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December 19, 2004
        Exchanging Cigarettes For Bagels
        By Gina Kolata

OBESITY is considered a major public health problem today, but a number of scientists are coming to see it as a comparative blessing, given the alternative. These public heath experts believe, in effect, that America may have traded smoking - a truly lethal habit - for the lesser deadliness of eating too much.

The story of this trade-off can be seen in the data. From 1973 until 1983, Americans were actually growing thinner. During that period, the average weight of middle-aged men fell about two pounds, while that of middle-aged women fell nearly three pounds.

Then the trend reversed: from 1980 to 2000, the average weight of Americans rose by nearly 20 pounds. Everyone got heavier, said Dr. David Williamson, a statistician at the Centers for Disease Control and Prevention. "Competitive cyclists weigh more than they did 20, 30 years ago; HIV patients weigh more."

Yet the nation also is healthier. Life expectancy has gone up by more than six years over the past three decades, and heart disease, long the major killer, is on the wane.

A big reason Americans are fatter and healthier, Dr. Williamson believes, may be the steep decline in cigarette smoking.

If he is right, the rise in obesity is a classic case of unintended consequences - one of a long list of medical and public health interventions whose full effects could not be foreseen.

For example, Americans once died in great numbers in infancy, or childhood, and women died in childbirth from infectious diseases. Now they don't - a triumph of public health. But as a consequence, the population is growing ever older, which is in turn creating a host of profound new public health challenges.

"We're just now trying to deal with the medical consequences" of an aging nation, Dr. Williamson said.

The connection between smoking and obesity is not yet proven, but the statistical correlations are there. From 1980 to 2000 - as body weight was rising - smoking rates fell by 27 percent in the nation as a whole and by 38 percent among middle-aged Americans. (Today, smoking rates have leveled off, Dr. Williamson notes, and there are signs that the obesity rates are leveling off, too.)

"There is no question that smoking affects the epidemic" of obesity, said Dr. Neil Grunberg, a psychologist and neuroscientist at the Uniformed Services University in Bethesda, Md.

Smokers who quit, he noted, gain about 10 to 12 pounds on average, in part because they crave sweet foods and carbohydrates. In addition, Dr. Grunberg said, smokers' metabolism slows down after they quit.

Dr. Michael Grossman, an economist, and his colleagues at the Graduate Center of the City University of New York have analyzed the economic causes of obesity. They have calculated, based on cigarette tax receipts, that for every 10 percent increase in the price of cigarettes, the number of obese people rises 2 percent. Smoking cessation, they estimate, accounted for 20 percent of the obesity increase in this country.

Dr. Katherine Flegal, a statistician at the National Center for Health Statistics, said the effect may be even bigger, once scientists add the upward effect on average weight of the growth in the number of Americans who, because of the success of the antismoking movement, never smoked in the first place.

One possible explanation, Dr. Williamson said, is that as the number of smokers started to plummet, the demand for calories went up and the food industry began offering and advertising larger portions and more snack foods. "The food industry in general subconsciously picked up on this and went to town," he said. Soon overeating more became the norm, for everyone, even children.

Over the same period, said Dr. David Musto, a historian of science at Yale, America's preoccupation with healthy foods - oat bran, broccoli, fish, etc. - also resulted in what he called a "barrage" of pro-eating commercial messages.

In the 1960's, Dr. Musto said, it was socially imperative to smoke. "A man had to know his brand" of cigarettes, he said. In much the same way, he said, it became socially imperative to eat the right foods - those supposed to be good for you.

"The process of becoming obese is greatly facilitated by a search for health and healthy foods," Dr. Musto said. "You've read that something fights Alzheimer's or lowers your blood pressure, so why shouldn't you have a healthy portion?"

It all makes for an odd and not entirely satisfactory coda to the antismoking crusade. But on balance, Dr. Williamson points out, a nation with an expanding waistline is in far better shape than one with a cigarette in its mouth. Obesity may be bad, he said, but the health effects of smoking are far worse.

"I sure would like for people not to be obese," Dr. Williamson said. But, he added, if they got that way because they don't smoke, then "maybe the sky isn't falling quite as much as we think it is."

November 30, 2004
        Review Finds Weaknesses in Program to Curb Smoking
        By Marc Santora

An independent review of the New York State Department of Health's $50 million program to reduce smoking found that it has repeatedly failed to spend all of the money available and has been unable to devise an advertising strategy to encourage people not to smoke.

The review, conducted by a research company hired by the Health Department and released on the department's Web site last Wednesday (www.health.state.ny.us), is three years overdue. While praising the strategic goals of the tobacco program and noting the success of higher taxes and tougher smoking laws in getting people to quit, the report states bluntly, "Funding may be insufficient to get the job done."

The report does note, however, that roughly 188,000 fewer New Yorkers are smoking today than there were in 2000, largely because of cigarette tax increases. It also finds that the number of New Yorkers supporting the state law banning smoking in most indoor spaces jumped from to 74 percent from 64 percent from 2003 to 2004. Even support among smokers for the law has grown to 37 percent from 26 percent.

New York formed the current Tobacco Review Program in 2000 as a requirement of the state's Health Care Reform Act. The law came on the heels of a legal victory by a group of states against the tobacco companies. New York's share of that settlement, in addition to revenues from increased taxes on cigarettes, was used to reshape how health care was financed in 2000. In 2003-4, money from taxes and the settlement added $5.7 billion to the state's coffers.

In rewriting the health care law, lawmakers required that New York follow the model of states like Florida and California and set up a tobacco control board. Although the Centers for Disease Control and Prevention in Atlanta recommends that New York spend $98 million annually on the effort, the program has had roughly $50 million a year available.

But the state spent $31 million in 2003, and $39 million the year before. In the four years since the program started, New York's average spending per capita ranked 28th nationally, according to data from the Campaign for Tobacco-Free Kids cited in the report. State health officials responded that in overall dollars, they spend more than any other state.

The goals of the program are to get people to quit smoking, decrease the social acceptability of smoking, keep young people from getting hooked and eliminate the exposure of nonsmokers to secondhand smoke.

While progress has been made in those areas, the report says that tougher smoking laws and higher taxes are the principal reasons, not the state's program.

William C. Van Slyke, a spokesman for the Health Department, said that the reasons for both the delay in the report and the shortfall in spending have to do with the complexity of such a large-scale program.

"Building a comprehensive program takes time, as does developing the best method for truly, independently evaluating that program," Mr. Van Slyke said.

He responded to the problems cited in the report by saying: "We don't embrace every criticism. However, it does provide us with suggestions that we think will make the program even better."

The report, 286 pages long, was completed by RTI International, an independent nonprofit research company with headquarters in North Carolina.

Russell Sciandra, the director for the Center for a Tobacco Free New York, said that the general underfinancing of the program was troublesome, but the fact that the state had failed to even spend the money allocated to it was unacceptable.

"The program, on par, is well designed," Mr. Sciandra said. "It is on execution that it is falling down."

The report is especially critical of the program's advertising efforts, citing two key weaknesses: "an ineffective countermarketing program and 'political interference' in program activities, especially countermarketing," referring to efforts to counter cigarette advertising.

Given that the tobacco industry spent $12.5 billion on domestic cigarette advertising and marketing in 2002, the report does not suggest the state compete dollar for dollar. Rather, it suggests that limited resources should be used more effectively.

Antismoking advocates can take heart from data in the report showing that 58 percent of smokers want to quit in the next six months. But the report also finds that many will not have the assistance they need.

In a statewide survey cited in the report, 58 percent of smokers reported buying tax-free cigarettes at least once in the past year. One major source of tax-free cigarettes has been Indian reservations. Gov. George E. Pataki has staunchly resisted taxing Indian sales, recently vetoing a bill that would have mandated that the state do so.

October 28, 2004
        Big Tobacco Draws a Small but Dedicated Crowd to Trial
        By Michael Janofsky

WASHINGTON - "I'd now like to show you United States Exhibit 85,518," the Justice Department lawyer said Wednesday as the witness took a deep breath and waited for more questions.

And so it goes in the government's $280 billion racketeering trial against the tobacco industry: another witness, another exhibit. Lawyers from the Justice Department and the nation's leading cigarette companies have been at it six weeks now. They have examined 16 witnesses, and the government has put on barely a quarter of its case.

Judge Gladys Kessler of Federal District Court has given each side six months to convince her that the companies either have or have not conspired over 50 years to keep America smoking cigarettes and addicted.

So far Judge Kessler has shown remarkable endurance and attentiveness, which cannot be said for everybody in the courtroom. While a witness on Tuesday discussed the intricacies of secondhand smoke, a defense lawyer dozed off briefly. Otherwise, the trial has been notable for its steady if lumbering pace, with dozens of lawyers, volumes of exhibits and the occasional admonition from Judge Kessler, the sole finder of fact, to keep things moving along.

At this early juncture, the legal equivalent of the second inning, it is much too soon to gauge which side is winning. Nor does Judge Kessler betray her thoughts.

"It goes back and forth, depending on the witness and the attorney who is questioning the witness," said Mary Aronson, a litigation and public policy analyst who feeds her expertise in tobacco-related issues by attending court on most days.

Early in the trial, the courtroom was packed with spectators, most of them reporters and lawyers. Once the opening arguments ended, and the parade of witnesses began, the audience shrank to a smaller handful of lawyers, a reporter or two, Ms. Aronson and an Internet writer named Gene Borio, whose daily blog is available on www.tobaccoontrial .com.

As part of the case, an appeals court is expected to rule next month on whether the government has the right to "disgorge" money from the companies that the government says is the ill-gotten profit from the conspiracy. If the appeals court rules for the companies and the $280 billion is no longer an issue, it is doubtful even Mr. Borio will stick around.

For now, though, the sparse crowd is due, in part, to the unusual way the lawyers are building the record. Judge Kessler has asked that all direct testimony be submitted in writing before the witness appears. That means when a government witness finally takes the stand, a defense lawyer rises for cross-examination.

But it does not always work out that way, as the examination of John P. Rupp, an industry lawyer called by the government as an averse witness, showed after he took the stand on Wednesday. Sharon Eubanks, an assistant United States attorney, resumed the direct examination because Mr. Rupp had amended many of his original answers.

Ms. Eubanks used him to try to show how industry officials wanted to counteract growing concern in the 1980's that secondhand smoke caused illness.

She presented him with a series of industry documents, many of them bearing on efforts to seek out scientific analyses that would refute claims that secondhand smoke was harmful. One document was a memorandum from a 1987 conference that Mr. Rupp attended where somebody suggested that the industry "create a bigger monster - AIDS" to turn attention away from public alarm over secondhand smoke.

Nonsense, Mr. Rupp replied sharply, saying: "I cannot believe it was discussed at all. I can't believe anyone responded to that or took it seriously."

He described the discussion that produced such a notion as "a nutty exercise."

The line of questioning was part of the government's promise in opening arguments to build "seven pillars of fraud" that prove the conspiracy. The questioning of Mr. Rupp touched on two of them: trying to prove that the industry hid the adverse effects of secondhand smoke and trying to prove that the industry promoted "independent research" that the government contends was anything but.

For the government to prevail in a conspiracy case, it must prove that bad acts in the past presage bad acts in the future. For the companies to win, their lawyers have to convince Judge Kessler that the companies are model citizens, incapable of committing bad acts.

It is an enormous challenge for one arbiter to absorb so much material, but Judge Kessler seems game. She presides over court from an elevated desk, with two computer monitors, one for the instant transcription of testimony and the other for exhibits as they are displayed on a giant screen for everyone else. Behind her is a row of spiral binders with trial-related documents.

She cracks wise every now and again and never seems to get so immersed in trial minutiae to lose sight of larger issues. About an hour after Donald K. Hoel, a former tobacco industry lawyer, took the stand a week ago, Judge Kessler noticed that he looked ill.

"Are you all right?" she asked. When Mr. Hoel said no, she walked to his side, signaled for a court officer to summon help and cleared the courtroom. A few hours later, Mr. Hoel, who was 72, died at a local hospital of an aortic aneurysm.

The next day, Judge Kessler opened the proceedings by calling Mr. Hoel's death "sad, very sad" and offered condolences to his family through members of the defense team who knew them.

They acknowledged her sentiments, and the next witness was called to the stand.

September 26, 2004
        Indian Sales of Tobacco Face New Pressure
        By Eduardo Porter

IRVING, N.Y. - Many people would love to put Larry Ballagh out of business. All antismoking groups, for instance. The National Association of Convenience Stores, too.

New York lawmakers would happily close him down. So would the attorneys general of most states.

The reason for all this animosity is that Mr. Ballagh, a hefty 65-year-old of half-Irish, half-Seneca American Indian stock, sells cigarettes nationwide over the Internet, free of state excise and sales taxes that can add as much $3 a pack to the cost of smoking.

The bustle in his offices on the Cattaraugus territory of the Seneca reservation here attests to the brisk growth of his business. There's the new extension to the warehouse, the high stacks of cigarette cartons, the huge piles of empty "Priority Mail" boxes waiting to be loaded and dispatched.

But as his venture has grown, so has the opposition to his trade. Fast-growing online sales of untaxed cigarettes - available for less than $25 a carton over the Internet compared with about $65 in New York City - are provoking a stampede of protests from a disparate collection of antitobacco groups, cash-strapped state governments and local retailers. These groups are hard at work in the courts, legislatures and in Washington to try to end the practice.

Earlier this year, the New York state legislature passed a law intended to force collection of excise taxes on tobacco and fuel sold by Native Americans to non-Indians. New York City, which estimates it loses hundreds of millions of dollars a year from untaxed cigarettes, is cobbling together a legal strategy that it could use against Indian tribes by characterizing the Internet sales as mail fraud. The revenue department of Washington State - which has successfully sued nontribal online vendors - is mulling lawsuits against Indian retailers.

The campaign has marshaled forces on Capitol Hill as well. Last December, the Senate passed a bill to stamp out untaxed cigarette sales over the Internet, and the organization representing state attorneys general is urging the House to do the same.

The trade group for convenience stores, meanwhile, has been lobbying intently for a different House bill that would take a harsher stance, explicitly allowing states to take Indian nations to court.

The widespread government hostility, however, has not dented the Ballagh family business. "We are adding about 80 to 100 new customers a month," said Charles Ballagh, Larry Ballagh's son and partner. At that rate, their venture would double in size in about two years.

Larry Ballagh's business remains hard to crack because it operates behind tribal sovereignty. States are generally barred by treaties from taxing Indian tribes or enforcing other laws against their activities. Businesses operated by American Indians have long taken advantage of this protection to sell tax-free tobacco products in reservation shops to non-Indians.

But the Internet has allowed the Seneca entrepreneurs to take their business to a new level. That has intensified the debate over the legality of such commerce, which has taken off in recent years as many states have sharply increased taxes on cigarettes.

Today, Mr. Ballagh regularly advertises in "Pennysaver" shopping sheets in states with high excise taxes. From Web sites like Mr. Ballaghs's travelingsmoke.com, and others like Senecahawk.com and Senecatabacco.com, smokers can buy cartons of Marlboro and Camel for as little as $24.25, compared to about $58 in a Hoboken, N.J., convenience store and $49 at a supermarket in Seattle.

At least a decade worth of rulings, ranging up to the Supreme Court, have determined that while states cannot tax Indian commerce, they can collect taxes on purchases by non-Indians from Native American businesses. States have limited power to enforce these decisions, however. Some tribes in other parts of the country defused the issue by negotiating deals with state governments to collect tribal taxes and eliminate their retailers' competitive advantage.

By contrast, the 7,500 Seneca, most of them living on the Allegany and Cattaraugus reservations in western New York, have dug in their heels. "Cigarettes have raised our standard of living," said Rickey Armstrong Sr., the president of the Seneca nation.

Even armed with a favorable court decision, Gov. George E. Pataki pulled back from a New York State plan in 1997 to tax Indian sales of cigarettes and gas after Seneca tribal members blocked traffic on the main state highway near their reservation. "We were out there, nose to nose, with state troopers," Mr. Ballagh said.

The Seneca are prepared for a long fight. Besides their official legal status, they also claim to have a unique exemption from taxes written into their treaty with the United States in 1842. They have recently launched marketing campaigns and hired lobbyists in Washington and Albany to defend their position.

"Break a treaty, break a law," reads a billboard on State Highway 86 on the Allegany reservation.

There are no precise figures on the size of the online tobacco market, but it is clearly growing rapidly. A report by Robert Campagnino, an analyst for Prudential Securities, estimated that about 2 percent of the 20 billion packs of cigarettes sold in 2002 were purchased over the Internet; Mr. Campagnino said that the figure today is probably around 3 percent.

Six percent of New York City smokers buy their cigarettes online, according to a 2003 survey by the city's health department. Eric Proshansky, a lawyer for the city who has been pursuing online cigarette retailers, said that one large Internet operation sold 41 million cartons of cigarettes nationwide in a little over four years. Somewhat under 10 percent of those, he estimated, were sold in New York City, costing the city and state over $160 million in lost tax revenues.

Not all of these cigarettes come from Indian reservations. Non-Indian entrepreneurs in low-tax states like Virginia, where the excise tax on cigarettes is 20 cents a pack, have made a hefty profit selling cigarettes to smokers in high-tax states.

Foreign suppliers have also jumped into the business, shipping duty-free cigarettes to American customers. Officials in New York suspect that some non-Indian online retailers operate under the guise of Indian outfits. And illegal sales of untaxed cigarettes, run by criminal gangs, are not uncommon.

Yet sales from Indian reservations, particularly from the Seneca lands, clearly account for a big portion of the growing business. A study commissioned by the Seneca tribal government found that Seneca cigarette sales totaled $347 million last year. About 95 percent were sold via the Internet or phone; the balance was accounted for by sales from the smoke shops that dot Seneca lands.

And they are much harder to curb than non-Indian businesses. Washington State's attorney general has taken nontribal online cigarette retailers to court, but he has so far avoided suing Indian operations. "With tribal sellers, we have in the first instance taken a diplomatic, government-to-government approach," said David Horn, an assistant attorney general for the state.

Philip Morris has sued foreign and nontribal Internet tobacco retailers, but no Indian ones.

A project led by Kurt M. Ribisl of the University of North Carolina's School of Public Health found 725 English-language Web sites selling cigarettes last January. He tracked 403 to specific locations: 42 percent were American Indian sites, 33 percent nontribal sites in the United States and 25 percent foreign-based. Of the 168 Web sites operating from tribal lands, New York Seneca entrepreneurs ran at least 126.

Among the most vociferous opponents of the online retailers are the nation's 130,000 or so convenience stores; cigarettes account for about 40 percent of nongasoline sales. Stores along the borders of reservations have complained of the Indians' tax advantage for years. The Internet spread the pain.

"It changed the dynamic," said Lyle Beckwith, senior vice president for government relations at the National Association of Convenience Stores. "Now it affects retailers all over the country, not just in some states."

The amount of commerce bypassing state taxes is growing fast. Since 2002, 35 states have sharply increased their excise taxes to shore up their budgets and as a public health measure to encourage more smokers to quit.

Connecticut, for instance, increased its tobacco excise tax twice, from 61 cents to $1.51 a pack. In July, Michigan increased its tax from $1.25 to $2.

When taxes were raised in the past, most smokers would pay the increased price and keep smoking. Some quit. But today, according to a forthcoming research paper by Austan Goolsbee, an economist at the University of Chicago, and Joel Slemrod, a professor at the University of Michigan, many more smokers, rather than pay up or give up smoking, buy untaxed cigarettes online instead.

In 2002, New Jersey raised its tobacco excise tax from 80 cents to $1.50 a pack, one of the highest rates in the country at the time. The share of smokers who said they had bought cigarettes online jumped to 6.7 percent from 1.1 percent two years earlier, according to a survey by researchers at the University of Medicine and Dentistry of New Jersey.

In the end, though, the online tobacco business may be stamped out - or put under tighter control - by the combined weight of its opponents.

There is already a law on the books that could curtail the practice. The Jenkins Act requires retailers who ship cigarettes to smokers in other states to provide state governments with a list of their customers so they can collect excise taxes directly. Properly enforced, it would eliminate incentives to buy cigarettes online.

The law is mostly ignored by retailers, though, and rarely enforced by the federal government.

Last December, the Senate unanimously passed a bill to strengthen it by barring cigarettes from being mailed, along with other provisions. To obtain the support of Native American tribes, the bill explicitly said it would not affect Indian nations' sovereign status.

"We think it's a pretty good bill," said John Dossett, general counsel of the National Congress of American Indians. "There are sections in there that protect our interests."

But the legislation's future is uncertain. The House has failed to act on it. Carriers like U.P.S. oppose a provision requiring them to check whether a package includes tobacco. And the association of convenience stores, hoping to win support for a tougher bill, objects to the clause protecting Indian sovereignty.

"If you don't deal with the Indians,'' Mr. Beckwith said, "you don't solve the Internet tobacco problem."

September 14, 2004
        U.S. Court Considers a Once-and-for-All Tobacco Lawsuit
        By William Glaberson

The federal appeals court in New York is considering a case that could radically reshape the national legal battle over the health effects of cigarettes and could set the stage for the largest verdict ever against the tobacco industry.

A three-judge panel of the United States Court of Appeals for the Second Circuit is reviewing a novel and sharply controversial decision by a federal judge in Brooklyn, who ruled two years ago in a class-action suit that he would subject tobacco companies to a single national trial that would determine once and for all whether the companies should be assessed punitive damages for concealing the health hazards of smoking.

The judge, Jack B. Weinstein of United States District Court, said he would preside over a huge trial that would not evaluate individual claims for compensation, but would decide only whether the country's tobacco companies should be assessed punitive damages because of the harm done to millions of smokers and their survivors.

Saying "the time for bringing a close to tobacco litigation is nigh," Judge Weinstein said in court that his trial could bring a resolution of the tobacco legal wars that have inched along in the courts for decades. The trial he proposes, he said, "would be the end of punitive damages in Tobaccoland."

Verdicts assessing millions and sometimes billions of dollars in punitive damages, which are meant to punish and deter wrongdoing, have been the focus of furious complaints by industries in recent years and several critical rulings by the United States Supreme Court.

But lawyers with experience in tobacco cases say a national trial to determine punitive damages involving the claims of millions of smokers could invite jurors to hand down a verdict of unprecedented size. In a case involving claims by smokers in Florida alone, a jury in 2000 awarded $145 billion in punitive damages to the plaintiffs. The award was overturned by an intermediate appeals court, and the appeal process is continuing.

Though the Brooklyn case has attracted little public notice, it has drawn wide attention among corporations nationwide because of the impact it may have on damage suits against many other industries. Many groups, including the Chamber of Commerce and the National Association of Manufacturers, have submitted written arguments opposing the trial.

The case has spawned articles and debate among legal experts because of its central suggestion that in some cases where mass injuries are involved, the legal system's reliance on individual suits is inadequate. Judge Weinstein said fairness required that no plaintiff wins a huge award that bankrupts a company and leaves little for thousands of other injured people.

Punitive damages recovered from the companies, Judge Weinstein said in his ruling, could be distributed to ailing smokers and deceased smokers' families and used for treatment, research and antismoking activities.

Judge Weinstein's proposal "is a very novel idea that is untested in the law," said Catherine M. Sharkey, a Columbia University law professor who is a specialist in punitive-damage issues.

The case began in 1999 as a more traditional class-action suit, filed by lung cancer victims seeking compensation from tobacco companies. But after Judge Weinstein suggested in court that the case could be restructured to deal with tobacco issues in a much broader way, the plaintiffs' lawyers filed a new suit in 2000, asking for the once-and-for-all determination of punitive damages.

Under his order, individual smokers and their survivors could still sue for compensation for lost income or health care costs. But the trial would foreclose claims for punitive damages by all smokers who received a diagnosis of any of 16 smoking-related diseases, including cancer and heart disease, between 1993 and the start of the trial.

The appeals court heard oral arguments last November. In filings to the appeals court, the tobacco companies labeled the ruling a breathtaking, arbitrary, baseless analysis that ignored Supreme Court rulings. Theodore M. Grossman, the lawyer who argued the appeal for the tobacco industry, said in an interview last week that Judge Weinstein was trying to undo a centuries-old adversary system of case-by-case justice.

"He is a very bright man," Mr. Grossman said, "who has a very clearly stated agenda that is inconsistent with what appellate courts and courts across the country have said is required by the Constitution."

But Samuel Issacharoff, a visiting professor at New York University Law School who is working with the plaintiffs' lawyers in the tobacco case, called the judge's approach a bold and creative effort to deal with issues that have troubled American courts in mass-liability cases for decades.

Defective products can have widespread effects that the legal system has difficulty handling, said Professor Issacharoff, an expert on mass-injury cases. Among the most difficult questions for courts, he said, are those Judge Weinstein is grappling with, like how to calculate ways of punishing corporate misconduct that has affected millions of people.

"It's hard to think of a more important issue in civil litigation today," Professor Issacharoff said.

Whatever the Manhattan appeals court decides, lawyers say, it seems likely that the United States Supreme Court will be asked to review the case before any trial begins.

The appeal of Judge Weinstein's decision has exposed alliances often unseen in large liability battles. The trade group for plaintiffs' lawyers, the Association of Trial Lawyers of America, filed a brief backing the position of the tobacco companies, as did the American Cancer Society.

An association lawyer, Robert S. Peck, said the trial lawyers were concerned that no smoker could seek punitive damages individually. He said his group viewed that as an unfair limitation on victims' rights, and could recall no other case in which the association had sided with an industry against plaintiffs seeking damages.

Richard A. Daynard, chairman of the Tobacco Products Liability Project at Northeastern University, which works to foster lawsuits against the industry, also signed onto a friend-of-the-court brief urging the appeals court to reject Judge Weinstein's approach.

Professor Daynard, a harsh critic of the tobacco industry, said in an interview that one concern with Judge Weinstein's proposal was the enormous risk to tobacco critics.

Tobacco lawyers are known for fighting cases relentlessly. One case in Brooklyn, no matter how big, he said, might not end with the gargantuan punitive-damage award for which critics of the industry have long been hoping.

"The problem with it," Professor Daynard said, "is it's putting all the eggs in terms of possible litigation against the industry in one basket. Everything would be one litigation, one jury verdict."

August 21, 2004
        Mayor's New Olympic Pitch: The City That Never Smokes
        By Winnie Hu

Nobody smokes in New York City anymore. At least that is the perception of Mayor Michael R. Bloomberg, who cited that information yesterday as another reason the Olympics should be held in New York,

The mayor made the comments in Athens, where he has been trying to bolster New York City's bid for the 2012 Summer Olympics.

"The benefits of stopping smoking are demonstrable, and I think that one of the great things about New York is that nobody smokes anymore," Mayor Bloomberg said to reporters at a news conference.

"Very few people smoke in New York City - the number of people that are smoking is declining precipitously and, for the first time since, I think, World War II, life expectancy in New York City is higher than it is on average in the United States."

Mayor Bloomberg has been at odds with the city's smokers since he pushed through an indoor smoking ban more than a year ago that is one of the toughest in the country. The ban, which took effect in March 2003, all but banished smokers from bars and nightclubs. State officials later passed a similar smoking ban.

This spring, New York City health officials reported that the number of New Yorkers who smoke had dropped to 1.1 million in 2003, from 1.3 million the year before. City health officials called it "the fastest drop in smoking rates ever recorded nationally.''

Mayor Bloomberg said yesterday that people have accepted smoking bans in places as far away as Ireland. "We didn't ban smoking in New York," he said. "We just banned you from forcing somebody else to smoke. So you can smoke when you are out by yourself."

But critics immediately accused the mayor of being out of touch with reality with regard to no one at all smoking.

Bob Zuckerman, executive director of the New York Nightlife Association, which represents about 200 bars, clubs and lounges, invited the mayor to join him on a stroll down Avenue A in the East Village on a weekend night. "Let's see if he would still make the same comment," he said.

Sandee Wright, a co-owner of the Whiskey Ward on the Lower East Side, said that most of her customers were smokers who have not accepted the smoking ban. "He's a P.R. machine," she said of the mayor. "I think he's just trying to make people believe what he believes, and it's unrealistic."

August 14, 2004
        Sometimes a Cigar Is Just Illegal, G.O.P. Is Told
        By Jennifer Steinhauer

In the 1920's, New York was dotted with speakeasies, where revelers could sip illegal cocktails in clandestine sites. During the Republican National Convention of 2004, there may be a number of smoke-easies, places where cigarettes and cigars will be puffed below the radar screen of the law.

Under state and city laws, smoking is banned in bars and restaurants. The rare exceptions include cigar or cigarette bars that receive at least 10 percent of annual gross income from the sale of tobacco products.

But sometimes, when an exemption is not granted, bars allow their revelers to light up anyway, hoping that no one will notice.

The McPherson Group, a lobbying firm in Washington, has cordially invited guests to "imbibe and enjoy the pleasures of a good cigar" during its party at the Carnegie Club in Midtown on Aug. 31, in the middle of the convention.

The return address on the envelope has a design featuring a large apple figure chomping on a stogie, with the tagline, "Smokin' in the big apple."

But unlike many cigar clubs that will be holding parties that week, the Carnegie Club has not won the exemption needed to permit such a party.

According to city Health Department records, the club applied for an exemption in June but was denied one because of incomplete documentation. It then resubmitted its application on Aug. 5, and the answer is pending.

The application takes one to two months to be processed. Further, the club has been inspected by City Health Department workers and has been cited for smoking violations many times, said Sandra Mullin, a spokeswoman for the department.

At the Carnegie Club's parent company, Hospitality Holdings, a woman who identified herself as Dawn seemed perplexed by a reporter's inquiry, saying at first that no smoking was allowed at the club, then saying that it was allowed, before finally adding that the McPherson Group party was "a private affair."

She then hung up the phone. Calls to three principals at the McPherson Group went unreturned; a receptionist said many people there were out of town or on vacation.

Mayor Michael R. Bloomberg is under pressure to ensure that well-heeled cigar lovers are held to the same standards as those who prefer skinnier forms of tobacco. The mayor drew fire in January for attending a black-tie dinner at the St. Regis Hotel where Wall Street tycoons smoked cigars openly.

"We are not granting any special favors to any establishments," Ms. Mullin said.

August 13, 2004
        Secret Galas, Shrouded in Smoke
        By Jennifer Steinhauer

Political conventions bring to mind smoke-filled rooms where deals of great import are made. But no longer in New York, where smoking is banned - except in a few exclusive places.

A handful of cigar bars around the city will hold private parties during the Republican National Convention. They include the Grand Havana Room, a private club that rests luxuriously on the 39th floor of 666 Fifth Avenue, where former Mayor Rudolph W. Giuliani will be the guest of honor at a party that week.

Under state and city laws, smoking is banned in bars and restaurants, with few exceptions. Among them are bars that get at least 10 percent of annual gross income from the sale of tobacco products. That includes the Grand Havana Room, where smokers can puff away among the "mahogany paneling, blue velvet curtains and thick leather armchairs."

The description comes from the bar's Web site; as the woman who answered the phone at the bar pointed out, it is a private club. Membership is by invitation only.

Before hanging up, the receptionist at the bar said that she could not confirm what she had just confirmed, that Mr. Giuliani's party will be one of several during the convention. She cited "security concerns" in refusing to divulge details.

As it turns out, people who run cigar bars are not terribly interested in bragging about their guest lists.

Bob Moylan, the vice president of Club Macanudo on the Upper East Side, said his place would be closed the week of the convention in order to accommodate private parties. For whom he would not say. "That's all the information available at this time," he said. If I were invited would I see interesting people there? "I'm sure you would," said Mr. Moylan, who then added that it was time to end the conversation.

At Circa Tabac, on Watts Street in SoHo, there are two private parties booked, said the owner, Lee Ringelheim, who added, "I have a feeling we'll be booked every night."

The secrecy over guest lists may be about creating an aura of exclusivity. However, convention officials have asked establishments to avoid providing the news media with details, in an effort to avoid both terrorist attacks and protesters.

Mayor Michael R. Bloomberg, who is vehemently anti-smoking, would not automatically disdain an invitation to Mr. Giuliani's party, said his press secretary, Edward Skyler. "He wouldn't not go on account of where it is being held."

July 16, 2004
        Senate Approves Tobacco Buyout and New Curbs
        By Carl Hulse

WASHINGTON - After years of resistance by lawmakers from tobacco states and the cigarette industry, the Senate overwhelmingly approved new federal regulation of tobacco products and advertising on Thursday as part of a deal to buy out the nation's tobacco growers and end price supports that date from the Depression.

Until now lawmakers from the tobacco belt have opposed allowing the Food and Drug Administration to regulate tobacco. But they signed off on the new oversight in exchange for a $12 billion, 10-year program to aid tobacco growers struggling for survival in light of lower prices resulting from less smoking and increased imports.

Senator Mitch McConnell of Kentucky, a chief author of the measure adopted on a 78-to-15 vote , called it a "marriage of convenience."

Senator Jim Bunning, Republican of Kentucky, said: "I think F.D.A. regulation is a bad idea. But my growers are in dire straits and they need help."

The tobacco proposals were added to a tax bill intended to help American corporations escape new European tariffs. That measure was sent for negotiations with the House, which has adopted its own $9.6 billion tobacco buyout without any new federal regulation of tobacco products. House members said they would resist giving the F.D.A. the new power, but some privately acknowledged that it might be the price of grower relief.

Under the legislation, the agency would gain the authority for the first time to regulate the sale, distribution and advertising of cigarettes and smokeless tobacco. It would have the power to require manufacturers to better disclose the contents and consequences of their products in new, stronger warning labels on packages.

Cigarette companies would not be able to label their brands as reduced risk "lite" or "ultra-lite" products unless certified by the government. Magazine advertisements could be printed only in black and white. The authors of the legislation said that the agency would not, however, have the ability to ban cigarettes without Congressional approval.

Some senators, praising the agreement as long overdue, said it would help cut smoking among the young by taking some of the appeal out of tobacco ads while giving smokers more information about what is contained in tobacco products.

"A lot of lives will be saved by this bill," said Senator Mike DeWine, Republican of Ohio, a chief sponsor along with Senator Edward M. Kennedy, Democrat of Massachusetts. "This is the right thing to do. The time for this bill is now."

Critics said the bargain struck to get the legislation through the Senate was a bad one, funneling billions of dollars to some who own the rights to grow tobacco, but are no longer engaged in farming it while adding new federal regulatory powers in legislation that had received little scrutiny.

"That is ludicrous," said Senator Don Nickles, Republican of Oklahoma. "What a waste of money."

A federal program was created in the 1930's to control the quantity of tobacco grown and guarantee a minimum price. Producers were given an allotment, known as a quota, that they could grow and market. But as demand for tobacco has decreased, the value of the quotas has declined, prompting some producers to call on the federal government purchase the quotas from them.

The authors of the tobacco deal warned that it could still fall apart, but said that this was the farthest such a proposal had ever gone.

"A change is coming," said Mr. McConnell, who described the legislation as historic as far as his home state was concerned and as a turning point for a crop that has been intertwined in America's heritage.

The tobacco buyout was thrust into the presidential campaign recently when President Bush said he backed the current system, leading Republican members of Congress to step up their pursuit of aid to growers across the Southeast to offset political damage from the White House stance.

Lawmakers said they were confident they could win White House endorsement of any final tobacco plan negotiated between the House and Senate. Senator John Edwards, the North Carolinian running alongside Senator John Kerry on the Democratic presidential ticket, welcomed the Senate action and used the vote to remind growers of the president's earlier statement.

"I hope President Bush, who recently said he thought the system was just fine, will see the light and help us pass this legislation," Mr. Edwards said.

The F.D.A. sought to assert regulatory jurisdiction over tobacco on its own in the 1990's but was rebuffed by the Supreme Court. The Senate rejected F.D.A. control in 1998.

Mr. Kennedy said, "This is the most important step we can take for public health short of curing cancer itself."

The legislation was the product of careful negotiations between lawmakers representing the tobacco-producing states, Senate advocates of the new federal regulatory authority, growers, and representatives of Altria Group Inc., the parent company of Philip Morris USA, the nation's largest tobacco company.

"As with all legislative compromises, this legislation reflects a lot of difficult choices by everyone involved," said Mark Berlind, legislative counsel for Altria, who said that tinkering with the bill in conference could scuttle the deal.

His company's chief competitors have opposed the plan, saying the advertising rules would give Philip Morris a marketing advantage by making it harder for smaller companies to win new customers. Tommy Payne, an official at R.J. Reynolds Tobacco Company, said the measure "fails to make U.S. tobacco farmers more competitive and would be financially disastrous for tobacco manufacturers, their employees, their business partners and adult smokers, many of whom are lower- and middle-income wage earners."

Under the Senate buyout portion of the plan, more than 400,000 quota o would receive payments based on poundage. The Senate would generate the money through an assessment on manufacturers and importers; the House would use a portion of federal cigarette taxes.

The buyout has been criticized as a boon for the rich since a recent analysis of the House plan by the Environmental Working Group found that more than 400 large quota holders would receive $1 million or more and that 10 percent of those eligible would receive 67 percent of the money. Senators said that they expected that thousands of struggling growers would use the buyout to pay off their debts and quit the tobacco business. And they warned that many faced financial ruin without help this year.

"Status quo is simply not an option," said Senator Elizabeth Dole, Republican of North Carolina.

Some senators said they were far from happy with the bailout, but considered it acceptable to win federal health authority.

"If that is the only way that we can get F.D.A. regulation of tobacco products, all right I will buy that compromise," said Senator Richard Durbin, Democrat of Illinois and a longtime anti-smoking advocate.

July 1, 2004
        Offbeat Marketing for Cigarettes
        By Melinda Ligos

Three years ago, after leaving a marketing job at the Brown & Williamson Tobacco Corporation, the maker of brands like Kool and Viceroy, Patrick Carroll embarked on a quest to create a boutique alternative to Big Tobacco's mass-produced cigarettes.

"I had $100,000 in my pocket and some marketing know-how, and I figured, 'How hard could it be to start your own tobacco company?' " said Mr. Carroll, who is 33. "In retrospect, I was an idiot."

Certainly, his timing could have been better. Mr. Carroll, now the chief executive of Freedom Tobacco International Inc. in New York, rolled out a line of cigarettes in March 2003 called Legal. Days later, New York City banned smoking in bars, and a few months after that, New York became the first state in the country to outlaw the online purchase of cigarettes by its residents. (Freedom's main distribution mode is through online Web sites like dirtcheapcigs.com.)

As if those restrictions were not enough, New York recently required cigarette makers to make their products self-extinguishable by the end of this year. More daunting still, other states are considering bans on online cigarette sales, Mr. Carroll says, and most require new tobacco companies to put aside money in escrow accounts to guard against future lawsuits. "As far as regulations go, we've hit our share of roadblocks," he said.

Mr. Carroll and his business partner, Thomas Burg, a fellow graduate of the business school at Indiana University, say they have no moral qualms about selling a product that causes cancer, despite all the hate mail and denunciations from antismoking activists that are directed at them.

And they have responded to the legal and regulatory constraints on their product with entrepreneurial flair, elbowing their way into niche outlets like Manhattan bodegas, negotiating with overseas distributors and pulling off publicity stunts to grab attention for their cigarettes, which they promote as the "honest alternative to Big Tobacco."

First, they planted models outside of Manhattan bars to talk up the cigarettes. Then, last August, they offered a lifetime supply of cigarettes to celebrity smokers. Though no one immediately came forward to accept, the offer got a lot of press (and drew the wrath of tobacco foes). On the morning after Mr. Carroll talked about the offer on a local news program, Mr. Burg recalls the pandemonium in their tiny Manhattan office. "We already had 250 e-mails, and the phone was ringing off the hook," he said. "As soon as Pat walked in I said, 'You'd better get in here. We've just hit the big time.' "

Just a few weeks later, Freedom attracted more attention when it paid more than $20,000 to sponsor a fashion show in Manhattan put on by the design team As Four. During the show's finale, the designers pranced down the runway smoking Legal cigarettes, and audience members were given packs of Legals as parting gifts. "There's no question that being part of pop culture in this way boosts our profile as a company," Mr. Carroll said.

More recently, Mr. Carroll pledged to give free cigarettes to the United Nations and foreign consulates in New York, which are exempt from the city's smoking ban, if they opened their doors to New York smokers. He said he dreamed up the idea for that when he learned that Greek nationals were meeting at the Greek consulate to smoke.

"I figured if they were willing to share their diplomatic status with us, I'd be more than happy to share my cigarettes with them," Mr. Carroll said. So far, there have been no takers.

In another marketing coup, Mr. Carroll enlisted the friend of a friend to persuade one of the characters in "The Sopranos," the popular HBO series, to smoke Legal cigarettes during the taping of an episode.

Such antics offend some critics. Paul Bloom, a marketing professor at the University of North Carolina at Chapel Hill, worries that offering free cigarettes to celebrities will encourage more minors to smoke. "In my opinion, it's a very irresponsible tactic," said Mr. Bloom, who studies how to reduce tobacco consumption by young people.

Mr. Carroll has set the ambitious goal of increasing sales to $3 million this year from $500,000 in 2003. To reach it, he says, he and Mr. Burg and the company's four sales representatives will have to find more vendors for the product, which is made in North Carolina from imported Colombian tobacco and comes in regular and menthol varieties.

While the company has not been able to penetrate large retailers like 7-Eleven, it has made inroads with mom-and-pop shops, especially in Manhattan.

"As a little company, we can't write big checks for shelf space like the major brands sometimes do," Mr. Burg says. Instead, he said, he and his team have wooed the owners of small stores and bars.

"We can't write a check, but will be on time for appointments, and we will kill 'em with kindness," he said. "We've been told we aren't as arrogant as some of the salespeople from the bigger companies."

One online retailer, Scott Maybee, owner of Smokesignals.com, which sells Legal cigarettes, said he was getting repeat orders from consumers who like the cigarettes' taste. "People like the idea of a small, microbrewed cigarette," Mr. Maybee said. Legal cigarettes sell for about $6.50 a pack in New York City but are listed for as little as $24 for a carton of 10 packs on some online sites.

Right now, Mr. Carroll and Mr. Burg are concentrating on signing up a major vendor and on moving into the overseas market. And they say that a company based in Dubai has shown interest in buying 1.5 million cartons of Legal cigarettes a month to distribute throughout the Middle East.

Mr. Carroll said he was negotiating to buy his own tobacco factory in North Carolina to help speed the manufacturing time.

With antismoking regulations multiplying in the United States and with public sentiment turning increasingly hostile toward tobacco sellers, how do Freedom's founders cope with the reams of hate mail that they say floods their office - or, for that matter, with their own consciences?

Reasonably well, they say. Mr. Carroll, who considers himself a "social smoker," indulging mainly when he is having a beer, refrains from talking about his business with his uncle, whose father died of emphysema. A graduate school professor whose mother died of smoking-related cancer expressed his disapproval of the venture. "It was a real sticking point," he said.

And just a few weeks ago, he received a letter from an 8-year-old saying that it was the fault of tobacco companies like his that his father had cancer.

Another writer was more blunt, telling Mr. Carroll that he deserved to get AIDS because of his line of business. His own mother is reluctant to tell her friends what he does for a living, he says.

But Mr. Carroll is fiercely unapologetic. And Mr. Burg, a nonsmoker who was initially reluctant to enter the business, now matches his partner's resolve. "I had to sort of play out the moral standpoint before I went into business with Pat," Mr. Burg said.

"But after I talked to a bunch of enthusiastic smokers, I said to myself, 'This industry has been a staple of American business for over 200 years, and a lot of people enjoy it.' " he said. "When I thought about it that way, I realized that I didn't have a problem with it at all."
 
 
 
 



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December 27, 2004
        PUSH ON FOR SMOKE-FREE FLICKS
        Page Six

Not content with trampling smokers' rights, the New York State Dept. of Health has launched an insidious campaign to erase all traces of tobacco from the movies.

The department's tobacco control program was behind the formation of Reality Check, a well-funded group supposedly started by and for teens against smoking. One of R.C.'s missions is to eradicate smoking from the movies, and their methods have put some noses out of joint.

In fact, it's causing conflict between state agencies, since R.C.'s programs are clashing with the artistic freedom espoused by the New York State Council on the Arts. In particular, R.C.'s operation to sponsor independent film festivals and then demand that no smoking be shown has caused some hard feelings.

The Arts Council helps fund the Woodstock Film Festival, based in the arty upstate burg bearing its name. Reality Check sponsored this year's festival as well, which was attended by the likes of Peter Gabriel, Laura Linney, Sam Rockwell, Fisher Stevens and Matt Dillon.

A couple of months ago, filmmaker Ford Crull was planning to make a promotional trailer for this year's Woodstock festival, done as a spoof on film noir and naturally containing a smoking scene. But he was told to scrap it because of R.C., which demanded an on-screen smoking ban.

Crull informed Karen Helmerson, director of electronic media and film at the state arts council, of the censorship. Helmerson has now blasted R.C.'s "subversive repres- sion of creative interpretation and creative speech."

"I will certainly bring this to the attention of our chairman to learn what, if anything, we can do as a state agency and arts funder," Helmerson wrote to Crull. "This is atrocious, of course. Made worse by the bogus claim that this is a youth-initiated movement."

Insiders say Reality Check plans an even more outrageous campaign, however. In addition to pressuring studios to keep smoking and cigarettes out of new movies — beginning with all films rated G, PG and PG-13 — the group actually wants the smoking scenes removed from classics like "Casablanca," "Rebel Without a Cause" and "Breakfast at Tiffany's."

Dept. of Health spokesperson Claire Pospisil promised to look into the issue.

December 12, 2004
        CIG-NIFICANT REWARDS FOR KID BUTT PUSHERS
        By Lindsay Powers and Angela Montefinise

Some of the city's best and brightest students are using their brains to sell butts — and earn $200 a week.

A small group of students at Stuyvesant HS have made names for themselves hawking illegal foreign cigarettes to fellow students, most of whom are underage.

The baby-faced entrepreneurs, who didn't want to be named, said they purchase 10-pack cartons of cigarettes for less than $20 from Manhattan "suppliers" or from Web sites.

They then sell the packs for $4 a pop — a more than 100 percent markup.

One kid selling smokes from his backpack said his parents not only know about his black-market business — they condone it.

"This way, they don't have to give me an allowance," he said.

It is unlawful to sell cigarettes without a license, to sell unstamped cigarettes, or to sell to minors.

Another baby-faced cigarette-seller said he usually blows his $200 weekly profit gambling.

The dealers stock what the students like — Parliament Lights, Camel and Marlboro. They mix the packs up in one carton, which they conceal in their black messenger bags.

The packs don't look like the smokes sold in stores — the writing is usually not in English. One pack of Parliament Lights sported a Romanian label.

A 14-year-old Stuyvesant freshman, dressed like most of his classmates in designer jeans and a puffy coat, said he buys three packs a week from the teens.

"They're the best," said another student. "I buy from them all the time. Everyone in the school knows to go to them."

Perhaps as disturbing as the illegal activity itself is the admiration it seems to elicit among the business-savvy student body.

"These kids are geniuses," said a classmate. "They make a ton of money."

The dealers — who "float between cliques" according to students — operate less than a block away from Stuyvesant every day, slyly exchanging money for goods after school.

But don't expect to see the dealers — described as good students — lighting up.

"The dealers never smoke," said one Stuyvesant student. "They're not involved in anything bad."

December 6, 2004
        CIGARETTE BURN
        By Nicole Gelinas

A FEDERAL judge could soon burn billion-dol lar cigarette holes right through the tattered fabric of New York state's finances. But don't blame her — the blame belongs to Gov. Pataki, Assembly Speaker Sheldon Silver and Senate Majority Leader Joe Bruno.

For several years running now, the state government's regular expenses have outpaced its normal income by the billions. But each year, Albany's Big Three have masked that structural gap with one-shot revenues — that is, by whatever they could beg or borrow.

A big chunk of last year's smoke-and-mirrors came from real smoke: New York's share of a $206 billion payout from Philip Morris, R.J. Reynolds and two smaller tobacco companies to settle a massive lawsuit with 46 states. Problem is: that money wasn't guaranteed, and it's now at risk — but New York's leaders have already spent our share.

The cigarette sellers agreed in 1998 to pay the $206 billion over 25 years — with one big catch: The funds would come only out of future profits.

But New York's pols didn't feel like waiting. Last year, the state issued $4.5 billion in cigarette-backed bonds — 10 percent of New York's $47 billion debt — to help close a two-year, $12 billion budget gap. Big Tobacco still pays money each year to New York over 25 years — but the state now uses that money to repay the bonds.

Lots of states did the same thing — but Bruno, Silver & Co. went a step further: To get the most cash on the barrel, they bestowed a taxpayer guarantee on New York's tobacco bonds. If Philip Morris et. al. can't make good on their promise, taxpayers are on the hook.

And now Washington is looking to milk the tobacco cow — to death.

In 1999, then-Attorney-General Janet Reno filed suit in federal court against the same Big Tobacco firms — Reno wanted to replicate the states' windfall. John Ashcroft has doggedly pursued the case — and it has finally come to trial before U.S. District Court Judge Gladys Kessler.

The suit alleges that tobacco execs convened in New York's Plaza Hotel in 1953 to hatch "an extensive scheme to deceive and defraud the public and consumers of cigarettes, in violation of RICO" — the federal Racketeer Influenced and Corrupt Organizations Act, passed to prosecute mobsters.

The central claim is that the tobacco execs were just mobsters with better tailors, conspiring over five decades to lie about the perils of smoking. So the feds are suing for the "disgorgement" of all 50 years of profits — $280 billion in total.

Kessler already ruled before the trial began that this "disgorgement" penalty will remain on the table if the government wins the case. A federal appeals court has paused Kessler's trial to appeal that ruling. But if it stands, the tobacco companies will likely settle the entire case before Kessler reaches a verdict. Otherwise, they'd risk bankruptcy.

The feds will likely settle up with Big Tobacco sometime next year, JPMorgan Chase analyst Martin Steinik thinks. New financial penalties would be paid by smokers through ever-higher prices: JPMorgan estimates that Big Tobacco would hike pack prices by 17 percent to settle up.

That settlement would cut into New York's take of the tobacco industry's future profits.

Smokers, after shouldering price hikes for years, have mounted a sullen strike. (Legal) cigarette shipments were down 5 percent last year — startling executives and tax collectors, who thought that the smoker would always keep smoking without regard for damage to lungs or wallet.

But the state Health Department said last week that 188,000 New Yorkers have quit smoking since 2000 — mostly due to tax hikes. If the feds force Big Tobacco to hike prices again, Silver, Bruno and Pataki may find that they've built their budget on the wrong end of a tipping point — consumers may be unwilling to pay $8 a pack, and tobacco payments to New York would shrink.

And what if Big Tobacco won't settle — and opts for a game of chicken with the governors' lobby?

This possibility illustrates the real danger of the states' collusion with cigarette salesmen: States are now major creditors — and thus agents — of Big Tobacco. Tobacco execs know that states — led by Pataki and California Gov. Arnold Schwarzenegger, whose two states get more than a quarter of the tobacco-settlement proceeds — would have to fight the Bush administration to avoid an industry loss at trial, to save the tobacco companies and themselves.

Thus, the states' fiduciary relationship with Public Health Enemy No. 1 — one of intimate and consummate hypocrisy — will seep upwards to the federal level. The feds, with their own federal deficit and mushrooming health-care costs, could become just as dependent on a regular tobacco take.

Because Pataki and other big-state governors across the country have utterly failed to manage their state budgets, Big Tobacco has finally become too big to fail — and a federal settlement of the RICO case will ensure that it never will.

November 17, 2004
        CROOKS TRAVEL 'LIGHT'
        By Erika Martinez

A cargo plane coughed up 150,000 cartons of illegal cigarettes at JFK Airport yesterday — the largest federal seizure of contraband smokes from overseas in state history, officials said.

Authorities swooped down on the plane in the morning and immediately began carting off what they said was evidence of a huge Internet smuggling ring designed to avert millions of dollars in city, state and federal cigarette taxes.

The cigarettes were destined for distribution throughout the country, officials said. The cargo airline was not identified.

It is believed that the cigarettes were manufactured in the United States, then shipped to countries such as Switzerland, where they were diverted for smuggling them back into the United States for illegal sale, sans hefty taxes.

Would-be buyers placed their orders over the Internet and by phone, which is illegal in New York because such transactions skirt tax laws, officials said.

How much is at stake in taxes?

In the Big Apple, for example, a carton of cigs runs about $70 — including $33.30 in excise and sales taxes — while the illegal smokes could cost as little as $15 a carton.

That translates into tens of millions of dollars a year that the city would lose overall in taxes, said Eric Proshansky, the chief City Hall lawyer probing the illicit 'Net sales.

The city has already successfully sued one Switzerland-based Internet cigarette retailer, landing a $17 million judgment against it.

In October, Manhattan federal Judge Naomi Recie Buchwald slapped the staggering penalty on the company Yespeedy/Otamedia for allegedly peddling the cigarettes without paying taxes.

The charges against the company included mail and wire fraud.

Proshansky said there are four other suits pending against 20 Internet firms suspected of similar shady dealings.

Authorities said yesterday's seizure came after a probe over several months that involved the federal Bureau of Alcohol, Tobacco, Firearms and Explosives; postal inspectors; and city and state tax and finance officials.

The smokes were being held yesterday at ATF's hangar at JFK.

The agency said it plans to notify other states where the cigarettes were headed to warn them of the scam.

But authorities acknowledged that the battle against the scammers is difficult, particularly if they are incorporated in foreign countries.

November 17, 2004
        BOUNCER'S KILLER CONVICTED
        By Dareh Gregorian

A Queens martial-arts expert was convicted yesterday of killing an East Village bouncer in a melee that began when the victim ordered a clubgoer to stop smoking.

A Manhattan Supreme Court jury found Isaias Umali guilty of manslaughter in the April 2003 stabbing death of Dana Blake.

"I saw justice today," Blake's brother, the Rev. Tony Blake, said afterward. "My brother's soul can rest in peace."

Dana Blake, a 6-foot-6, 360-pound giant, was working at Club Guernica when he tossed one of Umali's friends, Jonathan Chan, for smoking inside, soon after the city implemented its ban.

Umali jumped into the ensuing fight and stabbed Blake in the groin, causing the 32-year-old to bleed to death.

"The hardest thing was to find out what was in [Umali's] mind," said one juror. "We could not know if his intent was to kill Dana Blake, but we do know he intended to do him harm."

Umali's father, Isaias Sr., comforted his son — who faces up to 25 years in prison — saying, "You're still young."

November 14, 2004
        MARLBORO MARINE FIRES UP TROOP MORALE
        By Patrick Gallahue

The young Marine dubbed the "Marlboro Man" after his front-page appearance in The Post has become a celebrity poster boy for the U.S. effort in Fallujah and a hero in his hometown.

But there's one drawback to being the Marlboro Man — everyone keeps bumming your smokes. "If you want to write something," Marine Lance Cpl. James Miller, 20, told a reporter this week, "tell Marlboro I'm down to four packs, and I'm here in Fallujah till who knows when. Maybe they can send some. And they can bring down the price a bit."

Marlboro declined comment.

A portrait of the rugged and muddied Miller — snapped after 12 hours of bloody combat with guerrillas — became a powerful symbol for the American forces' gritty effort to retake Fallujah. Marine brass were thrilled with the poignancy of the shot, and Lt. Gen. John Sattler visited Miller's company to applaud them for the feature. News agencies that ran the shot were besieged with calls and e-mails asking for a way to contact the young man.

And back home, in his Appalachian hometown of Jonancy, Ky., his mother reveled at seeing his picture on television just to know her oldest of three sons was OK.

November 13, 2004
        L.I. BARS WIN BIG IN LEGAL ASH FRAY
        By Perry Chiaramonte

Despite the state smoking ban, smokers are being allowed to light up with abandon in a trio of Suffolk County taverns as long as they're willing to pay the fine if they get busted.

Puffers at Jack McCarthy's Pub in Centereach, Tobin's II Pub in Ronkonkoma and the Dunton Inn in East Patchogue are happily indulging their habit, thanks to a new Supreme Court ruling that the state smoking ban doesn't require bar owners to make customers stub out their smokes.

The responsibility is placed upon the smoker if caught in the act by state inspectors.

"The way I see it, it's my prerogative to smoke, and I'd rather pay the fine than the bar," said Richard Long, 47, a regular at Tobin's II.

The smoke-in was sparked by the ruling in a class-action suit filed by owners of the three pubs against the state Department of Health, which had leveled hefty smoke-ban violations fines against them.

The owners claimed they obeyed the Clean Indoor Air Act to the letter by posting no-smoking signs and telling customers that smoking in the bar violates state law.

"We knew we had an airtight case going in," said Jack McCarthy, owner of McCarthy's Pub.

"We knew if we behaved ourselves, followed the law and did what we were supposed to do, we were okay."

Supreme Court Justice Paul Baisley Jr., ruled for the taverns on Oct. 13. Tossing out $650 in fines, the judge noted that while bar owners must inform patrons of the law, they are not required to refuse service, toss them from the establishment or make the smokers extinguish their cigarettes.

This week, a Post reporter went to all three establishments to see if management was complying with the Clean Air Act. At all three bars, he was greeted with the same caveat after asking if he could light up — smoke if you want to, but it's against the law.

"I have to let you know that smoking is still against the law," said one bartender when asked if it was OK to puff away. ". . . If you get caught, you'll have to pay the fine."

In addition, all three bars had no-smoking signs clearly posted, and smokers used plastic cups filled with water as ashtrays.

In explaining his landmark ruling, Baisley noted that when a health inspector visited the pubs, "No smoking" signs were posted.

And while the inspector claimed bar employees did nothing as customers puffed away and flicked ashes into plastic cups, the judge noted the inspector didn't interview any of those employees.

The inspector's failure to talk to employees, Baisley said, was fatal to the DOH argument — the presence of smoking customers doesn't prove the tavern's failure to comply with the law.

The DOH is appealing the ruling.

October 31, 2004
        CIG-NIFICANT DROP IN SMOKING FINES
        By Stephanie Gaskell and Sam Smith

The city's take from smoking-ban tickets is plummeting — at the same time, officials are wrestling with new problems in enforcing the law.

Fines against bar and restaurant owners peaked last March, when the city's Health Department pulled in $60,400.

That number dropped to $37,870 in August, the last month for which figures are available. Health Department officials said the decline was a result of more compliance.

"As we predicted, the Smoke-Free Air Act has been largely self-enforcing, and compliance rates are already above 95 percent," said spokesman Sid Dinsay.

But that doesn't account for another trend: violations being thrown out.

Robert Bookman, lawyer for the New York Nightlife Association, said six of his clients have had violations thrown out in recent months because they were ticketed for not removing smokers.

The law, he said, requires owners to tell smoking patrons to go outside. But if the person doesn't leave, it's the smoker who's in violation, not the owner, he said.

"The trend is to overturn these violations," he said.

Lawyer Marty Mehler has had about six violations against city bar owners tossed for similar reasons.

October 21, 2004
        PRO - CIG BIZ IN 'QUICK' NEW SLAM
        By Kenneth Lovett

Albany -- A group of bar, restaurant and bowling alley owners from around the state is planning a new "Quick Draw" lottery boycott to protest the statewide smoking ban and other "anti-small-business measures."

Boycott organizers, which include several upstate bar owners and New York City smoking activist Audrey Silk, are asking participating businesses to turn off their Quick Draw machines beginning Saturday through Oct. 29.

"We will not sit back and let the government of New York state destroy any more businesses in New York state," said boycott organizer and upstate tavern owner Brenda Perks.

"The only thing left to do is to make them feel the same kind of pinch they've imposed on us."

Silk, founder of New York City Citizens Lobbying Against Smoker Harassment (NYC-CLASH), sent letters of the planned protest to the nearly 3,200 establishments licensed to offer Quick Draw.

Timed to coincide with the upcoming state elections, Silk branded the action "a display of collective power -- a power that must be taken into consideration before legislators decide to propose and enact business-busting regulations."

Silk and Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, couldn't predict how many establishments will participate, although they said many have expressed interest.

Hundreds of bar owners participated in two similar protests last year before the state smoking ban took effect -- costing the state more than $1 million in Quick Draw sales.

October 17, 2004
        MEGA KICK HURTS LOTTO ; LURE OF BIGGER JACKPOTS
        By Kenneth Lovett

ALBANY — The Mega Millions lottery game and its promise of mega-jackpots has left the more established Lotto in the dust, new statistics obtained by The Post show.

New York state sales so far this year for the multi-state Mega Millions game — which offers minimum jackpots of $10 million that have sometimes gone into the nine-digit range — are at $411 million, a 20 percent increase over the same period last year, according to state Lottery statistics.

At the same time, Lotto with its $3 million minimum jackpot has generated just $260 million in sales so far this year — a 14 percent drop from the same period last year and a 31 percent decline since 2001, the year before Mega Millions came to New York.

"Players play more when there are higher jackpots," said state Lottery spokeswoman Jennifer Mauer.

Meanwhile, the statewide smoking ban may have begun taking a toll on Quick Draw, the electronic keno-like game offered at bars, restaurants and bowling alleys.

Quick Draw sales dropped 4 percent this year, the first full year of the smoking ban.

Bar owners predicted a drop in customers when the smoking ban went into effect that it would result in lower Quick Draw sales. Sales for the game are down $14 million this year.

"They said the smoking ban wouldn't hurt anyone, well apparently it's hurting the New York state treasury, and it's going to be made up on the backs of the already overtaxed taxpayers of New York state," said Scott Wexler, executive director of the Empire State Restaurant and Tavern Association.

Wexler said he expects that the Quick Draw losses are even more substantial at bars, taverns and bowling alleys, which he argues are suffering more than restaurants from the smoking ban.

The lottery cash cow continues to be the instant scratch-off games, which combined have generated $2.26 billion in sales so far this year — an 11 percent increase over last year.

All told, total lottery sales through Oct. 6 of this year have totaled $4.71 billion — a 6 percent increase over last year.

October 14, 2004
        FEDS SMOKE OUT FAKE-CIG RACKET STINKING UP B'KLYN
        By Kati Cornell Smith

The feds snuffed out an alleged counterfeit-cigarette ring accused of flooding the streets of Brooklyn with millions of phony Marlboros imported from China by an L.A. gang, officials said yesterday.

Reputed ringleader Azat "Ozzy" Oganessian, a 33-year-old illegal immigrant from Armenia, and 13 crew members raked in more than a million dollars selling bogus smokes over the past two years, according to court papers filed by Assistant U.S. Attorney Scott Morvillo.

"This criminal enterprise cheated the state of New York and, indirectly, New York taxpayers out of more than a million dollars in tax revenue," said Pasquale D'Amuro, FBI assistant director-in-charge.

At least 40,000 cartons of cigarettes manufactured in China -- and packaged to look like Marlboros -- were shipped to Chinese gang members in Los Angeles, law-enforcement sources said.

Oganessian's Brooklyn-based gang -- comprising Polish and Armenian members -- bought the smokes at $10 a carton, or the equivalent of $1 per pac, and trucked them across the country for resale, sources said.

They affixed New York State tax stamps to the cigarettes and then tripled the price to between $22 and $32 per carton for sale in delis and Polish restaurants in Greenpoint and Brighton Beach.

They were purchased by smokers who otherwise would have purchased approximately $5 million in Marlboros -- and generated $1 million in taxes for the state, the feds estimated.

October 13, 2004
        LAWSUIT $MOKES CIG FIRM
        By Carl Campanile

A federal judge slapped a Switzerland-based Internet cigarette retailer with a $17 million fine for allegedly running a scam that stiffed the city out of tobacco taxes, The Post has learned.

Manhattan federal Judge Naomi Recie Buchwald issued the staggering penalty after Yespeedy/Otamedia repeatedly failed to answer court papers or show up in court.

The Bloomberg administration sued Otamedia and a number of other Internet retailers as part of a sweeping crackdown against the sale of illicit cigarettes, which officials said conservatively cost the Big Apple treasury "tens of millions of dollars a year."

Buchwald said Otamedia was compelled to respond to the charges as a foreign entity under the international Hague Convention law.

City lawyers investigating "contraband cigarette" scams via the Internet said the $17,382,121 judgment is the largest penalty issued to date. They said they would do all they can to collect.

New York imposes combined excise and sales taxes of $33.30 on every carton of cigarettes sold by stores located in the Big Apple.

In other words, a carton of taxed cigarettes in the city costs about $70, while "duty-free" cigarettes run as low as $15.

"We're losing tens of millions of dollars a year. It's a very big number," said Eric Proshansky, City Hall's chief lawyer probing illicit sales of cigarettes on the 'Net.

He said it's a challenge tracking down Internet retailers, particularly those incorporated in foreign countries. Otamedia was incorporated in Belize.

"It's an elusive company. They didn't even show up in court," Proshansky said.

"We'll find out where they are and collect the judgment."

It's not the first time that Otamedia has been charged with running afoul of the law.

Another federal judge found that Otamedia illegally sold Philip Morris USA cigarettes on the Internet after issuing an injunction ordering it to stop.

In that case, Manhattan federal Judge Gerard Lynch ordered the transfer of Otamedia's "yessmoke.com" domain name to Philip Morris.

The city accused the company of mail and wire fraud.

September 27, 2004
        BARS' SNEAKY BID TO BEAT CIG LAW
        By Rich Calder

Upstate bar owners think they may have found a way around the anti-smoking law — and legal experts say it could hold up in court.

Several Buffalo bar owners are trying to circumvent the law by having patrons sign a waiver saying they are aware of the stringent regulations before lighting up.

And some New York City tavern-lobbying groups say the plan could work.

"Sounds like a good case to me," said Robert Bookman, a lawyer for the New York Nightlife Association. "If a bar owner makes a good-faith effort to get customers to comply with the law, it would be hard for the government to justify giving that bar a ticket."

Desmond O'Brien, president of United Restaurant & Tavern Owners of New York, agreed that such a case could become a significant challenge to the law.

Both Bookman and O'Brien said they were unaware of any New York City bars or clubs following Buffalo's lead.

Rick Naylon, owner of Jimmy Mac's bar in Buffalo, started the trend in April by having customers who smoke sign a slip reading, "Unfortunately, smoking tobacco indoors in NYS is illegal. By law, we have to inform you of this law. If you decide to break the law, there is no fine or penalty for the smoker. Please sign below to indicate that we have informed you of this law."

Kevin Montgomery, an Erie County Health Department spokesman, said that the waiver-slip system still violates the anti-smoking law and that his department will "prosecute" anyone who tries it.

"By allowing people to smoke after signing a waiver, it still puts the public and employees at risk, and we consider it illegal," he said.

The department — which oversees the smoking ban in Buffalo — already fined Naylon $2,000 for trying this method. Naylon said he "would rather go to jail than pay the fine" and is "seriously considering" suing the county so that a judge could determine whether the waiver slips are a legal remedy.

August 27, 2004
        Judge kicks flesh club in the butts
        Dareh Gregorian

The dancers are smokin' at the famed strip club Scores -- but the customers may not be for much longer.

A Manhattan judge has denied the East Side epidermis emporium's request for an automatic renewal of its "tobacco bar" permit, and the city Health Department has indicated it might stop the club from allowing its customers to light up as they get turned on.

"Smoking is not currently allowed at this establishment," said a Health Department source.

But it's unclear what action the city will take and when.

So for now, customers will continue to be able to buy and smoke cigars in the club's luxurious tobacco area, said club lawyer Marvin Mitzner.

The judge who issued the ruling against Scores, Ronald Zweibel, urged the city to "maintain the status quo" until it decides on whether to grant the jiggle joint a new permit.

Earlier in the day, Scores spokesman Lonnie Hanover said that means "the Republicans will be happy" when they come to paint the town red during next week's GOP convention.

"They like cigars," he said.  "Successful men tend to gravitate towards them."
The legal catfight over the club's permit came after the city discovered Scores had changed owners last year but hadn't applied for a new tobacco bar permit as required by the city Smoke-Free Air Act.

The club filed suit after the Health Department started slapping it with violations.

August 24, 2004
        PUFF & BUFF
        By Danico Lo

MOST people go to spas to undo the damage caused by too much partying. Now a handful of new spas are luring new clients with skin's worst enemies: booze and cigarettes.

On a private patio overlooking Madison Avenue, aestheticians at the Julien Farel salon perform manicures and pedicures while customers enjoy a catered lunch, a glass of wine or champagne and a cigarette.

"Being pampered is a luxury," says client Lauren Plasky, a marketing executive. "But being able to do so while having a cigarette is a true indulgence."

At the 7-month-old Studio One 2 One, patrons can recline in the English garden - which offers wireless web service and catered lunches. They, too, invite their clientele to light up and knock back a few.

"We have no problem popping open a bottle of champagne for our clients on Friday and Saturday nights," says co-owner Mallory Rutledge. "People definitely linger. Women will stay long after their treatments and work or just relax in the garden."

And the brand new Pashah, located in the penthouse above the Emporio Armani store on Madison Avenue, offers 30-foot-high bamboo hedges, an "aromatherapy garden" and even beds on a 1,000-square-foot terrace - but the main attraction is the freedom to sip and puff.

"Actually, I think women prefer going to the salon over going to bars," says co-owner Sam Arasteh. "We even tell our clients to stop by if they're shopping on Madison and they want a cigarette break or a glass of wine."

But not everyone thinks that catering to a client's every whim is a good idea - especially when those whims are counterintuitive.

"First of all, if you're going to get something done on your face and then you smoke - it's 10 times worse for your skin, because your pores are already open," says Cindy Barshop, owner of the Completely Bare chain of beauty salons.

Barshop - who is appalled by spas and salons who make it possible for their clientele to smoke - thinks that offering customers booze and cigarettes in outdoor gardens is nothing more than a cheap gimmick.

"I think they're doing it just to be different," she says.

In fact, these new spas are taking advantage of the city's smoking ban, which outlaws smoking in all workplaces - even restaurants with outdoor seating can only permit smoking in 25 percent of seating that is not located under a canopy or awning.

While these new smoking spas aren't breaking any laws, according to a Department of Health spokesperson, Barshop thinks they're a disservice.

"I would be more inventive and do something that works with the sun and the air. I wouldn't allow smoking. It ruins your skin - it's the antithesis of what a spa should do."

Still, some beauty addicts claim smoking and drinking are as therapeutic as an $80 paraffin pedicure.

"It's just so relaxing," says Pashah fan Alyson Corbin. "Being able to go to the salon and smoke a cigarette and drink - it just makes me happy."

August 18, 2004
        IT HARDLY PAYS TO FINE CITY'S CIG VIOLATORS
        By Stephanie Gaskell

The city has collected just $433,185 from businesses that have been caught violating the smoking ban during the past year, The Post has learned.

The money raked in from smoking-ban fines is the result of about 4,000 tickets issued since the Health Department began enforcing the ban last May.

"The measure of the law's success is not in the amount of fines collected, but rather in its high compliance rate — over 95 percent," said Elliott Marcus, assistant commissioner for the Bureau of Food Safety and Community Sanitation.

"The Smoke Free Air Act was meant to be self-enforcing. The less we have to fine, the more it means that the SFAA is protecting the health of employees in businesses across the city," he said.

There are about 100 health inspectors visiting businesses during the day.

Smoking fines are $200 to $400 for the first offense. A second offense is $500 to $1,000 and a third offense is $1,000 to $2,000.

All notices of violations are brought before an administrative judge, who has the authority to set the fine.

There's also a "three strikes and you're out" provision — three offenses in 12 months and the establishment's license can be revoked.

But so far, no establishment has been shut down. And that's because — as the low amount of fines collected also shows — most bars and restaurants are complying with the law, according to city officials.

"You have to wonder if this is even offsetting the cost of enforcement," said Audrey Silk, founder of founder of Citizens Lobbying Against Smoker Harassment.

"They're not overly enforcing it because they don't want the bad press," said one bar owner who didn't want to be identified for fear that it would result in stepped-up enforcement.

"Enforcement is virtually nonexistent in the outer boroughs. Also, many places are not enforcing late at night because they just can't afford the loss of business and they don't want to be put in a position of forcing their customers out into the street, so they're running the risk."

The revenue collected is not a lot when compared to other quality-of-life violations.

In the same time period, a whopping $24 million was raked in for sanitation violations, such as littering.

The city also collected $866,667 for noise-code violations — and some people say that's due in part to the smoking ban.

"The reason people can't sleep at night is because the city is forcing owners to put smokers into the street all night long — and then cops fine the owners for outside noise," said David Rabin, president of the New York Nightlife Association.

July 29, 2004
        Ticket Blitz
        Page Six

AFTER nearly three years in business, Michael Ault's Lafayette Street lounge Pangaea will close its doors this weekend as its lease expires. And not a moment too soon. After we quoted Ault's partner Frank Ferraro complaining about Mayor Bloomberg's nightlife crackdown — he called him "Doomberg" — the mayor's task force showed up Saturday and issued four summonses for noise and smoke violations.

July 23, 2004
        SILVER: NO-SMOKE HERE TO STAY
        Page Six

SMOKERS shouldn't expect any relief from State Assembly Speaker Sheldon Silver, who is pro-choice except when it comes to cigarettes. At a meeting last week with 35 angry owners of bars and nightclubs, the Manhattan Democrat "told them they'd have to work on the media and get public support," his press secretary Charles Carrier told PAGE SIX. "He said the only thing that might change is a provision for separate smoking rooms," said Frank Ferraro, a co-owner of Pangaea. "All 35 of us were unanimous. This law is killing us. One bar owner told Silver, 'Business is down so much, we're paying our sales tax with credit cards.' " The meeting at Silver's office on lower Broadway became heated when he brushed off the bar owners with a promise of more meetings and "dialogue." But the nightlife impresarios reserve their highest disdain for Mayor Bloomberg. Ferraro said: "If Doomberg — that's what we call him — gets in again, it'll be a 2 a.m. closing time, and that will kill nightlife completely."

July 12, 2004
        FED-UP CONSERVATIVE BOSS WARNS STATE GOP
        By Fredric U. Dicker

NEW YORK Conservative Party Chairman Michael Long has issued an unprecedented ultimatum to the Republican-controlled state Senate: Take an immediate stand on controversial issues, or risk losing Conservative support.

The ultimatum — contained in a July 2 letter to Senate Majority Leader Joseph Bruno (R-Rensselaer) — demands that Bruno say no later than tomorrow what, if any, action he'll take when the Senate returns to the Capitol next week on such issues as hiking the minimum wage and relaxing the ban on smoking in restaurants.

Long fears the increasingly liberal Senate GOP is planning to wait until after next Monday — the last day Conservatives can allow Republicans to run on their party line in the November election — to approve the minimum-wage hike, which has already passed the Democrat-controlled Assembly, and take other actions opposed by his party.

"We can't continue to go on the route we've been traveling and have any respect left for our party," Long told The Post yesterday.

"We need to fire a shot over their bow — so that some of these people understand that this could be the end of their relationship with the Conservative Party."

Long said he has yet to receive an answer to his letter.

Bruno spokesman John McArdle said a response would be sent to Long.

Long and other Conservative leaders will decide Thursday which Republican senators to endorse.

The loss of Conservative support could cost some of those GOP senators re-election in November, especially in the suburbs.

At the same time, however, the Senate GOP is known to fear that a failure to increase the minimum wage could cost them races in Manhattan and The Bronx.

Among those threatened with the loss of Conservative Party backing are Sens. Dean Skelos and Carl Marcellino, both Nassau County Republicans who last year voted for the biggest tax increase in New York history.
 
 
 
 


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November 17, 2004
        Feds stub out big cig racket
        By Adam Lisberg

Federal agents have seized tons of bootleg cigarettes at Kennedy Airport that were sent to New York from Switzerland as part of an illegal scheme to sell tax-free smokes, authorities said yesterday.

Agents from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives began confiscating the shipments of cigarettes bought over the Internet in the last few days, authorities said.

A law enforcement source said the scheme has cost the feds roughly $90million in taxes over the last three years.

The feds are sorting the cigarette shipments by their address labels - and smokers who hoped to get a deal instead could get a visit from the taxman, authorities said.

The probe, launched after a DHL shipping company employee tipped off Port Authority cops, was expected to go on for weeks, a law enforcement source said.

But the feds were so overwhelmed by the quantity of illegal cigarettes coming in that they called the Swiss shipper behind the scam, Otamedia, and told it to stop sending the smokes, the source said.

Customs agents and postal inspectors worked with ATF agents and PA cops to stockpile the cigarettes in a hangar.

"In three days, we filled half a warehouse," the source said.

Otamedia sold Marlboros for as little as $13.95 a carton - allowing buyers to evade as much as $50 in city, state and federal taxes.

"Individuals that ordered these cigarettes are liable to pay those taxes, and the state and the city are entitled to collect their taxes," said ATF spokesman Joe Green.

City and state authorities are involved in the probe, and some sealed criminal complaints have been filed, Green said.

The city of New York won a $17.4million judgment against Otamedia last month for not paying city taxes.

Otamedia did not respond to requests for comment.

November 16, 2004
        Gov prefers to smoke peace pipe
        By Joe Mahoney

ALBANY - Gov. Pataki vetoed yesterday a measure that would have required the state to collect sales tax from shippers who send cigarettes and gasoline to Indian-run retail outlets.

Pataki, in rejecting a tax collection scheme that lawmakers say would net the state as much as $1 billion a year, said he would rather negotiate with the Indian tribes that sell large quantities of untaxed cigarettes over the Internet and from toll-free telephone lines.

With the state sales tax on cigarettes amounting to $1.50 a pack, smokers can save themselves big bucks by getting their cigarettes from Indian vendors.

But Pataki said he was concerned the legislation would have violated a treaty signed in 1842. He added that a fair deal could be made without imposing a law.

"I believe we can do this through consent, where we can reach agreements with tribal nations," he said.

The veto was blasted by the author of the legislation, upstate Assemblyman Bill Magee. Magee, a Democrat, said Indian retailers hurt merchants who sell taxed cigarettes.

It was not immediately clear if lawmakers will seek to override the veto. The planned sales tax had overwhelming support in the Legislature, with the Senate passing it 56 to 1 and the Assembly supporting it 139 to 8.

November 15, 2004
        Gov may snuff out Indian & Web cigs
        By Joe Mahoney

The days of buying cheap smokes via the Internet or on an Indian reservation may be numbered in New York.

Gov. Pataki has until today to sign a bill requiring him to collect taxes on cigarettes from distributors - before they're shipped to Indian land.

The bill, passed by the Republican-led Senate and the Democratic-run Assembly, follows years of wrangling over whether to tax items sold by Native American retailers, who argue that reservations are sovereign nations not subject to taxation.

The Republican governor has refused to enforce his own regulations requiring tax collection on reservations, saying the practice could incite violence.

Assembly Health Committee Chairman Richard Gottfried (D-Manhattan) called Pataki's explanation for ignoring the law a "disturbing" copout.

"If a Democrat said that, the governor would be all over him for condoning lawbreaking," Gottfried said.

The bill has widespread support among health groups, including the American Heart Association, the American Lung Association and the state's largest doctor lobby.

The advocates argue the state's inaction only benefits the cigarette manufacturers and retailers selling tax-free smokes.

"Aside from depriving the state of needed revenue, untaxed cigarette sales contribute to excessive health care costs caused by tobacco use, and increase youth use of tobacco products," the health coalition wrote in a letter to Pataki.

The state tax on a pack of cigarettes has climbed to $1.50, from $1.11, over the past three years. Meanwhile, cigarette sales at retail outlets have dipped - a decline business leaders blame on the increasingly common practice of buying butts from Indian-run Web sites.

A Pataki spokesman would not reveal whether the governor plans to sign the bill, saying only that it was under review.

October 18, 2004
        Many nix health survey
        By Bill Farrell and Lisa L. Colangelo

"Nunnahyah business!"

That was the response from residents in several Brooklyn communities who've been asked to answer a confidential Health Department survey.

Lots of Brooklynites have answered the telephone survey questions designed to measure how healthy city residents are - even the delicate ones about sexual activity, mental health, and drug and alcohol use. But not the good people of Bensonhurst, Gravesend, Bath Beach, Dyker Heights, Bay Ridge, Park Slope and Brooklyn Heights, among other neighborhoods.

With just a few weeks to go, nearly 70 of the 131 families contacted in southern Brooklyn, for instance, have yet to respond. In those neighborhoods, privacy was the common watchword.

"What happens inside these homes stays inside these homes," said Annette Connolly of Bay Ridge.

"People just don't want to provide that kind of information," she said. "That's why we now have privacy laws."

Connolly's brother-in-law Ben Ginchiano couldn't imagine why anyone would be willing to discuss such things, let alone with a stranger, for a city survey.

"Why would you want to provide this information," he said.

A Bensonhurst man who guarded his privacy so carefully he wouldn't give his name said, "Medical records are the only privacy we have left."

Then he had this thought: "How can anyone really be sure if you provide this information to the city it won't somehow get out?"

JoAnn Femia said she never answers telephone surveys - but added she found the lack of response "strange."

"Maybe people are a bit sensitive to the questions," said Femia. "People are concerned about their privacy."

Vincent Formica had another complaint about the survey. "Look, people just don't have time," said Formica, 73, of Dyker Heights. "Who wants to be bothered?"

Health Commissioner Thomas Frieden insisted the survey was "the most important thing the Health Department will do this year."

Maybe. But that didn't seem to be swaying anybody.

State Sen. Martin Golden (R-Bay Ridge), who represents some of the nonparticipating neighborhoods, even wrote letters to his constituents urging cooperation.

"I'm a little disappointed," Golden said. "I don't think people are taking this survey seriously. A lot of times people see a survey, they just toss it away."

Based on an unscientific Daily News survey, it's going to be an uphill fight all the way.

"They're not getting people to respond to what?" said one man in a Yankee cap as he raced to his car. "Well, you're not getting an answer from me either."

October 12, 2004
        Cigarette prices seen rising after new tax bill
        By Chris Burritt

Cigarette makers including Philip Morris may raise prices to cover a $9.7 billion buyout of tobacco farmers the Senate approved as part of a $145 billion corporate tax package.

Makers of premium and discount brands may boost prices 3 cents to 4 cents a pack, according to Goldman Sachs analyst Judy Hong, to finance payments to growers as the government ends a 66-year-old quota system.

"As prices move higher, more consumers are going to switch to off-price brands," said Joe Lieber at Washington Analysis, which tracks regulatory issues.

The average price of Philip Morris's top-selling Marlboro was $3.08 a pack in August.  The average price of Commonwealth Brands discount USA Gold was $2.34 a pack.

President Bush is expected to sign the measure, which passed as part of a bill providing sweeping corporate tax breaks.

September 9, 2004
        Mayor's making Olympian error
        By Sidney Zion

Mayor Bloomberg cons from the heart.

This sets him apart from virtually all politicians in the world. They want the public to believe the baloney they serve night and day, but they'd fear for their sanity if they believed it.

Bloomberg believes everything he says as the mayor of New York. He can deliver a whopper that would make a rabbit hug a hound and walk off the stage convinced that he told the truth, the only truth, never imagining that anyone with any sense could contest it.

Just the other day, he announced that the Republican convention netted the city $255 million. Netted means after costs. Before the convention, he said we'd make $265 million. It was understood that the number meant gross, not net. But gross turns into net when Mayor Mike says so.

Controller William Thompson released an analysis showing that we probably lost about $50 million for the convention.

All you had to do was look and listen to know that Thompson was right. With few exceptions - Elaine's, '21,' Four Seasons - the restaurants were empty, the theaters on life support, the night clubs running on customers who didn't leave town.

New York's big spenders packed the Hamptons or Saratoga - so where's that $255 million clear profit?

John Sabini, a state senator out of Queens, put it just right. "The Republicans came to town with the Ten Commandments in one hand and a $100 bill in the other, and they didn't break either."

Bloomberg says we cleaned up. Says it shows that New York should be awarded the Olympics in 2012.

To promote this, he shows up in Athens and says there's no place like New York for the Summer Games. Because nobody smokes anymore in New York.

In Greece, a guy or doll who doesn't smoke is suspected as maybe Al Qaeda, certainly a probable felon. Yet Bloomberg uses his anti-smoking law, the most prohibitive in the world, to promote the Olympics.

The only thing missing is a slogan: "Sixteen Days in a Smoke-Free City." That would clinch it for the Chinese, the Israelis, the French, the British, the Spanish, the Mexicans - fuhgeddaboudit.

I said something like this to Daniel Doctoroff, Bloomberg's point man for the Summer Games. "Why are you failing to go with that slogan? That's your best hit."

He half-smiled, half-grimaced and said thanks for the help. Known as understanding satire.

In Athens, Bloomberg actually took it seriously and said so. He invites everyone to New York because he believes the world wants to be smoke-free. It's a matter of life and death to him, so how could anyone argue?

In Vanity Fair magazine last year, Bloomberg said that more people die each year in New York from second-hand smoke than perished at the World Trade Center on 9/11.

Isn't there a place called Bellevue for people who talk like that?

But he's the mayor of New York, and he believes every word he says. I knew him long before he thought of running for public office. And always liked him personally.

So it's not easy for me to say that he's maybe the scariest guy I've ever seen in politics. Mike Bloomberg cons from the heart.

August 27, 2004
        Strip club loses cig bar fight
        Helen Peterson

The city's move to ban butts - cigarette butts, anyway - at Scores got a boost from a judge yesterday.

A Manhattan judge nixed a bid yesterday by the strip club to force the city's Health Department to automatically renew its license to operate a tobacco bar.

The ruling could force Scores to stop selling cigarettes and its namesake cigars - and toss out humidors rented by wealthy celebs like actor Colin Farrell and retired hoop star Dennis Rodman.

Customers were allowed to continue to light up even after the city's tough smoke-free policies went into effect because Scores already had been licensed as a tobacco bar.

The legal battle centers on the strip club's apparent failure to apply for a new tobacco bar registration last year after changing ownership. The city Health Department argued in court papers that the smoking status is not transferable.

Manhattan Supreme Court Justice Ronald Zweibel said he won't force the Health Department to declare that Scores is entitled to keep its tobacco bar. But he said the club could refile its lawsuit if the department turns down the club's application.

August 22, 2004
        NYC to GOP: butts out!
        By Maggie Haberman

Republicans, watch your butts!

City health inspectors will be patrolling Madison Square Garden and the media center at the James A. Farley Post Office during the GOP convention next week.

The teams of food inspectors are there to monitor the meals being catered in a bid to protect the tummies of the visiting journalists, delegates and dignitaries. But officials said they won't turn a blind eye if other laws are broken - including the smoking ban.

That means out-of-towners who want to sneak a cigarette or celebratory stogie should watch their backs.

Officials with the city's Host Committee and the Committee on Arrangements, which is in charge of making the Garden convention-ready, couldn't say late last week whether puffers would be able to slip in and out without having to go through strict security again.

"I would be curious to see if they're going to have a designated spot right outside the door at Madison Square Garden to smoke," said Chad Lawton, the coordinator of the GOP's Kansas delegation and one of many out-of-town officials who said Mayor Bloomberg's anti-smoking reputation is well-known.

Several Republicans from tobacco-growing states said they didn't think people within their ranks would light up inside the convention hall, either because they aren't smokers or because they'll try to play by the rules.

"I don't think many do [smoke], if any do at all," said DeVan Barbour of the North Carolina delegation.

Even those who do light up know they're heading to the opposite of Marlboro Country, Lawton said.

"They're going there knowing what they're getting themselves into," he said.

Elliott Marcus, the Department of Health and Mental Hygiene's assistant commissioner for Food Safety and Community Sanitation, said the inspectors will work in 12-hour shifts, with eight on duty at all times.

July 19, 2004
        City giving smokers fresh air
        Hundreds of blocks opened up for restaurants' outdoor cafes
        By David Saltonstall

The city is quietly opening scores of Manhattan blocks to small outdoor cafes - offering an airy new crack in the city's strict smoking ban.

The new zoning rules allow a single row of chairs outside restaurants in previously excluded areas - with a quarter of new seats allowed to go to smokers.

That's in line with current regulations governing outdoor dining areas under Mayor Bloomberg's smoking ban.

But by opening up the bustling heart of midtown Manhattan and other areas to alfresco seating for the first time in decades, the number of eateries able to accommodate smokers is expected to rise dramatically.

"It's up to the restaurateur," said city Planning Department chief Amanda Burden. "He or she can allow 25%."

The new, cafe-friendly zone includes a 100-block section of midtown and much of Madison and parts of Park and Lexington Aves. north of 59th St. - areas where outdoor seats have been banned since 1979.

Other blocks to be opened include 23rd St. from the East River to Eighth Ave. and 14th St. between Second and Eighth Aves.; First Ave. between 48th and 54th Sts., and Orchard and Delancey Sts. on the lower East Side.

Josephine Farinella, 72, said she can't wait. "I'll be in each one of 'em," she vowed, as she sat outside a Seventh Ave. restaurant yesterday, a cigarette in one hand and a beer in the other.

Still off limits will be a wide swath around Grand Central and Times Square, where pedestrian traffic was deemed too heavy to absorb sidewalk clutter.

Some 15 restaurants already have applied for permits under rules quietly approved in May by the City Council. The first permit likely will be issued by the end of this month, with scores more to follow.

The move comes as the city's Department of Consumer Affairs has dramatically streamlined the permitting process - cutting the time it takes to get a cafe permit from 15 months to less than two.

City officials emphasized the new zoning rules were aimed not at smoking but at livening up the city's restaurant scene.

"They are fun for the people who sit at them, and they are fun for the people who walk by," said Burden. "You just get a sense that New York is a great place to be."

Kelli Crosby, 42, agreed that outdoor dining adds to the city's character, even if it chews up some sidewalk space.

"I like the energy of the sidewalk cafes," she said. "In Europe, they're on every corner."

Restaurateurs said the new seats will add style to their decor and money to their bottom lines. But many also see a rare chance to offer smoking patrons a seat.

"It certainly beats their customers having to stand outside," said Chuck Hunt, executive director of the New York State Restaurant Association, which represents some 2,500 city eateries.

Some who have applied for permits say they are looking forward to the new tables - but also worry about the competition that may arise for coveted smoking spots.

"A lot of our customers are from South America and are used to smoking, so they'll probably all be fighting for one table," said Aymeric Clement, manager at Le Bilboquet on E. 63rd St. "But it will bring a little more charm to the upper East Side."

The rules will be strict: Tables must take up no more than 4-1/2 feet of sidewalk, and restaurants will not be allowed to erect barriers or umbrellas around tables.

"We wanted to make the process easier," Department of Consumer Affairs commissioner Gretchen Dykstra said of the new rules. "And we wanted to strengthen enforcement."

July 17, 2004
        Conservative leader barks at Bruno, Mike
        By Joe Mahoney and Michael Saul

The Chairman of the state Conservative Party is on a tirade against two top Republicans - Mayor Bloomberg and Senate GOP Leader Joe Bruno - saying they are destroying New York's economy.

First, Michael Long blasted Bloomberg over the city's no-smoking law and high cigarette taxes, which he says are killing the butt business in the city.

"He's created the biggest black market in the history of New York since prohibition," Long said in an interview with Gabe Pressman that will air tomorrow morning on WNBC-TV's "News Forum."

"He doubled the tax on cigarettes. ... Nobody buys cigarettes in this town anymore," Long complained.

"Everyone sends to the Indian reservations. They go to Pennsylvania to buy them. They're sending business out of town."

Barring a dramatic shift in Bloomberg's policies, Long said the Conservative Party will field a candidate against the mayor. The Conservatives did not back Bloomberg in 2001, either.

Mayoral spokesman Ed Skyler dismissed Long's comments, saying Bloomberg successfully "led the city through the biggest fiscal crisis in a generation."

Long is upset with Bruno (R-Rensselaer) over growing support in the Senate for raising the minimum wage to $7.10 an hour by 2006.

Bruno insisted he will "do what is in the best interests of all the people in the state."

July 8, 2004
        Stick it to cigs with free patch
        By Lisa L. Colangelo

Uninsured smokers are getting some help to kick the habit.

Pfizer is donating $3.7 million worth of nicotine patches to the city's Department of Health. The gift will help about 25,000 people, according to Health Commissioner Thomas Frieden, who has made ending smoking a personal mission.

"This is going to mean many hundreds of New Yorkers living longer, healthier lives," he said. "Smokers, on average, die 14 years early."

The Nicotrol patches will be distributed to smokers without health insurance through Health and Hospitals Corporation clinics.

Community groups in Harlem, the South Bronx and north and central Brooklyn - areas that have very high rates of smokers - also will be targeted.

"I've been smoking since I was 15 - so far, knock on wood," said Brenda Pleasant, a 52-year-old postal worker from Brooklyn who just started the program to quit. "Let's just say I love the nicotine."

Her health insurance plan does not cover nicotine patches. But Pleasant was able to get a course of treatment at a senior center in Bushwick.

"People think because you work there's a lot of money," said Pleasant, who also has to pay for costly asthma and hypertension medications. "This is one of those tight times."

Even though she has tried to quit before - unsuccessfully - she hopes this time will be different. This is the longest she has gone without a smoke.

"I started Monday, and I haven't cheated," she said with a laugh.
 
 
 
 

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Times Herald-Record - December 28, 2004
        State lobbyists prod legislators to keep giving
        By John Milgrim

Albany – Christmas may be history, but a legion of special-interest groups, from medical centers and health-care workers to environmentalists and educators, hope state lawmakers stay in the giving mood for several months to come.

Their hands are already out, hoping the state adds billions more to the current $100 billion budget.

As in years past, advocates and organizations began making their pitches early this month with hopes of being included in next year's budget. They'll continue the seemingly incessant pleas at least until a budget is passed, which did not happen until August this year.

Many will try to make their cases through rallies and news conferences as part of their annual multi-million dollar lobbying efforts to sway the opinions of power brokers. For some unwilling or unable to negotiate closed-door deals with state leaders, they are the only tools available to get what they want.

And sometimes, the more noise they make, the more money they get.

"A squeaky wheel does get the grease, not to mix too many metaphors here," said Blair Horner, legislative director for the New York Public Interest Research Group.

Environmental groups, such as the Sierra Club, want a doubling of the amount the state spends on land protection and park projects. Anti-smoking groups, like the American Cancer Society, want to double spending on state programs meant to help to quit.

In each case, the groups are talking about tens of millions of dollars in new state spending, and they've suggested ways the state could pay for it, such as increasing cigarette taxes.

Herald Community - December 16, 2004
        Up in smoke? Will Nassau County raise the smoking age?
        By Jason Scheer

Suffolk County legislators recently voted to raise the minimum age for purchasing cigarettes from 18 to 19. Now, Nassau county leaders must decide whether or not to follow suit.

On Dec. 7, the legislature unanimously approved the measure, dubbed "Tobacco 19." However, it will not become law until, and unless, it is endorsed by Suffolk County Executive Steve Levy.

Counterparts in Nassau County have been working on a similar initiative since October. Legislators Jeffrey Toback (D-Oceanside) and Diane Yatauro (D-Glen Cove) are the Nassau County sponsors.

The thinking behind the proposed legislation is that by raising the age, it will be harder to get cigarettes into high schools where most seniors are not older than 18.

Said Legislator Yatauro in a statement, "As a vast majority of high school students are not 19, there should be no students "legitimately" smoking on school or near school grounds."

However, efforts to raise the age requirements are sill in their infant stages, according to Nassau County Legislator Joe Scannell (D-Baldwin).

He explained that the issue is not accepted by an overwhelming majority among the legislators in his party. He added that traditionally, in order for bills to get "clocked in," and brought before the legislature, there must be clear support for it.

He said that the reason lawmakers disagree with the proposed legislation is because it's unfair to those that are 18. Scannell himself is not in favor of the change.

"If you ask a young man or woman to go overseas and put their lives on the line at 18, I don't think you should be able to take that right [to smoke] away from them," he said. Levy gave the same reasoning for not signing the bill into law in Suffolk County.

He added that while Tobacco 19 has its merits, the potential for saving lives being one of them, no statistics have been brought forward that clearly indicate the one-year change will make a difference. That makes it harder to bring such a proposal before the full legislature.

The kids don't like it...

Baldwin High School students expressed cynicism about the proposed legislation. Out of twelve students who spoke with The Herald, each one agreed that those who wish to smoke will find a way to do so, no matter what the law said.

Sarah Beller, a junior and a self-proclaimed "straightedge," meaning she doesn't drink or smoke, said that younger students looking to buy cigarettes simply go to their older friends or siblings to get their hands on tobacco products. Kids, she said, will not be dissuaded from taking similar action by the proposed legislation.

"They'll still find a way to get what they want," she said.

Two high school students who were smoking outside the fence of the high school, near Grand Avenue, expressed similar sentiments.

Said one girl, who claims to get her cigarettes from her mother, "It's stupid. everyone would still find a way to smoke. It wouldn't even make a difference."

"No, it's not going to make a difference," said another student. "No matter what, if you want cigarettes, you can go and buy cigarettes."

An owner of a local smoke shop agreed. He said that while he cards everyone attempting to buy cigarettes, ultimately those people could give it to minors and there would be nothing to stop them.

"If kids want cigarettes, they'll get cigarettes," he said.

Corning Leader - December 14, 2004
        Corning Elks get smoking ban waiver
        By Michael Mullaney

CORNING | Smoking is now legal in a secluded room of the Corning Elks Lodge No. 1071.

The local lodge was granted a two-year exemption from New York State's Clean Indoor Air Act.

Members and guests can now legally smoke in a specially ventilated room at the club's 148 Walnut St. facility.

The wavier was approved last week by the Department of Health's Hornell District Office. It was the first waiver granted in the city of Corn-ing, and the third in Steuben County.

The lodge applied for the waiver after fielding a year's worth of complaints from members, said Elks Trustee David Goff.

"The smokers didn't want to go outside and deal with the cold winter weather and snow," Goff said, noting attendance at the lodge significantly dropped after the smoking ban was enacted upstate in July 2003.

Of the lodge's 550 members, Goff estimates about 110 to 140 are smokers.

"I'm happy because I don't have to put up with the smoke," said Goff, who is not a smoker. "And I'm also a little bit more confident in the future of the lodge."

To qualify for the waiver, the lodge installed a mechanical air-handling system in a room designated for smoking. The ventilation system ex-hausts tobacco smoke directly outside the building, and keeps smoke from escaping the room's one, self-closing door by creating negative air pressure.

Waitstaff cannot be ex-pected to enter such designated smoking areas as part of their job duties, said Clair Pospisil, DOH spokesman.

Over the past year in Steuben County, the DOH has also granted waivers to Western Region Off Track Betting facilities in Bath and Hornell. In Schuyler County, Montour Falls Moose Lodge No. 426 was granted a waiver.

Waivers were denied to the Western Region Off Track Betting facility in Corning and the Hornell Association. In Schuyler County, Johnson's Sports Bar in Hector was also denied a waiver.

Utica Observer Dispatch - December 8, 2004
        County extends smoking waivers
        By Elizabeth Cooper

Oneida County will extend the waivers it granted to New York state's smoking ban for another year and make other changes that could make it easier for businesses to get future waivers.

The move comes in response to an Appellate Court decision in October in which the court called Erie County's waiver criteria for the state's Clean Indoor Air Act "irrational."

The county's new rules, which take effect Jan. 1, 2005, make financial hardship the primary criterion for getting a waiver to allow smoking in a workplace.

Oneida County's move drew praise from bar owners and their advocates, but anti-smoking groups said they were dismayed.

"I'm very much encouraged," said Ralph Dittenhoefer, president of the Oneida County chapter of the Empire State Restaurant and Tavern Association. He said bars -- particularly small, one-room establishments such as the South Trenton Pub, which he owns in Trenton -- had suffered under the ban, since they couldn't qualify for waivers under the old rules.

But Smoke Free Mohawk Valley and the American Cancer Society said the county should not further loosen its smoking ban policy.

"We have made it clear to Oneida County that the waiver criteria should not be weakened," said Sherry Tomasky, regional advocacy director of the American Cancer Society. "Oneida County already has some of the weakest guidelines in the state."

Of about 150 waivers granted statewide, about 30 are in Oneida County, Tomasky said. The ban went into effect in July 2003, and the waiver policy was established in January 2004.

Under the old rules, establishments had to show at least a 10 percent revenue loss between three consecutive pre-ban months and the same three months after the ban went into effect. The new rules expand the way revenue loss is interpreted, so measures such as lay-offs or price increases, which could offset losses on the books, also could be counted.

When undue financial hardship is proven and clearly linked to the smoking ban, a business will qualify for a waiver.

Then, the Oneida County Health Department will work with the establishment to find a way to mitigate the presence of second-hand smoke.

"Once they qualify, we have to make do with what their circumstances are," said county Health Department lawyer Raymond Bara. "We have to come up with conditions that minimize the effects of the waiver."

That includes one-room bars that couldn't qualify under the original rules because their plans to mitigate the effects of second-hand smoke didn't meet the health department's standards.

Additionally, ventilation systems or air purifiers such as ionizers could be used, said Bara and Nicholas DeRosa, health department environmental health director.

"We'll do it on a case-by-case basis," DeRosa said.

Dittenhoefer said he didn't even apply for a waiver for his one-room establishment when waivers were first allowed. Asked if he would now, he replied, "Absolutely."

But Tomasky cautioned the state legislature failed to pass a bill that would have allowed ventilation or air purification systems to constitute a plan to mitigate the effects of second hand smoke under the Clean Indoor Air Act.

She added that the purpose of the law was to protect workers from the carcinogenic effects of second-hand smoke, and that loosening the waiver criteria would expose more people to harmful agents.

But many bar owners say they have lost revenue, and some have even been forced to close.

George O'Dell Jr., owner of LJ's Sports bar in Utica, said his profits went down more than 30 percent after the ban went into effect. Since then, he has cut back the hours LJ's is open. Even the bar's shuffleboard league has been cancelled because O'Dell can't afford to stay open on Sundays.

"We lost everybody," he said. "On a good night, we used to get 40 or 50 people. Now, if you get 10 you're lucky."

Now, the bar, which he has owned for 16 years, is up for sale.

NY Newsday - December 8, 2004
        Lawmakers raise smoking age to 19
        By Christian Murray

Suffolk lawmakers Tuesday voted unanimously to raise the minimum age for buying cigarettes from 18 to 19, but County Executive Steve Levy stopped short of endorsing the measure.

After the 18-0 vote during a meeting of the legislature in Riverhead, Levy said he was "leaning toward" signing the measure into law. "I can't ignore how raising the drinking age had a profound effect on saving lives," Levy said.

However, Levy, a Democrat, added that "philosophically it is difficult to tell an 18-year-old that he can fight for his country -- yet he can't smoke."

Sponsor Legis. Brian Foley (D-Blue Point) Tuesday predicted the measure would almost certainly command the 12 votes necessary to override a Levy veto. "Today we have made a stand," Foley said.

Sponsors of a similar measure to raise the minimum age from 18 to 19 in Nassau County said they hope to capitalize on the Suffolk vote.

"Suffolk's passing of the bill will help our cause," said Nassau County Legis. Diane Yatauro (D-Glen Cove), who is sponsoring the measure along with Legis. Jeffrey Toback (D-Oceanside), chairman of the health committee. So far, six of Nassau County's 19 legislators have come forward to support the bill.

Officials for the New York State Department of Health said it is legal for counties to impose stricter tobacco laws than those mandated by the state.

In recent interviews, teen smokers said the law would be hard to enforce and was unfair because 18-year-olds can vote and serve in the military.

"Convenience stores and gas stations will have to clamp down on sales because many employees are not asking for identification," said Alice Tully, health education manager at Vytra Health Plans in Melville. "If a teenager wants to get cigarettes they will be able to, but this law will cut down on the access."

Jamie Drogi, spokeswoman for Richmond, Va.-based Philip Morris USA, one of the world's largest tobacco sellers, has said that the company wouldn't oppose the measure because setting age limits should be left up to the public. Drogi said the cigarette industry would cover retailers' cost of new signage associated with enforcing the measure.

Three states -- Alaska, Utah and Alabama -- have raised the age from 18 to 19. In each of those states the rate of teenage smoking has dropped in the past five years, according to the Centers for Disease Control and Prevention.

In Alabama, the smoking age was raised in 1999 at a time when 37 percent of Alabama high-school students smoked at least one cigarette per month. In 2003, it dropped to 23.7 percent.

"Research has shown that by raising the age from 18 to 19, we will be curbing access to tobacco for teenagers," Foley said. "This will keep them out of the hands of 18-year-old high school students who pass them on to younger students."

Buffalo News - December 5, 2004
        Niagara reports rise in compliance with smoking ban
        By Thomas J. Prohaska

LOCKPORT - A decrease in violations indicate compliance with the state anti-smoking law is improving, Niagara County Health Department officials reported last week.

Hearings continue to be held on violation allegations, and fines still are imposed on bars that allow smoking, Public Health Director Paulette M. Kline said.

But, she added, "most of the hearings we have are second or third violations. Many of them have made a decision they're going to be non-compliant."

The county Board of Health had imposed more than a half dozen fines each month, but this month, the figure has dropped to two, both repeat offenders.

At last week's meeting, the board imposed fines of $1,000, the maximum permitted, on Perna's White House on Niagara Falls Boulevard in Wheatfield and City Limits on Hyde Park Boulevard in Niagara Falls.

Neither bar had paid the $100 fines imposed earlier this year.

Several bars have threatened to sue the county over their fines, but no one has followed through with court action, Assistant County Attorney J. Michael Fitzgerald said.

Legal challenges to the state law itself have failed, although two are still pending, one in federal court and the other in state court.

"We don't have any litigation at this point in Niagara County," Fitzgerald said.

Kline said some bars that have been fined, including the Niagara Hotel in Lockport, have applied for waivers. "We thought that was significant because they had been adamant about noncompliance, saying the law was unfair," she said.

In February, the Niagara Hotel was fined $250. At the time, Kline said it was being treated as a first offense, although multiple violations of the law had been alleged.

"There's no consideration of a waiver until the fine is paid," said Barbara A. Brewer, owner of Brewhaus Coffee and Cafe in Lockport and chairwoman of the Board of Health committee that reviews waiver requests.

To receive a waiver, a bar must offer an enclosed smoking room with a separate ventilation system, and workers are not allowed to serve customers in that room. The state banned smoking in bars and restaurants, in part, because of the risk of secondhand smoke to workers' health.

Brewer urged Kline to recommend tougher fines on first offenders. When it adopted standards for enforcing the state law, the Health Department set $250 as the fine for a first offense, but in most cases Kline has recommended $100 or waived the monetary penalty. The Board of Health never has altered one of Kline's recommendations on smoking fines.

Fitzgerald said fines are supposed to be paid within 30 days after the bar receives notice of the board's action. Unpaid fines will be referred to Lockport City Court, where the county will seek civil judgments against the bar owners.

After the court rules, the county will report the matter to the State Liquor Authority, which can revoke a bar's liquor license. No Niagara County case has progressed that far.

The liquor authority, Kline said, has warned some bars in other parts of the state but has yet to lift anyone's license for smoking violations.

The Health Department and police agencies around the county, meanwhile, continue undercover compliance checks at stores to make sure they are not selling tobacco to anyone younger than 18.

So far this year, the 280 compliance checks by the cadre of 31 undercover teenagers have found only 21 violations. County fines imposed on the sellers total $7,250.

The Post Standard - December 5, 2004
        New weapon in war against smoking
        Anti-tobacco advocates are using data from survey to plan a statewide effort.
        By Scott Rapp

[NYC C.L.A.S.H. Note:  First, $60,000 paid by the state and federal govt. FOR A STUDY  is an absolute waste of taxpayer when we're facing increased fares, tolls, school expenses, etc.  But that's just to study who's smoking.  How much more will be spent trying to control people's behavior instead of using the money to buy books?  Second, the survey that will be used to model the direction of the program was conducted by a math and statistical teacher??  Doubtful that survey standards were adhered to in order to attain a true reflection in attitudes]

Jeramie Paul dragged hard on his Marlboro cigarette as he picked his way on foot through late-afternoon traffic on Genesee Street in downtown Auburn.

Paul, a 23-year-old high school dropout, sucked the cigarette ember to the filter before flicking the smoldering butt to the street. He's had plenty of experience; he starting smoking on his grandmother's knee when he was 3 or 4 years old.

"When I was littler, my grandmother used to let me take puffs off her cigarettes so I could blow smoke rings. Then I started really smoking and I've been doing it ever since," he said.

Statistically, Paul represents one of the largest groups of smokers in Central New York. Young men with less education, like Paul, smoke more than educated men or women on average, according to a recent study of smoking habits and attitudes in Cayuga, Cortland, Madison, Onondaga, Oswego and Tompkins counties.

Anti-smoking advocates in the surveyed counties are using data from the study to target points of concern that they will address in a statewide effort next year.

Among their goals is to persuade more people to quit smoking altogether or at least in their cars and homes to reduce the perils of secondhand smoke. They also plan to ask medical professionals in their communities to assume a larger role in shepherding their patients to smoke-free lives.

"There's good news (in the study) and, of course, there's things that we need to continue to work on. I think it's good that most people think that secondhand smoke is dangerous, but we need to get more people to quit smoking and less people starting to smoke," said Kari Shanahan, coordinator at Tobacco Free Madison County.

Officials will also use study results as a base line to measure how their counties fare in future efforts to reduce smoking rates.

Joel LaLone, a math and statistics teacher at Jefferson Community College, conducted the telephone survey in May and June. LaLone, a private consultant, randomly selected 400 people - 18 and older - in each county except Onondaga County, where 500 respondents were surveyed. ANTI-

The state and federal governments shared the cost of the $60,000 study.

Here are some of the survey's other conclusions:

About one in five people in the region smoke, reflecting the state average.

Although most of the respondents regard secondhand smoke as harmful, about 10 percent of them still allow smoking in their cars and homes.

About 60 percent support the Clean Indoor Air Act, and most of those interviewed say they dine out more often in restaurants since the legislation was passed in July 2003.

A majority was unaware of smoking prevention and cessation services in their counties and in the state.

About 70 percent said their health care providers had asked them if they had smoked in the past 12 months, but many of them were not advised to quit by those providers.

A majority of the smokers bought cigarettes at Indian businesses in the past year.

Anti-smoking supporters are encouraged by study data that show most people's attitudes are becoming less tolerant for smoking and secondhand smoke.

"We still have a lot of work to do. It's not just that (secondhand smoke) makes you smell bad or your eyes water. You're breathing in smoke without a filter. It's a health risk and people are dying from secondhand smoke," said Christina Wilson-Frasier, program coordinator at Tobacco Free Network of Oswego County.

Anne McCarthy, program coordinator of the Cayuga County Tobacco Coalition, said she is concerned about the relatively large number of young men and women who smoke in her county, based on the study results.

The study "shows we still have some work to do, especially with the younger population. . . . Why aren't they getting the message that smoking is a killer?" McCarthy asked.

Her coalition plans a media blitz next year to try to change some young people's tolerant attitudes toward smoking and secondhand smoke, she said.

McCarthy will also work with restaurants and other businesses to create smoke-free buffer zones in their entranceways.

Some counties, like Cortland, are starting pledge campaigns to encourage people to stop smoking in their homes this holiday season. Those who sign the pledge will receive a Christmas ornament that explains on one side the health benefits of a smoke-free home, said Jennifer Hamilton, a Cortland County public health educator.

Like many counties, Onondaga County will ask its medical professionals to take a more active role in helping smokers quit, said Stacy McNeill, the county's Tobacco Control Program coordinator.

Doctors and nurses will be asked to routinely advise their patients who smoke on where they can get local help to quit. Health care providers will also be encouraged to check on those patients' progress during subsequent office visits, McNeill said.

"We're very pleased to have found that most respondents had been asked by their medical providers about their tobacco-use status. However, the findings indicate that we need to do a better job in working with our medical community to assure that tobacco users will continue to be thoroughly screened, including referrals and follow-up visits," she said.

Most counties offer smoking cessation programs, and smokers can also call the state's quit-smoking line at 1-(866)-NYQUITS for help.

Paul, who grew up in Union Springs and occasionally works odd jobs, said he was unaware that smoking cessation programs were available in Cayuga County. He said he would take advantage of them if someone pointed him in the right direction.

"I'd love to (quit) because it's hazardous and it's depressing," he said.

NY Newsday - November 29, 2004
        No smoke in panel’s eye
        The legislature’s health committee votes to raise the legal age for cigarette purchase from 18 to 19
        By Christian Murray

Suffolk lawmakers yesterday took one step closer to making the county the first in the state to raise the minimum age for buying cigarettes from 18 to 19.

The seven members of the Suffolk legislature's health committee voted unanimously to approve the measure.

Supporters, including sponsor Legis. Brian Foley (D-Blue Point), said the bill is likely to pass the full 18-member legislature next Tuesday. And County Executive Steve Levy yesterday said he intends to sign it into law.

"The county needs to raise the smoking age to keep them out of high schools," Foley said, adding that the measure would help prevent 18-year-old seniors from buying smokes for younger students.

Jamie Drogi, spokeswoman for Richmond, Va.-based Philip Morris USA, one of the world's largest tobacco sellers, said the company does not intend to oppose the Suffolk bill. "The company believes this is an issue left for society to decide," she said.

In praising the Suffolk bill, William Stoner, regional advocacy director for the American Cancer Society in Hauppauge, set his sights on passage of a similar bill now before the Nassau County Legislature. He also said the local measures may pave the way for the legislature in Albany to raise the minimum age from 18 to 19 statewide.

Drogi said tobacco companies through the Coalition for Responsible Tobacco Retailing would cover the cost of new signs associated with the change. Stores would get the signs "free of charge," as they currently do, she said.

In recent interviews, teen smokers said the proposed law would be hard to enforce and was unfair because 18-year-olds can vote and serve in the military.

But Stoner took issue with that in testimony yesterday. "Yes, a true patriot can go to war at 18. However, a patriot does not allow our youth to be addicted to a product that will see one-in-three of them dying from it." When it comes to alcohol, "many lives have been saved raising the age from 18 to 21," he said.

Deputy County Attorney Elizabeth Harrington said the proposed law would stand up to legal challenges. Officials for State Department of Health said it is legal for counties to impose stricter tobacco laws than those mandated by the state. Three other states -- Alaska, Utah and Alabama -- have raised the age from 18 to 19.

Lena Dibble, marketing liaison for the Tobacco Prevention and Control Program for the Utah Department of Health, said the state started enforcing Utah's 19-year-old minimum policy in 2000.

In 1999, 11.9 percent of Utah High School students smoked; in 2003, the figure was 7.3 percent, according to the Centers for Disease Control and Prevention. "We know that some kids will still get them . But anything that makes it harder for them is beneficial," Dibble said.

7Online.com - November 29, 2004
        Time to Hike the Legal Smoking Age?
        By Eyewitness News' Lauren Defranco

(Central Islip) — The minimum age for buying cigarettes may be going up in several of our communities. Lawmakers in one county are trying to raise the smoking age from 18 years old to 19 years old. Eyewitness News' Lauren Defranco reports.

The measure was unanimously passed Monday by the Suffolk County Health and Human Services Committee and it's now awaiting a full vote. Long Island reporter Lauren Defranco has the story.

These high school juniors in Central Islip know the devastating physical effects of smoking. But the reality is a lot of students light up in spite of the warnings.

Now Suffolk County lawmakers are trying to curb teenage smoking by raising the legal age from 18 to 19. If they do, Suffolk would join only three other government bodies taking this aggressive action.

Brian Foley, (D) Suffolk County Legislator: "If we can delay, if not prevent, teenagers from starting to smoke, by the time they're in their twenties they'll never start smoking."

So Monday the health and human services committee voted unanimously of the resolution, which could soon become law. This after a spirited public hearing.

For obvious reasons, the opposition to this is remaining quiet but strong. It's convenience store owners who will have to police the new law and possibly lose business.

Suffolk lawmakers are determined this law will ultimately save lives.

Queens Chronicle - November 25, 2004
        New York City’s Smoking Ban Goes Up In Smoke In Astoria
        by Karen Keller

(Picture: With a pack of cigarettes at his side, this smoker reflects a typical scene in Astoria with restaurants and bars ignoring the smoking ban, allowing customers to smoke.)

After inhaling deeply from a cigarette, Gregory Loutos, 45, born in Greece, said governments don’t have the right to tell someone if they can smoke or not.

“I don’t like the American government; I just like America,” said Loutos, wearing a tie adorned with eagles and the colors of the American flag.

Over a year and a half has passed since the March 2002 citywide smoking ban, but it’s not difficult to smoke out the lawbreakers in Astoria.

In the neighborhood’s European-style cafes, owners routinely defy the ban. They say they’re forced to allow smoking in order to retain staple clients, many of them middle-aged and older men from Eastern Europe, where both smoking and defiance are more ingrained in the culture.

“I think it’s worth it to pay the ticket than to lose the customers,” said Paul Gregory, manager of Cafe Byzantio Bar. “This law is bad, very bad.”

Many cafe owners and managers said they enforced the ban initially. But that lasted just a few months, as customers got upset or didn’t come at all, reducing between 20 and 35 percent of total revenue, they said.

At Cafe Athens, Albanian-born Dionysus Mara and his three friends said they turned to their backyards for a place to gather in the months immediately following implementation of the new ordinance.

“No smoking, no coming,” Mara said.

Charlie Tzinlikis, general manager of Zodiak Cafe, a rare establishment that actually enforces the smoking ban, said he believes the Eastern European roots of many local smoker patrons is the reason Astoria is resisting compliance with the law.

“Immigrants, especially Europeans, they want to go against the law,” said Tzinlikis, Greek himself. “In Europe there are no laws to say ‘Don’t do this’ for your personal life,” he said.

Owners of establishments in Astoria, like Cafe Byzantio, say they’ve been fined far more than three times as a result of allowing Loutos and other patrons to smoke.

Fines are paid to the city’s Department of Health. First-time offenders are fined between $200 and $400. For the third infraction, the maximum fine is $2,000, and the city reserves the right to revoke the establishment’s license, according to the health department web site.

Cafe Byzantio has already developed a routine after the arrival of health inspectors, who come at least once a month, Gregory said. “We get a ticket, we give to the lawyer. That’s it. We can’t do anything else,” he said.

“Everybody gets fined,” he said, adding that he believes Astoria has had more smoking ordinance citations than any other neighborhood in the city. The neighborhood is also home to the Arabic water pipe cafes, on Steinway Street, where owners have been unsuccessful at convincing the city to allow pipe smoking indoors.

A health department spokesperson couldn’t confirm whether Astoria has been fined more often than other neighborhoods, because the city doesn’t keep records of fines per neighborhood, only by borough. During the 12 months ending March 31st, Queens had 957 smoking ordinance citations, the second-highest in the city after Manhattan, with 1,713.

Astoria’s cafes are complying with at least one smoking ban requirement, though. Most have No Smoking signs inside.

Versions of the city’s standardized sign, which businesses can download on the health department’s web site, are available only in English, Spanish, Russian, Korean and Chinese.

Translating the signs to Greek or Albanian, however, may not be enough to clear the smoke.

Most of Astoria’s older smoker cafe patrons cited the examples of their smoker grandparents, alive until ripe ages after a life of cigarette puffing.

Tony A., a 47-year-old born in Romania who didn’t want his last name to be revealed, claimed his grandfather lived until he was 110, after a life of growing his own tobacco and smoking it in rolled-up newspaper.

“I enjoy it,” Tony said of smoking, as he inhaled a Marlboro cigarette. He added that air pollution in Astoria, something his grandfather was not exposed to in Greece, is worse for health than tobacco.

“Over there you have horses,” he said.

Spiros Vlissaroulis, 55, said he believes it takes seven years for nicotine from a lifetime of smoking to disappear from one’s body after quitting.

But, in the end, he said, death is determined by a higher force no matter the strength of a smoker’s resolve.

“My father used to say when you’re born it’s written when and where you die,” Vlissaroulis said.

Suffolk Life - November 24, 2004
        Will Tobacco Age Be Raised To 19?

Suffolk Legislator Brian Foley (D-Patchogue) recently filed a resolution increasing the age for anyone in the county wanting to purchase cigarettes and tobacco-related products.

In an effort to stop high school students from buying cigarettes for those underage, Foley's legislation would prohibit "the sale of tobacco products or herbal cigarettes, rolling papers or pipes to anyone under the age of 19."

A study, conducted in 1999, by the Youth Risk Behavioral Surveillance, according to Foley's office, found that 29.9% of teen smokers gave someone else money to purchase them cigarettes and 30% "borrowed" from someone. According to Foley, "By prohibiting the sale of tobacco products to anyone under 19, the law would effectively keep them out of the hands of thousands of high school seniors."

Audrey Silk, founder of NYC Clash, a smoker's rights group, who does not believe increasing the age to buy cigarettes will hinder cigarette use by minors, said, "If [someone] wants to get cigarettes, they will find a way." Silk added that this legislation is another "desperate attempt at controlling people" and if someone at 18 can choose to sign up for the military there is no reason they should not be allowed to choose whether or not to smoke.

One smoker, a 15-year-old high school student, spoke at last week's Legislature meeting in support of the proposed legislation, saying, it is a "chance to prevent others from falling into the trap I fell into at a young age," adding that students who are "apathetic" to smoking may also be apathetic to other vices, like drugs and alcohol. According to Foley's office, 22% of New Yorkers between the ages of 14 and 18 are regular smokers.

"Throughout my career as an advocate for public health," Foley stated, "I have learned that to win the war on cancer, we must be willing to fight it on any front. I can think of no battleground more precious than our schools. If we allow ourselves to lose there, the casualties will be our own children."

New Zealand Herald - November 20, 2004
        Bar's still smokin'
        Editorial by Roger Franklin

Like a lot of New York's straight-off-the-boat Irish barmen, Brian - "no surname, thanks" - has a problem with authority; one that means keeping a weather eye on the door of the unfashionable watering hole where he slings suds from 6pm until closing time.

As an undocumented alien with a visa that expired more than three years ago, the immigration authorities have always been his chief concern. These days, though, especially after midnight when the cigarettes come out, there is another threat to his livelihood: the Big Apple's smoking police.

"It's a [expletive] crime," he said, "the way those bastards behave."

The regulars at Brian's bar, half-a-dozen smoke-stained rumpots and this reporter (on the premises purely for purposes of journalistic research) agreed.

The talk last week had been of the front-page picture on the New York Post. It was a close-cropped headshot of a young GI in Fallujah, face smeared with fatigue and camouflage paint, a thin smear of what closer examination revealed to be a splatter of dried blood down the bridge of his nose.

The face of battle, yes, but it wasn't the 10,000m stare of eyes fresh from combat that had the regulars' attention. It was the just-lit cigarette dangling from the young soldier's cracked lips.

"So that's how it works," quipped Brian. "Shoot a [expletive] sand goblin, win a [expletive] fag."

The regulars chuckled, as Americans always do at that imported word, which means gay, and only gay, on this side of the Atlantic. But they got his drift, and one of the patrons wondered if the soldier and his M-16 might not find fruitful employment on New York's home front.

"Mr Mayor, you son of a bitch," he began, making a gun with index finger and upraised thumb, "you're dead."

Then, in defiance of the Big Apple's draconian smoking laws, he lit another cigarette and exhaled a plume of ostentatious rebellion toward the yellowed ceiling.

That's the way it works these days in allegedly smokefree New York, where the city's two-year-old smoking ban has ushered in an entirely new social ecology.

At the chic bars and eateries, the ones that depend on high-volume turnover, even an unlit cigarette raised to the lips will bring an immediate warning to get the hell outside and light up on the sidewalk. With fines running as high as $2000 a violation, no eatery manager will risk the penalties.

But in the little neighbourhood joints, the ones that depend on regulars and locals, well, that's a different matter altogether.

At first, the hole-in-the-wall joints tried to uphold the ban. Trouble was, it proved financially ruinous.

One bar, Fiddler's Green on West 48th St, had survived for decades through blackouts, crime waves and even an armed holdup. But the smoking ban did it in.

Liquor sales were down 60 per cent, the staff was out of pocket for want of tips and the stools stood mostly unoccupied after midnight. Six months ago, the shutters came down for the last time.

"Drinkers smoke, and the people who complain about smoking don't drink - not a lot anyway," is the way Brian summed it up.

So, after weighing the risks, Brian followed the example of barmen in scores of other low-rent joints and began distributing saucers to his late-night regulars. They have to be saucers because, under New York's smoking-cessation bylaws, the mere presence of an ashtray - even a clean one - is taken as proof positive that illegal activities have been going on. Then the violations are written up and the fines issued.

No one is safe these days. Vanity Fair editor Graydon Carter, a diehard smoker and one of New York's premier arbiters of the chic and cool, was bailed up in his office and fined by two little men from the Health Department, not once but three times.

In office buildings, the presence of a single squashed butt in a stairwell is taken as proof that law-breaking goes on and the landlord is slapped with fines.

When former Mayor Rudy Giuliani was rooting out serious crime, opponents often criticised him for a too-literal interpretation of the law. Now that muggings, rapes and murders are down by as much as three-quarters on the figures of a dozen years ago, Mayor Michael Bloomberg has adapted the zero-tolerance approach to "crimes" that never previously raised an eyebrow.

These days, New Yorkers have been fined, if you can believe it, for sitting on a milk crate, riding a bicycle without both feet on the pedals, and resting their bags on subway seats.

The locals can live with all that. The ambient annoyances of daily life - misfiring car alarms, beggars, maniacal cabbies, kamikaze cyclists and sardine-style bus rides - are par for the course, and preserving a mental balance demands a talent to shrug them off.

But smoking in bars is a pleasure devotees of the weed won't surrender.

When Bloomberg, a former smoker with a convert's loathing for his former vice, hiked sin taxes in the Five Boroughs, tobacco sales soared in neighbouring Long Island and New Jersey, as did "buttlegging", with truckloads of cigarettes shipped into town from Indian reservations, where there are no paleface taxes.

Barman Brian doesn't care about politics, despite the picture of John F. Kennedy over the bar. But he fully comprehends the way the world works.

"I want to pay my rent, same as everyone," he said. "Here, let me give you a light."

Watertown Daily Times - November 20, 2004
        Watertown, N.Y.-area bars receive waivers to designate rooms for smokers

Two more north country bars have obtained waivers from the state Department of Health to have special rooms for cigarette smokers.

Gary's Pub, Route 3, Great Bend, and Palms Restaurant, 9 William Street, Gouverneur, were listed among five bars on the state Department of Health's Web site approved this month for waivers.

In all, 12 north country bars have obtained waivers to the state's Clean Indoor Air Act, which was approved in March 2003 and banned smoking in virtually all workplaces after July 24, 2003.

The law has been praised by health advocates who say it reduces exposure to second-hand smoke and criticized by bar owners who have said it takes away their right to run their establishment as they choose.

In Jefferson County, seven bars have obtained waivers for smoking rooms. The Speak Easy Tavern, Brown Shanty and Colesante's, all in Watertown, opened smoking rooms last April. The American Legion Post #583, Dexter, Burkey's Pub and Grill, Champion, and Walsh's Pub and Grill, Brownville, opened smoking rooms over the summer.

In Lewis County, just Baker's Bar and Grill, Lowville, has obtained a waiver. In St. Lawrence County, the Palms Restaurant joins three other bars which have obtained waivers: Pickey's Friendly Tavern, Massena, the Cedar Lodge, Parishville, and F&L Seaway Bowl, Massena.

Press & Sun Bulletin - November 18, 2004
        Yesterday's shuts its doors
        Vestal restaurant closes after 18 years, many laughs
        By My-Ly Nguyen

VESTAL, NY -- Another independent restaurant has closed, citing the statewide smoking ban in bars and eateries, a declining local economy and increasing competition from area chains as some major reasons for the shutdown.

Yesterday's Restaurant & Lounge on Vestal Parkway East closed at the end of business Saturday after 18 years of operation. Owners Mike and Suzanne Gavazzi hosted a going-away event Sunday at the restaurant.

"The clientele we've had have been really loyal," Mike Gavazzi said. "We've had some great employees and a lot of good times. But when you find yourself drowning in the bathtub, it's time to pull the plug."

Yesterday's is at least the fourth independent bar or restaurant to close in Greater Binghamton in the past two years for similar reasons. Others who have said they were affected by the same factors include:

* Valentine's Neighborhood Tavern & Grill in Union, a nearly three-year-old business that closed in October.

* O's Place in Endwell, a more-than-20-year-old business that closed in July.

* Mama Lena's Italian American Restaurant in Binghamton, which closed in August 2003. The owner had bought the business about 20 years ago.

The smoking ban went into effect in July 2003 and ended smoking in bars, restaurants and other businesses throughout the state.

Supporters of the law have said the prohibition will improve the health of tens of thousands of employees who had to work in smoke-filled environments and encourage non-smokers and consumers worried about the effects of second-hand smoke to more frequently patronize bars and restaurants where smoking was formerly allowed.

"You just don't lose the smokers, you lose their friends who don't smoke," Mike Gavazzi said. "It has a multiplying effect."

Yesterday's also saw business decline as area employers continued to lay off workers, he said. Some of the workers moved from Greater Binghamton, he said. Others couldn't afford to eat out as often.

"Just when you think things are going good, another business loses 80 people," Suzanne Gavazzi said.

Most recently, Endicott Interconnect Technologies and Huron Real Estate Associates cut 85 jobs nearly two weeks ago. Another 100 temporary workers also were affected by the cutbacks.

While area chain restaurants can compensate for losses at one site with profits at another, independent operators don't have that luxury, Suzanne Gavazzi said.

Chains also have larger advertising budgets, benefit from economies of scale when purchasing items and can afford to pay workers higher wages, Mike Gavazzi said.

"He's been trying to keep his head above water, but it was like riding the Titanic. We knew it was going," said Barbara White of Vestal, a regular Yesterday's customer for several years.

White said she was sad to see the business close because it provided many good times, food and lasting friendships.

"We had a lot of laughs, a lot of kidding around," she said. "It's one of the places where everybody knows your name."

The Gavazzis said they are unsure what they will do with the Vestal property, which they own. Several people have inquired about the site, Mike Gavazzi said.

The restaurant employed 22 people.

Wales On Sunday - November 14, 2004
        Smoking out truth over passive health
        By Kate Jackson

PASSIVE smoking in pubs may not be as harmful as we think, according to the results of an exclusive Wales on Sunday investigation.

In a three-hour period in a smoky bar, non-smokers were found to have inhaled the same amount of nicotine contained in less than one twentieth of a cigarette.

Even the highest reading found in our experiment would add up to just 19 cigarettes a year - and that's only if a person was to spend 20 hours in the pub every week.

Now pro-smoking group Forest has lashed out at the Government and the National Assembly, saying they are the "willing victims" of a "bullying campaign" to bring in a complete ban on smoking in public places.

We sent our non-smoking testers to five different pubs across Wales to measure just how much cigarette smoke entered their systems within a three-hour period.

Our reporters' saliva was tested before and after the three-hour period for the chemical cotinine - which is made by the body from nicotine.

While cotinine is not harmful in itself, scientists say it is the most effective way of measuring how much nicotine has been ingested. And nicotine is just one of 50 carcinogenic chemicals contained in tobacco smoke.

A person in the open air should have a reading of zero cotinine in their system.

Our results were processed and supervised by the Department of Epidemiology and Public Health at University College London.

The highest reading showed that in Copa bar, Cardiff, our tester smoked the equivalent of one twentieth of a cigarette in three hours. If taken over the year, spending 20 hours a week in the pub - not unusual for pub staff - this would equate to 19.4 cigarettes a year.

Two readings showed the same results - The Godfrey Morgan pub in Newport, and The Bryncoch in Neath - where our testers 'smoked' the equivalent of one sixtieth of a cigarette each. This equates to just over five cigarettes a year.

The tester at The Godfrey Morgan was sitting in a no-smoking area, although he had to walk through the smoking area and was sat just a few feet away from smokers.

The final two pubs, Revolution in Swansea and The Wynnstay Arms, Llanbrynmair, recorded negligible results, and both our testers found the places were well air-conditioned.

Recent research published by Professor Konrad Jamrozik of Imperial College, London, stated that up to 700 people a year die of cancer caused by secondhand smoke. He estimates that one person in the hospitality industry a week was being killed by heart disease or cancer caused by passive smoking.

And this week Scotland moved towards banning smoking in public places by 2006.

But Simon Clark, director of Forest - Freedom Organisation for the Right to Enjoy Smoking Tobacco - said our results showed good ventilation in pubs proves there is no need for a complete ban on smoking in public places.

He said: "Good ventilation can remove up to 90 per cent of chemicals in cigarette smoke. We've always said you have to be a real fanatic to be unhappy with that.

"We would be happy for the Government to say if you want to have smoking on your premises, you have to have good ventilation.

"I think the majority of people would find that a reasonable compromise, where pubs and restaurants can accommodate smokers as well as non-smokers.

"You can't have one rule that covers every single pub and restaurant in Britain."

The Assembly has consistently voted in favour of a ban but so far has no power to implement one and this year asked Westminster to legislate on its behalf.

A special committee is due to report its findings by May next year.

But Mr Clark argues that politicians are being pressured into a ban on smoking that is, according to him, based on very little evidence.

He said: "There is a systematic campaign deliberately designed to bully politicians into banning smoking in the UK.

"The Assembly and the Scottish Parliament seem to be willing victims.

"These results don't prove anything at all. Inevitably, if you are in a smoking pub you will have a higher reading of cotinine in your saliva.

"But the point is that nicotine and cotinine aren't in themselves harmful - yes, the results prove you have been in a smoky atmosphere but you can't prove there is a higher risk of getting ill as a result.

"There's no conclusive evidence that passive smoking is harming people."

Dr Ken Denson, who runs the Thames Thrombosis and Haemostasis Foundation, also argues there is little evidence to prove passive smoking is harmful.

He said: "I'm not surprised the results are so low.

"In America, in a study of 10,000 non-smokers, the average cotinine was similarly low and that was done on serum samples which is more accurate.

"It showed they had taken in about 1/500th of the nicotine that an average smoker takes in - about the equivalent of 10 cigarettes a year.

"It makes a nonsense of all the claims about passive smoking.

"There would be no point in having a complete ban on smoking. The medical profession has become so anti-smoking, it has become irrational."

But anti-smoking campaigners hit back, arguing any amount of cigarette smoke poses a danger.

Professor Robert West, of the Cancer Research UK Health Behaviour Unit at the University College London, said our results were low but still lent weight to the campaign to ban smoking in public places.

He said: "It looks like the Wales on Sunday testers are taking in very little smoke. When the test was carried out in Scotland, the average cotinine taken in was 4mg per millilitre of saliva, but here the highest is 0.7mg.

"These results are pretty insignificant.

"Cotinine is a chemical that the body creates from nicotine, but lasts much longer in the tissues than nicotine.

"This test gives an accurate indication of nicotine and, therefore, overall smoke intake.

"It can be measured extremely accurately, so much so that in children it can distinguish between the mother and father smoking.

"The risk of passive smoking is related to the amount of smoke taken in, so cotinine can be used as a reliable index of risk.

"But I believe a ban on smoking in public places would save 5,000 lives a year in the UK, from passive smokers to people who would give up as a result of the ban.

"It is only because we have got used to the fact there is smoking in these areas that we accept it."

The British Heart Foundation last week approached the Assembly, saying a ban on smoking in public places is the "only reasonable option".

In its paper, the BHF said: "We believe the raft of evidence supporting a ban is compelling, and that the Assembly should prioritise moves to introducing legislation to protect non-smokers from this unnecessary risk.

"There can be no doubt that exposure to environmental tobacco smoke causes significant health risks.

"Figures from a study in the US suggest that more than 377 people will die in Wales each year as a result of coronary heart disease caused by exposure to secondhand smoke."

Responding to the pro-smoking lobby's criticisms, Wales Health Minister Jane Hutt said: "Smoking is the largest single cause of preventable disease and early death.

"This is why it is one of the key action areas for Health Challenge Wales, the new national focus for efforts to improve health in Wales.

"Countless studies have shown that there are clear health risks to non-smokers to exposure to the carcinogens and other toxic compounds in second-hand smoke.

"The Welsh Assembly Government is committed in principle to seeking powers to ban smoking in public places in Wales."

Welsh secretary for the British Medical Association, Dr Richard Lewis, said any amount of tobacco smoke is dangerous, no matter how small.

He said: "There's plenty of evidence to show tobacco smoke contains chemicals."

Associated Press - November 14, 2004
        Secondhand Smoke Key Issue in Trial
        Dispute Over Secondhand Smoke Is Crucial Issue in Government's $280B Trial Against Big Tobacco

WASHINGTON  — Secondhand smoke can cause cancer. It's what the surgeon general says. So too the Environmental Protection Agency. And the World Health Organization. To the tobacco industry, however, the link is not clear. This dispute is a crucial issue in the government's trial against the nation's largest tobacco companies. The $280 billion sought is the most ever in a civil racketeering case.

The trial, which comes six years after the states reached settlements worth $246 billion with the industry to recoup the cost of treating sick smokers, is in its third month in U.S. District Court in Washington and probably will continue for several more. Testimony was to resume Monday.

The Justice Department alleges the industry engaged in a five-decade conspiracy to deceive the public about the health hazards of cigarettes. To win, the government must show the industry still is acting fraudulently or is likely to do so in the future.

Proving that the industry is misleading the public about secondhand smoke could be an essential element.

"It's probably the best evidence available that the tobacco industry hasn't truly, fundamentally reformed," said Matthew Myers, president of the Campaign for Tobacco-Free Kids.

Government lawyers say the industry's denials about secondhand smoke are reminiscent of the companies' decades-old assertion that smoking did not cause cancer. That stand was dropped only in the past five years, against overwhelming evidence.

Cigarette makers say evidence tying secondhand smoke to lung cancer is much weaker.

"We think there's a legitimate reason to believe that this is not a done deal scientifically. It is not a closed case by any means," said Seth Moskowitz, a spokesman for Reynolds American Inc., the No. 2 cigarette maker.

Government lawyers, who refused to speak publicly about the case outside of court, have argued in filings and before Judge Gladys Kessler that the industry has tried to create a controversy about secondhand smoke where none exists.

Tobacco company lawyers disagree.

"Statistically, the evidence isn't strong enough," said Dan Webb, a lawyer for the leading cigarette manufacturer, Philip Morris USA.

Numerous studies in the United States and elsewhere show that nonsmokers who are married to smokers, or who work with them, have about a 20 percent to 30 percent greater chance than other nonsmokers of contracting lung cancer. By comparison, smokers are about 20 times more likely to get lung cancer than nonsmokers.

The government estimates secondhand smoke causes 3,000 lung cancer deaths annually in nonsmokers in the United States.

The industry says the elevated risk seen in the secondhand smoke studies is too small to be statistically significant.

"To tease out that kind of excess risk is really very difficult," said lawyer David Bernick, who represents Brown & Williamson Tobacco Corp.

Bernick and industry officials say factors such as diet and lifestyle also could be responsible.

Some tobacco company representatives even suggest people mislead investigators by saying they do not smoke when they really do. They say that would particularly skews studies from countries where women are reluctant to admit to lighting up.

Scientists have considered those arguments in their studies and still found the evidence conclusive that secondhand smoke leads to lung cancer for some people, said Terry Pechacek, the associate director for science at the Centers for Disease Control's Office of Smoking and Health.

"The simple fact is that this is no longer an issue of debate within the scientific community," Pechacek said.

The first surgeon general's report stating that secondhand smoke can lead to cancer was published in 1986.

Webb attacked that report's credibility in court by producing a letter written by then-Surgeon General C. Everett Koop 11 months before the report was released, saying the evidence was not firm enough to call secondhand smoke a health hazard.

The government has produced its own documents to try to demonstrate the industry has engaged in a public relations campaign to play down worries about secondhand smoke, known within the industry as "environmental tobacco smoke," or ETS.

One document from a 1986 Philip Morris meeting includes a heading that reads, "How to alter public perception that ETS is damaging."

Government lawyers have focused on an industry-created organization that financed research into secondhand smoke in the 1990s. They produced an industry memo that said tobacco company officials must play an active role in the organization for it to be of value to cigarette-makers.

Another memo stated that a 1989 industry-backed conference on secondhand smoke was designed to "neutralize" reports scheduled for release on the topic.

Industry scientist Sharon Blackie testified she believed the purpose of the meeting had been "to shed light on the science and to point out flaws in the science."

Bernick said that does not prove the industry was lying or trying to deceive the public.

"The idea that we really knew the jig was up; it's just not there," Bernick said. "This is not fraud. This is a disagreement about a technical scientific matter."

Buffalo News - November 2, 2004
        Many bar owners shun boycott of Quick Draw
        By Tom Precious

ALBANY - Bar owners upset about the state's smoking ban staged a boycott of a popular state lottery game last week. But, in large order, the bar owners boycotted the boycott.

Many bar owners said they could ill afford to lose any more money at a time when they say their businesses are struggling to cope with smoking bans and tougher drunken driving laws.

State lottery officials reported Monday that sales of the Quick Draw game last week were off from average weekly sales by a just a fraction of 1 percent - down by just under $15,000 - on sales of about $9 million.

Bar owners in favor of the boycott against Quick Draw, an electronic, keno-type game, said they were hoping to send Albany a message that it must revisit the state's 15-month-old smoking ban in bars and other public places.

But those not participating said they were concerned about losing money if they shut off the lucrative devices, in which they share a portion of the sales with the state.

Moreover, some feared it could raise the ire of regulators in Albany, where Quick Draw - which last year totaled $150 million in revenue for the state - is an important budget-balancer.

"I just felt I wasn't going to be able to make a difference. If I participated and the guy down the street didn't, the business would just go there," said Bill DeLuca, owner of Mr. Bill's Restaurant and Bar in Cheektowaga.

An opponent of the smoking ban, DeLuca said that he has seen his bar business slip nearly 18 percent since the prohibition went into effect in July 2003 and that betting on his Quick Draw machine has gone from $5,000 per week to less than $4,000. "No one is at the bar, and with no one at the bar, no one is playing," he said.

Lottery officials reported only a slight downward blip last week, which they attributed to normal weekly swings, not the boycott that was spearheaded by a New York City smokers' rights group. In Chautauqua County, Brenda Perks, one of the organizers of the boycott, said bar owners were scared off by concern that the Lottery Division would punish Quick Draw contract holders if they participated in the protest. One group representing bar and restaurant owners in Brooklyn and Queens went so far as to send a letter to other business owners warning them that the boycott could put their Quick Draw license in jeopardy.

Perks, owner of Mel's Place, a bar in Falconer that does not have a Quick Draw machine, said supporters knew it would cost them money if they shut down the gambling machines. "We're trying to achieve the freedom of enterprise, the freedom of choice. They're taking our liberties away from us and they're doing it one step at a time," she said.

But bar owners that Perks and other organizers of the boycott pointed to as participants either said they didn't end up joining the protest or they declined to comment.

Scott Wexler, head of the Empire State Restaurant and Tavern Association, said some bar owners were worried about being publicly tied to a protest that would anger state officials. "If their name shows up as part of a protest, history shows the authorities visit them and bring the full weight of state government down on them," he said.

Several bar owners reported that state Lottery Division officials called or visited, urging them not to join the protest. Mauer, the lottery spokeswoman, said the agency "did nothing to affect" the boycott.

Associated Press - October 31, 2004
        LI case on smoking ban could have statewide fallout
        By Joel Stashenko

ALBANY, N.Y. -- A court decision dismissing fines against three Long Island taverns where patrons were seen puffing on cigarettes has opponents of the state's workplace smoking ban hopeful of getting the courts to overturn the smoking prohibition.

The Empire State Restaurant & Tavern Association said the ruling will be cited in the court papers the group's lawyers are preparing for a federal court challenge to the constitutionality of the state's 2003 workplace smoking ban.

"I think it strengthens our case," Restaurant & Tavern Association Executive Director Scott Wexler said.

On Oct. 13, state Supreme Court Justice Paul Baisley Jr. threw out the $650 fines levied against Jack McCarthy's Pub, Tobin's 2 Pub and the Dunton Inn after a Suffolk County Health Department inspector found patrons smoking in each establishment. The inspector said that although "No Smoking" signs were posted, plastic cups half-filled with liquid appeared to have been set out as makeshift ashtrays and she saw no employees of the bar challenged the smokers.

The judge said the inspector wasn't in the bars when the patrons started smoking, so it was unknown whether the owners warned customers that they were violating the ban, as the law requires. The judge also found that it is not a requirement in the smoking ban law that people who are smoking in defiance of the ban be denied service, as a hearing officer in Suffolk County suggested when ordering the fines against the three bars.

Making proprietors deny service to smokers would be an "onerous, substantive enforcement requirement" on business owners that is not called for in the law, Baisley ruled.

Christine Malafi, Suffolk County's attorney, said she is preparing an appeal of Baisley's ruling.

She said the case was decided on the facts, not the constitutionality of the smoking ban, and that "the facts as testified to were sufficient to sustain the smoking fines."

Wexler's group and other smoking ban opponents argue that the law unfairly puts the onus on proprietors of bars, restaurants, bowling alleys and other businesses to enforce the ban or to face fines of up to $2,000 and other penalties if they fail.

People caught smoking are not subject to penalties, said state Health Department spokesman William Van Slyke.

"The proprietor is the regulated entity," he said.

Baisley also noted in his ruling that the bars had on display "Can the Ban" signs, part of a campaign by smoking ban opponents to undo the prohibitions.

Ban proponent Blair Horner of the New York Public Interest Research Group said Baisley is "basically condoning lawbreaking" with his ruling.

Horner conceded the smoking ban law is "certainly not clear" about what proprietors must do to enforce the prohibitions: "It says you are not allowed to permit smoking," Horner said.

He said Bailey's ruling is potentially a dangerous one for the smoking ban.

"It has to be appealed," he said. "There is too much at stake. If this decision stands, the law won't be enforceable."

An educational pamphlet prepared by the state Department of Health urges proprietors to "remind" customers of the smoking ban and to "politely explain that they must step outside to smoke." It also says proprietors must make a "reasonable effort" to prevent smoking in their premises.

Nowhere in the pamphlet is there a directive that proprietors should bar service to people breaking the ban or to throw them out of their establishments.

Associated Press - October 31, 2004
        Florida Court to Review Tobacco Ruling

MIAMI  -- A decade has passed since a group of sick and angry cigarette smokers banded together in an unprecedented legal fight against the tobacco industry. A two-year trial produced the biggest award ever delivered by an American jury -- $145 billion. Now, in the midst of an evolving legal climate on tobacco-related lawsuits, Florida's Supreme Court is ready to review a lower court ruling throwing out both the money and a decision allowing the state's smokers to sue as one.

The two warring sides have been joined by an assortment of interested parties, including public health, public policy and business interests, for arguments set Wednesday.

``This is a case that's just too big for the Florida Supreme Court to ignore,'' said Columbia University law professor John Coffee.

Martin Feldman, a tobacco analyst with Merrill Lynch, considers the Miami case ``one of the three most important challenges against the industry'' -- all with potential multibillion-dollar consequences. The others are the Justice Department's racketeering claim currently on trial in Washington and a Philip Morris appeal challenging a $10.1 billion verdict in a light cigarette class action in Illinois.

The 3rd District Court of Appeal in Miami attacked virtually every part of the Miami smokers' case last year, but another panel on the same court issued an order that guided the trial by shrinking the lawsuit from a national class action to a statewide case in 1996.

The state's high court did not say why it wanted to examine the Miami case.

But attention has focused on three legal issues -- whether smokers could bind together as a class, the appeals court's elimination of punitive damages as an option based on the state's settlement of its Medicaid reimbursement claims in 1997, and the trial court order allowing the gigantic punitive damage award for all smokers when the compensatory claims of only three cancer patients were aired.

The tobacco landscape has changed over time. After decades of denials, industry leaders acknowledge their products are addictive and can be deadly. Cigarette sales are falling as tobacco companies spend more than ever on severely restricted marketing. The industry also is paying annually on $246 billion in settlements reached in the late 1990s to cover smoking-related health costs.

On the legal front, more than 50 federal and state courts across the nation have largely disbanded class-action attempts by smokers. Large-scale personal-injury class actions covering breast implants and asbestos injuries survived because they ended in settlement -- a line drawn in the sand by the tobacco industry when it comes to smokers.

The tobacco industry has put on a formidable court fight whenever challenged, and Feldman said fewer trials are set in the next year on individual smoker suits than at any time since the late 1990s.

Defendants Philip Morris, part of Altria Group Inc., R.J. Reynolds, Brown & Williamson, Lorillard Tobacco Co. and Liggett Tobacco Co. insist smoking histories and illnesses vary so much that the lawsuit covering somewhere between 300,000 and 700,000 Floridians cannot survive on appeal. R.J. Reynolds and Brown & Williamson have since combined as Reynolds American Inc.

``The odds are very much against certifying this broad a case today,'' Coffee said. ``It would be a stunning deviation from the current state of the law.''

Bob Montgomery, one of the attorneys who represented Florida in its Medicaid recovery suit, applauds the husband-and-wife law partners Stanley and Susan Rosenblatt for taking on ``a Herculean case'' for the smokers but sees little chance of getting the original verdict reinstated.

``If in fact they decertify, they say no class action, it's goodbye Charlie,'' said Montgomery. ``I frankly don't have much confidence that that case will be affirmed.''

The punitive damage award is in question several ways. Tobacco companies insist they would be forced out of business trying to pay, and state law bars bankrupting verdicts. They also argue punitive damages must bear some relationship to compensatory damages and cannot be decided for the group until everyone's compensatory claims are addressed.

Stanley Rosenblatt, who refused an interview request, said in court papers that any problem with the dollar figure should be sent back to the trial court to resolve.

The case is named for Dr. Howard Engle, an 85-year-old Miami Beach pediatrician with emphysema who underwent recent cancer chemotherapy.

Alvin Davis, one of tobacco's appellate attorneys, sees no way the class or the punitive damage award can survive even though thousands of smokers hoped the case would serve as a national vehicle for change.

Engle has a different view.

``At the age of 85 I'm looking at the last chapter in my book,'' said the doctor, whose booming voice is unaffected by his ailments. ``Everybody told us that this was a complete exercise in total futility, and surprisingly we have achieved some reasonable recognition.''

Buffalo News - October 20, 2004
        Quick Draw shutdown to target ban
        Foes of smoking prohibition are shooting for showdown
        By Janice L. Habuda

 With casualties of the state's smoking ban mounting, small-business owners plan to take another shot at Albany lawmakers with a weeklong shutdown of Quick Draw lottery terminals.

A Brooklyn-based grass-roots organization, NYC CLASH (Citizens Lobby Against Smoker Harassment), has called the shutdown for Oct. 23 to 29. The group seeks participation beyond taverns and restaurants - to other small businesses affected by the smoking ban, including bowling alleys, inns and fraternal lodges.

"The move isn't so much a protest but rather a display of collective power - a power that must be taken into consideration before legislators decide to propose and enact business-busting regulations," said Audrey Silk, the group's founder.

Enacted in July 2003, the smoking ban affects bars, restaurants, offices and covered outdoor patios. Several establishments have gone under because of lost business.

On Monday, citing the loss of trade due to the smoking ban, owner Richard E. Naylon Jr. closed Jimmy Mac's, which had been a popular restaurant and bar at Elmwood Avenue and Anderson Place, thus ending a 23-year run and causing the loss of 35 full-time jobs.

Last October, the Middleport Inn closed. Yet owner Renee Lembke continues to fight the ban, in her role as president of the New York State Bar & Restaurant Freedom Fighters.

"Just as we did before, (we're) asking everybody to shut down for as long as their business will allow," she said. "It's asking a little bit but it does prove a point. If everybody sticks together, it does make a big impact on the state's money."

In May 2003, before the ban took effect, some tavern owners pulled the plugs on their Quick Draw machines in protest. Of 2,917 retailers with the machines, 350 weren't working the first day of the protest.

Average daily sales were reduced that day by $233,000, a state Lottery Division spokeswoman had reported.

Lembke said she anticipates good support from the 70 to 80 businesses in Niagara County that are members of her group.

A Southern Tier bar owner, who has led the opposition in Chautauqua County, also said she is in. "Since Albany is legislating businesses out of business, then the only thing left to do is to make them feel the same kind of pinch they've imposed on us," said Brenda Perks, owner of Mel's Place Bar in Falconer.

While the ban initially was met by vocal, visible opposition statewide, it has been relatively quiet in the trenches lately. "I know we really have dwindled; not in size, just in fight," Lembke said. "I really want to get things moving again."

NBC 3 TV - October 20, 2004
        Smoking ban foes plan shutdown of state lottery game

BUFFALO, N.Y. A New York City-based group is calling on small business owners across the state to shut down their Quick Draw lottery games for a week to protest the state's smoking ban.

N-Y-C CLASH -- which stands for Citizens Lobby Against Smoker Harassment -- has called the shutdown for October 23rd to the 29th.

The group is asking taverns and restaurants, bowling alleys, inns and fraternal lodges to shut off their Quick Draw machines during that period as a way to send a message to lawmakers in Albany.

Enacted in July 2003, the smoking ban affects bars, restaurants, offices and covered outdoor patios.

Several establishments have gone under because of lost business blamed on the law, including Jimmy Mac's, a popular Buffalo restaurant and bar that closed its doors on Monday after 23 years.

The last time tavern owners pulled the plug on Quick Draw was in May 2003, costing the state more than 200-thousand dollars in lost lottery sales.

Associated Press - October 19, 2004
        Court Finds Tobacco Suit Basis Faulty
        By Joel Stashenko

ALBANY, N.Y. -- New York law does not allow insurers to sue tobacco companies for deceptive practices and recover smoking-related health costs, the state's top court determined Tuesday.

The decision removes the legal basis for a suit brought by Empire Blue Cross and Blue Shield against cigarette manufacturers that resulted in a $17.8 million verdict against the tobacco industry in June 2001 by a federal court jury in Brooklyn. Based on their share of the cigarette market, Philip Morris and R.J. Reynolds faced the largest payments under the verdict, more than $6 million each.

Upon appeal of that verdict, the U.S. Court of Appeals for the Second Circuit asked the state Court of Appeals to decide whether New York law permits a "third-party payor," like and insurer, to recover money it paid in health care claims related to smoking. The New York Court of Appeals agreed 7-0 that state law does not.

A 1984 consumer protection law that Empire Blue Cross said does permit such suits does not apply to such cases, the court said.

"What is required is that the party actually injured be the one to bring suit," the court said in a decision written by Judge Carmen Beauchamp Ciparick. "Empire was not directly injured in this sense."

Dr. Michael A. Stocker, president and chief executive officer of Empire Blue Cross and Blue Shield, said the insurer was disappointed with the ruling.

"We pursued this action because we believe it is part of our responsibility to be an advocate for our members," he said. "We will continue to seek redress in the future when we feel it is in our members' best interests."

A Philip Morris executive said Tuesday's ruling eliminates the legal underpinning of the case against the tobacco companies.

"Today's ruling should result in the verdict being set aside and the conclusion of the case," said William S. Ohlemeyer, Philip Morris USA vice president and associate general counsel.

Two similar cases filed in 1998 by Blue Cross and Blue Shield plans, in Seattle and Chicago, were dismissed after two other federal appeals courts ruled the plans had no legally valid claims. Martin L. Holton III, vice president and assistant general counsel for R.J. Reynolds Tobacco Company, said those other courts also found that the insurer lacked standing to directly sue for the costs it had to pay on behalf of the people it insured.

"If anyone has the standing to bring such lawsuits, it must be the individuals whom the companies insure," Holton said.

Empire Blue Cross and Blue Shield and related companies had sought more $800 million in damages against the tobacco industry in its New York suit. The jury in Brooklyn rejected racketeering and civil fraud claims against tobacco companies.

The judges said there is still an avenue for Empire Blue Cross to take if it wants to sue cigarette companies in New York, but it would require that deceptive practices be established for the individual claims of each subscriber. The court conceded such cases may be "difficult" ones to make.

Tuesday's ruling also imperils a $37.8 million award for attorneys fees Empire Blue Cross subsequently won in federal court.

Niagra Falls Reporter - October 19, 2004
        CITYCIDE: BAR OWNERS TO DEL MONTE: BUTT OUT
        By David Staba

As she seeks a third term, Assemblywoman Francine Del Monte holds just about every conceivable advantage over challenger Paula Banks Dahlke.

The makeup of the 138th District she's represented since 2001 is heavily Democratic. Thanks to her faithful service as a rubber stamp for Assembly Speaker Shelly Silver, no matter how much his agenda ignores or hurts Western New York, she enjoys the generous support of the statewide party.

That cash stream funds the radio ads running on a number of local radio stations, spots in which she takes credit for the Seneca Niagara Casino and the "2,200 jobs" it provides.

The notion that she had anything to do with the arrival of the casino is pretty interesting, especially considering that Silver thoroughly ignored her while dragging the approval process out for as long as politically possible. But considering that politicians gladly grab credit for everything from the dawn to the sunset, the boast isn't nearly as notable as what she doesn't say.

What Del Monte doesn't mention, ever, is that those 2,200 jobs are located in as close to an all-smoking environment as you'll find in New York State.

Like her colleagues in the state Senate, Republican George Maziarz and Democrat Byron Brown, Del Monte defended her vote in favor of the nation's most restrictive smoking ban by saying that it was meant to protect the state's bartenders, waitresses and busboys. She also parroted the line scripted by Silver and state Senate Majority Leader Joseph Bruno, which claimed the ban would actually help business.

It has. For the casino, at least.

Walk into the Seneca Niagara Casino, and you'll see people smoking from the moment you set foot inside. In the hallways, in the restaurants, on the gaming floor, in the areas where passengers on bus tours wait to be picked up.

About the only place you don't see people lighting up is the small non-smoking section. Of course, you don't see anyone else there, either.

Meanwhile, back in the area Del Monte supposedly represents, dozens of the jobs she's allegedly protecting have already vanished, with hundreds more to follow as one small entrepreneur after another inevitably surrenders.

At least one group of proprietors isn't giving up that easily, though. Organized by Joe Casale of Casale's Tavern, Kathy and Rick Lewis of Kelly's Korner and Vince Gervasi of Gervasi's Bar and Grill, this consortium of local bar and restaurant owners has launched a grassroots campaign to make sure people don't forget the ban's impact on their bottom lines.

On Saturday, the group distributed coasters and matchbooks emblazoned with the slogan "Tell Francine to Butt Out."

The flip side of the coaster carries a message from the challenger.

"The smoking prohibition is just plain wrong," the coaster reads. "Reducing cigarette smoking in this fashion is not a good law! The issue is not about smoking cigarettes -- it's about government believing it can interfere where it does not belong. If you agree, vote for Paula Banks Dahlke Assembly District 138 (on) Tuesday, November 2."

Some kits, which include coasters, matchbooks and a container for donations, are available by calling 868-4993.

Meanwhile, Del Monte's ads offer a vision of a Western New York swelling with new jobs and hope.

Funny, but while driving through the Southern Tier last week, Citycide happened upon a radio spot for Susan John, Del Monte's fellow assemblywoman from Rochester.

The ads were clearly produced by the same people hired by the state Democratic Party.

Same narrator, same message, same bizarre tagline -- something along the lines of, "Sometimes it seems like things will never get better, but I'll never stop working."

Translation: We're not very good at what we do, but you should let us keep doing it anyway.

WIVB TV 4 Buffalo - October 18, 2004
        Jimmy Mac's Closes; Owner Blames Smoking Ban

(Buffalo, NY) - - The business has gone up in smoke at a popular Elmwood Avenue bar. News 4's Marie Rice reports Jimmy Mac's is closing, and the owner blames the smoking ban.

The sign in Jimmy Mac's' window thanked loyal customers for 23 great years.

Owner Rick Naylon says he just can't keep going on month after month, putting money in a business that's losing money.

Naylon says he's lost over 100,000 dollars in 15 months, after New York's smoking ban law took effect.

Naylon said, "The way the county has enforced the smoking ban, it's destroyed the way we have done business for the last 23 years."

It was an emotional day for his 35 employees, who are losing their jobs.

Chef Gretchen Lohnes said, "[Naylon] always [said] kind words to me. [He would] always ... give me ... a pat on the head. You know, saying you're doing a great job. I've had 10 jobs. He's been the best employer."

On Monday, customers stared in disbelief at the 'closed' sign.

Scott Hasenstab said, "Myself, I'm a non-smoker. And I believe it should be your choice whether you want to go into a restaurant or a bar that has smoking or non-smoking."

Naylon says he's won in the courts, but the Erie County Health Department has yet to come up with a new set of smoking guidelines, and he can't wait any longer.

Naylon says it's a major defeat for free enterprise.

Naylon said, "There's literally thousands of ways to go broke in the bar business. I just never anticipated that it would be the government that would finally close me down."

Rick Naylon says he spent 30,000 dollars in legal fees fighting the no-smoking law.

On Sunday, Jimmy Mac's poured its last drink.

Associated Press - October 18, 2004
        Gaming table a hit with A.C. nonsmokers

ATLANTIC CITY -- At the Borgata Hotel Casino & Spa, dealers such as Linda Lombardo don't have to do "the wave" when smoke gets in their eyes.

A table does it for them.

The casino, which opened last year with a slew of gambler-friendly touches, has 120 custom-built table games equipped with nozzles that blow fresh air up, creating an invisible barrier between cigarette-smoking players and the dealers.

Each of the Air Rail System machines developed by Paul-Son Gaming Supplies contains four small slots on the table felt, just in front of the chip float.

Connected to duct work contained beneath the surface, they subtly clear the air in front of the dealer, who can turn them on or off or rotate the nozzles to adapt to conditions at the moment.

The tables, which were introduced on blackjack, Pai Gow, Caribbean Stud poker and mini baccarat games last year, cost about $400 more per unit than standard table games. They are the only ones of their kind in Atlantic City, although some casinos in Nevada, Connecticut and California also have them.

"It sets up an air curtain in front of the dealer," said Ron Coiro, East Coast sales manager for Gaming Partners International, the manufacturer's parent company. "It's not 100 percent, but nothing is."

So far, the tables are a winner, Borgata officials say.

"When you're dealing and the smoker is right in front of you, like on a blackjack table, that's when you need it," said former dealer Paul Mollo, director of casino administration at Borgata. "In the beginning, I had dealers coming up to me every day thanking me, saying it really works."

Lombardo, 45, who dealt cards at another Atlantic City casino for six years before being hired at Borgata, said she used to see dealers wave a hand in front of their faces from time to time, to clear the smoke.

"It's definitely a plus. The smoke doesn't gravitate toward your face. It's like a substitute for the wave of the hand. I don't see anyone doing that anymore."

Associated Press - October 17, 2004
        For casino workers, smoke study underscores hazard
        By John Curran

ATLANTIC CITY, N.J. -- For casino worker Joan Zarych, there's no escaping the smoke. It surrounds her at work, it follows her home on her clothing, it aggravates the asthma she says she got from working around cigarette-smoking gamblers for 20 years.

Whenever she gets a break, she hits the Boardwalk for a breath of fresh air.

But for much of her eight-hour shift as a table games supervisor, she's stuck overseeing craps tables, roulette wheels and blackjack tables where the smoke from cigars and cigarettes hovers like an unwanted guest.

Zarych, 45, would like to quit her $50,000-a-year job, but she has two young daughters to support. She can't.

"When I went to school to be a casino dealer, I didn't know it would damage my health. No one said I'd have to put up with people blowing smoke in my face. That wasn't part of the job description at all," Zarych said.

Zarych and other casino employees blame respiratory problems on their work environment. A recent study underscored just how hazardous that environment can be.

According to the study, published last month in the Journal of Occupational and Environmental Medicine, the air in bars and casinos can have up to 50 times more cancer-causing particles than the air on rush-hour highways.

The study, by biophysicist James Repace, found that casino and bar workers are exposed to particulate pollution at far greater levels than the government allows outdoors.

It wasn't the first scientific study that focused on the problem.

A 1996 study by the National Institute for Occupational Safety and Health found that casino workers are at greater risk for lung and heart disease because of secondhand smoke.

In that study, researchers sampled the urine and blood of 29 nonsmoking dealers and supervisors at Bally's Atlantic City casino, concluding that workers exposed to smoke had substantially higher levels of serum cotinine _ a chemical formed by the body's metabolism of nicotine _ than those in a comparison group who didn't work there.

While smoking bans protect many U.S. workers, those who deal cards and serve drinks in casinos get no relief. Many gamblers like to smoke and casinos don't want to alienate them by banning smoking.

Some Atlantic City casinos maintain no-smoking slot areas and table games, but most have no restrictions on lighting up.

"We've been trying to get help in the casinos for years," said Zarych, one of four Atlantic City casino employees to unsuccessfully sue tobacco companies in 1998. "It gets squashed. I've tried to hire lawyers, but the tobacco industry and the casino industry, they're too strong."

Casinos, for their part, would rather not have to choose between respecting smokers or respecting non-smokers.

"From the industry's perspective, we are not pro- or anti-smoking," said Naomi Greer, a spokeswoman for the American Gaming Association, the casino industry's national lobbying organization.

"It would be easier for us if nobody chose to smoke, but the reality is that many of our customers do. We are confident our members are taking the steps necessary to help ensure the health and comfort of all our customers as well as our employees," Greer said.

Last year, a measure that would have banned smoking in public places in New Jersey was amended to exempt bars and casinos before being gutted. A bill has been introduced again this year, but it already contains an exemption for casinos.

"The prevailing wisdom is that smokers are more prevalent amongst casino patrons than amongst the population at large," said Michael Pollock, publisher of the Gaming Industry Observer, an Atlantic City casino industry newsletter. "But you'll see less and less opposition as competitors to casinos _ other gaming venues or other entertainment venues _ go nonsmoking. Casinos don't want to be put at a competitive disadvantage."

Anti-smoking advocates say the deck is stacked in casinos' favor, thanks to the industry's political clout and the tax revenues it produces.

"It's the money," said Chris Bostic, general counsel for Action on Smoking and Health, a non-profit based in Washington, D.C. "States that allow gambling have become very dependent on the revenue that comes from them. They're worried they'll lose money, that the gamblers will go to states that still allow it."

New Jersey's reluctance to follow suit with New York, Delaware and other states that have banned smoking in public places may be a financial consideration.

After all, when gambling revenue drops, so do state revenues.

New Jersey taxes casinos at the rate of 8 percent of gross revenue. Last year, the state made $358 million that way, the money devoted to programs benefiting senior citizens and the disabled.

In addition, casinos pay a 1.25 percent tax to fund redevelopment efforts in Atlantic City and around the state.

Both revenue streams could suffer if casinos were forced to ban smoking outright and gamblers took their business to other states as a result.

"It's the loss of revenues to the whole state from the industry," said state Sen. John Adler, D-Camden, who sponsored anti-smoking legislation last year that would have exempted casinos and has a similar bill pending this year. "Casinos are a big part of our state economy."

In New Jersey, casinos employ about 48,000 people and spend billions buying goods and services. Still, some wonder how casinos get dealt out when it comes to smoking bans.

"It's hard to explain why casinos continue to be carved out," said Deborah Dowdell, president of the New Jersey Restaurant Association. "I don't know how these exemptions keep coming to pass. If we're talking about protecting employees, I don't know how exemptions keep coming in."

Cathy Burke has a theory about that.

Burke, who runs the Irish Pub tavern here, calls the smoking ban's casino exemption part of a continuing pattern of preferential treatment for New Jersey's gambling industry.

She fears a smoking ban that exempts casinos but not restaurants.

"This smoking ban _ this exemption _ is just one more nail in the coffin for a business like ours," Burke said. "Why would someone come here and not be able to smoke when they could walk across the parking lot to a casino and smoke there?"

Casino workers, meanwhile, feel like second-class citizens because occupational safety laws don't address what they see as the biggest hazard in their workplace.

Joseph Yaniak, 47, who works in table games at a Boardwalk casino, suffers from asthma and emphysema and blames them on 20 years of working around gamblers, some of whom purposely blow smoke into dealers' faces when they're losing.

He uses a steroid inhaler when he works, and he goes outside at every opportunity. But his job is to watch craps games and blackjack tables, and he has to be close by to do it.

"You can't walk away. You're tied to the table for an hour and it doesn't matter whether they light up five cigars or six cigarettes. You have to stand there and breathe it. The casino operators say `Hey, you don't like it, find another job,"' Yaniak said.

Bob Zlotnick, a founding member of Atlantic County Communities Against Tobacco, an advocacy group, said he hears that from casino employees all the time.

"I tell them the same thing the casinos do: It's a choice to work there. If you want to make the kind of wages they're paying, you work here and you work under these conditions. He who has the gold makes the rules."

Buffalo News - October 7, 2004
        State lets bill on Indian tax expire
        By Tom Precious

ALBANY - The Pataki administration has quietly let die a proposed regulation imposing the collection of taxes on the sales of cigarettes and gasoline to non-Indians by tribal retailers.

Despite being ordered to begin the collections under the terms of a 2003 state law, the state Tax Department has been telling local officials in recent days it will not enforce the law. The decision by Gov. George E. Pataki is a major win for Indian retailers, who will continue to enjoy a sizable pricing edge over non-Indian competitors.

The governor, who once favored the tax collections as a way to level the playing field between Indian and non-Indian retailers, has in recent years steadfastly opposed the tax efforts.

Instead, he has said "parity" deals, in which Indian retailers would raise the prices of cigarettes and gasoline, are a preferred route rather than trying to force collections on Indian tribes that have vowed to never pay the taxes; the parity deals, however, have not come to fruition.

The State Legislature last year mandated that Pataki begin collecting what lawmakers say is hundreds of millions in lost tax revenues through the sales of tobacco and gasoline on Indian reservations. The tax department wrote regulations to collect the taxes, but then refused to implement them.

So the Legislature this year pushed through a stronger bill that would give Pataki less wiggle room in his bid to stop the tax collections. Both legislative houses overwhelmingly passed the legislation, but the Senate has yet to send the measure to the governor for him to sign or veto.

The state in 1994 won a U.S. Supreme Court case over the Indian tax collection effort. State lawmakers estimate the 2004 bill that passed in June requiring the taxes to be turned over to Albany would raise an estimated $400 million a year and some estimates are much higher than that. The Pataki administration has said just a fraction of the Legislature's estimate would materialize.

The last time the state tried to enforce cigarette and gasoline tax laws on Indian retailers, protesters in 1997 closed down portions of the Thruway in clashes with state police.

"The department is aware that these regulations have expired, and we are reviewing all potential options for addressing this issue through cooperation, not confrontation," said tax agency spokesman Tom Bergin.

Seneca Nation retailers top, by far, the cigarette sales business by Indians in New York. Through Internet, mail order and retail shops, Seneca officials have voluntarily acknowledged that 55 merchants last year sold about 155 million packs of cigarettes. None of them was taxed, and they were able to undercut non-Indian retailers by at least $1.50 per pack - the state's excise tax.

Dan Finkle, an organizer with the Fair Application of Cigarette Taxes, a coalition of retail and health groups, sharply criticized the Pataki administration for ignoring "the will of the people" by simply not implementing a law that the Legislature approved. "It seems more like a dictatorship than a democracy. It just doesn't seem right at all," he said.

Seneca officials could not be reached to comment Wednesday evening.

The Seneca Nation, which earlier this year ran a multimillion-dollar ad campaign against the tax collection effort, maintains the taxes would violate the terms of an 1842 treaty between the tribe and the United States.

Finger Lakes Times - October 3, 2004
        County considering smoking rules: Seven Seneca buildings may be affected
        By Denise M. Champagne

WATERLOO — Smoking policies at seven county-owned buildings are about to be established.

The Seneca County Government, Operations and Technology Committee unanimously adopted a smoking policy Tuesday, which was recommended by a subcommittee made up of personnel from the various affected departments, union representatives, health care officials and others.

The recommendations will be considered by the full Board of Supervisors who meet at 6 p.m. Oct. 12 at the county office building at 1 DiPronio Drive.

When originally brought up in July, committee members discussed having a uniform policy, but the subcommittee determined it wasn’t possible because of special circumstances for different county departments. The subcommittee felt each location should adopt its own guidelines as follows:

• County Office Building: Smoking will be allowed at the east and west entrances and forbidden beyond the approaching sidewalks at the north, south and Office for the Aging entrances.

• Highway Department: Smoking should be at least 10 feet from either side of the entrance.

• Sheriff’s Department: Smoking should remain at the employee-only entrance on the front porch for employees and be established at the main entrance at the west end of the porch for the public.

• Court House: Signs indicating “No smoking beyond this point” should be posted by the steps to the public entrance. During a jury trial, jurors would be allowed to smoke at the west end of the courthouse where there is a locked door allowing exits only.

• Drop-In Center: The side entrance would be designated as public and non-smoking with smoking allowed at the other two entrances.

• Public Health Building: A bench for smokers at the public east entrance would be moved to a corner by the parking lot. Crusher stone would be put down with the bench and ashtrays set on it to avoid having mud tracked into the building. The designated smoking area would be at a picnic table at the south entrance where smoking is currently allowed. Signs would be posted to prevent smoking along the sidewalk from the parking lot and from drifting into employee offices.

• Ovid Mental Health Clinic: No smoking at the front entrance.

Tyre Supervisor Patsy Amidon asked what other counties were doing about the smoking issue.

Public Health Director Vickie Swinehart said Yates County has a no-smoking policy and Wayne and Ontario counties have not yet formalized regulations.

Some supervisors voiced their support for the regulations.

“I think this is fair,” said Lodi Supervisor Barry O’Neill. Committee Chair David Kaiser, of Romulus, added the proposal was well thought out.

Fred Trickler, one of three Waterloo supervisors, said he thought the committee did its homework and the proposal should be forwarded to the full board.

The Villager - September 29, 2004
        New noise plan silent on smoking law’s impact
        By Ronda Kaysen

If hell is other people, then Mayor Bloomberg’s noise law proposal has not solved the problem.

With smokers now relegated to the city’s sidewalks in the wake of the mayor’s 2003 smoking ban, their voices have drifted into neighboring apartments, causing many a sleepless night. To the dismay of residents, new noise legislation — also drafted by the mayor — does not address noise created by people, except in instances of disorderly conduct.

Who — if anyone — is responsible for the noise created by chatty smokers, and how (or if) these bar patrons’ volume can be regulated has yet to be addressed in the legislation. Bar and club owners, still reeling from the lost income following the smoking ban, fear that the new noise law, because of its subjective nature, will penalize them for attracting loquacious smokers. Residents, meanwhile, fear that no one will be held accountable at all.

“It’s an irresolvable problem that the city’s created,” said Robert Bookman, attorney for the New York Nightlife Association, of the noise pollution created by the smoking ban. “Short of [citing someone for] disturbing the peace, there’s nothing you can do about people out on the street. It gets into a difficult constitutional problem: you’re allowed to be on the street.”

The law addresses sound systems, not people, a protocol Bookman thinks penalizes club owners without resolving a main component of the noise problem, which is other people. “What’s the difference if the restaurant next to us has no sound system, but has open French doors and loud customers? Why are we in violation for having a sound system and they are not?” he said. “It’s another example of how they’re really not focusing in on the problem of noise on the sidewalk; they’re really focused on sound on the sidewalk.”

According to Bookman, 50 percent of all noise complaints to 311, the city’s non-emergency complaint hotline, are people reporting annoying neighbors, a dilemma not addressed in the new legislation.

Ivy Brown, a Meatpacking District resident and owner of the Meatpacking gallery Go Fish and photography agency One Naked Egg, has seen her neighborhood transform into one of the hottest nightspots in the city. Her five-unit building alone houses a wine bar, two restaurants and a bar and lounge. But all the new expensive sound systems and late night deejays have not been the source of Brown’s repeated 311 calls. The people lining up behind velvet ropes awaiting club entry and the smokers gathered on the sidewalk are the sounds that fill her Triangle Building apartment and studio. “There’s no break, it just becomes noise bouncing off noise bouncing off noise,” she said of all the voices.

According to the Mayor’s Office of Operations, complaints regarding noise from neighbors are consistently the second most common type of call to 311 citywide; in the East Village, complaints about noise in general account for the sixth highest number of calls to 311 — the single most common 311 complaint in the East Village from July 2003 to June 2004 was for establishments violating the smoking law.

For Village residents, the chatter of boisterous bar hoppers aggravates sleepless nights as much as the music playing inside the bars. “We have people hanging outside of bars, they talk, they make a lot of noise,” said Jean Standish, a 30-year E. Sixth St. resident. “The bars close and then we have these drunken people hollering and screaming up and down the street.” According to Standish, the smoking ban “exacerbated” an already frustrating situation.

Mark Hatalak, an E. Seventh St. resident, has lost many nights’ sleep to New Yorkers out on the town. “You’d like to get some sleep,” he said. “You get frustrated, especially when you’re sleeping soundly. Your whole day is shot.”

People smoking on the street have not translated to an increase in complaints to 311, according to Jordan Barowitz, a spokesperson for Mayor Bloomberg. “You see people on the street smoking, they’re making some noise, but they’re not making enough noise to generate a noise complaint,” he said. “If the people outside the bar do generate enough noise that it is disrupting the peace, then the police can address it.” If a specific individual is responsible for the noise — such as someone shouting — then that individual will be cited, according to Barowitz. He did not clarify, however, who would be cited if the volume of the group as a whole causes the disruption.

City Councilmember Margarita Lopez disagrees with Barowitz’s claim that there has been no increase in noise complaints for people talking on the street since the smoking ban. “There has been an increase in calls to 311 for noise,” she said. “Where do you think it is coming from, Virgin Mary in the sky? Please.”

A few well-placed citations to noisy bar hoppers may remedy the situation, says Hatalak of E. Seventh St. “If there’s some real enforcement where one or two people get ticketed, people will start to keep it down and it will make life a lot easier,” he said.

The threat of that actually happening has bar owners bracing for another hit to their businesses. “They’ve forced us to put our customers out on the street and now we’re going to be penalized for it,” said Sandee Wright, owner of the Whiskey Ward on Essex St. “It’s going to open up a way for them to shut a lot of us down.”

As the mayor’s proposal currently reads, law enforcement officials will be able to cite violators for “plainly audible” sound based on their own judgment, not on the reading of a sound level meter. Bar owners fear that although the law does not specifically ban people from talking on the street, a zealous inspector may cite a bar for loud smokers and, because there is no way to officially measure the noise, the bar owner will be unable to challenge the citation.
Some residents think that citing the bars is the best way to solve the problem. “Bar owners aren’t taking responsibility for the
areas in front of their bars and they could do that,” said Standish. “They should be penalized for loud crowds on their sidewalks. They’re terrible neighbors.”

If nothing else, the smoking ban has increased animosity between bar owners and residents, and it is unclear whether the new noise legislation will alleviate or exacerbate the problem. “[The smoking ban] has helped create an antagonistic environment between the community and the clubs,” said Bookman, attorney for the Nightlife Association. “The music has never been a big problem. I can count on my hands the number of times an establishment has gotten a repeat violation for music.”

Councilmember Lopez worries the noise legislation will make criminals of smokers. “If you push smokers into the street, the conversations are going to turn into a crime,” she said. “We are becoming a city in which civil liberties and entitlements are being eroded.”

Instead of increased legislation, Lopez suggests communication. “If we are going to talk about noise and we are serious about it, then we need to educate people about respecting people’s space.”

The mayor’s new noise proposal will be reviewed by the City Council’s Environmental Protection Committee this fall and City Councilmember James Gennaro, chairperson of the committee, expects the legislation to undergo extensive changes before it is written into law. “People have a right to be on the street,” he said. “However, we must do everything we can to protect the peace and repose of our communities.”

Wright of the Whiskey Ward is apprehensive that the new legislation will be manageable. “I’m a nervous wreck because I have to worry about what happens out on my street rather than what’s happening in my bar,” she said.

For Wright, the problem reaches beyond smoking or noise. “[The Bloomberg administration] is on a mission to close the city down early and quiet everything up,” she said.

Associated Press - September 24, 2004
        Croatia Girl Pays Teens Who Threatened Dad

ZAGREB, Croatia (AP) - A 13-year-old girl who paid off three older teens so they wouldn't tell her parents she smoked soon found herself in even worse trouble: The teens threatened to kill her father if she didn't fork over more money, police said.

The three suspects, aged 15, 16 and 17 were detained Thursday, after the girl had told her parents she had paid them $30,000 in bribes since March, Zagreb police spokeswoman Gordana Vuluma said.

The girl had taken the money from the parents, who had saved it to pay for a new home. Like many Croatians who don't trust banks, they had kept the cash at home.

The girl claimed the three first threatened to show her parents a photo depicting her smoking unless she gave them money. She told police they threatened to kill her father after she decided to end the blackmailing by admitting to her parents that she smoked.

The suspects told police that they only vaguely knew the girl, Vuluma said. Police suspect they used the money to buy motorcycles, clothes and perfume, but the suspects claimed the items were borrowed from other friends, Vuluma said.

Neither the girl nor the suspects were identified.

BBC News - September 25, 2004
        Stars oppose public smoking ban
        A group of celebrities has written to The Times newspaper opposing a smoking ban in public places.

Actor Stephen Fry, television presenter Chris Tarrant, artist David Hockney, Tory MP Boris Johnson and Bob Geldof were among those who signed the letter.

"Dangers of smoking and passive smoking are currently being exaggerated to the point of hysteria," the letter claims.

But the Action on Smoking and Health (Ash) campaign group said public smoking "limits other people's rights".

Other stars who signed the letter included pop music mogul Simon Cowell, singer Joe Jackson, chef Anthony Worrall Thompson, publisher Felix Dennis and inventor Trevor Baylis.

'Individual choice'

The letter, also signed by musician Lisa Stansfield, argues that New York and the Irish Republic have both suffered since introducing a smoking ban.

The letter states: "The risks of passive smoke have never been proven beyond meaningless levels in a small minority of studies.

"To smoke, to associate with smokers, or to operate a venue in which smoking is allowed should all be matters for individual choice.

"Smoking is legal and in pubs and clubs it's fanatical smoke-haters who are the minority."

The letter concludes by asking politicians and the media to "de-escalate the tension" surrounding smoking and "let common sense and the free market decide the future of British social life".

'Wildly misrepresented'

Pro-smoking campaign group Forest welcomed the letter, saying it showed how strongly people feel about the issue.

Simon Clark, director of Forest, said: "We urge the government not to be bullied by the antics of the anti-smoking lobby."

He said anti-smokers have "wildly misrepresented the dangers of passive smoking" and claimed the silent majority "want choice, not a total ban".

Deborah Arnott, director of Ash, said: "Clearly smokers have the right to smoke, but this is about where they smoke.

"Other people smoking in public places means asthma sufferers, for example, are restricted in where they go because people smoking can bring on asthma attacks."

Buffalo News - September 15, 2004
        Jimmy Mac's is up for sale
        Owner says smoking ban hurt the business
        By Lisa Haarlander

A restaurant that has openly defied the state's smoking ban is now for sale.

Owner Rick Naylon is asking $125,000 for Jimmy Mac's, a restaurant with a bar at 555 Elmwood Ave. E.K. Henderson Assoc., a company in which Naylon has a minority ownership interest, would retain ownership of the building. The restaurant's equipment and other assets are for sale.

"Jimmy Mac's is for sale," Naylon said. "But because of all the pending legal actions, I'm really not in a position to discuss the sale at any length."

On Monday, the five-judge Appellate Division of State Supreme Court in Rochester postponed a decision on Erie County's appeal of a State Supreme Court ruling that granted Naylon a six-month waiver on the state's Clean Indoor Air Act.

The county also fined Naylon $2,000 for violating the smoking ban.

Naylon has said that the smoking ban has hurt his business and made it difficult to keep the restaurant open. With smoking not allowed, drink sales have plummeted.

Jimmy Mac's has been a fixture on the Elmwood strip for the last 23 years.

In 1981, Naylon and his partner, Jim McLaughlin, bought the Shamrock bar. They opened a restaurant with a bar named after McLaughlin, who left the business after the first year. In its fight against the smoking ban, Jimmy Mac's had patrons sign a slip acknowledging that they are violating the state law and then took no action to stop customers from lighting up.

"Unfortunately, smoking tobacco indoors in NYS is Illegal," the slips stated. "By law, we have to inform you of this law. If you decide to break the law, there is no fine or penalty for the smoker. Please sign below to indicate that we have informed you of this law."

Naylon said his business increased by $25,000 from the previous month when smoking returned to the restaurant.

Suffolk Life - September 15, 2004
        Theatre Under Fire For Actors Smoking
        By Larry Swasey

In the name of artistic integrity, a local theatre is telling its cast to light up. The Gateway Playhouse in Bellport was recently cited by the Suffolk County Department of Health Services for allowing the play's cast members to smoke cigarettes during scenes onstage.

Despite the Notice of Violation for allowing smoking inside a public place, show producer Paul Allan said the show must go on, with real cigarettes and all. "We're smoking on stage," said Allan. "It's going to come down to the interpretation of the law."

Allan explained it was the theatre's right to have the play enacted as the writers and others involved with the production envisioned it. "I don't think I am violating the law, we are just trying to uphold the integrity of this production." Any variation to the play, such as prop cigarettes or unlit cigarettes, takes away from the reality the theatre is trying to create when it stages a production, Allan said.

As far as he and the theatre are concerned, the stage itself is not a public place, making it immune to the smoking ban, Allan said. "Gateway contends that while the house is a public place, what happens on stage is behind the 'fourth wall' and thereby not subject to the same rules since it is not public," a September 8 theater press release stated. "What is permitted on stage is not necessarily what is permitted in public. Shows like the Full Monty, Hair and The Naked Boys Singing, etc., have nudity on stage, whereas it is against the law to be seen nude on a public street," the statement read.

"It's the theatre's and director's and playwright's vision of how it should be seen, and we don't think any government agency can tell us how to do it," said theatre spokeswoman Linda Unger.

"If you don't have it at all, it's obvious by its absence," she said of the cigarette ban. "And if you have actors and actresses walking around with prop cigarettes," she added, "then you are taking the audience out of the element you are trying to create." She noted that in a play such as Cabaret, the absence of cigarettes would be somewhat ludicrous and especially hard to believe.

This whole difference of opinion on smoking on stage began when a theatre patron watching a production of Fosse this past summer complained cast members smoked onstage during the performance, said Unger. There was smoking onstage since the play dealt with legendary producer Bob Fosse and a world in which many smoked, she added.

The theatre had received a similar complaint only once before, she recalled, in 2000 during a scene in Titanic when cast members sing and dance about the pleasures of smoking.

The theatre has two options at this point, according to Millie Dinda, chief management analyst, Suffolk County Department of Health Services: either pay the $500 fine or contest it at an upcoming formal hearing. Dinda was unable to be reached for additional comments by press time.

WIVB TV4 Buffalo - September 9, 2004
        Bar Owner Fined for Violating Smoking Ban

The owner of a popular Elmwood Avenue bar and restaurant has been fined for defying New York's indoor smoking ban.

The Erie County Health Department slapped fines totalling 2,000 dollars on Rick Naylon for two separate violations at Jimmy Mac's.

Naylon has been battling in court for a waiver, and his case goes before the Appellate Division of State Supreme Court next week.

NY Newsday - September 9, 2004
        County to Playhouse: No smoking onstage
        Says Gateway will be fined $500 a day if actors light up during production of "Cabaret"
        By Peter Goodman

"Cabaret" is a show about a decadent time. It takes place in pre-Nazi Germany, when the clubs were full of booze and sex and -- cigarettes!

But the state Clean Indoor Air Act bans tobacco from just about everywhere, and the Suffolk County Health Department intends to fine Bellport's Gateway Playhouse if the actors light up during the current production. In fact, the company has already been fined $500 for smoking during a performance of "Fosse" last week.

Gateway producer Paul Allan said Wednesday he's going to fight the law as a violation of free speech.

"The theater itself is a public space, but the stage is not," Allan said. "We are allowed to be nude onstage; you don't need a waiver or a permit. You can drink a beer onstage, or have an open container of alcohol onstage, because it is not a public place."

But Bob Morcerf, the county sanitarian investigating the case, described the law, which went into effect in July of last year, as "a very far-reaching law. It says there is no smoking in any place of employment. ... When this complaint came in, we did look to see if there were exemptions for this type of situation, and there were none."

A Gateway patron had complained that her husband, who has asthma, was sickened by the smoke during a performance, Morcerf said. "We are trying to work with this guy. We are not looking to make a major league, Supreme Court case out of it," he said.

Allan said the actors indicated they did not want to use one alternative, herbal cigarettes. "I learned a lot about herbal cigarettes Thursday, and I'm finding lots of evidence that they are not safe," he said.

Other Long Island theaters handle the situation differently. BroadHollow in East Islip, which produced "Cabaret" in March, eliminated smoking from all its productions last year. "Actors walk with cigarettes and start to light them, but don't," producer Pat Zaback said. "It's really because of our patrons; they are so uncomfortable with smoking."

Fred DeFeis of Arena Players Repertory in Farmingdale said his performers light up and then quickly stub out the cigarettes. "We usually have them establish the fact that they smoke, and then get rid of it right away."

Theaters in New York City can apply for tobacco waivers for individual productions, said Actors Equity spokeswoman Maria Somma. But the process is so complicated that production managers usually use herbal alternatives, she said. There is no waiver provision for the rest of the state.

Buffalo News - September 3, 2004
        Agency seeks return of smokers' shelter
        By Kathy Kellogg

LITTLE VALLEY - The Cattaraugus County government removed five small gazebo shelters from county property last week in compliance with the Legislature's policy against smoking on county-owned property.

But members of the Legislature's Human Services Committee were asked Wednesday to return one of those gazebos to the Guidepost parking lot in Olean or to approve a smoking waiver for 50 or so clients who come to the county-owned property every day.

Guidepost is an adult day treatment facility providing services to clients with severe and persistent mental illness. The gazebo was removed by Department of Public Works personnel and taken to the Linwood Center, an adult day care facility at the old Allegany School.

"Half of our 100 clients are smokers. They are with us six hours a day, and it's not realistic to ask them to go without smoking," said community services director Bob Dobmeier, adding that smoking cessation programs have not been successful.

"They would all like to say that smoking is a major part of life for them," Dobmeier told committee members.

He said the group of smokers who used the gazebo also hoped to receive reimbursement for the $850 they anted up as half the cost of construction and as a gesture of ownership when it was set up in the parking lot about three years ago.

Committee members said smoking waivers are not possible, with the only exceptions granted to two elderly nursing home patients who rarely leave their rooms.

Several suggested as an alternative that a shelter be placed on neighboring property, such as a parking lot owned by Louis Magnano, an Olean developer and businessman. Smoking is not prohibited by the county on private property.

Committee Chairman Jon K. Baker asked Dobmeier to contact Magnano and ask him for use of a small space in the North First Street parking lot where the gazebo will be returned. Several committee members expressed hope that the space would be donated rent-free.

Legislator Elliott J. Ellis Jr., chairman of the Public Works Committee, told Human Services Committee members that he is aware of the problem and said Public Works has agreed to return the $850 to the Guidepost clients.

Dobmeier agreed to contact Magnano. "If it works out that way, I think it's an acceptable solution," Dobmeier said after the meeting.

Other smoking gazebos that were moved by Public Works include those at the Little Valley Center, taken to the Onoville Marina; Olean Nursing Home, moved to another location on site; the Machias Nursing Home, moved to another location on site; and the Olean County Building, moved to the Linwood Center/Cooperative Extension Building in Ellicottville.

Ellis suggested officials leave the gazebo at the Linwood Center and return a gazebo to the Guidepost from another location.

Washington Times - August 29, 2004
        Delegates find New York irksome
        By Ralph Z. Hallow

NEW YORK — Republicans found things to grumble about — and, in some cases, reasons to skip coming here at all — from security fears and hassles to the high cost of taking a bite out of the Big Apple.

Members of a party publicly devoted to limited government and individual freedom aren't too pleased with Republican Mayor Michael R. Bloomberg's citywide ban on smoking in nightclubs and restaurants.

"How can you have a convention without a smoke-filled room?" said Tim Morgan, a cigar-fancying California delegate to this week's Republican National Convention. Mr. Morgan got into town last week and managed to see five Broadway shows before the convention's start today.

"I don't like smoking bans. I'm a guy who believes in freedom," said Charlie Gerow, a cigar-smoker and delegate from Harrisburg, Pa. "Doesn't every civilized person enjoy cognac with a good cigar after dinner? I miss that here."

A major tobacco company was one of the sponsors of a pre-convention party at a Manhattan nightclub that throbbed with delegates and members of Congress dancing and drinking — but not smoking. That, they had to do outside the club, on the street.

News 10 Now - August 23, 2004
        Shoes become an issue under smoking ban
        By Sarah Sevier

Many bowling alley owners say the smoking ban is devastating business, but not for the same reasons as in bars and restaurants. They say it's largely about the bowling shoes.

Bowling alley owners tell us the hassle of changing your shoes to go outside and have a cigarette is a pain for customers. They say another problem is that if bowling shoes are worn outside to smoke they can get wet and stick to floor.

"People get hurt, pulled muscles, broken bones. It's a real problem so a lot of them rather than go through all that hassle --if they're paying forty or forty-five dollars a carton for cigarettes in this day in age, they aren't people that are going to say geez, I have to quit smoking because I can't bowl anymore they're gonna say geez, I'm going to quit bowling because I can't smoke anymore," said Terry Karst, Empire State Restaurant and Tavern Association.

The Ithica Journal - August 11, 2004
        Board denies smoking-ban waiver
        By Michele Reaves

ITHACA -- Tompkins County health officials voted 5-1 Tuesday afternoon to deny an Ithaca bowling alley owner's request for a smoking waiver -- but left room for another try.

"I was happy to see at least they gave me another chance," said Charles I. Parkin, owner of the Bowl-O-Drome on Third Street. "We are going to try again."

Parkin is the first person in the county to request a smoking waiver since the state's Clean Indoor Air Act amendment, which banned smoking in bars, went into effect in July 2003.

"I don't think I'm persuaded yet that the documentation is satisfactory," said Board President Jeffrey Snedeker.

He asked the board to amend their denial of the request and allow Parkin to reapply without having to pay the $50 application fee. He said the application lacked an adequate diagram of the facility to show how bowlers and employees would be separated from the smoking area. It also lacked full financial disclosure, quoting only the 32-week bowling league season and not the entire year. He said the application also requires a independent documentation of financial loss and a comparison of two years which was not available.

"I'd like them to get a complete and fair hearing," he said of waiving the application fee.

The business lost almost $30,000 and 110 bowlers during the 32-week league season, according to a document submitted by Parkin's attorney, James Kerrigan. In the bowling alley's busiest months between January and May, Parkin saw a 14 percent decrease in activity comparing the same period in 2004 to 2003.

"I don't think it's right what they've done," Parkin said early Tuesday evening. "In the past, I have done everything I could to keep the smoker and the nonsmoker happy. My plan is I want to have some kind of happy medium."

He added that he's spent about $10,000 on equipment such as Smoke Eaters and a ventilation system to help remove smoke from the bowling alley.

Board member Brooke Greenhouse questioned Parkin's reason for wanting a waiver.

"What is the advantage?" he said. "The waiver is not a perpetual waiver."

The waiver would only allow smoking for one year, Greenhouse added.

Francis Fox was the only board member to vote against the resolution, which denied Parkin's request. Fox said he was not in favor of the state's smoking ban.

"If people don't like smoke, they don't have to go there," he said. "We're free. We have a choice."

The Ithica Journal - August 10, 2004
        Owner cites lost revenue, upgrades
        By Andrew Tutino

ITHACA -- The owner of an Ithaca bowling center will attempt today to become the first business owner in Tompkins County to be granted a waiver to allow smoking in his establishment.

Charles I. Parkin, the owner of the Bowl-O-Drome, has requested the waiver be granted because of lost revenue and because of investments he made to separate smoke and patrons, according to his attorney and documents filed with the county Health Department.

"I talked to bowlers," Parkin said. "I know what they are saying. I also have a problem with how government is telling me how to live my life. It bothers me. It is wrong."

Parkin's application is being met with opposition from the Health Department's Environmental Health Division.

In an unsigned report, staff recommended that Parkin's waiver request be denied because he has not documented financial losses since the anti-smoking law took place last year and his plan to minimize exposure to secondhand smoke is inadequate.

James Kerrigan, Parkin's attorney, said he is hopeful the Board of Health will consider all of the facts in the case and arrive at a fair decision.

"Many bowlers have smoked when bowling," Kerrigan said in a telephone interview on Monday. "Mr. Parkin has made great investments and great strides in terms of separating smoke from who should not be subjected to smoke. He is looking for a waiver for a small part of the bar. He thinks the demands of his customers and the need for everyone to be free of secondhand smoke can be handled effectively."

The Bowl-O-Drome has been cited for failing to comply with the anti-smoking law. In its report, the Health Department said it has received 10 complaints about smoking in the bowling alley from Sept. 18, 2003 to April 9, 2004.

"A field visit on Nov. 25, 2003 confirmed smoking was occurring at the bar of the Bowl-O-Drome," a Health Department employee wrote.

The establishment was found in violation of the law on April 13 by the Board of Health.

Parkin, who believes the anonymous complaints are unconstitutional, has since filed a court action against the health department and is trying to get his violation overturned.

Kerrigan said Parkin did what he reasonably could to get patrons to stop smoking in the bowling alley.

On Monday, Parkin, a non-smoker, voiced his frustration with the law during an interview at the bowling center.

"I am not a policeman," Parkin said. "Are you going to tell a 70-year-old woman she can't have a cigarette?"

Parkin said he does not allow smoking in the bowling area, and the only place inside his building where patrons can smoke would be in the bar area where "smoke eaters" are installed. He also plans on installing double doors at two bar entrances to seal it off from the rest of the center.

"There was no democratic process when they passed the law," he said. "If they put a petition on the ballot and it passed, I would deal with it."

Tompkins County Legislator Michael Lane, who pushed for the county law to be adopted along with the state's version, said that while waivers are permitted under law, they should be approved sparingly.

"There ought to be a high standard," Lane said. "The waivers ought to be temporary in nature and the owner needs to effectively demonstrate economic hardship because we need to be cognizant that this law is to protect employees. How do you weigh the employee health risks vs. the economic loss of any applicants?"

Another area of concern is the competing interests of other businesses. Russ Nalley, the acting manager of Ide's Bowling Lanes in Ithaca, said business there has not dropped off dramatically.

"The bowling aspect of it has been fine," Nalley said. "The bar has held its own. Everybody has made due up here. We have people who have complained. It has not gotten to the point where we would ask for a waiver."

Nalley said that if the Bowl-O-Drome was granted a waiver, he is not sure Ide's would also pursue one.

"I think that is an issue where we would have to see how the cards play out," he said. "I think the biggest decision-maker would be if we saw a major decrease in business because another center can offer smoking and we can't. I can't make a decision right now."

Buffalo News - August 8, 2004
        Fines don't cover smoking ban's costs
        By Thomas J. Prohaska

LOCKPORT - Niagara County isn't making any money on enforcing the state smoking law.

Quite the contrary.

Public Health Director Paulette M. Kline said the county has levied $16,750 in fines on bars and restaurants where smoking has been detected since the Clean Indoor Air Act went into effect July 24, 2003.

However, only $8,950 in fines have been paid. "It was less than I thought," Kline said after reviewing a report last week.

The county has done 117 nighttime inspections of bars and restaurants in response to complaints of smoking. In each case, two inspectors are sent out, and it takes an average of two hours for inspections, including travel time and writing a report.

Kline said 519 employee hours have been logged on smoking investigations, with 266 hours on complaints that could not be verified.

Much of that work is overtime, resulting in time-and-a-half for public health sanitarians whose regular pay ranges from $20.65 to $24.17 per hour, according to the Civil Service Employees Association contract. Daniel J. Stapleton, the health department's director of financial operations, said the environmental health division has spent $22,123 in overtime in the first seven months of 2004. Its budgeted allocation for overtime for the full year was $35,000.

"A big portion of that is the Clean Indoor Air Act," Stapleton said.

Many of the fines are levied after a hearing, each of which costs about $200, Kline said, to pay for a court stenographer and preparation of a transcript. In the first half of this year, there were 29 hearings, for a tab of $5,800.

Those figures don't count secretarial work in the health department. Kline said it takes about one hour of clerical work if the accused establishment agrees to pay a fine without a hearing. It takes about four hours if the bar demands a hearing.

The bottom line: "The fines are not covering the costs," Kline said.

Environmental Health Director James J. Devald, whose staff of 15 sanitarians does the smoking inspections, said he's figured the unfunded costs equal about $13 per hour. The state reimburses a county for 30 percent of its smoking enforcement costs, and fines are supposed to fill in some of the rest. Devald said the total cost is about $26 to $30 an hour.

"I don't think people realize the impact on county dollars," said County Legislature Chairman William L. Ross. "And not only that (but) the impact on Paulette Kline. She's our public health director, and she's got the duty of these hearings."

Ross said he is concerned that Kline is spending too much time on state-mandated smoking enforcement, leaving her less time for what Ross considers more valuable activities.

"They can't bypass the public health agency. We are the enforcement agency," said Kline, who noted that bar owners who want to obey the law sometimes call police agencies and are told they don't handle smoking calls.

The County Legislature gave Kline the authority to call sheriff's deputies to back up inspectors if they're going into a bar they deem dangerous, but Kline said that's happened only once.

In all, the county has handled 304 smoking complaints since the law went into effect. It has found 98 violations. The county doesn't make spot checks; it only responds to public complaints. There have been 41 establishments for which the county has received more than one complaint.

Kline said some of the reports are clearly bogus.

"Sometimes people call when they're angry, and when we try to get more information, we can't get any," she said.

The county set a fine of $250 for a first offense, but Kline often recommends it be reduced to $100 if she thinks the bar owner has made an honest attempt to prevent smoking and customers just won't cooperate. Second offenders can be fined up to $1,000.

No fines are official until the board of health votes on them, but the board has yet to reject Kline's recommendation in any case. The highest levy so far was $1,250 against Club Joey Restaurant and Lounge in Niagara Falls, a two-time offender.

Several bar owners have threatened to sue the county over their fines, but so far none has, Kline said.

The board of health also has granted a dozen waivers from the law to bars, bingo halls and a bowling establishment that demonstrated economic hardship and presented plans to protect nonsmoking patrons, usually through separate smoking rooms with independent ventilation systems.

Stapleton said Niagara County's policies are more lenient than many other counties. "Allegany County gives no waivers," he noted.

Democrat and Chronicle - August 7, 2004
        OTB sues to secure waiver for smoking
        It asks state court to override local Health Department's denial.
        By Meaghan M. McDermott

Western Regional Off Track Betting Corp. has asked the state Supreme Court to step in and override a county Health Department decision that keeps the area's OTB branches smoke-free.

On Friday, Western Regional OTB filed a lawsuit asking the court to grant waivers to the state's smoking ban for its nine facilities in Monroe County. In early April, an OTB request for the waivers from the Health Department was denied by Health Director Dr. Andrew Doniger.

In the lawsuit, OTB general counsel Timothy A. McCarthy claims that OTB should have been granted the waivers because it already has in place “state-of-the-art” filtered-air rooms for smokers and has suffered a loss of business since the smoking ban began in July 2003.

Furthermore, according sto the suit, Doniger's criteria for granting waivers is “unreasonably narrow and arbitrary” and, because the state Health Department does not yet have a formal process for appealing denied waivers, OTB has been denied its “right for adequate review” of the denial.

The suit seeks to have Doniger's decision overturned and the waivers granted.

McCarthy could not be reached Friday for comment.

State law leaves the decision to grant waivers up to individual counties and has no set standard on conditions that would require them. However, the state has suggested that a proven drop of at least 15 percent in business could be grounds for the granting of a waiver.

Doniger said OTB's request for a waiver was denied because the corporation failed to prove a financial hardship specifically linked to the smoking ban.

He said OTB's application showed business losses of less than 15 percent at six of the nine facilities and said it could not be proved that greater losses at the other outlets were the result of the smoking ban and not other factors such as new casinos and online betting.

Since the smoking ban went into effect, Doniger has granted only two waivers. The first went to Geva Theatre Center last summer and allowed actors on stage to smoke during specific performances of a single play; the second waiver was granted to Eastman Kodak Co.

Doniger said the Kodak waiver would expire in three years and gives the company time to develop adequate and safe outdoor smoking areas.

Doniger said state law does not obligate him to grant any waivers and that he will always “err on the side of public health and safety.”

Off Track Betting has 39 locations in this part of the state and has been granted 14 smoking waivers in other counties.

Community News - August 6, 2004
        Bar and restaurant owners contend anti-smoking law killing their business
        By Tim Kane

ALBANY -- For three years, Tim Finnigan built a brisk business as a bartender at Washington Tavern in Albany during Sunday football games. Over time, it became one of the busiest days of the week, sometimes generating 35 percent of his salary.

Then overnight, business dropped nearly 50 percent. Closed on Sundays during the summer, the tavern's owner is considering whether to open at all this fall.

'I don't know if it's worth it,' Finnigan said as he poured a beer for a patron. 'It got to the point where we were barely paying the utility bill.'

There's no mystery as to why sales fell so suddenly, Finnigan says. When the state's anti-smoking legislation went into effect a year ago, people stopped coming almost immediately, he said.

Some chose to stay at home. Others, Finnigan said, went to establishments that chose to snub the law and risk being fined.

'I had regular customers who told me flat out that they went over to the other places because they could smoke,' said Finnigan, who is a smoker himself. It's not that he's against the law. 'The place does smell better, and my clothes don't get smoke in them.'

For Finnigan and others who work in the business, it's a case of lawmakers passing laws that are unenforceable. The current situation punishes bars that abide by the law and rewards those who ignore it.

'It's got to be fair,' Finnigan said. 'More and more, I hear of places deciding to allow smoking. They don't feel that they will get caught.'

A year after the state banned smoking from bars, restaurants and bowling alleys under the Clean Indoor Air Act, the smoke still hasn't cleared on what's become a controversial issue for anti-smoking crusaders, consumers and tavern owners.

The clamor from restaurant owners was so great the state Assembly considered legislation that would modify the law, but eventually voted it down in committee. Without any action expected this year, bar owners are left to deal with making up the lost business.

'It definitely didn't settle well with our members. Everybody reports being impacted,' said Scott Wexler, president of the Empire State Restaurant and Tavern Owners Association. 'While most of our members feel there should be some restrictions, there must be changes.'

Restaurateurs clashed with anti-smoking advocates on more than one occasion at the Capitol during the spring. At one point, about 70 protesters shouted down Russell Shiandra, director for Tobacco Free New York.

'It's rare you see these guys going to the Capitol,' said Wexler. 'They are entrepreneurs who largely want to be left alone to run their business and not deal with politicians.'

Lawmakers passed the legislation after years of mounting evidence suggested second-hand smoke can be as dangerous as inhaling cigarettes.

After the first year, anti-smokers say the legislation couldn't have worked any better. According government statistics, 93 percent of the establishments are complying, said Tim Nichols, director of governmental affairs for the New York State Lung Association.

'It's working really quite well,' Nichols said. 'People are behind the law, and there is a lot of self policing by patrons and owners.'

Nichols also said the low number of hardship waivers authorized by state and county officials indicates not many bar owners are being impacted to a great degree. He said there is no reason to change the existing law.

'People will get used it,' he added. 'I remember when the first ban went into effect in 1989, and people complained.' Anti-smoking advocates said the issue shouldn't be about economics and profits, but about health and the long-term costs smoking inflicts on society. They say they are not targeting the industry. The law bans smoking in all workplaces, with restaurants being a very small part.

Industry officials claim the law has eliminated $26 million in wages and nearly 3,000 jobs statewide have been lost through May. Faced with declining revenues, some are allowing smoking in some parts of their establishment during certain times of the day.

Some even set out 'fine' jars so smokers can leave a dollar or two to pay for a fine.

One bar owner said he saw very little enforcement after the first few months and decided to break the law.

'I had to do it. I lost 30 percent of my business,' said the owner, who asked not to be indentified. 'Then it all came back. In fact, my business increased.'

The Lung Association's Nichols said owners should file a complaint with authorities when they know another owner is allowing smoking. He said enforcement is about the industry policing itself to keep a level playing field, not just government.

Anti-smokers reject industry claims of heavy losses, claiming the numbers are created by the industry itself and are not independent.

The Times Herald - August 5, 2004
        Smoking ban citations pile up in county
        By Rick Miller

ELKDALE — A year after the New York State Clean Indoor Air Act went into effect, the Cattaraugus County Health Department has issued 30 citations for smoking ban violations.

Fines have ranged from $500 for a first offense to $1,000 to subsequent violations.

Two taverns have taken the county Board of Health to state Supreme Court — one twice — seeking to overturn their convictions and fines.

One tavern, the Phil-N-Station on West State Street in Olean, has been cited four times for smoking ban violations.
On Wednesday, the Board of Health turned down an appeal of a $1,000 fine for an April 23 incident when a health department representatives testified to seeing six people smoking in the bar.

County Attorney Dennis Tobolski told Board of Health members meeting at Elkdale Country Club that the Long Branch Saloon in Franklinville has filed another lawsuit against the Health Department and Board of Health over enforcement of the Clean Indoor Air Act.

In May, Acting State Supreme Court Judge Larry Himelein dismissed a suit filed by the Long Branch Saloon seeking to overturn its violations of the smoking ban cited by the department.

Mr. Tobolski said an attorney for the Long Branch filed a new lawsuit last week.

“The legal arguments are a lot alike ... but the facts are slightly different,” he said.

The lawsuit will be argued in state Supreme Court in Little Valley on Aug. 26, the county attorney said. The court ordered about $1,600 in fines and per diem costs held in escrow pending outcome of the lawsuit.

Andrew Goodell of Jamestown, the attorney representing Long Branch owner Robert Allen, had sought to show the Clean Indoor Act was unconstitutional because the bar owners are being cited for violations being made by customers.

The Board of Health denied several appeals of earlier smoking ban violations, including one by Cathy Maley representing Don’s Tavern in Olean. That establishment was cited for a second time on March 27, when 12 persons were spotted smoking in the West State Street bar.

“We feel we made a good-faith effort” to enforce the smoking ban, Ms. Maley said, noting that the bartender has been suspended twice. There are “No Smoking” signs posted, ashtrays have been removed and a smoking area has been installed at the rear of the building, she explained.

“Even if we are guilty, we are not liable,” she said, citing an “affirmative defense.”

The board denied the appeal as well as a proposal to reduce the $1,000 fine.

Appeals were also denied from Rockin’ Rick’s in Limestone, which was fined $1,000 for a second offense March 27, and The Plant in Olean, for a $1,000 fine for a second violation on March 26.

The Journal News - August 2, 2004
        Smoking ban still inflames some
        By Jane Lerner

A year after New York banned smoking in just about all bars and restaurants throughout the state, Rockland business owners and customers remain divided about the law's effect.

Owners of bars close to the New Jersey border say the rule has devastated their businesses and chased their customers over the state line.

But a year after the last cigarette was smoked — legally — in a Rockland eating establishment, there is little evidence that a wave of closings has hit the hospitality industry.

More bars and restaurants both in Rockland and statewide have liquor licenses now than a year ago, according to records kept by the state liquor authority.

Pub owners insist that those numbers don't tell the real story. They continue to lobby for repeal of the state law banning indoor smoking and maintain that the law is driving them out of business.

"How can we compete?" asked Pat Withers, vice president of the Rockland Tavern and Hotel Association, and owner of the Ireland's 32 pub in Suffern. "People aren't going to stand outside in the rain to smoke when they can drive five minutes down the road and smoke inside."

Withers said his business was down about 50 percent since the law took effect.

Frank Watkins, owner of the Mount Ivy Pub, a bar in north Rockland, said his customers overwhelmingly wanted the right to smoke.

"I'm a businessman," he said. "What gives the state the right to tell me how to run my business?"

A study by the Empire State Restaurant and Tavern Association, an Albany-based trade group, concluded that the ban had cost the industry about 2,000 jobs and $28.5 million in salary and wages.

Locally, customers said last week they were divided about the rule.

Some people like going out to eat without smelling someone else's cigarette smoke and hail the new law as giving them more dining options.

"I can enjoy the taste of my food without smelling smoke," said Mimi Salati, who was having lunch last week at a table near the bar at the Hudson House, a popular Nyack restaurant. "I don't need to be subjected to cigarettes."

But smokers say the ban causes them great inconvenience and forces them to change their dining plans.

"It's a do-gooder law," said Nyack resident Jerry Lynch, who was finishing his lunch and smoking a cigarette, legally, at one of four tables set on the sidewalk outside the Hudson House. "If I want to smoke, that's up to me. Why can't people mind their own business?"

Lynch said he had changed his habits somewhat since last July.

He smokes a little less, he said, especially in the winter, when the idea of standing outside to have a drag is unappealing.

And instead of frequenting Nyack pubs, Lynch finds himself going to places where he can both smoke and eat. He joined the Elks Club in Haverstraw, a social hall that is exempt from the regulation.

Increasingly, he drives a short distance to bars and restaurants in neighboring Bergen County, N.J., which allows smoking in designated areas of restaurants and taverns.

Places like Davey's Irish Pub, a bar and grill located in Montvale, N.J., a mile over the state line from Pearl River, are seeing more customers from New York.

"I live in Rockland and I see plenty of familiar faces here," said manager Terry Maffei, a Blauvelt resident. "We have seen an increase in people from Rockland over the past year."

The restaurant underwent a renovation two years ago, which might account for some of the increase, she said. It permits smoking at the bar and has a designated smoking area in the dining room.

It's that short drive into New Jersey that worries Rockland bar and restaurant owners the most.

Rockland's proximity to New Jersey is especially hard on informal pubs that serve burgers and beer in communities that border Bergen County — places like Pearl River, Suffern, Piermont, Chestnut Ridge and Nanuet.

"It gets harder and harder every day to stay in business," said Stanley Olszewski, manager of Silo, a bar and grill in Chestnut Ridge, about a mile from New Jersey.

He figured his business was down about 35 percent from a year ago.

The law's proponents predicted a year ago that bars and restaurants would see an influx of new customers — nonsmokers who would frequent newly smoke-free establishments they would not have considered previously.

Surveys by the Rockland Department of Health have shown that about 15 percent of adults in Rockland smoke.

"After all, many more people don't smoke than smoke," said David Martin, executive director of the American Lung Association's Hudson Valley chapter, which lobbied for the law.

He said the smoking ban had been a plus for nonsmokers who went to bars and restaurants.

"One hundred thousand people in the Hudson Valley with asthma have been able to go to restaurants for the past year," he said. "That's a wonderful thing."

But Olszewski and other bar and restaurant owners said they hadn't seen an increase in people who said they were attracted by the fact that no smoking was allowed.

"It just hasn't happened," he said. "Anyone who thinks this isn't hurting business is wrong."

The Journal News - August 2, 2004
        Pub proprietor denounces regulation
        By Jane Lerner

The way Frank Watkins sees it, he is in the hospitality business and the regulars at his bar are his guests.

"You don't tell your guests to go outside in the rain and snow to smoke," he said.

Watkins owns the Mount Ivy Pub, a bar with a long history in northern Rockland, and one of just a handful of local establishments that have been fined over the past year for violating the indoor smoking ban.

Watkins said he didn't see the rule's logic. His customers — mostly older men, many of whom are veterans who revel in the bar's military motif — want to smoke a cigarette with their beers, he said.

"That's the kind of establishment this is. That's why people come here — to smoke and drink and relax," he said one recent afternoon as the smell of cigarette smoke wafted over the bar.

His customers agreed.

"How am I hurting someone else if I sit in a separate smoking area and smoke a cigarette?" asked Rich Juritsch, a West Haverstraw resident.

Watkins said he and other small business owners were being unfairly singled out. The state, he pointed out, makes money on cigarette sales. And it has no business telling him how to run his bar.

"Why isn't there a law that restaurants can't serve cake to anyone who is more than 10 pounds overweight?" he asked.

Public health experts and people who support the ban say the law has gone a long way toward eliminating nonsmokers' exposure to secondhand smoke's harmful effects.

Compliance with the regulation has been good, said Rockland Commissioner of Health Dr. Joan Facelle.

"The norm is changing," Facelle said. "People expect to go to a restaurant without smoking."

That's fine, Watkins says.

Let nonsmokers go to bars and restaurants that chose to ban smoking.

"If you don't like the smell of manure," he said, "stay out of the barn."

The Journal News - August 2, 2004
        Few county businesses seek waivers from smoking ban
        By Jane Lerner

After Rockland set up a process for bars and restaurants to apply for exemptions from the state indoor smoking ban, health officials braced for hundreds of applications from business owners who attended special hearings on the issue.

It never happened.

A year after the law took effect and more than six months after the Rockland Department of Health began considering applications for waivers from the law, only three local establishments have applied.

None of the businesses has reached the final stage of the process, which has several steps, and no exemptions have been granted.

"I guess that means the impact has been less than what they had originally thought," said Rockland Commissioner of Health Dr. Joan Facelle, who has the authority to grant the waivers.

The state law left it up to counties to decide if they wanted to grant waivers. Rockland created a process similar to ones used by other counties. Some counties, including Westchester, enacted stricter no-smoking laws that do not permit waivers.

To qualify for a waiver, Rockland businesses have to submit state and local sales tax receipts for 12 quarters before July 24, 2003, the day the law took effect, to show their business had dropped at least 15 percent since then.

Businesses granted exemptions would have to install ventilation systems designed by an engineer or architect to protect patrons and employees from secondhand smoke.

Local bar and restaurant owners who contend that the smoking ban has hurt their bottom line say they are reluctant to go through the application process because of the cost to create separate ventilation systems and other requirements. They point out that they already paid for renovations to create separate smoking areas when the state permitted that option.

Those separate areas are now useless because smoking is not permitted there under the new law.

"I don't know if it would be worth the cost," said Suren Kilerciyian, an owner of Cornetta's, a Piermont restaurant that has begun the waiver process. The other two are Kennelly's Grille House in Congers and the Silo in Chestnut Ridge.

Will Kennelly, owner of Kennelly's, figured it would cost him about $20,000 to put a separate ventilation system in place.

"So what if I spend that money and then a year from now they tell me, 'No more waivers'?" he asked. "My business is already down. I'm not going to recoup that investment."

He estimated that his lunch business had decreased about 70 percent in the last year.

"People used to come in for a bite, a glass of beer and a cigarette," Kennelly said. "I don't see that crowd anymore."

To make up for that loss, he is doing more catering in the restaurant's outdoor dining area.

Kilerciyian said he noticed a big drop in his bar business in the winter. But volume is close to normal now, because, he figures, customers who smoke can go outside. In the warm weather, he also has tables outside where people are allowed to smoke.

He's waiting until summer's end to decide if he is going to go ahead with the waiver process.

Some of his patrons like the fact that no smoking is allowed. But others still wish they had the option to light up.

"I'm going to give it some more time," he said. "I want to see what the people's choice is."

Troy Record - August 1, 2004
        Up in smoke: Bar owners say smoking law killing business
        By Tim Kane

ALBANY - For three years, Tim Finnigan built a brisk business as a bartender at Washington Tavern in Albany during Sunday football games. Over time, it became one of the busiest days of the week, sometimes generating 35 percent of his salary.

Then overnight, business dropped nearly 50 percent. Closed on Sundays during the summer, the tavern's owner is considering whether to open at all this fall.

"I don't know if it's worth it," Finnigan said as he poured a beer for a patron. "It got to the point where we were barely paying the utility bill."

There's no mystery as to why sales fell so suddenly, Finnigan says. When the state's anti-smoking legislation went into effect a year ago, people stopped coming almost immediately, he said.

Some chose to stay at home. Others, Finnigan said, went to establishments that chose to snub the law and risk being fined.
"I had regular customers who told me flat out that they went over to the other places because they could smoke," said Finnigan, who is a smoker himself. It's not that he's against the law. "The place does smell better, and my clothes don't get smoke in them."

For Finnigan and others who work in the business, it's a case of lawmakers passing laws that are unenforceable. The current situation punishes bars that abide by the law and rewards those who ignore it.
"It's got to be fair," Finnigan said. "More and more, I hear of places deciding to allow smoking. They don't feel that they will get caught."

A year after the state banned smoking from bars, restaurants and bowling alleys under the Clean Indoor Air Act, the smoke still hasn't cleared on what's become a controversial issue for anti-smoking crusaders, consumers and tavern owners.

The clamor from restaurant owners was so great the state Assembly considered legislation that would modify the law, but eventually voted it down in committee. Without any action expected this year, bar owners are left to deal with making up the lost business.

"It definitely didn't settle well with our members. Everybody reports being impacted," said Scott Wexler, president of the Empire State Restaurant and Tavern Owners Association. "While most of our members feel there should be some restrictions, there must be changes."

Restaurateurs clashed with anti-smoking advocates on more than one occasion at the Capitol during the spring. At one point, about 70 protesters shouted down Russell Shiandra, director for Tobacco Free New York.

"It's rare you see these guys going to the Capitol," said Wexler. "They are entrepreneurs who largely want to be left alone to run their business and not deal with politicians."

Lawmakers passed the legislation after years of mounting evidence suggested second-hand smoke can be as dangerous as inhaling cigarettes.

After the first year, anti-smokers say the legislation couldn't have worked any better. According government statistics, 93 percent of the establishments are complying, said Tim Nichols, director of governmental affairs for the New York State Lung Association.

"It's working really quite well," Nichols said. "People are behind the law, and there is a lot of self policing by patrons and owners."

Nichols also said the low number of hardship waivers authorized by state and county officials indicates not many bar owners are being impacted to a great degree. He said there is no reason to change the existing law.

"People will get used it," he added. "I remember when the first ban went into effect in 1989, and people complained."

Anti-smoking advocates said the issue shouldn't be about economics and profits, but about health and the long-term costs smoking inflicts on society. They say they are not targeting the industry. The law bans smoking in all workplaces, with restaurants being a very small part.

Industry officials claim the law has eliminated $26 million in wages and nearly 3,000 jobs statewide have been lost through May. Faced with declining revenues, some are allowing smoking in some parts of their establishment during certain times of the day.

Some even set out "fine" jars so smokers can leave a dollar or two to pay for a fine.

One bar owner said he saw very little enforcement after the first few months and decided to break the law.

"I had to do it. I lost 30 percent of my business," said the owner, who asked not to be indentified. "Then it all came back. In fact, my business increased."

The Lung Association's Nichols said owners should file a complaint with authorities when they know another owner is allowing smoking. He said enforcement is about the industry policing itself to keep a level playing field, not just government.

Anti-smokers reject industry claims of heavy losses, claiming the numbers are created by the industry itself and are not independent. In fact, the industry is hiring more employees now than prior to the ban, according to U.S. Labor Bureau Statistics.

"Maybe business is increasing because people like the smoke-free environment," Nichols said.

Empire State Restaurant and Tavern Association's Wexler said he hasn't seen any labor statistics that are positive. Growth might be occurring in restaurants that derive most of their revenues from food and less from alcohol.

"The majority of the small taverns that rely on alcohol sales are hurting," Wexler added. "As for the waivers, businesses don't feel comfortable going to the government and opening their books."

Spot checks and checks during routine health inspections fall well short of enforcing the law adequately, Wexler said. Those that are allowing smoking probably aren't doing it in the middle of the day.

In the first year, there was $17,000 in fines handed out statewide, Nichols said. Locally, Albany County saw nearly 50 percent of the total with $8,500 in fines being levied. In Rensselaer County, there were no fines. In Saratoga County, $1,000 in fines have been issued to bar owners.

Tony Drobny, a patron at The Ale House in Troy last week, wondered why there couldn't be some easing in the regulation. For example, he said, restaurants could allow smoking in bar sections.

"There's got to be a compromise," the smoker said. "Right now, it's not too bad, but in the winter ... I don't even go out to places."

One non-smoker at The Ale House said the experience at the bars is more enjoyable without smoke, but he too wondered if there was a way to keep everybody happy.

"Yeah, I used get smoke blown in my face," said Kevin Stevens, a Cropseyville resident.

The Post Standard - July 29, 2004
        Smoking ban may expand at hospital
        By James T. Mulder

Ten years after prohibiting smoking inside its buildings, SUNY Upstate Medical University may extend the ban to all outdoor areas of its campus, too.

Dr. Gregory L. Eastwood, Upstate's president, says his goal is to make the entire campus smoke-free by Aug. 1, 2005. The proposed ban would apply to all buildings and grounds owned or leased by Upstate.

Smoking by employees, patients, visitors and students is currently banned inside all buildings, but permitted outdoors in designated areas.

"We are a health care, health education and health research facility," Eastwood said. "It contradicts our mission to have smoking."

The issue came to a head in the spring when the snow melted, revealing mounds of cigarette butts outside the entrances of University Hospital and other campus buildings. "It was a very visible reminder of what has been concerning many of us for a long time," he said.

Before it can snuff out smoking, Upstate will have to convince its employee unions to agree to a revised policy.

"It's something they can't just arbitrarily institute," said John Harbin, president of CSEA Local 615, which represents maintenance workers, clinical technicians and licensed practical nurses. "If it impacts the terms and conditions of employment, management has to negotiate with our union."

The proposal received mixed reviews Wednesday from employees and visitors outside University Hospital.

Richard Watrous, a dialysis nurse who takes about four outdoor cigarette breaks during his shift, said Upstate should continue to let people smoke in specified outdoor areas. He said many Upstate employees who smoke go to an outdoor smoking shelter next door at Crouse Hospital. Watrous said he'll probably join them if Upstate goes smoke-free. "I will go to Crouse until they ban it," he said.

Gorana Petrovic, a cafeteria worker at Upstate who smokes, supports the proposed ban and said she will quit smoking if it's enacted. "It's good because this is a hospital and there's a lot of children and sick people around," she said.

Dr. James L. Megna, director of the hospital's inpatient psychiatric unit and a nonsmoker, agreed. "We should be totally smoke-free," he said. "It's a good thing for everybody's health."

But Eva Jarvis, a hospital clinical technician who smokes, said Upstate shouldn't tell employees what they can and cannot do outside the building. She predicted smokers will congregate on the sidewalk or in the street, if necessary, for their cigarette breaks.

Even some patients step outside for a smoke, she said. "I've seen patients get out of bed, put their clothes on and go outside to smoke," she said.

Peggy Kilbourn, of Carthage, a smoker visiting her granddaughter at the hospital, said people should be allowed to smoke outside if they don't gather near doorways. "If it's away from the entranceway and you're not bothering anybody who's not smoking, I don't see that it should be an issue," she said.

Eastwood said he's already begun meeting with union leaders on the issue. "The purpose of doing this is not at all to alienate unions or any employees," he said. "The sole purpose is, it's the right thing to do."

About 17 percent of Upstate's 6,000 employees smoke, according to a survey by the academic medical center three years ago. About 80 percent of the smokers said they would like to quit or had already tried, he said.

Eastwood says he hopes to help them quit by offering smoking cessation programs. He plans to form a committee that will develop and oversee cessation programs, recommend education programs and serve as a general adviser on smoking-related issues at Upstate.

If Upstate achieves Eastwood's goal, it will be the first smoke-free Syracuse hospital. Other Syracuse hospitals prohibit smoking indoors, but allow smoking in some outdoor areas.

The Mayo Clinic in Rochester, Minn., became one of the nation's first medical centers to go smoke-free in 1987. All three hospitals in Grand Rapids, Mich., went smoke-free in 2003, and Regions Hospital in St. Paul, Minn., enacted a total smoking ban Jan. 1. "More and more hospitals are doing this," said Jennifer Armstrong Gay of the American Hospital Association.

People smoking outside buildings often expose passersby to second-hand smoke, according to Glenn H. Ivers of the Central New York chapter of the American Lung Association.

"Hospitals are places where people who are sick . . . need to be healed in one way or another," Ivers said. "It's an important statement to make that tobacco has no place in the hospital or on the grounds."

Eastwoodis urging everyone at Upstate, not just security officers, to take responsibility for enforcing the institution's smoking policy. When employees see people smoking in areas where it is prohibited, they should diplomatically remind them of Upstate's policy, he said.

Eastwood said he did just that a few weeks ago when he saw someone smoking outside a side entrance to Weiskotten Hall where he parks his car. "I have not seen anyone smoking out there since then," he said.

Oswego Daily News - July 28, 2004
        Cloud Still Hangs Over Some Businesses A Year After Smoking Ban Starts
        By Steve Yablonski

The Clean Indoor Air Act has removed secondhand smoke from just about every business in New York State. However, some say it has also reduced revenue in their businesses to the point where some have been forced to close.

The law, which took effect July 24, 2003, bans smoking in bars, restaurants and all workplaces.

Some local business owners say they lost significant profits because the law forced people to go outside and smoke; over the winter smokers either stayed home or went to clubs where they could smoke, bar owners said.

Bob Parkhurst of Hazzy's Bar & Grill in New Haven said now that the nice weather is back they haven't had too much trouble.

"In the winter it was bad. No one wanted to come because they had to go outside and smoke," he said.

In January, the business was fined for a smoking violation.

It was snowing and cold one evening and a patron and the bartender were caught smoking in the bar, Parkhurst said.

He was fined $500.

Ten other businesses have also been fined since the first of the year.

Several other bars and restaurants were charged with violations that are pending disposition, according to the county health department.

"A lot of our regulars who smoke don't come in hardly at all anymore. They swing by for a beer or two. But they don't stay around as long as they used to," Parkhurst said.

The law puts added pressure on the bartenders as well, he added.

"It's tough for the employees to keep an eye on everything going on," he noted. "Sometimes, people going outside to smoke take their drinks with them. It's really gotten to be a full-time job, keeping the smoking outside and the drinks inside."

"It seemed like it didn't affect us in the beginning. Actually, it seemed easier to accommodate our customers," said Nick Canale of Canale's Restaurant in Oswego. "However, we've noticed a small trend; smokers appear to be eating more at home."

The restaurant's bar quite often is a waiting area for someone waiting to be seated or they order their food in the bar area.

"The ban has inconvenienced some of our (smoking) customers. They aren't coming in as often," Canale said.

They have placed ashtrays outside to accommodate smokers. The restaurant also has a new patio area where people can smoke.

For the more traditional bars, the law has driven business way down for many, owners said.

"It has totally ruined my days," said Bob Holbrook of NasBar in Fulton. "That business is gone forever. I don't see bars getting that back. The regulars who used to come in and have a few drinks and smoke while they talked are going to the places where they can smoke. They don't need the hassle of having to go outside every time they want to light up."

For the most part, he said, the smokers are going where they can smoke or else they're staying home, especially in the bad weather.

"The evening crowds have been good about going outside to smoke in the good weather. But we'll get screwed again this winter," he said.

Holbrook says he's a non-smoker, but feels the state should have given smokers more options.

"The law is too intrusive. All it's doing is killing business and driving people away," he said. "It's another example of New York State cutting off its nose to spite its face."

Bar owners also noted it takes time to clean up the outside smoking area.

"There's always a big mess, thousands of cigarette butts outside that have to be cleaned up," Parkhurst said. "It's an added expense because of the law."

"Do you know how hard it is to keep drinks inside and smoke outside? You need an extra person just to police the bar," Holbrook said. "Besides keeping an eye on everybody, you have to clean up all the cigarette butts, too. It doesn't matter if you put a five-gallon bucket out there, there will still be cigarette butts on the ground. The state has made things very tough on the bartenders and bar owners."

Rose Anthony of Rosie's in Granby Center agrees.

"I was thinking that when the cold weather comes back I'm going to get pounded. I feel like I should let all my employees go and just run the place myself," she said.

"Everyone says we should keep after the state lawmakers. But what good does that do? The county legislature wrote a letter to the state in support of small business like me but they never heard anything back, the state never did anything about it," she continued.

Anthony says she has heard about at least two more area bars that have closed because business was so bad after the ban started. Another bar has a for sale sign on it, she added.

"Don't (the state lawmakers) see all the revenue they're losing? Tax money, Lottery money, they're losing it all because people are losing their jobs, they're closing up their business," she said.

A couple miles down the road from Rosie's is a club where people can smoke if they want to, she pointed out.

"How the hell do I compete with that? It's a shame the small neighborhood bars are being forced out," she said.

Buffalo News - July 28, 2004
        Bar owner says fines from smoking law put his business at risk
        By Matt Gryta

Rick Naylon, owner of Jimmy Mac's, told an Erie County hearing officer Tuesday that he is "dangling dangerously close to closing" the 23-year-old Buffalo bar as he faces up to $2,000 in fines for permitting smoking as he remains hopeful that a state appellate court will side with him.

After an hour-long hearing in the Rath County Office Building, hearing officer John W. Murray reserved decision on the county Health Department's demand for the fines against the Elmwood Avenue business for smoking violations allegedly found in April and May.

Murray, a lawyer hired by the county to conduct hearings on the smoking ban, said he expects to issue a decision within the next couple of weeks.

Naylon said he represented himself during the hearing because his rising legal bills to challenge what he called the "poorly crafted" smoking law - which he says is unequally enforced - are threatening his business.

He said a Sept. 13 court hearing in Rochester will be pivotal. That is when the five-judge Appellate Division of State Supreme Court will hear the county's appeal, which automatically stayed enforcement of the April 2 smoking ban waiver that Jimmy Mac's was granted by State Supreme Court Justice Rose H. Sconiers.

The county contends that Sconiers erred in faulting county Health Commissioner Anthony J. Billittier IV for allegedly being arbitrary and capricious in denying Naylon a waiver.

During Tuesday's hearing, one of 67 already conducted by the Health Department, investigators Jeffrey A. Jurewicz and Gregory Jacobs testified about citing Jimmy Mac's for violations found April 26 and May 12.

Jurewicz testified that he saw a woman smoking at the bar when he entered about 4 p.m. April 26. Under questioning, he acknowledged that Naylon told him that the woman was smoking herbal cigarettes, which are not banned under law.

Jacobs testified that when he entered the bar about 4:30 p.m. May 12, he saw two men smoking, but the bartenders would not accept the summons he issued that afternoon.

Naylon contended that under the state smoking ban, neither he nor his employees are legally obligated to stop patrons from smoking after advising them of the law.

Noting that he has a 3-foot-tall sign in his bar advising patrons of the smoking ban, and presenting the administrative hearing officer with a boxful of notices advising of the ban that he had smoking patrons sign, Naylon said his efforts show that he is "doing my part to obey the law."

Under cross-examination from Assistant County Attorney Joseph F. Reina, the bar owner said that "everybody knows it's illegal to smoke inside," but Naylon complained about what he called unequal enforcement of the law.

"There are kids smoking in every bathroom in every high school, and are school principals being cited for violating the law?" Naylon rhetorically asked.

Naylon also argued that he does not feel legally obligated to call the police to arrest any patrons who smoke, contending that officers have "a lot more important matters to handle."

WGRZ-TV Buffalo - July 28, 2004
        Jimmy Mac's Owner Faces Two Smoking Ban Violations
        By Robyn Young

Two Erie County Health Department investigators said they found customers smoking in Jimmy Mac's bar on Elmwood Avenue.

Each filed a violation against the owner, Rick Naylon, who is an outspoken critic of New York's Clean Indoor Air Act.

"I'm just trying to save my business," Naylon said Tuesday morning, during a hearing before Erie County Attorney Joseph Reina.

Testimony was given by the two Health Department investigators, each of whom said they saw customers smoking at Jimmy Mac's, in violation of the law. Both said no one asked the customers to stop smoking, and that the bar is lined with ash trays.

A four foot sign in the bar warns customers that indoor smoking is illegal, and advises them to sign in with the bartender if they intend to smoke.

Naylon brought a shoe box full of signed slips to the hearing. He said the law only requires him to tell customers they cannot smoke.

"If they proceed to smoke, our feeling is it's civil disobedience," Naylon said.

Health Department officials also pointed out a $10 coupon for Jimmy Mac's that has been mailed in an advertising publication, inviting customers to "Beat the Smoking Ban."

County Health Department officials declined to comment after the hearing. Reporters were allowed in the hearing, but cameras were not.

Naylon has been embroiled in the smoking ban debate since the beginning. He said he followed the law for eight months, and lost about $10,000 a month because of the ban.

A State Supreme Court justice ruled the county's application process for waivers from the smoking ban was flawed, and granted Jimmy Mac's a 6-month waiver. Customers smoked for two weeks. Then the county took the case to a state appellate court, which put a stay on the waiver. The case is to be heard again in the appellate court in Rochester in September.

Naylon faces fines of at least $600 pending the county's decision on the two violations.

Saying Jimmy Mac's is "dangling on closing," Naylon gave no indication he will stop customers from smoking.

Erie County Health Department officials say they've written 67 violations since the smoking ban took effect one year ago. The department has granted nine waivers from the ban, including five off-track betting parlors, three bingo halls, and a bowling alley.

To be granted a waiver, businesses must show at least a 15% decline in business directly related to the smoking ban.

Researchers with Roswell Park Cancer Institute and the Erie-Niagara Tobacco-Free Coalition recently issued a year-after study on the ban, claiming indoor air pollution has decreased 90%, and that more smokers are trying to quit.

"Just like we got used to no smoking in elevators and airplanes and the movie theaters, people are going to get used to no smoking in bars and restaurants," said Dr. K. Michael Cummings of Roswell Park Cancer Institute.

Besides New York, others states with smokefree offices, restaurants, and bars include California, Delaware, Connecticut, Maine, Massachusetts, and Rhode Island.

WIVB-TV 4 - July 27, 2004
        Bar Owner Fighting Health Department Violations

(Buffalo, NY) - - A Buffalo bar owner wants Erie County to "butt" out of his business and focus on fair enforcement of the state's smoking ban.

Jimmy Mac's owner Rick Naylon is fighting two recent Health Department violations for smoking in the bar. Naylon says he's "dangling delicately" on closing.

He says his job is to inform customers about the indoor smoking law, not enforce it.

Naylon said, "The Health Department expects me to enforce this law and I'm not an enforcement officer. If you stop into my saloon and light a cigarette, you're breaking the law, but there's no penalty for you."

County officials maintain Naylon's interpretation of the law is wrong.

Naylon is awaiting the conclusion of his appeal for a smoking waiver.

Buffalo News - July 25, 2004
        Smoking OK'd in 9 places
        5 OTB locations, 3 bingo halls, a bowling alley granted waivers from county
        By Gene Warner and Matt Gryta

A.J. Johnson Jr. and Robert Wiesbeck are buddies. On a recent afternoon, they visited their favorite OTB parlor on Broadway, swapping stories, picking winners from the racing form and complaining about the statewide ban on smoking indoors.

"I think it stinks," the 88-year-old Johnson said. "I've been smoking ever since I was 7 years old. I've got a good heart, low blood pressure and I don't have cancer. My doctors told me, "If you don't stop smoking, you'll die of cancer.'

"They all died - from stress."

But the two octogenarians enjoyed one advantage denied to all but a few local residents. Wiesbeck and Johnson lighted a seemingly endless succession of Niagara 100s cigarettes in the small drab room - and they were doing it legally.

The OTB parlor on Broadway is one of nine places granted waivers by the Erie County Health Department from the state's Clean Indoor Air Act.

Five OTB locations, three bingo halls and one bowling alley have received the waivers, out of 22 places that have applied. No Erie County bars have been granted waivers. The criteria for getting a waiver here are rigorous; the establishment has to prove, through detailed financial records, that it's lost 15 percent of its business because of the ban, and it has to have a separately ventilated smoking room.

Like the roughly 15-by-20-foot room at the OTB parlor on Broadway, near the Broadway Market.

Johnson and Wiesbeck had a good day, checking their racing forms and watching their picks on closed-circuit TV from Finger Lakes Race Track and Philadelphia Park.

Where would the two men be if they couldn't smoke at the OTB parlor?

"I'd go back to the bookmakers," Wiesbeck said.

"If I couldn't smoke at OTB, I'd go to the casino," Johnson added.

Just two voices out of the many who have chimed in on the controversial one-year-old smoking ban, which has led to thousands of dollars in local fines, one court fight and lots of shenanigans from bar owners trying to skirt the law.

Erie County Health Department officials, who have come under fire for their strict waiver guidelines, point to the high percentage of waivers granted, nine out of 22, or 41 percent.

Those officials also have pointed out that the smoking ban, which took effect last July 24, is not like a light switch that can be turned on immediately.

"Generally, we're looking at about 90 percent compliance," said Peter Coppola, chief compliance officer for the department. "We've found that more of the smaller, corner-type bars are the ones we've had the most problems with."

So far, Erie County has levied about $27,000 in fines against 52 establishments and collected $19,700 of that amount. Tammy Recckio, owner of Recckio's Bowling Center on South Park Avenue, has been granted one of the prized waivers. The process for applying for the waiver was fair, she said, although she described the amount of paperwork as overwhelming.

Recckio is a non-smoker, an asthmatic and a nurse, so she doesn't favor smoking. But she believes that when people go to the bar scene, they expect to enter a smoking environment.

And she's concerned about enforcement of the law.

"It's a fair law if it's enforced fairly, but it's not," she said. "In many bars in Buffalo, people are still smoking. Some of the owners say they're not going to enforce it, or they'll go out of business. And the Health Department can only do so much."

Those defying the ban have resorted to several tricks, including using plastic cups with water in them as makeshift ashtrays, which can be thrown quickly behind the bar or out of sight.

Other taverns have put out ashtrays and allowed smoking after 10:30 p.m., figuring the compliance officers wouldn't work that late.

And some bars charge $1 for smokers to enter, with the revenue being used to cover fines.

One restaurant-bar, Jimmy Mac's on Elmwood Avenue, has been more upfront about it.

On April 2, a State Supreme Court justice granted Jimmy Mac's a six-month waiver after faulting some of Erie County's waiver-application restrictions. Two weeks later, though, an appeals court suspended that waiver, pending a full appeal set for Sept. 13.

Owner Rick Naylon then introduced his signature slips, which bar patrons may sign, to acknowledge they're breaking the law. Then they're allowed to light up.

Naylon insists he's not picking a fight with the Erie County Health Department, but just doing what he must to protect his business.

County health officials declined comment on Jimmy Mac's, citing the September court appeal and the Health Department hearing scheduled for Tuesday. Montgomery said smoking waivers have been granted to Recckio's Bowling Center; the Irish Center on Abbott Road; the Lake Erie Beach Volunteer Fire Co. in Angola; and SS. Cyril and Methody Orthodox Church in Blasdell, all for bingo; and to five of the 11 OTB parlors in Erie County.

The state OTB parlors granted waivers are the Broadway, Central Park, Delaware and East Mohawk Street branches in Buffalo, plus the Ridge Lea parlor in Amherst.

News 2 Buffalo - July 25, 2004
        New York's Smoking Ban Reaches One Year Mark
        By Robyn Young

In Buffalo, the owner of Jimmy Mac's on Elmwood Avenue has become a lightning rod of sorts in the battle against the smoking ban.

"It's had a devastating impact on the tavern and bar business," said Jimmy Mac's owner, Rick Naylon.

Naylon has been arguing against the ban since it took effect one year ago. He has sued Erie County over its waiver process, a case which is headed back to the state appellate court September 13.

Next week, Naylon is being called before the Erie County Health Commissioner.

Some Jimmy Mac's customers continue to smoke.

A sign in the bar advises them it is against the law to light up, but after signing a list acknowleging they have been told about the law, some are breaking it.

With the hearing days away, Naylon would not comment on what he has called civil disobedience on the part of his customers, but he continues to speak out against the Indoor Clean Air Act.

"Smokers are going to go where they can smoke, so I don't believe the general public is going to get used to this law," Naylon said.

Jimmy Mac's was granted a six-month waiver from the smoking ban in April by a State Supreme Court Justice. It lasted two weeks before an appeals court suspended the waiver.

Dr. K. Michael Cummings of Roswell Park Cancer Institute is among those applauding the anniversary.

"Air monitoring studies we've conducted throughout Western New York show the law has worked, cleaning up indoor air pollution levels caused by smoking by more than 90 percent," Dr. Cummings said.

He also pointed to a study conducted by the Erie-Niagara Tobacco-Free Coalition, claiming the law has not hurt business, with employment in the food service and drinking industry increasing in seven of the 10 months following the law. The study also claims quit attempts are up 13 percent.

Lobbyists are trying to convince state lawmakers that smoking should be allowed in bars if owners install air filtration devices.

However, Assembly Speaker Sheldon Silver,  D-Manhattan, is quoted in printed reports as saying a majority of legislators oppose weakening the ban.

Dr. Cummings said the air filtration systems do not remove carcinogens from the air.

"The air filtration issue is a smokescreen," Dr. Cummings said. "They don't work."

Twenty-two establishments have applied for waivers from the smoking ban with the Erie County Health Commissioner. Nine have been granted waivers, including Recckio's Lanes, three bingo operations, and five OTB parlors.

To apply for a waiver, establishments must have at least a 15 percent decline in sales tax receipts caused by the smoking ban.

At the off track betting parlor on Delaware Avenue, there is a separate, enclosed room for those who want to smoke while watching the races.

"Everybody is happy now that it (smoking) is back," said OTB employee Donna Callins. "It has definitely picked up."

Seven states have banned smoking in offices, restaurants, and bars. They are New York, California, Delaware, Connecticut, Maine, Massachusetts, and Rhode Island. Florida, Vermont, Utah, and Idaho have smoking bans that do not include bars.

Daily Freeman - July 25, 2004
        Some local bars burned by smoking ban
        By Hallie Arnold

WHEN THE statewide Clean Indoor Air Act went into effect last July, many bar and restaurant owners were afraid the smoking ban would cost them customers and income.

A year later, it appears the impact has varied depending on the type of business:

* Upscale restaurants say the ban has had no ill effect on them and, in fact, has brought back some smoke-wary diners who previously stayed away.

* Businesses that rely on a mix of food and alcohol have seen a moderate dip in business.

* Bar and tavern owners have been hit the hardest now that their customers no longer can light up at the bar.

"BUSINESS is way down," said Cynthia Wayne, owner of KayCey's in Hyde Park. Wayne was among many small business owners who expressed concern last year that the ban would keep smokers at home instead of out and about, and she said she's been proven right.

"I would say we're down at least 45 percent," Wayne said. "We're above water, but it doesn't help."

BUT SOME restaurant owners, particularly those who categorize their establishments as "fine dining" venues, say the ban has been a boost. Now they can maximize their seating, because they no longer have to segregate diners depending on their smoking habits.

"It's been totally positive," said MaryAnne Erickson, co-owner of the Blue Mountain Bistro in Woodstock. "All of our customers, for the most part, are happy with it. I think that a lot of the people who wanted to smoke have kind of just gotten used to it, and now they're used to going outside (to light up). It's really helped make our whole bar area viable."

STILL, many businesses have suffered.

"I've seen a total fall-off in alcohol sales," said Paul Pettinato, owner of Al's Seafood in Phoenicia and president of the Ulster County chapter of the Empire State Restaurant and Tavern Association, which opposed the legislation. "I've never had a lot of bar business, but the places that depend on just the bar, the local taverns, have just been killed."

Pettinato and others say bars were hit with a double whammy over the course of three weeks last summer: On July 1, 2003, the state lowered its blood-alcohol standard for driving while intoxicated from 0.10 percent to 0.08 percent. Then the Clean Indoor Air Act went into effect on July 24.

Pettinato said the combination of the two laws has hurt the bars so much that some have cut staff and others are closing down altogether.

BUT STEVE Slutsky, of Hickory BBQ Smokehouse in the town of Ulster, said that while his business dipped initially, it since has recovered. Like many restaurant owners, he's created an inviting outdoor seating area for smokers, which he said, for the most part, satisfies his clientele's need for nicotine.

"It's basically like I thought it would be," Slutsky said. "We're also not 100 percent a bar-driven crowd. Some places that are, I'm sure are affected. But I think we, as a restaurant community, have sort of found ways to make it a little easier for people. The days of a smoky bar are over - unfortunately, or fortunately, depending on the way you look at it."

JOEY LoBianco, of the Hyde Park Brewing Co., was so much in favor of the Clean Indoor Air Act that he has appeared in commercials for the Tobacco Free Action Coalition to tout the law's benefits. But he admits it has come at a cost to business owners.

"It's hurt everybody's business, there's no question about it, but I love it," LoBianco said. "I love not having the smoke. I love the customers not having to deal with the smoke. And I love the fact that I'm not going to have to worry about one of my employees suing me when they get cancer.

"There's so many great, positive things about it, and I love it for all those things," he said. "But as a business owner, yeah, it's hurt."

ELLEN Reinhard, coordinator of the Tobacco Free Action Coalition of Ulster County, said the intent of the law was to protect the health of workers in businesses where smoking used to be allowed.

"It's about health - we have to remember that," Reinhard said. "It's about worrying about the people that work in the hospitality industry, and in any job. As the year has progressed, you're hearing less and less of how it's hurting business."

Reinhard said state Labor Department statistics show the number of jobs in places that serve alcohol statewide is at its highest level in several years. An as of May 2004, she said, there were 14 percent more hospitality jobs in business that serve alcohol than when the no-smoking law took effect in July 2003.

JULIE Canepa, manager of New World Home Cooking in Saugerties, said the employees, even those who smoke, appreciate working in a smoke-free environment. And the restaurant has had few, if any, objections from customers, she said.

"For the non-smoking people, it's definitely been such a plus, so I think it's actually helped more than hurt," Canepa said. "So overall, it's a good thing. Plus, it saves on your cleaning bills."

Times Union - July 24, 2004
        Debate on smoking ban still smolders
        Albany -- A year after law took effect, critics and supporters both claim they have been proved right
        By Erin Duggan

One year after New York became the third state in the nation to ban all workplace smoking, the air hasn't cleared on the debate.

Reviews of the Clean Indoor Air Act are mixed. Smoking foes boast more people are quitting the habit, but business owners say fewer customers are spending time in formerly smoke-friendly spots like bars, restaurants and bingo halls.

Advocates on both sides of the ban said the past year proved their points: Bar and restaurant owners say they've lost business, while ban supporters say New Yorkers like the smoke-free environs and more smokers are getting help to quit.

But even bar patrons who don't smoke have mixed feelings. "I like the ban, but I do miss the smoke here," said Dan Fiedler, 26, of Schenectady, a nonsmoker who was having a drink at Savannah's on South Pearl Street Friday night. The air in the once smoke-filled bar was clear, attendance was very light for a Friday night and no one was even smoking on the sidewalk. "It was kind of known for its smoke. It's something about this bar. I miss the old days."

"What is this, Russia?" asked another man, who did not want to give his name, who said he is a nonsmoker who lights up occasionally when he's drinking.

In the meantime, at least one lawsuit against the ban is pending in court, and a movement is under way to exempt bars and other establishments that install high-tech air filters.

"We think it's going great," said Russell Schiandra, director of the Center for a Tobacco Free New York. "There's widespread compliance. This is not a law about smoking in bars; this is about smoking in all work places, of which bars are a tiny, minuscule minority. The law has been well-implemented."

Over the last year, however, a vocal and growing number of business owners swarmed the Capitol to push for changes in the Clean Indoor Air Act. In June, Schiandra was booed as he walked by a crowd of about 75 bar and restaurant owners inside the Legislative Office Building, lining up for a news conference held by the New York Nightlife Association and Empire State Restaurant and Tavern Association. Their motto: "Can the Ban."

Opponents of the smoking ban blame the law for a loss of 2,000 jobs, $28.5 million in wages and salaries and $37 million in gross state production. Those figures did not include losses from businesses that supply and service bars, they noted.

Smoking ban supporters countered those figures, citing statistics from the U.S. Department of Labor that show statewide employment in restaurants and bars was higher in 2003 than any year this decade.

"We continue to be concerned about the impact of the ban on our members, because our members continue to report negative consequences from the ban," said Scott Wexler, executive director of the restaurant and tavern association. "Not just economic losses, but in the year that's passed, we've had to deal with enforcement and compliance and the waiver process."

That waiver process, which was approved in concept in the smoking ban legislation but not defined by lawmakers, frustrated business owners as well as county health departments. Environmental health officials said they got little guidance from the state on the waiver process, and no funding for the extra work.

Albany County, for example, had no waiver evaluation process for nearly seven months after smokers were forced outside, frustrating business owners and not-for-profit bingo halls who watched other counties start issuing waivers earlier. The state Health Department, which oversees 21 counties without their own health departments, didn't even have a waiver process in place until December, about five months after the ban went into effect July 24, 2003.

Since last summer, Central and Western New York led the way in waivers, with Oneida County issuing 29, and Chautauqua giving out 21. Onondaga County and Chemung County each approved 13.

Those counties have jurisdiction over the waivers because they have their own health departments. In the counties overseen by the state, the most waivers issued is three, in Jefferson and St. Lawrence counties.

Few businesses in the Capital Region have been granted waivers -- just five were issued in the four-county area. Albany County has issued no waivers despite about 45 inquiries, but collected the most fines in the area, almost $9,000.

Schenectady County has also denied waivers to all businesses that applied, and collected $1,000 in fines.

"They didn't really prove economic hardship, and the remediation process was not approved," Schenectady County Environmental Health Director Jack Parisi said of waiver applicants. "They did not have systems that would remove the smoke entirely."

Smoking advocates contend air filtration systems could get smoky air clean enough to negate any second-hand smoke effects, and say lawmakers are more concerned with banning cigarettes than promoting clean air.

"They're celebration of success is nothing but a mirage," said Audrey Silk, founder of New York City Citizens Lobbying Against Smoker Harassment. "People are smoking up a storm. Manhattan might have the highest compliance because they know they're a major target. But go anywhere else."

Silk and other smoking ban opponents have vowed to make the Clean Indoor Air Act an election year issue.

Today, Jeff Bennett, a Rockland County Libertarian, is holding a smoking ban protest in that county and promoting his run against incumbent Sen. Thomas Morahan, a Republican who voted for the ban.

A bill to amend the ban picked up majority sponsorship and 24 sponsors in the Assembly and 14 Senate sponsors this spring. But Morahan and many other lawmakers said they don't see the ban changing. Legislative leaders have said the ban and waiver process are working as intended, although they are looking to see the first year figures.

News 10 Now - July 24, 2004
        Looking back on a smoke-free year
        By Veronica Castelo

One year ago, New York State's Clean Indoor Air Act went into effect, and many bars claimed hardships as a result.

Some are hoping to get their smoking customers back by building separate smoking rooms.

But the waivers needed to create those rooms are not easily granted.

According to the New York State Department of Health web site, as of early July, only twenty-three out of eighty-three bars had been approved for smoking waivers.

"You do need some guidance through this,” said restaurant owner George Colesante.

Colesante's Restaurant was one of those bars, but he had some guidance.

"It does help if you use a politician because Senator Aubertine helped me out with mine and the people health department people were real good to deal with," he said.

But the road is not as easy for those who do it alone.

"They won't give it to you because they haven't seen a decrease in revenue but they haven't realized how much money I've spent in order to have a restaurant and just try to survive," said Robert Park, owner of the Bobkat Bar and Grill.

Because Park hasn't been in business for three years, he was unable to prove the fifteen percent decrease in business as a result of the smoking ban.

"I think it's unfortunate that the state requires you to take a vow of poverty to be eligible and grovel the way they do," said tavern owner and Watertown Mayor Jeff Graham.

Along with the financial regulations, the waiver requires rooms built to have separate ventilation systems, maintain continuous negative pressure to contain the smoke, and prohibit employees from entering the room.

“Right now there's no feasible way for me to do that. I have no room to expand to make the building itself larger,” Park said.

So right now, his only option is to move his business where a smoking room is possible, or just live with the loss.

Anyone who is denied a waiver is allowed to appeal. The process usually takes about forty-five days to complete.

Capitol News 9 - July 24, 2004
        Smoking ban anniversary

Workplaces in New York state have been smoke-free for a year now.

The statewide smoking ban went into effect one year ago today. And a year later, arguments continue over the merits of what's called the Clean Indoor Air Law.

Some bars and restaurants still said they're getting burned.

Scott Wexler of NYS Restaurant & Tavern said, "Our survey shows that our members are reporting around the 20-percent loss of business because of the ban."

A study released last month showed the industry cut 2,000 jobs after the ban went into effect. Certain businesses have been granted waivers, but the state's top leaders said they remain against the idea of relaxing the law.

Capitol News 9 - July 24, 2004
        Smoking ban anniversary
        By Zack Hutchins

Saturday marked one year since New York state first introduced the Clean Indoor Air Act and said lights out to smokers.

The act banned smoking in restaurants and bars as well as workplaces and most public areas. Most people seemed to enjoy the benefits of the ban.

Russ Weinlein of Albany said, "I think it's fantastic. Happy anniversary."

Albany resident Jose Morales said, "I come back home and I smell my clothes, they don't smell smokey. I don't have any reason to think I have to air them out. It's pretty good."

But not everyone was as pleased. Scott Wexler of the Empire State Restaurant and Tavern Association said the ban has taken a cut out of his members' bottom-lines.

"A year later we're still not happy and we continue to seek to try and change the ban at some point," he said.

Wexler wants the state to take a second look at the waiver guidelines in the law. Those guidelines were put in place so lawmakers would have something to fall back on in case the ban significantly hurt businesses.

So far 145 waivers have been issued state-wide, with 12 going to bars and restaurants in the Capital Region. But Wexler said the guidelines are too confusing and he's filed a lawsuit to have the law rewritten.

"If the safety valve isn't working then you need to change the law, and that's why we've been seeking amendments to the law this past year," he said.

With the law still tied up in litigation and both sides stoking the flames, the great smoking debate remains up in the air.

The Daily Star - July 24, 2004
        Smoking ban put into effect one year ago
        Legislation still sparks debate among business owners, smokers
        By Amy L. Ashbridge

The Clean Indoor Air Act prohibits smoking in workplaces, and bars and restaurants aren’t the only businesses that are noticing an effect.

"That cigarette law definitely put a big hurt on my business," said Jeff Slauson, who owns Lokel Amusement in Halcottsville.

Slauson said people aren’t spending the money at his business that they spent before the ban went into place.

The state Legislature passed the Clean Indoor Air Act — commonly referred to as the smoking ban — in March 2003. It
went into effect a year ago Saturday.

Slauson’s business deals with pool tables, jukeboxes and even cigarette machines.

"I wouldn’t care if I never sold a cigarette again," he said.

Slauson said he hasn’t seen anything like this drop in sales during the past 24 years that he’s owned the business.

Winter isn’t bad, when people are still inside and go outside infrequently to smoke, but Slauson said people smoke outside more in the summer.

"If they’re outside, they’re not playing the pool table, and they’re not playing the jukebox," Slauson said.

The ban prohibits smoking in all indoor workplaces. That includes restaurants, bars, malls and other business establishments.

The state can fine workplaces if they don’t enforce the act. Violations, according to the Health Department’s website, can lead to fines of up to $2,000.

As of July 1, the state Health Department has fined four places in Delaware County; one establishment in Otsego County has action pending against it.

Businesses can apply for a waiver from the smoking ban if owners think they’ve suffered a loss of revenue.

Although 60 places had applied to the department for a waiver, it had only granted 23 as of July 9.

To get a waiver, businesses have to prove they have lost at least 15 percent of their revenue and also have a way to keep secondhand smoke away from employees and customers who don’t smoke.

Stella Luna Stazione in Oneonta was the first business granted a waiver by the state; it remains the only place in Otsego County with one.

The restaurant received a waiver in March, eight months after the ban went into effect.

Stella Luna’s ventilated room cost $45,000 to build and was a primary reason the restaurant received the waiver.

Although five bars and restaurants in Delaware County have applied for a waiver, none has been granted.

The Sidney Moose Lodge was one business that applied, yet was denied.

Administrator Richard Zurn said the smoking ban has cut bar business in half at the lodge.

"It’s hurt our business tremendously," Zurn said Thursday. "It’s way, way down."

Zurn said other groups, like the American Legion, have faced similar business woes.

"We’re all in the same boat," he said.

The reason the lodge didn’t get a waiver was because it didn’t have a special room like Stella Luna, Zurn said.

"We don’t have a way of making a separate room," he said.

Smoker Julieanne Swantak is one of those forced outside to smoke — no matter what the weather.

"In the summer, it’s fine, but in the winter it’s harder," 24-year-old Swantak said Wednesday while smoking outside Red’s Filling Station in Oneonta. "In the winter, I don’t go out as much."

Swantak said she thought it was nice to not have smoking in the bars anymore, but the law wasn’t perfect.

"I think they should have given bar owners the option," she said.

Smoking in a bar should be about common sense, said Luke O’Hara, a 22-year-old college student from Oneonta.

"The bar owner should be responsible," he said at Red’s on Wednesday. "If you don’t like smoke, don’t go into the bar."

O’Hara said he questioned the fairness of a law for which he didn’t personally vote.

"People do support the legislation," said Amy Morse, program director for Rural Three for Tobacco Free Communities.

Morse said the program knows that, and statistics claiming that only 25 percent of people in Delaware, Otsego and Schoharie counties smoke, because of a phone survey of 750 people completed last fall after the ban went into effect.

"We’re not seeing people smoking as much in public," Morse said Thursday. "We’re not seeing people smoking in their personal lives. That can only have positive benefits."

New York isn’t the only state to enact a smoking ban, Morse said. California, Connecticut, Delaware, Florida, Idaho, Maine, Massachusetts, Utah and Vermont have some type of ban.

"This is a trend that is happening across the country," Morse said. "I expect other states will go smoke-free over the next few years."

Slauson said he wasn’t sure what the answer was to the smoking ban debate, but he thought personal choice should play a role.

"Everybody smokes in a bar," he said. "If you don’t want the smoke, don’t work there."

Zurn said the ban has changed how people act in the bar, and he wasn’t sure if the original atmosphere could be restored.

"People used to come in and stay," he said. "Now they come in, have one beer, and leave."

The Daily Star - July 24, 2004
        Local groups receive money to fight smoking

A recent media release from Gov. George E. Pataki’s office announced $19.7 million in funding for New York’s comprehensive anti-smoking and tobacco initiatives.

According to the release, 19 tobacco cessation centers and 74 community-based organizations will be included in the funding.

This funding, part of an $87 million five-year project, is part of the governor’s efforts to stop cigarette smoking and the use of tobacco products by New Yorkers, the release said.

Local organizations receiving funding include:

• Bassett Healthcare, Cooperstown:Ÿ$197,000

• Chenango Health Network, Norwich:Ÿ$143,000

• Alcohol and Drug Abuse Council of Delaware County, Delhi:Ÿ$75,000

• Cornell Cooperative Extension of Otsego County, Cooperstown:Ÿ$75,000

• SUNY Research Foundation/State University College of Agriculture and Technology at Cobleskill:Ÿ$75,000

Amy Morris, project director for the Rural Free For Tobacco Free Communities at Bassett Healthcare, said that the grant money her program receives is used primarily for educational services.

"We’ve had the same grant for five years, and now we are re-funded for five more years," Morris said.

She said her organization provides a resource of information for the community. The main focus is on adults and the community as a whole, although they advise youth too, she said.

"The money received is held by Bassett Healthcare," Morris said. "We are not supposed to spend the money on cessation services."

The organization works with Delaware, Otsego and Chenango counties.

Fox 40 - July 24, 2004
        Smoking Ban Anniversery

A year has passed since the smoking ban in public restaurants and bars took affect, and some think the law is burning businesses. The Clean Indoor Air Law, banning indoor smoking, has hurt local business such as the Airport Inn. Kim Evans, owner of the inn, sites a 40% drop in business since the law passed, and questions why fines are so high in this area of the state. The Broome County Health Department fines $1,000 per violation of the smoking law. The state average, Evans says, is between $50-$200. Supporters of the law say there is no compromise to health, and see no change in the law anytime soon.

The Post Standard - July 24, 2004
        Smoking Ban, 1 Year Later
        By Bonhia Lee

A statewide smoking ban that started a year ago today still has smokers and businesses fuming.

But the state law has anti-tobacco advocates celebrating.

"We feel the law is a good public health law with a lot of advantages," said John Romano, chairman of Tobacco-Free Onondaga County, an organization committed to a smoke-free environment.

New York's Clean Indoor Air Act prohibits smoking in public places, including taverns, restaurants, bowling alleys and virtually every place of employment. The law is designed to protect the public and employees from breathing secondhand smoke.

Gov. George Pataki announced Thursday $19.7 million for the support of 19 tobacco cessation centers and 74 community-based organizations to prevent and reduce tobacco use across the state.

The Onondaga County Health Department has received approximately 390 complaints about businesses violating the law since it was enacted. The state Department of Health has taken 52 enforcement actions in the 21 counties that don't have health departments.

"That's a small number," said Gary Sauda, county director of environmental health. "Our focus is on the positive here. I think the noncompliance is minor."

A county inspector is sent to investigate a business if the county receives a complaint. If a business is in violation of the law, a county health department can assess a penalty of up to $1,000. The state health department fine can be up to $2,000.

The Onondaga County Health Department has levied 29 fines ranging from $250 to $500 each, since last July, some of which may have been mul-tiple fines against the same business, Sauda said.

Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, said the biggest trend he's seen over the year is a widespread violation of the law.

"What I hear is that a lot of places are letting people smoke certain days and certain hours of the day," Wexler said. "A group of several hundred owners in the western part of the state has begun an act of civil disobedience."

The association has been fighting the smoking ban to protect the 5,000 bars and restaurants it represents across the state. The group filed a lawsuit July 22, 2003, in U.S. District Court in Syracuse, with six New York taverns, seeking to block the smoking ban statewide. Five of the six are Upstate businesses. The lawsuit has yet to be resolved.

One Auburnbar owner - Patricia Glanville of Costello's - has fought the smoking ban her own way for the past 12 months. Glanville claims the smoking ban should not apply to her 15 Aurelius Ave. business, because she is the only one who works there. The bar has no employees.

In January, the Cayuga County Board of Health fined her $1,000 and ordered her to begin enforcing the smoking ban. She has refused. The bar remained open with smoking permitted on Friday afternoon.

Glanville is a nonsmoker.

The county sought a court order to enforce the board's ruling, but the matter was thrown out when County Judge Peter E. Corning said the filing did not follow proper procedure. County Attorney Frederick Westphal said Friday the county will file a new action against Glanville next month.

Wexler said businesses continue to struggle financially because of the law.

"It's a tough thing for me because essentially I'm telling customers to go away," said Mike Downs, owner of The Westwood restaurant in Onondaga. "I don't smoke and I'm happy to not have to deal with it."

Downs and his wife, Jean, a registered dietitian, support the ban. Jean Downs appeared in a newspaper advertisement for Tobacco-Free Onondaga County on Thursday stating the law has helped nonsmoking employees and customers love the smoke-free atmosphere.

Bill Ennis, who owns Pier 57 at 7376 Oswego St., Clay, said his dining room business has suffered more than his bar trade as the result of the state law. "Smokers don't stay around for coffee or dessert at the end of a meal," he said. "The diehard bar customers who smoke will step outside."

The state went too far by taking the decision out of the hands of business owners, Ennis said. He would have preferred a compromise - making the dining areas smoke free but allowing smoking in the bar sections of a restaurant.

Damon's PartyPlace in Cicero lost 50 percent of its bar business in the months after the start of the ban, owner Dave Damon said. The business was fined $250 in December when inspectors said they saw patrons smoking in the tavern.

After that, Damon applied for and received Onondaga County's second waiver.

A waiver allows businesses to provide a smoking room in their building if an owner can show a revenue loss of at least 15 percent linked to the smoking ban.

The room has five tables and can fit up to 20 people.

"If I were a bar only, as many places are, the business would be down so much that I doubt I could stay open," Damon said.

Twelve other businesses have been granted waivers by Onondaga County between Nov. 14 and June 24. Cayuga and Madison counties have granted one waiver each. Oswego County has issued six waivers. One hundred forty-five waivers have been issued statewide.

Vickie's Tavern in North Syracuse received a waiver Feb. 10. Bartender Candy Hummel said the waiver doesn't make a difference because the bar's smoking room only fits about four people. It also gets cold during the winter, she said.

A sign that reads "smokers are not criminals" hung in front of the room.

The ban has hurt her financially, because as the number of customers has dropped, so has her income from tips, she said.

"It's awful," Hummel said. "I used to be able to work two, three days a week and make tons of money."

Hummel now works about five days a week and sometimes double shifts to make enough money to cover her car payments and other costs, she said. She's been a bartender for six years.

"Bartenders, waiters and waitresses live off their tips," Hummel said.

Bar patron Rob Rose, of North Syracuse, is not a smoker but does not support the law. He said the bar used to be full with a line two to three people deep before the law was enacted.

"Look what it's done," he said spreading his arms out wide showing an empty barroom.

On New Year's Eve, the county health department granted seven establishments a "tobacco sampling night" provision allowing customers to smoke. The clause permits bars and restaurants to allow smoking twice a year if it's part of a tobacco promotion or sampling event.

Mike Deyulio, of Syracuse, says the decision to ban smoking should have been up to the bar owner, not the government. He sat in The Bar's outdoor patio in Armory Square Wednesday sipping from a bottle of Corona beer and smoking a Marlboro cigarette.

"As bad as it sounds, smoking goes with drinking," Deyulio said.

According to Yash Goyal, owner of Hooligans on Route 57 in Salina, three things go together in the bar business: smoking, drinking and lottery tickets. The smoking ban has affected his bar business, but the restaurant is doing well, he said.

Goyal, an ex-smoker, says more families are happy about the law and can now bring their children out to eat without worrying about the smoke.

"There should be no smoking in the public arena even if I lose my business a little bit," Goyal said. "I 100 percent support it."

Fox 23 News - July 24, 2004
        Smoking Ban One Year Later

Business is brisk at the Glenville Queen Diner. Co-owner Deborah Bratsos is working hard in her now smoke-free restaurant.

Deborah Bratsos said, “It's so much nicer for the building, everything smells fresh and clean all the time, the curtains, the walls the tables.”

12 months ago the state said no to smoking in bars and restaurants. Leaving many looking for other places to light up.

Beverly Ashcroft said, “I go in eat, usually drink a cup of coffee and leave -- I don't hang around like I used to.”

This 13-year waitress -- who is a smoker -- says at first it was tough to adjust -- but has since learned to live with the law.

Ashcroft said, “We go out and have a cigarette outside but we don't go as often as we did when it was in the building -- so it's probably healthier for us.”

Michael Bopp of the American Cancer Soc. said, “There's been numerous studies indicating bar workers health and work place employees have been exposed to less second hand smoke.”

While that may be true -- some businesses are still struggling.

And it's the small bars that have really felt the effect of the smoking ban -- it's places like JR’s here in Burnt Hills that has really seen a drop in customers.

Tom Dipietro said, “We've lost some business -- we used to have a nice little crowd that would come in, have a beer on the way home -- we pretty much lost all that.”

Tom DiPietro owns JR’s -- and is the restaurant and bar association president for Schenectady, Saratoga and Warren counties. He's been a strong advocate against the ban since the beginning.

DiPietro said, “I don't think it's fair that the government tells small business people how to operate.”

He wants the state to relax the rules for small places like his. Still those at the diner say they're happy with the change.

Watertown Daily Times - July 23, 2004
        Lewis County bar gets approval to build separate smoking room
        by Drew Mangione

LOWVILLE - Smokers in Lewis County may soon have a bar to call their own. The state Health Department has approved Baker's Bar and Grill, 7261 State St., for a waiver of the state's expanded Clean Indoor Air Act. Construction on a smoking room should start in the next couple of weeks, owner Rick E. Garito said.

The Hornell Evening Tribune - July 23, 2004
        Clean Indoor Air Act brought change to Hornell, and waivers are hard to find
        By Kyle A. Torok

Picture: Members of the Hornell V.F.W. expresses their discontent with not being able to smoke in the building on the one-year anniversary of the New York smoking ban. The sign reads: VFW Post 2250, NYS OTB Smokes, Veterans Can't! Vote 11-02 .04 S, Support your vet.

HORNELL - The Clean Indoor Air Act turns one Saturday. Local establishments started to feel adverse effects this spring, and a movement to beat the ban flared up soon after.

Waivers to the ban were almost impossible to obtain, but are becoming a bit more common. As of July 1, there have been 84 total waiver applications statewide, according to the New York state Department of Health. Of those applications, 60 were denied and only 23 have been approved.

Four Steuben County locations applied for waivers, according to the New York State Department of Health, but only two have been granted.

The Bath and Hornell Off-Track Betting branches both received the OK to allow smoking in separate, sealed rooms. However, the Bath OTB branch is closing, leaving the Hornell sole location for legal social smoking.

The Corning OTB branch was denied its waiver, as was the Hornell Association. That does not deny them future consideration for waivers, but they must meet the state's strict requirements.

The state has handed down 52 fines across New York. Only one place, the Hornell post of the Veterans of Foreign Wars, was fined for infractions, according to the NYSDH.

Scott Wexler, executive director of the Empire State Restaurant and Tavern Association (ESRTA), came to the Maple City to give local bartenders and tavern owners advice and strategies for circumventing the ban. He was sympathetic to their concerns, claiming that upstate establishments are hit much harder than New York City's.

John Price, Hornell Association president, spearheaded the local movement to resist the smoking ban. Rural area businesses were sorely affected by the ban. The Association lost tens of thousands of dollars of revenue since it went into effect, forcing it to cancel or reduce contributions to the community.

Only one local group, the Almond Lions Club, was allowed smoking during their Bingo games. The Lions were told by the Allegany County Department of Health that they never needed a waiver, since no paid employees were present during the games.

Rochester Business Journal - July 22, 2004
        Agencies to receive anti-smoking funds
        By Tom Adams

Rochester-area agencies are earmarked to receive $1.87 million in state funding for anti-smoking programs.

The funding is part of a $19.7 million package announced Thursday by Gov. George Pataki to support 19 smoking-cessation centers and 74 community-based organizations statewide intended to prevent and reduce the use of tobacco.

A smoking-cessation center at the University of Rochester will get $298,216 in first-year funding. The center is one of 19 statewide that will divvy up $5 million in state aid. Another $14.7 million will be distributed to state organizations, including the following in the Rochester region:

• the American Lung Association of the Finger Lakes Inc./Monroe, $569,000;
• the American Lung Association of the Finger Lakes Inc./Ontario, $283,000;
• the Genesee/Orleans Council on Alcoholism and Substance Abuse Inc., $208,000;
• the Huther-Doyle Memorial Institute Inc./Monroe-Livingston, $150,000;
• the Huther-Doyle Memorial Institute Inc./Wayne-Ontario, $125,000; and
• the Huther-Doyle Memorial Institute Inc./Seneca-Yates, $95,000.

The funding is part of a five-year, $87 million state plan to curtail the use of tobacco products.

Star Tribune (Minnesota) - July 20, 2004
        Taxpayers League airs disapproval of bans on smoking
        By Conrad Defiebre

The Taxpayers League of Minnesota, best known for its advocacy of lower taxes and less government spending, has taken up a new issue in its latest radio advertising campaign -- strident opposition to smoking bans.

"Freedom and the free market seem to be going up in smoke these days," says a 60-second league spot that began this week on WCCO Radio (830 AM) and the Patriot (1280 AM). "Governments around the state seem to think that people are too stupid to make their own choices about where to work, shop, eat and drink."

The spot, which also calls some smoking ban proposals "just plain nuts," is one of four in a $25,000 campaign expected to last about four weeks, league president David Strom said Monday. One of the others decries "overheated political rhetoric."

Strom said wading into the smoking issue is a natural for the league.

"Smoking bans are just one more example of government overreach," he said. "Everywhere you go there are nonsmoking places already. We just don't believe there's been a huge market failure here."

That means bar and restaurant patrons and employees alike have plenty of choice, the ad maintains. "If you don't want to breathe smoke, go to a nonsmoking restaurant," it says.

Strom said smoking is "clearly an optional fight for us," but one that fits well into the nonpartisan league's efforts to build a conservative, contrarian brand image. "Smoke-free is being pushed by politicians because it's popular," Strom said. Feedback to the league on the spot has split evenly, he said.

Democrat and Chronicle - July 19, 2004
        Smoking ban: One year later
        Controversial prohibition has both champions and foes in hospitality industry and among its patrons.
        By Lauren Stanforth

If you want evidence that American Legion Post 379 still has disdain for the state's year-old smoking ban, look no farther than its back yard.

The Clarkson post put a used airport shuttle bus behind its building for smokers for the winter months. The post has plans to heat the bus later this year.

“It's a hard habit to break, but they've relegated us to being second-class citizens,” said Roy McLeod, commander of Post 379. “We're losing a lot of people through deaths. A combination of smoking laws and changes in DWI laws is hurting all these clubs.”

Some studies have shown that air quality in New York bars, restaurants and social clubs has improved since the Clean Indoor Air Act took effect July 24, 2003. Many customers and businesses have happily said goodbye to smoke permeating their hair, clothes and food.

Other businesses say the ban is cutting into sales, driving away loyal customers who don't want to keep stepping out the door to have a cigarette. Exactly how many businesses might have gone under because of the ban isn't known.

Many counties allow businesses to apply for waivers, which, if granted, allow the businesses to put in ventilated smoking rooms. Monroe County had the second-highest number of waiver applications in the state over the past year, but the county Health Department rarely grants them.

“It's clear what direction we're moving in here — we're going to zero tolerance for second-hand tobacco smoke,” said Andrew Doniger, director of the Health Department. “The meaning of tobacco use in communities is different. It will all move along in the same direction, just at different rates.”

Clearing the air

The Monroe County Health Department has not done testing of air quality or the health of restaurant and bar workers since the ban started.

However, the Roswell Park Cancer Institute in Buffalo released a study in May that said air pollution in Buffalo and New York City bars was 82 percent lower than in bars outside the state that allowed smoking. In bars that allow smoking, employees are exposed to more than four times the average amount of fine particle air pollution allowed by the Environmental Protection Agency, the study said.

The New York state Health Department took swabs of hospitality workers' mouths and found that a chemical that comes from cigarettes, cotinine, had dropped 85 percent in the workers' saliva since the ban went into effect, according to the American Cancer Society.

“The outcome we've seen locally mirrors what has happened in California. Air quality is definitely better,” said Eileen Wolff, director of prevention and detection at the American Cancer Society Lakes Region.

Customers have a different way of testing smoke levels — by how their hair and clothes smell when they get home.

“I like going to bed and not feeling like I have to wash my hair,” said Carol Golding, 23, of Rochester.

Ken Stewart, 29, of Gates used to leave his leather coat in his car — even during the winter — so he wouldn't have to have it cleaned.

“The last thing you want to do is go into work the next day smelling like that,” said Stewart, who smoked during his late teens and early 20s.

Smoke means something more serious for Webster resident Dawna Fields, 41.

“My mom got emphysema from second-hand smoke. I'm so happy to walk into a place and not have to breathe that stuff,” she said.

Job losses

Kevin Carpenter, 44, of Rochester wants to break his 20-year smoking addiction, but it's tough for him, and he doesn't appreciate feeling ostracized now that the smoking ban is in place.

“It feels like I'm a leper when I'm out here,” Carpenter said while smoking a cigarette outside Nathaniel's Pub on Exchange Boulevard in Rochester.

In June, a study paid for by the New York Nightlife Association, which represents New York City bars and clubs, said 2,000 jobs have been lost in the industry since the ban started. The study said an additional 2,650 jobs have been lost at businesses that supply and service bars. The American Cancer Society disputed the numbers, saying liquor licenses and total employment in the industry is up.

Many businesses in the Rochester area say they continue to feel an economic sting from being forced to provide a smokeless environment — although most decline to specify their losses. Those saying they're particularly hard hit include neighborhood and rural bars, veterans bars and other social clubs, and gambling venues such as off-track betting and bingo halls.

McLeod said membership at the Clarkson American Legion has declined in the last couple of years from 600 to 400. He said he knows some members who did not come back because they couldn't smoke there.

Steve Hassos, owner of the Busy Bee Restaurant on West Main Street in downtown Rochester, said his business has gone down about 20 percent in the past year. “I get a lot of lawyers from the Workers' Compensation Board and they all smoke.”

Western Regional Off-Track Betting said it's seeing business pick up at its Amherst, Erie County, location since it was granted a smoking waiver. Western OTB has received 14 waivers for its 39 locations around this part of the state. Native American-run casinos have put a dent in the OTB's gambling business for many reasons — one of which is that smoking is allowed in those casinos, said Michael Kane, vice president of administration for Western Regional Off- Track Betting.

“It's a competitive disadvantage and there is a great deal of competition now,” Kane said.

Tough on waivers

Doniger said he doesn't grant businesses such as veterans organizations and gambling venues waivers because there are other explanations for their waning patronage.

Veterans club memberships have been on the decline for years due to World War II veterans dying and younger soldiers being slow to get involved. Native American casinos have attractions other than smoking, which is why business at Off-Track Betting and bingo halls might be slowing, Doniger said.

The state allows each county to decide whether it will grant waivers.

Doniger has been criticized for being rigid in his idea of what businesses should get waivers. Monroe County allows them, but it has set no standard on conditions that would require one. The state suggested that it would be sufficient if a business could prove at least a 15 percent drop in business.

As of June, Monroe County had received 56 applications for waivers but granted only one, to Eastman Kodak Co. That is the second-highest number of requests for waivers in the state, behind Oneida County with 60.

“The one thing we're trying not to do is create an unlevel playing field,” Doniger said. “I know it sounds arbitrary, but smoking is pretty bad. … I have to go with the biases I hold as a physician and a health care professional.”

Chautauqua County, which had the third-highest number of waiver applications at 43, has approved 21 of them.

Austin Wellman, account clerk at the Chautauqua County Health Department, said his county has tried to balance a concern for the economy with a concern for health.

Businesses that got waivers have spent upwards of $10,000 on smoking rooms. The rooms must circulate the air continuously, no food or drink service is allowed in the room, and it must contain nothing but a few tables and chairs.

Gretchen Fisher, director of operations for the New York Restaurant Association Western Region, said the association wants no counties to grant waivers so that every business faces similar rules.

Fisher said low staffing in county health departments has made aggressive enforcement impossible, allowing frequent violators to have an advantage over law-abiding competition. Bar owners have winced more at the law, but overall her association members support the ban.

Beth DeFranco, a manager at Mickey Finn's in Victor, Ontario County, said business declined slightly at first but has leveled off. “It hasn't been a huge impact. Customers have adapted to it.”

A state senator and assemblywoman from the Utica area introduced a bill in June that would allow smoking in bars with installed air filtration systems. The measure was killed quickly in committee.

Many state legislators, those both for and against the law, agree the smoking ban will remain as is. “We don't see it changing and we don't see anything coming out of Albany changing it,” Fisher said.

Associated Press - July 16, 2004
        State Conservative Party refuses to endorse Republican Bruno
        By Marc Humbert

ALBANY, N.Y. -- The leadership of New York's Conservative Party on Friday started exacting retribution against what it says is an increasingly liberal Senate Republican majority.

"The Senate majority has gone off in the wrong direction," said party Chairman Michael Long.

The politically important third party said it would not endorse Majority Leader Joseph Bruno or Deputy Majority Leader Dean Skelos this year, two veteran senators who have consistently run with Conservative Party support.

Bruno said in a statement that he was confident local Conservative Party members in his Senate district would continue to support him.

"Our conference has a strong record on issues important to Conservatives in this state, and we will continue to work with them as well as independents, Republicans, Democrats and others to do what is in the best interests of all the people in the state," Bruno added.

Long said he personally informed Bruno of the decisions in a telephone call Friday afternoon.

"It didn't sit well with him," Long said. "We didn't leave him, he left us."

Unlike most states, New York allows cross endorsements from minor parties and those extra votes can be crucial in a close election. Republican Gov. George Pataki owed his election win in 1994 over Democratic incumbent Mario Cuomo to votes won on the Conservative Party line.

Long conceded the move against Bruno was largely symbolic given the majority leader's popularity in a Senate district that covers Rensselaer County and part of Saratoga County, just east and north of Albany.

In fact, Mark McDonald, the chairman of the Rensselaer County Conservative Party, said he was "outraged" by Long's action. McDonald is on Bruno's Senate payroll.

Long said the move could make re-election tougher for Skelos in Nassau County on Long Island.

Late last month, Nassau County Executive Thomas Suozzi announced his support for fellow Democrat Josh Ketover in the little-known attorney's bid against Skelos. Suozzi has created a "Fix Albany" political action committee backed by Long and others aimed at sending a message to the state Legislature that too many costly mandates are being imposed on local governments.

Long said the Conservative Party also won't endorse Bruno's favored candidate _ Democratic Assemblyman Stephen Kaufman _ in the race to fill the 34th Senate District seat left vacant by the resignation of Bronx Republican Guy Velella, who pleaded guilty to conspiracy in May. Democratic leaders are backing Democratic Assemblyman Jeffrey Klein for the seat and expect Kaufman to join the GOP majority if he wins.

The Conservative Party will endorse, as expected, businessman Tom Dadey's Syracuse area bid to oust Republican Sen. Nancy Larraine Hoffmann. She faces Dadey in a September primary.

Tension has been increasing between the Conservative Party and Senate GOP since last year when the Republican senators joined with the Assembly's Democratic majority in overriding Pataki's vetoes to impose higher income and sales taxes.

Most recently, Long has accused the Senate GOP of preparing to approve legislation to raise the minimum wage in New York in an attempt to help GOP candidates running in heavily Democratic New York City. That legislation may pass the Senate as early as next week.

Monday is the deadline for finalizing Conservative Party endorsements. Bruno has called the Senate, which has been on a summer recess since June 22, back into session the very next day.

A Bruno aide said Friday that the majority leader and Pataki, a Long ally, had jointly attempted to call Long on Friday afternoon, but could not get through. It was about an hour later that Long announced the party's endorsement decisions.

Long's action did not sit well with some GOP senators.

"This is a declaration of war on the Senate" Republicans, said Sen. Nicholas Spano of Westchester County. "I don't like being threatened. He should take a walk."

WOKR-TV 13 - July 15, 2004
        Smoking Ban One Year Later
        By Patrice Walsh

(Rochester, NY) - It's been almost a year since New York State's smoking ban cleared the air in bars, restaurants, and other businesses; most are abiding by the law.

The Genesee Valley Moose Club in Henrietta was cited for allowing smoking at its Tuesday night bingo games and threatened with a $1,000 fine.

Lori Robb, attorney for the Moose Club said, "We challenged the fine, saying they were a members-only organization and the law didn't apply to them."

The Monroe County Health Department granted the Moose Club an exemption from the smoking law because it is a private club with no paid employees.

However, County Health Director Dr. Andrew Doniger said there are few other exceptions to the law.

"We're not looking for reasons to give out any waivers," Doniger said.

In the year since the smoking ban took effect, 40 businesses have challenged it, including bingo parlors, bars, and restaurants.

All were denied smoking waivers because Doniger said they could not prove that the law alone hurt their business by 15 percent.

He said businesses are complying for the most part.

Eight bars have been fined for allowing smoking.

"We do have some businesses who are deliberately not following the law," said Doniger.

According to the health department, the number of complaints about smoking violations have dropped to a handful each month.
Business owners are first given a warning to comply. If they don't, a hearing is held and they can be fined up to $1,000 per violation.

New York State considers these violations to be serious. Businesses who repeatedly break the law could lose their liquor licenses.

Associated Press - July 12, 2004
        Conservative Party boss threatens GOP senators
        By Marc Humberg

ALBANY, N.Y. -- The head of the state's Conservative Party threatened Monday to withhold party support from election-bound Republican state senators unless they toe the conservative line on some major issues.

The warning comes just over a week before the GOP-led state Senate is due back in session, possibly to vote on raising the state's minimum wage, among other things.

"It's been the job of the Conservative Party over the 42 years (it has existed) to try every once in a while to raise its head and try to hold back the enemy _ the enemy being big government _ and I think that time has come," said Michael Long, state chairman of the Conservative Party.

Long's threat is no small matter because New York, unlike most states, allows cross endorsements by political parties. That means Conservative Party votes can be crucial for a Republican in a close race. Republican George Pataki won the governor's job in 1994 over Democratic incumbent Mario Cuomo on the strength of votes from the Conservative Party ballot line.

Long and other Conservative Party leaders have been increasingly upset with the state Senate's Republican majority for siding with Democrats who control the Assembly. Last year, the Senate GOP joined with Assembly Democrats to raise state income and sales taxes over Pataki vetoes and Conservative Party objections. The Legislature, this time with Pataki's support, also adopted legislation to ban smoking in bars and restaurants, a move roundly criticized by the Conservative Party.

Long wrote Senate Majority Leader Joseph Bruno on July 2 demanding to know, prior to Wednesday, what action the Senate planned to take on a host of issues, including raising the minimum wage and legislation to ease the smoking ban, when it goes into session next week.

"Mike Long will get a response to his letter," was all Bruno spokesman Mark Hansen would say on Monday.

The contents of Long's letter were first reported Monday by the New York Post.

Thus far, Bruno has declined to say what measures he will push for passage next week in a session scheduled to start on Tuesday, just one day after the deadline for the Conservative Party to finalize its endorsements for the November elections.

Long said he will meet Friday with other party leaders to decide which, if any, Republican state senators will be denied Conservative Party backing this year, when all 62 Senate seats and 150 Assembly seats are up for election.

"The time has come to take the position that we're not going to tolerate it any more," Long said. "They may be our friends _ they are our friends _ but we just cannot continue to watch people vote on the liberal side of the aisle and think there's no consequence for it."

There has been speculation that Bruno wants approval for an increase in the state's minimum wage to help the GOP win two Senate seats in the heavily Democratic New York City area. The Assembly has already voted to raise the minimum wage in three steps to $7.10, up from $5.15.

There has also been speculation that Bruno scheduled the Senate session to start just after the Conservative Party endorsements were locked in to avoid creating additional political problems for GOP senators who may be asked to support such legislation.

Long said the Senate GOP has become increasingly liberal over the past decade as Democrats make inroads in traditionally Republican areas. He said he doesn't care about those demographic changes.

"I have a responsibility to the people who vote on the Conservative line," he said, "the registered Conservatives who believe in a way of life."

The Post Standard - July 10, 2004
        County collects $5,000 in smoking fines
        Several establishments have violated the state's Clean Indoor Air Act.
        By Catie O'Toole

Oswego County health officials have charged 17 bars, hotels and restaurants this year for violating the state's year-old ban on smoking indoors.

Health officials also have investigated 70 complaints and issued 29 warnings since Jan. 1, according to Kathleen Smith, commissioner of health services.

"As with all our programs, we are looking for voluntary compliance to the law," Smith said. "All places of employment, including bars and restaurants, are responsible for complying with the Clean Indoor Air Act unless they receive a waiver."

The state smoking ban, which took effect July 24, allows for fines of up to $1,000.

Between January and June, the health department collected $5,000 in fines from the following businesses found to have allowed patrons or employees to smoke indoors: Big Bay Marina, Boogs Tavern in Hannibal, Happy Valley Inn in Parish, Hannibal Hotel in Hannibal, Hastings Inn in Hastings, Hazzy's in New Haven, Lake Effect Inn in Boylston, Pine Grove Inn in Constantia, Redfield Cheese Factory in Redfield, Trackside Pub in Hastings and Wander Inn in Constantia.

Several other bars and restaurants have been charged with violating the ban, but those cases have not been concluded. They include second offenses at Big Bay Marina and Redfield Cheese Factory plus alleged violations at Altmar Hotel in Altmar, Brokedown Palace in Sandy Creek, Muskies Tavern in Fulton, Redfield Square Hotel, TJ's Boathouse Tavern in Constantia and Vanessa's Place in Williamstown.

Big Bay Marina owners have agreed to pay $1,000 for a violation filed May 27. They previously paid $500 for a first offense filed Jan. 28, said Natalie Roy, associate public health sanitarian. Redfield Cheese Factory also has agreed to pay $1,000 for a violation filed April 22. That's on top of a $500 fine they paid to satisfy a Jan. 28 violation, Roy said.

Redfield Square Hotel owners in Redfield also have admitted to violating the smoking ban twice, Jan. 28 and April 22. A settlement agreement was reached at a hearing in June, but the owners have yet to pay the fines, she said.

"I think with our education and enforcement, the compliance is improving," Roy said Friday. "It's like any law. It takes time for people to comply."

The county board of health has granted smoking ban waivers to the off-track betting parlors in Central Square and Phoenix, Buoy's Dockside in Hastings, Trackside Pub in Hastings and Thompson's Tavern in Scriba.

The Sting in Oswego was approved for a waiver March 5, but it has yet to complete work to build a separate smoking room, Roy said.

Waivers allow indoor smoking under strictly regulated conditions. The waivers are valid for two years and are not transferable if the business changes hands, health officials said.

To receive a waiver, establishments must demonstrate financial hardship, either by showing their business dropped by at least 15 percent over three months or by proving they had spent money to minimize the harm of secondhand smoke.

Oswego Daily News - July 8, 2004
        Health Department Investigates 70 Complaints on Indoor Smoking Law

The County Health Department's Division of Environmental Health received 70 complaints so far this year involving violations to the state Clean Indoor Air Act. The law, which took effect July 24, 2003, bans smoking in bars, restaurants and all work places.

"As with all our programs, we are looking for voluntary compliance to the law," said Commissioner of Health Services Kathleen Smith.  "All places of employment, including bars and restaurants, are responsible for complying with the Clean Indoor Air Act unless they receive a waiver."

The first time smoking is observed in a bar, restaurant or other place of business, a warning is issued. After the first warning, a $1,000 fine is issued. The first fine can be reduced to $500 with an admission and stipulation offer. A $1,000 fine is issued for all subsequent violations. Between January and June, the department issued 29 warnings, issued 20 fines, and collected 10 fines totaling $5,000.

Businesses that paid fines for allowing patrons or employees to smoke indoors since Jan. 1 include Big Bay Marina, Boogs Tavern, Happy Valley Inn, Hannibal Hotel, Hastings Inn, Hazzy's, Lake Effect Inn, Pine Grove Inn, Redfield Cheese Factory, Trackside Pub, and Wander Inn.

Several other bars and restaurants were charged with violations that are pending disposition. They include Altmar Hotel, Big Bay Marina, second offense, Brokedown Palace, Muskies Tavern, Redfield Cheese Factory, second offense, Redfield Square Hotel, two offenses, TJ's Boathouse Tavern, and Vanessa's Place.

The health department also evaluates requests for waivers to the Clean Indoor Air Act.
"Establishments applying for waivers must demonstrate proof of financial hardship and show that they have an acceptable plan to minimize involuntary exposure to secondhand smoke for employees and patrons," said Smith.

The Oswego County Board of Health is responsible for granting or denying waivers. The Board of Health has granted waivers to Buoy's Dockside Tavern, Off-Track Betting parlors in Central Square and Phoenix, Rte. 29 Entertainment/Thompson's, and Trackside Pub.

According to the policy adopted by the Board of Health, a business must show a 15 percent loss of sales tax revenue since the smoking ban took effect in order to claim financial hardship resulting from the law.

Business owners must also submit a written plan and a diagram showing where smoking areas would be located, and how the owners plan to alleviate the effects of secondhand smoke on customers and employees. Waivers are for a two-year period and are not transferable if the business changes hands.

NY Press - July 7, 2004
        KILL ’EM ALL—LET THE TOBACCO GOD SORT ’EM OUT

Last week, New York passed a law requiring that all cigarettes be self-extinguishing. We were told the law was designed to cut down on cigarette-related fires. It's a nice thought, but seems a little much, given the comparatively small number of fires actually started by smoldering cigarettes every year.

Self-extinguishing cigarettes mean one of two things for smokers. Either they're going to have to smoke each cigarette continuously to keep it from going out, or they're going to have to light it repeatedly.

In the latter case, that constant relighting means smokers will be using lighters and matches much more quickly than they normally would. Then consider how many more people will be hot-boxing their smokes to avoid the inconvenience of relighting every couple of minutes.

Smokers who let their cigarettes smolder in the ashtray may waste a lot of smoking time per smoke, but they also avoid inhaling a good amount of carcinogen. By forcing people to hot box them, these new cigarettes pose a much greater danger to the smoker than they might otherwise.

Who, then, is behind this evil plan? Our guess is either lobbyists representing the healthcare system (which will surely profit from the new flood of patients with smoking-related illnesses) or those rabid anti-smoking activists in state government who, having found it impossible to tax or ban some of us out of the habit, are now simply trying to bump us off. As with so many wrongheaded points, this initiative is fed to the public under the guise of "safety."

In the end, we're just happy to report that self-extinguishing cigarettes don't work.

Associated Press - July 1, 2004
        Sign paper, light up. Smoking ban defied at bar

BUFFALO, N.Y. -- Sign a form. Light a cigarette.

So it goes at one city bar where patrons openly defy the state's ban on indoor smoking. The form acknowledges they've been told about the law. Whatever follows, owner Rick Naylon says, is up to the smoker.

"I'm not an enforcement officer," said Naylon, whose Jimmy Mac's sits in Buffalo's midtown.

Naylon has been fighting the state's Clean Indoor Air Act since it took effect last year, saying it has cost him significant business.

This past April 2, a Supreme Court justice granted Jimmy Mac's a six-month waiver from the ban after finding fault with some of Erie County's restrictions on applying for a waiver. But the six-month waiver was suspended after two weeks, pending a full appeal scheduled for September.

Naylon brought out the signature slips the day after losing the waiver. He said between 50 and 100 people each day are signing them.

The slips read: "Unfortunately, smoking tobacco indoors in NYS is Illegal. By law, we have to inform you of this law. If you decide to break the law, there is no fine or penalty for the smoker. Please sign below to indicate that we have informed you of this law."

"I have people signing these slips so my staff and I can prove that we've informed people of the law," Naylon said. "After that, if people decide to smoke, that's civil disobedience."

The forms have not allowed Jimmy Mac's to remain out of trouble.

An Erie County Health Department spokesman said the bar/restaurant has been cited at least twice for violating the ban, including since the slips have been in place.

Naylon is confident the Erie County waiver guidelines will be thrown out in September.

"I guess I'll keep going until the government is running the bars, and the bar owners aren't running them anymore," he said. "But I don't want to spend the rest of my life fighting with the government."

Naylon said when smokers returned to Jimmy Mac's in April, its bar business increased by $25,000 from the previous month.