Jersey doesn't, patrons of bars and restaurants in Rockland are flocking across the border.

The County Health Department last night held a public hearing into its proposal to grant waivers to businesses that can prove they have lost 15 percent of their business because of the smoking ban.

Keith Kennedy, owner of the Pearl River Hotel in Pearl River, minutes from the Jersey border, supports the waiver concept. “I believe there is too much government in small business; it shouldn't be their decision whether or not our customers smoke or not,” he said. ”We're not a bus terminal or an airport; people make a conscious decision to come into a hotel or restaurant or bar and the employees make a decision whether they want to work there.” Kennedy said there's risk involved in many jobs and he said people who are afraid of heights don't apply for jobs as bridge workers.

While Kennedy said he appreciates the efforts of Assemblyman Howard Mills to pass a law allowing for establishments with liquor licenses to apply for a smoking license for a $100 per year fee, he would rather see the smoking exemption plan put in place.

The Journal News - December 2, 2003
        Conflict at smoking ban hearing
        By Jane Lerner

RAMAPO — More than 100 people jammed into a small hearing room last night to speak for or against a proposal that would allow business owners to apply to the Rockland Department of Health for a waiver from the state's smoking ban.

Bar and restaurant owners told the Board of Health that the statewide no-smoking rule is threatening to drive them out of business.

"The state is tying our hands in making a living," Tom Termini, owner of the Zoo Bar in Nyack, told the board. "Given the economic times we are in, this law should be reversed."

The law, which went into effect July 24, bans smoking in all public places, including bars and restaurants. The legislation gives local health departments the ability to grant waivers to businesses who can demonstrate that they have lost money as a result of the ban.

Many Rockland bar and restaurant owners said last night that they have been losing business, since the New York law went into effect, to nearby establishments in New Jersey, which does not have a smoking ban.

Allowing exemptions to the ban will enable those business owners to remain competitive, they said.

"It's not fair that someone can tell me what to do in my place of business," said Josh Lungen, owner of the Club House Bar and Grill in New City and two other bars. "For everyone's sake, please do the right thing."

But other people attending the special meeting said they enjoy frequenting smoke-free establishments and urged the board to uphold the law.

"More people like me will go to restaurants because there is no smoking," New Hempstead resident Joseph Kanusher said.

During the sometimes contentious hearing, business owners several times heckled members of a youth anti-smoking campaign.

"I have the right to eat in a restaurant without someone blowing smoke up my nose," 16-year-old New City resident Julia Forman said.

She and other members of Reality Check, a state-sponsored anti-tobacco program for teenagers, said that the public benefits from a law that eliminates exposure to secondhand smoke.

Board members listened to the testimony of more than 30 people, but did not take questions. The final decision on the waiver process will be made by Commissioner of Health Dr. Joan Facelle.

If Rockland offers waivers, it will join only two other New York counties, Onondaga and Schenectady, which allow businesses to get exemptions from the rule.

Under a draft proposal developed by the Rockland Department of Health, bar and restaurant owners would have to demonstrate that their business declined at least 15 percent since the law went into effect in July.

Business owners would have to submit state and local sales tax receipts for 12 quarters prior to July 24 to show the drop in business.

In order to safeguard the rights of nonsmokers, the county will still require bars and restaurants to take steps to protect the public from secondhand smoke.

News10Now - December 1, 2003
        Mattydale bar closes after smoking ban

It may have looked like a party, but patrons were saying their good-byes to Cam Nel. The bar closed its doors Sunday after more than 50 years of serving the Mattydale community.

"I'm heart broken I work here," said Drena Zajas.

Since the smoking ban took affect business has dropped 40% leaving the bar no choice but to close.

Pat Bamerick, owner of the building said, "there are people already crying we are not going to be here New Year's Eve."

"Knocking off smoking for those who desire it is wrong," said Howard Hayes, customer.

Many patrons here say this wasn't just a gathering place, but a place where extended families were formed.

"I want to cry it's an end of Mattydale no one can replace," said Barb Sutkus, patron since 1973.

"I'm not looking forward to being on the unemployment line. I have two kids it's going to be a slim Christmas," said Drena Zajas, employee.

About 90% of Cam Nel's customers smoke. Area businesses are concern the closing will have a ripple affect.

Caren Synder, owner of Dodesters said, "I'm watching friends drop out of the business. I'm scared, I'm afraid it's going to be me next."

Meanwhile, customers try to keep their spirits up knowing this is the last time they'll enjoy a smoke at the bar.

Post Standard - November 30, 2003
        Many want ban to settle before lighting others
        Supporters of the smoking ban don't want new laws unless the current one fails.
        By Kate Smyth

Albany's assault on smoking seems to be over, at least for now.

The state Legislature left dozens of proposed laws to strengthen New York's new smoking ban in limbo when it ended its 2003 session in September.

One proposed bill would ban smoking in cars with passengers under the age of 16. Another wants to prohibit smoking on beaches. A third would outlaw the sale of individual cigarettes and roll-your-own tobacco.

But those bills have stalled, and they are unlikely to get much traction when the Legislature begins its 2004 session in January, say groups that fought for the smoking ban in workplaces.

Even thosegroups say they are content with that law for now. They want to see how well the current ban works before pushing new legislation.

Tim Nichols, the director of government affairs for the American Lung Association of New York State, said lobbying for new tobacco legislation is not the group's current goal.

"Our focus should not be on weakening the law or looking to expand it in cars and outdoor areas; that's not the way to deal with this issue," Nichols said. "It's to encourage people to quit smoking and making sure the law (banning smoking in all workplaces, including bars) gets implemented across the state. That's the most important goal at this time."

The local chapter of the American Cancer Society, based in East Syracuse, also will not support any new legislation, said Sherry Tomasky, regional advocacy director. Business owners, lawmakers and the general public need time to adjust to the new law, she said.

"We often take the role of lobbying for pieces of legislation, but not at this time," she said. "We believe that this law is enough to deal with at the moment. There's still a lot of work to be done to help the public and business owners deal with these new circumstances. An adjustment period is very normal. There's nothing unusual about the discomfort felt after this law was passed."

Discomfort isan understatement, according to Caren Snyder, co-owner of Dodester's, a bar at 2426 South Ave., Syracuse. She said bars across Central New York are hurting since the ban went into effect July 24.

On July 1, the state lowered the threshold for charging a motorist with drunken driving, which Snyder said may have made things even worse. She does not think the economy had anything to do with the problems.

"The DWI law is a possible reason, but when the economy is bad and people are depressed they tend to drink more," she said. "They can't afford to go to a restaurant, but they'll cry in their beer. So I don't believe the economy's a reason."

Nichols, from the cancer society, said business owners are exaggerating the impact of the law. He said they have been fed false stories by the tobacco industry and downplayed the effects of the new DWI law, the economy and other factors that determine whether a restaurant was successful or not.

"Evidence from around the country is clear," Nichols said. "Restaurant and bar revenue is not affected negatively by the Clean Indoor Air Law. I think these are made-up numbers meant to create fear and intimidation with the Legislature so that they will change and weaken the law. The ban was signed into law, and I believe in the end the law will be upheld."

The New York Times cited a state report that found revenues for on-premises consumption and retail sales of beer and alcohol rose to $15.2 million this past August, from $14.4 million in August 2002. A poll released this month by Quinnipiac University found that 59 percent of voters in the state favored prohibiting smoking in public places. The cancer society, the lung association and much of the public may be content with the law as it is now, but opponents are not.

The Empire State Restaurant and Tavern Association has said it plans to push forward with its lawsuit against the state over the law.

So, too, is Audrey Silk, a New York City police officer and resident of Brooklyn, who founded Citizens Lobbying Against Smoking Harassment, a smoker's rights organization.

"We only have a handful of volunteers and not much money, but we're always optimistic," Silk said. "This is less about smoking than about private property rights and the right to enjoy a legal product."

Post Standard - November 30, 2003
        Smoking ban kills local tavern
        Law hurts business, forces Cam-Nel Restaurant to close, owner and patrons say.
        By Mike McAndrew

A wake will be held today for one of Mattydale's oldest taverns.

The Cam-Nel Restaurant, which has served cold beer next to the Hollywood Theatre on Route 11 since 1952, will close today because the state's new smoking law caused a severe drop in its business, said Jim Burns, who has run the neighborhood bar for 71/2 years.

"I'm very sad about it," Burns said. "I've made a lot of friends here."

Cam-Nel's customers will hoist their final beers - and curse Gov. George Pataki and the state Legislature - at a farewell party at the bar beginning at 2 p.m. today.

"Second-hand smoke . . . I think that's the biggest farce there is," said patron Pat Picciotto on Tuesday night, as he sat at the bar, drinking a whiskey and soda cocktail, and puffing on a Lucky Strike cigarette, in violation of the state's Clean Indoor Air Act.

The law, which prohibited smoking in virtually every workplace, including taverns, became effective July 24.

Burns said nearly all of Cam-Nel's customers were smokers.

Many of his regulars continued coming in August and September, Burns said, but they spent more time smoking at a picnic table outside than they did buying beer, playing pool or darts, or pumping quarters into the jukebox.

When the weather turned colder, and smokers didn't want to go outside anymore, business plummeted, Burns said.

He said he had no choice but to shut down the tavern, despite having 11/2 years left on his lease.

Pat Bamerick, who owns the property at 2227 Brewerton Road and lives above the bar, said he's optimistic he'll find someone else to lease the space and re-open the tavern.

He said he expects the tavern will be closed for at least two months while he negotiates a new lease and the next operator gets a liquor license.

On Friday, Bamerick sent letters protesting the smoking law to four of its supporters: Pataki; state Sens. John DeFrancisco, R-Syracuse, and Nancy Larraine Hoffmann, R-Fabius; and Assemblywoman Joan Christensen, D-Syracuse.

In passing the law, Pataki and the Legislature cited the dangers of second-hand smoke, which lawmakers estimated kills 65,000 people each year. They also noted that smoking and second-hand smoke cost New York's health care system an estimated $6.4 billion per year.

But today, there are going to be a lot of people griping about politicians at the Cam-Nel funeral party, said Marcella Mauro, of Mattydale.

Tuesday night at the bar, Mauro was wearing a black T-shirt with the following logo printed on it: "New York State, No Destiny, No Smoking, No Jobs, No Positive Leadership . . . Last One To Leave, Turn Out The Lights."

Cam-Nel sold all 25 of the T-shirts it had made, said Drena Zajas, a bartender at Cam-Nel.

"Smoking is no good for you," said Picciotto, a smoker for 60 years, who said he's been coming to Cam-Nel since 1955. "But you know, we do have rights."

He said he won't vote again for the politicians who supported the smoking ban.

On Tuesday, as they drank Labatt's, Pabst Blue Ribbons and Budweisers, the three most popular beers in the Mattydale joint, many Cam-Nel customers were flicking cigarette ashes into empty beer cans.

Thirteen of the 15 patrons in the bar on Tuesday were smokers.

Burns said the bar was grossing $200,000 in sales a few years ago.

"This place used to be packed," said Susan Wendt, a nonsmoker who has been frequenting Cam-Nel for five years, and who signed a petition opposing the smoking law.

Burns said he never applied to Onondaga County for a waiver from the state's smoking law even though the law was causing him "undue financial hardship."

Onondaga County granted its first smoking law waiver last week, to the Syracuse Brigadiers bingo hall because it met that criteria.

Burns said he figured he didn't have a chance of getting a waiver because he wasn't willing to invest thousands of dollars to seal off a section of the tavern for smoking.

Democrat & Chronicle - November 30, 2003
        Smoking ban waiver debated
        Calls for exemption raise issues of financial hardship, eligibility.
        By Joseph Spector

Before the state’s smoking ban, about 150 people attended the Patriot Drum and Bugle Corps’ weekly bingo nights in Gates. Now the bingo hall is lucky to get half that.

Profits to fund the youth band have suffered and, as a result, its winter programs were cut — snuffed out by the lack of bingo players who can’t smoke in the hall.

“People are choosing to go to the casino (which is exempted from the law), where they can smoke and gamble and play bingo,” said Patti Nolan, the band’s director.

Patriot and Monroe County’s four other bingo halls plan to apply to the county Health Department for an exemption from the law, claiming the indoor smoking ban is slowly putting them out of business.

That’s where the issue gets cloudy. As bars and restaurants debate the success of the 4-month-old ban, the newest flap centers on who is eligible under the law for a waiver because of financial hardship.

The reason for the uncertainty is that the law is missing one important piece: What constitutes financial hardship?

The issue has prompted businesses to cry foul and health departments to seek clarification from the state.

“What is a financial impact?” asked Patrick Hoak, president of the Innkeepers Association of Western New York.

“Is it 10 percent? Is it 30 percent? Is it 18 percent? They don’t know; we don’t know.”

But anti-smoking groups say the law is clear and that each business claiming any “undue financial hardship” should be reviewed on a case-by-case basis.

As for bingo halls losing money, that industry has been declining for years, said Russell Sciandra, director of the Center for a Tobacco Free New York. “Don’t these people have any sense of the ironic?” he asked, referring to the argument that smoking should be allowed so they can help children.

All of this comes as counties begin to hand out fines for places that don’t comply and as some bars and restaurants reportedly find ways to skirt the law.

The state law essentially bans smoking in all indoor workplaces, which includes restaurants, bars and office buildings. The law is enforced by county health departments and by the state in 21 counties without their own health departments.

It allows health departments to grant waivers in two instances: if a workplace can prove an undue financial burden or can prove that compliance is unreasonable.

Monroe County has received 20 waiver requests but granted only two, both for compliance reasons. Eastman Kodak Co. received a three-year waiver because the plant’s size made it impractical for many workers to go outside to smoke.

Geva Theatre received a temporary waiver in September so actors could smoke on stage during performances of Biloxi Blues.

The rest of the requests deal with the issue of financial hardship, but none has provided enough evidence to get an exemption. Most offered vague reasons and general opposition to the law, said John Ricci, Monroe County Health Department spokesman.

Nonetheless, the waiver requests reveal that counties are reacting to the ban differently.

“It’s not a formal process right now,” Ricci said. “My sense is that there will be.”

Some counties, such as Rensselaer, Schenectady and Onondaga, have drawn up official waiver applications and are charging up to $150 to apply. But in Monroe and outlying counties, health officials are simply accepting letters and documentation of financial hardships.

With no state guidance, many counties are also leery of granting waivers.

“We don’t want to be hanging by ourselves,” said Andrew Lucyszyn, Orleans County health director. “We want to be consistent with other counties.”

The state Health Department has worked on several draft proposals, including one that would grant a waiver if a business could prove it has lost 15 percent of its business because of the smoking ban. It’s still unclear, however, what percentage loss the state will settle on, or if it will even provide one. And counties wouldn’t be bound to follow the state’s recommendations anyway.

“We’re in the process of looking at that issue, among others,” said state Health Department spokeswoman Claire Pospisil.

Bingo operators in the Rochester area are hopeful they’ll receive a waiver because an 800-seat bingo hall in Syracuse, run by a drum and bugle corps, received one earlier this month. It said profits were sliced in half since the ban took effect. It was the first one in the state granted for financial hardship.

The waiver issue is at the heart of a lawsuit against the state by the Empire State Restaurant and Tavern Association, which says the law is so vague and confusing that it fails to provide recourse for economically suffering businesses.

“Any loss of business should constitute a waiver,” said Scott Wexler, the group’s executive director.

A federal judge last month threw out the group’s effort to get a preliminary injunction to block enforcement of the ban.

Anti-smoking groups wrote a letter to health directors Tuesday encouraging them to grant waivers only sparingly. And if they are granted, the waiver should include conditions that protect workers and other patrons from secondhand smoke.

For example, the waiver for the Syracuse bingo hall allows smoking only in a separate room, and the Kodak waiver cuts the number of smoking rooms at Kodak Park from 59 to 19.

“We strongly oppose the granting of waivers in any but the most extreme circumstan- ces,” the groups’ letter states. “When waivers are granted, they must provide nonsmoking patrons and all employees a safe, smoke-free environment.”

Enforcing the ban

Counties are beginning to issue fines to businesses not in compliance, while some bars are finding ways to evade the law.

Monroe County has received roughly 100 complaints of smoking violations and has issued two fines: a $250 fine to Fat Moe’s at 4419 Dewey Ave. and a $200 fine to The Breakers at Bayview on Manitou Beach Road.

Other bars and restaurants have innovative ways to sidestep the law, said Hoak of the Innkeepers Association. Some charge $1 for ashtrays, so if the place is fined they have money to pay for it. Others are hiding ashtrays under the bars or letting customers smoke late at night, when health inspectors are less likely to stop in.

Local bar owners said they know places are permitting smoking and that only further hurts businesses obeying the law.

“It makes it tough for us,” said Stash Christanis, owner of Christanis Bar and Grill on Elmgrove Road, Gates. “We are supporting the law and it’s hurting our business. If people are letting people smoke, it’s not good for us.”

Christanis echoed the views of many: The places being hurt most by the law are the smaller bars. Some larger restaurants say they’ve seen sales increase since the law took effect, with customers saying they like the smoke-free environment.

“The restaurants who do a majority of their business with food, most have had a positive impact, or at least it’s been the same,” said John Urlaub, owner of Rohrbach Brewing Co. on Buffalo Road and president of the local chapter of the state Restaurant Association.

Some have suggested changing the law so smaller bars can allow smoking.

“Why don’t they have smoking bars and nonsmoking bars?” Hoak asked.

A Quinnipiac University survey of 1,304 registered voters earlier this month found 50 percent of voters want New York’s harsh smoking ban in restaurants and bars made “less strict,” while 47 percent favor keeping the status quo.

A bill announced last week by Republican Assemblyman Howard Mills, R-Manhattan, seeks to overturn the smoking ban and allow establishments to buy “smoking licenses” for $100 per year, provided they already hold a liquor license.

Residents seem to be split over the ban.

“It’s bad,” said Calvin Russ, 47, of Rochester. “If you are going to ban cigarettes, you ought to ban alcohol, too.”

But going to smokeless restaurants “is much more pleasant,” said Joanne Rhoton, 45, of Irondequoit. “I don’t want to smell the smoke.”

The Journal News - November 30, 2003
        Hearing on smoking ban exemptions is tomorrow
        By Jane Lerner

Bar and restaurant owners are preparing to attend a public hearing tomorrow night that could help determine if Rockland will allow business owners to apply for exemptions from the statewide smoking ban.

Suffern bar owner Pat Withers has been handing out fliers and encouraging his patrons, suppliers and even competitors to attend the Board of Health hearing.

"We want the county to know how this law is affecting us," Withers said. "This law is not fair."

Rockland could become the third county in New York to offer businesses an exemption from the law, which bans smoking in all public places, including bars and restaurants.

State law allows for exemptions, but requires counties to develop their own standards for issuing waivers.

Dr. Joan Facelle, Rockland commissioner of health, said the county would require business owners to demonstrate that their business declined at least 15 percent since the law went into effect July 24.

The county wants to balance business owners' needs with the rights of patrons to be protected from the harmful effects of secondhand smoke, Facelle has said.

The law's proponents have said smoking bans have little or no effect on business over time, because they bring in nonsmokers who might previously have avoided establishments that allowed people to smoke.

The hearing will give people on both sides the opportunity to share their views with the Board of Health, which will advise Facelle on the issue. Facelle will make the final decision.

A draft waiver application developed by Rockland officials calls for three phases:

• Qualification, when business owners would have to prove the law is harming them financially.

• Remediation, when owners would submit plans to show how they would minimize secondhand smoke's adverse effects.

• Implementation, when an establishment granted a waiver would notify employees and the public.

Businesses granted exemptions would have to install ventilation systems designed by an engineer or architect to protect patrons and employees from secondhand smoke, according to the draft application.

Business owners would have to submit state and local sales tax receipts for 12 quarters prior to July 24 showing their business had dropped at least 15 percent.

Withers said he could easily demonstrate that.

"I have no problem documenting that I'm down at least 40 or 50 percent what I was doing before July 24," he said.

Withers, who is first vice president of the Rockland County Tavern Association, said other bar and restaurant owners also were being hit hard by the smoking ban.

He has urged representatives of the statewide Empire State Restaurant and Tavern Association, which is challenging the smoking ban in court, to attend the Rockland meeting.

Locally, the problem is especially acute in establishments like his that are on the border with Bergen County, N.J., which allows smoking in bars and restaurants, Withers said.

"It's not a level playing field, because anyone who wants to smoke in a bar can just go down the street to Bergen County," he said. "How are we supposed to compete?"

NY Sun - November 28, 2003
        Bar Owners Invited To Attempt a Jump Through Smoking Ban Loophole
        By William F. Hammond Jr.

ALBANY — The Bloomberg administration is formally inviting New York City bar owners to apply for waivers from the four-month-old statewide ban on smoking, but the exceptions are so narrow that few are expected to respond.

According to guidelines posted Wednesday on the Web site of the city Department of Health and Mental Hygiene, applicants must submit three years’ worth of income and expense data to demonstrate they have suffered an “undue financial hardship” because of the anti-smoking law.

They must also fall within one of the limited exceptions to the separate antismoking law that the city adopted in March — that is, owner-operated bars with no paid employees, bars with separately ventilated smoking rooms built before March 26, facilities that want to host “tobacco promotion events” no more than twice a year, psychiatric wards of hospitals, and tobacco shops.

The two layers of rules, and Bloomberg administration’s broad discretion to reject applications, make it unlikely that more than a handful of businesses will qualify, said the counsel of a bar and nightclub group that opposes the smoking ban, Robert Bookman of the New York Nightlife Association.

“It’s substantially an academic exercise,” Mr. Bookman said of the waiver process. “It’s not a real solution.”

But a spokeswoman for the health department, Sandra Mullin, denied that officials were simply going through the motions.“We have and will issue waivers based on the strict guidelines I sent you earlier,” Ms. Mullin said in an e-mail message.

The opportunity for waivers is stirring more interest elsewhere in the state, where waiver applications will be considered by local health officials who might be friendlier toward smokers. At least one waiver has been granted — to a bingo hall in Onondaga County with a separately ventilated smoking room — and dozens more businesses are applying.

The opportunity for waivers based on “undue financial hardship” has existed in state law since the mid-1990s, but didn’t become an issue until the sweeping ban on smoking in most public places took effect this summer.

At first,the state Health Department signaled it would not entertain applications for waivers because the meaning of “undue financial hardship” was too vague to enforce. More recently, however, the department issued draft regulations that define hardship as a year-toyear decline in revenues of at least 15%. These state rules would apply only in counties where the state Health Department enforces the smoking ban. New York City and other localities with their own health departments are free to set their own guidelines.

An upstate industry group, the Empire State Restaurant & Tavern Association, criticized the state’s recommended threshold as too high and faulted the department for taking so long to issue its guidelines.

“The smoking ban law was not designed to put people out of business,” said the association’s executive director, Scott Wexler,“The failure of the departments of health to implement the waiver process four months after the law took effect has caused businesses to close and places many restaurants and taverns in jeopardy.”

Anti-tobacco groups said they also oppose the 15% revenue-decline standard, suggesting that businesses could qualify for economic reasons that have little or nothing to do with smoking.They urged health officials to review applications on a case by case basis and issue waivers “only in rare and extreme cases of longterm revenue loss clearly attributable to the law and not to other factors.”

“This is a waiver process and not an opt-out-of-the-law process,” said the director of government affairs for the American Lung Association in New York,Timothy Nichols. “There is no requirement for any county or the state Health Department to issue any waivers at all. They don’t even have to be considered.”

“This shouldn’t be the way for the camel’s nose to get into the tent,” said the legislative director of the New York Public Interest Research Group, Blair Horner.

Officials in New York City seem to have followed the anti-smoking activists’ advice, declining to set a percentage standard for hardship and declaring that waiver applications will be reviewed in a case by case basis.

“If you have experienced a loss of business, you should be able to demonstrate that it has been caused solely by the prohibition of smoking, and that the loss is not attributable to your actions or other conditions that may have affected businesses in your area, such as competing business, or seasonal or other business cycles,” the departments’ Web site says.

Mr. Bookman said the department’s guidelines are probably too vague to stand up in court.“They have to have objective criteria, and they don’t,” he said. “But nobody really cares enough to spend limited time and resources on that issue here in the city, because it would impact a fraction of 1% of the licensees.”

Instead, association members are pinning their hopes on amending the law statewide, including in New York City, to allow smoking in bars, taverns, and nightclubs “with appropriate clean-air technology,” Mr. Bookman said.

MSNBC - November 26, 2003
        Local "Border" Bar Says NYS Smoking Ban Hurts Business

It's been more than four months since New York State banned smoking in bars and restaurants. But some bar owners near the Pennsylvania state line say they are losing so many customers, they may not last another four months.

Since the New York State smoking ban went into effect in July, the Stateline Tavern's name has been it's curse.

Owner Larry Peters said, "I've lost a lot, I could name off 100 regular customers that I haven't seen since July, since it went into effect."

That's because they're all drinking and smoking a half a mile down the road in Pennsylvania and Larry Peters says it is costing him four to five thousand dollars a week.

"If the building wasn't paid for, we would never survive."

On Stateline's Wing night, a dozen for three dollars, the kitchen used to go through 150 dozen. This past week, FIVE. A sign outside blames New York politicians for the decline in business.

Claudia Peters said, "We keep this place immaculate, we have spent tons of hours and money keeping it so and look what we have to show for it. Empty tables, empty chairs, every day of the week."

Managers at the Border Tavern say 60 percent of their business is leaving, and heading down the road to Pennsylvania. One manager says before the ban, she would make $30 to $35 in tips, now she is lucky to bring in five dollars.

It's no surprise to people who work here. No one wants to stand outside in the cold and smoke. And managers say the State is not taking into account how much money beer and food distributors are losing because of the ban.

A ban that the Peters say breaks up a classic combination they based their business on: a drink and a smoke.

Claudia Peters said, "We should have the right as the owners to say what goes on in this bar and we are losing money like you can't imagine in here."

Now the Peters hope a wavier from the Broome County Health Department can save their business. The Health Department says it's working on establishing criteria for the waivers. No waivers have been granted yet. If one is granted, the health department says bar owners will have to prove the ban has hurt business and come up with a plan to minimize their employees exposure to second hand smoke.

1010 WINS - November 24, 2003
        Lawmakers Consider Smoking Ban Loophole

Smokers may be able to light up again in the city's bars and restaurants if a new bill is approved by the state Legislature.

The bill, sponsored by Republican Assemblyman Howard Mills, would allow establishments to buy "smoking licenses" for $100 per year, provided they already hold a liquor license.

The measure would amend both the city's law, which went into effect at the end of March, and a state law that took effect in July. The laws prohibit smoking in most workplaces.

Speaking at a press conference Sunday in Manhattan, Mills said the bill would help improve business for restaurants and bars, which he said have struggled financially because of the ban.

More important, he said, it would ensure New Yorkers' "freedom of choice and personal liberty," since patrons could choose whether to visit smoking or nonsmoking establishments.

City Councilwoman Christine Quinn, a Democrat, criticized Mills' proposal, saying the point of the bans was to protect workers from secondhand smoke.

NY Newsday - November 24, 2003
        Bill Would Modify Smoking Ban
        By Bryan Virasami

Patrons at many bars, restaurants and taverns may be able to puff away again if a new bill, which seeks to amend the current smoking law, gets approved.

The bill, sponsored by an upstate legislator, would grant "optional" smoking licenses to business owners currently holding a liquor license and who pay a $100 annual fee.

The legislation would amend the existing statewide smoking law and override the city's workplace smoking ban, according to the sponsor, Assemb. Howard Mills (R-Wallkill).

Mills said the bill would put the power in the hands of patrons to decide whether to visit a smoking or non-smoking establishment since he expects not all owners will obtain a smoking license.

"The principle upon which our bill is based is not about tobacco, is not about smoking, it's about something even more fundamental than that," Mills said. "It's about freedom of choice and personal liberty."

The city's law along with the state's Clean Indoor Air Act have been criticized by bar owners who argued it would keep away patrons and force them to shut down.

The indoor air act is one of the toughest smoking laws in the country because it bans smoking in nearly all indoor workplaces. Bar and restaurant groups have been lobbying intensely against the law seeking to revise or repeal the law.

A spokeswoman for Gov. George Pataki said the governor has not seen the bill and declined to comment. A spokesman at City Hall said Mayor Michael Bloomberg was traveling.

The indoor air act and the local law were passed with wide margins and may face an uphill challenge in the Democratic-controlled Assembly. Councilwoman Christine Quinn (D-Manhattan), chair of the council's health committee and a co-sponsor of the city's smoking bill, said Mills' proposal is misguided.

"The goal of the smoking ban was to make sure that all workers had a smoke-free workplace," she said. "The goal was to make sure individuals didn't have to put their health at risk to make a living."

Councilman David Weprin (D-Hollis) said it's too early to assess the economic impact of the city's smoking law but would consider amending the law if faced with convincing evidence it has hurt businesses.

"My guess is this bill is not going to go anywhere unless there's major statistics and data to support it," Weprin said.

Sandee Wright, who runs the Whiskey Ward on Essex Street, said 95 percent of her patrons smoke and she saw an immediate drop in clientele after the law took effect. Now, she said, those who show up usually congregate outside to smoke and thus drink less.

She said if given the option under the bill, all bars would get the license.

"Any bar owner in their right mind would allow smoking because your smoking customers are your best customers," Wright said.

NY Sun - November 24, 2003
        By Eric Wolff

Instead of a smoking ban, Assemblyman Howard Mills wants to create a special smoking license.

The Republican from Orange and Rockland counties plans to introduce a bill that would repeal all local antismoking laws and create a means for restaurants and bars to apply for a license to allow smoking on their premises, when the legislative session restarts in January.

The license would cost $100 a year to defray expenses related to processing and to help the state close its $6 billion budget gap.

“People have the right to make a choice. The law is flawed, and it’s unconstitutional,” Mr. Mills said.

His colleague, Staten Island Republican Assemblyman Matthew Mirones, said both men believe “the majority of bar owners and restaurant owners will probably remain nonsmoking,” although few bars were nonsmoking before the legislation went into effect in March.

Mr. Mills also said “many of my colleagues who voted for this bill felt it went too far.”

A spokeswoman for Assembly Speaker Sheldon Silver, whose blessing is required for anything to pass in the Assembly, said, “There are no plans to change the law.”

A spokeswoman for Governor Pataki declined to comment because he had not yet had a chance to review the proposal. Mayor Bloomberg was not immediately available for comment.

Several business owners attended the press conference, hoping smoking ban relief would revive business.

“Even when I’m at full capacity, my ring is 50% of what it was, because of people going outside,” said the co-owner of a Lower East Side watering hole, Sandee Wright. “And all the people outside, it’s a whole new social scene. People bring a sixpack from the bodega and stand outside my bar.”

The effect of the ban appears to vary dramatically from bar to bar, as some bars reported to The New York Sun as much as a 40% drop-off in business, while others said they saw little change.

“There’s the same people here,” said the bartender at Bar 515, Andrej Smith. “And, it saves my life.”

 His colleague,a waitress for just over a year, Caitlyn Murray, said she takes about the same amount of cash home every week. “It used to feel like you worked eight hours, came home, and you smelled like you smoked two packs,” she said.

Patrons are divided almost exactly on nonsmoker/smoker lines, even within a marriage.

Smoker Jason Maguire said he “detested the law. You can come in here and drink a whole bottle of whiskey, make a mess of yourself, but you can’t smoke a cigarette?”

But his wife, a nonsmoker, looked down at their stroller-bound child from her bar stool and said, “From a personal health perspective the less smoke the better. I wouldn’t bring my child to a bar with all that smoke.”

[Emphasis added by NYC C.L.A.S.H. that is astonished by the idiocy of a woman who brings her child to a bar -- and thinks it's okay! -- in the first place.]

Reuters - November 24, 2003

PARIS, Nov 24 (Reuters) - Thousands of fuming French tobacco shop owners demonstrated in Paris on Monday against a cigarette tax hike which they say could force them out of business. Carrying banners reading "Fighting for our survival" and "Long live tobacco", more than 20,000 protesters rallied in the capital, according to organisers of the march. Angry shop owners chanted slogans like "Raffarin resign!", protesting against a planned tax increase that Prime Minister Jean-Pierre Raffarin insisted would go ahead in January. The hike would push the price of a pack of cigarettes above the five-euro ($5.93) mark, after a tax rise in October that already pushed the cost of a top brand to 4.60 euros from 3.90 euros. About a third of adults smoke in France. "The movement is gathering strength. People are determined and they will show their anger," Rene Le Pape, head of the National Confederation of Tobacco Outlets, told Reuters at the rally. Raffarin stood firm, despite the protests and a slide in his popularity ratings to their lowest point ever. In an interview on Europe 1 radio on Sunday, he said he wanted to push prices above a psychological threshhold of five euros a packet. "We have to go for a fair reform, one that gets us beyond the threshold, beyond five euros," said Raffarin, whose government argues the prices will help an anti-cancer campaign as well as plugging a deficit in
public healthcare finances. Junior commerce minister Renaud Dutreil said the government had announced measures for tobacconists which should compensate any sales loss in volume terms, adding that they were free to delay passing on the new price increase to their customers. "We must not govern under pressure from the street," he told Europe 1 on Monday. France's 34,000 tobacconists gained sympathy and wide media attention after the last price hike was followed by a wave of burglaries and even ram-raiding -- when thieves smash cars into shop fronts, a technique usually reserved for jewellery stores. They say tobacco shops in border areas will be hardest hit by taxes which will prompt even more people to drive into Spain, Italy or Belgium to buy cheaper cigarettes, and that the taxes are now at a level that will lead to an explosion in smuggling.

WOKR-TV 13 - November 22, 2003
        To Smoke Or Not To Smoke, Let The Law Be?
        By Mike Doria

Rochester, NY - For nearly four months, New York law has prohibited smoking in bars and restaurants.

Some upstate bars have protested by letting people smoke. As a result, they've been fined for breaking the law.

The issue pits an income-producing business perspective against a health-conscious point of view.

An active anti-tobacco coalition has purchased television ads reinforcing its point of view.   For the last week, the ads have shown people praising the new law; some ads even feature local celebrities.

Those who say they're hurting from the smoking ban see the ads as a "slap in the face".

Amerks hockey player Chris Thornburn, who says, "I've seen changes," does not like his clothes smelling like smoke. Rochester radio personality Brother Wease says he has friends who go out more often now. Waitress Kelly Killigrew enjoys work more, saying it’s a "much cleaner, happier environment I work in." These are part of the cast of characters promoting the smoking ban.

Holly Fitch, of the Smoking & Health Action Coalition said, "We just wanted people to hear this side [of the issue]."

Fitch, an anti-smoking advocate, helped with the ads. She said negative points of view have gotten a lot of airtime.

Bar owners, however, said the negatives make sense.   At Christanis Bar and Grill, no matter who they talk to, everyone is hurting.  They’ve put chairs and tables outside to accommodate both the law and the smokers, but to many small-business people, the ads are like salt in a wound.

"I don't feel they're necessary," said Zoi Christanis, whose business is down 40 percent. Christanis is on the side of those wearing “Screw Smoke Free New York” shirts.

"A lot of customers are angry…don't come in as often," she said.

Some groups are working to overturn the ban.

Those behind the ads said this is their effort to keep the law in place.

"We just can't sit back and say we're done," said one.

Soon, more new ads featuring "average" bar goers will be rolled out in the Coalition's campaign.

Midhudson News - November 21, 2003
        American Cancer Society opposes Mills' smoking license bill

The Great American Smokeout was held for the 27th year in a row by the American Cancer Society yesterday and the organization took the occasion to announce its opposition to a bill by Hamptonburgh Assemblyman Howard Mills that would modify the current state's no-smoking in public law.

Mills' proposes to have bars and restaurants with liquor licenses to be allowed to apply for a license to allow smokers in their establishments. While he agrees that smoking is harmful to one's health, he said business people should not be dictated to by government as to how to run their businesses.

American Cancer Society of the Hudson Valley spokesman Dan Klotz yesterday said his group opposes Mills' plan. “As the months go by and it's implemented better and better, it's going to work very well,” he said of the no smoking law. “The reason why it works is the ban right now is comprehensive, there are no loopholes. All the businesses get to compete on a level playing field.” Klotz said to introduce “loopholes” that allow one establishment smoking privileges and not another, “is not what we consider to be a level playing field.” Klotz said that's why the New York State Restaurant Association takes the American Cancer Society's side in supporting an across the board ban on smoking.

Post Standard - November 21, 2003
        Bingo players smoke again after hall proves hardship
        Syracuse Brigadiers' receipts show 61 percent drop in net income after smoking ban.
        By Mike McAndrew

The Syracuse Brigadiers' bingo hall suffered a 27 percent drop in gross receipts and a 61 percent drop in net income in the three months after New York's smoking ban became effective, according to the Brigadiers.

Brigadiers chief financial officer Joseph Geswaldo said the smoking ban's impact was so severe that the Brigadiers feared they would not be able to sponsor their drum and bugle corps in competitions.

The Brigadiers' hall earned $966,283 in gross receipts on bingo in August, September and October 2002, Geswaldo said. In the same three months this year, the gross bingo receipts dropped by 27 percent to $708,238.

The Brigadiers' net income for those three months was down 61 percent in 2003, Geswaldo said. The hall was losing about $60,000 per month in net income for the past three months because of the smoking ban, Geswaldo said.

This week, the Syracuse Brigadiers became the first business in Onondaga County to win a waiver from the smoking law's requirements.

Thursday night, bingo players were puffing away at the 1860 W. Fayette St. hall for the first time since the smoking ban took effect July 24.

"I think it's remarkable that they gave it back to us," said Betty Pickett, her bingo marking pen poised in one hand, a Newport Long in the other.

After the ban, it wasn't a huge hardship to wait for a break in the bingo action to grab a cigarette, said Marlboro man Kito Elijah. But being able to light up indoors again is better, he said.

"They must have known somebody in high places to get smoking back here, eh?" Elijah said.

To protect nonsmokers from secondhand smoke, smoking is permitted inside the hall only in a glass-enclosed room with its own ventilation system. That room was previously used as a no-smoking section of the hall.

The county granted the waiver because the Brigadiers proved the law was causing them "undue financial hardship" and that they could adequately protect employees and the public from second-hand smoke, said Gary Sauda, director of the health department's environmental health division.

One other business, Awful Al's bar on South Clinton Street, is exempt because it's considered a "cigar bar." To meet that criterion, a business must show that 10 percent of its gross revenue came from sales of tobacco products.

The AmericanHeart Association does not support granting smoking law waivers to bingo halls, which the association says have been losing players anyway.

In New York, charitable organizations collected $35 million in bingo gross receipts in 2001 and only $25 million in 2002, according to the New York State Racing and Wagering Board.

"Clearly decreased revenue from bingo is reflective of a long-standing and ongoing societal trend or the economic reality in which these games are conducted. With this information in hand, it calls into question the validity of claims by certain bingo venues that the implementation of the Clean Indoor Air Act is the primary reason for any fluctuation in profits," said Paul Hartman, advocacy director for the American Heart Association.

Thirteen other Onondaga County businesses have applications for waivers pending with the county health department.

Geswaldo said the Brigadiers' bingo hall was getting 300 to 350 customers per night before the ban. Since July 23, it was getting 220 to 230 per night.

"They were going to Turning Stone (casino). They told us that. Because they could smoke there," he said.

The operation enjoyed a rebound Thursday. By 7:15 p.m., 275 patrons were glued to their bingo boards: 188 in the nonsmoking section, 87 in the smoking room.

The Brigadiers use profits from their bingo hall - the biggest charity bingo hall in the Syracuse area - to fund the drum and bugle corps.

The corps won the Drum Corps Associates World Championships for four consecutive years before finishing in second place this year.

"We worried we wouldn't be able to field our drum corps this year," Geswaldo said.

In other smoking news, earlier this month, the health department has held its first administrative hearing to determine if a business should be fined for violating the smoking law, Sauda said.

Health department inspectors saw patrons smoking in Alex's Grill, 316 Wilkinson St., on Sept. 15, Sept. 29, Oct. 1, and Oct. 29. AMCA Inc., the owner of the tavern, could be fined $1,000 per violation. No decision has been made in the case.

The county has scheduled hearings for two other businesses accused of violating the smoking law.

Hearings are scheduled Dec. 4 for Shaughnessy's Pub, 300 Robinson St., which is owned by CTP Enterprises, and for Cerio's Tavern, 1711 Grant Blvd., owned by Tony Cerio Bar Corp.

Patrons were observed smoking in both of those taverns on several occasions, according to the county.

Post Standard - November 19, 2003
        Smoking ban waived for bingo hall
        Financial hardship cited as reason for allowing smoking for Syracuse Brigadiers Inc.
        By Mike McAndrew

The Syracuse Brigadiers Inc. - who run a bingo hall that earns millions of dollars a year - hit the jackpot Tuesday by becoming the first business in Onondaga County to win a waiver from the state's smoking law.

County Health Commissioner Dr. Lloyd Novick determined the ban on smoking was causing the Syracuse Brigadiers "undue financial hardship."

Bingo players will be permitted to smoke at the drum and bugle corps' 800-seat hall at 1860 W. Fayette St. when bingo resumes Thursday. "Bingo and smoking kind of go together," said Scott Mescon, the group's media relations director. "This is good news for us."

Smoking has been illegal in virtually every workplace in New York since July 24, when a new law took effect.

Ten other businesses have applications for waivers from the law before the Onondaga County Health Department, said Gary Sauda, director of the department's environmental health unit. None of those applications have been decided on yet.

The brigadiers use revenue from the bingo hall to finance their drum and bugle corps.

Novick ruled that if smoking is allowed in the bingo hall, the corps can take measures to adequately protect the public and employees from secondhand smoke, Sauda said.

Smoking at the bingo hall will be confined to an enclosed room.

Sauda would not disclose any information about the financial hardship that the Syracuse Brigadiers suffered as a result of the smoking law.

"They're a not-for-profit organization competing against Turning Stone (Casino Resort)," Sauda said. "They've proven the financial loss was significant."

Mescon said he did not have the financial information, and Joseph Geswaldo, the brigadiers' chief financial officer, could not be reached.

"I think the law created a level playing field. Waivers create an unlevel playing field," said Sherry Tomasky, a regional advocate for the American Cancer Society.

The state's Clean Indoor Air Act allowed businesses to obtain waivers from the smoking ban if it is causing them "undue financial hardship."

But Onondaga County rejected dozens of waiver applications from taverns and restaurants because it said the state Legislature had failed to set any criteria.

On Oct. 16 , the county announced it had established a formal application and would charge businesses $100 to apply for a waiver.

One other business, Awful Al's bar on South Clinton Street, is exempt because it's considered a "cigar bar." To meet that criterion, a business must show that 10 percent of its gross revenue came from sales of tobacco products.

WTVH Syracuse - November 19, 2003
        Bingo Hall Gets Waiver for Smoking Ban

The Onondaga County Health Department issued the first waiver on Tuesday for a Central New York business that has proven the state’s anti-smoking law has caused its business to decline. The Syracuse Brigadier Bingo Hall on West Fayette Street paid $100 to apply for the waiver and came up with a plan to separate smokers from non-smokers that was acceptable to the health department. When bingo resumes on Thursday, smokers will be allowed to play in a room with a separate ventilation system. They will still be able to participate in the main bingo game. Marketing Director Bridget Holmes said Tuesday she is cautiously optimistic that the waiver will bring back business to the non-profit facility. Holmes said the facility lost substantial business once the smoking ban took effect in July. The health department is considering 10 other waiver applications that have been filed by more traditional businesses including bars and restaurants.

Midhudson News - November 18, 2003
        Bars back Mills on smoking

About a dozen bar owners stood with Assemblyman Howard Mills yesterday to lend their support to his proposal to allow bars and restaurants that have liquor licenses to pay an extra $100 for a smoking permit. That would let patrons puff away and would also provide economic relief to barkeeps who say the state law banning smoking in restaurants, bars and other public places, is killing their business.

The tavern owners gathered with Mills at Maureen Mullany's Pub in downtown Goshen yesterday.

Mills, who is a nonsmoker and acknowledges smoking is unhealthy, said government has no right to impose restrictions like this on business.

“I believe this bill will accommodate smokers and nonsmokers, will enable people who do not want to be subjected to the second hand smoke to make their choices, enable people who want to work in the restaurant or tavern industry who do not mind being in a smoking establishment to go back to work in smoking establishments,” he said. “Many people have been hurt by this bill.” He said bar owners have seen decreases in their business, the state has been hurt by a decrease in sales tax revenue and a “dramatic decrease” in Quick Draw receipts,”

Brian Butler is vice president of the Orange County Restaurant and Tavern Owners Association and owner of the Golden Rail in Newburgh . He said the smoking ban is killing his business. He said his July sales were down five percent, August was down 15 percent, September was down by 25 percent and October, by 20 percent. And that is an indication of what it is across the board.

The owners said because of the close proximity to New Jersey and Pennsylvania , they are losing business to those states, which don't have smoking bans.

Times Herald-Record - November 18, 2003
        Mills to propose offering smoking licenses to bars
        By Dave Richardson

Goshen - It used to be axiomatic: walk into a bar for a quick snort of Scotch or leisurely pint of porter, and you end up having a cigarette or two - whether you smoke or not.

Going out for a cocktail may be a smoke-free experience now, but restaurant and tavern owners affected by the state's smoking ban say it's choking the life out of their businesses.

Now they're getting some help from Assemblyman Howard Mills, who said yesterday that he'll introduce legislation in January to allow the state health department to issue $100, no-strings-attached smoking licenses to bars and restaurants that want them.

"The economic impact [of the ban] has been far-reaching and dramatic," Mills said at a press conference yesterday.

Mills, standing shoulder to shoulder with more than a dozen restaurant and tavern owners in Maureen Mullany's Pub in Goshen, said many have seen their business drop by 30 percent or more since the ban went into effect in July.

"What you have here is a law passed by the state that's tearing this industry apart," Mills said. "This is about freedom of choice.
Those establishments who wish to remain nonsmoking can. And people who choose to smoke will be able to do so in a legal smoking bar."

It's an idea whose time has come, some owners said.

"This ban has been a tragedy for me," said John Elter, owner of Henry J's in Chester. "I lose a customer a day. I'm happy someone is proposing this.

Annie Rabbitt, owner of O'Hare's Pub in Greenwood Lake, agreed.

"I've had layoffs - we all have," Rabbitt said. "You make your shifts shorter, you stay open less hours. At least this is hope."

Mills said the smoking ban wasn't likely to be repealed, and offering financial-hardship waivers to businesses only if they can
prove they've been hit hard by the ban is an unworkable idea, leaving the license idea as a viable alternative.

Mills asserted the plan would not simply mean a return to the pre-ban status quo. Rather than stampeding to be the first on their block to get a smoking license, many bars would choose to remain nonsmoking environments, Mills said.

"Let the free market decide," Mills said. "My guess is it will come down pretty much even."

Post Standard - November 17, 2003
        Tax on tobacco would cost New York state in the end, Onondagas say
        Taxing cigarettes would lead to joblessness, dependence on state, leaders say.
        By Mike McAndrew

New York officials expect the state to receive at least $64.5 million in new revenues each year by taxing Native American sales of cigarettes and gasoline, but Onondaga Nation chiefs warn the state could end up spending millions of dollars if the proposed tax ruins the economy on Indian territories.

The Onondaga Nation's only regular source of income comes from tax-free cigarette sales. In recent years, the Onondagas have used their cigarette profits to build a $3 million project that brought drinking water to hundreds of nation residents whose wells were contaminated, and a $4 million lacrosse and hockey arena for the nation's youths.

Cigarette profits also pay for free substance abuse counseling for any Onondagan at the nation's rehabilitation center, fire protection services by the Onondaga Nation Fire Department, the salaries of the nation's security force and 65 workers at the Onondaga Nation Smokeshop, and home repair grants for nation residents.

If the state insists on taxing the Onondaga Nation's cigarette sales to non-natives, the Onondaga Nation's shop will shut down, and the Onondaga people will become dependent on New York to pay for many basic services, Onondaga Chief Irving Powless said.

"All of the people working at our smoke shop will become unemployed," Powless said. "If they become unemployed, and go on welfare, how much will it cost the state?"

The Onondagas receive state money only for education and health services, Powless said.

Gov. George Pataki's tax department, which had planned to begin assessing wholesalers a $15-per-carton excise tax on cigarettes supplied to Native American vendors beginning Dec. 1, announced this month that the proposed regulation would not become effective before March 1.

The Onondagas say the state's tax plans violate their sovereignty and treaties with the United States, but the U.S. Supreme Court ruled that New York can tax Indian sales to non-native customers.

The Onondagas hope to negotiate a commerce agreement with Pataki before March 1 that would allow them to continue to sell tax-free cigarettes.

The nation's leaders are reviewing a proposal the Onondagas received Oct. 31 from Pataki's administration, said Joe Heath, the Onondagas' lawyer, who declined to comment further on the state's plan.

Sid Hill, the tadadaho, or spiritual leader, of the Haudenosaunee, which includes the Onondagas and five other Native American nations, said the Onondagas have been hoping to meet with Pataki on a number of issues, including taxes, land claims and the environment.

But there have been no meetings between the Onondaga chiefs and Pataki since 1997, the last time Pataki tried to collect taxes on Native American cigarette and gas sales, Hill said.

The cigarette tax issue is perhaps more crucial to the Onondagas' economy than to the economies at some other Indian territories in New York.

The Onondagas'chiefs and clan mothers oppose casino gambling. There is no casino at Onondaga.

"We aren't going to have one," Powless said.

Meanwhile, the Oneida, Mohawk and Seneca nations own casinos, and the Cayugas are negotiating with the state to open one.

Powless, Hill and Onondaga Nation Chief Virgil Thomas, who oversees the Onondagas' smoke shop, declined to disclose how much money the nation's cigarette shop is making.

One cigarette wholesaler estimated the Onondagas sell 20,000 cartons of cigarettes a week - or about $26 million in sales per year. Using that estimate, New York would collect $15.6 million per year in excise taxes if the Onondagas' cigarette sales were taxed.

Hill said the state's politicians who want to end the Onondaga Nation's tax-free business are the same leaders who willingly give other businesses millions of dollars in property tax breaks through the Empire Zone program.

MidHudson News - November 14, 2003
        Mills to introduce bar smoking permits

Saying the new state law that prohibits smoking in restaurants and bars is killing business, Assemblyman Howard Mills of Hamptonburgh next week will introduce legislation to create a smoking license for bars.

Establishments who have to have liquor licenses and for a $100 per year fee, be able to apply for a smoking license.

“The issue for me is choice; I, myself, am a non-smoker,” he said. “I understand the terrible health risks associated with smoking, but I people have the right to make their own choices and that the smoking ban went too far, was too much big government telling people what they have to do and how to live their lives, and I believe that ultimately, it will be found unconstitutional.”

Mills’ legislation would leave it up to the individual if they want to work at a bar with smoking, and to patrons as to if they want to frequent a tavern with a smoking license.

Right now, Mills said people who live close to the border of New Jersey, are crossing state lines to enjoy their smoke in the Garden State where there is no smoking law.

Washington Times - November 14, 2003
        Smoke 'em if you got 'em
        By Betsy Pisik

NEW YORK — The United Nations is perhaps the last public space in New York where one can light up a Camel over coffee, or even a Cuban cigar after lunch. And diplomats from a dozen foreign nations are working to keep it that way.

Earlier this year, New York City passed one of the most restrictive smoking laws in the country. But the statute has done nothing to stop diplomats from lighting up in the delegates' bar and coffee lounges at the U.N. headquarters building, and New York authorities have no jurisdiction to stop them.

U.N. Secretary-General Kofi Annan has tried on his own to ban cigarettes inside the Secretariat building on First Avenue, succeeding mainly in prompting hours of debate in General Assembly committees and lending a defiant pleasure to each strike of the match.

When diplomats protested that only the General Assembly, not Mr. Annan, could outlaw cigarettes, the U.N. legal advisers were called in to study the matter.

The smokers' revolt — which an embarrassed senior U.N. official acknowledges is "petty but compelling," has cast a spotlight upon the peculiar legal status of the organization's six riverfront acres and those who work there.

Legal adviser Bruce Rachkow told the U.N. legal committee last week that under a 1946 "headquarters agreement" between the United States and the United Nations, U.S. federal, state and local laws are binding at the United Nations except where the agreement specifies otherwise.

"Thus ... the recently enacted New York State and New York City laws prohibiting smoking in public places are fully applicable to the headquarters premises," he said.

While committing the organization's intent to abide by local laws, however, the 15-page headquarters agreement also says the headquarters compound is "inviolable" and that law officers will not enter without the consent of the secretary-general or his staff.

Furthermore, Mr. Rachkow said, the delegates have diplomatic immunity, which protects them from prosecution under the city's smoking law.

The situation is substantially different at foreign embassies and consulates — including national missions to the United Nations — which are considered sovereign territory of the countries involved, meaning that U.S. laws do not apply at all.

The fuss over smoking is in some ways reminiscent of the 1997 battles between Mayor Rudolph W. Giuliani and irate ambassadors who refused to pay millions of dollars in parking fines.

But the current mayor, Michael R. Bloomberg, is much less concerned about diplomats' smoking.

"The U.N. is considered international territory, so the laws don't apply," said Jordan Barowitz, a spokesman in the mayor's office, displaying an imperfect understanding of the legal subtleties.

"The mayor believes that secondhand smoke is dangerous and people deserve protection from it as they would any other dangerous substance. It's up to the U.N. to decide on a policy."

Another city official said, "Technically, the United Nations is sovereign ground, but it also, technically, has to abide by local laws. The [U.N.] legal counsel has it right on the money: The laws are applicable, but unenforceable."

U.N. flouting of city laws goes beyond smoking. The landmark Secretariat Building itself, for instance, fails to meet local building codes. Its lack of sprinklers and abundance of asbestos are well known, but inspectors have never visited.

The United States handles most such matters through the State Department and the U.S. Mission to the United Nations, where the office on host-country relations has legal, financial and protocol staffers. The U.S. Mission declined to comment for this story.

The inviolability of the U.N. property has at times been violated, such as last year when an Illinois postal worker protesting North Korean human rights violations jumped the U.N. fence with a handgun and began firing into the air.

He was tackled by U.S. Secret Service agents, who happened to be guarding a visiting dignitary.

Palitha Kohona, a legal expert who runs the U.N. treaty section, said that certain rights had been conferred upon the United Nations under the headquarters agreement.

"The host state has voluntarily given them up. There is an understanding that the local laws will be respected, but not necessarily enforced," he said.

So what is to keep ambassadors from smoking in the elevators? "Peer pressure and the good sense of all concerned," said Mr. Kohona.

Press Republican - November 13, 2003
        Need smoking waiver? Prove it
        Restaurateurs must show 15% loss of business due to prohibition of smoking in the establishment
        By John Milgrim

ALBANY — Bars, restaurants and other businesses could get waivers from the new state smoking ban if they can prove at least a 15-percent reduction in sales since it went into effect, according to the guidelines being considered by state health officials.

The draft guidelines, which have not been made public, offer the first specific criteria for businesses to once again allow smoking on premises.

Anti-smoking groups are already slamming the plans.

Russell Sciandra, director of the Center for a Tobacco Free New York, said the draft guidelines make it too easy for businesses to circumvent the law and that they don’t do enough to protect non-smokers in businesses that would qualify for waivers.

For those who fought the ban, it’s a reason for optimism.

"For business owners who have been suffering the economic hardship caused by the smoking ban, disappointed the legislature hasn’t acted to change the law, this is certainly good news," said Scott Wexler, executive director of the Empire State Restaurant and Tavern Association.

Since the state’s Clean Indoor Air Act went into effect July 24, New Yorkers have remained divided over its consequences.

Scores of tavern owners complained they were being driven out of business, but advocates of the ban argued similar laws elsewhere led to bigger bar and restaurant receipts and healthier people.

Independent polls found the majority of New York voters favored the law, but about half felt there should be revisions.

The law includes a provision for granting waivers to businesses that suffer an "undue financial hardship," but few have been granted because nobody ever clearly explained what "undue" amounted to.

The draft guidelines, dated Oct. 22, are meant to clarify that issue.

"This limbo status, I think, should dissipate quickly," Wexler said.

Meanwhile, the draft is still subject to revisions, officials said.

"It’s a very early draft. There have been revisions since, and we expect there to be more revisions," said Bill Van Slyke, a State Health Department spokesman. "It should in no way be interpreted to be a final document."

Also, state health officials have enforcement power over just 21 counties, leaving it up to other counties whether to adopt the state waiver guidelines or their own.

According to the draft, waivers could be granted under these circumstances:

• The business can show a 15-percent reduction in sales-tax receipts for a three-month period since the ban went into effect as compared to an average of the same three month periods for the previous two years.

• Structural or mechanical improvements were made before the law went into effect — such as air-filtration systems or separate smoking rooms — which resulted in air quality equivalent to a smoke-free workplace.

• Other "exceptional circumstances" resulted in an adverse business impact.

• Safety and security factors exist that make compliance with the ban unreasonable.

In any case, the proposals also make recommendations to minimize the effects of a waiver on non-smokers, such as keeping smoking areas out of the general traffic area of a business.

The state is expected to issue final guidelines in the next few weeks.

Capital News 9 - November 6, 2003
        Half of voters want to soften smoking ban

Half of New Yorkers want the state to lighten up on smokers lighting up.

Fifty-percent of those surveyed in a new Quinnipiac University poll want the smoking ban to be less strict. That's compared to 47-percent who said the smoking crackdown in restaurants and bars shouldn't change.

Post Standard - November 4, 2003
        Bar loses its bid to permit smoking
        By Mike McAndrew

An adult entertainment bar in Salina does not qualify as a cigar bar exempt from New York's smoking ban just because 10 percent of its revenue stems from tobacco sales, Acting Supreme Court Justice James W. McCarthy has ruled.

The owner of Diamond Dolls, 6720 Townline Road, sued Onondaga County's Health Department in August after the county refused to register his bar, which features topless dancers, as a cigar bar exempt from the Clean Indoor Air Act.

The lawsuit was one of the first local legal challenges to the new Clean Indoor Air Act, which prohibits tobacco smoking inside almost every workplace in New York.

Smoking is only permitted in one Onondaga County bar, Awful Al's on South Clinton Street in Armory Square, because it is a cigar bar, according to Health Commissioner Dr. Lloyd Novick.

Even though Diamond Dolls does not sell any cigars, owner Ken Rubin claimed he met the only cigar bar criteria the state Legislature established because 10 percent of his 2002 gross revenue came from sales of cigarettes.

But that mere fact does not transform an adult establishment into a cigar bar, McCarthy ruled.

Rubin, who said an adult entertainment bar in Buffalo has been registered as a cigar bar, said he is considering appealing McCarthy's decision.

Democrat & Chronicle - October 30, 2003
        County Executive candidates don't agree on anti-smoking law
         By Rick Armon

Add the state’s new anti-smoking law to the long list of issues that the county executive candidates disagree on.

Speaking at a debate sponsored by the Monroe County Bar Association, county Clerk Maggie Brooks and Mayor William A. Johnson Jr. offered radically different opinions about the law, which bars smoking in all restaurants and bars statewide.

The law has had a “devastating effect” on businesses and exemptions should be considered, said Johnson, the Democratic candidate. “I think this law has to be revisited.”

Brooks, a Republican, said she favors less government interference with business, but the smoking law is a health issue. She also said the majority of people enjoy going to restaurants and bars without the smoke bothering them so she supports it.

WOKR 13 TV - October 29, 2003
        Bingo Halls Want NYS To "Butt" Out
        By Holly Maynard

Greece, NY - Local bingo halls said the New York State smoking ban that began in July has cost them tens of thousands of dollars that previously went to local schools and charities.

Workers say profits are down 50 percent this month. On a Tuesday night in September 2002 about 143 people played at Bingo World in Greece. Only 79 showed up on the same night this year.

Bingo World has made some changes to help keep smokers. Now there's a ten minute intermission for the smokers to come outside. But workers fear that once the cold weather hits, the smokers would rather stay home than come out in the cold."

The bingo hall has added a 10-minute intermission for smokers, but some players say that once the cold weather comes, they'll go elsewhere rather than standing outside.

Dozens of smokers have already stopped playing. They can't win a lot of money because the pot isn't big anymore.

Until the ban went into effect, Wyona Valcom has played bingo and smoked at Bingo World almost every day for 20 years.

"I won't be here. I will go up to the casinos where the Indians let you smoke. I will go to Canada where they let you smoke. I will go to a country that doesn't infringe on my rights," she said.

The Monroe County Health Department said it has fined one out of the five bingo halls in the area for breaking the rules.

The five bingo halls in the area have asked the health department to waive the ban for them. Officials there said that smoking can only start up in bingo halls again if the law is changed.

No word yet on if that will happen.

Reuters - October 29, 2003
        Smokers at UN Challenge U.N. Chief Annan's Ban

UNITED NATIONS (Reuters) - Smoking diplomats, especially those from Russia, Mexico and the Czech Republic, balked at a new ban against lighting up in U.N. headquarters and demanded Secretary-General Kofi Annan explain himself.

At a meeting of the General Assembly's committee on budget and administration on Wednesday, several delegates questioned the legal basis for Annan to put out such an order without a vote from member states and demanded a legal ruling.

A U.N. official promised one would be forthcoming after an earlier, similar request had been ignored.

``I will make sure, because I am also a smoker, that we will be given our explanations from the secretariat,'' said Ambassador Hynek Kmonicek of the Czech Republic, who is chairman of the committee.

Mexico's envoy brought up the issue and the Russian delegate insisted that the General Assembly's resolution in 2000 prohibiting smoking in some but not all areas was still valid. Therefore U.N. officials had to give a legal explanation of the total ban.

Annan last summer announced that U.N. headquarters, the last bastion of smoking in New York, would begin following the tough new anti-smoking law of its host city.

He cited health reasons and insurance costs in the high-rise building on Manhattan's East River that does not have a sprinkler system, and urged voluntary cooperation.

One of the chief protesters against the ban is Russia's veteran U.N. ambassador, Sergei Lavrov, a chain smoker.

At the annual U.N. correspondents' association dinner on Oct. 22, Nane Annan, wife of the secretary-general, made a point of teasing Lavrov.

``One of your favorite ambassadors has already told you that the 'secretary-general can by all means tell his underlings what to do, but not members of diplomatic missions.''' she said. ``I guess the ambassador must have been fuming at the time.''

NY Sun - October 28, 2003
        $1 Million Campaign Seeks To Sell Smoking Ban
        By Julia Levy

A Washington-based anti-smoking group is pouring $1 million into the five boroughs, aiming to win over New Yorkers who are still against the smoking ban with witty posters and television commercials.

The ads say things like “If they ban smoking in the ballpark, no one will ever by a single baseball ticket ever again. Ever,” “If they ban smoking at JFK, nobody will every fly again. Ever,” and “If they ban smoking on the subway, no one will ever ride it ever again.Ever.”

The ads — paid for by the American Legacy Foundation with money from the 1998 settlement with big tobacco — are being printed in newspapers, posted in the subways, run on TV, and e-mailed into the “in” boxes of New Yorkers, about six months after the city’s ban on smoking in bars and restaurants went into effect.

“It is intended to insert factual data and right thinking into the ongoing dialogue on the streets, in the bars, and restaurants,” said the foundation’s executive vice president of marketing and communications, Chris Cullen.

Mr. Cullen said the ads are supposed to make people think “I’d like to learn more” or “These guys are off their rocker. Who are they?” and then go to www.a-smoke-free-new-york-works.org, a Web site the foundation created to promote the ad campaign, to find statistics about lighting up and what New Yorkers think of the smoking ban.

He said the group could have posted information about the health risks of second-hand smoke all over New York City — but he said people here “don’t need to be preached to about the death and disease brought on by tobacco.” Also, he said, straight, factual ads don’t provoke as much attention.

Pro-smoking advocates say the ads might end up biting the American Legacy Foundation in the foot.

The founder of the Right to Smoke Coalition, Patrick Carroll, said he’s consulting with lawyers and is planning to force the local television stations that have run the commercials to grant prosmokers equal time to prove their point for free.

“If they’re going to tell one side of the story, and tell it in such a ridiculous way, we’re going to fight to get our point of view out,” he said.

Mr. Carroll also said the American Legacy Foundation is comparing “apples to oranges” when it creates a parallel between smoking in an indoor public space like the subways and smoking in an indoor private space like a restaurant.

“If you want to talk about smoking in public, fine, talk about smoking in public,” he said. “I think it’s wrong to compare private property to public domain….This law violates property owners’ rights.”

Despite some objections, most people say the ads are cute and witty — and would probably help New Yorkers accept the state and city moratoriums on smoking in bars and restaurants.

“They’re trying to denude any arguments that the opposition to the smoking ban would make,” said political consultant Hank Sheinkopf. “It’s a funny campaign. It’s clever and it’s well thought out.”

He said it seems like the foundation is trying to isolate smokers, as well as using light humor to make a political point more palatable.

“They’re trying to make it almost folksy,” he said. “By dealing with the issue in a comical way, it makes it easier for people to say, ‘Maybe they’re right.’”

NYC C.L.A.S.H. Note:  "Most" people say the ads ae cute and witty?  Who are these "most?"  A political consultant and who else?  The reaction we've received from non smokers no less is that they're stupid and don't make any sense.  They understand that if you want to get to work you HAVE TO take a subway but nobody HAS TO go to a bar when they can get the same thing at home.

London Telegraph - October 28, 2003
        City of sin runs out of puff
        Emily Bearn is fuming over New York's recently introduced anti-smoking legislation

I have always thought of New York as a city of sin - which, to my eyes, was what made it glamorous. But now that it is forbidden to light a cigarette in any of its bars or restaurants, I wonder if such sentimental ideas might be misplaced.

The new smoking restrictions, which were introduced in March, are impressively draconian: smoking is forbidden in all the places where people have traditionally tended do it - bars, restaurants, nightclubs and pubs (even the Irish ones) - and anyone defying the ban risks a $100 fine or 30 days in jail. Smoking in the street is currently tolerated, but there are hints that parks and benches will soon be no-go areas.

Since I neither smoke nor live in New York I did not expect to be inconvenienced by this. But last month, when I spent one night in Manhattan, I felt its repercussions. I had arranged to spend the evening with a friend from New Jersey, where the restrictions do not apply. She smokes 40 cigarettes a day, which works out at about three for every hour she is awake, though her consumption generally accelerates after about 8pm.

The implications of this struck me at 8.30pm when, halfway through dinner in a Manhattan French bistro, she announced she could hold out no longer. We consulted the waiter, who explained that he could transfer us to a table on the pavement at which smoking was permitted. This idea did not appeal since it was raining. Instead, I followed her out of solidarity as she went to join five other smokers huddled under the restaurant awning.

The ban is reported to have fuelled a jolly camaraderie between nicotine addicts, but everyone just looked thoroughly glum. One man refused to light my friend's cigarette because he said he was down to his last match (which was one match more than the restaurant). We repeated this performance twice more before settling our bill and moving on to a small and endearingly grotty bar near Union Square.

It was here that the profound priggishness of this ban finally struck me. Most of the customers were middle-aged men, and many of them had packets of cigarettes next to their drinks. But every time they wanted to light up, they went outside, and stood in the rain. This might not have looked odd in Stockholm - or even California, where smoking in restaurants and bars has been illegal for years. But in New York, where we are led to believe that anything goes, it seemed oddly pathetic.

Given time, we could probably have found somewhere more congenial to go than the pavement. Illicit smoking clubs and speakeasies are apparently flourishing, but since neither of us was in school uniform it seemed absurd to go "underground" to light a cigarette. Above ground, various consolations can be found. Jerry's Restaurant in SoHo provides customers with free nicorette chewing gum, while at the Serafina Sandro restaurant in Manhattan, the chef, Sandro Fioriti, has resorted to cooking with tobacco.

According to NYC CLASH (Citizens Lobbying Against Smoker Harassment), the issue embraces more than tobacco: "This is not about cigarettes," explains a spokesman. "This is the beginning of a wave by a politically correct means to dismantle New York City. Today it's cigarettes. Tomorrow hamburgers and booze."

That is slightly strong. The ban is intended simply to protect people's lungs. And yet I found it had the reverse effect. I felt so roused by my friend's determination to smoke and be damned that, by 10pm, I had decided to join her.

Buffalo News - October 25, 2003
        Senecas pursuing firm to avoid tobacco taxes
        By Tom Precious

ALBANY - The Seneca Nation is preparing to create its own tobacco wholesale business to prevent the state from cracking down on untaxed Indian cigarette sales.

The Seneca plan would keep the low cigarette prices at reservation stores about where they are now. It is unclear how gasoline prices would be affected.

Seneca leaders have been exploring wholesale options, including buying a large Salamanca tobacco wholesale company, A.D. Bedell. The firm's top executives are facing trial next month on federal charges that they engaged in a massive tobacco smuggling operation.

The Seneca plan comes as a new state regulation is set to kick in Dec. 1, requiring cigarette wholesalers that supply Indian retailers to prepay the state taxes the Senecas have refused to collect from their customers.

One Seneca source, speaking on condition of anonymity, said the nation believes the state can't directly tax a Seneca business. If the nation owns a tobacco wholesale business, some Senecas believe, the state could not enforce the new regulation on cigarettes heading from their wholesale firm to Seneca retailers.

The tribe is exploring a Seneca tax stamp to be affixed to each pack of cigarettes sold at reservation stores. Cigarettes sold at Indian stores, unlike off-reservation retailers, have no tax stamp on them now.

Seneca President Rickey Armstrong was unavailable to comment.

Seneca negotiators met with Pataki administration tax officials a couple of weeks ago to discuss the idea. State officials said Friday the Dec. 1 implementation of the law could be pushed back if talks with tribes are progressing.

The tax idea being pursued by some Seneca leaders stands in sharp contrast to a plan being pushed by another tribe. The Oneida Indian Nation is close to signing a compact with the Pataki administration to allow the nation to collect its own taxes on cigarettes and gasoline on its Central New York reservation. The state would collect no taxes on Oneida cigarettes and gasoline, but the tribal tax would increase the price to a level closer to that charged by nearby non-Indian retailers.

Seneca sources said there is no plan to sharply increase their cigarette prices to bring them into parity with non-Indian retailers who have been demanding tax fairness.

That would disappoint non-Indian retailers, who have seen their business drop off as the state in recent years has raised tobacco taxes that the Indian retailers don't charge.

Treaty rights

Seneca members say treaty rights give them the authority to create their own tax stamp system.

One Seneca leader said the system would allow the nation to oversee how cigarettes are distributed on reservation land.

"This would allow us to clearly regulate commerce on our own territory," the source said, speaking on condition of anonymity. It would also cut down, the Seneca member said, on smuggling of unstamped cigarettes.

But a leader of a group pressing for tobacco tax parity insists the Senecas would not be able to use their own wholesale firm to bypass the tax rules. Dan Finkle, a Fulton County cigarette wholesaler and spokesman for Fair Application of Cigarette Taxes, said the proposed rules require firms to be licensed by the state in order to place tax stamps on cigarettes.

"I just don't see how it gets around anything," Finkle said.

The proposed tax rules require that distributors sell Indian retailers only cigarettes that are affixed with state tax stamps. Distributors prepay the state for the stamps, which would then force them to raise the prices they charge Indian retailers.

The Pataki administration would not discuss the Seneca plan.

"We are not going to comment on any negotiations that may or may not be taking place," said state Tax Department spokesman Tom Bergin.

Public relations battle

The issue arises as the Senecas have also been turning up the public relations battle against the state's tax plan. This week, a Seneca-funded poll was released supporting their position, and next week the nation plans to unveil an ad campaign criticizing the state's proposed tax regulations.

Earlier this week, some employees at Bedell, the Salamanca wholesaler, were told of the Senecas' interest in the company, a Seneca member said.

Bedell is one of the larger cigarette wholesalers in Western New York. It employs about 65 people and supplies cigarettes to numerous retailers in the region, including Indian smoke shops.

The company; its owner, Page Martin; and two of Martin's top aides are facing prosecution for allegedly smuggling of millions of dollars in untaxed cigarettes in the 1990s. Jury selection for the trial is scheduled to begin Nov. 4 before U.S. District Judge Richard J. Arcara. Martin did not return calls to comment.

In 1999, 31 people, including the Bedell officials, were indicted by a federal grand jury in Buffalo. The indictment alleges that a smoke shop on the Seneca Nation's Cattaraugus Reservation was used as a "front" to allow Bedell to illegally sell untaxed cigarettes to businesses in Western New York and Michigan run by people who were not Native Americans.

Eleven people have taken plea deals in the case, and federal court sources said a possible plea deal is being discussed with Bedell and its officials.

"Jury selection is tentatively set to begin on Nov. 4, and beyond that, I wouldn't comment," said Martin's attorney, Joel L. Daniels, when asked about a possible plea deal. He also declined to comment about whether Seneca officials have expressed interest in buying the company.

Trial, forfeiture pending

A $70 million forfeiture action, filed by federal prosecutors against defendants in the case, is also pending.

The Indian tax issue has been brewing for more than a decade, but has intensified as the state's tobacco tax rate has sharply climbed the past several years. On top of sales taxes, the state excise tax, which Indian retailers don't collect, is $1.50 per pack. The pricing mismatch has led to a boom in Seneca smoke shops and has made the Seneca merchants the kings of Internet tobacco sales.

The U.S. Supreme Court in 1994 backed the state's authority to collect the taxes. Under pressure from convenience store operators, Gov. George E. Pataki at first tried to collect the taxes; he backed down in 1997 after a series of violent protests by Senecas and other Indians along the Thruway.

As part of its 2003 state budget plan, the Legislature this spring ordered the Pataki administration to devise regulations to begin collecting taxes on tobacco and gasoline sales by Indians to non-Indians.

Driving issue

Driving the Legislature's action, in a year with the state facing multibillion-dollar deficits, is money. Lawmakers believe forcing an end to untaxed sales by Indian retailers will bring the state $165 million this year and $330 million next year. But the Pataki administration believes it will be worth only $20 million this year and $64.5 million in 2004.

Post Stamdard - October 24, 2003
        Bars cited on smoking violation
        Nine establishments are warned that repeated offenses may mean fines.
        By Mike McAndrew

Nine Onondaga County bars have been notified that they have violated the state law that prohibits smoking in workplaces, county health department officials said Thursday.

The taverns were notified in letters this month that repeated offense could result in the health department scheduling hearings to determine if fines should be imposed. Businesses can be fined up to $1,000 for each violation.

The law took effect July 24. The nine bars are the first businesses in the county to receive formal smoking law violation notices. The health department had been giving businesses verbal warnings if patrons complained about smoking.

Cited for violating the law during inspections Sept. 29 were:

AMCA Inc., owner of Alex's Grill, 316 Wilkinson St.; Tony Cerio Bar Corp., owner of Cerio's Tavern 1711 Grant Blvd.; Nipalex Enterprises Inc., owner of JP's Tavern, 109 Syracuse St., Baldwinsville; and Zip's Tap Room Inc., owner of Zip's Tap Room, 1707-1709 Burnet Ave.

Cited for violating the law Oct. 9 were:

Baldwinsville Moose Lodge 644, 85 E. Genesee St., Baldwinsville; Roberts Tavern Inc., owner of The End Zone, 110 Old Liverpool Road; Liverpool; C.T.P. Enterprises Inc., owner of Shaughnessy's Pub, 300 Robinson St.; Timothy D. Barlow Enterprises, owner of Felton's Ale and Spirit House, 1801 Butternut St.; and Patrick W. O'Connell, owner of O'C Tavern, 1227 Milton Ave.

Gary Sauda, director of the health department's environmental health division, said that no hearings have been held and no businesses have been fined for violations of the smoking law.

Tavern owners throughout the state have complained bitterly about the law, claiming that it will hurt their business.

"We took a phased approach on the smoking law. We've given the operators and the public time to understand the law and make adjustments," Sauda said. "We're at a point now where there's been sufficient time for understanding of what's required. We will take enforcement action if necessary."

Associated Press - October 24, 2003
        Many warnings, few citations under new smoking ban
        By Michael Hill

ALBANY, N.Y. -- Aggressive enforcement of New York's three-month-old indoor smoking ban has been held off in many areas to give early offenders a chance to comply.

The wide-ranging ban, which went into effect July 24, prohibits smoking in businesses ranging from bars to banks to warehouses. Many bar and restaurant owners have been hostile to the law, calling it a business killer that is nearly impossible to enforce.

Despite some 1,700 complaints received since the law went into effect, a number of county officials charged with enforcing the law said this week they are warning violators before handing out formal citations.

"Public health is educating first," said Tom Micelli, director of environmental health for Rockland County. "And when efforts to educate fail, then we go ahead with enforcement actions."

A number of health officials said violators have heeded initial warnings to snuff out on-premises smoking _ heading off a formal violation notice, which can lead to hearings and fines of $1,000 to $2,000 per violation. Among the counties reporting no formal violation citations as of this week were Albany, Erie (Buffalo), Rockland and Westchester.

"We're not looking to put people out of business," said Erie County Health Department spokesman Kevin Montgomery. "We want them, obviously, to be acquainted with it."

No statewide tally of violations exists since most counties enforce the ban on their own. The state Health Department handles those duties in 21 counties lacking full-service health departments, and reported four enforcement actions in those counties.

Onondaga County handed out its first violation notices to three bar/restaurants on Friday, said Lisa Letteney, the county's director of environmental risk assessment. Nassau County reported 25 violation notices while Suffolk County had 19.

New York City, which has ticketed more than 500 businesses under its own citywide smoking ban, did not provide information on its enforcement of the state ban.

A bar outside of Rochester was fined $200 and the owner of a barbecue restaurant and bar in Batavia said he expects to be fined $4,000.

In the Saratoga Springs areas, Connie's Roadhouse was cited for a smoking violation there on Sept. 13, though owners are fighting the charge through the hearing process.

Roadhouse manager Connie LaRock was critical of the charge, but said they also decided to fight on principle against a law that is "taking away our rights." She complained that the ban is difficult to enforce when the roadhouse fills up, since people could be sneaking a cigarette out of view.

"If I see a haze of blue smoke coming out of the bathroom," she said, "hey, that ain't my territory."

The Empire State Restaurant and Tavern Association is leading a lawsuit against the ban, which they claim is unconstitutionally vague and financially onerous. A federal judge in Syracuse this week rejected their request for a preliminary injunction to block enforcement of the law.

On a separate track, hundreds of bars and other businesses around the state have sought waivers that would excuse them from the ban. State health officials say five waivers have been granted so far, two of them in New York City.

Two more were granted to upstate manufacturing facilities: Kodak in Monroe County and MT Picture Display Corp. of America in Chemung County. In each case, county officials said one factor in their decision was the sprawling nature of the facilities.

"It took the average person probably eight minutes to get from their workstation to outdoors," said Chemung County director of environmental health Thomas Kump.

Kodak received a 3-year waiver; MT's expires at the end of the year.

Monroe County also granted a one-time waiver for a local theater's production of "Biloxi Blues" to allow actors to smoke on stage. The play was booked before the law went into effect, a county official said.

Associated Press - October 22, 2003
        Federal judge refuses to block state smoking ban law

SYRACUSE, N.Y. (AP) - A federal court judge on Tuesday upheld the state's new smoking ban, rejecting the arguments of a group of bar owners that it is unconstitutionally vague and places undue financial hardship on businesses without any adequate recourse.

The Empire State Restaurant and Tavern Association and seven individual bar owners were seeking a preliminary injunction to block enforcement of the new law, which went into effect July 24 and bans smoking in bars, restaurants and other workplaces.

However, U.S. District Judge Lawrence Kahn said in a 14-page decision that the plaintiffs had failed to establish that the law would create irreparable harm and that their lawsuit had little chance of success.

"We applaud the judge on his decision," said Marc Violette, a spokesman for the state attorney general's office.

"It is a decision that supports the state Legislature and the governor's efforts to improve health conditions for workers in bars, taverns, restaurants and elsewhere. It's the right decision," Violette said.

Scott Wexler, the executive director of the restaurant and tavern association, said his organization had been hopeful of a favorable ruling, but not optimistic.

"We still think we have a strong case on the merits and we look forward to expanding our discussion of the issues," said Wexler, adding that Kahn's ruling would help the organization sharpen its focus as it continues to pursue the lawsuit and also seek legislative relief.

The association and bar owners challenged the law on several grounds during arguments before Kahn in Syracuse on Sept. 9.

Association attorney Kevin Mulhearn argued that the new law was unconstitutionally vague in distinguishing bars from food service establishments, leaving both owners and patrons confused about when and where it applies.

Kahn ruled the law provided adequate distinction.

"The court finds that the owners of New York state establishments are sufficiently capable of determining whether their business is one which the service of food is merely incidental to the service of alcoholic beverages," the judge wrote.

Noting that state law requires "no smoking" signs to be prominently posted, Kahn went on to say the bar owners "present(ed) no reason as to why a patron could not simply walk into an establishment and ask whether smoking is permitted."

In establishing the ban, lawmakers gave local health departments the authority to grant waivers if compliance caused a business undue financial hardship or was otherwise unreasonable.

Mulhearn said some bars and restaurants have reported losing 50 percent of their business. Meanwhile, he said, lawmakers failed to provide any criteria or guidance for granting such waivers. As proof of that failure, Mulhearn noted that only a handful of waivers had been granted and only a few counties had even established a waiver process.

Kahn, though, ruled that "the legislature provided the degree of guidance necessary to render the waiver provision constitutionally permissible.

"The failure to exercise this responsibility ... is a problem of enforcement and not a problem with the statute itself. Plaintiff's proper recourse ... is to challenge this failure to enforce the statute rather than to challenge the statute itself," Kahn wrote.

Wexler said the association would follow up on the judge's suggestion.

Even though Kahn upheld the waiver provision, the state health department plans to issue more specific criteria to local agencies next month, said spokesman William Van Slyke.

Kahn also said bar and restaurant owners would have to show more than "a mere possibility of irreparable harm" and that when it came to balancing adverse business consequences and adverse physical health effects, the scales were tipped in favor of good health.

The tavern association also argued the law should be thrown out because tobacco smoke in the workplace already was regulated by the U.S. Occupational Safety and Health Administration and the federal law superseded the state law.

Kahn rejected that argument.

"While OSHA has established standards for the regulation of a number of toxic and hazardous substances, some of which are included in tobacco smoke, OSHA has not promulgated any standards or regulations pertaining to tobacco smoke as a whole."

"Simply put, regulation of each of the parts should not be construed as regulation of the whole," he said.

Post Standard - October 22, 2003
        Bar owners fail to halt smoking-ban enforcement
        By Mike McAndrew

A federal judge on Tuesday dashed the hopes of two Syracuse tavern owners who joined bar owners statewide in a suit to keep the state from enforcing a ban on smoking inside bars and other work sites.

Owners of Dodester's and Murray's, and the Empire State Restaurant and Tavern Association, failed to demonstrate it is likely they can prove the state's new Clean Indoor Air Act is unconstitutional, U.S. District Judge Lawrence Kahn ruled.

Kahn rejected their request for a preliminary injunction to stop New York from enforcing its new smoking law.

The decision does not end the suit filed by the Empire State Restaurant and Tavern Association and six bars, including Murray's and Dodester's in Syracuse. But it means that the state and county health departments can continue to enforce the ban on smoking at workplaces while the lawsuit is argued.

"I'm pretty mad. The state, the county health department, everyone is working against us," said Barb Murray, a co-owner of Murray's, a bar at 2722 Burnet Ave.

The ruling was hailed as a victory against secondhand smoke by the state attorney general's office and the American Cancer Society.

Kahn's ruling "is a step toward upholding the constitutionality of a law that seeks to improve working conditions for those who work in restaurants, taverns and other public places," said Marc Violette, speaking for Attorney General Eliot Spitzer.

"We're not going to give up," said Caren Snyder, co-owner of Dodester's, a tavern at 2426 South Ave.

"If we don't win, many bars are going to go under," added Dodie Buies, her business partner.

Scott Wexler, executive director of the restaurant and tavern association, said he hoped Kahn would decide the entire suit by March.

Sherry Tomasky, a regional advocate at the cancer society's office in East Syracuse, said the judge's decision shows that protecting employees and the public from secondhand smoke is more important than economic concerns of the bars.

Sue Murray, a nonsmoker who is co-owner of Murray's, said she doesn't feel any healthier since the law became effective July 24.

"I had smoke eaters in here, all that kind of (ventilation) stuff. The smoke never really bothered me," she said. "But the stress of all this is making us owners feel less healthy. They're taking away secondhand smoke, but they're giving us stress."

The taverns claim in their suit that the law is unconstitutionally vague because the legislature did not establish criteria for granting waivers to employers facing undue financial hardship because of the smoking ban.

Last week, the Onondaga County Health Department, which had refused about 25 waiver applications, issued its own criteria for applying for a waiver based on an undue financial hardship claim.

The taverns also claim the law conflicts with a federal Occupational Safety and Health Administration regulation that sets permissible levels of employee exposure to various hazardous substances, including those found in tobacco smoke.

Kahn said the plaintiffs did not show it is likely they can prove their case.

He did not address the tavern owners' claim that the law is causing their businesses irreparable harm.

The judge said the fact that the state health department and local county health departments have refused to consider waiver applications does not make the law unconstitutionally vague.

The failure to consider waivers is "a problem of enforcement and not a problem with the statute itself," Kahn wrote.

The restaurant and tavern association is considering amending the lawsuit by naming as defendants Onondaga County Health Department and other health departments that have denied waiver applications, Wexler said.

New York Law Journal - October 22, 2003
        New York State's Smoking Ban Wins Round in Federal Challenge
        By John Caher

New York's controversial new indoor-smoking ban withstood its first constitutional challenge Tuesday, when a federal judge suggested that if the tough law is overly burdensome, it is the fault and problem of local governments and perhaps the state Health Department, but not the state Legislature.

Northern District Judge Lawrence E. Kahn said that the legislation enacted March 26 is not necessarily as Draconian as opponents claim, but that localities should assume the burden placed upon them and establish reasonable enforcement criteria. So far no locality has done that, and Senate Majority Leader Joseph R. Bruno, R-Rensselaer County, has come under intense criticism for championing the new law. On Monday Kahn suggested that criticism is misdirected.

Empire State Restaurant and Tavern Association v. New York State tested the constitutionality of Chapter 13 of the Laws of 2003, which regulates smoking in bars, restaurants, workplaces and many other indoor locations, including bingo halls and company-owned cars and trucks. The challenge contended that the law was unconstitutionally vague and preempted by federal law. Judge Kahn rejected both arguments.

The preemption argument relied on the claim that the federal Occupational Safety & Health Administration (OSHA) regulates environmental smoke in the workplace. Kahn disagreed.

"While OSHA has established standards for the regulation of a number of toxic and hazardous substances, some of which are included in tobacco smoke, OSHA has not promulgated any standards or regulations pertaining to tobacco smoke as a whole," he wrote. "Even more telling ... the United States Secretary of Labor spent a number of years exploring the issue of whether to develop national workplace tobacco smoke standards and ultimately decided not to promulgate standards."

Additionally, the plaintiffs argued that Chapter 13 was unconstitutionally vague in that it fails to adequately distinguish a "food service establishment" from a "bar." They also targeted the so-called "waiver" provision allowing local authorities to waive specific provisions of the law to prevent "undue financial hardship," or if compliance would be "unreasonable" under the circumstances.

Kahn rejected both vagueness claims.

The court said the statute directs state and local health departments to seriously consider waivers, and the fact that those entities "have publicly stated a blanket refusal to consider waiver applications" suggests a neglect of delegated duty rather than a flaw in the statute. Local authorities have refused to issue waivers because there is no statewide criteria, and they are reluctant to establish local criteria, despite the legislative mandate. That in itself, the plaintiffs claim, demonstrates vagueness.

Kahn said the Legislature quite clearly "showed its intent to mitigate the potentially harsh effects of the law," and it is up to local enforcement officers and, in some instances, the state Department of Health to fulfill that intent.

"Their failure to do so is a problem of enforcement and not a problem with the statute itself," Judge Kahn said. "Plaintiffs' proper course, it follows, is to challenge this failure to enforce the statute rather than to challenge the statute itself."

Kevin T. Mulhearn of Rockland County and George H. Lowe of Bond, Schoeneck & King in Syracuse represent the plaintiffs. Assistant Attorney General Charles J. Quackenbush appeared for the state defendants.

The indoor-smoking ban is widely viewed as one of the toughest in the nation as it bans smoking in virtually all public places.

Although the bill was passed by both houses of the Legislature and signed into law by Governor George E. Pataki, Bruno has weathered the bulk of the criticism, much of it coming from his normal allies, like the state Conservative Party and business groups. In recent months, Bruno has been attacked relentlessly and is currently the target of a mocking ditty that is frequently played on talk radio.

Bar and restaurant owners have mounted an intense lobbying effort to repeal or revise the law.

Times Union - October 22, 2003
        Court upholds ban on smoking
        Albany -- Federal judge won't grant injunction, but warns state about its vague criteria for waivers
        By Brendan Lyons

The state's controversial smoking ban withstood its first legal test Tuesday as a federal judge in Albany ruled the 3-month-old law is constitutional.

Bar and restaurant owners who contend the ban ruined their profits sought a temporary injunction. But in his ruling, U.S. District Judge Lawrence E. Kahn said that the loss of business did not outweigh "adverse physical health effects."

However, near the end of his 14-page decision, Kahn hinted the ongoing court battle over secondhand smoke is not over because the state has failed to set criteria on how waivers should be given to certain businesses.

Kahn said the state Legislature intended for the law to provide exceptions for bars or restaurants that relied overwhelmingly on people who smoke. But critics contend almost no waivers have been granted because the state has not established criteria for when the exemptions should be granted by individual county health departments.

"Their failure to do so is a problem of enforcement and not a problem with the statute itself," Kahn wrote. "Plaintiffs' proper recourse, it follows, is to challenge this failure to enforce the statute rather than to challenge the statute itself."

Kahn's ruling snuffed the association's request for an injunction that would have put the ban on hold while the lawsuit unfolds. But his denial was based on the merits of the case, and rulings on an injunction request are often a precursor to a final decision, legal experts said.

Scott Wexler, the executive director of the 5,000-member Empire Restaurant and Tavern Association, which filed the lawsuit along with four tavern owners from across the state, admitted Kahn's ruling was a major setback.

The real legal test may unfold a few months from now as the bar group is expected to focus its legal attack on the inability of individual counties to grant waivers.

"We're disappointed the judge's comments on the merits of the case are not more encouraging," Wexler said. "But he steers us, if you read the decision, to kind of challenge the implementation of the section. ... We'll be able to sharpen our focus on the point that the law is unconstitutional as written because the departments of health don't have the ability to implement it."

The law went into effect July 24, and many bar and restaurant owners claimed they were being driven out of business because their smoking customers abandoned them. Others have supported the ban, saying business remained steady or picked up slightly when smokers were forced to light up outside.

The same month the law went into effect, state health officials said they did not believe the no-smoking law allowed any waivers. But they subsequently admitted that was a mistake and left it up to county health departments to decide if a business should be exempt.

Many business owners lined up seeking the exemption, but local health officials said they were confused and could not grant waivers until receiving more guidance on what criteria should be used to determine which bars get them.

So far, one of the few exemptions has been granted to a Kodak Corp. plant in Rochester, where county officials said it would be dangerous to make workers smoke outside because of the plant's chemical fumes.

The lawsuit now moves to its next phase, which may include additional hearings in U.S. District Court during which the restaurant association will bring up examples where counties have failed to grant waivers.

"As we go forward here and counties start to do this and more counties start to call on the state to cite the criteria, we may be able to persuade Judge Kahn ... to render a different decision," Wexler said.

Marc Violette, a spokesman for state Attorney General Eliot Spitzer, whose office defended the state in the lawsuit, said the agency is pleased with Kahn's decision.

Anti-smoking advocates, also, hailed the decision.

"It's time that tavern owners stop trying to kill a law that protects the health of their employees and their patrons and start focusing on developing marketing plans to make their venues attractive to the nonsmoking majority, for whom bars have for so long been an unhealthy, inhospitable environment," said Russ Sciandra, director of Center for a Tobacco Free York.

Observer Dispatch - October 22, 2003
        Area businesses get fined in smoking sweep
        By Letrell D. Crittenden

UTICA -- Almost half the businesses inspected during a two-day sweep by the Oneida County Health Department were not in compliance with the state's new smoking ban, department officials said Tuesday.

Health inspectors searched 16 Utica-area business Thursday and Friday of last week to check for compliance of the ban, which was enacted July 24, said Susan Batson, the department official who oversees the ban.

Of those businesses inspected, seven were not in compliance.

Each business was fined $250 and three more were fined an additional $50 for not posting "No Smoking" signs, Batson said.

Batson would not confirm if more inspections are forthcoming.

Owners of two of the bars not in compliance -- B & M Roadhouse on Oriskany Street in Utica and LJ's Sports Bar on Kirkland Street in Utica -- acknowledged they didn't enforce the ban, but said they will now crack down.

But its not because they agree with the law.

"I can't keep paying the fine," said Marie Marshall, owner of the Roadhouse.

Since the ban was enacted, Marshall said her bar has lost about half its customers.

George O'Dell, owner of LJ's, said he's lost about $100 a day since the ban.

Neither is thrilled, claiming the ban has driven away customers that usually smoke at bars.

"I think it's an invasion of privacy," Marshall said. "It should be up to the owners."

Both also raised concerns regarding customers who do choose to smoke outside.

Marshall said smokers create a mess of cigarette butts around her business.

Batson said none of the owners would have to worry about losing customers if all businesses would comply with the ban.

Nadine Baker, media relations director with the American Cancer Society in Utica, said she sympathizes with the business owners' concerns.

Keeping people away from second-hand smoke, however, trumps any business concerns, Baker said. "It's only about health," she said.

Business owners against the ban received more disheartening news Tuesday.

A federal court judge upheld the smoking ban, rejecting the arguments of a group of bar owners that it is unconstitutionally vague and places undue financial hardship on businesses.

The Empire State Restaurant and Tavern Association and seven individual bar owners were seeking a preliminary injunction to block the law banning smoking in bars, restaurants and other workplaces.

U.S. District Judge Lawrence Kahn said the plaintiffs had failed to establish that the law would create irreparable harm.

If business doesn't pick up for O'Dell soon, he said he probably won't renew his liquor license when it expires in December.

Marshall won't shut down, but remains frustrated.

"It's just not fair," she said.

Times Union - October 19, 2003
        Indians contest new state levy
        Reservations prepare to act against threat to smoke shops, gas stations
        By James M. Odato

AKWESASNE RESERVATION -- Within the small territory the Mohawk Indians call home, the talk centers on fears of widespread job losses and rebellion.

The rumble is constant on state Route 37, along which Mohawk businesses announce deep discounts on cigarettes and gas.

"Remember the Boston Tea Party?" asked Eli Tarbell, who runs the Bear's Den, a gas station, smoke shop, gift store and restaurant complex marking 50 years at the St. Regis Mohawk Tribe's reservation in Hogansburg. "There's going to be retaliation of some sort."

With their heavy reliance on tribal stores for jobs and revenue, the Mohawks are among eight tribes ready to protest the state's plan to roll out its first taxation of Native American businesses on Dec. 1.

The Legislature is counting on the taxes for hundreds of millions of dollars to help close budget gaps. The state Department of Taxation and Finance, however, estimates only $20 million this year and $64.5 million next year.

Indian governments and entrepreneurs say taxation would hurt their competitive edge, ruin tribal economies and infringe on Indian sovereignty. On Oct. 3, representatives of tribes from western New York to Long Island gathered in Syracuse to discuss a response.

To start, tribes are sending letters to the state Department of Taxation and Finance expressing united opposition to the tax regulations and demanding a public hearing.

That won't be the only action. The Seneca propose a lawsuit. Tarbell and other Mohawks are about to erect a dozen signs and billboards blasting state officials.

And more dramatic options -- from closing highways to withholding the state's share of tribal casino revenue -- are being discussed, said Tarbell and others.

Such tactics hearken back to past confrontations, such as those in 1997 when Indians burned tires and blocked traffic on highways in western New York.

"This is yet another battle in the ongoing battle of the last 20 years, and Indians in New York have demonstrated in the past a considerable willingness to resist the state's taxation efforts," said Robert Porter, the former attorney general for the Seneca nation and now a law professor at Syracuse University College of Law and director of the Center for Indigenous Law, Governance and Citizenship.

Other states have made pacts with Indians to resolve tax issues. Earlier this year, Gov. George Pataki negotiated a price parity deal with the Mohawks, part of a package to resolve land claims and authorize casino compacts. State officials viewed it as a model for more tribal deals.

The plan called for the Mohawk government to collect taxes on sales to non-Indians and keep the money for tribal use. It would force prices to rise and address the complaint from non-Indian stores that they can't compete with reservation shops. Existing Mohawk stores doing less than $2 million in sales would be exempt.

But just days after Mohawk chiefs and Pataki agreed to the deal, the Legislature passed a budget requiring Pataki to collect taxes from Indian retailers. Then, in July, the tribe elected a new council that opposed the parity deal.

Now, New York is about to enforce a tax law that sends the new taxes to Albany. And the new council has no deal to expand the existing reservation casino and allow a Catskills casino to be built.

The taxes, which would apply to motor fuel and tobacco, would be paid by wholesalers in advance. Indian customers would get coupons entitling them to tax-free goods; wholesalers would collect tax rebates from the coupons.

On other goods bought from Indians, non-Indian taxpayers will be on an honor system that asks them to pay the sales tax with their income tax.

Mohawk Chief James Ransom called both the earlier parity deal and taxation "unacceptable." He and the other chiefs are angry the state came up with new tax rules without consulting Indians.

Adding to their fury, the state said the new regulations would have no adverse effect on jobs. The tribe's economic studies found 586 employees, including 400 Native Americans, will lose $15 million worth of jobs at tribal businesses under the tax rules. The tribe also would lose fees paid by retailers on cigarette and gasoline sales -- revenues that help fund the tribal government and support housing, education and social service programs.

Other New York tribes have a similar reliance on smoke shops. Joseph Heath, a lawyer for the Onondaga Indian Nation near Syracuse, said the sole smoke shop run by the tribal government largely pays for all the tribe's programs, from a fire department to assistance programs for elderly people and heating stipends.

The tribe's leaders have pledged to fight state taxation. One chief has mentioned erecting a toll booth on the state highway to counter the costs of taxation.

Resistance to the law could be statewide among all six Iroquois nations, Tarbell said. "We've got brothers on both sides of (Route) 81. We've got brothers on both sides of the Thruway and on both sides of the (St. Lawrence) Seaway," he said.

He said 90 percent of the 19 gas stations and 23 cigarette shops in Mohawk territory would close if taxation or tax parity is enforced. The economic hardship could be felt throughout the North Country, said Chief Barbara Lazore, because jobs tied to the tribal economy could be lost.

The Mohawk shops charge less than $26 for a carton of brand cigarettes, about half the price at non-native stores; gasoline is 10 to 12 cents a gallon lower. Mohawk businesses can afford full service staffs, including gas pumpers.

"I couldn't find a job off the reservation for nothing. There's more work in this area than anywhere else," said Chad DeLosh, 25, a non-Indian earning $5.75 an hour as an attendant at Okwarine Gas Station and Sago Smoke Shop.

DeLosh said the salary pays his bills, including his own apartment costs. Without the incentive of lower prices, customers would likely stay off-reservation, he said.

In western New York, tax-free cigarette sales are particularly vibrant at the Seneca reservation's stores. Several independent operators, many of them tribal council members, pay no fees to the tribal government. They plan a lawsuit to block the new law.

Some council members have spoken about withholding the state's share of the Seneca Niagara Casino's slot revenues, though it would place the Senecas in violation of their gaming compact.

"We're trying to get the (tax) commissioner to not issue the regulations," said Joseph Crangle, lawyer for smoke shop operators.

Charles Carrier, a spokesman for Assembly Speaker Sheldon Silver, D-Manhattan, said lawmakers expected tribal opposition, but the tax laws are meant to treat all retailers the same.

"If the regulations are adopted as proposed and ... are fully and fairly implemented, this will be a big step toward achieving the level playing field that we have been seeking," said James Calvin, executive director of the New York Association of Convenience Stores. The 5,000-member association has unsuccessfully sued Pataki to get him to impose state tax rules on Indian stores.

Pataki has resisted, citing his right to use his discretion, and experience. In 1997, the governor worked out tax parity deals with various tribes, but tribal unrest flared. Tire fires were set on the Thruway along the Seneca reservations, and Pataki backed off.

This year, Pataki warned the Legislature's mandate to collect taxes on Indian sales would be seen as an attack on tribal sovereignty and have "devastating consequences for the state's relationship with Native Americans."

Pataki still has one out: The proposed regulations allow agreements worked out between the state and tribes to take precedence over the new rules. The Legislature did not specifically allow for the negotiated deals, but Carrier said the proposed rules are within the intent of the legislation and that the Legislature would likely have to authorize any parity deals.

The Oneidas hope they accomplish such an agreement before the state triggers the new rules. A parity deal appears imminent, calling for the Oneidas to add additional tribal taxes on goods sold at the tribe-owned reservation stores so that they would be on par with the state taxes, said tribal lawyer Eric Facer.

The Oneida government would keep all the taxes for tribal services, he said.

Post Standard - October 19, 2003
        Smoking fuels flames amid Senate leaders
        By Erik Kriss

Senate Majority Leader Joseph Bruno, R-Brunswick, has faced a barrage of complaints for pushing through the statewide smoking ban earlier this year. The latest one is musical.

"Smoke This, Joe Bruno," a hard-driving, bluesy number by the Lawn Sausages, hit the airwaves in Albany late last week.

And Senate Minority Leader David Paterson is suspected of playing a part.

"I may or may not be one of the Lawn Sausages," said Paterson, who demonstrated his performing prowess in June during an annual theatrical state political roast.

A Manhattan Democrat and non-smoker who said he "can't stand it, quite frankly" when second-hand smoke is around him, Paterson nonetheless declared the state went too far with the ban and suggested politicians find middle ground.

"It's killing jobs, it's killing business," said Paterson, who voted for the ban in March. He called the unhappy tavern and bar owners who converged on Albany for the Senate's Sept. 16 special session "ordinary people, not lobbyists."

Some excerpts from the new song:

"They say Uncle Joe used to smoke a couple packs a day / But now that he's a senator, he's got the nerve to say/ 'You can't smoke in restaurants, you can't smoke in bars, you can't even puff one in a corporate car.'

Chorus: "Smoke this, Joe Bruno, smoke this, Joe Bruno, smoke this, Joe Bruno, smoke this!

"Now I don't even smoke; I don't care if you do / But how many more rights can they take away from you? Now hard-working folks like to smoke while having a couple beers / If smokin' Joe had his way, he'd pull those cheers.

"Now smokers are taxpayers; they've been treated like mutts / Next election year, they're gonna blow smoke right up your butt."

Post Standard - October 19, 2003
        Effect of smoking ban still hazy
        Hard data lacking on new law's impact on Central New York's tavern industry.
        By Mike McAndrew

Nearly three months after New York banned smoking in all places of employment, many tavern owners insist the law is killing their businesses.

No statewide studies have been published on the economic impact of the law, however, and no set of data proves the question one way or another.

There is some early data that lend support to the bar owners claims.

Quick Draw - the state Lottery game that is popular in bars - is making less money per terminal since smoking was banned on July 24.

And wholesale beer sales to taverns and restaurants were down 10.6 percent in Central New York in August 2003 compared to August 2002, according to a survey by the New York Beer Wholesalers Association. September data is still unavailable.

"Business stinks," said Ken Rubin, the owner of Diamond Dolls, who has sued Onondaga County to get permission to allow smoking in the DeWitt bar.

Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, said that the law is devastating for small neighborhood bars.

"Upstate, our members are telling us there's been a 20 to 30 percent loss of business," he said.

But Wexler conceded there's little hard data available to prove that claim.

Anti-smoking advocates agree.

"I haven't seen any evidence at all that shows there's been any level of financial hardship (suffered by bars)," said Sherry Tomasky, regional advocate for the American Cancer Society. "Some people may be feeling an impact. How significant, I don't know."

The state Department of Taxation and Finance cannot supply an analysis of the sales taxes paid by New York's taverns for the period since the ban went into effect, according to a spokesman there.

"As much as folks are trying to get good hard data, it just doesn't exist," Wexler said.

Onondaga County Health Commissioner Dr. Lloyd Novick said that studies done after New York City, California and Massachusetts enacted similar smoking laws showed that businesses overall in those places did not suffer.

The county last week announced a new application process for businesses that want to seek a waiver from the law due to financial hardship. No waivers have yet been given.

Anti-tobacco advocates announced earlier this month that they had evidence that New York's ban on smoking in the workplace was not hurting the tavern industry.

In August 2003, wholesalers paid New York $15.2 million in excise taxes on their alcohol and beer sales compared with $14.4 million paid in August 2002, the Center for a Tobacco-Free New York announced.

The Center for a Tobacco-Free New York conceded that excise tax numbers include taxes on beverages that wholesalers sold to grocery and liquor stores, too.

The excise tax is not a good measure of the effect on taverns, said Mike Vacek, president of state Beer Wholesalers Association.

Only 30 percent of the beer sold by wholesalers in New York goes to bars and other places allowed to sell it for consumption on their premises, he said.

The increase in the excise tax revenue could also be due to liquor stores being permitted to open on Sundays this year for the first time.

But Tobacco-Free New York leader Russell Sciandra said the increase in excise tax revenues suggested that the contention by bar owners of a crisis in their industry is "inflated."

Since July 15, the number of businesses licensed to sell alcoholic beverages for on-premise consumption dipped 2.1 percent in Central New York, said Mark Anderson, deputy commissioner of the state Liquor Authority.

But some of that decrease could be due to businesses like golf clubs having only seasonal liquor licenses, he said.

"I don't think you can extrapolate too much from these statistics," Anderson said.

A spokeswoman for the Department of Lottery said she didn't think Quick Draw sales was a good measure of the smoking law's impact on the tavern industry.

Malfunctioning Quick Draw terminals, the Aug. 14 power outage throughout New York, vacations and other factors could affect Quick Draw sales in taverns, said Carolyn Hapeman, the Lottery spokeswoman.

Overall, Quick Draw sales are up in August and September 2003 when compared to those months in 2002. But the number of Quick Draw terminals around the state has jumped, too.

When the Quick Draw monthly sales totals are divided by the number of terminals in use, it shows that average sales per terminal have dropped.

Average Quick Draw sales per terminal across New York were down $991 in August and down $692 in September when compared with averages from the same months in 2002, according to statistics supplied by the state Department of Lottery.

A survey of Central New York wholesalers showed that in August, the first full month in which New York's new smoking law was effective, beer distributors sold 10.6 percent fewer cases of beer than they did in August 2002 to businesses that are licensed to sell beer for consumption on their premises, Vacek said.

"It's definitely having a negative impact," Vacek said of the law.

T.J. Sheehan Distributors of Liverpool - which sells Budweiser to bars in Central New York - was one of the wholesalers who responded to Vacek's survey.

Jack Davis, the general manager at T.J. Sheehan, said his business saw a 10 percent drop in sales to bars in August 2003 compared to August 2002. But he said it saw a double-digit increase in those sales in September, compared to September 2002.

He noted that the Central New York economy and a recent change in the state's DWI law could also have affected tavern sales.

Tomasky said the bottom line is it doesn't really matter if some taverns lose business because of the law.

"Even if there are some businesses that have lost revenue because of this law, that is not a good enough reason for a law like this to be changed," Tomasky said. "This is the most historic piece of public health legislation this state has seen in a long time."

NY1 - October 18, 2003
        City Files Suit Against Online Sellers Of Cigarettes

The city filed a lawsuit Friday against a group of online sellers of cigarettes.

Attorneys for the city claim the sellers are shipping cigarettes into the city in violation of city health regulations.

In a complaint filed in U.S. District court in Manhattan Friday, lawyers argued that Internet sites shipping cigarettes to New York City residents constituted a public nuisance.

Lawmakers want any further shipments stopped.

In January, the city sued another group of Internet cigarette dealers for evading tobacco sales taxes.

That case is pending in federal court.

Post Standard - October 17, 2003
        Smoking hardship criteria set by county
        Businesses must pay $100, show financial impact to get health department waiver.
        By Mike McAndrew

A small number of businesses suffering undue financial hardships may receive permission to allow smoking in their premises under new criteria established by Onondaga County, Health Commissioner Dr. Lloyd Novick said Thursday.

The county announced Thursday it has created a new, seven-page application for businesses to seek waivers from the state's Clean Indoor Air Act.

The act, which became effective July 24, prohibits smoking indoors at virtually every place of employment in New York. Tavern and restaurant owners throughout New York have complained that the law will drive them out of business.

In the last 21/2 months, Novick has rejected all 25 of the applications for waivers from the law he has received. Novick said he could not grant waivers before because the state Legislature did not set any criteria for a business to prove the law was causing it "undue financial hardship."

Novick said he thinks Eastman Kodak Corp. is the only business in the state to receive a waiver from the law.

Novick warned business owners that his staff is also going to start enforcing the smoking ban by fining violators.

Since July 24, the health department has investigated 131 complaints against businesses that allegedly violated the Clean Indoor Air Act, but it has been more interested in educating business owners than in prosecuting them, Novick said.

Onondaga County will require businesses applying for the one-year waivers to pay $100.

The county did not set either a minimum percentage of business loss or revenue loss that a business must have suffered to get a waiver.

The application requires businesses to prove the smoking law is causing them "undue financial hardship" by submitting monthly sales totals since August 2001 that are certified by a certified public accountant or by submitting records of sales reported monthly to the state Department of Taxation and Finance. Businesses will also have to disclose any factors - such as a change in hours, a menu change or competition from a new business in their neighborhood - that might be affecting their sales.

In addition, businesses will be required to submit a detailed plan to minimize their employees' and the public's involuntary exposure to secondhand smoke if the waiver is granted.

"We will be looking at your sales receipts before and after the enactment of the law, and look at the pattern of sales," Novick said. "There will be no absolute dollar amount or percentage. That would be arbitrary."

Novick said he will decide if a business meets the criteria after receiving a recommendation from a panel of county employees that includes an accountant and a lawyer. The panel will visit every business that applies for a waiver before it makes its recommendation, Novick said.

Caren Snyder, a co-owner of Dodester's in Syracuse, one of six bars that sued New York to stop the smoking ban, said owners of many small bars may find the nonrefundable $100 fee and required CPA certification of sales receipts too costly to apply for the waiver.

"I think the health department here is trying to make a good-faith effort," she said. "I'm skeptical (if anyone will get a waiver). The criteria they set forth for proving financial hardship is going to be almost impossible to meet."

Sherry Tomasky, regional advocate of the American Cancer Society, said she was pleased to see that the county plans to require businesses seeking waivers to protect their employees from secondhand smoke.

The Empire State Restaurant and Tavern Association said Onondaga County is violating the law by establishing its own waiver criteria.

Poughkeepsie Journal - October 17, 2003
        Judge dismisses suit against no-smoking law

A federal judge recently dismissed a lawsuit challenging a Dutchess County law barring smoking in most indoor public places.

Judge Colleen McMahon dismissed the suit, brought by the Dutchess County Restaurant and Tavern Association, because a state smoking ban took effect in July, superseding the local one, which went into effect Jan. 1. The restaurant owners argued the county law was vague and unconstitutional.

But county officials said there are aspects of the law more strict than the state law and should still remain in effect. For example, the state law allows smoking in certain areas of hospitals and nursing homes and the county law doesn't.

''We're just not sure the judge was aware of it and we'd like her to clarify it,'' Legislature Chairman Brad Kendall, R-Dover, said.

The state law is being challenged in court by the Empire State Restaurant and Tavern Association.

In her order dismissing the case, McMahon said if the state law is declared unconstitutional at some point or is repealed, the county law will again be enforceable and a new lawsuit could be brought challenging it.

NY Newsday - October 12, 2003
        His Dreams Go Up in Smoke
        Smoking ban forces tavern owner to sell a family institution
        By Merle English

In the horse-and-buggy days of the early 19th century, when a tavern was the mainstay of many a man's social life, men tied up their rides outside Petersen's, then a two- story saloon at the intersection of what is now 20th Avenue and College Point Boulevard in College Point.

Petersen's was a place for drinking, eating, smoking and camaraderie, and so it remained when Theodore Lauterborn's stepgrandfather, Otto Roesch, bought the establishment in 1902 and changed its name to Roesch's Tavern. It was passed down to Lauterborn's stepfather, William Roesch, in the 1930s, and to Lauterborn in 1975, after William Roesch died.

The business - which has been a popular gathering spot and the scene of many social events from the days when neighborhood residents were largely German and Irish - flourished.

On June 18, however, Lauterborn received a $250 ticket because a patron coming to the bar for 30 years defied a barmaid's order and smoked on the premises, also defying the citywide ban on smoking in restaurants, bars and some other public places that Mayor Michael Bloomberg championed. The ticket, and one $100 ticket he received for cigarette butts in the street, would contribute to the tavern's doom.

A business in the family for more than a century, Roesch's closed its doors on Aug. 31, and the building was put up for sale. Lauterborn, 59, said business at the 178-seat restaurant and bar declined precipitously after the smoking ban was instituted in March.

"Even at 11:30 a.m. on Friday you had 12 to 13 people in here," he said. "Saturday was bigger, but due to this situation, it's all over." The tickets were the "straw that broke the camel's back."

"A customer can't have two cans of beer," Lauterborn said, referring to the state's lowering blood-alcohol content threshold for driving under the influence of alcohol. "Now, he can't have a cigarette and come in and talk. I cannot enforce that law," he said of the smoking ban. "I'm not a bouncer."

A customer hung a poster over a table that read: "Bloomberg, Don't Worry About the Smokers. Worry about me." The "me" was a large fake rat with a cigarette taped to its mouth.

"This is the spot everybody comes, everybody knows," said a patron who gave his name only as Jerry. "Grown men don't want to stand on the corner like a bunch of hoodlums. You worked, came in at the end of the day, cursed and told a few jokes, got comfortable seeing your neighbors and had a good time. It's like a community center, your living room. It's history."

Jerry and a few other longtime patrons - including others who gave only their first names - were commiserating with Lauterborn on a recent weekday before a final get-together at the bar and restaurant.

"I grew up in bars," Jerry continued. "When you came in a bar, you smoked. That was the old way. You change a whole lifestyle like that with a snap of the fingers. For one hundred years, they're paying taxes - and suddenly he's a victim," Jerry said of Lauterborn.

Lenny, considered the group's historian, said he had been a patron for 30 years. "I will miss all the friendly people," he said. "The new bars are full of a lot of wild kids."

Jerry, like most of the other customers, given to side-splitting one-liners, joked, "This is like a nursing home."

"It was like they stole your rights for no reason," Lenny said.

Bobby, who worked at the bar for four years, said "Business got so bad, he couldn't afford me. He still owes me two weeks' pay. Thank God, he gave me that big cardboard box to live in.

"Forty years, 50 years guys been coming here. Where they going to go? This is like an oldtimers bar. People eat, have a coffee and smoke. This is like a landmark."

Michael Malinsky, 64, the first to give his full name and age, said, "I'm a nonsmoker. I enjoy a good cigar from time to time. Bloomberg took the right of the voters. It should be the voters who decide," and it should be customers who get fined for smoking, Malinsky suggested.

The one-liners were part of the camaraderie that kept him coming to the bar, Malinsky said. "We all shoot from the hip, and nobody gets offended. That's why I like this place. When his father was here, there were classic one-liners. It enriched my life."

One man, Pete, called the demise of the business "a shame" but commented ruefully, "I know my wife's probably glad its closing."

Debra Rinfret, 38, one of Lauterborn's five employees who lost their jobs, was there on her day off. "I met a lot of nice friends I can count on," she said. "The decor is nice, and the owner has always been nice. I'll miss bartending." She had an unopened pack of cigarettes.

"I will miss the friends I met and a paycheck every week," said Stacie Janicek, a smoker who worked at the place for eight years. "What am I going to do? Ask Bloomberg or [Gov. George] Pataki if they'll give me a job? Except for welfare, what am I going to do? ... [Bloomberg's] going to run again. Nobody's going to vote for him. If you're a smoker, you won't go to a restaurant where you can't smoke."

Lauterborn said that before the ban, patrons smoked in the ventilated restaurant and the bar area. From hosting three or four parties a month, he was "getting zero" he said, "'cause they can't come back [in the restaurant section] and smoke. I had a thriving business all these years. On Fridays, an Irish lady used to come and play a 1903 Strauss upright grand piano [built for his grandfather], like honky tonk. It's all gone."

"I have three children. I put them all through college," Lauterborn said. "I'm glad they were older when all this came down. I was hoping to pass on the business to my youngest daughter. She was interested, and I intended to stay here until God took me. But due to the pressure of the city and the state ... " His voice trailed off.

"I've never smoked in my life," he went on. "My son doesn't, but my two daughters do. We all know it's bad for you, but you have certain rights in this country. What's next is alcohol."

He said all the bars in College Point "have the same trouble. They'd all say the same things I'm saying."

Roesch's Tavern had become a ghost of its former self. Much of the furnishings that gave it Old World charm were gone, including an old, bronze National Cash Register. "It's all gone forever."

As a keepsake, Lauterborn is holding onto a Wurlitzer jukebox built in a chest with a seascape inside the cover.

The only other vestiges of the tavern's heyday to be seen were its tin ceiling and some memorabilia: old photographs of the building, prominent visitors, his stepfather pouring drinks, Rheingold and Schaefer beer coasters, and an old menu showing drinks at 35 cents and roast beef dinners for $1.

Asked what he would do now, Lauterborn said, "Nothing right now. ... It's gonna be a difficult transition, to say the least."

The Palladium Times - October 11, 2003
        By Jennifer Banta

OSWEGO - Mother Nature may be the final arbiter of the economic impact in Oswego of New York's ban on smoking in public places.

According to an informal survey, local restaurant and bar owners are falling into two categories: those who have pre-existing outside areas to accommodate smokers and those who do not.

Survey results indicate that lacking space to accommodate smokers is translating into a negative impact on business. Meanwhile, those businesses that have available outdoor space are not experiencing a similar drop-off in revenue.

"Business is down more than 50 percent," reports Pam Laughlin, owner of the Shamrock Tavern for the past 12 years. Laughlin and her business partner, Terry Daley, are citing a host of business problems that they attribute directly to the smoking ban, including dissatisfied customers, lower receipts and difficulty with staff retention.

Laughlin has an outdoor liquor application pending before the Oswego Common Council.

Just not right

"It's (the smoking ban) not right. Our livelihood is being taken away," said Laughlin.

Standing outside the Shamrock smoking cigarettes, customers expressed their strong dissatisfaction over the anti-smoking regulations.

"A saloon is a saloon, and our rights are being corrupted," said Mike Coady. "It's not fair," said another Shamrock patron, Brett Lafave. "Smoking rules should be left up to the owners. We are being forced to stay home to watch sports," he added.

Another local business experiencing a decline attributable to the smoking ban is King Arthur's Steakhouse. Owner Tony Pauldine said he had not anticipated that the smoking ban would have an appreciable effect on his restaurant and pub business.

"Now, I am sensing something quite different," said Pauldine. While his restaurant has always been smoke-free, his pub has not and since the ban went into effect, Pauldine reports that his restaurant business has decreased by 10-15 percent and 35-40 percent in the pub.

King Arthur's does not have outdoor facilities to accommodate smokers.

Outside chance

Those business owners who do have outdoor facilities are not reporting a marked decline in business.

"It's not a bad law for my business although smoking is part of the bar crowd" said Robert McGrath, owner of the Clubhouse Tavern. "We have designated outdoor space and have experienced no discernible decline in business," McGrath reported.

In the designated area outside the Clubhouse Tavern, two smokers were enjoying a beautiful fall evening. The pair agreed that they felt smoking rules should be left up to the individual owners.

Further, they expressed concern over the oncoming winter weather and speculated that their smoking would result in more time spent at home - and fewer dollars spent at local businesses.

At the Press Box grill, owner Steve Canale said there hasn't been a noticeable decline in his business. He has, however, noticed considerably more interest in the outdoor section of his restaurant where four smoking tables are available.

"The smoking ban hasn't affected our business as of yet as the weather has been lovely," said Canale. "The Sunday afternoon football crowd has been down a bit but I don't know if the smoking ban is to blame," he added.

Distributor's view

"Deliveries to pubs and taverns have decreased substantially, greater than 25 percent," said Daniel Dorsey, president of Eagle Beverage Company, a local distributor.

He said he expects the downward trend to continue as the colder weather sets in.

"The decrease in bar deliveries could be the result of a combination of a lot of economic shifts locally but the smoking ban has not had a positive effect on business," Dorsey concluded.

Daniel Jackson, owner of Fred's News, said beer purchases for in-home consumption have increased at his store.

New York joined California and Delaware on July 24 when the law prohibiting smoking in nearly all workplaces including restaurants and bars went into effect. The law is intended to protect employees from second-hand smoke.

Smoking is permitted in designated outside areas under certain circumstances. Additional provisions permit smoking at organizations providing an all-volunteer staff perform the service. Penalties of up to $1,000 per violation may be assessed by the Oswego County Health Department, the local government entity tasked with enforcing the ban.

"It is too early to assess the real impact of the new regulation," said Natalie Roy, Associate Public Health Sanitarian at the Oswego County Health Department. The department has received 39 complaints of smoking being permitted in restaurants and bars since the law went into effect, according to Roy.

Times Union - October 10, 2003
        Game is no longer a winner
        Economy, smoking ban blamed
        By Anne Miller

Bingo at the Troy Boys and Girls Club isn't what it used to be.

In past years, 120 players might pack the room, said the club's executive director, Nancy Dougherty. Now, maybe 60 players show up to the game that has been held since the 1960s to help raise money for the youth organization.

"In a few more months we'll sit down and figure it out," Dougherty said of the nonprofit's finances. "It may not be worth it to do (bingo) anymore."

The Troy Boys and Girls Club isn't alone. Charities across the Capital Region are reporting a severe downturn in bingo revenue this year. Many said the economy has hurt attendance over the past few years, and the newly enacted smoking ban is keeping other players away.

For some groups, bingo games provide a little extra cash, but others depend heavily on the gaming revenue, and worry about how they might raise funds in the future.

Dougherty said that in an average year, bingo added $104,000 to the annual budget of $700,000. But not this year.

"It's the first time we've had this small of a turnout," she said.

She blames the smoking ban, enacted in July. Before the law, only four people took advantage of a nonsmoking room. She recently sent a letter to the state Department of Health, begging for a waiver because the ban has caused undue hardship.

Charitable bingo games at churches, schools and nonprofits are tracked by the state Racing and Wagering Board. Spokeswoman Stacy Clifford said it is too early to determine the impact of the smoking ban. Still, the economic decline is evident. More people are playing, but spending less money, according to its annual studies that include all of New York state except New York City.

In 2001, 6.6 million players wagered $179 million, earning the charities $35 million, Clifford said. In 2002, the latest numbers available, 7 million players spent $133.5 million, which deposited only $25 million in charities' bank accounts.

In bingo's heyday of the 1960s and '70s, many nonprofits, including churches, latched on to the game as a way to pad coffers while providing good, clean fun, said the Rev. Tony Childs of the Blessed Sacrament Church in Albany. Every Wednesday night the neon red Bingo sign flickers on, announcing one of the longest-running in the region, Childs said.

In good years, the church made about $30,000, he said. Now its less than half that.

"People's mentality about bingo has changed," he said. "It's not looking at it as the wholesome, family game it once was."

He said church bingo is no longer the only game in town like it once was. Other far-flung options have arisen, from cheap flights to Las Vegas to casinos like Turning Stone, a few hours' drive away.

"Maybe it's just one of those things entering a period that has seen better days, like the golden days of television and radio," he said.

He added that the Blessed Sacrament game will continue.

"As long as it helps, we will keep doing it," Childs said. Even on previous good weeks, the game added no more than 5 percent to the school budget, according to the church's Rev. John Bradley.

At the Temple Israel synagogue in Albany, volunteers say it is too soon to attribute the decline to the smoking ban directly. But if Herb and Marilyn Holland were a betting couple, they might lay money on the no-smoking rule as the cause. The pair have run the Temple Israel game for more than 17 years.

According to Herb Holland, some of the regulars told volunteers that they would abstain from playing bingo, to protest the smoking ban. He hasn't seen them since.

"What some of the people have said to us is that attendance is down at other places," he said.

Last year the game saw between 105 and 120 people a week, and took in up to $600. This fall only 95 to 105 people show, and the game's take is closer to $300, the Hollands said.

That's a big blow to a synagogue that makes about 20 percent of its budget from bingo, the second-largest fund-raiser after membership dues, Marilyn Holland said.

There may be other factors, they said.

"The economy has been slow for a while," Herb Holland said. "We've tried to determine what are the factors, but we haven't been able to come up with a good, solid answer."

As his wife said, "They're not around to ask."

Buffalo News - October 10, 2003
        Protest against smoking ban precedes Fall Festival
        By Kathy Kellogg

ELLICOTTVILLE - Bar and restaurant owners, staffers and patrons rallied at noon Thursday in a large tent behind Balloons nightclub to protest the state's ban on indoor smoking, saying the Clean Indoor Air Act is more about taking away their rights than about health.

The rally was held on the eve of Ellicottville's Fall Festival weekend, which begins today. Flaws in the law will force festival visitors to make a choice: ignore smokers in a crowded bar, or call the county Health Department's toll-free number for possible enforcement action later.

"Tourism is fragile; it's affected by weather, strife, government intervention and economic downturn," Ellicottville Chamber of Commerce Director Brian McFadden told the gathering.

He said the Chamber's application for a temporary waiver to cover the restaurants and taverns this weekend didn't come through because the law contains no written criteria for waivers.

Cattaraugus County Health Department officials told him that, to remain in compliance with the law, businesses should try to prohibit smoking. McFadden customers who refuse to extinguish their cigarettes can be reported to the toll-free number, although no one will be on duty to answer the calls over the weekend and enforcement powers do not extend to the police.

Eric Wohlers, county environmental health director, said Thursday his department is caught in the middle because the law omits criteria for waivers for "facilities that document an undue financial hardship or (show) grounds there are factors that would render compliance unreasonable."

He said the Chamber would be hard-pressed to prove a financial hardship during Fall Festival, and even a waiver would not override the law's requirement that establishments protect nonsmokers from involuntary exposure to secondhand smoke.

Wohlers said he expects some guidelines will be handed down in the next month or two.

"We've been flooded with requests for waivers, but we are in no position to process or issue them," Wohlers said.

The rally's organizers insisted Thursday that the law takes away the rights of the owners of the establishments to make their own choices in running the businesses.

Brenda Perks of Falconer said she fears most for veterans clubs facing closure and wept at the podium, stating that her husband, a Vietnam veteran who worked his whole life for their bar, told her the fight against the smoking ban makes him "feel like he's fighting the same war all over again."

Patrick Hoak, who owns Hoak's Armor Inn in Hamburg and is president of the Innkeepers Association of Western New York, described the law as "hypocritical" because it provides a twice-
annual waiver procedure for establishments such as cigar bars where a large percentage of revenue comes from the sale of tobacco products.

He said he wants the state law patterned on the Erie County ordinance that had prohibited smoking in dining areas, but exempted bars; otherwise, he said, the law should be repealed. He also called on voters to replace the legislators who enacted it.

The Innkeepers Association is sponsoring a fund-raising "Rally for Your Rights" at 1 p.m. Nov. 9 in Club Paradise, 3950 McKinley Parkway, Town of Hamburg.

Buffalo News - October 9, 2003
        Businesses seek waivers to get past smoking ban
        By Joel Keefer

JAMESTOWN - Looking for relief from the state's smoking ban, half a dozen local businesses have hired an attorney to help them get approval for smoking waivers from Chautauqua County.

The businesses - Mel's Place, the East End, the Bullfrog, the Frewsburg Legion, Fountainbowl and the Donut Connection - are represented by Andrew Goodell, a Jamestown attorney and former county executive.

Brenda Perks, local pro-smoking activist and leader of Operation New York Freedom, said several recent fund-raisers have raised money to pay Goodell's legal fees.

"We're going after the county now," she said. "This is a county matter now because they are not doing anything with the smoking waivers. I think that Andy will be trying to work with the county to try and get these waivers going."

The state Health Department reportedly has issued criteria to help county health departments determine if a business should be exempt from the new law.

Exemptions might be given to businesses with completely separate smoking rooms or those that have no employees who could be affected by secondhand smoke.

Steve Johnson, of the county Health Department, was unavailable to comment on the issue.

"We're in kind of a unique situation, being so close to Pennsylvania," Goodell said, "and I've been advised that the businesses in Sugar Grove, Russell and Warren have been doing a tremendous amount of business.

"In fact, one business reputably has coasters that say "I Love NY' because the regulations are driving business out of the area and down there," Goodell said.

The attorney is quick to point out, though, that the Chautauqua County Health Department has shown concern on the matter.

"We're working, first of all, with the local Health Department on a cooperative basis so that we can get waivers to enable our local businesses to survive and to continue to pay their employees and taxes," he said.

Goodell stressed that they want the regulations to be applied in a fair and equitable manner, and that the waivers are applied equally across the board, so that "those who should get them, get them, and those that shouldn't, don't."

He pointed out that the Donut Connection in Jamestown spent $26,000 to build a self-contained smoking room that keeps smoke from entering the rest of the doughnut shop.

That room can't be used anymore because of the ban.

Goodell is drawing up a set of recommendations to be reviewed by a subcommittee of the Chautauqua County Board of Health, so that they can review the pending waiver applications and make decisions.

Meanwhile, another rally against the smoking ban is set for noon today in Ellicottville.

Those scheduled to participate include Brian McFadden, executive director of the Ellicottville Chamber of Commerce, and Assemblywoman Cathy Young, R-Olean.

Capital News 9 - October 9, 2003
        Bar owner appears for hearing
        By Chris Hamilton

Before July 24, Connie LaRock was one of the North Country's biggest opponents of the new smoking ban. Now, she's the first in the area to face a hearing for violating the law.

LaRock, who owns Connie's Roadhouse, said, "I've been on the hot seat since day one, but we'll see what the judge says."

And LaRock wasn't alone. Some 30 bar and restaurant owners and employees showed up to offer their support, and to protest the law. One woman was even dressed as a witch, who said going after LaRock was a witch hunt.

At the hearing, a New York State Department of Health Inspector testified he witnessed four people smoking several cigarettes, and using an ashtray inside the establishment, and employees made no attempt to stop the violation.

LaRock testified it's very hard to enforce the new law, especially on a busy night.

The Administrative Law judge handling the case is scheduled to make a decision in two to three weeks. In the meantime, some North Country bar owners, and employees are hoping LaRock's violation, will now bring the smoking issue to the forefront where they believe it belongs.

The owner of the first North Country establishment to be fined for violating the state's "Clean Indoor Act" has her day in front of a judge.

Shannon Jasper, a bartender, at Alley Bar in Saratoga Springs, said, "I don't see how politicians have the right to step in, where they say, 'yes you own this place, but were going to tell you how to run it.'"

Supporters are doing something about it by printing copies of how local lawmakers voted on the issue.

Jasper said, "We did up a list of all the Senators, and Assemblymen listed down by county, and how they voted, and sent them out to everybody we know, and had them send them out to everybody they know, and we're asking people to register to vote and vote the politicians out of office."

Originally, LaRock was accused of two violations, but the charge that she had insufficent non-smoking signs was dropped. LaRock estimates her business is losing anywhere between $600 to $1,000 a week.

Oneonta Daily Star - October 9, 2003
        Some area bars cautioned on law
        By Melissa Scram

ONEONTA —Local health officials in charge of enforcing the state's ban on indoor smoking said they have yet to issue any fines or tickets to area businesses.

While health departments have received some complaints since the Clean Indoor Air Act went into effect July 24, officials said none of the businesses has been a repeat offender and enforcement is still in an educational or warning phase.

Action on waiver requests is also on hold while departments establish a procedure for handling them.

Health officials declined to release which business have been named in complaints. A couple of local bar owners said they have heard of colleagues flouting the law, but they also wouldn't name names.

Patti Iacampo, senior public health sanitarian for the state Health Department district covering Delaware, Otsego and Greene counties, said so far about 30 complaints have been lodged against businesses in those three counties.

Iacampo said her office is still in the education phase and hasn't issued any notice of fines.

"We've done a lot of different things," she said. "We've done letters, we've done phone calls, we've done visits."

Chenango County has logged four complaints, according to Public Health Director Marcas Flindt. A second complaint has not been filed, he said, on any of those businesses —one restaurant and three bars.

When Flindt's office receives a complaint, he said, it sends a letter with a copy of the law to the business.

A second complaint on the same establishment would trigger a visit to the business to verify smoking is going on.

If it is, a notice of violation would be sent and the department would meet with the business owner to explain the law, he said, and a fine would be issued after a third warning.

Meanwhile, Carl Stefanik, public health director for Schoharie County, said no violations have come to the attention of his office.

George Layton, co-owner of the Country Rock Cafe, said the bar has lost business since the ban, as patrons aren't staying as long. Those that do stay are crowding outside the front entrance for cigarette breaks.

Nonetheless, he said, he's been vigilant about enforcing the law and reminding patrons.

"A couple of times they'd be here talking and, not even thinking about it, pull out of cigarette," he said.

Hamden Inn co-owner Christina Zale said she hasn't had much trouble enforcing the ban, but it has cut down on business.

"There are a lot of other places that are allowing people to smoke, and I know customers are going there," said Zale, who said she requested a waiver for her business.

Counties are also in the process of establishing guidelines for dealing with the requests for waivers filed with their offices.

"We are looking to be uniform so what happens in Otsego County is very similar to what happens here in Schoharie," Stefanik said.

His department has received written requests from two bars since the ban went into effect, he said, but declined to name the establishments.

Iacampo said her office has received waiver requests, but she declined to say how many. Chenango County has not received any applications, Flindt said.

Meanwhile, the state Medical Society, which met Tuesday, reiterated its support for the law in a statement released Wednesday and urged the state Legislature and Gov. George Pataki to continue to oppose efforts to roll back the ban.

A grassroots organization opposing the law, Repeal the Ban, was launched this week in Jeffersonville, founder John Goodfriend announced.

Associated Press - October 9, 2003
        FEC Reaffirms Ban on Use of Donor Names

WASHINGTON - The Federal Election Commission has rejected an anti-smoking group's request for permission to use donor names from campaign finance reports to build its contact list.

The National Center for Tobacco-Free Kids asked whether it could use contributor information from the reports that candidates and political committees file with the FEC to send a variety of messages to political donors.

Possible communications included information about issues and policies, requests that people contact lawmakers about issues, and the suggestion that people fill out a card that would put their name on the group's mailing list for fund-raising appeals and other mailings.

The nation's campaign finance rules ban the use of contributor names to solicit contributions or for commercial purposes to protect donors' privacy, the commission said Thursday.

Although not all the group's proposed communications involve fund raising, all "present the possibility of repetitive and intrusive communications to contributors," the FEC said in an advisory opinion approved 5-1. "Such activity would fall within the realm of 'harassment' Congress wanted to prevent."

Captial News 9 - October 8, 2003
        Bar owners want smoking ban put out

The Empire State Restaurant and Tavern Association wants to can the smoking ban.

Restaurant and club owners from across New York met in Albany today. They came to the capital to discuss how their businesses have suffered since the smoking ban went into effect in July.

Club and restaurant owners said their businesses can't keep up because the no-smoking ban has driven customers away.

Scott Wexler, the Exec. Dir. of Empire State Restaurant and Tavern Association, said, "They're here today to tell their legislators what really effect this ban, and having to remind them that we continue to seek relief from the total smoking ban. We're not asking for a repeal, we're asking for a compromise."

The Restaurant and Tavern Association suggests every legislator go outside to take a phone call or have a cup of coffee. After they see how unproductive it is, they want both sides to sit down and work out a compromise.

Secondly, the organization will lobby to revise the laws by next November. They said the issue will be carried to the ballot box if they're not.

Finally, they propose smoking be permitted in bars with approved ventilation systems to reduce or eliminate second hand smoke.

Buffalo News - October 7, 2003
        Owners to be warned on behavior outside bars
        By Tom Ernst

Lackawanna officials plan to send letters to bar owners warning against allowing patrons to take drinks outside after receiving a complaint about rowdy behavior resulting from bar patrons going outside to smoke.

Dennis Lorden of Victory Avenue complained to the City Council Monday night about a Ridge Road tavern, where he said patrons who can no longer smoke inside are causing problems outside and using the small park next door for a bathroom and place to have sex.

Arthur Kowalski, public safety director, said the bar, the Cherry Stone, had a prior warning and the owner said it would comply.

Mayor John Kuryak suggested sending a warning letter to all the bars, and Third Ward Councilman Chuck Jaworski said the state Liquor Authority should be notified when there is a problem with a bar.

WKBW - October 6, 2003
        Butts to the Smoking ban

No ifs ands or butts about it…the state's new smoking ban is creating some new problems. Problems like entrances littered with butts and no place for smokers to light up as the weather gets colder.

The health department says it's going to start cracking down on bars and restaurants that violate the ban. But there is hope for smokers and businesses.

"I was hoping around here we'd get to at least maybe middle of November where you could come outside and sit in a sweater and be comfortable at night, but the last couple weeks have shown us you don't know. We could have snow next week,” said bar owner Dominic Massaro.

And smokers say they want relief. Since the new state smoking ban became law more than two months ago during the warm summer months, smokers are finding refuge outside. But it's getting cold out there.

"I can go without it if I have to. But I don't like the idea if you go to a restaurant you want your cigarette while you’re waiting and that,” said smoker Sue Kaye.

At Dickie's Donuts on Elmwood Avenue customers light up under a tent.

“But if you gear up in heavy clothes, you don't feel so bad,” said smoker Jim Iannaccone. "If people want to smoke, they'll come outside and shiver."

But relief could be coming soon. Businesses who claim the smoking ban is making it hard to stay in business can apply for a waiver. So far in Erie County, 77 businesses have applied for the waiver, including bars, restaurants, nightclubs and bowling alleys.

"The fact that they put the waiver into the law creates that they knew that they passed a law that creates a financial hardship,” said Massaro, who owns Mr. Goodbar on Elmwood Avenue. He hasn't applied for the waiver yet…even though he says business is down 30 to 35 percent.

"There's really no criteria to say, ‘okay, Goodbar deserves it because they have a financial hardship of a loss of business whereas Cole's next door doesn't 'cause their food service has gone up,’” Massaro said.

And since county health departments are still waiting for the criteria from Albany, it's hard to say just when those waivers will be issued.

"So if I fit the criteria, I get the financial hardship and then I create an even bigger financial hardship for other people that may not get it. And vice versa…if I don't get it and somebody does get it…it's not an even playing ground,” Massaro said.

It could be months before the state comes up with guidelines for issuing waivers. Meantime, bar and restaurant owners are still hoping lawmakers in Albany will make adjustments to the smoking ban.

The Business Review - October 6, 2003
        Angry bar owners will serve up a day of lobbying at the Assembly
        Eric Durr

When the Assembly returns to Albany Oct. 8 for a one-day legislative session, they'll be met by angry bar and tavern owners who want the state's anti-smoking law changed.

"We'll just come and tell our stories," said Scott Wexler, executive director of the Empire State Restaurant and Tavern Association. "I believe in the system and I think that if we continue to stick to the facts and explain the real stories of what is happening out here, that eventually we will be able to obtain relief from this overly burdensome law."

A state law that bans smoking in all workplaces, including bars and restaurants, took effect July 24. Although the New York State Restaurant Association endorsed the bill, Wexler's group has been adamant that it is killing business.

Capital Region bar owners have reported a 20 percent drop in business since the law kicked in, Wexler said.

The bar owners held a rally during the Sept. 16 session held by the state Senate, but were unable to sway Senate Majority Leader Joseph Bruno (R-Brunswick) into changing the law. Bruno said he sees no reason to change it.

Now the bar owners will work on Assembly Speaker Sheldon Silver (D-Manhattan) and his Democratic majority conference, who are due to hold a conference meeting Oct. 7, one day before the Empire State Restaurant and Tavern Association will hold its lobby day.

"We think it is important to meet with our representatives and explain to them, business owner to elected official, the impact of the law on their constituents," Wexler said.

The Democratic conference is dominated by New York City members, and New York City bar owners say they've been especially hard-hit by the law. But the Assembly's Democratic minority also contains some of the most fervent anti-smoking advocates in the Legislature, especially Assemblyman Richard Gottfried (D-Manhattan) who has pushed a variety of anti-smoking measures.

Times Herald - October 3, 2003
        Tavern owner considers challenge to smoking fine
        By Rick Miller

OLEAN — An Olean tavern owner hasn’t decided whether to appeal a $500 fine by the Cattaraugus County Board of Health for violating the state’s indoor smoking ban.

The Board of Health on Wednesday levied the first fines under the Clean Indoor Air Act since it went into effect July 24.

Phillip Siago, owner of the Phil-N-Station, 1125 W. State St., told The Times Herald Thursday that the deputy sheriff who said he witnessed people smoking in the bar on Aug. 27 actually saw patrons smoking herbal cigarettes, which contain no tobacco and are legal under the smoking ban.

“They never established what was being smoked in here,” Mr. Siago said in an interview at his tavern. He said Deputy Bryan Schwabenbauer noted during testimony at a Health Department hearing Sept. 23 that he observed open packs of what were Smokin’ Joe’s Herbal Cigarettes.

Valerie Blaske, manager of the Phil-N-Station, said she found the herbal cigarettes during an Internet search and purchased three cartons for bar patrons.

A sign over the bar reads: “If you must smoke, please be legal.”

“We tell our customers this is a nonsmoking bar,” Mr. Siago stated. “If they have to smoke, we give them these,” he said, holding up a pack of the herbal cigarettes. “Erie Wohlers (county environmental health director) said these herbal cigarettes are legal.”

The deputy, Mr. Siago insisted, “didn’t check to see what was being smoked. These (herbal cigarette packs) were on the bar. He saw them. I asked (during the hearing) Bryan, ‘Did you ask anyone what they were smoking?’ He said, ‘No.’”

Also, Mr. Siago feels he is paying a high price for the fine because a woman patron was rude to the deputy.

Neither Mr. Siago nor Ms. Blaske were at the bar when the deputy arrived to serve a letter from the Health Department to request a conference on the smoking ban.

“A person takes his savings and puts it in a business,” said Mr. Siago, who purchased the bar three years ago. “We should be grandfathered. ... They pass this law and we lose business.”

Ms. Blaske said business dropped about 25 percent in the month after the smoking ban went into effect, and was down about the same amount in September.

“We were doing good before the state decided to kill us,” Ms. Blaske said.

Mr. Siago said since his is a neighborhood bar, he doesn’t feel the new lower state blood-alcohol level for driving while intoxicated is to blame for the drop in business. It’s the smoking ban, he insisted.

Ms. Blaske said the herbal cigarettes “take the edge off for customers while they drink.” Others go out to the back patio.
“When the weather gets bad, (business) is going to be worse,” Mr. Siago said. “People will stay home. For now, we plan to continue offering herbal cigarettes — especially going into the winter.”

In the meantime, Mr. Siago plans to decide whether to appeal the fine.

“This is a civil rights violation,” he said. “I own this place. Why do they have a right to tell me I can’t smoke in my own place?”
Ms. Blaske said, “What we’d like to do is challenge the constitutionality of the law.”

She said if they are forced to close the tavern, they won’t be able to hold charity fund-raisers like the kids karoke set for Nov. 1 where they close the bar and serve pizza and soft drinks.

Associated Press - October 3, 2003
        Poll finds support for smoking ban
        By Joel Stashenko

Albany - Anti-smoking groups said yesterday they have evidence that the state's ban on smoking in the workplace is being accepted by a majority of New Yorkers and apparently not hurting bar and tavern business.

The groups say alcohol and beer tax collections, as reported by the New York State Department of Taxation and Finance, were at $15.2 million in August, compared with $14.4 million in August of last year.

Russell Sciandra, head of the Center for a Tobacco-Free New York, acknowledged that the numbers include taxes on both on-premises consumption of alcohol and retail sales for off-premises consumption but said they suggest that the contention by bar owners of a crisis in their industry is "inflated."

"It is entirely consistent with our predictions that nonsmokers will increase their patronage as they recognize that the new law has cleaned up the toxic atmosphere in bars and restaurants," Sciandra said.

Smoking-ban supporters say they expect New York State will have California's experience with its prohibition. Tavern and bar business initially fell off in California but then came back at higher than pre-ban levels.

Vincent Fyfe, president of Local 2-D of the New York City-based United Food and Commercial Workers union, said the wine and liquor salespeople he represents are reporting a falloff in business of between 20 percent and 50 percent since New York City imposed a smoking ban in city bars and taverns on March 30.

"It's a problem, it's a big problem," Fyfe said. "This isn't going to lower any health care costs. All it's going to do is put a lot of nice people out of work."

Also yesterday, a Quinnipiac University poll indicated that 59 percent of the registered New York voters surveyed supported the smoking ban, while 37 percent said they were opposed.

The telephone poll of 1,201 registered voters from Sept. 23 to Sept. 29 has a margin of error of plus or minus 2.8 percentage points.

FOX News - October 2, 2003
        Talks on Capitol Hill to Regulate Tobacco Industry Break Down
        By Kelley Beaucar Vlahos

WASHINGTON — Talks in Congress to regulate the tobacco industry (search) broke down Wednesday along partisan lines, making it highly unlikely that new restrictions would be imposed on the cigarette industry anytime soon.

Lawmakers had been close to passing legislation that not only would have ended unpopular tobacco subsidies, but also would have allowed government control over tobacco products for the first time.

But Democrats said late Wednesday that regulations that would have handed the Food and Drug Administration (search) oversight of cigarettes were not strong enough.

Times Herald - October 2, 2003
        First fines issued to violators of new indoor smoking ban
        By Rick Miller

ELKDALE — The Cattaraugus County Board of Health issued its first fines Wednesday for violations of the state’s indoor smoking ban.

Taverns in the city of Olean and in Franklinville were fined $500 each for violating the state’s Clean Indoor Air Act that went into effect July 24.

The Phil-N-Station on West State Street, Olean and Long Branch Saloon in Franklinville were each cited for violations of the smoking ban on Aug. 27.

In each case, a Cattaraugus County Sheriff’s deputy visited the taverns to serve the owners with a request for a conference with Health Department officials to discuss complaints over violations of the smoking ban.

Deputy Bryan Schwabenbauer reported that about 10 people were smoking at the Phil-N-Station when he arrived Aug. 27, and that some patrons were abusive as he served the notice to the bartender.

At a Health Department hearing Sept. 23, owner Phillip Siago and manager Valerie Blaske said they had purchased three cartons of herbal cigarettes for their patrons’ use.

Hearing Officer Robert Bubbs originally recommended a $100 fine to be received by the Health Department by Oct. 14, or a $10 per day fine would be imposed until it was paid.

After discussions with Health Department officials, Mr. Bubbs changed his recommendation to a $500 fine, due in part because of the abusive nature of bar patrons and the multiple complaints received of violations of the smoking ban.

Phil-N-Station management could not be reached for comment Wednesday or this morning.

A Health Department representative who visited the Long Branch Saloon on Aug. 1 to discuss complaints of smoking ban violations was threatened, Mr. Bubbs said. Also, several patrons were observed smoking. A subsequent visit Aug. 21 found no signs of smoking or ashtrays. Complaints continued to be received, however, and on Aug. 27 Deputy Schwabenbauer said he noticed three people smoking. He said they threw their cigarettes into beer cans with the tops cut off. He also reported the bartender was abusive.

During an administrative hearing at the health department offices on Sept. 23, owner Robert Allen said the beer cans without tops are put out for patron so they won’t spit on the floor. When Susan Green, who also attended the hearing, asked who had complained about the violations, she was told one complainant was Police Chief Tony Wolfer and that the others are confidential.

Environmental Health Director Eric Wohlers said some bars are “blatantly violating” the smoking ban. The Health department has received complaints on 26 establishments, some of which have been the subject of multiple complaints.

“We are going to continue to do compliance checks,” said Public Health Director Barbara J. Hastings.

The Health Department is also “developing a plan for conducting unannounced nighttime inspections at facilities,” said Mrs. Hastings.

The Health Department has received 20 requests for waivers from the smoking ban, but is awaiting formal criteria on what constitutes an “undue financial hardship”

Mrs. Hastings said the health department may have to hire a financial expert to help determine if a bar’s business has suffered unduly from the smoking ban.

“We want to be consistent,” she said.

Times Union - October 2, 2003
        Smoking ban enters enforcement phase
        Albany-- Counties, state now fining restaurants, bars in violation of law
        By Erin Duggan

A Washington County restaurant has been ticketed for allowing smoking, a Troy restaurant is expected to be cited later this week and Albany County is planning to come down on a local bar with repeat complaints.
The honeymoon phase of New York's smoking ban is over.

"We can't keep being nice guys and giving them warnings," said G. Jack Parisi, director of environmental health for Schenectady County. "It's like slapping us in the face and saying, 'We don't have to do it.' "

Counties agreed to a warning period when the Clean Indoor Air Act -- the ban that outlaws smoking in bars, restaurants, bingo halls and any other place where people are employed -- went into effect July 24. Enforcement of the ban in the Capital Region has been based on complaints. Counties first mailed offending businesses pamphlets about the law, and made follow-up calls to make sure owners understood the ban and would comply.

The state, which enforces the ban in 21 counties that don't have full health departments, slapped its first fine last Friday on Connie's Roadhouse Restaurant and Lounge in Fort Edward, the site of at least one rally against the smoking ban.

"I wonder if it's because we had the rally," said Manager Hope Gwin, who said the restaurant is losing about $2,400 worth of business a month because of the ban. The summons came in the mail.

The state offered the owner a choice between paying a $1,000 fine or going to court. Half the fine, Gwin said, was over the no smoking sign posted -- "New York State Doesn't Pay My Bills, But They Say You Can't Smoke In This Building." Gwin said the state never specified the wording of the no smoking signs now required in bars and restaurants.

The owner of Connie's will be the first in this area -- and possibly the state -- to go to court over the state's smoking ban. More than 500 tickets have been issued to New York City businesses that allowed smoking, but those violations were of the city's own smoking ban that went into effect in March.

Recently, counties around the state have started sending out warning letters to businesses with repeat smoking complaints. Now counties say they're ready to start holding businesses in violation of the law, which could subject owners to a fine of up to $2,000 for the first offense.

The fines shouldn't come as a shock to business owners, who county officials say were warned repeatedly.

"This will be the third piece of paper from us, which will require him to come in for a hearing," Rensselaer County Director of Environmental Health Roy Champagne said of the offending Troy restaurant and bar. Champagne wouldn't name the business, since the county attorney was still reviewing the paperwork for the summons, but said it was the top smoking offender in the county.

"This place has by and large the most number of violations," Champagne said. "There's nobody close."

But don't expect an onslaught of tickets next week. County officials said they will feel more comfortable coming down on violators once a potential loophole in the law is addressed.

The 1989 law that first ordered businesses to create nonsmoking sections and other smoking-related changes included language that allowed for waivers to businesses owners who face financial hardship "which would render compliance unreasonable."

The provision for waivers still exists, and business owners across the state are asking for them. Counties have the power to grant them, but no universal criteria has been established.

Albany, Rensselaer and Schenectady counties are working together to create waiver guidelines, ensuring a uniform standard across the Capital Region.

Press Republican - October 2, 2003
        Poll, data buttress New York’s anti-smoking efforts
        By John Milgrim

ALBANY — New York voters overwhelmingly approve of the state’s new ban on most indoor smoking, according to the first independent poll conducted since the law went into effect.

At the same time, anti-smoking groups pointed to newly released liquor-tax data that they say debunks arguments that the law will wipe out bar business in the state.

Statewide, 59 percent of voters approve of the ban on smoking in bars and restaurants and 37 percent disapprove, according to a Quinnipiac University poll released Thursday. The approval is 57 percent in rural upstate and jumps to 67 percent in the suburbs.

"It reinforces what we’ve been saying, that this law has broad support across the state and across demographic groups and that the legislature would be making a big mistake if they tampered with it," said Russell Sciandra, director of the Center for a Tobacco Free New York.

Since the law went into effect July 24, bar owners and the Conservative Party sponsored a poll that showed state residents opposed the ban. Anti-smoking groups did their own, which showed the opposite.

Quinnipiac’s poll of 1,201 registered voters was the first independent undertaking on the issue by a well-regarded polling institute.

Scott Wexler, president of the Empire State Restaurant and Tavern Association, said the poll should have measured whether there was support for smoking in bars with adequate ventilation systems. It’s a proposal his group is pushing in Albany.

"Quinnipiac is a good poll, and I have the utmost respect for (the pollster), but by merging restaurant and bars in the question, you don’t accurately measure the support for changing the law to allow smoking in bars with ventilations," said Wexler.

In recent weeks, hundreds of bar owners have rallied throughout the state against the ban. Many complained they lost half or more of their customers, and some said they even had to close.

Sciandra’s group, among others, released August liquor-tax data for the state that showed a 5.3-percent increase in sales as compared to the same month last year.

The figures, however, don’t separate sales at bars from those at retail stores. And as yet there’s no accounting for the impact newly allowed Sunday liquor sales has had on the figures.

Regardless, "it is entirely consistent with our predictions that nonsmokers will increase their patronage as they recognize that the new law has cleaned up the toxic atmosphere in bars and restaurants," Sciandra said.

Wexler said data was manipulated to support the anti-smoking agenda. He said he’s compiling sales figures that will reflect a downturn in the bar trade.

Meanwhile, the poll, with a margin of error of plus or minus 2.8 percent, found women supported the law 65 to 31 percent, as compared the men at 52 to 43 percent.

Across the state, 65 percent of voters said that whether a lawmaker supported the ban wouldn’t affect their vote.

Since the ban, lawmakers have mostly rejected calls for changing the law.

"Two months after the law took effect, we’ve got broad support," Sciandra said. "Rest assured, we will be making sure the legislature is aware of this survey."

Buffalo News - October 1, 2003
        Ellicottville rally targets smoking ban

ELLICOTTVILLE - Some Ellicottville businesses hope to clear the air on the state's indoor smoking ban with a news conference and rally at noon Oct. 9.

The rally is dubbed "Can the Ban - Smoke the Vote" and will address how the ban has affected the incomes of businesses and their employees. Speakers at the rally will be Assemblywoman Cathy Young, Ellicottville Chamber of Commerce Director Brian McFadden and Western New York Innkeepers Association President Pat Hoak.

Business owners and their employees are expected to inform the audience about the financial hardships that have resulted from the law. The rally will take place in a tent in the parking lot behind Balloons restaurant, 20 Monroe St.

Snitch - October 1, 2003
        Smoking ban changing the face of New York City
        By Will Siss

NEW YORK — Back when the motto for McSorley’s Old Ale House was “good ale, raw onions, and no ladies,” communal tobacco and pipes sat on the bar, and cigar smoke mixed with sawdust and sweat. Sawdust still covers the floor, but the patrons now include women. And since the city’s Smoke-Free Air Act took effect on March 30, all you can smell is a hint of pine.

The act has done a lot more than change the aroma. Intended to protect employees from secondhand smoke, the act has either put a knife into the heart of the city’s bar industry or only temporarily hurt business for the greater good of public health, depending on whom you ask. As debate rages in New York’s five boroughs, Metro Louisville and cities around the country are bracing for the same fight.

“This law was passed to help the staff,” said Stefan “Peppy” Zwaryczuk, a McSorley’s bartender for 28 years. “They may be healthier, but they’re a lot poorer.”

Under the act, smoking is prohibited in nearly every indoor area where people work. That extends to office buildings, bowling alleys, pool halls, and Bingo parlors. No one can legally smoke inside of bars, except for certain existing tobacco bars and bars with separate smoking rooms and “strict environmental controls to prevent indoor emission of smoke.” In New York State, a similar Clean Indoor Act took effect on July 24; the city and state have banned smoking in restaurants since 1995.

In a highly unscientific survey of bars in Manhattan’s Wall Street, East Village and Times Square neighborhoods, McSorley’s was one of the few whose business has remained stable since March 30. “Some bars are down something like 50 percent, but we’re not hurting as much,” Zwaryczuk said. Even on an early Monday evening, the bar was three-quarters filled. The only difference since six months ago is the fresh air and the “no smoking” signs placed like cartoon bubbles near the mouths on the Teddy Roosevelt and William McKinley portraits.

Teresa DelaHaba, 34, waved to her year-old son, Matthew, from behind McSorley’s bar, where she’s tended for nine years. “I feel better about him visiting now,” she said. “But it’s a personal choice, to smoke in a bar. I think the ban’s crazy. I think the bars should be smoke-free until 8 o’clock, and then smoking should be allowed.” DelaHaba said McSorley’s reputation and popularity has helped it through 149 years and a series of legal encroachments, including Prohibition. “I think the trendy bars are the ones that will suffer.”

Smoke detectors

While bartenders are charged with policing their customers, the city’s Department of Health and Mental Hygiene enforces the act. Elliot Marcus, assistant commissioner of the department’s Bureau of Food Safety and Community Sanitation, is responsible for organizing 12 “environmental health technicians” and 60 public health “sanitarians” who check for violations in the city’s thousands of workplaces. These inspectors look for people smoking, cigarette butts, ashtrays and a lack of “no smoking” signs. They work a 3 p.m. to 11 p.m. shift; one bartender said that some bars with backrooms and basements turn into “smoke-easies” after hours.

“Inspections have gone extraordinarily well,” Marcus said. “Compliance is almost routine.” Marcus said that out of 26,000 inspections so far, only 982 have resulted in violations, and of those, only 340 were for evidence of smoking. Fines run from $200-$400 for the first violation, $500-$1,000 for the second offense, and from $1,000-$2,000 for the third offense. After that, the city can suspend or revoke an establishment’s business license. There is a six-week period between the citing of a violation and a mandatory hearing before an administrative judge. Fines go to the city’s finance department, which places them in a general fund.

Marcus said he was surprised by the degree of compliance. “New Yorkers and visitors are especially law-abiding,” he said, adding that he believed 80 to 85 percent of the public doesn’t smoke. “There are a lot of reasons in New York that business might be down. Smoking might be one of them, but I doubt it,” he said.

Bad for business?

Jen Sposito would beg to differ. Sposito, a legal assistant who also works at a bar on Staten Island, said business at her bar has dropped about 20 percent since the smoking ban, and that her tips are down to about $150 a night instead of $400. “When it gets too cold, it’s going to get bad,” the 23-year-old said, alluding to the packs of patrons who now congregate on sidewalks to grab a smoke. “It’ll be better just to get a six-pack and smoke at home.”

The ban has altered Sposito’s party habits: At clubs, she’s had to wait in line for a half-hour just to get her hand stamped so she could smoke outside. The ban has also inspired her to hit the bars of ban-free New Jersey. “The problem there is that the bars close at 2,” she said.

A drop-off in business can mean less money for staff. Teresa Drury, a manager at Beckett’s Bar and Grill, near Wall Street, said she had to fire one of her four waitresses after March 30. With business currently down about 30 percent, she hopes to rehire in the winter. “It couldn’t have been brought in at a worse time, with this economy,” she said.

Drury’s plight contradicts state labor department statistics, cited in July. At that time, seasonally adjusted employment in the city’s restaurants and bars grew by 0.9 percent between March and June of 2003, compared with 0.2 percent in the same period in 2002. “The data available thus far show that the Smoke-Free Air Act … has not had a negative impact on employment in bars and restaurants in New York City,” the health department said in a press release. “Thousands of lives will be saved because of this legislation,” city Health Commissioner Dr. Thomas R. Frieden said at the time. “Today’s data indicate that as with previous smoke-free laws in New York City and elsewhere, the law has not had an overall negative impact on business.”

Whether or not that’s true, some New York businesses outside the city are hoping to take advantage of a loophole in the Clean Indoor Air Act. It specifies that a health department officer may grant waivers to those that can prove the ban “would cause undue financial hardship.”

Determining what makes for financial hardship is each county’s responsibility. City officials said that there are no waiver provisions for city businesses in financial distress.

Attitudes differ on smoking question

“Smoking and drinking go together like peanut butter and jelly,” said Robbie Blender, a 31-year-old smoker who said he goes to bars less often because of the ban. “I think it’s the government trying to have more control. They’re saying, ‘We’re the boss and your freedom is at our granting.’”

Nancy Levy, who works as a hostess at the world-famous Fraunces Tavern Restaurant, said that although the ban is bad for business, as a non-smoker she appreciates it. “I think it’s lovely,” she said, in between seating the lunchtime crowd. “It makes people who don’t want to go to bars go all that much more. But I think it works better in warmer climates.”

Bob Raviz, who owns Euzkadi, a Spanish restaurant and bar in the East Village, said late-night business is down 50 percent at his intimate, funky restaurant with house-cured cod as its specialty. But for health reasons, the ban makes sense, Raviz said. “I’m a smoker and I think it’s good,” he said. “A lot of people are cutting down on smoking. I went from a pack to only a couple of cigarettes a day. You get used to it.”

New Yorkers have only themselves to blame, said Justin Verno, serving up margaritas at the Manhattan Chili Co. near Times Square. “They should have questioned Mayor Bloomberg’s agenda before they voted him in,” the non-smoking New Jersey resident said. “If they knew he was going to ban smoking in bars, he never would have been elected.”

Next door, at O’Lunney’s Times Square Pub, bartender Padraig Manny rolled his eyes at the mention of the ban. “It’s a stupid law,” he said. “It affects the atmosphere of the barroom. People used to stay two or three hours. Now they don’t stay as long.”

The native of Ireland shook his head at the idea of people in his homeland complying with a pub smoking ban set to begin there on Jan. 1. “Smoking and drinking — it’s part of the tradition,” he said. “It might work in the city, but it won’t work in the rural areas.”

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