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June 17, 2004
        In Upstate County, Ashtrays and Beer Bottles Still Share the Bar
        By Michael Cooper

UTICA, N.Y. - The sign on the door says "Smoking.'' Seven cut-glass ashtrays sit on the copper-colored bar, all in plain sight. And when David Sprague strode into the cool, dark barroom here on Friday afternoon, the first thing he did after high-fiving a friend and ordering a bottle of Budweiser was to take out a Newport and light up.

The bar, the Varick, which is just down the street from the old brewery that now makes Saranac beer, is one of the 28 establishments in Oneida County that have received waivers from the state's smoking ban. No other county has issued as many, and that record, along with the efforts of two lawmakers to alter the state's ban to allow smoking in bars that install filter systems, has quietly made this upstate county along the Mohawk River the smoking capital of New York State.

"This is why I come here,'' said Mr. Sprague, 37, a motorcycle rider and chain smoker who said that before the Varick received its waiver he used to sneak into the kitchens of bars to smoke, brave sub-zero weather for cigarettes or even use chewing tobacco so he could stay indoors. "In the bar I'd chew Skoal, and ask for a cup to spit it out in.''

Under the state's smoking ban, which went into effect last July, most counties in New York were given the authority to draft their own guidelines for issuing waivers. Typically, establishments must show a financial loss above a threshold established by the county, usually 10 or 15 percent. With New York City and its surrounding counties covered by their own local smoking bans, the vast majority of waivers have been granted upstate. And Oneida County, where many local elected officials oppose the ban, tops the list, having issued more than a fifth of the waivers in the state.

But if local officials hoped that issuing waivers here would give a much-needed shot in the arm to struggling bars, the scene on the streets of Utica would suggest that a waiver doesn't necessarily translate into more customers. Even after the Varick threw open its doors to begin happy hour at 4 p.m. on Friday, a much bigger crowd was found just up the street at O'Donnell's - a bar without a waiver that still drew many smokers, who took breaks from their beers for cigarettes on the sidewalk.

One smoker outside O'Donnell's, Jeff Nelson, 36, said he was glad that the Utica area was leading the state in exemptions from the smoking ban, but he added that a sense of loyalty kept him drinking at O'Donnell's. "The number of bars in Utica exceeds the number of churches,'' Mr. Nelson said. "If you look at some neighborhoods, there's a bar on every corner. And people stay with their neighborhood bars.''

A statewide analysis of the smoking ban by the American Cancer Society shows that of the state's 65,000 bars and restaurants, only 132 have been granted waivers. And the society said that its data indicated that demand for the waivers appeared to be declining.

"After an initial flurry of complaints about the law, we've seen a significant drop in the number of establishments requesting waivers,'' Donald Distasio, the chief executive of the cancer society's eastern division, said in a statement.

But Oneida County remains a haven for the live-and-let-smoke crowd.

Joseph A. Griffo, the Oneida County executive and a nonsmoker, said that the county was simply trying to enforce the state law as it understood it. He said most waivers were granted to establishments that had demonstrated economic hardship as a result of the ban. And he added that there were no plans to market the county as a tourist destination for smokers.

"It wasn't the intent to try to say, 'Hey, come to our place, because there are bars that allow you to smoke,''' Mr. Griffo said. "We're not using it to try to draw people. We just felt that based on the conditions that were thrust upon us by the state, that we would do the best we could to deal with those.''

Mr. Griffo said that many in the county were upset that the state had simply passed the ban with little public input, leaving local governments to enforce it and interpret its waiver provisions. He said he would prefer a law less open to interpretation. And he noted that the county's position would have to be revisited soon, because the existing waivers - for saloons, clubs, businesses and a bowling alley - last one year.

The two state lawmakers representing Utica - State Senator Raymond A. Meier, a Republican, and Assemblywoman RoAnn M. Destito, a Democrat - have introduced legislation that would amend the ban to allow smoking in bars, bowling alleys and pool halls that install air purification devices.

Senator Meier, a nonsmoker and a legislator who voted for the ban, said he was moved to introduce his proposal to help tavern owners who say that the ban has devastated business, and to end the inconsistent way the law has been interpreted.

"You effectively have, in the 57 counties outside the city of New York, 57 different standards, and you can see that,'' he said. "This county has granted more waivers than any other county. Some have granted none. There's no uniformity of administering this waiver process and absolutely no predictability about it.''

State officials said it was unlikely that the air purification bill would pass this session. But the new proposal has alarmed antismoking advocates, who see it as an attempt to gut what they consider one of the great public health advances of recent times.

"The law is working as intended,'' said Michael Bopp, the American Cancer Society's director of advocacy for New York State. "The most severe cases, as determined by local officials, have availed themselves of the relief that is in the existing law - its waiver provisions. Now the state should move forward and let the law stand as it is.''

Indeed, the ban has its fans even in a bastion of legalized smoking like Oneida County.

Symeon's, a popular Greek restaurant near here, banned smoking before the state law passed. "It was a Friday night, and we were full; we had a waiting line,'' Symeon Tsoupelis, 33, the owner, recalled. "The smoking section was empty. So we said, 'No smoking tonight.' The next night, Saturday, the same thing. Our clientele dictated it.''

Mr. Tsoupelis said that he received two angry letters about the ban, but that within a year and a half the eight sets of regular customers who had sat in the smoking section were regulars once again. "They are all back,'' he said.

At the Varick, though, even a couple of nonsmokers said they were happy to be able to sit in a bar that allowed smoking again. "When I go to a bar, I know what I'm getting into,'' said Greg Stiefvater, 31, who said he quit smoking a few years ago.

May 12, 2004
        A City of Quitters? In Strict New York, 11% Fewer Smokers
        By Richard Perez-Pena

In the wake of huge tobacco tax increases and a ban on smoking in bars, the number of adult smokers in New York City fell 11 percent from 2002 to 2003, one of the steepest short-term declines ever measured, according to surveys commissioned by the city.

The surveys, to be released today, show that after holding steady for a decade, the number of regular smokers dropped more than 100,000 in a little more than a year, to 19.3 percent of adults from 21.6 percent. The decline occurred across all boroughs, ages and ethnic groups.

The surveys also found a 13 percent decline in cigarette consumption, suggesting that smokers who did not quit were smoking less. Like similar local and national polls, the surveys counted as smokers all people who said that they had smoked more than 100 cigarettes in their lives and that they now smoked every day or "some days."

City health officials and opponents of smoking said they believed that the decline was caused primarily by sharply higher tobacco taxes that went into effect in 2002, including an increase to $1.50 from 8 cents a pack in New York City.

The drop also coincided with a new city law banning smoking in bars, a new state law prohibiting it in restaurants and bars, and the Bloomberg administration's aggressive anti-smoking campaign, which has included advertising and the distribution of free nicotine patches to thousands of people.

"From what we've seen, we believe New York City experienced the steepest decline anywhere in one year," said Dr. Thomas R. Frieden, the city health commissioner.

Spokesmen for the largest cigarette makers said the higher taxes had certainly pushed down sales. They also said they did not know how much consumption had actually declined because they could not account for factors like smuggling to evade taxes and increased sales of lesser-known brands from smaller manufacturers.

"You have some people just saying, `I'm not going to pay that much' and quitting, but I seriously doubt" the figure of 11 percent, said John W. Singleton, a spokesman for the R. J. Reynolds Tobacco Company.

Brendan McCormick, a spokesman for Philip Morris USA, said he had no reason to confirm or rebut the city's figures.

City officials said they expected skepticism from critics who will call the survey numbers an attempt by Mayor Michael R. Bloomberg's administration to validate his anti-tobacco policies, just as some people disputed the administration's reports showing no loss of business in bars after smoking was outlawed there.

"I take a pessimistic view of their figures because I suspect they're geared to supporting their agenda, but in this case, I'm sure we all hope that their stats are correct and less people are smoking," said Councilman Tony Avella of Queens, who has clashed with the mayor on tobacco control policies.

Administration officials said that the 2002 and 2003 telephone surveys were conducted for the Department of Health and Mental Hygiene by Baruch College researchers using identical methods and that the random dialing approach and questions were the same as those used in annual surveys by the federal Centers for Disease Control and Prevention. They also point out that the city polls used very large samples, 10,000 people each time, which pollsters say makes the results more authoritative. The margin of sampling error is plus or minus 1 percentage point, officials said.

Other evidence also suggests a sharp drop in smoking, including lower city and state tobacco tax revenue, sales of products like nicotine patches and gum, and anecdotal reports of greater enrollment in smoking cessation programs.

"New York did the perfect trifecta that no one has attempted before — raising taxes very steeply, making it harder to smoke indoors, and promoting cessation, so you would expect a dramatic result," said Dr. Steven A. Schroeder, a professor of health and health care at the University of California at San Francisco and a former president of the Robert Wood Johnson Foundation, which finances health care research. "Most cities and states aren't doing much of anything."

Legislation to raise the minimum legal age for smoking to 19 from 18 in New York State has been proposed. Yesterday, when asked about the proposal, Mr. Bloomberg said: "I certainly would not be opposed to raising the age. You know, I've done what I think I can to discourage smoking in the city."

According to the Centers for Disease Control, adult smoking nationwide declined steadily from the first surgeon general's warning in the 1960's to the early 1990's, then held steady, though it continued to decline among teenagers. Annual federal surveys by the Centers for Disease Control show the adult rate, both nationally and in New York State, steady at about 23 percent for several years, through 2002, the most recent year for which numbers are available.

For a decade, surveys showed the rate in the city almost unchanged. The most recent surveys show greater declines among people who federal and city statistics indicate are less able to afford higher prices: the youngest adults, Bronx residents, women, and blacks and Hispanics.

"This city survey shows what can happen if you attack it really hard," said Russell Sciandra, director of the Center for a Tobacco-Free New York, an advocacy group. "It is not at all surprising. This is what we said all along would happen if you sharply raised the cost of smoking."

New York State raised its tax on cigarettes from 56 cents a pack to $1.11 in March 2000, and on April 1, 2002, lifted it to $1.50, one of the highest tobacco taxes in the country. New York City raised its tax on July 1, 2002, from 8 cents to $1.50, by far the highest local levy in the country. The federal tax rose to 34 cents from 24 cents in January 2000, and to 39 cents on Jan. 1, 2002.

So the combined city, state and federal levies on a pack stood at 88 cents at the end of 1999, $1.53 at the end of 2001, and $3.39 by mid-2002.

A new city law took effect on April 1, 2003, prohibiting smoking in bars and eliminating limited exceptions to the previous ban on smoking in restaurants. A statewide ban in restaurants and bars took effect on July 24.

The city conducted its 2002 survey from May to July, and the 2003 canvass from April to November.

In 2002 and 2003, taxed cigarette sales declined about 25 percent statewide and about 40 percent in the city, according to government officials. Some of that drop reflects increased efforts to evade higher taxes, like Internet sales and bootlegging. In the city today, a name-brand pack of 20 cigarettes typically retails for $7 to $8, but nontaxed packs smuggled into the city can be bought illegally on many street corners for about $5.

Health researchers, economists and cigarette makers agree that some of the fall in tax revenue represents a real decline in consumption, but they disagree on the extent. Studies have shown that a 10 percent increase in the cost of cigarettes produces about a 4 percent drop in use.

"New York City is almost a laboratory experiment in what happens when prices get so high people just refuse to pay it," said Mr. Singleton, of R. J. Reynolds. "There's a real economic incentive here for people to break the law."

In 2002, drugstore sales of antismoking products — mostly nicotine patches and gum — rose 3.3 percent nationally and 9.7 percent in New York State, according to Information Resources Inc., a company that tracks drug sales. In 2003, as the products' prices rose, sales dropped 8.7 percent nationally. Sales fell less sharply in New York, by 7.5 percent, or about 50,000 units, but those figures do not include the 35,000 nicotine patch kits the city sent to smokers free last year.

Health researchers say that smoking cuts short the lives of about one-third of long-term smokers, by an average of about 14 years. Dr. Frieden, the city health commissioner, said reducing the smoking population by 100,000 people, if the change is permanent, "means that there will be at least 30,000 fewer premature deaths."

April 25, 2004
        So a Guy Walks Into a Bar With an Air Monitor...
        By Richard Perez-Pena

It takes a toll, being the scientist who has to measure the air quality in bar after bar around the East and West Coasts, wearily checking for smoke particles between beers.

"You go to a bar, have a beer, go to another bar," said Mark Travers, a 28-year-old doctoral candidate at the University at Buffalo, part of the State University of New York. He carried his sophisticated monitoring equipment in a shoulder case.

"By the end of the night, you aren't so motivated to pick up and go on to the next bar," he said. "Occupational hazard. I'm not really complaining, 'Oh, I have to go bar-hopping again.' But I definitely don't go in to work early like I used to."

Nonetheless, after months of arduous research, Mr. Travers and other scientists at Roswell Park Cancer Institute in Buffalo have reached a significant conclusion about indoor air in Mayor Michael R. Bloomberg's New York, a year after the city banned smoking in all bars and restaurants: The atmosphere in them has, on average, less than one-tenth as many fine particles and other harmful chemicals as in cities where smoking is still allowed. When they looked only at bars, and only late at night when the indoor haze was thickest, the contrast to New York City was much sharper.

While the results he gathered may not be terribly surprising, the study, financed in part by the Campaign for Tobacco-Free Kids, an antismoking group, put a numerical stamp on the still-new experience of walking into a bar past midnight and being able to see across the room, of hoisting a pint or two and not having your eyes sting or your hair and clothes smell of the experience the next morning.

"It still seems really strange to be in the bar at 1 a.m., when I'd say 60 percent of the people are at least part-time smokers, and not see that cloud," said William Schumacher, a bartender at Kenn's Broome Street Bar in SoHo. "I always thought the smoke didn't bother me, but I go home feeling better these days."

In a sampling of Manhattan taverns Mr. Travers visited last Saturday night, the average concentration of those tiny particles, soot, was 25 micrograms per cubic meter of air, about the same as he had found a few weeks earlier in Buffalo. Health experts say that number is not particularly good - the city has measured lower concentrations at the mouth of the Holland Tunnel at rush hour - and reflects New York City's general air pollution problems.

But it is a far cry from cities where smoking is still allowed. In dozens of bars and restaurants in Washington, Baltimore, Philadelphia and Hoboken, N.J., Mr. Travers found an average particulate concentration of almost 300. That number includes measurements taken at places that are primarily restaurants, and some readings taken before the nights got busy. In bars visited late at night, the particulate pollution in other cities often topped, 400, 600, even 1,000 in one case.

California began the effort to ban smoking in bars back in 1998. But for all its health-conscious image, the trend-setting left coast did not match New York in Mr. Travers' findings, for the simple reason that people there cheated. In some Los Angeles night spots, he found smokers defying the ban, and an average particulate level of 94.

In addition to particulates, second-hand smoke contains carbon monoxide and a group of carcinogens called polycyclic aromatic hydrocarbons, or PAH. Mr. Travers measured carbon monoxide and found significant, but less striking, differences between smoking and nonsmoking businesses. He did not test for PAH, which studies show varies in direct proportion to particulates.

Several studies have shown that secondhand smoke poses a risk of cancer and heart disease, while a few others - the ones cited by opponents of smoking bans - have not shown any link. Inhaling fine particles in large amounts, from whatever source, can cause many health problems.

The numbers collected by Mr. Travers show striking variation, in ways that both sides in the ongoing debate might seize on to support their arguments. In Albany, tavern owners and some legislators are proposing exemptions to the ban that New York State passed last year, for bars with good air-flow systems.

The ESPN Zone at Baltimore's Inner Harbor presented one extreme early one evening. Families with children having dinner sat at many of the tables, and there were only a few smokers in a half-full, modern room with high ceilings and gale-force ventilation. The particulate level was 70 - far below most other smoking places, but still almost triple the New York City average.

A few hours later, at the Horse You Came In On bar in Fells Point, a low-ceilinged old Baltimore place packed with hard-drinking people in their 20's listening to a band playing Cheap Trick covers, it was 526. And that was mild compared with the upstairs bar the next night at Millie & Al's, in the Adams Morgan section of Washington, D.C., where the particulate level hit 1,119, or about 45 times as high as a typical New York City place.

Even the nonsmoking places varied, depending on factors like the presence of a kitchen (stoves and ovens produce some particulates), and the general level of air pollution in the city.

Tagging along with Mr. Travers and talking with patrons also turned up a wide range of attitudes. Some nonsmokers said they did not mind smoking and opposed any infringement on the right to smoke, while some smokers said they would be happy to see a ban.

People said that smoking prohibitions had subtly altered their social equations, encouraging them or discouraging them from going out to bars, depending on their tastes, and causing nicotine refugees to gather out on the sidewalks.

"I believe in personal accountability, and I know what I'm doing to myself, and this is one of my happiest moments," Hafeez Rajii, a visiting New Yorker, said between drags on a Parliament in Garrett's, a bar in the Georgetown section of Washington.

A number of smokers said they approved of nonsmoking laws, and even saw a benefit to themselves. "I smoke a lot less now because of it," said Matt O'Brien, 26, who sat with friends last weekend at the Heartland Brewery Union Square in Manhattan.

The ban has even changed the pickup scene, according to Mr. Schumacher, the bartender. "There are lot of guys you see in here, not smoking,'' he said, "but as soon as they see a pretty girl go out there for a smoke, they step out and light up."

April 9, 2004
        Rejecting Constitutional Claims, Judge Upholds Smoking Bans
        By Susan Saulny

A federal judge in Manhattan has upheld the smoking bans that the city and state enacted last year.

In a widely expected decision released yesterday, Judge Victor Marrero of the United States Court for the Southern District of New York ruled that the bans do not unduly burden smokers' rights to freedom of speech, association, travel or any other protected privileges.

Audrey Silk, the founder of the group that filed the lawsuit against the bans last July - NYC Clash, Citizens Lobbying Against Smoker Harassment - said yesterday that it had not yet decided whether to appeal.

"Of course we're disappointed, because we feel we presented a very strong case with a lot of documents that refute the common perceptions," Ms. Silk said.

The group contended that the amount of smoke bartenders and waiters are exposed to is limited, and so not enough of a health threat to necessitate a ban, Ms. Silk said. Summing up that point, she added: "The dose makes the poison."

But the court did not agree with the group's move to discredit scientific evidence about the harmful effects of secondhand smoke, or any of its other points.

The group also held that the city's Smoke Free Air Act and provisions of the state's Clean Indoor Air Act are variously vague and overly restrictive, violating the First and 14th Amendments.

Judge Marrero held that the group's First Amendment arguments had a "critical flaw" - "the premise that association, speech, and general social interaction cannot occur or cannot be experienced to the fullest without smoking."

Clash suggested that the ban would deter travel to and within the state, eating away at the liberty to move freely, a right that the 14th Amendment states cannot be abridged without due process of law.

But the judge wrote that he doubted the bans would play any material role in smokers' travel decisions. "Smokers remain free to travel as they please, to no less degree than nonsmokers, and may still smoke while they drive their automobiles or walk in the streets," he said.

The city's chief lawyer on the case, Ave Maria Brennan, an assistant corporation counsel, said in a statement that she felt the court "reached the correct decision."

Thomas R. Frieden, the city's commissioner of health, said in a statement: "The Smoke Free Air Act was enacted to protect workers from the adverse health impact of secondhand smoke, and we are pleased with the Federal District Court's decision upholding its constitutionality."

March 29, 2004
        Bars and Restaurants Thrive Amid Smoking Ban, Study Says
        By Andrea Elliott

The city's restaurants and bars have prospered despite the smoking ban, with increases in jobs, liquor licenses and business tax payments since the law took effect a year ago, according to a study to be released by the city today.

The study also found that air pollution levels had decreased sixfold in bars and restaurants after the ban went into effect, and that New Yorkers had reported less secondhand smoke in the workplace.

"It really confirms that New York City is now a healthier place to work, eat and drink," said Dr. Thomas R. Frieden, commissioner of the city's Department of Health and Mental Hygiene, which produced the report along with two other city departments and the New York City Economic Development Corporation.

Critics say the report is flawed because it does not separate bar and restaurant statistics, whereas bars have suffered more from the ban, critics contend. The increase in tax payments and jobs must be weighed against the restaurant industry's emergence from the post-9/11 recession, said David Rabin, president of the New York Nightlife Association.

"There's no separation between Starbucks and McDonald's and the nightclub and bar industry," Mr. Rabin said. "Many restaurant and bar workers have had to take second jobs to make up for lost tip income."

Data from the city's Department of Finance shows that the money spent in New York bars and restaurants has increased, the report states: from April 2003 to January, the city collected about $17.3 million in tax payments from bars and restaurants, a rise of about $1.4 million over the same period a year earlier.

The payments were for the general corporation tax and the unincorporated business tax, and are usually collected quarterly from restaurants and bars. The rates have not changed since before April 2003.

An average of 164,000 people were employed in restaurants and bars in 2003, the highest number in at least a decade. Since the smoking ban took effect last March 30, employment in bars and restaurants has risen by 10,600 jobs, taking into account seasonal fluctuations, according to the report.

The number of the city's bars and restaurants - roughly 20,000 - remained about the same in the third quarter of 2002 as in the third quarter of 2003. Last year, the New York State Liquor Authority issued 1,416 new liquor licenses to New York City businesses, compared with 1,361 the previous year, the study reports.

But the report does not reflect the harsh realities faced by the city's bars, which catered to a smoking-heavy crowd before the ban, said bar merchants, who questioned why bar data was not separate in the report. The city's answer is that data that separates bars from restaurants is not reliable, said Sam Miller, a spokesman for the Department of Finance.

"We'd be guessing, and we probably wouldn't be as accurate," Mr. Miller said.

To try to demonstrate where the report fell short, David McWater offered his own experience: he owns five taverns in Manhattan, including Nice Guy Eddie's and Julep in the East Village. Last year, he said, his businesses experienced, on average, a 1 percent increase in sales, compared with the usual 8 to 15 percent sales increase enjoyed by the bars in previous years.

"In the old days a smoker might spend six hours in my bar drinking and talking to friends," said Mr. McWater, 38. "Now he's spending four hours in the bar and two hours outside smoking. I can't serve people outside. Every time a smoker goes outside, that's lost revenue."

The study also found that 97 percent of the more than 22,000 establishments inspected by the city from April 2003 through February were found in compliance with the new law and that 150,000 New Yorkers reported less exposure to secondhand smoke in their workplaces since the ban took effect.

The Health Department conducted an air quality survey of a sampling of bars and restaurants in August 2002 and returned to the locations in May 2003, after the ban took effect, and noted substantial improvement.

March 9, 2004
        A Cultural History Faces Stringent Smoking Laws
        By Corey Kilgannon

Of the roughly 20 hookah bars in New York City, about half are clustered along a short stretch of Steinway Street in Astoria, Queens, known as Little Egypt. Here in the hazy cafes, owned mostly by Egyptian immigrants, men smoke fruit-flavored tobacco called shisha through water pipes called hookahs as they banter in Arabic, play chess or backgammon, or simply pass the day in a fragrant fog.

But big trouble has come to Little Egypt, causing the kind of jitters more often associated with the cigarette habit. Hookah shop owners say the city's Health Department has begun sending agents to Steinway Street to aggressively enforce the stringent smoking laws that took effect last spring - laws the owners had thought they could quietly sidestep.

Ali Mohamed and Moustafa Elgohry, Egyptian immigrants who own a shisha cafe on Steinway Street near 25th Avenue, said they had received six summonses from the city in recent months, one resulting in a $1,200 fine. "We charge $4 for a smoke," Mr. Mohamed said. "Do you know how many shishas I have to sell to make that back?"

When the smoking ban first took effect a year ago, the two men said, they received sporadic summonses, several of which were dismissed by the Health Department's administrative tribunal. "But they've been very aggressive lately," Mr. Mohamed said. "Two weeks ago, they sent their guys to every shisha shop on the block. It's harassment."

Mr. Elgohry said enforcement agents had warned customers in his shop that they, too, would be ticketed if caught smoking. "They've scared some of our customers away," Mr. Mohamed said. "We're hard-working people trying to earn a living. I worked 20 years driving a cab for the money to open this store. Now they're trying to close us down."

The owners have enlisted the help of their councilman, Peter Vallone Jr., who wrote to the city's health commissioner last week arguing that the shisha cafes are no different than the cigar bars that qualify for a legal exemption from the smoking laws. Mr. Vallone said that city law allows smoking if the bars draw at least 10 percent of their revenue from the sale of tobacco. Most of the shisha café owners say they earn well over half their revenue from tobacco.

But a Health Department official said yesterday that the cigar-bar exemption applied only to places that sell alcohol.

Elliott S. Marcus, an assistant commissioner, said, "Hookah establishments may apply for an exemption as a tobacco bar - which by definition is an establishment where the sale of food is incidental, at least 40 percent of gross receipts are from the sale of alcohol, and at least 10 percent of gross receipts are from the sale of tobacco products or the rental of humidors.

"To date, the department has not received any tobacco bar applications from hookah establishments," he said, adding that they were therefore subject to the city smoking ban.

The cafe owners said they would not serve alcohol because most of their customers were Muslims, who do not drink.

"I've asked that the city give them exclusion from the smoking laws because they fit into a cigar bar exemption," Mr. Vallone said last week. "The only difference is that they don't serve alcohol, but should they be punished for that?"

The cafe owners contend that hookah smoking is a vital part of their culture. And their shops were instrumental, they say, in transforming what was a downtrodden block several years ago into a bustling commercial strip where shops stay open late at night and people mill about on the street the way they do in downtown Cairo.

Many of the cafes draw their largest crowds well past midnight. Egyptians, Algerians, Tunisians and others, mostly men, sit next to tall ornate water pipes, sipping juices, coffee or strong tea between puffs. Some like the tobacco dipped in molasses or flavored with fruits or spices. A full pipe usually costs $4 and can last an hour.

Muhamed Bashir, who owns a restaurant on Steinway Street that offers shisha smoking, said: "We get customers from all over - Long Island, Connecticut, New Jersey. But they would not come if we didn't have smoking."

City agents have inspected his shop three times recently, he said, adding, "Luckily, no one was smoking when they came, but they said, 'If anyone smokes hookah, we're going to give them a ticket.' "

Esam Adly, the manager of the Egyptian Cafe, which opened four years ago on Steinway Street, said he had received three summonses in recent months. Two were dismissed after hearings and the third will be heard later this month, he said.

"New York has many different cultures, and smoking shisha is part of our culture," he said, staring nervously into an open-air oven baking small coals to a rosy glow so they could be placed on hookahs to keep the shisha burning. "It's an Arabic tradition, and it's our whole business. We couldn't stay open without it."

Muhammed Darwish, 36, a livery driver, sat last week in the Egyptian Coffee Shop. "This is our culture," he said. "Smoking brings our people together. It's not like a bar. People only come here if they want to smoke, or don't mind others smoking. Customers would rather smoke here than at home, around their wife and children."

Next to him was another hookah smoker, Khalid Kairouani, 38, a former Olympic runner from Morocco who has won three United States championships in the 3,000-meter category. He exhaled a thick plume of aromatic smoke toward the No Smoking signs on the wall. The owner, Labib Salama, said he put the signs up because cigarettes were banned in the shop.

"Shisha is the reason people come here," said Mr. Salama, 50, an Egyptian immigrant who recently called many fellow cafe owners to his shop to plan strategy and choose a lawyer to help them fight the city crackdown.

"If the city stops shisha smoking, many shops here will close," Mr. Salama said. "We brought this block back to life. Does the city want it to be dead again?"

February 14, 2004
        Gladly Taking the Blame for Health in New York City
        By Jennifer Steinhauer

With the exception of the police commissioner, the heads of city agencies tend to be virtually invisible to the public, trotted out for the occasional news conference with the mayor while doing most of their business behind closed doors.

But Dr. Thomas R. Frieden, the city's health commissioner, has turned out to be an active policy advocate among the city's department heads, the outspoken architect of some of the Bloomberg administration's more controversial policies.

Although Mayor Michael R. Bloomberg is more closely associated with a law that bans smoking citywide, the legislation was actually developed by Dr. Frieden, who was also given responsibility for helping to push it through the City Council.

Since Dr. Frieden was appointed in 2002, the Bloomberg administration has also changed the city's restaurant inspection process and increased the fines, infuriating the industry so much that its trade group sued the city.

In some ways, Dr. Frieden, who is 43 and is married with one child, is inheriting a tradition of active health commissioners that retreated during the Giuliani administration, when public health was a back-burner issue.

"The city health department has a long history of activist health commissioners going back to the turn of the century," said Dr. Mark Chassin, the chairman for the department of health policy at the Mount Sinai School of Medicine.

Although Mayor Bloomberg has taken both the credit and the grief for the ban on smoking, the restaurant fines, and the opposition to a bill on lead paint hazards, insiders on each issue know that the health commissioner is the one who developed these policies.

And while Dr. Frieden is highly respected among Mr. Bloomberg's senior staff members, many of them also grumble that his policies have come at a political cost to the mayor. "The smoking ban would never have happened without him," said one administration official.

Dr. Frieden offered no apologies for his eager enforcement of the law. "It has been said that public health programs are inherently unpopular because they improve the health of a large number of people, but many of them disturb a small number of very vocal people," he said. "We have done a terrific thing, by improving the way we inspect restaurants. We now have cleaner food, but the restaurants that are getting fined are angry."

About the smoking law, he said: "In public health there is no pro-TB or pro-Ebola lobby, but there is a pro-tobacco lobby. And they spend $2 billion on marketing and promotion. Everyone knows that secondhand smoke kills. It would be a pretty sorry case if a health commissioner didn't support this law. The surprise is that the mayor supports it. But I would be happy to be attacked for it."

Dr. Frieden's health goals have expanded greatly in his current role, with interests as varied as racial disparities in health care, colon cancer, and helping new mothers care for their infants. His pet cause, though, is ending tobacco use, a goal he repeats in interviews, in his letter to New Yorkers on the health department's Web site, and in conversations with doctors. "In terms of tobacco control, we're not done," he said. "Seven out of 10 people want to quit. What we know is the health care system doesn't do as good a job as it could in helping them."

Dr. Frieden, who is an obsessive consumer of data, also decided that the city's restaurant inspections were not focusing on the things that actually cause people to get sick. So he changed the category of many violations and increased fines substantially; the minimum fine doubled to $200. Inspection failure rates doubled last year, although they are ticking down again.

Doug Griebel, the president of the New York City chapter of the New York State Restaurant Association, said of Dr. Frieden's changes: "There are too many inconsistencies in the inspections, and fines have quadrupled, which serves no purpose other than to raise money." Mr. Griebel, who owns four Manhattan restaurants, complained, as have other owners, that violations that could be addressed on the spot before now automatically result in fines.

Dr. Frieden still enjoys dining out on sushi, and said he was just fulfilling a mission. "Public health has one underlying philosophy, and one underlying methodology," he said. "The underlying philosophy is social justice, and methodology is using data to improve decisions."

February 11, 2004
        Smoke if You Have Money? Hardly, Mayor Says
        By Jennifer Steinhauer

Mayor Michael R. Bloomberg is once again slipping into the quicksand created by his citywide smoking ban - not over its existence, but over perceived inconsistencies in enforcing it.

The troubles for the mayor began last week when The New York Times reported on a black-tie dinner on Jan. 15 at the St. Regis Hotel where Wall Street big shots puffed away on cigars within smelling distance of the mayor. Mr. Bloomberg, whose ban on smoking extends to every restaurant, bar and hotel in the city, has urged New Yorkers to tattle on those who break the law. The city has issued dozens of summonses.

Mr. Bloomberg has since said he did not see smoking - or at least he did not remember seeing smoking - at the St. Regis event, and yesterday he became annoyed during an interview on WLIB when he was asked about it again.

"It's somebody trying to make a story," Mr. Bloomberg said. "The bottom line is, I don't really remember anybody smoking. Most people weren't, and if there were some people in the corner smoking, they were smoking. What do you want me to do, call the cops?"

Well, yes, many people indeed would have liked to see Mr. Bloomberg force the wealthy revelers at the St. Regis to put their cigars out, because that in fact is what the law dictates. The problem for Mr. Bloomberg is that he has more than once given the appearance of having a different standard for upper-class New Yorkers - some of whom have taken to puffing in front of the mayor with the explicit goal of taunting him - than he does for bar hoppers around the rest of the city.

"Bloomberg is a clear example of 'Do As I Say, Not As I Do,' " said Tricia Romano, who has a nightlife column in The Village Voice. "The places he parties are high-society hangouts - they aren't going to get complaints from the neighbors. And I'd be shocked if a gang of rich socialites were huddled outside smoking cigarettes and driving the neighbors crazy with the noise."

This is not the first time this has happened to Mr. Bloomberg. Last summer, police officers gave tickets to people drinking beer in public at a July 4 party on the beach in the Rockaways, but allowed people to drink wine in Central Park during a free concert by the New York Philharmonic the following Monday.

When asked about the discrepancy at a news conference, Mr. Bloomberg said that the drinking near the beach led to drowning, adding: "I don't know of anybody that's drowned in a tuba recently."

February 6, 2004
        If Only for a Night, Wall St. Fallen Idol Is One of the Boys
        By Landon Thomas Jr.

Richard A. Grasso is no longer a member of Wall Street's most exclusive public club, the New York Stock Exchange, but he still belongs to its most secretive society, Kappa Beta Phi.

The sole purpose of the society, which claims more than 250 of Wall Street's executives and former chiefs, is to allow some of the biggest egos in finance to poke fun at themselves and to induct new members in a campy rite that dates back to 1929.

At its annual black-tie dinner on Jan. 15 at the St. Regis Hotel, Mr. Grasso was not only in attendance, but the butt of a series of jokes about his $139.5 million pay package as chairman and chief executive of the exchange. Bankers who were there said he took the ribbing in good humor.

Like the best of clubs, Kappa Beta has special privileges — lifetime membership, which Mr. Grasso can now appreciate, and, for the broader membership, even the leeway to break a municipal law or two.

Laughing with Mr. Grasso were several former directors of the stock exchange who granted him that pay and Mayor Michael R. Bloomberg, perhaps the biggest titan in the room with a net worth of $4 billion. Though the mayor famously banned smoking in public places in New York, several Wall Street executives enjoyed an illicit puff of the occasional cigar in his presence.

"Sure, there were cigars passed out," said Alan C. Greenberg, the former chief executive of Bear Stearns, who is known as Ace. "And some people even had the guts to smoke them — including me."

Smoking in a public room is not allowed at the St. Regis, according to hotel officials.

But such legal niceties were the details for another day: Wall Street's titans had gathered for a night of racy fun.

Among the inductees, or "neophytes" in club parlance, was Diana L. Taylor, the banking superintendent for the Pataki administration and the companion of Mr. Bloomberg.

Which could have been why Mr. Bloomberg, whose Wall Street bona fides go back to his days as a hot-shot salesman on the Salomon Brothers trading desk, was in the audience.

Mr. Grasso did not return calls to his lawyer seeking comment. Mayor Bloomberg also declined to comment. Ms. Taylor could not be reached for comment last night.

January 29, 2004
        U.S. Arrests 10 as Members of Big Cigarette Smuggling Ring
        By Eric Lichtblau

WASHINGTON — The cartons of cigarettes carried familiar brand names like Marlboro and Marlboro Lights, and would fetch as much as $70 each in New York City.

But in reality, federal officials charged Wednesday, many of the cigarettes were counterfeits, made in Asia for as little as $2 a carton and then smuggled into the United States.

In what they described as a major dent in the multibillion-dollar black market in tobacco products, officials on Wednesday arrested 10 people in five states who the authorities said had been running the biggest tobacco import smuggling ring in American history. The defendants are accused of smuggling more than 100 million cigarettes into the United States.

Among the prime destinations of the black-market cigarettes, officials said, were Los Angeles, western Texas and New York State, including an unidentified Indian reservation in upstate New York.

The victims, officials said, were not only the tobacco companies whose products were counterfeited but also the federal government, which estimates that cigarette smuggling costs it more than a billion dollars a year in lost fees and revenue, and New York, California and Texas, which together were cheated out of at least $8 million.

The smugglers operated "a vast criminal conspiracy" and "sought to exploit the U.S. economy" by evading taxes and duty fees, said Michael T. Dougherty, who oversees immigration and customs enforcement operations for the Department of Homeland Security.

Federal officials identified the leader of the ring as Jorge Abraham, 34, of Sunland Park, N.M., who is charged in a 92-count indictment with conspiracy to smuggle cigarettes, wire fraud, money laundering and other offenses. Nine other people, in New York, Texas, Florida and California, were also arrested, and officials said an undisclosed number had been charged in indictments that remain under seal.

If convicted, Mr. Abraham faces not only a prison term but also fines and restitution of about $30 million and forfeiture of his $545,000 house in New Mexico. A telephone call to his lawyer on Wednesday was not returned.

Lou Garthe, who oversees tobacco enforcement at the Bureau of Immigration and Customs Enforcement, said a three-year investigation had found that traffickers under Mr. Abraham's direction had used two main methods to smuggle cigarettes, in a scheme that began in 2000 or earlier.

In some cases, Mr. Garthe said, they bought low-grade cigarettes in China, Thailand and elsewhere, smuggled the cartons into the United States as boxes of toys or plastic products, and sold them on the black market as brand-name cigarettes. In other cases, he said, they imported authentic brand-name cigarettes into American ports but evaded taxes and duty fees by falsely declaring that the products were bound for Mexico.

Federal officials said that in the course of the investigation, they seized $18.1 million worth of counterfeit and brand-name cigarettes bound for the black market.

January 24, 2004
        Dare to Smoke? The Guy Behind You Is the Mayor
        By Sabrina Tavernise

It would have been a delicate question under any circumstance. But the surprise presence of Mayor Michael R. Bloomberg turned it into a New York farce.

At a table in the plush, quiet bar of The Mark hotel on the Upper East Side, a woman asked fellow drinkers if they minded her lighting a cigarette. She leaned from a perch on an armchair toward well-dressed diners at four tables near her. In the dimly lighted room, where about seven small groups sat sipping wine and cocktails, most guests simply muttered that they were not opposed.

But Richard Medley, out for a drink with friends, spotted an important reason to say no. He had watched as Mr. Bloomberg entered the bar earlier. The city's antismoking champion had taken his seat behind the unsuspecting smoker.

"She turned to me and said, 'Do you mind if I smoke,' " Mr. Medley recalled. "I said, 'I don't mind, but he might,' " he said, loudly enough for the room to enjoy the joke, and he pointed to Mr. Bloomberg.

The woman, dressed in jeans and a sweater, swung around to face him, and began to laugh. She then asked him if he minded her smoking. Mr. Bloomberg, laughing, expanded the joke. It was the bar owners who would be offended, he said. They stood to pay a fine for her indulgence.

"It was a very New York thing," Mr. Medley said. "It was all in very good humor."

Mr. Bloomberg remained unfazed. He even offered the woman a lesson in how to quit. Some time later, in a charm offensive, he bought her table drinks. The guests laughed at the joke. But in a New York minute, the room went back to nursing their drinks. The woman, ultimately, was not won over.

"I don't think she was going to follow his advice," Mr. Medley said. "I think she just dropped the subject."

A spokesman for Mr. Bloomberg declined to comment on the incident.

Yesterday morning, Mr. Bloomberg gave a glimpse into the pressures of being the city's smoking conscience. On his radio show on WABC-AM, he was asked by a caller whether he would crack down on energy waste, like air-conditioners that blast in stores in the summer.

"I took on the smoking," he said. "I'm not sure I want to take on air-conditioning this year.''

January 18, 2004
        Mayor and Editor, Fussing Over Fuming
        By Jennifer Steinhauer

It would seem that Vanity Fair, the breathless chronicle of all things glamorous and shiny about New York and Hollywood, would be in love with the 108th mayor of New York City.

For years, Mayor Michael R. Bloomberg seemed to embody the same qualities found in many of the magazine's subjects — a love of fancy restaurants, deep pockets for the charity circuit and real estate of considerable size in requisite tropical, European and urban locations.

Further, the editor of Vanity Fair, Graydon Carter, runs in similar social and professional circles as Mr. Bloomberg did in his pre-mayoral, media mogul days, before he began choosing meatloaf on Staten Island over cheese courses at expensive Midtown restaurants. The two share a certain number of accouterments: Manhattan town houses, finely tailored suits and fat Rolodexes. Each has been known to be long on lady friends.

They were, in Mr. Carter's estimation, friends. But that was before Mr. Bloomberg imposed an almost total ban on indoor smoking in public places in New York City, infuriating Mr. Carter, who enjoyed lighting up in restaurants, bars and, according to three summonses he has received from city inspectors, his office at the sleek West 42nd Street headquarters of Condé Nast. Mr. Carter has called the enforcement of the new law harassment, among other things.

"It is an important issue," said Mr. Carter. "It is about freedom and your own civil liberties, and it is about the city. This is not Denver, it is not Seattle, it is a big rough turbine that is fueled by cigarette smoke and food and liquor. People want to go out at night. If your best friend smokes, it makes it very awkward."

Over the last six months, Vanity Fair has been ripping into Mr. Bloomberg on almost a monthly basis, vexing the mayor's staff and angering Mr. Bloomberg at times, too. In September, the magazine ran a lengthy profile of Mr. Bloomberg that was far from flattering, referring to him as "waiflike."

Mr. Carter has also devoted no fewer than three editor's letters to criticizing the mayor. In the latest, in the February issue of the magazine, Mr. Carter says the mayor is "like a husband who returns home after the honeymoon and announces to his new bride that he has decided that henceforth they will be vegans."

For that same issue now on newsstands, Mr. Carter commissioned an article by Christopher Hitchens in which Mr. Hitchens chronicled his minor crime spree throughout the city — feeding pigeons, smoking in a luxury car — painting Mr. Bloomberg's New York as something just short of a police state.

"I did it because I thought it would be fun journalism," Mr. Carter said. "It was to explain something."

He said, "I see some 86-year-old man getting a ticket for feeding birds in the park and I don't get it."

But Bloomberg administration officials say Mr. Carter has crossed a line. "It certainly raises the question of whether it is ethical journalism for an editor to use his magazine to push his agenda," said Edward Skyler, the mayor's press secretary, who last week accused Mr. Carter of ordering up a series of hatchet jobs on his boss.

Buzz Bissinger, who wrote the lengthy profile of Mr. Bloomberg, believes the administration protests too much.

"The piece was generally positive," Mr. Bissinger said. "I concluded that in his own idiosyncratic way, he's been an effective mayor." If the mayor's staff believes otherwise, he said, "It's pathetic."

A seminal song from the 1970's performed by the band War comes to mind: "Why Can't We Be Friends?" A sample verse: "I seen ya around for a long long time. I really remember you when you drank my wine."

Indeed Mr. Carter has drunk Mr. Bloomberg's wine, and snacked on his potpies as well. The two met several years ago when Mr. Bloomberg invited Mr. Carter to lunch near Mr. Bloomberg's corporate headquarters. Mr. Carter was later invited to dinner at Mr. Bloomberg's London and New York homes.

The two shared an affinity for social cachet, with Mr. Bloomberg at points embracing Mr. Carter's endeavors.

When Mr. Carter, 54, stopped playing host for dinner for the Serpentine Gallery in London, Mr. Bloomberg, 61, moved to quickly take it over. When word got out that Vanity Fair would no longer be holding the annual party after the White House Correspondents' dinner, Kevin Sheekey, an aide to Mr. Bloomberg at his company and in the administration, hopped in a cab and rushed to the Russian Federation Trade Ministry with a check to secure that party for Bloomberg L.P.

They have had their little jokes. Just last year, Mr. Bloomberg sent Mr. Carter a mock proclamation for a local law affecting "middle-aged men with long hair," stating that they ought to "cut their locks immediately." (Mr. Carter's coif is Baldwinesque: pick a brother.) "Regular inspections will be led by the Office of Emergency Management to begin at Da Silvano restaurant," the proclamation read.

And then the smoking ban came last spring.

Mr. Carter's resistance to the mayor's mandate has become so well known around Condé Nast that when the sprinkler system went off last year, the rumor mill immediately concluded that it was activated during another act of rebellion.

Mr. Carter denies it. "There was a fire in a fashion closet," he said. "I never set off the sprinkler system." He said that he does not smoke much in his office these days — "Not really."

However, Mr. Carter continues to light up in public spaces from time to time, as if he just wanted to vex the mayor. He once lit up not far from the mayor at the Four Seasons.

Mr. Bloomberg maintains that most New Yorkers support the smoking ban, and said pointedly on his weekly radio show on Jan. 9 that there was only "one magazine editor who's apoplectic about this."

He added, "His own people turned him in because he was breaking the law."

Mr. Carter insisted that he thought Mr. Bloomberg was a good mayor, and that he would vote for him in a re-election.

"He's rich; I'm not. He doesn't smoke; I do. But we have common interests," Mr. Carter said. "He is an interesting guy — he is great enjoyable company — but we just disagree on this one issue. I would be very happy to see him in a room."

January 14, 2004
        A Smoke-Filled Room Without the Politics
        By Florence Fabricant

Taking pity on desperate smokers, Joseph Franco, the owner of Caffé on the Green, 201-10 Cross Island Parkway in Bayside, Queens, has set up a tent, the Butt Hut, outside his restaurant and catering hall, once the home of Rudolph Valentino. It has heat, lights and seats. "But I never go in there," Mr. Franco said. "I'm not a smoker."

Smokers can also take shelter in a stretch limo parked in front of the David Burke & Donatella restaurant on East 61st Street. Stickers on the windows say "Smoking Room."

January 13, 2004
        Upstate Bar Wins Reversal of State's Smoking Ban
        By Michelle York

CICERO, N.Y., Jan. 10 — Decades ago, David A. Damon Jr. used to come to his father's bar and banquet hall to spin records, the vinyl kind, for the regulars.

It was a place where people stopped after fishing on Oneida Lake. Or for banquets celebrating another year of bowling competition. For nine years, the Elks ran the hall, about 10 miles north of Syracuse, as their private club. But in 1996, when the club could no longer afford the mortgage payments, the son took it back as his retirement venture.

Mr. Damon never meant to make much money. His business, Damons, was just a place where the memories were as old as the chairs (also the vinyl kind).

But he never meant to lose money, either. And he did after the state's smoking law went into effect last July. "I got killed," said Mr. Damon, 69, a retired engineer. "I didn't just lose the smokers; I lost the friends of the smokers, the nonsmokers, who didn't want to hang out without them."

"People used to come in after golfing," he added. "I stopped seeing fishermen, too. I used to have bowling banquets, but people decided they'd rather shake hands at the last game and go home. They changed their lifestyles."

When the weather began to turn last fall, even the bar's loyalists dropped off after growing tired of tramping out to the gravel parking lot in the cold for a smoke. Mr. Damon said his receipts were down by $1,000 a week. He laid off his only employee, a part-time bartender, and was using his retirement savings and Social Security checks to keep the bar open.

"There used to be 15 to 20 cars in the parking lot, and now you see two," said Michael Smith, a regular who gave up smoking years ago.

Alarmed, Mr. Damon went to Onondaga County officials to exercise a provision in the smoking law intended for just such a predicament. After he proved his economic hardship, and demonstrated that the bar had a separate room suitable for a smoking lounge, the county granted a waiver. Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, a trade group, said he thought the waiver for Damons was the first in the state.

Apparently it will not be the last. "There's going to be a few more that meet the criteria," said Gary R. Sauda, the director of environmental health for the county, which is considering 24 other applications.

The association believes that 10 percent of the state's 16,000 restaurants and bars that are licensed to sell alcohol will ultimately find ways around the tobacco law. How they do so will vary.

When smoking restrictions in the state Clean Indoor Air Act were tightened last year, the state law superseded local smoking laws. But it allows New York City and those counties with full-service health departments to decide whether they will grant waivers and under what conditions. In rural counties without full-service health departments, the state policy for exemptions takes over, said Claire Pospisil, a State Health Department spokeswoman.

Some places, like New York City, and Westchester and Suffolk Counties, do not offer waivers, health officials said. Nassau County recently decided to offer them. "It's happening as we speak," said Cynthia Brown, a spokeswoman for the county's Health Department.

Other counties decided to offer waivers but did not establish guidelines for applications, a situation that has stalled the process.

Some counties may have been waiting for direction from the state, which issued guidelines just in December suggesting that bars that lose 15 percent of their business may be eligible, said Mr. Sauda, the Onondaga environmental health director. Onondaga decided to not require a certain percentage, only a substantiated drop.

Two "economically depressed" counties in the state may try to give waivers to any bars that ask for them, Mr. Wexler said, though he declined to name the counties.

The delays and different rules have led to confusion, frustration and perhaps action, Mr. Wexler said. "News that a bar in Cicero is getting a waiver has stimulated the effort for a level playing field," he said. "The smoking ban will be a major topic in the Legislature this year. I just don't think it's going away."

Since news of the waiver broke, Mr. Wexler said, his office has been getting about a dozen calls a day from bar owners who feel hopeful for the first time since the law was passed.

Even in counties that have guidelines in place, like Onondaga, bar owners face a lengthy approval process. Mr. Damon said the paperwork took weeks, "not including thinking time," he said, "because I guess thinking time doesn't count." He turned over financial records comparing receipts from August through October over a three-year period, and they showed a 40 percent drop in business last year, after the ban took effect. He escorted county inspectors through Damons, showing them a separate banquet room and ventilation system.

His application was approved and the waiver was hand-delivered during the holidays. "Now I have to see if I can get customers back," he said.

As reports of the waiver have spread, he has picked up some new patrons. "I saw it on the news," said Shawn Prell of North Syracuse, "and I said, `Good! We're going to this place.' " Ms. Prell stopped in for a drink on a recent afternoon with her husband, Ed. "We even called our friends."

The Prells confirmed what Mr. Damon believed: that smokers cut down on the number of times they went out to bars or restaurants, but not on their cigarettes, after the ban took effect. "We used to go out every week, but now we go out once a month," Ms. Prell said. "We're saving money."

Mr. Damon clearly hopes to change that. He pointed the Prells toward the smoking lounge and poured their first drink.

January 4, 2004
        Waiting to Inhale
        By Michael Brick

Quietly, and without the contraptions or planning of Prohibition, the cigarette smokers of New York have created their own modern rendition of the speakeasy, where their outlawed pleasure can be enjoyed once more. There are no passwords. You just have to wait.

The proper hour can be 11 p.m., or midnight or later still in places where the patrons do not like to go home. There is no schedule, no phone call, no listing in The Village Voice. The moment comes by common assent, by a shared appraising of all the people remaining in the bar and all the forces around them — the darkness of the windows, the breath of the staff.

"I hear from lots of people, especially in the four outer boroughs," said Audrey Silk, a leader of a group that seeks to repeal the city's smoking ban. "They're letting you smoke."

When the ban took effect nine months ago, disagreements over the public health and economic implications prevailed. Some establishments searched for loopholes in the law, like the Oak Bar at the Plaza Hotel, which sought to present itself as a cigar bar exempted from enforcement. In large measure, these efforts failed, and smokers moved to the streets, the warm weather making the ban's first months somewhat easier on them.

Open resistance to the ban has been muted, coming mostly in the form of lawsuits, including one filed in Federal District Court in Manhattan just before Christmas by the Players Club, seeking to overturn the city and state antismoking laws. As the weather has turned, though, smokers have taken up secretive civil disobedience.

In the past few weeks, it has happened in about half a dozen bars that were visited over five or so nights. Smokers themselves discussed the phenomenon freely; bartenders were interviewed with the assurance that they would not be named and that identifying details of their establishments would not be revealed.

In each place, it was clear when the moment to light up had arrived. It was preceded by a sensation of being unmasked — a relief, of sorts — the kind that comes of knowing one is among friends.

It is a phenomenon not unlike what happened to Mayor Rudolph W. Giuliani's crackdown on jaywalking, when police officers working the streets seemed to decide that, you know what, some New Yorkers were just going to jaywalk at some intersections.

With smoking, too, the setting can be almost as important as the hour of the night. The occasional sudden transformation into a smoking club does not happen in every place. Stay late on a temperate night at Union Pool, a shiny pickup joint in Williamsburg that offers pictures of naked women on the walls and the rattle of the Brooklyn-Queens Expressway overhead, and it is likely the moment will never come. There are too many people, and too many windows, and besides, outdoor space is ample.

The opposite also holds. Setting can trump the hour of the night, and smoking can start before 9 p.m., but usually only when the nature of the place is so entwined with notions of decadence and indulgence that few behaviors are questioned. At the Buzzcocks show at Irving Plaza last month, for instance, even the uptight young woman who turned her head to shush other patrons (apparently she was having trouble hearing the punk rock music) held a lighted cigarette.

Ordinarily, though, even in the bars most amenable to smoking, time is the common controlling factor.

There is, for instance, a bright and festively ornamented bar in Brooklyn where a tight group of regulars gathers nightly to drink away the day's frustrations, to work crossword puzzles and argue word derivations. Among other attributes, the place is perhaps the only etymology bar in the city, and its character changes depending on the hour of the day. After a certain point, when only those well-known customers remain, the bartender, who has long since forsworn smoking and drinking, will sometimes lock the door.

And all who remain know the significance of the turning of the bolt.

What happens after the silent declaration that the rules have been lifted is the same wherever you go.

In the far East Village on Christmas night, a silvery Zippo lighter rested on a pack of Marlboro Lights, right there on the bar just a short walk from the Ms. Pac Man machine. The sight was jarring in its familiarity. What bar did those same items not decorate just a year ago?

The smoke that filled the air announced itself, if only because it had been gone long enough to let eyes and noses forget its taste. The smoke-filled bar, it said, was back.

"It never really left," the bartender said, "depending on the time of night or what the clientele is."

Over in a corner, Michael Reiss, of Brooklyn, sat talking with friends. They arranged themselves loosely around a table by a window.

"Smokers in New York City are going to find what they need to do, what they want to do," Mr. Reiss said. "Here, even if you have an outdoor patio, you're going to freeze. You have bars that are going to let it go."

So, knowing that the moment will come, the smokers sit inside these days, and they hold off their cravings as long as they are able. They may even bundle up and go outside once or twice for a light, putting napkins over their drinks like Southern Californians.

In between trips, they wait.

And then the moment comes, and it is like dancing — it is shared and exuberant and wild. It came after midnight one night last week to a dark and narrow room the shape of a railroad apartment in south Brooklyn, where Christmas lights and candles flickered. A sign on the wall announced that smoking was disallowed. Bodies were sloped lazily on couches. A man on a bar stool had his hand inside the low-slung waistline of his date's jeans.

Boots and Converse All-Stars slapped the floor as the revelers negotiated one another, moving and talking and yelling and smoking. They were in for the night. Long after 3 a.m., a bartender out from his post flicked lighted matches at his customer's feet, laughing and watching the matches expire on the wet floor.

"Dance," the bartender cried.

Up and down the bar from the door to the back wall, the air grew thick and tight and noxious and hazy.

"O.K.," said Matt Taylor, 23, a tourist visiting from Texas. "Everyone's smoking cigarettes. I'm just making sure. . . . "

He let the thought trail off, and was quickly reassured that despite what he had read about New York, smoking was permitted in this bar, on this night, at this hour.

His verbal reaction was overwhelmed by the magic of jukebox speakers, through which Joe Strummer announced from somewhere beyond the great divide that he was still, in fact, the all-night drug-prowling wolf who looks so sick in the sun, and furthermore that he was only looking for fun. His voice faded out and Paul Westerberg's replaced it, reminding a flight attendant who once told him not to smoke that she ain't nothing but a waitress in the sky.

"Who's got an extra cigarette?" called the bartender, and it turned out that just about everybody did.
 
 
 
 



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June 20, 2004
        DR. BLOOMY IS IN
        Nosy Health Dept.'s Personal Health Quiz
        By Jeremy Olshan

Asia Friedman discovered that a trip to Dr. Bloomberg is a far more probing encounter than a visit to her family doctor.

The 29-year-old Park Slope student, who signed on to take part in a city Health Department medical survey, was peppered with dozens of questions on topics ranging from her sexual preferences to her phones and to recreational drug use when she showed up for her "check up" last week.

Friedman was among the first of 2,000 guinea pigs, randomly selected from all five boroughs, that Health Department officers plan to poke, prod and question as part of the first citywide study to physically measure residents' health conditions.

Participants are being paid $100, and the city has given assurances that information will be treated confidentially.

While the study will help assess the rate of diabetes, high cholesterol and depression, it will also give city officials a data pool covering many aspects of New Yorkers' personal lives.

The Post accompanied Friedman on her trip to a medical clinic in Downtown Brooklyn, where she was tested and interviewed for two hours.

Health officials began by thanking her for agreeing to take part and asking her to sign a waiver allowing her blood samples to be frozen for future study.

She provided blood — three small vials and two super-sized ones — and urine samples before being ushered into another room.

Friedman, completing her doctorate in sociology at Rutgers University, was introduced to a nurse, who began reading questions from a laptop computer.

Topics ranged from diet, nutrition and exercise to what kinds of phone lines she uses in her home.

Questioned about her smoking history, Friedman said she was confused about the limited choices she was offered as possible answers.

The nurse told her she was not allowed to diverge from the script to interpret.

"I told her that I used to be a social smoker," Friedman said. "But the minimum choice I was given was a pack a day — and I never smoked anywhere near that much."

After an hour of interrogation, the nurse stopped to measure Friedman's weight, height, waist, arm and bicep, and took her blood pressure three times.

Next, Friedman was left alone in the room to answer the sex and drugs portion of the study on a touch-screen computer.

The first question popped up. "Have you ever used cocaine?"

After going through a laundry list of drugs, the questions shifted to number of sexual partners, sexual orientation — and history of imprisonment.

Finally, Friedman was told she would receive a full health report in a couple of months and was given two $50 postal money orders.

"I'm not sure how much they're going to learn from this," she said. "But I think it was worth the money."

June 17, 2004
        SMOKE BAN STAYS:  SHELLY
        By Ken Lovett

Albany -- Assembly Speaker Sheldon Silver yesterday snuffed out the hopes of bar owners who want the Legislature to ease the tough statewide anti-smoking law this year.

Silver says he opposes legislation that would allow smoking sections in bars and taverns that install ventilation systems.

"I think the law works well," Silver said.

"I don't believe that there has been a significant loss of business."

He said the Assembly would not act on the bill, despite support from at least 25 Democratic members.

Bar and tavern owners say they are being hit hard financially because of the law.

June 13, 2004
        BARS THAT BLOW OFF BAN MAY LOSE LIQUOR LICENSE
        By Kenneth Lovett

ALBANY — Bars owners have been warned in threatening government letters that they'll be stripped of their state liquor and lottery licenses if customers continue to smoke, The Post has learned.

The state Health Department, state Liquor Authority and some local county health departments have sent letters to several upstate bars believed to be flouting New York's smoking ban.

"All other business licenses be revoked or suspended, including your liquor and/or lottery licenses," warned Health Department principal sanitarian Leonard Arias in the letters.

Among several bars in Hornell that received warnings were The Angel and Codder's sports bar.

The Liquor Authority, which can suspend liquor licenses when a business is in violation of any state or local ordinances, has also sent out warnings.

Bars owners, already struggling financially because of the law, were outraged to learn they can lose their licenses over the issue.

"The smoking ban itself is putting enough people out of business," said Robert Bookman, counsel for the New York Nightlife Association.

"[Now] the state is threatening to put them out of business for the alleged violation of an ill-considered law."

In the city, bars face closure if they breach the smoking ban more than three times, but it has not been enforced to date.

City health officials say they do not "routinely" refer violators to the Liquor Authority.

June 13, 2004
        PUFF OR SNUFF
        By Sam Smith

Merav Brooks' cigarettes have been snuffing themselves out, and she doesn't know why.

"I keep thinking it's because my ashtray is wet," she said, taking a smoking break outside her job at HBO.

But it's not her ashtray, and soon every New York smoker will notice the same problem.

By June 28, all cigarettes delivered to the state must be self-extinguishing, using new "banded" paper that kills the flame at intervals if it's not puffed.

Some of the new cigarettes, like the Kent brand that Brooks was smoking, have already made their way into the city.

"No wonder they keep going out on me," said Brooks, who was less than elated with the new smokes.

"You don't want anyone else putting out the cigarette for you — there are enough people in the city trying to stop you smoking."

Lorillard, which produces brands such as Kent, Newport and True, is the first tobacco company to ship the new cigarettes to New York.

The other major tobacco companies — R.J. Reynolds, Philip Morris and Brown & Williamson — say their products will be ready by the deadline.

New York is the first state in the country to adopt a safe-cigarette law, which passed last December.

The state's Office of Fire Prevention and Control developed the safety standards, which it hopes will cut down on the 100 to 200 people killed in cigarette fires in the state each year.

"Fires usually start accidentally," said spokesman Peter Constantakes. "These [new cigarettes] will reduce the risk and hopefully save lives."

Cigarette companies, which maintain cigarettes don't cause fires; careless smokers do, say the state should not get its hopes up.

"Just because these cigarettes are produced to self-extinguish, they are not 'fire safe,' " said R.J. Reynolds spokesperson Ellen Wallace. "We don't want adult smokers to be lulled into a false sense of security."

Some of those adult smokers who tested the new Lorillard cigarettes had mixed reactions.

Sadia Zafar, a smoker in Midtown, said she welcomed the new feature. "If you're on the phone and you forget your cigarette, you know it's going to die out," she said. "It's safer."

Tracey Florio, a 37-year-old bookkeeper, said she doesn't care, but her husband will. "I could be cooking and I leave a cigarette in the ashtray, and it burns down to the filter," she said. "My husband has a problem with that."

Tobacco companies say the new cigarettes cost more to produce, but that they won't pass on the added expense to customers.

June 9, 2004
        SILENCING A CITY
        Editorial

Mayor Bloomberg says 1,000 noise complaints a day — from offenders like Mister Softee ice-cream trucks and yelping pooches — justify a major overhaul of the city's noise code.

What he doesn't say is how many kids brighten up at the sound of the Mister Softee jingle, which he'd curb. Or how many ice-cream-truck drivers rely on it for their livelihoods.

Mayor Mike gives no figure for the number of dog owners who rely on the companionship of their pets — but would be hard-pressed to keep their barking within Hizzoner's short time limits.

He makes no mention of the sometimes life-saving benefits of the air conditioners he'd outlaw, the social pleasures at the bars and nightclubs he'd muffle or the economic boost from sometimes loud development and repair work he'd regulate.

Nor does he speak much of the cost to bring such activities into compliance.

Let's get real here: New York is a city.

A large, vibrant and, yes, noisy city.

"Noise disturbs our sleep, prevents people from enjoying their time off . . . [and] often leads to altercations," argues Hizzoner. But if it's quiet he seeks, well . . . that's why God made Montana.

OK, some noise regulation is not entirely ludicrous, even in hustle-and-bustle New York.

And after three decades, it's probably time to revisit the code.

Nor is it clear that Mayor Mike intends to play Mommy Mike in regulating noise as he has with smoking.

Rather, he may have learned from the uproar over his tobacco ban and his shelved plan to license late-night clubs.

Indeed, joining Hizzoner to present the noise-code plan were two potential foes on this issue — Robert Bookman of the New York Nightlife Association and Francis McArdle of the General Contractors Association. Even City Council Speaker Gifford Miller, a likely mayoral challenger, joined in.

Clearly, Mayor Mike wants to skirt confrontation this time around.

But achieving "balance" won't be easy. One idea, for example, is to give cops more discretion. Will that mean more harassment of businesses and individuals — a la the city inspectors who raid shops in search of contraband ashtrays?

Will it mean Mayor Mike has a new revenue-raiser to help plug budget gaps?

Of course, if all of this sounds petty, maybe it's because Gotham is used to far weightier woes — like, say, drive-by shootings and 2,000-plus murders a year.

Such horrors seem to be history now: The murder toll has been less than 600 for two years running.

But overregulation — noise cops on top of health-care monitors and ashtray police — will create its own blight.

Gotham is again a great city.

But it's a city; let it live as one.

June 3, 2004
        SMOKE BAN HITS 'HOODS
        By David Rabin
        David Rabin, co-owner of Union Bar and Lotus, is president of the New York Nightlife Association

THE City Council has granted development rights to 16 sites in Soho and Noho, provided that no liquor licenses of any kind — not even restaurants — be granted in those new buildings.

Meanwhile, Manhattan Community Board 3 has declared a moratorium on the consideration of all liquor licenses within its borders. That's only advisory — but it sends quite a message to local politicians and to the State Liquor Authority. Similarly, residents of St. Mark's Place (that quiet, suburban oasis) have threatened to sue the SLA to halt the granting of any further licenses on their block.

Every single article on these developments mentions one thing — the increase in street noise since the passage of the smoking ban.

The exact same conversation goes on at Community Boards 2, 5 and others. New applicants in residential areas are grilled mercilessly: What time do you plan to close? What are you going to do with your smokers?

And the answer is . . . "Nothing." It has to be — because there is nothing we bar owners can do under the current law, except put our smokers out in the street and hope not to stir up justifiable community resentment and even noise tickets, or let them smoke inside and risk summonses that could put us out of business.

All our residential neighbors want is a good night's sleep. It's hard to fault them for not seeing the future and the multiplier effect on the city economy if restaurants and bars are phased out of many neighborhoods.

The only real answer is to get the smokers back inside the bars, where they belong. The Meier/Destito bill pending in the state Legislature does so in a way that should answer all factions in a satisfactory manner.

In a nutshell, if food revenues are less than 40 percent of a bar, tavern or club's business, and it's willing to install the same kind state-of-the-art air filtration equipment that's used in hospital infectious-disease wards (which can make the air in the bar far cleaner than that in the street), it would be allowed to permit smoking once again.

If that bill carries in Albany, we'd still have to work to change the New York City Smoke Free Air Act. But it would be a start.

We're not talking about family restaurants or fine dining establishments. Even though the city Health Department and smoking-ban supporters desperately try to treat restaurants and bars as one, we're only talking about bars, taverns and clubs. That's where the economic damage of the ban has been done. Those are the places that stay open late enough to be forced to keep their neighbors awake by obeying the law and putting their smokers outside.

If, as government officials allege, business has improved so much since the ban, why would any operators even bother to install the technology? The supposedly improved market should lead them to stay "smoke free."

No organization supporting changes to the smoking ban is pro-tobacco. None of us doubts the dangers of being a smoker. But the real issue is the cloudy one of second-hand smoke — and the answer is filtration.

Summer is upon us; the social scene will once again shift outside to the sidewalks in front of our bars. The Legislatlure should pass this bill, which takes the employee health issue out of the equation and gives operators and customers a choice once again.

May 16, 2004
        PIPE DREAMS
        By Chris Bunting

New York pub owners are pinning their hopes on a 90-pound gadget to put butts - and cash - back into bars.

It's called the Airistar 1000, an air purifier that removes dangerous microscopic contaminants - like germs, fungal spores, even anthrax - from the air.

Spurred on by bar owners who say the smoking ban has extinguished their take by as much as 40 percent, two Albany lawmakers are finalizing identical bills that would permit smoking where filters like the Airistar 1000 are installed.

The $3,500 gizmo - so named because it cleans 1,000 cubic feet of air per minute - can eliminate 99 percent of cigarette smoke in a matter of minutes.

Manufactured by Illinois company Airistar, it's equipped with wheels for mobility and can blend into the background of a bar as a table.

"These state-of-the-art filters make room air cleaner than what you breathe outside," New York Night Life Association spokesman Basil Anastassiou said after a recent demonstration in the office of Assemblywoman RoAnn Destito (D-Rome). State Sen. Raymond Meier (R-Western) is also sponsoring a similar bill.

According to he company's advertising manager, Sean Burke, 115 Airistar 1000s have been sold around the country since they went on sale eight months ago, and 19 were bought by restaurants and bars.

Sam Pappas, owner of Market Square, a bar 20 miles outside of Chicago, installed the gadget to quell customers' complaints about smoky air, despite the fact that Illinois hasn't imposed a smoking ban.

"We hold events ranging from birthdays to Super Bowl parties, and I'd get complaints about the mist of smoke," Pappas said. "Now the place is crystal clear."

Even if Albany's new laws are passed, the Big Apple won't be immediately inhaling the benefits.

"New York City's laws are more stringent than the bill I'm proposing - and the city's law would preempt it," Meier said.

"However, passage of my bill might persuade city council members to follow suit."

The New York Night Life Association is armed with a petition addressed to Gov. Pataki, Assembly Speaker Sheldon Silver, and Senate Majority Leader Joseph Bruno signed by 40,000 from bar patrons and workers - one-quarter from New York City - asking that smoking be permitted in air-filtered bars.

Almost a year after Mayor Bloomberg's smoking ban went into effect on July 24, 2003, New York City bars are still feeling the economic burn.

"The city's bars lose on average an estimated 15 to 19 percent in revenues because of the ban," said Brian Nolan, executive director of United Restaurant & Tavern Owners of New York, Inc.

Interviews with more than a dozen bar owners and managers conducted by The Post show the revenue loss is often even more extreme.

Fiddlers Green, a bar on West 48th Street, shut down April 1.

"Sales were down 25 percent," said Eugene Wilson, the bar's manager. "Three of our waitresses left because they weren't making enough in tips."

Sandee Wright, the co-owner of Whiskey Ward on Essex Street, said she was battling a 30 to 40 percent drop in sales.

"I've had to lay three people off, starting with my doorman - my husband does it for free now," she said.

May 15, 2004
        ONE-THIRD BLOW OFF CITY CIG TAX
        By David Seifman

A third of smokers here aren't paying the $1.50-a- pack cigarette tax - leading the city health commissioner to warn that smuggled smokes are "the single biggest threat" to the city's tough anti-smoking law.

"There has been a substantial increase in the purchase and consumption of nontaxed and smuggled cigarettes in New York City and other high-taxed jurisdictions," Thomas Frieden told a Crain's New York breakfast forum.

"This is probably the single biggest threat in progress to tobacco control in New York City."

Cigarette sales in the five boroughs collapsed after the city increased its portion of the tax from 8 cents to $1.50 a pack on July 2, 2002.

In the next 12 months, 182 million packs were sold - compared to 342 million in the previous 12-month period.

Sandra Mullin, a Health Department spokeswoman, said two-thirds of smokers who responded to a recent survey said they are buying their cigarettes legally.

"Others are purchasing cigarettes from sources such as Indian reservations, through the Internet, outside the U.S., from other states, through the mail," she said.

A pack of Camels was selling for $6.75 yesterday at the smoke shop across from City Hall.

But on the Internet, the upstate Seneca Indians were peddling a carton of 10 packs for $30.75 - less than half the regular retail price.

Frieden called on the federal and state governments to enforce the law on Indian reservation sales. By law, city residents can purchase only two cartons of untaxed cigarettes at a time for their personal use.

"The state does have the implementation authority," declared Frieden. "They went to the Supreme Court to get it and they're not using it."

May 13, 2004
        SMOKE SCREENING
        By Brooks Boliek and Russel Scott Smith

AUDREY Hepburn did it. So did Humphrey Bogart, Bette Davis, Nicole Kidman and, famously, Olivia Newton-John. But you'll never see another movie star smoke on screen if the anti-smoking lobby has its way.

Critics of the tobacco industry want Hollywood to treat on-screen smoking the same way it treats indecent language and nudity - with an R rating from the Motion Picture Association of America (MPAA).

It's a change that would effectively ban smoking from many movies, since an R rating hurts a movie at the box office, and producers regularly demand that directors deliver a crowd-friendly rating.

Congress is listening to the activists: On Tuesday, the Senate Commerce Committee invited anti-smoking witnesses to testify on Capitol Hill.

"When are we going to treat smoking as seriously as we treat the word 'f - - - '?" Dr. Stan Glantz asked the panel. Glantz, a leading tobacco-industry opponent, is a professor of medicine at the University of California.

"If you use the F-word once in a sexual context, you get an R rating."

Glantz's salty language wasn't appreciated by Sen. John Ensign (R-Nev.), who reminded the professor of the Senate's standards of decorum.

But while Glantz apologized for using the word, he said he used it to make a point.

"I did it quite deliberately," he said. "The use of the word will get you an R rating. It doesn't kill you."

Glantz and other anti-smoking activists say that giving an R rating to movies that contain smoking would prevent 200,000 children a year from lighting up. They argue that 390,000 children develop a tobacco habit because of what they see on the big screen.

Though there is no legislation pending that would force the MPAA to modify its ratings system, Sen. Ron Wyden (D-Ore.) said the movie industry has to step up or it might face such a law.

MPAA chairman Jack Valenti testified in defense of the current system.

"I am opposed to smoking on the screen and off," he told the Senate panel.

"But if the director feels it's essential to the time and place, or a quick way to identify a character's traits, it's his right to tell the story as he sees fit."

It's hard to imagine countless classic movies without those smoking scenes, say experts.

"Cigarettes can instantly convey what a character is like," says Martin Grove, on-line columnist for the Hollywood Reporter.

"Think of Lauren Bacall in a '40s movie like 'The Big Sleep.' When she lights up, it shows that she's a liberated woman, and you don't want to fool around with her."

Cigarettes can indicate elegance - like a tuxedoed Fred Astaire pulling a smoke from a shiny case in one of his '30s musicals - or desperation, like in "Casablanca," when Humphrey Bogart's ashtray fills with butts as he tries to drink away thoughts of Ingrid Bergman.

But according to the anti-smoking lobby, it's not art that Hollywood is after in these scenes, but cash.

At the Senate hearing, Glantz suggested that "product placement" money was changing hands somewhere, even though that would violate the national accord reached by the states and the tobacco industry on advertising.

"If they're getting paid, then they are corrupt," Glantz said. "If they're doing it for free, then they're stupid."

Valenti said that was ridiculous.

"I have been unable to unearth one jot of evidence of product placement with cigarettes," he said.

"The MPAA doesn't want to make smoking one of the triggers for a film rating or to add a T for tobacco designation because that would open the door for everyone's pet causes.

"Alcohol abuse, murder by gun, unsafe driving, smoking, obesity . . . To start talking about things that kill people, the rating system isn't capable of bearing that burden."

May 13, 2004
        NYERS KICK 'BUTT'
        By Stephanie Gaskell

New Yorkers smoked 700 million fewer cigarettes last year, health officials said yesterday.

Health Commissioner Thomas Frieden, who drafted the city's tough smoking ban, touted the new figures - released as part of a Baruch College poll of 10,000 residents - at a budget hearing at City Hall yesterday.

"This is extraordinarily good news for the health of New Yorkers," he said.

The poll showed that 19 percent of New Yorkers smoked in 2003, compared with 22 percent in 2002.

The city's original ban, which prohibited smoking in virtually all public places but allowed for some exceptions, was replaced with a much stricter statewide ban in July.

A critic charged the city isn't measuring how many New Yorkers are illegally buying their butts outside the five boroughs to evade a $1.50-a-pack tax enacted in July 2002.

"While the mayor and the health commissioner are praising the drop in cigarette consumption, no one has lifted a finger at the devastation caused by the transfer of sales from legitimate store owners to street-corner hustlers," said Richard Lipsky, spokesman for the Neighborhood Retail Alliance.

"Bodega owners, green grocers and newsstand dealers are losing $250 million a year."

May 12, 2004
        MIKE HAILS BID TO RAISE CIG AGE
        By Stephanie Gaskell

Mayor Bloomberg supports a move to raise the legal tobacco- buying age to 19.

"I certainly would not be opposed to raising the age," the mayor said yesterday during a press conference in Chelsea. "Anything you can do to keep children from smoking is probably a very good thing."

Under current law, tobacco products can't be sold to anyone under 18. But earlier this week, two state legislators introduced a bill to hike the minimum age to 19.

Bloomberg banned smoking in virtually all public places in the city last year. He allowed for some limited exemptions, but those were wiped out by a much stricter statewide ban. The mayor also increased the city's tax on cigarettes to $1.50 a pack.

"I've done what I think I can to discourage smoking in this city," Bloomberg said.

But apparently, he didn't think about raising the age limit.

"It hadn't occurred to me that they would raise the age," he said.

May 11, 2004
        MEASURE WOULD UP CIG AGE TO 19
        By Kenneth Lovett

ALBANY - Get set for the next big cigarette fight: Lawmakers yesterday announced a push to raise the legal tobacco-purchasing age to 19.

The current age to buy tobacco products is 18.

Bill sponsors Assemblywoman Sandra Galef (D-Westchester) and Sen. James Alesi (R-Rochester) said the idea behind the bill to raise the legal age is to cut down on smoking among high-school kids.

Many students get their cigarettes from 18-year-old classmates who can purchase them legally, the two said.

"Just bumping it up a year will make it more difficult for kids to get their hands on cigarettes, and hopefully reduce the number of underage smokers who become addicted every year," Galef said.

Alesi said he would prefer to raise the legal age to 21, but felt 19 would give the measure a better chance of passage.

Anti-smoking groups like the American Cancer Society back the bill, which has already moved through the Assembly Health Committee.

About 30 percent of New York's high-school age students are regular smokers, said Donald Distasio, Eastern Division CEO of the American Cancer Society.

But others, including the New York Public Interest Research Group, called on the Legislature to leave the law in place as it is.

"Eighteen-year-olds are adults," said NYPIRG's Blair Horner. "If you're old enough to vote, there's no reason why as adults you should be restricted" from having the choice to smoke.

Horner also said "there's no proof that raising the age will do anything other than increase illegal sales of cigarettes."

In recent years, the Legislature has taken aim at smoking, substantially raising the taxes per pack while also banning all smoking in bars, restaurants and other public areas.

The state Conservative Party yesterday renewed its push for lawmakers to amend the smoking ban law to allow for the creation of separately ventilated smoking areas.

Such a change has been deemed a long shot this year.

April 22, 2004
        CITY PUFFED WITH PRIDE OVER CIG-PATCH SMOKING 'CURE'
        By Stephanie Gaskell

One in three New Yorkers who received nicotine patches from the city were still not smoking after six months, officials said yesterday - raising eyebrows with a figure that's double the norm.

Health Department officials attributed their success to three key factors - the patches were free, the cost of cigarettes has soared and the city has banned smoking in indoor public places.

"There were few, if any, barriers," said Dr. Nancy Miller, assistant commissioner for tobacco control.

Previous studies have shown success rates half of what the city had.

A study published in the New England Journal of Medicine in 1999 found 16.4 percent of smokers who used the patch stopped smoking over roughly the same time period.

A similar 2003 American Cancer Society study shows a 17.7 percent quit rate among smokers who used the skin device.

"From general real-world experience, this doesn't happen that often," said Joel Spitzer, a Chicago-based smoking prevention and cessation consultant.

"Even the patch companies don't report those sort of results."

Last April, the Health Department handed out free patches - worth up to $100 for a six-week supply - to nearly 35,000 people. Health officials called nearly half the participants after the first three to four weeks to see how they were doing. Another call was made after eight weeks.

After six months, officials called some participants and asked if they had lit up in the past seven days.

Nearly 33 percent of those contacted said "no," including 69-year-old John Mackin of Chelsea, who smoked a pack a day for 45 years.

"I tried to stop four, five, six times . . . nothing was working," Mackin said. "Without the patches I couldn't do it."

City officials estimated the free patch program saved 1,700 lives.

[NYC C.L.A.S.H. Note: They called SOME participants (out of a total of near 35,000) and asked if they had lit up IN THE PAST SEVEN DAYS.  Of those "some," 33% REPORTED "no" (to the people who they got free stuff from. Do they show their gratitude by telling them their gift was a dud?).  Apply the magic of extrapolation to the unknown number of people they DIDN'T SPEAK TO and the "some" that they did (33% of 35,000) and voila!.....  you get the "over 11,000" that the other articles report DOH Commish Frieden says quit.  Then you have to scratch your head at how Frieden pulls out from his hat the number 1700 lives saved of the over 11,000 that quit due to the use of the patch.  Why isn't it the entire 11,000??  Doesn't quitting smoking immediately return immortality??  Frieden should quit his day job.  He's got promise in Coney Island as the next fortune teller.]

April 9, 2004
        SMOKERS LOSE ANOTHER ASH FRAY
        By Stephanie Gaskell

New York's smoking ban does not violate the Constitution, a federal judge ruled yesterday.

NYC CLASH, a smokers-rights group, filed a lawsuit last year against the city and state arguing that the ban violates several constitutional rights.

But U.S. District Judge Victor Marrero ruled yesterday that "New York state's and New York City's stated basis for enacting the smoking bans - protecting its citizenry from the well-documented harmful effects of [secondhand smoke] - provides a sufficient rational basis to withstand CLASH's constitutional challenges."

CLASH - Citizens Lobbying Against Smoker Harassment - also argued that the scientific data used in passing the law was flawed.

April 8, 2004
        POL WANTS CIG-VOTE REDO
        By Stephanie Gaskell

City officials aren't listening to bar owners who say business is down because of the smoking ban, according to a City Council member who voted for the measure.

"I always said that if the ban was hurting business we should take another look at it," said Councilman Tony Avella (D-Queens).  He wants the council to hold hearings on the economic impact of the year-old ban.

City officials released data earlier this month showing that bar and restaurant business is up 8.7 percent in the past year.  Critics, however, say that figure is flawed because it includes non-bar restaurants and fast-food joints.

Avella said he believes there's a lot of support in the council for revisiting the issue.

April 4, 2004
        MIKE'S BAN, OUR PAIN
        By Brian Nolan
        Brian Nolan is executive director of United Restaurant & Tavern Owners of New York.

THE Bloomberg administration's much- reported statement on the healthy state of New York's hospitality industry is a complete distortion of the facts.

The combined effort by four of city agencies indicated in no uncertain manner that business is booming under the mayor's strict smoking ban: Spending in restaurants, bars and taverns is up by 8.7 percent since the imposition of the smoking ban on March 29, 2003, the report claimed. Revenues were up and taxes were up and workers were happier and healthier.

Here's the truth: What was up was the collection of the General Corporation Tax and the Unincorporated Business Tax from the entire hospitality sector. But that is not the sales tax - it's no reflection of how much business bars and restaurants are doing on a daily basis. That picture is not so rosy.

That 8.7 percent increase reflects many things - new fast-food franchises and big-box chain restaurants, for starters. Existing bars and restaurants? Many have been surviving since 9/11 by raising food and drink prices, laying off or restricting employment and cutting costs - running meaner and leaner while the economy recovered. Some bar owners have even foregone salary in order to increase cash-flow.

Furthermore, when calculating these taxes, depreciation allowances on recently purchased equipment is taken into account. If less money is invested, as has happened since 9/11, the potential exposure to these taxes is increased.

Starbucks is doing well, but your neighborhood tavern is not. What has been the backbone of New York's social scene for generations is losing its vitality in a bad B movie called "Gone with the Smoke."

Customers don't like standing out in the cold - and when they do, they're not refilling their glasses. That's Business 101. (Forgive me, Mr. Mayor, you'll have to stay back a year and repeat the course.)

Our mayor said that "only a small handful of bars have been adversely affected by the smoking ban." He must have very large hands: In a December survey by the state Restaurant Association, 76 percent of responding New York City bars and restaurants said their sales had dropped by an average of 25 percent since April 2003. Even Dr. Thomas Frieden just admitted that free-standing bars are suffering economic hardship.

Here's another measure: The city's Wholesale Beer and Liquor Distributors admit privately that on-premise deliveries (which is basically sales to bars and restaurants) are down by as much as 20 percent since April 2003.

Bartenders and waitresses who were the intended recipients of a safer workplace now find themselves outside the bars - having a smoke themselves, or looking for a second job. Tips are down even in the best restaurants, since the single-malt and designer-vodka crew abandoned their after-dinner drinks in favor of a cigar outside.

The smoking ban was rushed through without due consideration of its negative impact on the small business owners who operate bars, taverns, clubs and restaurants. If a Starbucks outlet suffers a drop in business, it is a small drop in a very large bucket. When the neighborhood "local" or a family-owned restaurant loses business, it goes out of business.

The state Liquor Authority awarded 1,416 new licenses in 2003 in New York City compared to 1,361 in 2002. Most of those new licenses went to replace bars and restaurants that had gone out of business. No prizes for guessing why.

What is needed is a compromise to protect the thousands of small-business owners who make New York City the undisputed hospitality capital of the world. This is the city that never sleeps, because New Yorkers always had places to go to relax, converse, eat, drink - and, for many, enjoy a smoke. Disrupting that social rhythm may well make New York the city that yawns and goes to bed.

The mayor must stop his self-serving allegations of prosperity for the hospitality industry and realize he is driving small business owners and entrepreneurs out onto the street, just where he sent their customers.

Do you know the difference between politicians and golfers? Golfers can't improve their lie.

March 30, 2004
        MAYOR: MY SMOKE BAN IS POPULAR
        By Stephanie Gaskell

Mayor Bloomberg has a warning for anyone thinking about running against him in 2005: don't try to reverse the smoking ban.

Several potential candidates for mayor have told The Post they favor some sort of change in the year-old law, which bans all smoking in bars and restaurants.

"Those who want to run against it, good luck having a campaign on bringing back smoking," said Bloomberg. "This will turn out to be one of the most popular things that the administration has done."

One potential rival said it's exactly that attitude that will hurt Bloomberg's chances of getting re-elected.

"It should come as no surprise that the mayor doesn't seem to hear the voices of a lot of small businesses and an overwhelming number of New Yorkers who think that the bill went too far," said Rep. Anthony Weiner (D-Queens).

"If the mayor wants to know how this is going, he shouldn't look at the polls - he should visit the bars," he added.

March 29, 2004
        MOTHER BLOOMBERG
        Editorial

Don't take it personally, but Mayor Bloomberg thinks you smoke too much, eat too much and drink too much.

That is, you take lousy care of yourself.

But don't fret.

Mama Mike is here.

He knows best.

And he'll make it all better.

Like it or not.

That's the message behind a huge expansion the mayor plans for city government's role in maintaining the health of every single New York resident.

The plan, announced last week, focuses on 10 areas of health care. It's so extensive, intrusive and government-centered, it'd make Hillary Clinton blush.

Its overriding goal: To have government intervene in the health care of everyone in the city whenever officials believe they can make a difference.

No one opposes better health care, of course. But plenty of New Yorkers will resent Mama Mike looking over their shoulders - telling them what to eat and drink, to quit smoking and to get regular medical checkups. All of that's part of the mayoral plan.

It may all be good advice. But it's grossly inappropriate for government to be playing Mommy in such a way. (Plenty of folks don't like to be told what to do by their real moms.)

Think about it: One day you have a baby; the next day there's a knock on the door - from a city bureaucrat.

That's right: Bloomberg & Co. want to begin home visits to every new mother in select neighborhoods.

Nor is it certain the harping will prompt desired action: After all, if New Yorkers don't care enough to see a doctor on their own, why expect them to suddenly change their lifestyles on the basis of a flier they get in the mail?

Besides, health advice is notoriously muddled (if not wrong): One day, for instance, you're told to eat margarine; the next day - butter's actually better.

Similarly, while Mike claims his near-blanket smoking ban saves lives by protecting folks from second-hand smoke, there's no scientific evidence to back him up.

Meanwhile, Gotham already offers more government services than any other big city in America. And taxes more than any other city to cover the cost.

Where will the money come from to pay for this big nanny-state expansion?

Yes, many of Bloomberg's ideas amount to merely "advocating" for this or that - or educating the public through fairly cheap ad campaigns.

But some of the programs might cost plenty.

How much?

Bloomberg hasn't said.

And one part of the plan speaks volumes about the mayor's concern (or lack of it) for fiscal probity: Even as he complains that Albany has saddled him with a budget-busting Medicaid bill, City Hall intends to step up its efforts to recruit new Medicaid patients.

Which will send costs soaring.

The fact is, Mike really doesn't want to contain Medicaid's growth so much as he wants someone else - namely, the state - to pick up the tab.

Which will make New York's already anemic economy even sicker.

Whatever happened to chicken soup, anyway?

March 29, 2004
        BIZ IS $MOKING
        By Stephanie Gaskell

Business is "thriving" a year after Mayor Bloomberg banned smoking in bars and restaurants, health officials said yesterday.

City officials will formally present "The State of the Smoke-Free New York City: A One-Year Review" today.

The rosy report shows that bar and restaurant owners reported an 8.7 percent increase in tax receipts last year; about 10,600 new jobs were created; and 97 percent of bars are complying with the law, which was passed March 30.

"The law has not hurt the bar and restaurant industry," Health Commissioner Thomas Frieden said. The report includes two recent polls showing that most New Yorkers like the ban. But many bar owners disagree.

"If the ban was good for the bar business, why has no one ever built a nonsmoking bar before the ban?" asked David Rabin, president of the New York Nightlife Association.

Rabin said the city's data is flawed because "they lump bars and taverns in with fine dining and with Starbucks and fast-food restaurants."

Rabin also questioned whether the new jobs were created "because people in the service industry have taken second jobs to make up for lost tip income."

March 28, 2004
        THE STATES' TOBACCO SLUSH FUND
        Editorial

Remember that humongous cash settlement that 46 state attorneys general reached with the tobacco industry way back in 1998?

The $206 billion collected from so-called Big Tobacco was to reimburse the states for increased health-care costs inflicted by the noxious weed.

Now the General Accounting Office has uncovered the truth behind the tort-bar's biggest legal victory ever: Little of the money is going to health care.

A comprehensive audit by the GAO, Congress' investigative arm, shows that state lawmakers across the nation are using more and more of the funds to plug holes in their budgets.

Nationwide, the figure was 36 percent of all settlement funds last year - and will rise to 54 percent this year.

In contrast, just 24 percent of tobacco settlement earnings was spent on health-related programs. And that figure will plummet to just 17 percent this year.

What gives?

Turns out the much-ballyhooed settlement had a dirty little secret: For all their solemn promises and pledges, the states were never legally obliged to spend a dime of their windfall on health care.

"There was no obligation in the settlement to do it, and that was one of the weaknesses of the settlement," admitted a spokesman for the Campaign for Tobacco-Free Kids.

Yet recovering the costs of treating sick smokers was the whole justification for this legal broadside against the tobacco industry.

Indeed, the tort lawyers and attorneys general realized they'd be on shaky legal ground should they sue on behalf of individual smokers - who'd been warned for 40 years about the dangers of smoking.

Instead, they sued on behalf of taxpayers, citing the burden of increased health-care costs. (The lawyers, of course, made tens of millions for themselves.)

From the outset, lawmakers had their own ideas on how to spend the money. Locally, Sen. Charles Schumer thought it should be used to reduce property taxes, while state Senate Majority Leader Joe Bruno wanted it to pay for local tax cuts. Then-Mayor Giuliani thought it would be a great way to pay for renovating old schools and building new ones.

So much for the health-care "crisis."

In fact, the GAO has merely confirmed what an American Cancer Society official said more than five years ago: "Everybody is like vultures over this money."

Remember that when those same birds start circling over the fast-food industry.

March 22, 2004
        PUFF PATROLLERS BURN MIDNIGHT OIL AS CIG LAW HITS MILESTONE
        By Stephanie Gaskell

A year after Mayor Bloomberg banned smoking in bars and restaurants, health officials are now working "late nights" trying to catch illegal puffers, The Post has learned.

Shortly after the ban was put in place a year ago, health officials told The Post that the inspectors would call it quits after 11 p.m.

But last Friday, inspectors made a sweep of several bars on Avenue A after midnight.

"He came in a little after midnight, looked around and left," said Harold Kramer, who owns the Raven bar on Avenue A. "They visited every bar on the block."

"They're just doing it because it's the one-year anniversary."

During the first year of the ban, many bars turned a blind eye to smoking after 11 p.m. But Health Department spokeswoman Sandra Mullin said yesterday that inspectors "will inspect places late nights into the morning, especially when we receive complaints related to violations at those times."

Mullin said the recent spate of late-night visits wasn't part of a crackdown but "we certainly do get after-hour complaints."

Even though health officials said 97 percent of bars and restaurants are complying with the law, the city's 311 line got 2,833 complaints about illegal smoking at bars and restaurants in the past year.

Those that were fined paid a total of approximately $217,000.

"In many parts of town, places have to choose between risking a ticket for allowing smoking inside or getting a summons for the noise of their patrons out front smoking - it's one more catch-22 for the nightlife industry," said David Rabin, president of the New York Nightlife Association.

Bloomberg's landmark ban on smoking in bars and restaurants is still causing a stir a year after it was enacted. But New Yorkers on both sides of the issue seem to agree on one thing: New York City after dark is different.

The tough ban, which took effect March 30, was aimed at protecting bar and restaurant workers from secondhand smoke - but has had an impact that's gone well beyond that.

"It doesn't seem like the city it once was," said Michael Musto, the veteran nightlife columnist for The Village Voice. "But the bright side is that I don't come home smelling like smoke anymore."

Social critics said outlawing smoking never made sense in the Big Apple and believe the last year has proven them right.

Here's social satirist Fran Lebowitz: "It's riddled with hypocrisy . . . If you're really concerned about air quality and you're living in New York City, then you're an idiot."

Anti-smoking advocate Joe Cherner has a comeback: "[The law] is a matter of dignity and respect for workers."

But some proprietors said they've reluctantly had to take on a new role that their customers don't appreciate: smoking cop.

"It's forced us to become police when what we are trying to do is welcome our guests and pamper then - not scold them," Rabin said. "It's made it very difficult for people in the hospitality industry to be hospitable."

"Europeans come over here and they laugh at us," said Gregory de la Haba, a bartender at the 150-year-old McSorley's in the West Village. "They question the democracy of it."

But Bloomberg told The Post that he believes New York "is the same culturally and financially vibrant city it has always been."

So is the ban saving lives? "There's no question about it," said Bloomberg, who predicts it will save 1,000 lives a year.

While the city hasn't yet been able to effectively measure the health effects, city Health Commissioner Dr. Thomas Frieden said the ban helps smokers kick the habit.

"The fact that most places are smoke-free makes it easier for smokers who want to quit," he said.

But former Mayor Ed Koch - who supports the ban - said there may have been less resentment among smokers if Bloomberg had "done it in a more understanding way to the people who are smoking, to say, 'I want to help you quit.' "

March 22, 2004
        FEWER TIPS ON TAP THESE DAYS
        By Stephanie Gaskell

Bartender Shawna Wright's days of breathing in secondhand smoke are gone thanks to the smoking law, and that's fine by her.

But something else is disappearing as well - her tips. And that's not OK.

She said her tips have been down because people are spending less time at the bar and more time outside smoking.

"It was literally like a light switch went off the minute the ban went into effect," said Wright, who has worked at the Whiskey Ward on the Lower East Side for more than four years.

"I'm a nonsmoker," she said. "But I think that in a bar, that's the atmosphere that they're looking for."

Wright said her job has changed over the past year. She's spending less time pouring drinks and more time monitoring patrons who step outside to light up.

"When they go out for a smoke, it's hard to tell whether they left - especially in the wintertime, when they take their coats with them," she said.

"There have been times when I've been the only one at the bar because the customers are outside smoking."

Wright, who is a full-time student, said the drop in her tips has forced her to cut back on her spending and how often she goes out.

"I absolutely agree that smoking shouldn't be in a work environment, but I think a bar is a very unique work atmosphere," she said.

"If I was really concerned about my health in the workplace, I'm a smart woman - I would not work in a bar."

March 22, 2004
        ONCE-THRIVING BIZ IS INSIDE-OUT
        By Stephanie Gaskell

Lee Seinfeld owns three bars on the Upper West Side - and each one has been affected by the smoking ban.

"They're spending two hours at the bar, but now 25 percent of that time is spent smoking outside," he said of patrons at his bar Broadway Dive, at 101st Street and Broadway. "That's time that could be spent drinking."

He said business at Broadway Dive is down at least 30 percent since the ban kicked in.

"That's where I got affected the most," Seinfeld said of Broadway Dive, which he describes as a "down-to-earth, working-man's bar," although it is also frequented by Columbia University students.

"A lot of those customers like to smoke, even if they are just recreational smokers."

Seinfeld's bar on Amsterdam and 96th Street, called Dive Bar, has done better because food is served there.

"People are eating out more because it's less smoky, but I'm selling less alcohol," he said. "I'm in the liquor business - not the food business."

At his third bar, Dive 75 on Amsterdam and 75th Street, business is holding up, but Seinfeld said he had to hire extra staff to keep patrons under control when they spill outside to smoke.

"My evenings are now spent sweeping the street," he said.

Seinfeld said he has a better way: a law that allows for the establishment of smoking and nonsmoking bars.

"I'm upset with the mayor and his insensibility in this whole situation," he said. "There might have been an easier way to do it."

March 22, 2004
        IT'S LIKE A BREATH OF FRESH AIR
        By Stephanie Gaskell

Count Patrick Peduto among the fans of Mayor Bloomberg's smoking ban.

Dining recently at the lower Manhattan restaurant City Hall - not far from the real City Hall, where the tough law was approved a year ago - the advertising-company owner took time to hail the cleaner air.

"It's much more pleasant in restaurants," Peduto said.

"You go home and your clothes don't smell. If you're not a smoker, you really notice the smoke. Especially when you get home, all of a sudden, your clothes reek of smoke. So that's more pleasant."

Peduto, who lives in Manhattan, said he travels often to other cities where smoking in bars and restaurants is legal - and notices the contrast with New York more than ever.

"It's annoying," he said of the smoking in other cities, adding that he's never been shy about asking someone to put a cigarette out. After all, "I'm a New Yorker."

Peduto dismisses claims that the ban has been bad for local businesses, saying that's not what he sees around town.

"I think we're in a transition period," Peduto said. "At some point, the business will come back for everyone. What are the people that smoke going to do? I mean, they're not going to eat anymore?

"I think there's other things that are hurting the economy."

While he enjoys his meals in a smoke-free environment, Peduto said he still has some sympathy for the exiled smokers.

"Although I don't smoke, I feel sorry for people who do," he said. "It would be nice if there was some compromise."

March 22, 2004
        INDUSTRY'S HEALTHIER - AND SO ARE NYERS, MIKE INSISTS

City Hall reporter Stephanie Gaskell conducted an e-mail interview with Mayor Bloomberg about the impact of his anti-smoking law. Here are excerpts:

Q: How has the ban changed New York City in the past year?

A: Besides cleaner air, healthier waiters and bartenders and a growing hospitality industry, New York is the same culturally and financially vibrant city it has always been.

Q: Is it working?

A: Absolutely. Employee safety has increased and bars and restaurants are now smoke-free. It has been largely self-enforcing. We have inspectors to do random checks and respond to complaints, but people respect the law.

Q: Are people coping with it?

A: Opponents of the legislation thought the sky was going to fall, but smokers are dealing with it, and polls show a strong majority of people support it and are eating out more because of it. Some people feel inconvenienced. I understand that, but that's outweighed by the health needs and rights of nonsmokers, who vastly outnumber smokers.

Q: Are people healthier?

A: There's no question about it. Restaurant workers are no longer exposed to cancer-causing cigarette smoke and New Yorkers now enjoy cleaner air when they go out to eat and drink.

Q: How do you feel about the number of people going out into the streets now?

A: There was an adjustment period in the beginning, but it seems to be working a lot better now. Keep in mind that there are always complaints about people outside of bars, for noise and other things, so this is nothing new. That being said, only 0.2 percent of noise complaints have to do with bars.

Q: Are restaurants and bars doing OK?

A: I go by the numbers: Employment in bars and restaurants is up 8 percent, so the city's hospitality industry has actually grown significantly over the last year. That doesn't mean every bar has done well, but the industry as a whole is strong and getting stronger. Anecdotally, you would be surprised how many bar and restaurant owners have told me that their businesses have thrived.

Q: What do you say to critics who say the ban is making the city boring and suburban-like?

A: New York is the world's second home, and people come here from all over. Other states, cities and jurisdictions have enacted similar bans - it happens to be the direction everyone is going right now, so I am not worried about us suffering because of it, reputation-wise or financially. Our nightlife, which New York has and will always be famous for, has grown. It seems like every week there's another new bar or club opening - at least according to Page Six.

March 21, 2004
        STATE OKS SMOKING IN BUTT ONE EATERY

Just one restaurant has been spared from New York's smoking ban in the 21 upstate counties where state government enforces health rules.

The state Health Department rejected the exemption applications of 13 other bars, restaurants and businesses, including several from the Adirondacks and two from the Finger Lakes region, according to a report yesterday on the department's Web site.

The lone waiver went to Stella Luna, a restaurant in Oneonta.

"This is the first round of determinations and should not necessarily be viewed as a bellwether for applications still under review, since each application is reviewed individually," department spokesman William Van Slyke said.

Businesses proving they lost 15 percent of their profits to the smoking ban can apply for waivers. They also must protect workers and patrons from second-hand smoke.

Antonio Avanzato, co-owner of Stella Luna, said he's a non-smoker, never allowed it in his bar and restaurant, and spent $45,000 when it was built four years ago to create a separate smoking lounge off the bar, a 20-by-40-foot room with comfortable furniture and humidors.

His employees don't serve in the room, which has its own ventilation system.

"July 24th we had to put up the no smoking sign. Basically my $45,000 room turned into a coat room for the winter," Avanzato said. "The state should have used me as an example as the right way to do it. I'm sorry that it took so long."

The 41 counties with full-service health departments - including New York City's five boroughs - can establish their own waiver rules under the law.

March 19, 2004
        MIKE'S NO DRAG ON BRAZEN ST. PAT'S PARTY PUFFERS
        By Stephanie Gaskell and Rita Delfiner

It was shamrocks and stogies for some guests at a St. Patrick's Day gala who illegally fired up their cigars during the black-tie event at a Midtown hotel.

That took McChutzpah since butt-buster Mayor Bloomberg and Gov. Pataki, who signed the state's anti-smoking law, both were seated on the dais at the Society of the Friendly Sons of St. Patrick's dinner at the Sheraton New York Wednesday night.

"There were plumes of smoke everywhere," said one person who attended the black-tie dinner in the Imperial Ballroom.

"After dinner, guys usually light up and listen to the speeches," said a guest who reported seeing 10 or 15 smokers.

Wednesday night's cigar-smoking came two months after an uproar about stogie smoking at a Jan. 15 black-tie event at the St. Regis Hotel attended by Bloomberg.

It was not known how many men lit up or where they were seated in the large ballroom. One guest who described himself as "very sensitive" to smoke said he wasn't aware of anyone puffing.

Pataki "did not see or smell any smoke at the event," said spokesman Kevin Quinn.

Bloomberg left during the speeches to rush to Jamaica Hospital after getting word that two police officers were injured - but while he was at the dinner, he didn't see anyone smoking, said mayoral spokesman Ed Skyler.

"There's 3,000 people at this dinner, and the mayor is on a dais in the front, and it's a huge, humongous room," he said. "And certainly no one was smoking around the mayor.

"If people want to smoke in his presence, no matter how loose that definition is, in order to try to embarrass him, then my reaction to them is unprintable," Skyler said. He added that the hotel and event organizer "should make sure their guests follow the law."

A hotel spokesperson did not return a call for comment, nor did anyone return a message left for the Friendly Sons of St. Patrick's society at its office.

The Health Department had not received any smoking complaints related to the dinner as of yesterday, said spokesman Sid Dinsay.

March 4, 2004
        S-S-MOKIN'!
        By Tom Sykes

THE word on the street - and in backrooms around town - is that the smoking ban is losing its teeth.

If you use a little discretion, puffing is increasingly likely to be quietly ignored - especially after the mayor's butt patrol goes home at 11 p.m.

"I have noticed more flare-ups taking place, especially later at night," says Michael Musto, the veteran night-life columnist for the Village Voice.

"Certain establishments are . . . turning a blind eye, and I think they're seeing their business going up as a result."

When I confessed to one bar owner I'd been lighting up in his club in the wee hours, he admitted looking the other way. "People out late expect to be able to smoke - and they do," he said. "And you know what? There aren't a lot of 311 callers around at 1 a.m."

To test that theory, I lit up in 10 Manhattan night spots.
 

WEST VILLAGE PUB

Time: 8 p.m.

Sitting at a table in a popular pub, I openly light a cigarette.

Within seconds a barmaid pounces on me. "What the hell are you doing?" she screams. "This is New York City! You can't smoke inside! Get out!!"

I ham up my British accent and eventually she lets me back in the bar - sans smokes.
 

WEST VILLAGE RESTAURANT

Time: 9 to 10 p.m.

Ah, the joy of private rooms!

Sitting with my group in a little booth at the back of this trendy restaurant, no one bothers me when I light up. A friend tells me a week later that when her friends started smoking there, the waitress told them to go ahead and smoke.

The truth is, if you smoke, you should already know a place where you can have a cigarette along with your drink. And if you don't, it's not that hard to find one.
 

CHELSEA LOUNGE

Time: 10 p.m.

As a hostess leads me to my table, she says sweetly: "Please don't smoke" - a blanket warning she hands out to everyone who walked in.

"If you do I will be forced to get very, very angry. The smoking lounge," she says, pointing at the door, "is that way."

By 11:15 p.m., so many people are smoking around us, my pal and I decide to risk it.

After our second cigarette a burly bouncer appears and demands the cigarette be extinguished.
 

EAST VILLAGE MUSIC CLUB

Time: 10:30 p.m. to midnight

I risk a cigarette on the dance floor, hidden from detection by the crowd. Then another sitting down, where I can hide it beneath a table.

As the beers go down, I get bolder and start smoking right at the bar. On smoke No. 2, a bouncer taps me on the shoulder.

"I don't want to have to throw you out, so please put the cigarette out," he says.

It's gone.
 

MIDTOWN PUB

Time: 11 p.m.

One of my regular smoking haunts, this place benefits from having two rooms. In the back room, there will always be a few people smoking a sly cigarette or two over the course of the night.

I'm usually one of them - and I have yet to be asked to stop.
 

WEST VILLAGE NIGHTCLUB

Time: 11:30 p.m.

Quite a few people are smoking, so my friend and I light up ourselves.

When a hostess comes to ask what we'd like to drink, she doesn't mention the smokes, which we hold under the table.
 

MIDTOWN PUB

Time: Midnight onwards

I've known about this smoke-easy since the ban kicked in.

There's a routine here: Around midnight, someone will produce a pack of cigarettes, take one out and casually play with it - maybe even hold it between his or her lips.

The bartender will usually offer a few words of consent.

And when he puts out a few glasses half-full of water (ashtrays, as smokers now know, are what attract the wrath of the smoking police) and the first cigarette is lit, within minutes the place turns into one great cloud.

The bartender says he lets his clients do it for the tips.

"Who's going to stay here till 3 a.m. if they can't smoke?" he said, pointing to his pile of singles.

It's just like 2002 all over again.
 

MIDTOWN NIGHTCLUB

Time: 12:15 to 1:45 a.m.

The smell of smoke assails us as we walk in. Plenty of people are smoking shamelessly at the bar. I puff away until we leave - and no one says a thing.
 

CHELSEA LOUNGE

Time: 1 to 2 a.m.

It looks pretty smoke-free in here - until I discover a room in the back from which the tell-tale smell of smoke emanates. I park myself in an unobtrusive corner and light up. No one bothers me.

When I ask the owner about it a few days later, he says: "Look, I don't want people smoking here because I could get shut down. But it's unenforceable. Either I have my staff run around all night and fight with them, or you just deal with it. To be honest, it's a complete nightmare."
 

CHINATOWN PARTY

Time: 11:30 p.m. to 3:45 a.m.

This party, which I heard about over e-mail, is on the fourth floor of a tenement building and costs 10 bucks to get in. There is a license pinned to the walls but otherwise, it looks like a gathering of dubious legality.

Quite a few people are smoking so I figure it's safe to light up.

Suddenly I'm the most popular guy there. So many people ask me for cigarettes that at 1 a.m. I have to run out to the deli to restock.

March 1, 2004
        CIG BAN LETS BARS OFF THE HOOKAH
        By Stephanie Gaskell and Heidi Singer

The city isn't enforcing the smoking ban against Middle Eastern hookah bars - even though they don't qualify for an exemption under the new law, The Post has learned.

The city has only a handful of hookah bars, a Middle Eastern version of cigar bars where patrons smoke fruit-flavored tobacco called shisha. Many of them have been ticketed for allowing illegal puffing since the city's tough anti-smoking laws went into effect March 30.

But the city has thrown out several of the tickets because, as one administrative judge wrote, "shisha [is] no longer enforced against," according to records obtained by The Post.

Cigar bars can allow smoking if they earn at least 10 percent of their revenue from the sale of tobacco. But hookah bars don't qualify for this exemption because, under the law, they don't serve alcohol.

"These bars would fit into the tobacco bar exemption if they served alcohol. They should be commended for that and not punished," said City Councilman Peter Vallone Jr.

February 16, 2004
        CIG-BAN BURNS
        By Des O'Brien
        Des O'Brien is the president of the United Restaurant and Tavern Owners Association of New York.

KAPPA Beta Phi, whose motto is "we sing, we dance," should now be changed to "we sing, we dance, we smoke" - after recent published reports outed the esteemed society's blatant disregard for Mayor Bloomberg's silly smoking ban, and in his presence no less.

We should fear for Bloomberg. After all, by virtue of his own reasoning, the mayor put his life and well-being on the line, by subjecting himself to what he sees as the detrimental and life-threatening effects of that group's second-hand smoke - and from cigars, to boot!

Bloomberg, remember, proclaimed that such smoke kills up to 1,000 people a year, in New York City alone.

Fortunately for him, however, there is not one shred of scientific evidence to back that claim (or for that matter one signed death certificate anywhere that cites the cause of death as second-hand smoke).

On the other hand, the smoking ban that went into effect last March has brought about much distress to our industry and those who work in it.

In a recent statement by the New York City chapter of the New York State Restaurant Association (NYSRA), Executive Vice-President Chuck Hunt noted that "the city's bar, tavern and nightlife operations have suffered mightily as a result of the smoking ban."

In a membership survey the group conducted in November and December of 2003, 76 percent of the respondents reported a decline of 25 percent or more in bar sales and 15 percent or more in food sales.

NYSRA's statement is significant for two reasons.

* It is the first acknowledgement from NYSRA that the law hurts the hospitality industry. Before its passage, NYSRA had supported the law.

* It clearly refutes the mayor's much-hyped assertion that people would dine out and drink more as a result of the ban.

The ban also has resulted in an epidemic of quality-of-life complaints that have maligned our trade ever further. Ironically, we warned our political leaders of these issues before the ban became law, but to no avail.

Quality-of-life problems have grown because, under the law, hordes of smokers are forced out onto the sidewalks, particularly at late-night establishments, including in residential neighborhoods.

That, in turn, has prompted Bloomberg to call for new legislation to require establishments to be licensed if they're open and make noise past 1 a.m. Such legislation, which the mayor now says he may not pursue in earnest until next year, would severely curtail post-1 a.m. social activity - and business.

There is a clear danger to the city's multi-million-dollar hospitality industry in this proposed legislation, with many places forced to close down at 1 a.m.

And this is supposed to be the city that never sleeps!

Our industry agrees that that we need to provide a safe and secure work environment for our employees. And we sympathize with our residential neighbors over the stress and frustration that they are suffering as a result of the noise levels on our streets at night.

The simple solution is to get people back inside the bars and restaurants, and off the streets. To achieve this, we must have reasonable amendments to the current law. These might include:

* Permission to create smoking rooms, equipped with hospital grade air-filtration systems.

* A tax credit of some sort for places that choose to remain entirely non-smoking.

The New York State Smoke Free Air Act allows for waivers to the smoking ban, based on state-audited proof of economic hardship. Several upstate bars have already received those waivers, and many more applications are being considered.

Unfortunately, despite the now obvious drop in business here, the New York City Department of Health will not issue any waivers whatsoever.

This is an outrage. Several state senators, assemblymen and City Council members support such relief and amendments. It is time for our political leaders to listen to their constituents and take corrective measures.

February 14, 2004
        CHUCK LIGHTS INTO SMOKING BAN
        By Jeane MacIntosh

Sen. Chuck Schumer wants to snuff out Mayor Bloomberg's strict smoking ban.

For the first time publicly, New York's senior senator has come out against the controversial anti-smoking law - deciding to speak out about what insiders say has privately been his position from the get-go.

"Chuck works well with the mayor on a host of issues, but on this one they'll just have to disagree," Schumer spokesman Pete Singer told The Post.

Schumer's position that the city's law should be softened came in response to questions from The Post after the senator recently blasted the recent statewide smoking ban.

Speaking of the separate statewide law, Schumer told an upstate newspaper that he hoped to find some ways to amend it.

The same goes for the New York City law, Schumer's office confirmed. "His feelings about it are consistent across the board," Singer said.

As in the city, many upstate bar and restaurant owners are complaining the law is hurting their business.

"This [state] law just came out of Albany like a bat out of hell," Schumer told the Oneida Dispatch. "There might be some ways to amend it, I hope.

"I couldn't believe the state passed it," Schumer added. "The original law that New York had wasn't bad with the requirement of separate seating."

Schumer's position on the city ban should score him points with New York City bar and restaurant owners pressing for repeal of the law.

"For a significant portion of our industry, the ban isn't working," Chuck Hunt, head of the city chapter of the New York State Restaurant Association, wrote in a recent editorial of the group's in-house magazine.

February 14, 2004
        PATAKI'S INGLORIOUS SURRENDER
        Editorial

[NYC C.L.A.S.H. Note:  While we certainly DON'T agree with the following, we've promised to publish tobacco/smoking related stories that are in conflict with our position and let the reader decide the merit of the content]

Last year, when the Albany Legislature ordered the state to begin collecting cigarette and gasoline taxes from upstate Indian reservations, leaders of the upstate tribes vowed to resist the effort as they did a similar attempt back in 1997 - with violence and mayhem.

It worked then.

So what did Gov. Pataki do in the face of such threats?

Why, he capitulated, of course.

State Tax Commissioner Andrew Eristoff announced this week that the state would delay indefinitely the collection of such taxes, which analysts say could be costing the state $400 million a year.

And he made no bones about what was behind the state's surrender.

"I'm extremely concerned about the possibility of violence," said Eristoff after testifying before the legislative hearing on the state budget.

"It's a huge concern for any New Yorker. . . . I think it would give anyone pause."

Actually, what gives us pause is the way that the Pataki administration has now emboldened the tax resisters by sending the unmistakable message that threats of violence will always pay off.

Ten years ago, the U.S. Supreme Court ruled that Albany had the legal right to collect taxes sold on cigarettes and gas sold to non-Indians by businesses on Indian territories.

But when the state tried to enforce that right in 1997, several Indian tribes responded with an orgy of tire-burning that led to partial closure of the State Thruway and other major upstate highways, as well as violent confrontations with State Police along Seneca reservation land.

Local non-Indian merchants rightly complain that they're being driven into bankruptcy because of the huge competitive edge that the tax-free tribes enjoy.

Once again, this time around, a number of the more militant tribes had threatened "resistance and protest" if the state tried to take the money.

The chief of the Onondaga tribe even threatened to build a toll booth on Interstate 81 and charge a fee to anyone who crosses into their territory.

And, once again, the Pataki administration backed down.

And violence isn't the only thing of which Pataki is afraid.

He said last fall he feared any confrontation with the Indians would endanger any moves to enrich them further by letting them open new casinos - which the governor hopes to use to help reduce his budget deficit.

The governor believes he can cut some side deals in which the Indians - in return for not having to pay taxes - would agree to make their prices more comparable to those of non-Indian businesses.

But several tribes have vowed to resist this move, too.

No one wants to see another outbreak of violence, but the Pataki administration has all but ensured that any group with a grievance - Indian or not - can get its way if it can show that it will make good on violent threats.

Rather than appeasement and capitulation, it's time the governor showed some backbone.

Enforce the law, Mr. Pataki.

February 11, 2004
        BLOOMBERG BACKPEDAL: OH, THOSE SMOKERS
        By David Seifman

He may be the most fervent anti-smoking advocate in the city, but that doesn't mean Mayor Bloomberg is going to call the tobacco police if he sees someone lighting up.

During an appearance on WLIB radio yesterday, the mayor conceded that perhaps there were some people puffing illegally at The St. Regis hotel last month during a dinner he attended for the Kappa Beta Phi society.

"The bottom line is I don't really remember anyone smoking. Most people weren't. If there were some people in the corner smoking, they were smoking," Bloomberg said.

"What do you want me to do? Call the cops? I mean, c'mon."

Actually, that's precisely what the Health Department - which enforces the city's tough smoking ban - is counting on.

Its Web site includes a complaint form to report smoking violations.

Officials said inspectors would be visiting the St. Regis soon, probably at another dinner where they can see for themselves if smoking is being permitted.

Bloomberg said the publicity over the St. Regis incident shouldn't obscure the importance of the smoking ban.

"We're trying to save lives here," he said. "We have an obligation to provide a safe workplace."

February 10, 2004
        MIKE: SMOKERS? WHAT SMOKERS?
        By Stephanie Gaskell

Mayor Bloomberg said yesterday he didn't know people were illegally smoking cigars at a Wall Street gala he attended - even though a witness revealed partygoers were lighting up right at Hizzoner's table.

"I didn't see anybody when I was there," Bloomberg insisted, responding to a story in The Post on Saturday about "Cigargate."

The Post reported the rabidly anti-smoking mayor did nothing while numerous guests attending the annual gathering last month of the exclusive Kappa Beta Phi society at the St. Regis Hotel puffed away on stogies.

"I arrived late. I stayed for about an hour and a half and it very well could have been and I know the Department of Health is investigating."

Of the 130 who attended the Jan. 15 event, dozens lit up - possibly as many as 50, one guest said.

An eyewitness told The Post yesterday that Bloomberg had to have been aware people were smoking stogies - since some were doing it right at Bloomberg's table while the mayor was sitting there.

"He's reconstructed the past," the source said when informed that Bloomberg claimed yesterday he was unaware of anyone puffing in the ballroom.

"He condoned it," a source who saw Bloomberg while the cigars were being smoked told The Post in Saturday's editions.

The mayor's inaction in the face of a mass violation of the smoking law infuriated some New Yorkers, who charged there's one standard for the mayor's rich friends and another for regular bar patrons.

But the billionaire mayor insisted, "We have one standard. It should apply to everybody whether I'm there or not."

The Kappa Beta Phi society has a secret membership estimated at more than 250 of the financial industry's current and former executives, including disgraced former New York Stock Exchange head Richard Grasso.

On Friday, a City Hall aide acknowledged that Bloomberg - who calls the strict anti-smoking law one of his signature achievements - was aware that people were smoking and didn't take any action.

"The mayor has seen violations before and doesn't take it upon himself to report them," the aide said at the time, adding that enforcement of the law is the responsibility of the city Health Department.

Mayoral spokesman Ed Skyler said yesterday that the aide "either misspoke or was misinterpreted."

"I don't know how anybody can speak for anybody else . . . as to what a person saw," Skyler said.

Bloomberg said the Health Department is investigating the St. Regis.

February 8, 2004
        ASH FRAY: CLUB BIG BLASTS MIKE
        By Stefan C. Friedman

The president of the New York Nightlife Association yesterday accused Mayor Bloomberg of using a double standard when it comes to enforcing the smoking ban after it was reported that Hizzoner sat idly by as dozens of people puffed cigars in his presence.

David Rabin, owner of West Village hot spot Lotus, found it odd that the mayor would allow the smokefest to take place right under his nose, considering Bloomberg's insistence that secondhand smoke is such a killer.

Rabin and other bar owners were outraged after reading that Bloomberg witnessed up to 50 people smoking at a gathering of Wall Street's exclusive Kappa Beta Phi society at the St. Regis Hotel last month, and did nothing about it.

"Does the wait staff of the St. Regis have a special immune system that combats the supposed ill effects of second-hand smoke?" Rabin asked.

February 7, 2004
        MAYOR MIKE'S MYOPIA
        Editorial

Was Mayor Bloomberg an accessory before, during and after the fact to an offense that he himself helped make illegal - smoking in public?

Seems so.

As The Post reports today, Hizzoner sat by while dozens of fat cats dragged on even fatter cigars right before the mayoral eyes last month in a public ballroom where smoking is prohibited by law.

Bloomberg's law.

According to one source, Bloomberg basically "condoned" the smokes.

Tsk, tsk.

Public puffing is OK by Mike, it seems - if you're a fellow gazillionaire.

Just a measely bodega owner or a lowly saloonkeeper? Mayor Mike's tobacco troopers are just waiting to hit them up with fines.

Hey, even possession of empty, unused ashtrays has drawn citations - never mind that the "contraband" was hidden from sight.

Meanwhile, bar and restaurant owners fume over business killed by the ban. Patrons are forced outdoors, making not only their lives miserable, but also those of nearby residents and passersby, who face added pedestrian traffic, noise and, of course . . . smoke.

The law's for thee, says Mayor Mike - but most certainly not for me!

What hypocrisy.

February 7, 2004
        CIGAR PARTY MIKE
        MAYOR BUTTS OUT AS PALS SMOKE
        By Marsha Kranes, Stefan C. Friedman and Tatiana Deligiannakis

[Picture: Mayor Bloomberg turned a blind eye to widespread stogie-puffing at a black-tie gathering of Wall Street's exclusive Kappa Beta Phil society on Jan. 15.]

It's hard to imagine - butt-banning Mayor Bloomberg sitting passively at his table during a black-tie dinner while all around him smokers puff away on stogies.

But that's exactly what happened one recent evening in Manhattan when Hizzoner attended the annual gathering of Wall Street's exclusive Kappa Beta Phi society at the St. Regis Hotel.

The private event was held in the hotel's top-floor ballroom, which quickly became smoke-filled after cigars were passed out among the assembled titans of finance.

Of the 130 who attended the Jan. 15 gathering, dozens lit up - possibly as many as 50, one party-goer told The Post.

And Bloomberg - whose smoke police have cited Vanity Fair editor Graydon Carter and others for simply harboring empty ashtrays, and who boasts he regularly calls 311 to report potholes and litter-strewn lots - didn't raise a finger in protest.

"He condoned it," said a source who saw Bloomberg while the cigars were being smoked.

At the event, once described as "closer to La Cage aux Folles than a bankers convention," newly inducted members - including Bloomberg's companion, state banking superintendent Diane Taylor - performed raucous skits, making fun of themselves and the investment industry icons in the room.

Many spoofed disgraced former New York Stock Exchange head Richard Grasso, who was on hand laughing it up.

A City Hall aide acknowledged that Bloomberg was aware of the cigar-fest around him and didn't take any action, noting, "The mayor has seen violations before and doesn't take it upon himself to report them."

The aide said, "It's the Health Department's responsibility to issue tickets based on complaints and random inspections."

The mayor's apparent indifference to the mass violation of the city's tough anti-smoking law - which he considers one of his crowning accomplishments - drew outrage around the city. At the Drini Café on Arthur Avenue in The Bronx, customer Jerry Ahmetaj fumed, "It makes me mad to know he's partying with smokers while the rest of us have to stand outside and freeze just to smoke a cigarette."

Nearby, at Enzo's Café, bartender Anna Gjegji called the mayor's inaction "very hypocritical."

"What a role model!" she grumbled.

At the Four Seasons in Manhattan, co-owner Julian Niccoli said, "It's the same old story - we cannot smoke, but they can. Different rules apply to different people."

City Health Department spokeswoman Sandra Mullin said the St. Regis "can expect an inspector in the near future."

Asked about the Kappa Beta Phi event, St. Regis spokeswoman Teresa Delaney said hotel officials had "no knowledge of smoking going on" at the dinner.

February 1, 2004
        SMOKIN' JOE
        Page Six

ROCKER Joe Jackson is just as tired with Mayor Bloomberg's anti-smoking law as the rest of us. He's even penned a song against the ban. Jackson premiered his protest tune, "In Twenty-Oh-Three (You Can't Smoke at the Bar)," on WABC Radio's "Steve Malzberg Show." "If you smoke, that sign that's in the window of your favorite bar that says 'no smoking' might as well say, 'f- - - off,' " Jackson told Malzberg. "Even the bartenders whom this law is supposed to protect don't like it. It just means that we're unwelcome and put out onto the street."

January 29, 2004
        TRUMP BLASTS MIKE ON SMOKE
        Page Six

DONALD TRUMP doesn't smoke or drink, but the teetotalling tycoon has no patience with Mayor Bloomberg's inflexible anti-smoking ban.

"I'm a non-smoker - and I love that the tobacco companies are getting their asses sued off - but New York nightlife has been impaired by the new cigarette laws," Trump vented to Steve Garbarino, who wrote a cover story on the real estate developer and TV star for next week's TV Guide.

"Very few people have died from second-hand smoke," Trump told Garbarino. "I know bartenders who are 100 years old, and they are breathing and still tending bar. The Europeans won't even come to New York because they can't smoke in restaurants and bars. So I think they've taken it too far."

Even so, Trump is disdainful of smokers so hooked on "the stupid, terrible habit" that they "have to leave Le Cirque to go out in the rain to smoke for 10 minutes."

He went on, "Never had a drink. Never had a cigarette. Number one, I don't like the taste [of alcohol]. Number two, my brother [Fred Trump] died of alcoholism. I saw what alcohol did to him."

Trump continued: "He was a great teacher in a sense. He was 12 years older than me. He would lecture me incessantly: 'Don't smoke, don't drink.' I've never had a cup of coffee either. Fred drank coffee, smoked and drank alcohol. But alcohol ultimately killed him.

"Most people that drink, I've found have a problem with it. I had a friend who I respected, but who would get totally bombed, and I'd be carrying him out by his arms and legs. He'd make a total jerk of himself.

"I've never had an employee with a drinking problem. Subconsciously, I think I'm not into people who drink."

Tell that to some of the female contestants on Trump's "The Apprentice." One of them, Omarosa Manigault-Stallworth, told Garbarino: "I was surprised at how drunk everyone got. I was in awe that they would behave that way.

"Every time there was a break, they'd be out smoking their Marlboros. Unfortunately, it was off my [Trump Plaza] balcony that they went to have cigarettes. I'm not a drinker or a smoker. I was amazed that in preparing for the job, they wouldn't have known Trump is [against both]."

January 20, 2004
        MIKE: SMOKE OUT CIG-TAX DODGERS
        By Kenneth Lovett

ALBANY - New Yorkers can earn cash rewards for ratting out bodegas, groceries and individuals selling bootlegged cigarettes if a bill supported by Mayor Bloomberg wins approval.

Under the bill, the city would give a "suitable" reward to anyone who provides information that leads to the detection of violations of the cigarette tax.

Under the legislation, a person "generally" could receive up to 15 percent of the owed taxes that are eventually collected, meaning someone responsible for a bust leading to $1 million in tax collections could reap a $150,000 reward.

City and state officials believe more people are turning to bootlegged cigarettes after the city and state dramatically increased their cigarette taxes two years ago.

They see the new law as "a valuable enforcement tool."

"Revenue, revenue, revenue," said the Senate bill's sponsor, Frank Padavan (R-Queens), on the intent of the bill.

"There's a tremendous amount of revenue from this underground economy, and cigarettes are a big part of it."

The bill passed the Republican-led state Senate last year but died in the Assembly, where it is sponsored by Assemblyman Jeff Klein (D-Bronx).

It has been reintroduced in both houses this year and Klein said he thinks chances for approval in the Democratic-controlled Assembly are better this year.

"The mayor urges the earliest possible favorable consideration of this proposal by the Legislature," according to a bill sponsor memo.

Klein - who estimated smuggling is costing as much as $80 million annually in lost tax revenue - says the bill would give more incentive to wholesalers to inform on stores that suddenly drop their orders, a possible indication they are getting their cigarettes from another source.

"If a store buys less from the wholesaler, the wholesaler knows that something is up and will respond because they will lose money," Klein said.

The bill, he added, will raise revenue for the city and state and could keep lower-priced cigarettes out of the hands of children.

"It's something we're interested in doing," Klein said.

A Bloomberg spokesman did not have an immediate comment.

The city in July 2002 raised its cigarette excise tax to $1.50 a pack, up from 8 cents. The state in April of that year also dramatically raised its excise tax to $1.50, up from $1.11.

The increases pushed the price of cigarettes in the city to more than $7.50 a pack.

Smuggling was believed to have increased dramatically since then, with bootleggers making hundreds of thousands of dollars on every truckload of cigarettes brought illegally into the city.

With the increased smuggling have come beefed-up enforcement efforts from both the city and state.

During the first six months of last year, cops from the NYPD's Cigarette Interdiction Group arrested 44 bootleggers and confiscated 12,018 cartons of untaxed cigarettes.

January 7, 2004
        SMOKIN' CRIME WAVE
        By Harry Siegel

FOR years, New Yorkers associated the hushed, rhythmic call of "Smoke, smoke" with hustlers peddling pot and worse in the city's streets and parks. But while the Giuliani war on crime thinned the dealers' ranks, Mayor Bloomberg has opened the door to a new generation of hustlers who have taken up the cry to hawk Marlboros and Newports.

And these new smoke peddlers are fast proving far more ambitious and, in many cases, violent than their predecessors.

The motive? Exorbitant new local taxes created an opportunity for huge "buttlegging" profits. With a 75 percent sales tax, cigarettes here are far more expensive than in other cities and states. Legal sales have plummeted and some vendors have taken to pocketing the $3-a-pack of sales tax.

But there's little evidence New Yorkers have taken the mayor's patronizing suggestion to quit complaining about a tax that's good for them and kick the habit. Instead of frequenting local retailers, middle-class smokers have been buying cigarettes online and out of state.

But that requires a credit card and an Internet connection, or a car and time. So this regressive tax has had the biggest effect in poor and working-class neighborhoods - where $300-plus a month to support a pack-and-a-half-a-day habit can hardly be dismissed as a marginal expense.

It has, though, created a fantastic business opportunity for those not too concerned with the fine points of tax law - a market with high demand, readily available low-cost supply, a low threshold for entry and easily circumvented government-imposed price controls that place legal competitors at a huge disadvantage.

And just before the New Year, New York Secretary of State Randy Daniels announced that only so-called "fire-safe" self-extinguishing cigarettes can be sold in New York as of June 28. This will serve as yet another market-distorting sales incentive for reselling out-of-state cigarettes, since no one wants their smoke constantly going out on them.

In the short run, consumers in New York's less-well-off neighborhoods see the smugglers as providing a service. But these same areas bear the brunt of the crime these men bring with them. As The Post put it in an editorial last month, dealers "seldom limit themselves to fair business practices to eliminate the competition."

At about $40 profit per carton, there's a real incentive for rough play: Just 50 cartons a week nets six figures tax-free annually.

This math has added up to some very nasty characters. The city is being divided into turf - Russians gangsters in Brighton Beach, the Flying Dragons and Ghost Shadows in the city's Chinatowns, Bloods in Harlem. They've all been competing with smaller gangs and self-employed entrepreneurs to cut out a piece of the action. (And a Michigan cigarette-smuggling ring is suspected of having funneled millions of dollars to Hezbollah.)

And even when caught, street-level dealers face little more than a summons for hawking what is, after all, a legal product.

Increasingly, they have resorted to public violence - including at least four homicides last year.

In November, Cody Knox was stabbed to death in Fulton Mall in the middle of the day by competitors, punishment for underselling them by about a dollar a pack. The same week, Sherwin Henry - who had been netting over $1,000 a week reselling packs purchased from a reservation - was shot in the head on a Brooklyn rooftop in what appears to have been a robbery. Two other men have been shot in separate incidents linked to buttlegging.

The New Prohibition has been a predictable disaster. As the new tax kicked in last July, the NYPD formed a new unit, the Cigarette Interdiction Group, to handle the expected upturn. Yet 146 arrests, and the seizure of $250,000 and some 6 million cigarettes, seem to have had little deterrent effect. In the outer boroughs, upper Manhattan and Chinatown, it's easy to find $5 packs.

Presumably, violence short of murder has not been reported to the police by the criminals involved - the old rob-the-drug-dealer syndrome.

One Prospect Heights-based man I spoke with switched from nickel bags to packs of Newports he carries in a plastic shopping bag. He claims to make about $500 a week and to have developed a number of regular customers, a couple of whom came up and made small talk while I followed him on his rounds. He's been stopped by the police once, he said, but got off with a summons.

He's trying to make what he can before getting pushed out by organized concerns, but doesn't plan on stopping just yet: "Think about crack, man, how raw that got back in the 1980s. This ain't that bad yet, but there's easy, almost make-believe money to be made hawking smokes, so it don't matter what the police do . . . you're going to have crews setting up franchises, cutting up the city, and deading the competition."

January 6, 2004
        MIKE! ARREST THIS COLUMNIST!
        Page Six

VANITY Fair columnist Christopher Hitchens has launched a one-man crime spree to protest some of Mayor Bloomberg's more overbearing ordinances.

In the space of a few hours, Hitchens managed to break a slew of New York's pettier laws: He sat on an upended milk crate, took his feet off bike pedals, put his bag on the subway seat next to him, fed pigeons in Central Park and sat on a subway step. He also smoked in a bar and in a restaurant.

While Hitchens emerged from his "orgy of lawlessness" unscathed, he recounts tales in Vanity Fair of New Yorkers victimized by Bloomberg's bureaucratic bullying:

* Jesse Taveras, who sat on a milk crate outside the Bronx hair salon where he works and was fined $105 for "unauthorized use" of the crate.

* Kim Phann and Bruce Rosado, fined for "loitering in front of a business" while taking a smoke break outside the Bronx barber shop where they work.

* Pedro Nazario, 86, of Morningside Heights, whacked with a summons for feeding pigeons.

* Yoav Kashidia, an Israeli tourist, fined $50 for falling asleep on the subway and occupying two seats during his slumber.

* Crystal Rosario, a pregnant Brooklynite, ticketed for resting on a subway step.

* Brian Bui, owner of Mekong restaurant in SoHo, twice fined $200 for allowing a customer to smoke under a retracted awning. Bui fought the second ticket and won, but only after spending $3,000 in legal fees.

Hitchens writes: "The law these days . . . states that New York City is now the domain of the mediocre bureaucrat, of the inspector with too much time on his hands, of the anal-retentive cop with his nose in a rule book, of the snitch willing to drop a dime on a harmless fellow citizen, and of a mayor who is that most pathetic and annoying figure - the micro-megalomaniac.

"Who knows what goes on in the tiny, constipated chambers of [Bloomberg's] mind? All we know . . . is that one of the world's most broad-minded and open cities is now in the hands of a picknose control freak."

Mayoral spokesman Ed Skyler shot back: "Ninety-nine percent of the laws mentioned were on the books before the mayor took office, which makes this so-called story nothing other than the latest hit piece commissioned by [Vanity Fair editor in chief] Graydon Carter."

January 2, 2004
        PAINTER SHOWS MIKE THE MAT
        Page Six

ANGRY-man artist Scott LoBaido is once again turning his paintbrush on his nemesis, Mayor Michael Bloomberg.

LoBaido, who protested the shuttering of a Williamsburg firehouse last August by painting a mural of a smiling mayor shooting a man in the back, has been asked by the National Arts Club to show his latest Bloomberg-bashing - a rendering of a cigarette-puffing Frank Sinatra giving him a bloody beating.

The painting, titled "Black Eye, Bloody Nose and Fat Lip Courtesy of Frank Sinatra," shows a battered Bloomberg sprawled in an alley next to a "No Smoking" sign, as Sinatra walks away trailing a plume of smoke.

"Bloomberg is destroying the romance of the city," LoBaido fumed to PAGE SIX. "If Sinatra was sitting in bar having a cocktail with two lovely ladies and Bloomberg walked in to hang up a no-smoking sign, then what do you think Frank would do? That's exactly what the painting is about."

National Arts Club president Aldon James, who invited LoBaido to show his "American Pride" exhibit at the club's Trask Gallery beginning Jan. 6, defended the provocative painting.

"Politics has always been bloody," James said. "It's not that the National Arts Club is against Mayor Bloomberg. We don't have to always agree with what our artists are saying, but we feel they have a right to be shown. I'm sure even Mayor Bloomberg would respect the artist's right to express himself." A Bloomberg spokesman did not return calls.

LoBaido claims his "Angry American" style - other works depict President Bush on horseback holding the head of Osama bin Laden and a stars and stripes-covered anvil falling on Saddam Hussein - has kept his work out of most galleries.

"I'm very patriotic and I use my artwork as a soapbox," LoBaido said. "For years, galleries have shunned me because of my political ideology. Just because I vote Republican, I wave my flag and I love my veterans, they don't want me. But I think I'm finally getting a little respect."

This isn't the first time the Staten Islander has caused a commotion. He is on probation for hanging oversize American flags on the façade of the French Consulate. He also painted a flag on School District 3 headquarters after it ruled against requiring students to recite the Pledge of Allegiance.
 
 
 
 


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June 29, 2004
        'Safe' cigs shot down in flames
        By Tamer El-Ghobashy and Alison Gendar

Only two of 40 'self-extinguishing' cigarettes snuffed themselves out in a Daily News test. Pictured here is one of the cigs that self-extinguished.

Even when smokers stop huffing and puffing, most so-called "self-extinguishing" cigarettes remain lit, Daily News tests show.
New York became the first state in the nation yesterday to require tobacco companies to sell only "low-ignition" cigarettes that are supposed to snuff themselves out - potentially cutting smoking-related fire deaths.

But in our admittedly unscientific survey, The News found the newfangled smokes kept burning to the filter most of the time.

"That's not what I would call a fire-safe cigarette," said Brooklyn smoker Lisa Wilton as she bought a pack of the new-styled cigs in Manhattan. "Sounds like some kind of marketing hoax to me."

The cigarettes, which were still hard to find in many local stores, use special paper that is meant to stop burning once a smoker stops inhaling.

The News conducted some common-sense tests, one with 40 cigarettes taped at their filters to the edge of a wooden board.

Only two of the "self-extinguishing" cigarettes stopped burning. The rest burned down to the filter and many scorched the wooden plank.

In a second test, 10 cigarettes were laid flat on a paper-covered board. Just two went out. The rest burned through the paper and scorched the wood.

A spokesman for the state Office of Fire Prevention and Control said The News' tests did not meet scientific standards and would not provide accurate results.

Fans of the new cigarettes said they have been rigorously tested and will cut smoking-related fire deaths by up to two-thirds. Smoldering cigarettes are the leading cause of fire deaths in New York City.

"These new cigarettes are designed not to ignite like regular cigarettes when they land on clothing or furniture," said Andrew McGuire of the Trauma Foundation in San Francisco, a leading voice in the push for fire-safe cigarettes. "We will save lives."

Assemblyman Pete Grannis, (D-Manhattan), who sponsored the legislation, predicted other states will follow New York's lead. "New York is the gold standard in this area," Grannis said.

"The next time someone dies in a cigarette-caused fire, the tobacco company is going to have to explain why the cigarette that started the fire wasn't made in the same way as what's sold in New York," he added.

But officials with three of the nation's largest tobacco companies warned that smokers still must be wary.

"These cigarettes are more likely to self-extinguish when measured against this lab test than others, but we don't know how that compares to real-world conditions," said Brendan McCormick, a spokesman for Philip Morris USA Inc.

Stores are allowed to sell off the remainder of their old cigarettes.

The new style is marked by an asterisk, a dash or a diamond next to the bar code, or by a slash next to the manufacturer's code on a pack.

"I never understood people who smoke in bed, but if this saves even one life, it is worth it," Manhattan smoker Stella Williams said.

May 21, 2004
        Smoke-free N.Y.C. a clear winner
        By David Saltonstall

New York City - clean-air capital?

It is now, at least when it comes to bars and restaurants.

A new study released yesterday found that of seven major cities, breathing is easiest in New York's smoke-free bars and restaurants. In fact, air quality in New York establishments was a whopping 15 times cleaner than joints in Washington, which ranked last on the list.

"The bottom line is that cities that implement comprehensive smoke-free laws quickly and effectively protect the health of both their employees and patrons," said Bill Corr, executive director of Campaign for Smoke-Free Kids, which conducted the survey.

The study - the largest ever of its kind - looked at three cities with strict workplace smoking bans: New York, upstate Buffalo and Los Angeles.

It also looked at four cities where smoking is still allowed in restaurants and bars: Philadelphia, Baltimore, Hoboken, N.J., and Washington.

Testers prowled through at least seven establishments in each city on a Thursday, Friday or Saturday night, armed with a high-tech aerosol monitor that measures pollution in micrograms per cubic meter.

The result? Establishments in cities with smoke-free laws had average pollution levels 82% lower than cities that don't.

The nation's capital was by far the worst, with 392 micrograms of pollution per cubic meter compared with New York's average of 25 micrograms.

Researchers said the study offered clear evidence that bars that allow smoking are unhealthy - for both smokers and nonsmokers.

"It isn't a secret that second-hand smoke is bad for you," said Dr. Fred Jacobs, chairman of the Medical Society of New Jersey's Council on Public Health. "Even the tobacco companies don't argue about that anymore."

The study was greeted like a breath of fresh air by Mayor Bloomberg, who pushed through the city's ban on smoking in April last year despite stiff opposition from many bar owners.

"If you want to smoke - smoke. You can smoke outside. It's not forcing anybody else to smoke," Bloomberg told reporters. "If you smoke inside, you are. I'm just glad that the air is clean."

May 16, 2004
        Bootleg cig biz red hot
        Daily News goes undercover to learn true cost of city's high-tax war on butts

This story was produced by the spring investigative techniques class at Columbia University Graduate School of Journalism:

Ericka Blount Danois, Brian Boyd, Suleman Din, David Epstein, Mark Fass, Deborah Finestone, Barbara Fleck, Julia Glick, Claire Hoffman, Megan Holland, Reshma Kapadia, Kavita Kumar, Thomas Meagher, Suzanne Nam and Johanna Piazza with supervision from Daily News staff writer Bob Port, a Columbia adjunct professor.

They linger outside storefronts or sit on fire hydrants and whisper as you walk past, "Newports, Newports, Newports."

Some carry their merchandise in black plastic bags. Others stuff their pockets.

After two years with the highest cigarette taxes in the nation, bootlegging is a growing New York City profession that easily pays $40,000 a year - tax-free.

On Friday officials acknowledged that a third of the city's smokers buy from bootleggers, the Internet or Indian reservations.

The Daily News sent a crew of Columbia University journalism students to investigate. They found bootlegging thriving across the city, an underground economy that robs the city of tens of millions of dollars in revenue each year.

Day and night, bootleggers blend with crowds on 125th St. in Harlem. They hustle tourists in Times Square. They ply their trade from shops, apartments and offices off Flatbush and Atlantic Aves. in Brooklyn. They work throughout the Bronx and Queens.

One salesman, who refused to give his name, said he sells about five cartons a day, making between $100 and $150 profit. It's easy to find buyers at $5 a pack with smokers facing a typical $7.50 store price that includes city and state taxes of $3 per pack.

"The system deserves to be robbed," declared Eyes, a twentysomething salesman found sitting on a milk crate in Harlem last month. "The system is robbing you by charging $7.50."

Eyes, who buys legally in Virginia or Delaware at $20 to $25 per carton, shares his block peacefully with two competing dealers. "In Brooklyn, kids will knife each other over cigarettes," he said. "Harlem is a free world."

Three Brooklyn men, ages 17 to 23, were killed last December in a cigarette bootleg rivalry. Bootleggers see their chances of jail time as slim. Eyes said the legal risks pale next to those of his former career as a drug dealer and thief.

"Cigarettes," he said, "have the least amount of consequences."

Possessing 20,000 or more illegitimate cigarettes is a felony that can bring only a four-year prison term. Counterfeiting tax stamps carries a 15-year prison term.

The city's revenue from cigarette taxes peaked last year and is now in decline. It's an open question what role bootlegging has played. Some smokers buy through the Internet or travel long distances to stock up.

The city's record-high smoking tax took effect in mid-2002. By the end of its budget year in July 2003, the city had collected $158 million in cigarette tax, a huge jump from $27 million collected the prior year.

Through this March, the city had collected $114 million more in cigarette tax, $7 million behind projections by the mayor's budget office. The city expects to finish its budget year in June having collected $139 million.

Sam Miller, spokesman for the city's Finance Department, attributed dropping revenue to smokers quitting and young people choosing not to smoke.

A city survey released last week said the number of adult smokers declined by 100,000 in more than a year, dropping from 21.6% of adults to 19.3%.

City officials don't track taxes lost to bootlegging; rather, they work with the police and district attorneys to crack down on illegal sales, Miller said.

Before the 2002 cigarette tax hike, Mayor Bloomberg had pegged cigarette bootlegging's cost at $40 million in lost city taxes annually.

The loss may now be 10 times as much, some experts believe.

Within four months of the city's record tax hike in July 2002 — from $.08 to $1.50 a pack - sales of taxed cigarettes here fell by more than 50% compared with the previous year, according to Patrick Fleenor, a senior economist for the Joint Economic Committee of Congress.

That drop was because of bootlegging, he contends.

Ever since New York State imposed its first cigarette tax in the 1920s, black markets and related criminal activity have plagued the city, Fleenor said in a study last year prepared for the nonpartisan Tax Foundation.

It's simple: Entrepreneurs travel to a place with low taxes and fill their car trunk with smokes. A 1960s state commission found one lone bootlegger then earning what would be $5.5 million annually in today's dollars.

Organized crime joined cigarette bootlegging in the 1960s, and violence rose even as legal penalties increased. In recent years, terrorists have harvested cash from cigarette bootlegging.

Indeed, millions of untaxed cigarettes pour into New York each year, said Tony Communiello, bureau chief of special proceedings for the Queens district attorney. His office pursues distributors while police chase street peddlers.

A small-scale player can make $100,000 a year, Communiello said.

He worries that organized crime could renew its interest because penalties for cigarette bootlegging are less severe than for narcotics.

Bootlegging has hurt convenience store and bodega owners who used to rely on cigarette sales to bring in customers.

Nasser Othman, 32, owner of Around the Clock Market and Deli in Park Slope, Brooklyn, said he sells half as many packs as he once did. When a pack cost $4.25, he sold 10 cartons a day, he said. Now, with a pack of Newports priced at $6.65, he sells four or five cartons a day.

"I don't believe it when they say that they raise the price to get people to stop smoking," Othman said. "It's just an excuse to raise taxes."

Gilbert Cedeno, 33, one of Othman's former customers, has cut back. Tax hikes made his habit superexpensive until he found a 70-year-old woman in his building who bootlegs cigarettes to support herself.

From her apartment, she sells at $4 a pack, but only to people she knows.

"We've got more people selling it in the streets than drugs," Cedeno said. "Cigarettes are a big deal. Everyone smokes. Not everyone does drugs."

One cigarette bootlegger wanders Harlem crooning, "Marlllllborrows . . . Nuuuuuports" just loud enough for customers to hear.

The murmuring and constant moving throw off police, said Daniel Rivera, 35, who sold bootleg cigarettes while walking with his wife and pushing a stroller with his two daughters through the intersection of 125th St. and Lenox Ave.

Bootlegging supplements his regular income.

"Work I got — it's not paying me much," he said. "I have to take care of my family of five kids, my wife. ... I have to buy diapers, milk, so for the side, this is okay."

He said he makes about $15 from each carton sold. He and about 50 local bootleggers buy from one man who drives to Delaware or Virginia, loads his van and delivers the goods.

Rivera said he has been caught three times but has yet to serve any jail time. A judge warned him that next time, he will.

"You know, I got a family to care for, they come first," he said. "But I gotta do what I gotta do, you know?"

May 15, 2004
        Bootleg cig sales fired up
        By Paul H.B. Shin

New Yorkers can't resist black-market smokes.

One in three city smokers bought bootleg cigarettes for their nicotine fix in 2003, dodging hefty taxes that were supposed to nudge people into kicking the habit, the city Health Department revealed yesterday.

In the wake of a series of state and city tobacco tax hikes - now totaling more than $3 a pack - a third of city smokers admitted in a Health Department survey they are buying cigarettes from Indian reservations, through the Internet, by mail, from other states and even from abroad.

"We have seen an increase in the sales of nontaxed cigarettes," Health Commissioner Thomas Frieden said yesterday.

The agency had claimed a major victory in its anti-smoking campaign this week, pointing to results from the same survey that showed the number of regular smokers had plummeted 11% between 2002 and 2003.

That dramatic decline came after the city raised its tobacco tax on July 1, 2002, to $1.50 from 8 cents, and implemented a tough smoking ban in bars and restaurants on March 30, 2003.

The survey also found cigarette consumption had dropped 13%, hinting that even those who did not kick the habit were smoking less.

Even as smoking declined, the revelation showed that a huge chunk of puffers are avoiding city and state taxes.

"If people can take advantage of an illegal outlet, you're defeating the purpose of raising the taxes," said Assemblyman Jeffrey Klein (D-Bronx), who sponsored legislation that now bans Internet sales of cigarettes.

Klein is preparing to sue certain Native American tribes that have refused to levy tobacco taxes. A carton of cigs that costs $75 in the city can cost a mere $25 on an Indian reservation.

Jose Fernandez, president of the Bodega Association of the United States, blamed lax enforcement for the rampant bootlegging. Cigarette sales have plummeted by 40% at local convenience stores, he said.

Sam Miller, assistant commissioner at the city Finance Department, conceded the city needs more help from state and federal law enforcement.

But the city has taken several measures to "ratchet up the pressure" on smugglers, he said.

A city lawsuit led to the shutdown of three Internet-based cigarette merchants, Miller noted, and the NYPD also made 700 arrests last year related to bootleg tobacco.

May 13, 2004
        Tax, ban slash city smoking - poll
        By Paul H.B. Shin

Faced with a tough new smoking ban and a large hike in tobacco taxes, New Yorkers kicked the habit in record numbers in 2002-03, according to a city survey unveiled yesterday.

The percentage of smokers in the city dipped from 21.6% of adults in 2002 to 19.3% in 2003 - meaning about 100,000 fewer people were lighting up.

"For the first time ever, there are more former smokers than there are smokers in New York City," Health Commissioner Thomas Frieden said.

He credited the drop to the city's double-barreled assault on smoking - a tobacco tax hike on July 1, 2002, from 8 cents to $1.50, and a smoking ban in bars and restaurants starting March 30, 2003.

But some experts were skeptical of the survey's methods.

"I would not put too much credence in these new studies," said Robert Levy, a smoking policy expert at the Cato Institute, a Washington think tank.

The Health Department's survey was based on two polls of random groups of people, taken one year apart. The more accurate way to gauge the impact of policy on smoking patterns, Levy said, would have been to select a group of smokers and follow their habits over time.

But Dr. Farzad Mostashari, the city's chief epidemiologist, said the city employs the same method used by the federal Centers for Disease Control and Prevention. He added that the survey's large sample size, 10,000 people, ensures a relatively accurate snapshot.

Mayor Bloomberg's critics also raised doubts about the survey's dramatic results.

"I really have a hard time believing it's 100,000 people," said Councilman Tony Avella (D-Queens). Avella pointed to a recent city survey that showed local merchants have not been significantly affected by the smoking ban but failed to make a distinction between bars and restaurants.

"I am very skeptical these days of figures that the administration puts out because I suspect they're geared to supporting their agenda," Avella said.

May 13, 2004
        Quitting time
        Editorial

Puff-ertarians, the bunch who believe smoking is an inalienable right, have been wheezing about Mayor Bloomberg ever since he jacked up the cigarette tax and banned butts in bars and restaurants. Some seem determined to go to their graves coughing "Live Free and Die," but many others are doing themselves the favor of quitting.

A Health Department survey, involving interviews with 10,000 New Yorkers, has discovered that the number of adult smokers in the city dropped by 11% from 2002 to 2003. That is a precipitous decrease, the steepest in the city in a decade and the fastest recorded in the nation. While the figure is not scientifically verified, it signals that Commissioner Thomas Frieden's drive against smoking, the leading cause of preventable deaths, is paying off, big-time.

Frieden, a physician and public health crusader, signed on with Bloomberg 2-1/2 years ago on the condition that the mayor back an assault on smoking. Thus the bar ban. Thus the tax hike that boosted the cigarette levy to $1.50 a pack from 8 cents after the state also had increased its tax to $1.50. Thus the distribution of free nicotine patches to New Yorkers who cannot afford them.

The 11% drop is equivalent to about 100,000 fewer smokers, almost enough to fill Yankee and Shea stadiums. The department's survey did not delve into why people quit, but it stands to reason that economics played a big role. An extra $1.50 a pack is likely unaffordable for many folks, and paying for the privilege of contracting lung cancer or heart disease makes no sense.

May 11, 2004
        Pols: Up age to buy cigs
        By Joe Mahoney

ALBANY - It might be a drag for some 18-year-olds, but two lawmakers want to raise the legal age for buying cigarettes by a year.

The two state legislators, Assemblywoman Sandra Galef (D-Westchester) and Sen. James Alesi (R-Rochester), are both ex-smokers who say they want to stop kids from getting hooked.

"It's very hard to stop smoking after you get addicted, so we want to stop young people from getting started," Galef said.

All 50 states set the smoking age at 18 in 1992. But since then, three states - Alabama, Alaska and Utah - have raised the bar to 19.

A proposal that would have pushed the smoking age even higher in New York - to 21 - was bottled up in the state Senate last year.

But Assemblyman Pete Grannis (D-Manhattan), an anti-tobacco crusader for nearly two decades, said he believes the call for boosting the smoking age has a strong chance of advancing this year amid the state's tough new smoking law.

"This is an industry that preys on young people," said Grannis, who contended a higher age would make it harder for youngsters to find "role models" who smoke at school.

But the idea was trashed by the 5,000-member New York Association of Convenience Stores and the pro-tobacco New York City Citizens Lobbying Against Smoker Harassment.

The groups contend 18-year-olds can make their own choices, and that there are enough laws in place to keep cigarettes away from minors.

Aides to Gov. Pataki had no immediate comment on the proposal.

April 13, 2004
        Beer ads frost mayor
        By David Saltonstall and Lisa L. Colangelo

Mayor Bloomberg got downright frosty yesterday with Rheingold.

With the brewer set to air ads today dousing the mayor's smoking ban, Bloomberg blasted Rheingold as a bad corporate citizen that long ago abandoned its Brooklyn roots.

"Rheingold is a company that walked out on this city 30 years ago," said Bloomberg, referring to the 1974 shutdown of the beer's Bushwick plant that cost the city 1,500 jobs.

In an image that broke beer lovers' hearts, the brewery - too broke to bottle its last tanks of beer - let 62,000 gallons of suds flow into city sewers that day.

The mayor's comments came as Rheingold is due to start airing 30-second ads today on cable TV that poke fun at Bloomberg's smoking ban, cabaret laws and silly summonses. The spots will run despite an angry phone call from Deputy
Mayor Daniel Doctoroff to Rheingold execs.

In one ad, dancers shake their booties until a banner appears on screen warning: "No Dancing. Fine: $300."

The most controversial spot, "Ashtray," shows several people striding down the street with ashtrays in their pockets.

They pop into a bar, slam down the trays and are served a Rheingold before the screen fades to the message: "No Smoking in Bars. Fines issued: $200 and up."

"It's all about freedom of choice, which is one of the things that makes this city so great," Rheingold President and CEO Tom Bendheim said of the ad campaign.

April 12, 2004
        Beer ads full of boos for Bloomy
        By Tracy Connor

You can bet they won't be serving Rheingold at Gracie Mansion anytime soon.

The brewery has declared war on City Hall with a series of in-your-face television ads attacking the smoking ban, cabaret laws and silly summonses.

"This is New York, and we can't sleep till we take it back," the narrator declares in the three commercials, which start airing Wednesday on cable.

Each 30-second spot tackles a different enforcement issue.

In "Cabaret," actors are seen break dancing all around town until a banner comes up on the screen announcing: "No Dancing. Fine: $3,000."

Another features a montage of people sitting on milk crates - a reference to Daily News stories about a man getting ticketed for turning a crate into a chair.

But it's the "Ashtray" spot that's sure to be the most controversial, depicting hipsters striding down city streets with ashtrays in their pockets.

They march into a bar, pound down their ashtrays and are served ice-cold Rheingold before the screen fades to this message: "No Smoking in Bars. Fines Issued: $200 up."

The message had anti-smoking activists fuming.

"It's as close to encouraging breaking the law as you can get," said Gene Borio, who runs the Web site www.tobacco.org and supports the city's ban on smoking in bars.

Mayor Bloomberg's office dismissed the ads as a cynical ploy by Rheingold, which closed its Brooklyn doors in 1976 and started brewing again in upstate Utica five years ago.

"When times were tough, Rheingold abandoned Brooklyn, laying off 4,000 New Yorkers," said Jordan Barowitz, a spokesman for Bloomberg.

"Now that times are better, they want to exploit the city to sell their product. They have as much of a connection to New York as Heineken does."

Rheingold chief executive Tom Bendheim said he went after the smoking ban and other issues because they're important to the bars and consumers who buy his beer.

"We're trying to impress on people that the foundation of what the city was built on was Bohemia, and every one of these laws ... just begins to erode the foundation of what makes the city great," said Neil Powell, the ad's creator.

Powell put together a list of topics for future ads, including the restriction on feeding pigeons, a ban on bikers lifting both feet off the pedals, and a ticket given to a pregnant woman who stopped to rest on subway steps.

But what does any of it have to do with beer?

"It should appeal to the people that enjoy nightlife in New York City," Powell said. "And drinking beer is part of that."

April 9, 2004
        City-state cig ban suit flames out
        By Robert Gearty

Breathe free.

A federal judge yesterday snuffed out a lawsuit seeking to overturn the controversial city and state bans on smoking in bars and restaurants.

City officials hailed the ruling by Manhattan Federal Judge Victor Marrero who rejected a sweeping constitutional challenge brought by the group NYC CLASH - Citizens Lobbying Against Smoker Harassment.

"The Smoke-Free Air Act was enacted to protect workers from the adverse health impact of second-hand smoke, and we are pleased with the court's decision," said city Health Commissioner Thomas Frieden.

Among other things, CLASH claimed in its lawsuit that the butt ban violated the free speech rights of smokers. But Marrero said CLASH was just blowing smoke.

"Mere conduct, such as smoking, is not generally considered speech," the judge said in an 83-page decision.

He stubbed out another CLASH argument that smoking was a form of political protest.

In their suit, the plaintiffs also tried to cast doubt on two decades of evidence tying health risks with second-hand smoke.

But Marrero said that argument was "akin to trying to scale Mount Everest with a ball of string."

He said the smoking bans were "a valid exercise of the [government's] police powers over the health and welfare of its citizens."

CLASH's attorney, Kevin Mulhearin, said the organization plans to appeal. "The plaintiff is obviously disappointed but resolute," he said.

April 8, 2004
        Barkeeps call rosy biz stats smoke screen
        By Lisa L. Colangelo

Bar and tavern owners, charging that Mayor Bloomberg's smoking ban is a business buster, accused the city yesterday of fudging numbers to support the controversial law.

In a recent report, the Bloomberg administration crowed that business at bars and restaurants increased 8.7% in the year since the ban went into effect.

"It's baloney," said Lee Seinfeld, owner of the Dive Bar and two other bars on the upper West Side, and one of more than a dozen suds slingers who appeared outside the Health Department's Worth St. offices.

Bar owners, who were met by counterprotesting anti-smokers, have repeatedly said that it's unfair to lump them with restaurants, which already had a partial smoking ban.

"They mix bars, restaurants, Starbucks, McDonald's, ice cream parlors - anything you want to put in, that's what they've done. ... It's not reflecting what's happening in my business," Seinfeld said.

Bar owners also take issue with the Health Department's contention that 1,000 people die of secondhand smoke exposure a year. "This is a made-up estimate," said Danny Frank, executive director of Amusement and Music Owners of New York.

The Health Department defended its statistics.

"The most objective data available on employment and tax receipts in the bar and restaurant industry have shown that smoke-free workplaces have not had a negative effect on business," the department said in a statement. "Moreover, 150,000 workers are no longer subjected to secondhand smoke, exposure to which leads to an estimated 1,000 city deaths a year."

March 30, 2004
        Smoking ban lucky strike for elex: Mike
        By Lisa L. Colangelo

Mayor Bloomberg boasted yesterday he will kick the butt of any contender who tries to use his smoking ban against him during next year's election.

"This will turn out to be one of the most popular things that the administration has done," Bloomberg said yesterday, one year after the ban went into effect. "And those who want to go and run against it - good luck having a campaign on bringing back smoking."

A report released yesterday by several city agencies showed business is up 8.7% in restaurants and bars during the first year of the ban.

Bloomberg said he's not worried about any political fallout, even though the ban has many patrons and owners of bars and clubs grumbling.

"I can't go into a bar or restaurant where I don't have people come up to me who work in the restaurant and say, 'I want to give you a kiss, you have saved my life,'" Bloomberg said.

The mayor's likely opponents are keeping a low profile on the debate.

"If that is his belief, more power to him," said ex-Bronx Borough President Fernando Ferrer, who has said he thinks the law needs to be reexamined. "I don't think [the smoking ban] will have a large impact on the next election."

Controller William C. Thompson Jr., who has expressed concerns about the ban's effect on business, declined comment.

"The speaker favors the anti-smoking legislation that the city passed that would have allowed for some exceptions," said Fred Baldassaro, a spokesman for City Council Speaker Gifford Miller (D-Manhattan). "But we were superseded by the state."

March 29, 2004
        Take that butt outside...to the limo
        By Alison Gendar

Smoking car has taken on new meaning in the year since Mayor Bloomberg stubbed out cigarettes in restaurants and bars.

"Car? This ain't no car," said Owen Chambers as he gazed at his 41-foot stretch Ford Excursion idling in front of davidburke & donatella, a posh upper East Side restaurant. "It ain't no car, but it is smoking."

Since January, Chambers and the sparkling white stretch have parked outside the E. 61st St. eatery providing a lush, slightly decadent place for customers to light up from 7 p.m. to midnight.

Bloomberg's edict - a year old tomorrow - banned cigarettes in bars, restaurants and clubs, pushing puffers onto sidewalks.

"I couldn't have people standing out in the rain and snow to catch a smoke," restaurant co-owner David Burke said. "So we rented the limo."

Other bars and restaurants have been equally inventive.

Caffé on the Green in Bayside, Queens, set up tents known as the Butt Hutt. The West Village club Luke & Leroy installed a fake sidewalk fireplace.

These zones do more than remove the taint of lighting up: They have become hot spots in their own right, reminiscent of where the cool kids hung out in high school, smokers say.

"Smoking has become a nasty habit, so having some place to go, instead of standing on the street, is great - sort of an in-club for outsiders," said a bottle-blond as she got out of the davidburke & donatella stretch.

"You can enjoy a cigarette and not feel ostracized," added photographer Josh Azar, as he and a friend took a smoking break before their meal.

With the weather getting warmer, Burke is considering a change. He might trade the stretch for a horse and buggy this spring - and maybe a boat on a trailer for late summer. "A taste of the ocean," he said.

But half the fun of the limo is the privacy of the 20-seater's tinted windows, smokers say.

"Some women have gotten frisky back there," said Chambers, a veteran limo driver.

"There was a time when one of the owners [of the restaurant] opened the limo door and there was a woman inside with her, well, her skirt up around her head," he said. "She was reminded the limo is supposed to be just for smoking."

Neighbors have called the police and Health Department on Chambers, complaining the limo is an illegal smoke-easy.

Chambers gives the same explanation to inspectors and customers: As a private vehicle that doesn't pick up passengers off the street, it's exempt from the ban. City officials agreed the limo is not breaking any laws.

Smokers say they need their hideaways because even at places like davidburke & donatella, the hostility can be pointed.

"A smoking limo is fine by me as long as I don't have to smell it," said comedian Carol Burnett as she wrapped up a six-course meal.

One of her party was more direct: "Why not just take the exhaust pipe and run it in the back of the limo? That way, they don't have to buy cigarettes."

March 29, 2004
        Ban's foes blow smoke: study
        By Lisa L. Colangelo

The city ban on smoking in restaurants and bars is good for the lungs - and for business, according to a Health Department report released yesterday.

A year after the controversial law went into effect, business in restaurants and bars is up 8.7%, according to the report.

The study - done by the same department that advocated the ban in the first place - compared tax receipts, employment and business openings and closings in 2002 and 2003.

"The bottom line is that New York City a year later is a healthier place to work, eat and drink," said Health Commissioner Thomas Frieden. "And 150,000 people don't have to go into work every day and be smoked on by other people."

Of the 22,003 establishments inspected from April 2003 to February 2004, 97% were deemed "smoke-free." Inspectors saw no ashtrays at these locations, no one was spotted smoking and cigarette warning signs were hung properly.

The state Liquor Authority awarded 1,416 new licenses in 2003 in New York City, compared to 1,361 in 2002, according to the report.

Mayor Bloomberg risked heavy political fallout when he pressed the ban, which continues to anger smokers who resent being sent to the sidewalk for a cigarette.

Despite the rosy numbers, many bar and club owners complain business has suffered.

Using 2002 - when the economy plummeted after the 9/11 terror attacks - as a baseline for comparison is unfair, bar owners say.

"Why don't they just compare job stats to 1929 - it's about as relevant," said David Rabin of the New York Nightlife Association, co-owner of Lotus. "Two thousand two was probably the worst year to compare to in 20 years. And they simply refuse to separate out bars, clubs and taverns [from restaurants]. They know numbers are bad there."

Rabin said bar and club employees have taken second jobs to make up for lost tip income.

"Is that an increase in jobs?" he quipped.

Frieden said opponents falsely predicted doom and gloom when they warned employment and revenue numbers would drop 30% to 50%.

"They were wrong," Frieden said. "That doesn't mean there aren't businesses that are hurting for a whole variety of reasons. Around the country, stand-alone bars are not doing well."

March 28, 2004
        Smoke ban a hit - even outpolls Yanks
        By Lisa L. Colangelo

What do New Yorkers like more than the Yankees or a Coney Island hot dog?

The smoking ban.

Or at least that's the conclusion of a poll of 500 registered voters for the Campaign for Tobacco-Free Kids.

According to the poll, 61% of people strongly support the ban on smoking in workplaces, including bars, restaurants and offices. That's up from 55% in a similar poll conducted in August.

Another 14% said they "somewhat" support the ban.

"Those are amazing numbers," said Josh Isay, a spokesman for the campaign. "People should know that contrary to some press reports, this law is very popular ... it's a vocal minority that opposes the law."

By comparison, 46% of respondents reported a "very favorable" view of the New York Yankees, and 39% were big fans of Coney Island hot dogs.

And 70% of people said the rights of customers to be in a smoke-free restaurant or bar is more important than the right to smoke.

Bob Zuckerman of the New York Nightlife Association questioned the validity of the results.

"When you group bars and restaurants together, you get a much different result than if you just ask about bars," he said. "We continue to hear from members and even nonmembers that the smoking ban has hurt business and curtailed the bar business."

About 80% of the women surveyed support the ban while only 19% opposed it. Meanwhile, 70% of men supported the ban and 29% opposed it.

The poll had a margin of error of 4.5%.

March 25, 2004
        Mike's run may go up in smoke
        By Sidney Zion

Mayor Bloomberg could be run out of City Hall by the smokers he ran out of bars and into the streets.

This will sound funny to those who read polls that say Bloomberg's smoking ban is popular. But it's very serious to the politicians who have their eyes on Gracie Mansion - and their ears to the bitterness of smokers and the business blues of saloon keepers and restaurateurs.

I spoke yesterday to three of the Democrats who are considering making the run for mayor: Rep. Anthony Weiner, Controller William Thompson and Fernando Ferrer, the ex-Bronx borough president who nearly won the nomination in 2001. All three, in varying degrees, say they will make the smoking ban a serious issue in their campaigns.

"It has to be," says Hank Sheinkopf, the savvy New York political consultant, "because to many smokers, this is a one-issue deal, like abortion and gun control. If they're with you on everything else but this, you're dead. It could lose Bloomberg north of 400,000 votes."

Weiner is easily the most articulate on the issue, which, on the face of it, is surprising because he is a nonsmoker. "If you want to see just how much Bloomberg misunderstands the DNA of New York - what sort of a condescending patrician he is - look at the way he handled the smoking business," says Weiner.

"He rammed it through without ever having campaigned for it. He did it without considering what it would do to the small bars in the city, particularly the outer boroughs, what it would do to the soul of New York, which to me is libertarianism, the right to live your life without onerous government intervention. I sum it up this way: New York does not want or need Nurse Ratched as mayor."

Weiner represents parts of Queens and Brooklyn, the last gin-mill neighborhoods of the city, where smokin' and drinkin' are an integral part of the life of working men and women.

"Exactly where Bloomberg is most vulnerable," says Sheinkopf. "Add Staten Island, where his Republican base threatens him on real estate taxes as well as smoking, and the mayor is in big trouble."

So, too, may be Gifford Miller, the speaker of the City Council, who pushed through Bloomberg's smoking law. Miller wants the Democratic nomination for mayor, and now Weiner, Thompson and Ferrer will challenge him.

Thompson told me yesterday: "I'm concerned that the blanket application of the smoking ban has had a negative financial impact on bars, and I would look to create exceptions for these establishments."

Ferrer says: "We definitely need to reexamine this law and see if we can come to a reasonable way to both protect health and business."

Make no mistake about it - the restaurants and bars are getting killed by this Bloomberg-Miller law that has nothing but fake science to support it.

Health Commissioner Thomas Frieden insisted to me that 1,000 bartenders and waiters die each year of secondhand smoke. I didn't bother to argue with him about this nonsense. I simply warned him that he could cost Mike the election.

Hearing that, he took notes and said, "I wish I could take the heat instead of him. Maybe we should put me on a dartboard."

Too late, buddy. Too late.

March 20, 2004
        All puffed up over cig law
        By Lisa L. Colangelo and Alison Gendar

A year after Mayor Bloomberg stubbed out smoking in all restaurants, nightclubs and bars, officials are calling the ban a burning success.

Health Department officials said yesterday that 97% of restaurant, bars and clubs have "substantially" complied with the ban by booting smokers, posting "No Smoking" signs and ditching ashtrays.

"If success is defined as 100%, then this is pretty darn close," said department spokesman Sid Dinsay.

The city has investigated 3,500 smoking complaints and issued 3,300 violations since the law took effect March 30, 2003.

Dinsay could not say how the city determined that 97% of the spots are complying.

But random spot checks by the Daily News of 35 establishments found one in three bars and clubs, and one in five restaurants, still turns a blind eye to the law.

"If you want to smoke, just go in the back," a Williamsburg bartender told patrons as they stood under a "No Smoking" sign in a pub on a recent Thursday night.

The findings mirrored a similar News review of 46 bars last April.

Bar owners and their patrons said the past 12 months have been an economic disaster: Bar stools and cash registers are empty, clubs break the law just to survive and smokers are pushed into the street to puff.

"New York City has gone from the city that never sleeps to Sleepy Hollow," said Tom Carrube, manager of Sharkey's Sports Bar and Grill on Staten Island. He estimates that revenue has plummeted 60% as regulars stay home or head to nearby New Jersey for a beer and a smoke.

Two-thirds of the clubs blamed the ban for lost business and a third for payroll cuts, according to a fall survey of 300 area bars and nightclubs by the Vintners' Federation of Ireland.

Anti-smokers, however, say the gloomy reports are just empty huffing and puffing.

Stanton Glantz of the University of California-San Francisco, who has studied the economic impact of smoking bans, says bans don't hurt the industry.

And the state Liquor Authority reported no drop in the number of city owners seeking liquor licenses in the year following the ban.

With the ban here to stay, the mayor may earn another legacy from it that he hadn't counted on: The little huddles of smokers outside bars have been tagged "Bloomberg lounges."

"It's horrible," said Vikki Barbero of Community Board 5, which covers prime party zones between 14th and 59th Sts. between Lexington and Eighth Aves. "People in the neighborhood are sick of it."

March 18, 2004
        Club satisfying burning desires
        Lowdown - By Lloyd Grove

The glitzy "gentlemen's club" Scores - for more than a decade a hangout for name-brand celebs and well-endowed young ladies who like to get almost naked and writhe in male laps - staged a grand opening for Scores West on Tuesday night.

Gentlemen of all ages, including yours truly, converged on the spanking-new $10 million club on W. 27th St., where strippers in G-strings gave customers lap dances and cigarette and candy girls sold their wares.

And where cigar and cigarette smoke rose to the ceiling.

Smoke.

Wafting.

Indoors.

Almost a year after Mayor Bloomberg launched his jihad against indoor smoking in public places.

Scores impresario Lonnie Hanover told me yesterday that despite the smoking ban, puffing on the premises is permitted at the East Side club. It is classified as an "existing tobacco bar" under New York State law, so the city granted it an exemption from the ban.

Hanover added: "Scores West features a cigarette and candy girl. We have a license to sell tobacco, including our own brand of Scores cigars ... On the East Side, there is smoking all through the main showroom. We have never stopped smoking on the East Side."

Hanover says Scores is negotiating with the Bloomberg administration to allow legal smoking on its West Side premises as well. All of which was alarming news to Sandra Mullin, communications director for the New York City Department of Health and Mental Hygiene.

"We're certainly eager to inspect both places and we will do so," Mullin vowed yesterday, insisting that smoking is against the law at both Scores venues.

She said the exemption at the East Side club was rescinded in February, because the club was never eligible for one under city regs. As for the West Side club, "If smoking is going on there, we will cite them," she said.

Scores attorney Marvin Mitzner, of the well-connected law firm Fischbein Badillo Wagner Harding, claimed that "we are properly complying with the statute. We welcome the Health Department to send us a formal notification of what they believe the problems. We welcome the opportunity to address these issues with the city."

Smokin'!

February 11, 2004
        Mike huffs & puffs over bash
        By Michael Saul

Is the smoke clouding Mayor Bloomberg's memory?

Bloomberg initially told reporters he did not see anybody smoking at a high-flying dinner for Wall Street executives at the St. Regis Hotel last month.

Yesterday, he said he doesn't "really remember."

"The bottom line is, I don't really remember anybody smoking," Bloomberg said in a radio interview. "Most people weren't, and if there were some people in the corner smoking, they were smoking. What do you want me to do? Call the cops? I mean, come on!"

On Monday, Bloomberg unequivocally said: "I didn't see any smoking when I was there."

According to published reports, a number of executives puffed cigars in Bloomberg's presence at the Jan. 15 black-tie dinner sponsored by Kappa Beta Phi, an exclusive secret society for financial bigwigs.

As a result of the incident, health inspectors are scheduled to visit the St. Regis Hotel in pursuit of current smoking violations.

Saying, "Smoking kills," Bloomberg vehemently defended the city's smoking ban yesterday.

"We would do a great service for society if we stopped kids from smoking and stopped each other from smoking," he added.

"You can smoke outside. You just can't smoke where somebody else is forced to breathe the air, particularly people that work there. That's the key."

February 10, 2004
        Mike blows smoke about bigs' bash
        By Michael Saul

Mayor Bloomberg said yesterday he didn't see - or, presumably, smell - any smoking at a fat-cat event for Wall Street executives at the St. Regis Hotel last month.

According to published reports, several of the execs puffed cigars in Bloomberg's presence.

The mayor, who was the driving force behind legislation to ban smoking in most public places, said he arrived late at the Jan. 15 black-tie dinner sponsored by Kappa Beta Phi, an exclusive secret society for financial bigwigs.

He said he stayed only 90 minutes. There "very well could have been" smoking, he said, but he didn't detect it. "I didn't see anybody smoking when I was there," Bloomberg said.

The dustup has led to allegations that the city has two standards for enforcing the new law - one for Bloomberg and his wealthy friends, and another for everyone else.

Bloomberg insisted yesterday he wasn't turning a blind eye to protect his pals.

"We have one standard," he said. "It should apply to everybody, whether I'm there or not."

January 13, 2004
        Mike burns both ends
        By Lisa L. Colangelo

Mayor Bloomberg has taken heat from smokers angry over his sweeping ban on butts.

But now it is members of the anti-smoking brigade who are giving Bloomberg grief.

The American Cancer Society is miffed the mayor didn't mention the smoking ban in his State of the City address last week.

"We've talked about it before," Bloomberg told reporters yesterday. "I'm not walking away from it. Quite the contrary, I think there's nothing in my life that I will ever do that will save as many lives as doing that."

The cancer society sent both Bloomberg and Gov. Pataki letters last week asking them to "trumpet the smoking ban" and "remind New Yorkers of its benefits."

Neither did.

"While we are disappointed that he did not highlight the smoking ban as a major achievement of 2003 in the State of the City address, there is no doubt where the mayor stands in his support of the law," Donald Distasio, CEO of the American Cancer Society's Eastern Division, said. "We and our partners will continue to trumpet the smoking ban and encourage the mayor to remind New Yorkers of its benefits."

Bloomberg said, "What I'm trying to do is each time focus on new things. [With] the State of City, you're trying to say what the state is and what you have accomplished. What you really want to do is focus on going forward."

January 6, 2004
        Vanity Fair kicks Bloomberg's butt
        The 411
        By Rebecca Louie, Suzanne Rozdeba, Zoe Alexander and Ben Widdicombe

Vanity Fair editor Graydon Carter has burned Mayor Bloomberg in the latest round of their feud over New York's smoking ban. Two tirades aimed at the mayor appear in the magazine's February issue, on stands tomorrow.

"Under current New York City law, it is acceptable to have a loaded handgun in your place of work," Carter fumes in his editor's letter, "but not an empty ashtray."

The rant comes after city officials hit Carter with three separate summonses for having an open ashtray in his Conde Nast office on Times Square.

Carter also sics bad-boy author Christopher Hitchens onto Hizzoner. Hitchens writes about his efforts to break as many laws as possible in Bloomberg's New York, which he moans has become "the domain of the mediocre bureaucrat."

He lights up a cigarette in a bar, takes up two seats on the subway, even sits on a milk crate in broad daylight - all activities that have earned New Yorkers summonses in recent months, as first chronicled by The News.

"This current Niagara of pettiness and random victimization may well be Bloomberg's attempt at a wanna-be reputation as heroic crimefighter and disciplinarian," writes Hitchens. "Who knows what goes on in the tiny, constipated chambers of his mind?

"All we know for certain is that one of the world's most broad-minded and open cities is now in the hands of a picknose control freak," Hitchens concludes.

But Bloomberg spokesman Ed Skyler told Daily News City Hall bureau chief David Saltonstall that all of the laws Hitchens broke - with the exception of the smoking ban - have been on the books for years.

"This so-called story [is] nothing other than the latest hit piece commissioned by Graydon Carter," he thundered.

Who was it that said you can't fight City Hall?
 
 

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NY Newsday - June 28, 2004
        NY ADOPTS 'FIRE-SAFE' LAW
        Cigarettes must have self-extinguishing paper
        By Andrea Baker

ALBANY - A long-awaited law requiring cigarettes sold in New York to be manufactured with paper that extinguishes itself takes effect today after years of delay.

Designed to prevent accidental fires, the law is the first of its kind in the nation and was supposed to begin last year.

"This is absolutely groundbreaking," said Russ Haven, legislative council for the New York Public Interest Research Group. "This will have a clear benefit in saving lives and preventing injuries. New York is way out in front on this."

The "fire-safe" cigarette law was signed by Gov. George Pataki in 2000 after an earlier veto, but became mired in bureaucratic hang-ups about promulgating the regulations and concerns by the tobacco industry that the technology was not ready.

The state Office of Fire Prevention and Control helped develop the final standards, which require manufacturers to mark cigarette packages with a symbol that they are "fire-safe."

Beginning today, retailers and wholesalers must sell the new products, though they can sell out existing stock. The office may conduct spot checks to ensure compliance with the law, said Peter Constantakes, spokesperson for the Department of State. Depending on the number of cigarettes sold, he said, store owners could be fined up to $1,000 for breaking the law.

Brendan McCormick, a spokesman for Philip Morris USA, said the company began shipping the new cigarettes June 14. "Our focus now is on compliance," he said, adding that "we continue to believe a uniform national law is the best way to deal with this issue."

An average of 60 people die annually in New York from cigarette fires, according to Department of State statistics.

"While I'm not happy it took this long, I am pleased the lives of some New Yorkers will be saved by these new regulations," said Sen. Frank Padavan (R-Jamaica Estates), one of the bill's sponsors.

Advocates are now pushing for a national cigarette fire-safety standard. Eleven other states are considering similar legislation.

Associated Press - June 28, 2004
        New Law for Cigarettes Takes Effect in NY

ALBANY, N.Y. (AP) -- Smokers who linger between drags on their cigarette may need to be a tad more careful in New York. Their smokes will self-extinguish if not puffed on regularly.

Beginning Monday, New York becomes the first state to require new ``fire-safe'' cigarettes to be sold. The law is meant to cut down on the number of smoking-related fires.

For the past several months, companies have rushed to meet the deadline to supply vendors with the new cigarettes, which are wrapped in special ultra-thin banded paper that essentially inhibits burning.

But manufacturers warn that though the new cigarettes go out on their own, they're not fireproof and careless handling could still lead to fires.

``It's up to individual smokers to make sure that they do not let these products lull them into a false sense of security,'' said Ellen Matthews, a spokeswoman for R.J. Reynolds Tobacco Co., the nation's No. 2 cigarette maker.

The lower-ignition paper does nothing to curtail the toxicity of cigarettes or reduce the health effects of smoking. About 900 Americans die each year and another 2,500 are hurt by fires started by cigarettes left unattended.

Customers can see if their pack of cigarettes comply with the new law by checking for a tiny mark next to the bar code -- an asterisk, a dash or a diamond.

Philip Morris USA, the nation's No. 1 cigarette maker, has marketed its Merit brand nationally with the banded paper since 2000, but it had to tweak it to meet New York's standards, said Brendan McCormick, a Philip Morris spokesman.

Lorillard Tobacco Co., maker of Newport and Kent, has been selling the lower-ignition cigarettes in the New York market since March.

Last week, anti-smoking advocates sent a letter to the major cigarette makers, urging them to use New York's standards to produce and distribute fire-safe cigarettes to other states. Tobacco companies have said there's no immediate plan to roll out the new cigarettes nationally.

New York retailers have not noticed any change in sales or excessive complaints from smokers, except for some who are annoyed when their cigarettes go out automatically.

``The change has been uneventful. We're hopeful that there won't be any need or cause for customers to seek out other sources of cigarettes,'' said James Calvin, president of the New York state Association of Convenience Stores, a non-profit group representing 5,000 mini-marts and corner stores.

But if smokers head to neighboring states or buy regular packs of cigarettes through mail-order or the Internet, there's not much New York can do.

``If people go outside, that's a little bit beyond our control,'' said Peter Constantakes, a spokesman for New York's State Department, which helped draft the fire-safety law.

Most popular brands will be available in New York with the lower-ignition paper, but some tobacco companies have abandoned converting lower-end brands due to costs.

Nikki Kane, 21, a smoker from Albany, applauded the change. A few years ago, she escaped a house fire that started when someone left a cigarette burning.

``They're good because if you leave a cigarette burning or you fall asleep, you don't have to worry about the mattress going up in flames,'' she said.

News 10 Now - June 25, 2004
        The other outcome of the smoking ban
        By Nick Cowdrey

A St. Lawrence County bar is proving this week that the New York State Clean Indoor Air Act is hurting some bars and taverns.

The Web - a small tavern in Ogdensburg - will close its doors Saturday.

Owners Janet and Anthony Doerr say the smoking ban destroyed their business. Since it went into affect, the Doerrs says business has gone down hill.

"Who wants to go into a little room and smoke, they want to sit and talk to each other, they don't want to go into a little room,” said Janet.

The couple didn't apply for a smoking waiver, saying they didn't want to give the state more money.

Earlier this year the bar was cited for allowing people to smoke. They were fined four thousand dollars by the Health Department, but they are appealing the fine.

The couple plans to go out with a bang, with a party scheduled for Saturday.

"I'm hoping we'll have a good crowd here and a lot of the people are angry of the law, a lot of people, and I think a lot of people are going to speak out,” said Janet.

Regulars say they are sad to see the place close.

"We always like being here, coming here, they’re always friendly, they’re just great people, I wish they weren't leaving us,” said Linda Thompson.

During the bar’s stint, Janet has been active in fighting the ban, whether protesting to politicians or collecting signatures from thousands.

One person in particular has been with her every step of the way.

"They’re consenting adults, they know if they want to enter an establishment that has smoking in it. The state says, ‘Well, it’s for the employee's protection,’ well most of these bar owners are owner/operators so that throws that idea right out the window,” said Lee Monnet.

"New York State is the terminator, they terminated this business,” said Janet.

The Doerrs aren't just closing their bar, they are leaving the state.

They're asking $180,000 for their property, and plan to move to New Hampshire to live by the "live free or die" state motto.

So far, the Department of Health has granted smoking waivers to two businesses in St. Lawrence County.

Hornell Evening Tribune - June 25, 2004
        Hornell OTB gains rare waiver to state smoking ban
        By Kyle A. Torok

HORNELL - Names like Smarty Jones, Secretariat and Seabiscuit have been reunited with Panatela, Camel Red and E-Z Wider.

The Hornell Off-Track Betting branch now allows smoking, one of a very few establishments in New York state to be granted a waiver to the smoking ban.

Patrons can play the ponies and puff on pipes, cigars and cigarettes as long as they remain tucked away in the parlor's 14-by-18 foot corner room. Whether the waiver has made a difference since it went into effect a month ago is unknown.

"So far, I haven't really seen an increase," said Peggy Tobin, Hornell branch manager, of patronage. "I don't think people really know about it yet."

Waivers have rigid requirements of applicants. They must demonstrate a significant loss of revenue directly related to the ban, and also meet strict regulations for separate designated smoking areas.

Signed into effect on May 28, OTB's waiver states that the room must create and maintain a negative air pressure and that employees may not be in the room when patrons are smoking.

A handful of patrons made use of the room Thursday afternoon, some settling in for a long haul with a pack on the table, and others just popping in on the way home from work. Regulars said they were uncertain whether the waiver would help business at OTB, saying they had not noticed an increase in traffic, either.

Dale Tormey of Westfield, Pa., travels to the Hornell branch about once a week to play the ponies.

"Why do I come here? Why do you think?" Tormey said, waving at the bank of race monitors with a cigar in hand and several stubs in the ashtray. He said he came even when there was no smoking allowed, and did not have an opinion about the waiver.

"They don't just have to bet on races, they can also play QuickDraw and smoke," Tobin said.

Bars and restaurants have been pushing against the ban since it was enacted last summer, citing losses from decreased patronage and lottery ticket sales and claiming it infringes on their rights as business owners.

Tobin was not sure whether other OTB branches have been given waivers. She speculated that more may start coming through to bars and restaurants.

"I think (Joseph) Bruno is pushing against the ban," Tobin said. "I think the state has lost a lot of money."

Associated Press - June 21, 2004
        Assembly committee kills expansion of smoking ban exemptions

ALBANY, N.Y. -- A state Assembly committee voted Monday night to block a bill that would have provided further exemptions to the ban on workplace smoking the Legislature imposed in New York state in 2003.

The Assembly Health Committee voted 16-8 to hold a bill that would have allowed smoking in bars that have air filtration systems, as well as let people smoke in separately ventilated rooms inside bowling alleys and billiard halls.

"Well, we tried," said state Assemblywoman RoAnn Destito, an Oneida County Democrat who sponsored the measure in her chamber.

A member of the Health Committee, Democratic Assemblyman Robin Schimminger of Buffalo, said the bill deserved to be "ventilated and aired" before the full Assembly. He said it gives some businesses relief from the impact of the smoking ban in an "intelligent, careful way."

Critics of the legislation contend that air filtration systems fail to remove some harmful air particles from spaces where people are smoking. They argued that the employees of businesses where smoking is allowed would still be exposed to dangerous smoke.

"It's finally over and now we can go ahead with people adapting to the law," said Russell Sciandra of the Center for a Tobacco Free New York.

The 2003 smoking ban law allowed the state or local health departments to exempt businesses if they can show a loss in revenue of 15 percent or more due to the ban.

Associated Press - June 17, 2004
        Legislative leaders all but snuff out expansion of ban waivers
        By Joel Stashenko

ALBANY, N.Y. -- The state legislative leaders said Thursday they do not favor amending the state's 2003 workplace smoking ban to exempt bars equipped with air filtration systems.

"Why do you want to undo something that is in the public's best interests?" asked Senate Republican Majority Leader Joseph Bruno, who has become an increasingly vocal opponent of smoking.

In addition to the waiver for air-filtrated bars, the amendment proposed by state Assemblywoman RoAnn Destito, D-Oneida, and Sen. Raymond Meier, R-Oneida, would permit smoking in separately ventilated rooms in billiard parlors and bowling alleys.

Bruno's counterpart in the state Assembly, Democratic Speaker Sheldon Silver, said he also opposed weakening the smoking ban.

Silver said he favors "some kind of compensation or some ways for those businesses to recoup their losses" for investments they made in their establishments, such as separately ventilated smoking rooms, before the ban. In the past, Silver has proposed tax credits to let business owners recoup their losses.

Bruno said a "loophole" was built into the 2003 legislation allowing businesses to apply for a waiver from the state Health Department or local boards of health in larger counties, if the businesses could show a loss of at least 15 percent in revenues due to the ban. A handful of waivers have been granted so far.

But Bruno said the motivation of the ban remains the same: to prevent people from smoking in the workplace or exposing others to their smoke.

"Cigarettes kill people," Bruno said. "Cigarettes make people sick."

Elizabeth Miller, CEO of the American Lung Association of New York state, said her group is delighted at the high-level opposition in Albany to creating new exemptions to the ban.

"The dangers of second-hand smoke are irrefutable and well established," she said. "Since the law took effect almost a year ago, predictions of doom and gloom from opponents and the tobacco industry have not materialized."

Buffalo News - June 16, 2004
        County warned on tobacco fund
        Naples says pace of spending violates pact
        By Matthew Spina

Nancy A. Naples says county officials are breaking the rules.

Erie County's financial handlers have been warned, a second time, that they're breaking the rules on how to spend the county's more than $250 million in tobacco-settlement money, most of which is gone years earlier than expected.

In a report sent Tuesday, County Comptroller Nancy A. Naples tells the County Legislature and County Executive Joel A. Giambra that they've spent the money faster than anticipated and on items that often don't benefit the community over the long term, violating Internal Revenue Service standards and the county's own agreement.

An attorney for the county, however, calls some of Naples' findings subjective and says that if county officials were doing anything wrong, their advisers in New York City would have raised a warning flag.

"My guess is that as time went on, the need for spending this money became greater, and the administration chose to spend it faster," Naples said. "There was no rule. But it was a lot of money, and no one believed we would spend it quickly because it seemed like so much."

She said each item went through the appropriate review process - proposed by the Giambra administration and approved by the County Legislature.

Naples said the general plan had been to use the money over nine years, but 87 percent has been spent or committed after a mere four years, some of it on everyday government needs - new vehicles, furniture, personal computer upgrades, road repairs. In a similar report in May 2002, Naples said tobacco money had gone toward snow-removal supplies, auto repairs, toilet paper and cleaning products.

The tobacco money springs from the 1998 settlement of a national lawsuit brought against major tobacco companies by 46 states to recover tobacco-related health care costs. Ideally, it was to be used for health care concerns, but many communities are using it for long-term betterment projects, and some to meet the crush of general expenses.

Some of Erie County's money has gone toward long-term projects that meet or exceed its life-expectancy goal of 17.79 years. But when projecting the life of all the items purchased, Naples' staff arrived at an average 13.27 years, meaning the county hasn't met the rules drawn up when it borrowed the original $212 million that provided its tobacco money upfront four years ago.

Officials expected that by investing some of the money, the tobacco windfall would reach $256.2 million by 2009. The county agreed to use the cash for long-term projects, in part because the federal government and bond attorneys wanted to make sure that in 20 years, the county wasn't paying off money borrowed to buy items that lasted only five years, maybe 10.

But there was no hard rule on how quickly the money could be spent, said County Attorney Frederick A. Wolf.

"I'm not aware of any agreement that says we can't spend the money in six months or six years, so I would say that's a pretty subjective call," Wolf said of the Naples report.

The comptroller has asked Wolf to address the risks if the county doesn't meet promises to bond buyers on the "economic-life requirement." Wolf, however, said that if the county isn't spending the money on truly long-term needs, then its bond counsel, the New York City firm of Hawkins, Delafield and Wood, will raise concerns.

County Budget Director Joseph Passafiume said he will talk to lawyers with Hawkins, Delafield and Wood about making the changes they deem necessary. Meanwhile, Albert DeBenedetti, D-Buffalo, chairman of the Finance and Management/Budget Committee, said he and other lawmakers relied on information from the Giambra administration when deciding whether to finance a capital project with tobacco proceeds.

Times Union - June 16, 2004
        School seeks smoking waiver
        Albany-- Officials want to build concealed shelter outdoors for employees
        By Carol DeMare

Bars, restaurants and bingo halls across the Capital Region and the state have lined up to apply for a smoking ban waiver, citing financial hardship.

Now add an educational facility to that list.

In a twist to those seeking relief from the ban, Albany County health officials received an application last week from Parsons Child and Family Center.

The school and child care facility on Academy Road wants to provide its employees with an outdoor designated smoking area, possibly including an open-air shelter, that is out of sight of kids arriving and departing on buses and the public in general.

"What happens now is we have about a 20-acre site and we have a school on it, but we also have our offices and other facilities as well," Parsons Executive Director Raymond Schimmer said Tuesday. "All our people right now have to smoke out on the sidewalk on Academy Road. It's just ugly. The kids in the school buses go in and out of the parking lot and the staff is out there smoking, and I don't think that's the spirit of the law."

The state Clean Indoor Air Act prohibits smoking in all schools, including on school grounds.

Parsons' application, received June 7, is pending before the Albany County Health Department's Division of Environmental Health Services, said county spokeswoman Kerri Battle.

If the school gets permission, the shelter "would be off in one of the corners of the campus," far from the school and the children's residence, Schimmer said.

Thomas Luzzi, Parsons' chief financial officer, said in the application that smoking in front of the facility, creates "an environment that many of the neighbors find objectionable. Furthermore, smoking on Academy Road is so highly visible that it is difficult to discourage the children we care for from smoking."

Parsons school serves about 160 special needs students in grades 3 through 12, of which 110 come on buses from various school districts. The rest live at the facility.

Parsons also provides foster care and adoption services and family mental health services. There are about 120 people on the educational staff and another 100 to 150 employed at the facility.

The smoking ban took effect last July 24. Since the county began issuing applications for waivers in February, Parsons is only the third site to apply.

VFW Oppenheimer Post 1019 applied in March for its bingo games, but the application lacked sufficient information, Battle said. The post hasn't reapplied.

In April, the Shell Inn in Rensselaerville applied but the documents didn't meet the criteria that called for a separate smoking room, she said. Shell Inn hasn't reapplied.

Irish Echo - June 16, 2004
        Survey shows drop in N.Y. bar business
        By Stephen McKinley

A survey conducted by the New York Nightlife Association and the Empire State Restaurant and Tavern Association claimed last week that the smoking ban has devastated the New York City and state bar business.

The study, "The Economic Impact of the New York State Smoking Ban on New York's Bars," shows widespread job and earnings losses for bars and taverns across the state and was presented to Albany legislators during a lobbying visit last week.

"The findings of the analysis are clear," said Brian O'Connor of Ridgewood Economic Associates, which carried out the survey. "New York State has lost thousands of jobs and millions in worker earnings and productive activity as a result of banning smoking in bars. Those losses will grow if the smoking ban is left unchanged."

In its findings the survey reports 2,000 jobs, losses of $28.5 million "in wages and salary payments," and $37 million in gross state product.

"Empty barstools. Silent cash registers. Layoffs. Bars closing. That's our reality," said Brian Nolan, executive director of the United Restaurant and Tavern Owners.

The continuing debate over the smoking ban has generated vastly opposing claims and counter-claims by supporters and detractors.

In April, the New York City Department of Finance issued a report prepared to mark a year since the ban was imposed in the city at the behest of Mayor Michael Bloomberg.

The city survey claimed bar and restaurant business had grown by more than 8 percent, spurred by the smoking ban.

A Department of Finance spokesperson admitted that much of the survey included economic data gathered from establishments that did not have smoking permitted before the ban, such as Starbucks and McDonalds.

Groups lobbying in favor of a relaxation of the smoking ban, such as those associated with this latest report, have said that the impact of the smoking ban is not necessarily an obvious one, that it is neighborhood bars off the beaten track that are suffering the most.

"Beer sales to bars and nightclubs have definitely suffered because of the smoking ban," said Bill DeLuca of Manhattan Beer, one of the largest beer distributors in the Metropolitan New York area. "Comparing this year's first quarter to the first quarter of 2003, our restaurant sales are up 18 percent due to the upturn in the economy, but our bar sales are stagnant."

High-end restaurants have reported that while business is up, few smoking customers linger after dinner anymore, preferring to head home for their nightcap and nicotine fix.

The Daily Star - June 15, 2004
        Indoor smoking ban costing bars millions, study says
        By Amy L. Ashbridge

William Wolfinger said he doesn't have a problem with New York's Clean Indoor Air Law, per se.

He said it's just that the law is a part of why he is closing his Delhi bar, Blinkey's.

"It's a lack of enforcement," Wolfinger said Monday. "You have one down the road that's still smoking and always has been since day one."

Blinkey's represents one of the bars in New York that has been negatively affected by the Clean Indoor Air Act, according to a study released by the New York Nightlife Association and the Empire State Restaurant and Tavern Association.

According to the study, bars and taverns in the state have lost about 2,000 jobs, $28.5 million in salary payments and $37 million in gross state product.

Ridgewood Economic Associates conducted the study, which was released last week.

Jim Bredin, spokesman for the Oneonta Tavern Owners Association, said he thought businesses lost about 20 percent in revenues since the law went into effect last July.

"Business is down a bit in most places," Bredin said Monday. "It's hard to estimate."

Most people don't go into a bar or tavern because they care about their health, Bredin said.

"People would rather be in crowded bars with lots of people," Bredin said. "They're more interested in socializing than clear air."

Many bar owners oppose the smoking ban, Bredin said, because they resent legislators making the decision for them.

"Owners are the ones who are the best judge of what their customer base is," he said.

Bredin said he personally doesn't like smoking, but would probably offer a smoking bar if it were legal.

"What my customers want is smoking," he said. "We think the owners should make the decision — not Albany."

State Sen. Raymond Meier, R-Utica, and Assemblywoman RoAnn Destito, D-Rome, have proposed joint legislation to allow smoking in bars and taverns that have air-purification systems.

In March, the state Department of Health gave the first smoking waiver to Stella Luna, an Oneonta restaurant with a specially ventilated smoking room.

"It sounds like a good, happy medium," Bredin said of the proposed law.

There's no proof, however, that a high-technology ventilation system would completely protect bar employees and patrons, said Amy Morse, program director for the Rural Three for Tobacco Free Communities.

"Remaining smoke-free is the best," Morse said Monday.

Morse said the systems are very costly.

"Not all of them (bars) can afford to put them in," Morse said. "That's not fair. It just makes enforcing the law that much more difficult."

Morse said the point of the law was simply to protect employees.

"The Clean Indoor Air Act has impacted employees' health," she said. "They're safer and they're protected."

Owners should know that, based on surveys, about 70 percent of people in Delaware, Otsego and Schoharie counties support the smoking ban, Morse said.

What should be more persuasive to owners, Morse said, is that "people's health is much more important than money."

Associated Press - June 11, 2004
        N.Y. Fire - Safe Cigarette Deadline Looms

CHARLOTTE, N.C. (AP) -- Self-extinguishing cigarettes require special paper that one tobacco company is finding in short supply. They annoy some smokers by going out if you don't puff on them regularly. And they cost more to produce than regular cigarettes.

But major manufacturers Reynolds Tobacco, Philip Morris and Lorillard are scrambling to make and ship the special smokes to comply with a New York state law requiring that all cigarettes sold there after June 28 be self-extinguishing.

The state accounted for 4.3 percent of U.S. cigarette sales in 2002, making it too large a market to abandon. But the costs and drawbacks of the new cigarettes are sufficient that the companies say they do not plan to offer them in the other 49 states.

``This is an overwhelming concern right now for us,'' said Ellen Matthews, a spokeswoman for Reynolds Tobacco Co. of Winston-Salem, the nation's No. 2 cigarette maker. ``A tremendous amount of issues needed to be addressed, among them finding an adequate supply of banded paper. This is affecting everything we are doing.''

New York's regulations call for all cigarettes sold in the state to be wrapped in the special paper, in which ultra-thin bands work like speed bumps to slow the burning of cigarettes that are not being puffed.

A lit cigarette that is dropped onto bedding or a sofa can smolder unobtrusively for as long as 30 minutes before a fire erupts. Approximately 900 Americans die each year and another 2,500 are injured by fires started by cigarettes, according to the American Burn Association and the federal government.

In theory, if a smoker lights a self-extinguishing cigarette and falls asleep or leaves the cigarette unattended, it will go out on its own after a few minutes.

Greensboro-based Lorillard Tobacco Co. has been selling self-extinguishing cigarettes in New York state since March, company spokesman Steve Watson said.

``We haven't received any complaints, only a few inquiries from smokers whose cigarette self-extinguished while they were smoking them,'' he said.

For now, he said, the company's brands -- including Newport, Kent and True -- will be sold with the fire-safe paper only in New York.

Industry leader Philip Morris USA has been selling its Merit cigarette in self-extinguishing paper nationwide since 2000, during which time the brand's market share has shrunk.

Brendan McCormick, a spokesman for Richmond, Va.-based Philip Morris, said the company initially got complaints from Merit smokers who didn't like the fact that their cigarette went out if they didn't take regular puffs.

But he said that was only one of several factors involved in Merit's decline.

While Matthews said RJR -- maker of Camel, Salem and Winston -- is having trouble finding enough banded paper, Philip Morris and Lorillard both said they have steady suppliers.

Industry foes argue that offering banded cigarettes only in New York could lead to lawsuits by fire victims in states where the cigarettes are not sold.

``It has huge liability,'' said Andrew McGuire, head of the Trauma Foundation at San Francisco General Hospital, who began crusading for fire-safe cigarettes in 1979. ``It's like they are saying they don't mind a little kid getting burned in Connecticut but it's OK to save them in New York.''

McGuire contends that the industry has a financial interest in non-banded cigarettes that burn on their own while unattended, forcing smokers to light up more often.

But the manufacturers question whether the new-style cigarettes are really safer.

Although they are shown to go out ``under very specific lab conditions,'' Matthews said, that does not mean that they should be considered incapable of starting a fire.

One reason companies have resisted introducing the cigarettes is fear that smokers who use them will become complacent, Matthews said.

``That is going to be our biggest challenge, that people are going to be lulled into a false sense of complacency'' when they smoke the self-extinguishing cigarettes and become more careless with them, she said.

Philip Morris is being sued in Los Angeles Superior Court by a woman who claims the paper used in Merits actually creates a greater risk of fire and injury.

According to the lawsuit by Leena Gurevitch, the cigarette's design causes clumps of partly-burned tobacco to fall from the ends, making it more of a fire hazard.

McCormick said he was aware of the lawsuit, which was filed last month, but said the company has received no ``reports about fires caused by the coal falling off the Merit brand.''

``We are optimistic that based on the facts and the law that the case will be dismissed,'' he said.

McCormick said supplying banded paper for all New York-bound cigarettes will cost Philip Morris several million dollars, which the company will absorb. Matthews was unsure how Reynolds would cover its increased costs. Both companies declined to be specific about exactly how much the new cigarettes will cost them.

Cigarettes in New York are already among the most expensive in the nation, averaging $5.66 per 20-cigarette pack, according to a January report by the Campaign for Tobacco-Free Kids.

Ultimately, all three manufacturers said they would prefer a national standard instead of as many as 50 different state laws that could present major production and marketing headaches.

That kind of national regulation could come under proposed legislation in Congress that would end the federal tobacco price support system and give the Food and Drug Administration regulatory power over tobacco.

Matthews said she knows of no other state with immediate plans to match New York's regulation. In Massachusetts, lawmakers have been trying for years to pass legislation that would mandate the sale of self-extinguishing cigarettes.

The Saratogian - June 10, 2004
        Local bars still feeling some effects of state smoking ban
        By Jerome Burdi

SARATOGA SPRINGS -- According to a report conducted for bar owners in the state, the workplace smoking ban enacted last year led to the loss of 2,000 industry jobs and millions of dollars in wages.

Ridgewood Economic Associates of New Jersey conducted the study for New York Nightlife Association based in New York City, and the Empire State Restaurant and Tavern Association based in Albany.

The report stated that since the state's Clean Indoor Act took effect on July 24 banning smoking in all workplaces, $28.5 million in wages and salary payments and $37 million in gross state product were lost in the industry.

Ridgewood, which used data from the state Department of Labor, also found that businesses that supply bars have also suffered losses to the tune of 650 jobs, $21.5 million in wages and $34.5 million in gross state product.

Saratoga County has shown little evidence of economic loss, though, according to the state Department of Health, which grants waivers to businesses that show a 15 percent decline in profits since the ban. Only two bars have applied: Connie's Roadhouse in Moreau, which was granted a waiver in April, and the Alley Bar in Saratoga Springs which was denied one.

Janine Stuchin, project coordinator with the Adirondack Tobacco Free Network's southern region base on Phila Street, said she's surprised at the compliance from bar owners.

'I think things are going very well,' she said. 'I continue to hear from the public of their support.'

Even if bars are hurting, she said, it's a public health issue. 'The ban is designed to protect workers from secondhand smoke,' she said.

Suzanne Dormandy, manager Tin & Lint on Caroline Street, said no one has lost their job over the ban, but business is hurting.

'It's supposedly for the employees' health, but now we can't afford health care,' she said.

Dormandy said in a tourist city like Saratoga Springs, when patrons go out for a cigarette, they drift like smoke into another bar.

A bill lingering in the state Legislature, sponsored by Assemblywoman RoAnn Destito, D-Rome, and Sen. Raymond Meier, R-Western, calls for pool halls, bowling alleys and bars (a business where food sale is incidental) to be allowed a separate room with air filtration for smoking.

Assemblyman Roy McDonald, R-Wilton, said he hadn't studied the bill yet, but that something had to be done to equalize waiver granting.

'It's got to be more structured,' he said. 'What do you say to the ones that don't get it?'

NY Newsday - June 10, 2004
        How to light up local nightlife again
        By Frank Calland
        Frank Calland is president of Amusement & Music Owners of New York Inc.,  a regional trade group of electronic game and jukebox
            operators.

For 35 years I have been a provider of electronic games and amusements, mainly to bars, taverns, restaurants, diners and entertainment centers. I have never seen such a drop in business like the one this past year. It is directly tied to the smoking ban.

I talk with other service providers (food, alcohol, cleaning supplies, even state-sponsored "Quick Draw" gambling). When it comes to bars, restaurants and other businesses they serve, they all have the same story: Many have closed.

Now several bills have been introduced to revise New York State's smoking ban, almost a year old. These proposals would exempt bars, taverns, clubs and entertainment centers that primarily do not serve food from the smoking ban and require them to install air-purification filtration systems.

Some kind of reason, common sense and accommodation must be brought to the financial crisis many are finding themselves in.

The state imposed the anti- smoking law, so it's only fair that it take over the measure's statutory authority, enforcement and administration. Right now, every municipality has its own approach to enforcing the ban, which has created a maze of confusion that turns innocent people into criminal violators.

Likewise, the waiver system intended by state lawmakers and state Health Department officials is unfair and not working. The waivers are meant to exempt any establishment from the ban if it can be demonstrated that it is adversely affecting business. Many municipalities have not set these standards or, if they have, they're unreasonable. In Suffolk, for instance, the county requires a $500 fee without any guarantee that a business will be granted a waiver. There needs to be one uniform standard, with an equitable policy.

In the meantime, local health inspectors are issuing summonses for violations such as having an ashtray on a bar or a table, or failing to post the legalese sign about the smoking law even though a "no smoking" sign is clearly displayed, or smoking under an outside awning or any "permanent outdoor structure."

A sorely needed correction would be to take the liability off the bar owner for a customer lighting up. If someone lights a cigarette on a bus or subway, the Metropolitan Transportation Authority does not receive the summons. So why should a summons be issued to a bar owner for the actions of a customer over whom he has no control? This undermines the integrity of the ban and creates contempt for government authority.

Many municipalities abandoned the "smoking permitted" pledges they made years ago that required businesses to install costly smoke-eater ventilators, now useless under the ban. Still, businesses that want to open their doors to smokers again are supporting state legislation that would require them to invest in expensive, state-of-the- art air filtration purifiers, the same ones used in hospitals and health facilities to prevent contagious germs and bacteria.

Despite the smoking ban, tobacco remains a legal substance. If government wants to get out from under the economic influence that tobacco represents, it should put forward some kind of financial subsidy. The concept of a financial incentive would enable businesses to taper off their operations, say, over five or 10 years.

Lawmakers and public interest activists who want to play social engineers by prohibiting smoking should not do this on the backs of the thousands of responsible, hard-working people who are stalwart contributors to the economy.

Times Union - June 9, 2004
        Debate over smoking ban heats up
        Albany -- As exemption to Indoor Air Act shows signs of life, interested parties show up to press their points
        By Erin Duggan

Bar owners and health advocates fired up their arguments Tuesday over whether the state's Clean Indoor Air Act should be changed to exempt bars and taverns that install air purification systems.

About 75 people lined up outside a news conference held by the New York Nightlife Association and the Empire State Restaurant and Tavern Association in the Legislative Office Building. They waved placards urging the state to "Can the Ban," and booed loudly when anti-smoking activist Russell Schiandra, director of the Center for a Tobacco Free New York, walked by.

Schiandra handed out opposing figures to reporters on job losses since the ban took effect.

A bill to amend the ban gained momentum in recent months, picking up majority sponsorship and 24 sponsors in the Assembly and 14 in the Senate.

Armed with a new study, opponents of the smoking ban blamed the law for a loss of 2,000 jobs, $28.5 million in wages and salaries, and $37 million in gross state production. That doesn't include losses from businesses that supply and service bars, they noted.

Actually, the study's author said, not all those jobs were lost, but many were not realized. Bar jobs declined only 401, from 19,158 in 2002 to 18,757 in 2003. But economic indicators show they should have been up more than 2,000, said Brian O'Connor, founder of Ridgewood Economic Associates.

But bar employment last year, which includes six months of the smoking ban that took effect July 24, was still higher than it was for almost all of the 1990s, according to the report. The number has been declining since it hit a 10-year high of 19,909 bar jobs in 2000.

Still, some bars say they're hurting. Michelle Dell, who owns Hogs & Heffers in Manhattan and came Tuesday to support changing the smoking ban, said she's seen a sharp decline in her afternoon crowd, made up mostly of blue collar workers who can easily go home to New Jersey and smoke in bars there.

"They don't come in anymore," Dell said. "And why should they?"

Smoking ban supporters, however, say employment in restaurants and bars was higher in 2003 than any year this decade, according to statewide figures from the U.S. Department of Labor.

Bar owners say restaurants should not be included in the figures because they are less affected by the ban and other outside factors and are more resistant to economic downswings.

With the Legislature set to adjourn in two weeks and no state budget deal in sight, it's unclear whether lawmakers will have the time or desire to revisit the ban.

Assembly Speaker Sheldon Silver, D-Manhattan, has no interest in changing it, his spokesman said. Senate Majority Leader Joseph Bruno, R-Brunswick, is reviewing the legislation, said spokesman Mark Hansen.

"The (current) legislation included a waiver process for some establishments to apply for waivers from local health departments," Hansen said. "We're still monitoring how the law is working."

FOX 23 News - June 9, 2004
        Bar Owners Ask For Smoking Ban Amendment

“There has been an up-tick in the restaurant business in the last six or seven months. No one doubts that,” says David Rabin, New York Nightlife Association President. “But in the bar business, it’s gone down and has continued to go down all since the smoking ban.”

A report jointly commissioned by the New York Nightlife Association and the Empire State Restaurant & Tavern Association says that 2,000 bar jobs have disappeared since the ban. In addition, $28.5 million dollars in wages and salary payments have been lost.

Michael Bopp, New York State Director Of Advocacy for the American Cancer Society, says while he hasn’t confirmed these figures one way or the other, to alter the ban would be a mistake.

“It’s not just about the money,” Bopp says. “They may have a case that they’ve taken some kind of a temporary hit. But you have to keep in mind the reason the law was passed was to help people’s health.”

Bar owners are asking for something of a compromise though. They want an amendment that allows smoking again in their bars where food is less than forty percent of business. But in return, they would install state-of-the-art air filtration systems.

Bopp, however, says such systems are not very effective in processing second-hand smoke.

The amendment is still in committee. It’s uncertain if it will come to a vote since this legislative session is ending soon

The Business Review (Albany) - June 9, 2004
        Bar, tavern groups tout smoking ban study
        Marco Leavitt

A new study paid for by an association representing New York City bars and clubs finds that the state's nearly one-year-old smoking ban has been bad for business.

The study, which was commissioned by the New York Nightlife Association, finds that 2,000 jobs, $28.5 million in wages and $37 million in gross state product have been lost since the ban went into effect on July 24, 2003.

"The Legislature said when they passed this law that it was not designed to put people out of business," said Scott Wexler, the executive director of the Empire State Restaurant and Tavern Association, which co-sponsored the research.

The report cost $45,000 and was conducted by Ridgewood Economic Associates Inc. of New Jersey. Ridgewood based its analysis on employment, workers' compensation and other data collected by the state Department of Labor, the U.S. Census Bureau and the U.S. Department of Labor.

The study also found that businesses which supply and service bars have lost 2,650 jobs, $50 million in earnings and $71.5 million in gross state product.

"Frankly, we don't think the numbers add up," said Michael Bopp, a lobbyist for the American Cancer Society.

Figures showing the number of liquor licenses and total employment in the industry are up, Bopp said. In any case, the most important issue is employee health.

"This law isn't about how much money any given industry makes," he said.

Details of the report were released in Albany, N.Y., on Tuesday where joint legislation to allow smoking in bars and taverns that install air-purification systems has been proposed by Assemblywoman RoAnn Destito (D-Rome) and state Sen. Raymond Meier (R-Utica).

Under the legislation, bars could choose whether to invest in air-filtration technology, which industry officials say cost from $3,000 to $5,000 per unit, and permit smoking, or continue to prohibit smoking in their establishments.

The legislation would impose strict standards on the air filtration systems, according to Basil Anastassiou, a spokesman for the New York Nightlife Association. The systems would be on par with those used in hospital intensive care units, he said.

"These filtration systems would make the air inside the bar where people are smoking cleaner than the air on the street," he said.

Business First of Albany - June 9, 2004
        Trade groups say study proves losses from smoking ban

The New York Nightlife Association and the Empire State Restaurant and Tavern Association said it now has some facts to back up its case of how the state's nearly year-old smoking ban has hindered business.

The trade group has released what it refers to as the first empirically-based, bar-specific economic impact study of the statewide smoking ban, which took effect July 24, 2003. The Economic Impact of the New York State Smoking Ban on New York's Bars study reveals widespread job and earnings losses for bars and taverns across the state including the loss of some 2,000 jobs, or more than 10 percent of bar employment and $28.5 million in wages and salaries.

The report cost $45,000 and was conducted by Ridgewood Economic Associates Inc. of New Jersey. REA based its analysis on employment, workers' compensation and other data collected by the New York State Department of Labor, the U.S. Census Bureau and the U.S. Department of Labor.

"The study confirms what reasonable people have known all along. The smoking ban is very bad business for bars," said David Rabin, president of the New York Nightlife Association.

Details of the report were released in Albany where joint legislation would allow smoking in bars and taverns that install state-of-the-art air-purification systems as specified by the state has been proposed by Assemblywoman RoAnn Destito (D-Rome) and state Sen. Raymond Meier (R-Utica).

The bills include strict guidelines to ensure installation of the most effective air-filtration systems. Under the legislation, bars could choose whether to invest in air-filtration technology, which industry officials say cost from $3,000 - $5,000 per unit, and permit smoking, or continue to prohibit smoking in their establishments.

Buffalo News - June 9, 2004
        New dispute brewing over smoking ban
        By Tom Precious

ALBANY - As bar industry groups Tuesday blamed the loss of 2,000 jobs on the state's indoor smoking ban, a dispute between tavern and restaurant owners is brewing over new legislation designed to relax the tobacco prohibition.

New legislation in the Democratic Assembly that would allow smoking again in thousands of bars across the state, if they install special filtration systems, is being opposed by a trade group whose clients include restaurants, fast-food chains and diners.

"This is exactly what we were afraid of," Rick Sampson, president of the New York State Restaurant Association, said of the split over the smoking issue.

The legislation would let smoking return only to bars and taverns - not restaurants. Sampson says his association is firmly behind efforts to keep the smoking ban in place.

"We want status quo. It's a level playing field," he said.

But bar owners say there is no level playing field - that they are losing customers and workers since the law took effect last July.

"In the 25 years I've been in business, this is the first time I'm panicking," said Judi Justiana, owner of Judi's Lounge in Niagara Falls.

Bar owners had to reduce their work force by 2,000 jobs last year - a loss of $28.5 million in wages since the smoking ban, according to a study released by the New York Nightlife Association and the Empire State Restaurant and Tavern Association.

Critics, though, contend the numbers are questionable.

"(The bar owners') basic position is it's OK for people to get sick as long as their profits are protected," said Russell Sciandra, director of the Center for a Tobacco Free New York.

"Everybody is trying to figure out who these guys sold out to," Rick Naylon, owner of Jimmy Mac's, a popular Elmwood Avenue bar and restaurant, said of the restaurant association. Naylon, who engaged in a legal fight with Erie County to get a smoking waiver, is a member of both groups.

Associated Press - June 8, 2004
        Group: Smoking ban hurts business
        By Mark Johnson

ALBANY, N.Y. -- Groups representing New York state bar owners contend the statewide smoking ban has cost their industry about 2,000 jobs.

A study released Tuesday by the New York Nightlife Association and the Empire State Restaurant and Tavern Association said the ban that went into effect in July has also led to $28.5 million in lost wages and $37 million in lost gross state product. Affiliated businesses lost another 650 jobs and $56 million in wages and production, the study by Ridgewood Economic Associates said.

The study's author, Brian O'Connor, said the numbers were derived from projections. Actual employment data for 2004 is not yet available.

The government-documented number of bar and tavern jobs lost from 2002 to 2003 was 401, according to state Labor Department numbers supplied by O'Connor. Those numbers showed bar and tavern jobs also declined in the previous two years, before the ban went into effect.

The groups are pushing for passage of a bill sponsored by majority members in both houses of the Legislature that would provide new exemptions from the ban.

The bill from Republican state Sen. Raymond Meier and Democratic Assemblywoman RoAnn Destito would exempt bars, provided the taverns are equipped with approved air filtration systems. Destito's bill adds bowling alleys and billiard parlors to the list of workplaces where smoking would be allowed, in special rooms with filtration systems.

Russell Sciandra of the Center for a Tobacco Free New York said such systems do little to clean the air of harmful pollutants. He pointed to the many disclaimers in which the makers of air filters acknowledge the shortcomings of their systems.

The state ban outlaws smoking in restaurants and bars, Off-Track Betting parlors, bowling alleys and pool halls, company cars, enclosed parking lots and outdoors around the entrances to public buildings.

State and local health departments may grant waivers to establishments that can prove they lost at least 15 percent of their profits to the ban. The businesses must also take steps to protect workers and non-smoking patrons from second-hand smoke.

WOKR-TV 13 - June 8, 2004
        Smoking Ban: The Fight Goes To Albany

The fight to overturn the state-wide smoking ban in bars and restaurants continued Tuesday when Rochester area restaurant owners lobbied Albany for an amendment to the law.

The bar owners said about 2,000 jobs have been lost in New York State because of the ban. They also said that the process to get waivers is unfair.

Their position is that ventilation systems that would remove 99 percent of the smoke would be a workable compromise. Two state lawmakers support making that change.

WOKR-TV 13 - June 7, 2004
        Rain On The Rooftop
        By Chalonda Roberts

It's been almost a year since smoking has been banned from bars and restaurants in New York State. One Rochester bar owner says the ban cost him more than 50 percent of his business, and he is looking to the "sky" to bring back customers.

Jesse Thompson wants to build a sky bar on part of the top level of the old Genesee Hospital parking garage, which he says offers a great panoramic view of the Rochester city skyline.

Thompson currently owns the Rain night club on the ground floor of the building. He said business there dropped dramatically after the smoking ban took effect.

"We immediately saw a total drop off of probably 80 percent of revenue due to the smoking law," he said.

Some owners of other East End bars said they haven't been affected by the smoking ban, but most of those are in a popular locations and have outdoor patios where smoking is permitted.

Thompson says bringing in a sky bar will not only help increase business, but will also help revitalize Monroe Aenue. He has gotten approval from the city, but he's waiting for the OK from Via Health, who owns the building.

Once he gets approval to build, Thompson hopes to create a big city feel, attracting a young upscale crowd.

"We are going to add 6,000 square feet of grass and make it more or less like a Manhattan penthouse with a two-hole putting green in one corner," he said.

Thompson said he'll also offer tented sky boxes to business owners who want to entertain guests; anyone who chooses will be allowed to smoke.

Capital News 9 - June 4, 2004
        Health Department grants smoking waiver
        By Danielle Strauss

Quig's Bar and Restaurant is the first in Fulton County where smokers can finally light up.

It's been about five weeks since the State Health Department granted the smoking waiver. Although sales have increased, owner Terry Denney said the timing was a little off.

"The nice weather has made it more difficult for people to want to smoke inside. We have a nice patio area out back. And, most of the local bars in the area have nice patios areas. It's one of those things until the weather gets bad, or get a bad day you won't see the full effect of a smoking room," Denney said.

To receive a waiver, an isolated smoking room is a requirement.

At Quig's they built a 900-square-foot room, installed a smoke ventilation system and posted smoking and nonsmoking signs.
And the folks that work and play at the establishment said they welcome the change.

DJ Dave Arnold said, "I think it's great because people like to smoke when they come out and drink. Before they had it, people would go outside. So I would be playing music to nobody. You know, now they are inside and they can smoke. It's fine even though I don't smoke. When people go out to a bar to drink, people smoke."

Patron George Thompson said, "Hey, I enjoy it. I come in here and I want to have a cigarette all the time because I smoke, pretty much a lot. Not a lot, but enough. To come here and have a cigarette is fine by me."

But Denney said he'll be able to get a true measure of the waiver's impact once the cold weather hits and the patio area closes for the season.

Associated Press - June 2, 2004
        Proposed smoking ban exemptions trouble anti-smoking forces
        By Joel Stashenko

ALBANY, N.Y. -- Majority-party sponsorship of a bill in the state Legislature providing new exemptions to New York's 2003 ban on workplace smoking has anti-tobacco advocates worried that the law will be gutted.

State Sen. Raymond Meier said he supports a bill being circulated for sponsorship by state Assemblywoman Roann Destito to exempt bars from the indoor smoking ban, provided the taverns are equipped with approved air filtration systems. Destito's bill is similar to one Meier introduced this year in the Senate, but it goes further by adding bowling alleys and billiard parlors to workplaces where smoking is allowed, as long as there is a separate room fitted with a filtration system.

Both Meier, a Republican, and Destito, a Democrat, are from Oneida County.

Meier noted that the 2003 law allowed waivers to the smoking ban for bars, restaurants and other businesses which could show a decline in business of at least 15 percent from pre-ban revenues. The waivers are being granted by departments of health in 41 counties and by the state Health Department in 21 mostly rural counties which do not have their own health departments.

"This is really preferable to the waiver provision, which has been granted unevenly and without a uniform standard," Meier said.

In addition, he said, most New Yorkers are willing to tolerate some cigarette smoke in bars and taverns.

"Most people understand when they enter a bar they're not entering a health club," Meier said.

Russell Sciandra, head of the Center for a Tobacco Free New York, said that while customers have a choice whether or not to patronize a bar where smoking is allowed, employees of the bar don't.

"People have to work for a living," he said. "Some of them are going to die because smoking is allowed."

The American Cancer Society's Michael Bopp said smoking ban opponents are stressing air "filtration" systems, as opposed to "ventilation" systems, because they think it sounds safer. But he said the systems do not flush all toxins out of the air in rooms where smoking is taking place.

"These machines work well if you have a roomful of smoke and you're not adding more smoke," Sciandra said. "Turn it on and it will get the room clear. The problem is if you have smokers in the bar, they're constantly adding smoke and the machines can never catch up."

The Empire State Restaurant & Tavern Association, staunch opponent of the 2003 smoking ban, is trying to rally support behind the new exemptions to the statute. That group and hospitality industry allies plan to lobby in Albany next week in support of the legislation.

Scott Wexler, executive director of the Restaurant & Tavern Association, said most of his restaurant-owner members have been holding their own under the smoking ban, but bar business is suffering.

The leader of the state Senate's Republican majority, Sen. Joseph Bruno of Rensselaer County, supported the smoking ban and resisted wider exemptions when the law passed in 2003.

"He's been willing to talk about it," Meier said of Bruno and the new legislation. "He hasn't said no."

The state Legislature is technically scheduled to conclude its 2004 session on June 22, but with no 2004-05 state budget yet adopted, lawmakers are almost certain to be in Albany longer.

For purposes of the Meier-Destito legislation, a "bar" is defined as a business that derives less than 40 percent of its annual gross sales from on-premises consumption of food.

Preliminary results of a state Health Department released in March indicated that the saliva of 49 bar and restaurant workers contained 85 percent less cotinine, a nicotine byproduct, three months after the state prohibited workplace smoking than before the ban.

Times Ledger - May 27, 2004
        Smoking violations plague Uncle Jack's on Bell Blvd.
        By Sophia Chang

Uncle Jacks steak house in Bayside is finding it tough to quit smoking. On May 19 the high-end restaurant at 39-40 Bell Blvd. noted for its cigar selection received another set of smoking violations from the citys Department of Health, a department official said.

It was the second time the department had cited the restaurant in a week's time. The first inspection was conducted on May 13. The restaurant was also hit with smoking violations in September.

According to the department, on both recent occasions the "violations observed included ashtrays present and failure of proprietor to make a good faith effort to inform person(s) to stop smoking."

There is no limit on the number of violations the restaurant can receive.

"We'll keep citing them for it," a department spokeswoman said. The fine for each violation can range from $200 to $2,000.

Uncle Jack's, an upscale spot popular with bigwigs such as former Mayor Rudy Giuliani, draws customers in part because of its legendary cigar collection.

The restaurant's Web site says "our focus is simple: the finest foods, the highest quality cigars..." And a posted review from Cigar Aficionado magazine claims that the restaurant has "40 personalized humidors available, each holding 200 cigars."

Last fall, owner Willie Degel told the TimesLedger that his restaurant would follow the anti-smoking laws.

"We have no smoking now," he told the paper in September after receiving the first set of violations. "We're completely compliant with their rules and laws."

At the time, Degel also said his restaurant had filed an application to operate as a tobacco bar, but the Department of Health had no record of such, which Degel called "bureaucratic ridiculousness."

By the time the first inspection took place earlier this month, the department acknowledged that his application was pending review.

Jonathan Cheban, Degel's spokesman, said the owner would only comment that the restaurant has been "preapproved and is now waiting for the certificate" to operate as a tobacco bar.

The Department of Health said "smoking is not permitted while applications are being reviewed." Officials could not give a time frame on when a decision would be made on Degel's application.

Degel recently opened another Uncle Jack's in Manhattan on Ninth Avenue near 34th Street.

Times Herald - May 26, 2004
        Franklinville tavern loses indoor smoking ban appeal
        By Rick Miller

A lawsuit by a Franklinville tavern seeking to overturn convictions for violating the state’s indoor smoking ban has been dismissed in state Supreme Court.

Robert F. Allen, owner of the Long Branch Saloon in Franklinville, had appealed two smoking ban convictions by the Cattaraugus County Board of Health to state Supreme Court. He has not indicated whether he will appeal the court decision to the Appellate Division.

The Board of Health has also received notice from a town of Olean bar, City Limits Bar & Grille, that it has also begun an Article 78 proceeding to overturn its violations of the smoking ban, County Attorney Dennis Tobolski told The Times Herald. That case is expected to be heard in state Supreme Court next month.

The Board of Health had fined Mr. Allen $500 for violating the state Clean Indoor Air Act for allowing Long Branch patrons to smoke Sept. 4, 2003. The Board of health denied an appeal of the violation on Nov. 7.

The following day, a Health Department staff member observed smoking in the bar, and Mr. Allen was cited again on Nov. 10. Following a hearing on Nov. 25, the Board of Health fined Mr. Allen $1,000. His appeal of that conviction and fine was denied on Feb. 4.

Mr. Allen’s attorney, Andrew Goodell of Jamestown, appealed to state Supreme Court in Little Valley contending the Board of Health exceeded its authority, failed in its duties to conduct an inspection and issuing a health permit until the fines were paid, violating the state’s Open Meetings Law, that its determination was not supported by evidence and that the Clean Indoor Act is unconstitutional.

In denying the appeal by the Long Branch Saloon, Acting State Supreme Court Judge Larry M. Himelein wrote: “This was not a case where customers smoked in violation of the bar owner’s good faith effort to stop them.”

In his decision released last week, Judge Himelein also rebutted charges that the health department was “selectively enforcing the act by targeting the bar owners rather than the smokers.”

As to claims that Mr. Allen was denied due process, Judge Himelein wrote: “Petitioner was notified of the allegations of smoking and was given the opportunity to rebut them. The statements were introduced, defendant and others testified and petitioner was also permitted to appeal.”

He added: “With respect to the second violation, petitioner contends that the Open Meetings Law was violated when the Board of Health deliberated in executive session.” Judge Himelein said the meetings law does not apply to “quasi-judicial proceedings.”
The judge also called “meritless” the contention that the charges were not supported by the evidence.

“On Aug. 1, 2003, a Health Department representative mentioned to the bartender that people were smoking in violation of the law. The bartender told the health department representative that she would not enforce the smoking ban and threatened the representative. On Aug. 27, 2003, when a deputy sheriff delivered a letter to the premises, the bartender was abusive to the deputy. The deputy also observed several people smoking and using beer cans with the tops removed as ashtrays.

“On Nov. 8, 2003, a witness observed not only patrons but the bartender smoking and ashtrays on the bar,” Judge Himelein wrote in his decision. “Only if there was something other than tobacco in those cigarettes could anyone reasonable argue that the evidence was insufficient to support the determination.

“Finally,” he added: “the court rejects the contention that the act is unconstitutional as implemented.”

Buffalo News - May 24, 2004
        Above the smoking law?
        Some restaurants are using rooftop bars and outdoor patios to skirt the state ban on smoking
        By Jonathan D. Epstein

Think summer, think Buffalo, and chances are good that gardening, golf or softball comes to mind.
Unless you're a smoker, of course.

For those who light up, the onslaught of summer now means a return to smoking at restaurants and bars.

Outdoor patios and bars, many of them brand new, are becoming a popular way for local restaurateurs to skirt the state's indoor smoking ban.

"Having a patio means smokers come," said Matthew Hollis, general manager of Lotis Restaurant and Martini Lounge in Buffalo. "Where smokers come, there's drinking, and having a patio means people want to come out to eat. We'll be jampacked all summer because of the smoking."

Just how far are restaurant and bar owners willing to go to bring back their smoking clientele?

At Lotis, which opened a year ago, the lure is a 68-foot outdoor bar and a patio filled with a dozen tables.

At the Steer Restaurant Saloon on Main Street, the owner spent tens of thousands of dollars to revamp the 35-year-old restaurant's rooftop patio.

The new amenities include a partially covered outdoor bar and expanded seating so that 50 people can now fit upstairs among the wicker couches, chairs and coffee tables. The grand opening was Thursday night.

"We're walking the line here," admitted Steer owner Tucker Curtin. "I believe we're following the rules with the open air. But I don't want to call these guys out on it."

While some restaurant owners may be confused about what the law allows, county officials say there are no ifs, ands or butts about it. State law says if the restaurant serves food outside, no smoking is allowed in that area if it's covered by a roof, even if no walls surround the area.

"If it's a restaurant where food is prepared and served, then if there is an overhead covering, they cannot smoke outside," said Peter Coppola, the county Health Department official overseeing compliance with the state ban.

The trend toward outdoor patios and bars is the latest effort by restaurant owners to compensate for the smoking ban, formally known as the Clean Indoor Air Law. The law, which took effect last July, prohibits smoking in workplaces, including restaurants and bars, unless a restaurant can get a waiver by proving the ban is destroying its business.

Most restaurants are complying, but Start-up restaurants want outdoor venues. Many have complained bitterly that they've lost a significant amount of business because smokers aren't going out to eat.

Several establishments have applied for waivers, and at least a dozen in Niagara County and more than eight in Erie County succeeded by proving the severity of their losses.

"I know it has been damaging to a lot of restaurants in the area, and they've been working hard to try to reverse the law itself," said Daniel Garvey, president of the Western New York chapter of the New York State Restaurant Association and director of food and beverage at the Roycroft Inn in East Aurora. "(Tobacco is) still a legal substance, so there must be some way to use it."

At this point, many smokers are staying home or going to friends' houses rather than being forced to step outside or snuff their puff altogether. But those who still go out say they opt for restaurants that try to accommodate smokers.

"I definitely support restaurants that offer a choice for a customer to smoke or not to smoke," said Lina Wong, 30, of Buffalo, who enjoyed a cigarette while dining with a friend in the fenced-in, open-air patio at Lotis.

At the Steer, Curtin said he suffered a 35 percent drop in business since the ban began. He recouped much of it in food sales but is still losing about 20 percent on alcohol sales because smokers are staying away.

"We've had to make quite a few changes since the law was enacted, and this was one of the bigger ones," said Curtin, who also owns the Lake Effect Diner next door. "It was quite an investment, but we think the customers will really like it, and so far the neighborhood has been really responsive to it."

Even start-up restaurants are keeping an eye out for locations that would allow for outside bars and patios.

"People are looking for locations that do have the availability of open air, so smokers can light up, because restaurants have lost an unbelievable amount of business," said Howard Saperston Jr., chairman of Saperston Real Estate Corp. "If there's outdoor availability, it certainly is a major, major draw."

The goal is to reach people such as Tim and Chris Duffett, two brothers who seek out restaurants where they can light up.

"If I'm outside, I'd like to be able to eat and smoke," said Tim, 27, who, with his 24-year-old brother, was smoking on the Steer's roof.

That has also been the reaction Mark Croce found.

"We've incorporated an outdoor area into all the operations, and it happens to be popular with those people who smoke," said the owner of the Buffalo Chop House, D'Arcy McGee's Irish Pub and Brownstone Seafood House and Oyster Bar.

But such efforts might not be enough.

Under the law, any overhead covering means smoking is prohibited, even outdoors. On top of that, only 25 percent of an outdoor seating area can be designated for smoking, and it has to be contiguous - you can't have two tables of smokers at opposite ends of the space.

There also must be clear signs designating the space for smoking, which the Steer does not have.

"I don't think there's one place that has a patio that doesn't allow smoking on their patio and eating," Curtin said. "They just don't want smoking in the dining room areas."

D'Arcy McGee's has an outdoor patio jutting into the parking lot adjoining the building, complete with six portable, green-canopied, oak dining booths and a bar. But the entire patio is covered by a green metal roof. Yet a bartender told a Buffalo News reporter he could smoke out there, next to where several people were dining.

The restaurant also has its rooftop Skybar, an open air patio with a bar and more tables and portable booths. Only the central part of the patio, including the bar, is covered. But Croce said there's no food service on the roof.

Down the street, the Brownstone Seafood House and Oyster Bar has three outdoor patios, two in the front and a large one in the rear. Again, a News reporter was told to just smoke on the front patio while eating dinner - under a roof.

Only at the Chop House was the reporter told he could not smoke except out in front of the restaurant, in a pair of vestibules off the front door.

"It's not a perfect world, but we do the best we can to keep our customers happy and comply with whatever ordinances and regulations are in place," Croce said. "Not everything in life is black or white, but as long as you're making an attempt, people are pretty understanding."

At Lotis, smokers sat one night last week among the dozen tables in the uncovered patio, not far from the sheltered bar. Hollis said their appeal is one of the reasons why the owner, Jay Pasquarella, chose to open the restaurant in that building,

"It was one of the deciding factors," Hollis said. "If you go out with five people and two of them are smokers, you go where they can smoke. People don't go out and drink that much when they can't smoke."

But at Lotis, there were no signs designating an area for smokers, although such nuances irritate customers like Wong. "When you have an open patio seating," the 30-year-old smoker said. "I don't think it should be an issue about smoking or not smoking."

Salamanca Press - May 21, 2004
        Tavern owner loses challenge to smoking law
        By Kimberly Gasber

LITTLE VALLEY — The first court case in the county challenging the smoking ban has been decided in favor of the county health department.

State Supreme Court Judge Larry M. Himelein handed down the decision Tuesday.

The Long Branch Saloon owner Robert Allen, represented by Andrew Goodell, was suing the county health department and board of health for fines the plaintiff thought were levied unfairly starting Aug. 27. The tavern is located at 5 Park Square in Franklinville.

This is the first case in the county dealing with the Clean Indoor Air Act that has ended up in court since the act took effect in July.

Allen contended in his petition that the board of health did not fine individual smokers for violating the law but instead fined the owner for all violations, and that he had fulfilled the law by posting no smoking signs.

He also claimed in his petition that the health department did not have substantial evidence to cite him with violations of the smoking ban, and a number of other violations of procedure by the board of health throughout the entire process.

“None of the contentions has any merit,” wrote Himelein in his decision.

Himelein also wrote: “He claims to have complied with the act by posting ‘no smoking‘ signs and advising smokers who lit up that they were violating the law (wink, wink). However, this was not a case where customers smoked in violation of the bar owner’s good faith effort to stop them and the court declines to reach an issue that is not present.“

“The contention that the Board of Health determination was not supported by substantial evidence is meritless,” he continued.
In his decision Himelein notes several incidents of smoking in the bar including:

• Aug. 1, a health department representative told the bartender that people were smoking in violation of the law. The bartender said she would not enforce the law and threatened the representative.

• Aug. 27 (original date of first violation) a deputy sheriff delivered a letter and the bartender was abusive. The deputy observed several people smoking.

• Nov. 8, a witness observed patrons and the bartender smoking.

“Only if there was something other than the tobacco in those cigarettes could anyone reasonably argue that the evidence was insufficient to support the determination,” Himelein concluded in his four-page decision.

Goodell said that had not yet discussed the decision with his client, he said he would “definitely file a notice of appeal.”

“We believe that business owners should not be held personally liable when someone else violates the law,” he said, appealing on the basis of whom is being fined for violations.

The second reason Goodell would recommend appeal is “the health department openly engaged in selective enforcement. The health department only cites business owners. Not a single smoker has been cited for violating the law.”

Allen has 30 days to file an appeal.

The Clean Indoor Air act was originally passed with the purpose of protecting employees from second-hand smoke, said Public Health Director Barbara Hastings, adding that the point of the law is “to promote health, especially for employees.”
“I am pleased the court dismissed the case to allow the health department and all state health departments to continue to enforce the act to protect employees from second-hand smoke,” she said.

County Attorney Dennis Tobolski said the decision was “well-written, it analyzed all the claims and dismissed all the claims.”
He added that county would have appreciated the assistance of the state attorney general to defend the law “on behalf of Cattaraugus County and all the other counties in the state.”

However, the state attorney general did not assist in the case.

“The county was left with the responsibility to enforce state law,” he said.

According to health department reports, the Long Branch Saloon has been cited three times with violations of the Clean Indoor Air Act: Aug. 27, Nov. 8 and March 20. They were fined $500 for the first offense and $1000 for the next two, with $10 per diem if not paid by specified dates.

An appeal for the first case was denied by the board of health Nov. 5. An appeal for the second case was denied by the board of health Feb. 4.

Fines for third violation were filed after the court case started. The money for the first two fines is in escrow as ordered by Himelein. Tobolski said anticipated those funds to be released by next week.

Associated Press - May 20, 2004
        Lawmakers Agree on Tobacco Plan for FDA

WASHINGTON (AP) -- The government could impose tough new restrictions on cigarette makers under legislation key lawmakers embraced Thursday that would give the Food and Drug Administration broad authority to regulate tobacco products.

The FDA, for example, could ban the use of harmful additives in cigarettes under twin bills introduced in the House and Senate.

It is the first time identical FDA bills have been introduced by Democrats and Republicans in both chambers of Congress. It also is the first time industry leader Philip Morris USA and key anti-smoking groups have supported the same regulatory approach.

``I think today is a breakthrough,'' said Matthew Myers, president of the Campaign for Tobacco-free Kids. ``This is a strong bill that has the potential to save literally tens of millions of lives.''

Philip Morris officials say FDA regulation would help the company market new tobacco products. Other major manufacturers do not support the legislation, saying new advertising restrictions would prevent them from capturing any of Philip Morris' market share. The legislation would be paid for by assessing a fee on tobacco companies.

Sens. Mike DeWine, R-Ohio, and Edward Kennedy, D-Mass., have been haggling over the details for the past several months, after a near-deal collapsed last fall. House sponsors are Rep. Tom Davis, R-Va., and Henry Waxman, D-Calif.

The legislation forbids the FDA to ban cigarettes and says the agency can reduce but not eliminate addictive nicotine.

Marketing terms such as ``light'' and ``ultra-light'' would be prohibited unless the FDA approved them. That is unlikely to happen, since studies have shown those cigarettes haven't reduced health risks faced by smokers.

Senate lawmakers from tobacco states who previously fought FDA regulation now say they would support it in exchange for support of a measure that would pay tobacco farmers to leave the federal system that sets price and production controls on U.S. leaf. Farmers say they want out of the system, which in recent years has dramatically restricted the amount of tobacco they can sell.

Lawmakers say the buyout measure could be linked to the FDA legislation on the Senate floor.

In the House, there is talk of adding a farmer buyout to a corporate tax bill likely to be considered next month. House GOP leaders have so far been cool to the idea of FDA regulation, but Davis said that could change.

The issue has gained attention in both chambers in recent weeks following a statement by President Bush in Ohio that he did not think the tobacco program needed to be altered.

Asked about tobacco regulation, the president repeated a stance that the emphasis ought to be on preventing teens from smoking.

Following Bush's remarks, Democratic presidential hopeful Sen. John Kerry of Massachusetts came out in favor of the buyout and FDA regulation.

The FDA asserted authority over cigarettes in 1996, but the Supreme Court later ruled that only Congress can give the FDA that power.

Capital News 9 - May 15, 2004
        Tougher smoking ban waiver
        By Jola Szubielski

On a rainy day, Poor John's Bar in Glenville should be booming with business.

However, owner Claire Kolor said the state's smoking ban -- combined with a tougher proposed smoking waiver policy in the county -- means her business is almost at rock bottom.

"We're having a problem, a big problem. We are downturning severely to the point where we can hardly pay our bills, we can't give these guys raises, there's no customers here," Kolor said.

The bar has been a family business for more than 30 years, and they've never had a problem until now. Business dropped drastically after the smoking ban went into effect last year. Kolor has even had to dip into her retirement money. She applied for the smoking waiver back in November, hoping to keep her business afloat.

Tom DiPietro of the Restaurant and Tavern Owners Association said, "Schenectady County has decided -- nothing is in print yet--that they're going to go with 20 percent financial hardship."

That's five percent more than the state's standards. The Board of Health has also added a policy of room separation. All of this makes the waiver all that much harder to get.

Those who want to apply for a smoking ban waiver in Schenectady County may have a tougher time doing so if a proposal is approved.

But at the Bayou Cafe in Glenville, owners are thinking about the other side. They worry that if waivers are granted at other restaurants, they might lose business.

Bayou Cafe Owner Ralph Spillenger said, "If they start granting waivers down the street because of hardships, and then a lot of my customers go up there, I've got a hardship."

Spillenger said he didn't think he had lost too much business since the smoking ban, but he's clear in saying that it's not worth the health of his employees or his own.

Post-Standard - May 13, 2004
        Non-tobacco cigarettes are OK for plays
        By Frank Herron

The characters in the Syracuse Stage production of "Private Lives" burn through about 10 cigarettes during each show.

And they do it totally in compliance with last July's Clean Indoor Air Act, which snuffed out smoking in public places, including theaters, throughout the state.

They are lighting up herbal cigarettes.

That's a change for the actors. They were in an Indiana Repertory Theatre production of the same play before coming here for a run that ends Sunday.

There, they smoked the Nat Sherman brand, with real tobacco.

Here, they smoke the Ecstasy brand, with real leaf of lotus, corn silk and licorice root.

"Many actors think the herbals are nasty," says Sam Sheehan, prop master at Syracuse Stage.

But, they're legal. (And cheaper, at $60 for two cartons, including shipping, he says.)

The theater began using some herbal cigarettes years ago when Sheehan started buying them for Syracuse University student productions.

"Lots of the students were dancers who didn't smoke," he says.

The odor of herbal cigarettes can be a problem. When the play "Biloxi Blues" opened in Rochester's Geva Theatre in September, actors were smoking herbal cigarettes. According to news reports, some in the audience thought the sweet aroma was generated by burning marijuana.

The theater applied for, and was granted, a waiver from the Monroe County Health Department, so the actors portraying Army recruits could smoke tobacco onstage.

For now, herbal cigarettes are a workable solution, says Gary Sauda, director of environmental health for Onondaga County.

"That's typical of Broadway," says Sauda, who was in New York City for a recent performance of "Gypsy," which calls for some onstage smoking. (From his mezzanine seat, he assumed it was an herbal smoke.)

"Herbal meets the law," he says, adding that he was glad to know that that's what was lit up in "Private Lives."

However, the curtain might come down on herbal cigarettes someday.

"We know they're bad," Sauda says. "We just don't know how bad."

Salamanca Press - May 12, 2004
        Study: taxes lost from Indian cigarette sales ‘grossly overestimated’

IRVING — After commissioning a study surveying Indian retailers, the Senecas say state projections of lost revenue from tax-free tobacco products are “grossly overestimated.”

“Reports of hundreds of millions of dollars New York State would gain if it were to collect tax on tobacco products sold on Indian territories are grossly overestimated,” said a statement issued Tuesday by the Honor Indian Treaties Campaign, of which the Seneca Nation is part.

“At best, the state would stand to collect only 27.1 million in extra revenue, a far cry from figures supplied by legislators, non-Indian business owners and others that have ranged as high as $1 billion.”

Lower estimates have come in at about $400 million.

The study, conducted by American Economics Group, Inc. an independent research firm in Washington, D.C., was compiled using a combination of survey data, industry data and demographic statistics.

SNI president Rickey L. Armstrong commented, “There have been a lot of wild guesses floating around. We just wanted to inject some facts into the taxation debate and provide the state with some hard numbers backed by solid research. Now that we have a fact-based estimate of potential revenue, New Yorkers have to ask themselves if breaking a treaty is worth $27 million. What price does New York want to put on its integrity?”

Armstrong pointed out that the report, entitled “Seneca Nation of Indians Creates Jobs and Economic Benefits in New York State,” is the first study to be based on data supplied by Seneca business owners and takes into account that most Seneca tobacco sales are not made face-to-face in traditional retail settings, but via mail order and the Internet.

The study concluded that figures previously released by the state and non-Indian business owners have “no basis in reality” and suggests that if Internet and mail order buyers were faced with paying tax on Indian tobacco goods, they would purchase untaxed cigarettes from sellers in other states, via the same format. It projects that 8.3 percent of current Seneca sales would be converted into taxable sales.

“Most of those other estimates simply took a guess at our gross sales and assumed that all of those sales would be converted to taxable sales if the regulations went into effect. That is an unrealistic assumption though. You can’t ignore consumer behavior. If a consumer is used to buying tax-immune cigarettes online or by mail order, why would he suddenly start buying taxable cigarettes at the corner store? It’s not going to happen,” said Armstrong.

The study further concluded that if the tax plan was to go into effect, not only would the Seneca economy be devastated, but the state would stand to lose over $400 million in economic activity from businesses throughout the state.

Senecas say one direct effect would be the loss of over 2,700 jobs across the state, 1,091 of which would come directly from Seneca production and distribution services, 1,081 from indirect or supplier industries and 613 from the goods and services sector where Seneca workers spend their paychecks.

“Should the Senecas and other Nations be taxed by New York, their tobacco businesses could not be sustained,” said the study.

Armstrong said, “Tobacco sales are the foundation of our economy. For the past few decades our people have used their entrepreneurial skills to make an honest and decent living. All we are trying to do is build a more self-sufficient economy for the future of our Nation, but if our tobacco businesses are devastated, it would set us back 20 years.”

The study concluded by questioning the reasoning behind the plan to collect tax on goods sold on Indian territories, predicting the state stands to lose over $400 million in sales from a variety of businesses throughout the state and over $100 million in wages if the regulations go into effect.

“To kill these jobs and suppress such extensive economic activity in order to gain $27 million in tax revenue is perverse,” it said.
Armstrong added, “When you look at the numbers right there in black and white, it is obvious what a big impact Seneca businesses have on the state economy. To shut down an industry that provides much-needed jobs and revenue for the state of New York makes no sense.”

The Senecas launched a media campaign in October 2003 which they said was designed to educate state residents about how the regulations, then set to take effect Dec. 1, 2003 would violate a series of treaties. On Nov. 7, the state tax department announced it would extend the public comment period and postpone implementation of the regulations until March 1. In February, the tax commissioner said he would indefinitely delay implementation, but in April, State Sen. Nick Spano issued a report calling for a renewed push to collect state taxes on sales in Indian territory.

Niagra Falls Reporter - May 11, 2004
        CITYCIDE: BUSINESS OWNERS STILL WAITING FOR NON-SMOKERS TO FILL THEIR
       REGISTERS
        By David Staba

Don't worry -- they'll come back.

That was just one of the big lies that supporters of the nation's strictest smoking ban told New York's restaurateurs and tavern-keepers after the law passed.

Smokers who decided to stay home from local watering holes and dining spots rather than be forced onto the sidewalk to indulge their habit would eventually relent and return, according to anti-smoking fanatics and the cowardly politicians who caved under their pressure. Even if they didn't, the fib held, wholesome non-smokers enticed by the newly clean air would replace their sadly addicted peers, gleefully filling the coffers of businesses complying with the ban.

Well, it's been nearly nine months, and neither portion of this big lie has come true.

But unlike the other supposed justifications for allowing government to stampede into the domain of private business, this one is provably untrue.

You can argue all day about the impact of second-hand smoke. According to the fanatics, every cancer death in the United States is somehow attributable to the Marlboro puffed by the guy next to you. When people start making up numbers, they're pretty hard to disprove. If you believe the propaganda of the antis, you're either already dead or will be within a year.

Likewise, ban-lovers would have you believe that bar and restaurant business is actually up over the dark, dirty days when one could light up in the local gin mill, selectively citing tax figures issued by Albany to back their claims.

Of course, those numbers ignore inconvenient factors like inflation. If the price of a meal or a drink is up 10 percent -- a reasonable expectation -- over a year ago, then so is the sales tax on that item. Duh.

Besides, Citycide prefers to take the word of the people actually feeling the pain caused by the ban, rather than trust the figures of bean-counters whose jobs depend on making the inane policies of lawmakers seem sensible.

Since the ban was enacted last July, precisely one business owner interviewed has reported an increase in business.

That was a place in Olean called the The Beef 'N' Barrel, where the emphasis falls heavily on the former. Not having to have a separate smoking room allowed the owner to more fully utilize the tables near the bar, which few ever utilized for more than a few moments anyway.

Closer to home, few have enjoyed any benefit, no matter how many stories The Other Paper runs about that place in Lockport that never allowed smoking to begin with.

Bars in the purest sense have been hit hardest, but even places thought of more for their food than their spirits have suffered, too. Don't believe it? Stop by Lou's Pete's Market House for lunch some afternoon, or farther up Pine Avenue at the Como just about any time, and ask their owners about what a great help the ban has been to them.

One Web site, The Hittman Chronicles, has provided business owners with a place to tell their stories at www.davehitt.com/facts/badforbiz.html, and hundreds have done so -- including 131 from New York State as of this writing.

Two Niagara County establishments are on the list -- the defunct Middleport Inn and Jean's Bar and Grill in Wilson, which reported a 26 percent loss in business.

"This damn state really knows how to kill people's dreams," wrote Rene Lembke, who closed the Middleport Inn last week after the ban emptied her bar.

Of course, an astute editorialist at The Other Paper has repeatedly called such business people "whiners," which is particularly funny coming from someone who has never actually run a business for which someone else wasn't providing the capital.

The owner of Five Corners in Oneida, where business is down 32 percent, was a bit more on target.

"After 20 years in business, this is what New York State does to us," the owner wrote. "Where are all these non-smokers?"

Associated Press - May 11, 2004
        Proposed Law Would Raise Legal Smoking Age To 19

ALBANY, N.Y. -- Turning 18 comes with perks: You can legally vote, marry and buy cigarettes in New York. But under a proposed law aimed at curbing underage smoking, the legal age for lighting up would become 19.

In recent years, several states have tried with little success to raise the legal smoking age to make it harder for teenagers to obtain cigarettes from their 18-year-old friends.

In 1992, all 50 states were ordered by Congress to set the minimum age for purchasing tobacco products at no younger than 18. Alaska, Alabama and Utah restrict such purchases to 19.

Last year, nine states, including New York, unsuccessfully sought to raise the minimum smoking age to 21. New York Sen. James Alesi, a former smoker, floated a proposal to phase in the hike over a three-year period, but the idea died before ever reaching the state Legislature for a vote.

It's unclear whether the latest push by New York to increase the legal age to buy tobacco products will gain steam or how it would affect the nearly $420 million that flowed into the state treasury in the 2003-04 fiscal year from tobacco taxes.

The measure is supported by the American Cancer Society and American Heart Association, but smoking rights groups complain it's another attempt by government to dictate their lives.

Alesi, a Monroe County Republican, along with Assemblywoman Sandy Galef, a Westchester County Democrat, is sponsoring the latest attempt to increase the minimum smoking age.

"Raising the age at which one can purchase tobacco products is one way that we can cut back on the number of young adults beginning this deadly and addicting habit," Alesi said Monday.

About 90 percent of smokers take up the habit before age 21, and about 400,000 deaths each year in the United States are attributable to tobacco-related causes, according to the American Lung Association.

Audrey Silk, a longtime smoker and founder of New York City Citizens Lobbying Against Smoker Harassment, argued that it should be up to parents to teach their children about the dangers of smoking and that increasing the smoking age by a year will not solve the underage smoking problem.

"It infringes on the 18-year-old's rights," Silk said.

The New York Association of Convenience Stores, which represents 5,000 neighborhood mini-marts and corner stores, also opposes the legislation. The group trained and certified over 2,500 store workers on how to prevent underage sales of tobacco and raising the age would only confuse cashiers, the group said.

Poughkeepsie Journal - May 11, 2004
        Proposed law would raise state's legal smoking age to 19

Two state legislators are proposing to raise the legal smoking age from 18 to 19 in an effort to curtail teen tobacco use.
A Democratic assemblywoman from Westchester County and a Republican senator from Monroe County say hiking the age would put cigarettes a little further out of the reach of high school students, most of whom are 18 or younger.

Studies show about 60 percent of teen smokers get cigarettes from others, either by bumming or getting them to buy smokes for them, Assemblywoman Sandra Galef, D-Ossining, said.

''By raising it to 19, you don't have as many students that can be the suppliers of cigarettes to our kids,'' Galef said.

Sen. James Alesi said teens, given a year more to think about it, might come to the conclusion that smoking is a bad idea.

''They have had one more year of life experience to understand the choices they make are going to affect their lives,'' Alesi, R-Perinton, said.

The bill has good chances of passing the Democrat-led Assembly, Galef said, and a less certain future in the Republican-run Senate. Alesi said he hadn't discussed it yet with Senate Majority Leader Joseph Bruno, R-Brunswick, who has supported some anti-smoking efforts in the past but opposed others.

The measure is supported by the American Cancer Society and American Heart Association, but smoking rights groups complain it's another attempt by government to dictate their lives.

Audrey Silk, a longtime smoker and founder of New York City Citizens Lobbying Against Smoker Harassment, argued it should be up to parents to teach their children about the dangers of smoking and that increasing the smoking age by a year will not solve the underage smoking problem.

''It infringes on the 18-year-old's rights,'' Silk said.

The New York Association of Convenience Stores also opposes the legislation. The group trained and certified over 2,500 store workers on how to prevent underage sales of tobacco and raising the age would only confuse cashiers, the group said.

Associated Press - May 11, 2004
        Online group withdraws challenge to Internet cigarette ban
        By Carolyn Thompson

BUFFALO, N.Y. (AP) -- An online retailers' group will withdraw its federal court challenge of New York's ban on Internet and mail-order tobacco sales while awaiting the outcome of a lawsuit pending in state court, the group's attorney said Tuesday.

The Online Tobacco Retailers Association, or OLTRA, becomes the second group to drop legal action against the state over the ban. The Seneca Indian Nation, which sells large quantities of untaxed cigarettes at reduced prices over the Internet, withdrew its federal lawsuit last month.

Joe Crangle, attorney for OLTRA, said the group is awaiting the outcome of a state Supreme Court action which claims the law was improperly passed by the Legislature in 2000.

The federal lawsuits by OLTRA and the Senecas argued more broadly that the law was unconstitutional. The Senecas also claimed the statute violated their sovereignty rights under Indian treaties.

"This is a very clean thing," Crangle said of the state case, filed on behalf of Scott Maybee, owner of SmokeSignals.com. "We're not putting on the table at this time any of the treaty rights. This is strictly saying that New York State law wasn't observed (when the statute was passed.) If it wasn't observed you don't even have to raise the treaty rights."

The law, passed in 2000 but not enforced until last year, prohibits Internet and mail-order sales of cigarettes to private individuals in New York state who are not licensed by the state to receive them.

Supporters say the law is necessary to keep tobacco out of the hands of minors. Opponents say its true purpose is to increase the state's tax revenues by forcing smokers to buy cigarettes at brick-and-mortar stores within New York state, rather than off the Internet.

In dropping the Senecas' legal challenge last month, Seneca President Rickey Armstrong said only that the tribe had changed its strategy on the issue and would address it in a different way.

The decision came after the Pataki administration announced it would hold off on efforts to collect state taxes on tobacco and gasoline sales from Indians to non-Indians at reservation businesses.

A hearing on the Maybee case was scheduled for May 19.

Salamanca Press - May 11, 2004
        County OKs four smoking waivers
        By Kimeberly Gasber

ELKDALE — Four area establishments can open their doors to smokers once again.

The Cattaraugus County Board of Health granted waivers from the New York State’s Clean Indoor Air act to four business at their meeting Wednesday.

The businesses are: the bar Rough Cuts in South Dayton; Off Track Betting in Olean; the Ischua Fire Department, and the Kinney Hose Company in Weston Mills.

Administrative Officer Kathleen Ellis and Ray Jordan, senior public health sanitarian, reviewed the waiver applications for the four businesses with the board before the vote. Each waiver application was voted on separately.

To qualify for a waiver, businesses either have to show 15 percent loss in revenue or show other financial hardship, such as building a special room for smokers prior to the start of the ban in July.

Businesses also have to keep smoke from reaching non-smokers and staff by having a separately ventilated room with no paid workers serving the room.

Rough Cuts has a building for smokers, separated from non-smokers by a walkway, said Jordan in his report. After increasing the size of the fan to vent smoke outdoors and arranging for a stronger self-closing door to the smoking room, the building met the standards for the waiver, said Jordan.

The OTB facility had a separate room with separate ventilation and a self-closing door already in place, said Ellis.

The Ischua Fire Department originally had a separate room for non-smokers pressurized to keep smoke out, said Jordan. The deparment switched the rooms, changing the non-smoking room to a smoking room and venting the smoke outside, then using the larger room for non-smokers instead.

The Kinney Hose Company in Weston Mills already had a separate room set aside for smokers, said Jordan.

He added that both fire facilities would have bingo volunteers in the smoking rooms for bingo, but those individuals would all be unpaid.

“They have no paid employees in the smoking room,” he said.

Under the criteria for the waivers, no paid employees are allowed in smoking rooms. This stems from the original intent of the law: preventing second-hand smoke from getting to workers.

Public Health Director Barbara Hastings said she was “very glad we can move forward with the waivers.”

She added that other businesses had applied for waivers, and the health department was waiting for them to complete separate smoking facilities before the department can inspect the buildings.

These are the first full waivers the county health board has granted. Previously, it has granted membership exemptions from the smoking ban, but they have less strict requirements.

Membership organizations must prove that all workers are volunteers and not being compensated in any way, and non-members are not allowed in the establishment.

L.A. Daily News - May 10, 2004
        Hollywood burning over smoking
        Industry: 'R' ratings not needed
        By Lisa Friedman

WASHINGTON -- Stamping out smoking in the movies is an unrealistic goal, Hollywood leaders will tell a Senate panel today as it investigates the impacts of lighting up on film.

Movie industry officials also plan to resist calls to impart an "R" rating on films that show smoking, saying it will water down a system meant to warn parents against graphic sex, violence and illegal activities like drug use.

Sen. John Ensign, R-Nev., requested the hearing before the Senate Commerce Committee on the heels of a Dartmouth University study linking the portrayal of smoking on film with the likelihood that children will pick up the habit.

"The link between movie characters smoking and young children being influenced by that behavior is unquestionable. The goal of this hearing is to determine the best way to empower parents to deal with that situation as they see fit," he said in a statement.

Vans Stevenson, senior vice president for the Motion Picture Association of America, said industry leaders have met with anti-smoking advocates, as well as with a group of attorneys general from across the country interested in curbing on-screen smoking.

Stevenson said MPAA President Jack Valenti will tell the Senate panel the studio association's role is to ensure that moviemakers clearly understand the concerns of anti-smoking advocates -- not to impose rules about what can or can't go into a film.

"Smoking is a matter of creative expression. People smoke, and that is an element that is sometimes depicted on screen. ... Can you imagine a World War II movie without smoking? My God, they used to put cigarettes in mess kits," Stevenson said, adding, "We're not in the business of telling people how to tell stories."

In addition to Valenti, a representative from the Directors Guild of America and the author of a University of California, San Francisco, study about the impact of smoking on film will testify.

The Dartmouth study tracked 3,549 adolescents between the ages of 10 and 14 and found what it called "strong evidence" that viewing smoking in movies promotes smoking among teens.

"Exposure to movie smoking was positively associated with sensation seeking and rebelliousness, and inversely associated with school performance," the report noted, and found that slightly more than half the teens who started smoking since the beginning of the study did so as a direct result of movie influence.

Hollywood leaders have challenged the methodology of the study, however, and plan to oppose any move to impose a special rating system for smoking.

Smoke Free Movies, an advocacy group, has blasted the MPAA for its position. The group maintains that an "R" rating would allow moviemakers to retain artistic control while giving parents a tool to protect children from images of smokers.

Reuters - May 9, 2004
        Lawmakers Examine Film Smoking, Copyright Act

WASHINGTON (Hollywood Reporter) - Hollywood lobbyists will be busy this week as lawmakers examine smoking on film and legislation that could undo some key portions of the Digital Millennium Copyright Act.

The hearings, one in the Senate Commerce Committee on Tuesday and one in the House Commerce Committee on Wednesday, make nice legislative bookends for the entertainment industry's current troubles in Washington as one focuses on content and the other on copyright.

The entertainment industry has been under considerable pressure to rein in indecent broadcasts on TV and radio, and now may face the same criticism for depictions of smoking.

Sen. John Ensign, R-Nev., pushed for the hearing after several recent meetings between anti-smoking advocates and entertainment industry executives.

Hollywood's top lobbyist, Jack Valenti, is scheduled to testify along with LeVar Burton, co-chair of the Directors Guild of America's social responsibility task force, Madeline Dalton, associate professor of pediatrics at Dartmouth Medical School, and Stan Glantz, professor of medicine at UC San Francisco School of Medicine.

Dalton wrote a recent study claiming that smoking in movies entices young people to pick up the habit. Glantz is one of Hollywood's leading social critics who pushes for R ratings for movies in which the actors light up.

While Motion Picture Assn. of America chief Valenti has worked to get the anti-smoking message out, his trade group says it's a filmmaker's right to have the characters smoke or not.

Times Herald - May 6, 2004
        Health officials grant first waivers of smoking ban
        By Rick Miller

ELKDALE — The first waivers of the state’s indoor smoking ban were granted Wednesday by the Cattaraugus County Board of Health.

The Ischua and Weston’s Mills fire department bingo halls, Off Track Betting parlor in Olean and Rough Cuts tavern in Delevan were the first in the county to receive waivers under the state Clean Indoor Air Act that went into effect last July.

Each met the county Health Department’s requirements of separate rooms with self-closing doors and ventilation to the outside, said Public Health Director Barbara J. Hastings. Other waiver applications are pending.

“We are going in the right direction,” Ms. Hastings told members of the Board of Health meeting at Elkdale Country Club. The waivers protect employees from second-hand smoke, she added.

Mrs. Hastings admitted the indoor smoking ban is taking up an increasing amount of staff time to oversee.

The Board of Health denied appeals from four taverns that had been cited for violating the indoor smoking ban. They are: City Limits Bar & Grille, town of Olean, fined $500 for permitting smoking Nov. 29; Hardy’s in Delevan, fined $500 for permitting smoking Dec. 11; Ischua Valley Country Club, Franklinville, fined $500 for permitting smoking Dec. 11, and Phil-N-Station, city of Olean, fined $1,000 for a third smoking ban violation, recorded Jan. 24.

The board also fined Pine Lanes of South Dayton $500 for a violation of the smoking ban March 5.

City Limits was denied permission for a one-week extension of the 15-day period during which time a board order may be appealed.

The Long Branch Saloon in Franklinville was also cited for a third violation of the smoking ban March 20 and fined $1,000.
Ischua Valley Country Club was fined $1,000 by the board for a second violation March 4.

Mrs. Hastings said the business owners have been told that the inspections are not random, but are sparked by complaints.
County Attorney Dennis Tobolski explained to board members that Long Branch Saloon, owned by Robert F. Allen, had appealed its prior citations for violating the Clean Indoor Air Act to state Supreme Court.

Arguments were heard last week in state Supreme Court in Little Valley. Andrew W. Goodell of Jamestown is representing the Long Branch Saloon.

Acting State Supreme Court Judge Larry M. Himelein reserved decision in the lawsuit, which seeks to overturn the Clean Indoor Act as unconstitutional.

Capital News 9 - May 5, 2004
        Quig's allowed county's first smoking ban

Smokers at a Gloversville bar and restaurant can now light up.

The New York State Department of Health granted Quig's Bar and Restaurant a two-year Clean Indoor Act waiver.

The owner said a separate smoking room will be available in the back of the bar. He added that 60 percent of the bar is still for non-smokers.

Quig's is the first establishment in Fulton and Montgomery counties that can legally allow patrons to smoke since the state smoking ban went into effect last July.

The Post-Standard - April 28, 2004
        Bar loses smoking ban battle
        Cayuga County refuses to issue permit allowing Costello's to remain open.
        By John Stith

It looks like the last call for Costello's, an Auburn bar whose owner has refused to pay a $1,000 health department fine or enforce the state's indoor smoking ban.

The bar appears to be the first business in the county closed for violating the state's smoking ban, after a pair of setbacks delivered Tuesday by Cayuga County health officials.

The first setback came Tuesday morning from administrative officer Jack Tonzi at the close of a Health and Human Services Department hearing. He recommended that the Board of Health deny Costello's owner Patricia Glanville, of Fleming, a food service permit, required of all bars by state law. Without the permit, a bar cannot operate legally in the state.

The second setback came about an hour later, when the board agreed formally to deny the permit, effectively shutting the bar at 15 Aurelius St.

"Mrs. Glanville brought this on herself," County Attorney Frederick Westphal said during the permit hearing.

Glanville did not testify at the hearing and had no comment afterward, except to say that the bar would be closed Tuesday. She not attend the subsequent board meeting. Her position from the start has been that since she is the only employee at her business the smoking ban should not apply to her.

According to testimony by county officials at Tuesday's hearing, the permit denial was tied to Glanville's failure to pay the $1,000 fine, assessed Jan. 27 by the board for allowing smoking in the bar. The fine followed a hearing Jan. 20, also conducted by Tonzi.

In addition to the setbacks Tuesday, Glanville faces a court battle over her refusal to pay the fine. On Thursday, Westphal's office filed suit in state Supreme Court to force her to pay.

At the board meeting, County Environmental Management Director Eileen O'Connor told board members the food service permit year runs from April 1 through March 31 and Costello's has been operating without a permit since April 1. She said the Health Department had allowed Costello's to operate until the board could act on the application.

Tonzi had also recommended that the board order the bar to close immediately. Westphal urged only denying the permit. If Glanville opens the bar, the county could move to close it, he said. The board took his advice.

At the conclusion of the earlier administrative hearing, Kenneth Ray of Utica, Glanville's lawyer, said the county acted improperly. "There's nothing in the law to permit the county of Cayuga to put this person out of business," he said.

Ray said the section of the state sanitary code cited by the Health Department as the reason for the hearing only allows an existing food permit to be suspended. Since the department didn't issue a permit, there was no permit to suspend, he said.

Two Health Department employees testified that they saw smoking violations at Costello's Feb. 17 and March 23.

The Post-Standard - April 25, 2004
        Smoking protesters fume
        By Aaron Gifford

Bud Natale said cigarette smoke killed both of his parents: His father died of lung cancer and his mother from emphysema.

Yet Natale yelled the loudest and waved his sign the proudest Saturday in a demonstration against the American Cancer Society in front of the Oneida Indian Nation's Turning Stone Resort and Casino, site of the fifth annual Coaches vs. Cancer Basket Ball to benefit the not-for-profit health organization.

"I still don't think you have the right to tell people what they can do," said Natale, adding that he doesn't use tobacco but sympathizes with tavern owners who have been hurt by the new state law that bans smoking in bars and restaurants. "My father also served in the military for our freedom. They're taking away our civil rights."

With signs and chants, bar owners from the Empire State Restaurant and Tavern Association and their supporters called the American Cancer Society "a bunch of hypocrites," saying it was wrong for the organization to push for the state smoking ban and then hold one at a place that allows smoking.

"This should have been held at the Oncenter," said Caren Snyder, owner of Dodester's bar on South Avenue in Syracuse, waving a sign that said, "Whether I chose to smoke or quit, at least I'm not a hypocrite."

Turning Stone, because it sits on Indian land, is not subject to the state's strict anti-smoking law that went into effect last summer. The Basket Ball event was in a smoke-free area of the convention center there.

The Basket Ball is run by Syracuse University men's basketball coach Jim Boeheim, who previously said he would save $50,000 a year by holding the $300-per-ticket event at Turning Stone, which pays for the entertainment and doesn't charge a setup fee. The event was moved from the Oncenter to Turning Stone in 2002.

There were at least 60 protesters along Route 365. One carried a sign that said "Boeheim Butt Out."

Although the bar owners' aim was to criticize the American Cancer Society, several members of Upstate Citizens for Equality lined up next to them with their signs complaining about the sovereign nation's taxation policies.

Empire State Restaurant and Tavern Association President Ralph Dittenhoefer, of Oneida County, stressed that his organization does not oppose the nation or its rules and policies, but he appreciated Upstate Citizens' support.

Some motorists honked horns in support of the bar owners or Upstate Citizens and others did so in opposition, prompting some of the sign-wavers to remark, "Smoke 'em if you got 'em."

Plenty of protesters smoked during the gathering and threw their cigarette butts on the shoulder of the road or into the flower garden at Turning Stone's main entrance.

Terry Karst, owner of Bec' Ivy Grill in Oneida and an association member and smoker for 40 years, acknowledged that the protesters had no plans to pick up their butts.

"You should see it (mess) in front of our bars," he said, lighting a Marlboro.

Two nation police officers in an unmarked car watched the protest from about 50 yards away and videotaped it, "just to make sure nobody gets hurt."

The Leader Herald - April 25, 2004
        Smoking ban a cloudy issue
        Editorial

For the past nine months, the Clean Indoor Air Act, which prohibits smoking in virtually any business, has prevented smokers from lighting up. Or has it?

Despite the law, state and local health departments have been granting waivers to some establishments based on whether the ban is creating financial hardship. In the 41 counties that have full-service health departments, the individual departments have the authority to issue and approve waivers and can come up with their own criteria for granting waivers. In the 21 other counties, including Fulton, Montgomery and Hamilton, which have no full-service health departments, the state Health Department issues waivers, said department spokeswoman Claire Pospisil.

Businesses give various reasons for opposing the smoking ban. Locally, some area businesses say people are tracking in mud from outside after they go out to smoke, creating a hazard on the floor. They say people are smoking anyway and extinguishing their cigarettes in various inappropriate places of the business because no ashtrays are allowed. The ban's resulting in fewer patrons, owners say, and some businesses contend they can ensure air circulation would prevent non-smokers from breathing in smoke.

Several Fulton County businesses, including Arterial Lanes in Johnstown, Sherman's in Caroga Lake, WF Shamrock's in Gloversville and the Rainbow Restaurant in Johnstown, applied for waivers but were denied. In other counties, however, restaurants, bars, lodges, a bingo hall and even Off-Track Betting parlors are getting a free pass on the smoking ban. A few examples:

€ Oswego County and its Board of Health granted waivers to OTB parlors in Central Square and Phoenix.

€ Franklin County granted a waiver to a bar in Malone. Seven's Grill now allows people to smoke in a room that's vented outside.

€ Several Jefferson County bars have received waivers.

€ The state granted a waiver to the Herkimer County Detachment Marine Corps League in Ilion. The league created a separate smoking lounge with air-circulating fans in a pre-existing space down the hall from the bar.

€ A Keeseville bingo hall in Essex County received a waiver.

€ The state granted a waiver to the Montour Falls Moose Lodge in Schuyler County.

The fact these places received waivers - and many more businesses are sure to get them - while others still suffer with the ban should send a message to state legislators: The "smoke-free" law is flawed. Either the state should change the law to accommodate smoking at bars, restaurants and other establishments, or truly enforce the smoking ban and permit no waivers.

When smokers violate the ban, the establishments can be fined. In Fulton County, four businesses have been fined a total of $1,600. They include Miss Johnstown Diner, Rooster's Sports Bar, Kane's Tavern and the Waterway Grill.

Meanwhile, patrons of other businesses can smoke to their heart's content because those establishments have waivers.

Something smells afoul in the law, and it's not smoke.

The Saratogian - April 24, 2004
        Area bar gets smoking waiver
        By Jerome Burdi

MOREAU -- Connie LaRock, owner of Connie's Roadhouse on Gansevoort Road, has a message for patrons: Smoke 'em if you got 'em.

The bar was the first in the county to be approved this month for a smoking waiver because of financial hardship, with business dropping by more than 15 percent. The Alley Bar in Saratoga Springs was turned down.

'They were coming and having one drink, then going outside and having a cigarette and saying 'the heck with it' and going home,' LaRock said.

According to the state Department of Health's Web site, updated monthly, 45 bars in 21 counties have been denied waivers and five waivers have been granted. Local health officials watch over the more urban counties, DOH spokeswoman Claire Pospisil said.

Connie's Roadhouse -- which the state cited for allowing smoking last year after the ban took effect on July 24 -- now has a separate room for smokers, as required by law.

'They love it,' LaRock said. 'Smokers as well as nonsmokers go in there. People are enjoying it. They no longer have to stand in the rain and the cold to smoke a cigarette.'

Though Pospisil said the waiver took effect on Thursday, LaRock said a health inspector told her it was OK to allow smoking on April 16.

LaRock said the smoking room can hold about 50 people.

'The room prior to this (ban) was a nonsmoking room -- isn't that ironic?' she said.

A party was thrown Wednesday to celebrate the waiver, with $1.50 drinks and free hamburgers and hot dogs -- but no free smokes.

'I don't encourage smoking,' LaRock said. 'This is all about my livelihood. Smoking and drinking have been together as long as Adam and Eve.'

News 10 Now - April 24, 2004
        A controversial fundraiser

The annual Coaches vs. Cancer fundraising event being held at Turning Stone casino isn't happening without some controversy.

The annual Basket Ball is a black tie affair created by Syracuse University Coach Jim Boeheim to benefit the American Cancer Society.

The ACS pushed for New York's Clean Indoor Air Act, which many bar owners say has hurt their businesses.

Although the Basket Ball is a smoke-free event, some feel associating it with an organization connected to tobacco products and smoking is hypocritical and promotes a double standard.

Organizers argue that choosing Turning Stone shaved about fifty thousand dollars off the cost of the event.

"We're trying to raise money to fight cancer and the nation has helped us to do that. I just am very grateful for them. I understand a little bit about what people's thoughts are, but I think you have to work with people to change minds. I don't think it does any good to boycott people, that doesn't help people change their minds," said Boeheim.

Bar owner Terry Karst is frustrated at the rigid guidelines set by the ACS.

"My bar could be smoke free also, 99.9%, but the American Cancer Society maintains that that's not good enough. It has to 100% free. No establishment, they maintain that if you have a smoking room or anything like that in your establishment, then the smoke leaks out, there's smoke permeating the air, and it's not 100% free and therefore it's dangerous."

This is the first year the event is being held at Turning Stone.

Washington Blade - April 23, 2004
        Anti-smoking smokesreen
        Those pushing for a smoking ban in D.C. are hiding the truth: industry employees oppose it and business would be hurt.
        By Mark Lee

Nightlife and hospitality venues and employees have become accustomed to the smoke and mirrors.

But we didn’t expect the Washington Blade to be so easily seduced by the beguiling statistical deceptions of the mandatory smoking ban lobby (“It’s time for a smoke-free D.C.,” editorial by Kevin Naff, April 16).

The claim that New York’s mandatory smoking ban has not hurt bar, club and restaurant business in the Big Apple is both implausible and untrue.

Selective aggregate tax statistics for food and beverage businesses of all types in New York City — assembled by a defensive mayor facing growing opposition to the forced imposition of a total smoking ban — conveniently mask the negative effect the ban has had on nightlife businesses.

A survey conducted by the New York State Restaurant Association discovered that 76 percent of alcohol-licensed bar and restaurant businesses surveyed in New York City reported a decline of 25 percent or more in bar sales and 15 percent or more in food sales as a result of the smoking ban.

Figures released by the city’s Wholesale Beer & Liquor Distributors show that the sale of spirits and wines in bars and restaurants in metropolitan New York City is down by more than 20 percent. Beer wholesalers are reporting a 15 percent decline statewide in beer sales.

Hundreds of businesses have applied for financial hardship exemptions to the law in New York.

IT IS FOR these reasons that New York state legislators are now considering a rollback of the state’s mandatory smoking ban. A recent independent and respected poll indicates that a majority of both New York City and New York state registered voters no longer support the ban for bars and nightclubs.

Contrary to the assertion made by the Washington Blade, a record number of noise complaints caused by people smoking on sidewalks outside bars and clubs have resulted in a proposal by New York City officials to force nightlife establishments in the city that never sleeps to close at 1 a.m. unless a special “nightlife license” can be obtained.

Needless to say, Bloomberg has put that proposal back on the shelf until after the election.

One in four Washingtonians smoke regularly and they are joined by those who are infrequent social smokers who might light up over a beer or cocktail at a local bar, lounge or nightclub. Patrons of bars and nightclubs tend to smoke in greater numbers than the general population.

FOR GAY AND lesbian venues, however, the numbers are even greater. The American Legacy Foundation estimates from surveys conducted around the country that the percentage of LGBT smokers may number up to twice that of heterosexual adults. Business owners do not need calculators to do the math.

The simple fact is that all mandatory smoking bans have a negative impact on business, differentiated only by effect on business category and degree of loss. Locales with commonly available outdoor facilities at venues and a year-round temperate climate do tend to fare better than others.

A hospitality-dependent city like Washington cannot afford to force a total ban on its largest private sector industry contributing well over 10 percent of the city’s total tax revenues.

We need only look at the significant impact a ban has had on businesses in Maryland’s neighboring Montgomery County to understand that the purported positive business effects of mandatory smoking bans are supported only by the frequency with which ban proponents repeat their claims.

Perhaps that is why the overwhelming majority of industry employees that smoking prohibitionists purport to “protect” are strongly opposed to their campaign.

The attempt by mandatory smoking ban advocates to single-out D.C. At-Large Councilmember Carol Schwartz for opposing a mandatory smoking ban ignores the fact that only three of 13 Council members support a forced ban. Eight D.C. Council members have been joined by District Mayor Anthony Williams in opposing the bill.

D.C. nightlife businesses do not encounter support for a mandatory ban from customers or receive complaints about existing D.C. regulations. If we did we would respond to demand in the marketplace.

D.C. elected officials have clearly and wisely said: allow freedom of choice to prevail for both consumers and businesses, and let the marketplace decide.

nacsonline.com - April 23, 2004
        Seneca Indian Nation Withdraws Legal Challenge Against New York

BUFFALO, NY -- The Seneca Indian Nation has withdrawn its challenge to New York State's ban on Internet tobacco sales, according to the Associated Press. The tribe was suing the State of New York in U.S. District Court, claiming the 2000 law enacted in June 2003 was unconstitutional and interfered with its sovereignty.

"We changed our strategy on this issue and decided to address it in a different way," said Seneca President Ricky Armstrong Sr.

The Seneca Indian Nation is one of the largest sellers of tax-free cigarettes through its Internet and mail-order businesses.

The ban on Internet and mail-order sales of cigarettes was passed by New York State as a public-health law. Proponents of the measure said the goal was to limit children's access to cigarettes. Tribes--along with a coalition of online tobacco retailers--filed its own legal challenge, contending that the law's true purpose was to increase the state's tax revenues by forcing smokers to buy cigarettes at brick-and-mortar stores within New York State.

"The courts had decided this issue before this case was even filed," said James Calvin, president of the New York Association of Convenience Stores. "In 2003, the 2nd Circuit U.S. Court of Appeals upheld the constitutionality of New York's law barring private carriers from delivering Internet tobacco orders directly to consumers. Perhaps the tribe's withdrawal is a recognition of how hopeless it was to challenge the same statute again."

The lawsuit by the Online Tobacco Retailers Association (OLTRA), which also includes two disabled consumers and a Seneca Indian retailer, is pending.

Capital News 9 - April 22, 2004
        State grants smoking waiver to local bar

One bar owner in Saratoga County said she's been given the go-ahead to allow patrons to light up in her bar.

Connie LaRock is the co-owner of Connie's Roadhouse in Moreau. LaRock said the state has granted her a waiver to have a separate smoking room in her establishment.

The state Department of Health said LaRock shouldn't declare total victory just yet. A spokeswoman said the waiver won't go into effect until they inspect the smoking lounge.

LaRock said an inspector told her on Tuesday that her patrons could begin lighting up in the designated area and doesn't understand what the problem is.

Connie's Roadhouse is the first North Country bar or restaurant to be cited for violating the state's smoking ban last fall.

Post Standard - April 19, 2004
        Auburn bar owner hasn't paid smoking fine
        By John Stith

An Auburn bar owner, who has refused to pay a $1,000 fine for allowing smoking in her establishment, could lose her food permit and be forced to close the bar.

The Cayuga County Health and Human Services Department has asked Patty Glanville of Fleming to attend an administrative hearing 10:30 a.m. Tuesday about the food establishment permit for Costello's, the bar she owns on Aurelius Street.

Glanville said Friday she recently filed her permit application and paid the $55 annual fee. Instead of receiving the permit, as in previous years, Glanville said, she was asked to attend the hearing.

She declined to comment on the pending hearing. Her lawyer, Kenneth Ray, of Utica, could not be reached.

County Environmental Management Director Eileen O'Connor said bars serve ice and drinks and, under the state's sanitary codes, must have a food permit to operate. She stopped short of saying the bar would be closed immediately but said that is a possibility.

O'Connor said Glanville's unpaid smoking fine triggered the permit hearing. "She's not complied with an outstanding Board of Health order," O'Connor said, "so we're having a hearing to determine whether a permit should be issued."

Hearing officer Jack Tonzi will issue a recommendation on the food permit, and O'Connor said the Board of Health could act on Tonzi's ruling when the board meets April 27.

Glanville's father opened Costello's in 1948. She was cited in November, after Health Department workers observed smoking in the bar.

The state's revised Clean Indoor Air Act went into effect July 24 and bans smoking in most public places, including bars and restaurants.

In December, Glanville refused to pay a $100 levied by the Health Department. Glanville received the maximum $1,000 fine allowed under state law after an administrative hearing Jan. 20. Tonzi presided at that hearing.

Glanville has refused to pay the fine, and the Health Department turned the matter over to the county attorney.

While Glanville appears at the hearing inside the County Office Building, her supporters will demonstrate from 9:30 to 11:30 a.m. outside the Genesee Street building.

Meanwhile, Thomas and Melina Greco, owners of the Cato Hotel, Main Street, Cato, are holding a meeting at 7 p.m. April 29 in the hotel to discuss the state smoking ban. They have invited a representative of the Empire State Restaurant and Tavern Association and a representative from Honeywell Filtration Systems to speak at the meeting.

The Cato meeting is open to all bar and tavern operators in the county.

Record Online - April 16, 2004
        Foes of smoking ban accuse it of undermining Lottery take
        By Paul Ertelt

Albany – It was the trifecta of vice: sitting at a bar, smoking a cigarette and playing Quick Draw. But the state spoiled the party last summer by banning smoking in bars. And it may be paying the price now with lower than expected Quick Draw revenues.

During the six months following the July 24 enactment of the smoking ban, Quick Draw sales actually were up $5.4 million, or 2.2 percent, over the same period a year earlier, according to figures from the state Lottery Division. But at the same time, the number of outlets for the keno-style game grew at a much faster pace. So the average sales per Quick Draw terminal dropped by 6 percent since the smoking ban. Scott Wexler, executive director of the Empire State Restaurant & Tavern Association and a vocal opponent of the smoking ban, said the figures support his contention that the no-smoking law is hurting the state's tavern industry.

In February 2003, the state changed the frequency of Quick Draw games so numbers are drawn every four minutes instead of every five minutes. State budget officials predicted more frequent games would boost Quick Draw sales by 5 percent, so the 2.2 percent increase is actually a loss for both the state and businesses with Quick Draw, Wexler said.

Russell Sciandra, director of the Center for a Tobacco Free New York, said per-terminal sales are only down because the number of Quick Draw venues has grown.

From August through January, Quick Draw sales totaled $246.5 million statewide, up from $241.1 million from August 2002 through January 2003.

But there were also, on average, 3,283 Quick Draw terminals operating statewide during the latter period, a 9 percent increase from the same period a year earlier. The trend in the Hudson Valley and the Catskills was similar to the statewide trend. In Orange County, Quick Draw sales totaled $7.78 million from August through January, an increase of $1.23 million, or 19 percent, from the same period a year earlier. Sales were up more than 15 percent in both Sullivan and Ulster counties, totaling $1.9 million and $2.8 million, respectively. But the number of retailers offering Quick Draw was up by more than 40 percent in Orange County, by 35 percent in Sullivan County and by 28 percent in Ulster County.

Buffalo News - April 16, 2004
        Smoking banned again at Mac's
        By Sandra Tan

The smoke may be clearing at Jimmy Mac's, but don't expect restaurant owner Rick Naylon to hide the ashtrays.

A Rochester appeals court issued a decision Thursday that once again makes it illegal for smokers to light up in Naylon's restaurant and bar on Elmwood Avenue until the court hears a full appeal months from now.

The decision by the Appellate Division of State Supreme Court represents a suspension of the order issued by State Supreme Court Justice Rose H. Sconiers on April 2.

She had given Jimmy Mac's a six-month waiver of the New York State smoking ban and faulted the Erie County health commissioner for imposing inappropriately strict requirements to get a waiver.

Since that time, Naylon said, bar business has doubled, and he had been contemplating rehiring 10 employees he said he was forced to lay off because of the smoking ban.

Naylon claimed he was unaware of the appeals court decision, though he had taken down the signs in the windows welcoming smokers.

He said he would continue to allow smokers to patronize the bar until he's officially told he must do otherwise. Attorneys said court papers to that effect are expected to be served today.

Even if courts hand him a decision that prohibits smoking, Naylon said, "many of my customers have told me that if we lose the waiver, they're going to break the law and smoke anyway."

He added that it's his understanding the smoking ban requires him to inform patrons that smoking is illegal, but that that's the limit of his obligation.

County Health Commissioner Dr. Anthony J. Billittier IV disagreed.

"The law requires a few things," he said. "It requires an establishment to have no-smoking signs, to not have ashtrays or anything else that will encourage people to smoke. It requires (employees) to ask people not to smoke, and not to serve them if they continue to smoke. We would expect all business owners in Erie County to comply with the law."

He said that, in the past, Naylon has been good about following those requirements.

The appeals court gave the county until May 14 to file the rest of the paperwork needed to fully appeal Sconiers' decision, said Joseph Reina, the assistant county attorney handling the case. Arguments are scheduled for September, though lawyers for Jimmy Mac's said they hope to move up that date.

"Our business may not survive until September," said lawyer Nicholas P. Amigone III, representing Jimmy Mac's.

Amigone said he wasn't surprised by the appeals court decision because lower court judgments that go against the state, county or other municipalities in New York typically are suspended on appeal.

Naylon said he fears for his ability to stay in business and support his family if patrons aren't allowed to smoke in his establishment. He also said other bars all over the county are ignoring the smoking ban.

During the last two weeks when smoking has been allowed at Jimmy Mac's, Amigone said the business saw a $5,000 spike in revenue each week. He said establishments like Jimmy Mac's make the most profit on alcoholic drinks, not food, and smokers are the ones who drive up the beverage tab.

"Without smokers at the bar, we're just not going to survive, and the county has to recognize that," Amigone said. "It's not a perfect world, and you have to deal with realities as they exist."

Republican County Legislators Charles M. Swanick and Steven P. McCarville sent Billittier a letter Thursday requesting that the commissioner relax its process for issuing smoking ban waivers, in keeping with the findings of Sconiers.

Billittier responded, however, that he believes the county's waiver process is fairly consistent with the waiver process adopted by other counties in the state. He pointed out that the county has issued eight waivers.

"We denied fewer than that," he said. "I'm not sure how much more permissive we can be. I have a duty to follow this law, and the law mandates that I protect employees' health in this establishment. I know of no other way to do that than the way we've done it. If someone has a better way to do that, I'd certainly be willing to consider it."

Irish Echo - April 14, 2004
        City vows new clampdown on pub smoking
        By Stephen McKinley

As New York City health officials warned of a new clampdown to enforce the smoking ban imposed by Mayor Michael Bloomberg just over a year ago, wildly contradictory claims and counterclaims have been made by supporters and opponents of the ban.

Another rally was held outside the Department of Health by representatives of the bar and restaurant industry on April 6, focusing on the Department's claim, along with Bloomberg, that the smoking ban would save 1,000 lives per year. Protestors demanded to know the names and addresses of the 1,000 people who they said must have survived since the advent of the ban in March 2003.

Brian Nolan, executive director of United Restaurant & Tavern Owners of New York, laid the statistics at the door of Mayor Bloomberg, saying that the city had launched a massive coverup to hide the appalling economic downturn caused by banning smoking.

"It's a complete distortion of the facts," Nolan said.

Some bar and restaurant owners have forgone paying themselves a salary, he added, in order to stay in business.

Department of Health officials say 97 percent of bars and restaurants are complying with the law, but health inspectors are planning late-night raids based on tip-offs.

"Officials will inspect places late at night and into the morning especially when we receive complaints related to violations at those times," said Sandra Mullin of the Department of Health.

It's been street wisdom since the ban took effect that some late-night dive bars off the beaten track, as well as bars in the outer boroughs, have been skirting the law and permitting drinkers to light up after midnight.

David Rabin, president of the New York Nightlife Association, said: "In many parts of town, places have to choose between risking a ticket for allowing smoking inside or getting a summons for the noise of their patrons out front smoking."

The campaign against the ban appears to have acquired some new energy since a handful of remote and isolated upstate watering holes successfully lobbied lawmakers in Albany and proved that the statewide smoking ban had decimated their business.

Watertown Daily Times - April 13, 2004
        New York Lists Watertown-Area Bars Denied Waivers of Smoking Ban
        By Drew Mangione

The state Health Department has updated its Web site to include 13 bars in Jefferson, St. Lawrence and Lewis counties that have been denied waivers under the state's expanded Clean Indoor Air Act.

The Health Department will not release the names of bars that have been granted waivers until a final inspection of the establishment has been completed.

In Jefferson County, four bar owners confirmed they received waivers. The Speak Easy, 557 Pearl St., had its inspection Friday morning and by Friday night smokers were lighting up.

Smokers and nonsmokers alike at the Speak Easy said it was about time waivers were granted and were pleased with the smoking room itself.

The Brown Shanty, 808 Mill St., and Colesante's Restaurant, 482 Factory St., both in Watertown, are scheduled for inspection Monday. All three bars have separate ventilated rooms designated for smokers.

A fourth bar, Walsh's Pub and Grill, 110 E. Main St., Brownville, is planning to construct a room and have it inspected next month.

At Colesante's, owner George D. Colesante is intending to use what used to be a coin laundry connected to his bar. The washers and dryers were pulled more than a year ago, he said, so now with about $400 in modifications, it will be a haven for smokers.

"It's a room that was almost set up naturally for it," Mr. Colesante said Friday. "The people are very upset about this smoking ban. A good block of them are going home to drink, and we'll never get them back."

He said the bar patrons he has lost because of the ban may not come back, but at least those who are now forced to go outside to smoke will be more comfortable.

While Mr. Colesante said the waiver might be "too little, too late," patrons at the Speak Easy on Friday night were confident that business at the Pearl Street bar will improve.

"I think the waiver has already helped his business," said Paul H. Dean, who built the smoking room at the Speak Easy. "We've had several new faces in here today checking it out."

Other customers, who said they have been drinking at home recently because of the smoking ban, agreed with Mr. Dean.

"I'll come down here and patronize this place more because I have a place to smoke," said Jeffrey S. Backus, before he sauntered into the smoking room to light up a Marlboro Light. "I don't have to go out in the elements. I can have a cocktail with me and I can listen to my tunes. It's great."

Mr. Colesante credited Assemblyman Darrel J. Aubertine, D-Cape Vincent, for helping him and said Thomas E. Boxberger, district director for the state Department of Health, was honest and accommodating. The three other bar owners also complimented Mr. Boxberger, but did most of their lobbying through Sen. James W. Wright, R-Watertown.

"Aubertine seemed very sympathetic toward the cause, even though he voted for it," Mr. Colesante said. "He gave me 45 minutes of his time and so did Ed Gaffney," Mr. Aubertine's chief of staff.

In Jefferson County, the bars denied waivers are the Bobkat Bar & Grill, Theresa; Gary's Pub, Great Bend; the Best Western Carriage House Inn, Watertown; American Legion Post 588, Brownville, and the High Street Hotel, Chaumont.

In Lewis County, only Hotel Parquet, Constableville, was listed on the Web site, while the bars denied in St. Lawrence County are the Coach Inn, Norfolk; The Jug, North Lawrence; Ralphie's, Cranberry Lake; Seaway Bowl, Massena; Nina's Hotel, Richville; American Legion Post 514, Winthrop, and Roy D. Graves Veterans of Foreign Wars Post 1194, Potsdam.

Star Gazette - April 12, 2004
        Relief sought from smoking ban
        Chemung County in top 3 in granting businesses waivers to clean air act.
        By Joseph Manez

Despite a statewide ban on lighting up cigarettes in restaurants and bars, some businesses are winning waivers to temporarily keep the smoking going.

And some county health departments have been more sympathetic than others to bar owners' pleas -- while some are refusing to grant any waivers.

A total of 89 waivers have been issued from the ban under the Clean Indoor Air Act, according to a report by the American Cancer Society this week. Among them, Oneida County has doled out the most waivers with 23, Chautauqua 19, Chemung 10, Onondaga 10 and Niagara nine.

The state Health Department, which oversees waivers for the 21 counties without full-service health departments, has issued five of the 89. It has turned down 45 requests.

Bars and restaurants that apply for a waiver must show they've suffered financial hardship because of the ban, which became effective last June.

Some localities have taken a harder line. For example, Westchester and Livingston counties and New York City prohibit waivers outright. Calling it good news, smoking opponents said the number of waivers is low, given the roughly 65,000 bars and restaurants in New York.

"By holding bars and restaurants to the highest of standards, county health officials show that they consider the health of workers in all types of worksites a priority," said Donald Distasio of the American Cancer Society.

Chemung County has granted 10 out of 20 waiver requests. Waivers have gone to business owners who could prove they lost 15 percent of their business from the waiver and had separate smoking rooms and ventilation systems.

Many of those businesses say the waivers have helped keep their customer base happy.

"It's working out very well actually," said Bonnie Marks, owner of Blondie's Tavern, 256 E. 14th St. in Elmira Heights. "I don't think they should make people continue to prove a hardship to have it. I don't understand the reasoning behind it, now that I see it truly does work."

Customers at some local bars accept the separate smoking rooms as a necessary evil.

"People don't like it, but it's better than going out in the cold. They mind it, because they'd rather sit at the bar," said George Wilson, co-owner of Tiny Tavern, 103 S. Kinyon St. in Southport.

"I think they prefer a separate room to outside, especially when colder weather is here," said Aliks Loughman, manager of Angles Dance Club, 511-513 Railroad Ave. in Elmira. "I know that there are some people who still prefer to go outside because they don't like smoky environment, no matter how much ventilation or air purification we have."

Oneida County's nearly two dozen waivers has drawn criticism from smoking ban advocates who claim the county's criteria for granting waivers is weak.

"They allow for a financial hardship (waiver) based on a 10 percent decline in business compared with the 15 percent standard established by the state Department of Health," Distasio said.

But Oneida County officials said financial hardship isn't the principle reason they give waivers.

"Financial hardship is not a key issue," Oneida County Health Department Director Eric Faisst said. "We wanted to focus on the intent of the law."

Oneida by far has had the most waiver inquiries of any county: 58. It granted 23 and turned down 12, with 23 pending. No county has approved waivers at such a high rate.

Faisst said the intent of the law is to separate non-smoking patrons and employees from smoke. He said he considers smoking rooms that non-smoking patrons and employees do not have to enter or pass through as acceptable for waivers, which will run out at the end of the year.

Critics disagreed.

"I don't think that makes their argument any stronger," American Cancer Society spokeswoman Angela Smith said.

Sen. Raymond Meier, R-Western, Oneida County, introduced a smoking ban rollback bill earlier this year that would exempt establishments with air filtration systems. Under the bill, filtration systems would be required to remove 99 percent of the contaminants from cigarette smoke, but there is disagreement over how effective the systems are.

Earlier this year, the Chemung County Health Department revoked a waiver to the Horseheads American Legion because its air filtration system didn't work well enough, allowing the scent of smoke to waft into non-smoking areas.

Russell Sciandra, director of the Center for a Tobacco Free New York, said the relatively small number of waivers granted is good news for advocates of the ban, known as the Clean Indoor Air Act.

He said he anticipates exempted businesses will see their peers fairing well under the ban and decide investments in air systems and other necessary additions and maintenance aren't worth it.

"They're going to see this isn't a good way to do business."

Star-Gazette staff writer Jeff Murray contributed to this report.

Waivers granted

Here's a breakdown of smoking waivers granted by the New York state and local health departments:

County, Requests, Granted

Broom, 0, 0

Chautauqua, 41, 19

Chemung, 20, 10

Chenango, 0, 0

Cortland, 4, 0

Delaware, 2, 0

Dutchess, 12-20, 0

Erie, NA, 3

Genesee, NA, 3

Herkimer, 8, 1

Livingston, 0, 0

Madison, 1, 0

Monroe, 56, 2

Niagara, NA, 9

Oneida, 58, 23

Onondaga, 28, 10

Ontario, 3, 0

Orleans, 0, 0

Oswego, 11, 6

Otsego, NA, 1

Putnam, 5, 0

Rensselaer, NA, 1

Rockland, 1, 0

Saratoga, 1, 0

Schuyler, 1, 1

Seneca, 0, 0

Steuben, 0, 0

Tioga, 6, 0

Tompkins, 14, 0

Ulster, 0, 0

Wayne, 1, 0

Westchester, 0, 0

Wyoming, 0, 0

Yates, 1, 0

Source: American Cancer Society

Ad Week - April 12, 2004
        Rheingold Defends New York Nightlife
        By Mae Anderson

NEW YORK Powell and Rheingold tackle New York City legal codes that affect nightlife in a "Don't sleep" local TV campaign breaking on Wednesday.

One of three 30-second spots shows people striding down the street with ashtrays in their pockets as a voiceover describes New York in a rhythmic manner. "This is New York, where black air buzzes with stop lights and street lamps and boot steps beat the blacktop," the narrator says. The people are then seen walking into bars and slamming their ashtrays down on tables. "This is New York. And we can't sleep 'til we take it back," the voiceover states, as onscreen copy reads: "NYC Admin. Code 17-502B. No Smoking in a bar. Fines issued: $200.00 & Up."

The two other TV spots present people dancing in bars without a cabaret license and sitting on milk crates. In May, a man in the Bronx was ticketed for sitting on a milk crate because he did not own it.

"If there is a company that has license to speak out and give commentary, it would be Rheingold because they've been here such a long time," says Neil Powell, founder of the New York shop and art director on the campaign. "They're speaking out against issues that affect New York City nightlife. Rather than doing a conventional campaign about low carbs or how great their hops are, we decided to use the advertising campaign as a platform for objecting to these laws."

"We want to sell beer, but we also want to stand out from traditional ads," said Tom Bendheim, president and CEO of the Utica, N.Y.-based brewer. "The campaign is very much about community—we're addressing issues of importance and concern in New York."

The commercials, directed by David Gordon Green of Chelsea Pictures in New York, were shot over three days in mid-March. In addition to the spots, which break Wednesday at midnight and will run between 12-4 a.m. on cable channels in the New York metro area including Comedy Central, ESPN, Spike TV and MTV, Powell branded metal gratings that retailers pull down over storefronts when they close and lightboxes, which hang in bar windows, with the Rheingold logo.

"Don't sleep" has two meanings, according to Josh Rogers, copywriter on the campaign. "This is the city that never sleeps, and Rheingold is the New York beer brand that never sleeps," he said. The phrase also should remind people "not to sleep on issues."

Associated Press - April 12, 2004
        NYC Mayor Blasts Beer Maker Rheingold

NEW YORK (AP) -- Rheingold Beer may boast that it is ``100 percent New York by volume,'' but don't expect the city's mayor to stand up and cheer.

On Monday, Mayor Michael Bloomberg blasted the beer maker after it announced it would begin airing television ads this week poking fun at various city laws, including the mayor's smoking ban in bars and restaurants.

Bloomberg noted that Rheingold Brewing Co. laid off thousands of workers from its Brooklyn plant in the 1970s.

``Rheingold is a company that walked out on the city 20 years ago,'' Bloomberg said. ``They fired 4,000 people almost overnight.''

Not so fast, said Rheingold chief executive officer Tom Bendheim. The new Rheingold, he said, is not your father's Rheingold.

``It's as disturbing to us as it is to the mayor as to what happened in 1976,'' said Bendheim, 41. ``But we are different owners. We are all about New York.''

Rheingold is actually made through a contract brewer in Utica, about 245 miles northwest of New York City.

The beer, launched in 1855, virtually disappeared from the market between 1978 and 1998. Now, Bendheim is trying to resurrect the brand as the beer of choice for drinkers in their 20s and early 30s.

As the company sought new ways to win attention for the beer, Bendheim decided to create a series of ads poking fun at city laws that prohibit dancing in bars without cabaret licenses and ban smoking in public places. The ads are scheduled to begin airing Wednesday.

Bendheim said the company would begin brewing a limited amount of beer at a small Brooklyn brewery in the next few months.

``If capacity existed, we would be brewing in New York City,'' he said.

As the mayor watched the New York Mets' home opener at Shea Stadium on Monday, he sipped a Coors.

The Evening Telegram - April 12, 2004
        County Marine Corps League gets smoking ban waiver
        By Jerry Blair

ILION - The Herkimer County Detachment Marine Corps League last week became the first facility in the area to be issued a waiver for the state's ban on smoking.

Marine Corps League officials were informed Wednesday that the New York State Department of Health had reviewed its application and awarded a waiver from compliance with the Clean Indoor Air Act. The detachment operates a bar on the first floor of its veterans' club at 178 Second St., Ilion.

Herkimer County is one of 21 small, rural counties for which the DOH handles enforcement of the smoking ban and waiver approvals. Under CIAA regulations, a business may be excluded from the smoking ban if it can demonstrate compliance has created an "undue financial hardship."

The criteria for issuing a waiver includes a documented loss of revenue since CIAA was implemented; capital expenditures prior to the law; or other exceptional circumstances resulting in adverse economic impacts to the facility.

"I think justice was served," MCL House Committee Chairman Donald Sterling said. "We met the qualifications for the waiver."

The CIAA requires a business to show its revenue has decreased by at least 15 percent as a result of the ban on indoor smoking; the claim must be verified by state tax figures. According to Sterling, the Marine Corps League has seen its revenue drop by about 21 percent since enforcement of the law began last summer.

DOH documents specify the waiver allows for smoking to occur within a "dedicated smoking room" located down a short hallway, just off the northwest corner of the Marine Corps League bar. That smoking room is fully enclosed and has two tight-fitting doors.

Sterling said the detachment made use of an existing 20- by 30-foot space, which was converted into a smoking room by moving its two ceiling mounted charcoal air cleaners there from the bar. The room is also equipped with two ceiling fans. All four units are designed to turn on automatically when the lights are turned on.

A fan placed in a row of glass windows along the outside wall is used to created a negative pressure inside the room, preventing smoke from entering the bar area when the door is opened. The DOH waiver states that there is to be "no service provided to customers in the smoking room and the door is to remain closed at all times."

The Marine Corps League first submitted an application outlining its plan for a smoking area to the DOH's Herkimer District Office in February. Sterling said the facility was inspected and its application forwarded to department officials in Albany; a waiver was issued after a second DOH inspection of the charcoal air cleaners.

Conditions and restrictions included in the waiver include the placement of smoking/non-smoking area signs and maintenance of all structures and systems featured in the application. The non-transferable waiver is only valid for the Marine Corps League, and no structural changes may be made to the smoking room without DOH approval.

DOH spokesman Claire Pospisil said the waiver is good for two years, expiring on April 5, 2006. She also noted it may be renewed by the enforcement officer following "an assessment of the facility's compliance with all waiver provisions."

Sterling said league members supported the detachment's efforts to acquire a CIAA waiver because they understood what a significant financial impact the law was having. He also stressed that the plan approved by DOH officials would protect non-smokers and employees, while allowing for the needs of patrons who smoke.

"The bottom line is it's good for everyone. It meets both ends of the spectrum," Sterling said. "We're just elated we got the waiver."

Poughkeepsie Journal - April 10, 2004
        Some state bars getting smoky
        10 counties have granted waivers
        By Joseph Manez

ALBANY -- Despite a statewide ban on lighting up cigarettes in restaurants and bars, some businesses are winning waivers to temporarily keep the smoking going.

And some county health departments have been more sympathetic than others to bar owners' pleas -- while some are refusing to grant any waivers.

Ten counties have issued a total of 86 waivers from the ban under the Clean Indoor Air Act, according to a report by the American Cancer Society this week. Oneida has doled out the most with 23, Chautauqua 19, Chemung 10, Onondaga 10 and Niagara nine.

The state health department, which oversees waivers for the 21 counties without full-service health departments, has issued five. It's turned down 45 requests. Bars and restaurants that apply for a waiver must show they've suffered financial hardship because of the ban, which became effective in June.

Criteria by end of month

Dutchess County Health Commissioner Dr. Michael Caldwell plans to have criteria for granting smoking ban waivers completed by the end of the month. The county Legislature would not have to approve the criteria.

He expects the criteria to be rigid enough that only rarely will waivers be granted to a stand-alone bar. Restaurants will not be eligible for waivers.

About 20 Dutchess businesses have requested waivers.

Tony Marchese, president of the Dutchess/Putnam Restaurant and Tavern Association, said local tavern owners are glad the waiver process will soon be available, considering the negative impact on restaurants and bars of the smoking ban.

''I'm glad he's doing what he's doing,'' Marchese said of Caldwell. ''Most of the bars are down 30 percent in business.''

Since the smoking ban was enacted, the county health department has issued 16 fines of $500 each to Dutchess businesses, Caldwell said.

In Ulster County, no smoking ban fines have been issued. Warnings have been made over the telephone and by mail to those businesses cited in complaints. The health department has received about 25 complaints since enactment of the ban.

''We call them up and explain the law to them,'' said Chip Schoonmaker, Ulster environmental health manager. ''We send them a copy of the law and a brochure giving information on the New York State Clean Indoor Air Act.''

Ulster Health Director Dean Palen is also still drawing up criteria for smoking ban waivers.

About 20 requests for waivers have been received, Schoonmaker said.

Some localities have taken a harder line. For example, Westchester and Livingston counties and New York City are prohibiting waivers outright. Calling it good news, smoking opponents said the number of waivers is low, given there are roughly 65,000 bars and restaurants in New York.

Oneida's nearly two dozen waivers has drawn criticism from smoking ban advocates who claim the county's criteria for granting waivers is weak.

But Oneida County officials said financial hardship isn't the principle reason they give waivers.

''Financial hardship is not a key issue,'' Oneida County Health Department Director Eric Faisst said. ''We wanted to focus on the intent of the law.''

NY Newsday - April 9, 2004
        Judge upholds smoking ban
        By Dan Janison

The city's year-old Smoke-free Air Act cleared a key legal test Thursday as a federal judge rejected a constitutional challenge by a smokers' rights group.

U.S. District Court Judge Victor Marrero shot down all the arguments from the group Citizens Lobbying Against Smoker Harassment, or CLASH that the smoking ban violates rights to free expression, assembly, travel and equal protection.

Marrero even called the group's attempt to prove its case "akin to trying to scale Mount Everest with a ball of string."

"There is nothing to suggest that the smoking bans are aimed at the suppression of any expressive conduct," Marrero said.

The judge also rejected the group's attempt to discredit authorities' assertions that secondhand smoke causes death and injury and thereby argue that there was no "rational basis" for the law.

Marrero cited "immense support from the empirical data."

In another portion of the 83-page decision, the judge compares the smoking ban with stringent state auto exhaust emission laws.

While the law does "single out a particular class of persons" and "places some greater burdens on their activities," that doesn't mean it violates the Constitution's equal protection clause, he wrote.

"Smokers remain free to associate and assemble as they please, to smoke or not, whether it be in a bar, a restaurant, a city street or any other place where it is permissible to do so," he said.

City and state lawyers hailed the decision, issued in Manhattan.

The Independent - April 9, 2004
        Smoke waiver plan smolders
        By Jack Mabb

HUDSON--Five Columbia County businesses have applied for a waiver on the eight-month old ban on smoking in public places, claiming, through their applications, that the ban has seriously hurt their businesses.

To qualify for the waiver, an establishment must show that it has suffered at least a 15 percent decline of business because of the ban.

Local business people seeking the waiver vary on what they say the ban's impact has been. "Oh yeah, well over the 15%," said Tom Hope, owner of Peint 0 Gwrw, Ltd., a pub on Chatham's Main Street of the downturn of his busines. Madalyn Blasko, operator of the Turnpike Inn, in Ghent, said her business was "seriously affected." In Hudson, Melino's Pub owner Anthony Melino estimates his business has dropped off 30%.

The other applicants are Four Brothers in Valatie and Schweizer-Mauduit, in Ancram.Edward Coons of the County Health Department is handling the application review and site inspections. He says only two of the five applications have been deemed complete by his office. Schweizer-Mauduit's and Peint 0 Gwrw Ltd. Both those concerns have received site visits from Mr. Coons and he is now finalizing his recommendations. The Turnpike Inn application was just received this week. Mr. Coons says he has returned the Four Brothers and Melino's Pub applications for more information.

Beyond having to prove, through sales tax receipts for the last three years, that business has suffered, those applying for a waiver must also document their ability to have a separate smoking area that is away from the general traffic flow. Nonsmokers must be able to go to the restrooms and to access the services of the establishment without going through the smoking area. Additionally non-smoking staff must not be exposed to the smoking area.

Mr. Hope's Chatham pub offers an unusual application for the waiver. The pub opened two and half years ago as a non-smoking establishment.

"That was part of my marketing plan," said Mr. Hope, who added that he had heard from local residents that they wanted smoke-free establishment. When smokers started asking for an inside area they could smoke in, he opened a separate lounge upstairs that quickly became popular among younger patrons.

"I put in a pool table and dart board. There were times when you couldn't get up there," he said of the days before the ban. Afterwards, he added, "It just turned into a dead zone."

Mr. Hope, a former smoker himself, says this past winter, especially during the brutal cold of January, he felt sorry for the smokers who had to go outside.

"I just felt terrible. They're not lepers," he said, adding he will do whatever the department wants him to do as a waiver requirement. He said Mr. Coons did have some suggestions for door closers and a number of other adjustments.

Ms. Blasko says she and her husband Donald were ready to install an expensive ventilation system in order to allow customers to smoke in their Route 66 tavern. But upon review of the plan by the Albany Health Department she learned the department would not bend on the requirement for separate smoking/non-smoking areas.

At first the couple thought to make the bar a smoking area but found that customers wanted a smoke-free bar so they decided to make a side room, out of the flow of traffic the smoking room.

As the waiver regulations require, bathrooms are to be within the non-smoking area and non-smoking patrons do not have to pass through the smoking room. There must also be a ventilation system that prevents any smoke from leaking to the non-smoking area.

If Columbia County treats the request for waivers like other counties of the state, the applying establishments have a tough road to go. A study of 38 upstate counties, prepared at the end of February showed only 53 waivers had been issued. Just eight of the 38 counties issued any waivers at all with four Oneida, 16, Chautaugua, 10, Chemung, 9, and Onondaga, 9, accounting for 80% of them.

Half of the waivers went to taverns, food service establishments garnered nine, and bowling alleys and bingo halls had six each. Additionally, four businesses identified as industry received waivers.

Associated Press - April 8, 2004
        Federal judge tosses out smoking-ban lawsuit
        By Larry Neumeister

A judge has snuffed out a lawsuit seeking to overturn city and state bans on smoking in bars and restaurants, saying the challenge on constitutional grounds was so weak it was "akin to trying to scale Mount Everest with a ball of string."

U.S. District Judge Victor Marrero concluded in a ruling released Thursday that New York state and city legislators were being rational when they used police powers over the health and welfare of the public to enact smoking bans.

Marrero rejected all the constitutional challenges brought by an organization calling itself NYC CLASH _ Citizens Lobbying Against Smoker Harassment.

A message left with a lawyer for the group was not immediately returned.

The group argued that the bans violated constitutional rights to freedom of speech, association and assembly, travel and equal protection.

The judge, though, said even with the bans, "smokers remain free to associate and assemble as they please, to smoke or not, whether it be in a bar, a restaurant, a city street or any other place where it is permissible to do so."

He said "mere conduct such as smoking is not generally considered speech" and is not protected by the First Amendment.

He rejected attempts to describe smoking as a form of expression, saying it was not like court cases brought to protect the right to burn a flag or to wear an armband to protest a war.

In their arguments, lawyers for CLASH had argued that smoking was a form of political speech, an act of rebellion against government.

Marrero said he was "not persuaded by the general proposition that a smoker's prevailing motivation for smoking a cigarette, whether it is done in a bar, restaurant or on a city street, is to convey a message with some profound expressive content to those around him."

By contrast, he said, the flag burner "is driven predominantly by his or her desire to make a statement, to voice an opposition and take a stand on a cause."

The judge said the government is granted greater leeway to restrict expressive conduct than the written or spoken word.

"There is nothing to suggest that the smoking bans are aimed at the suppression of any expressive conduct," Marrero said. "Nor are they aimed at the person as a smoker by reason of his social habit of choice or addiction, as the case may be."

The judge also rejected the group's claim that the laws are discriminatory because they demean and stigmatize smokers.

"The act of smoking is entirely unrelated to any condition of human being. It is simply not on the same elemental plateau as a person's sexual orientation in defining, in existential terms, who the individual is," he wrote.

Capital 9 News - April 8, 2004
        Smoking waivers granted to two bars

Two local bars have been granted smoking waivers.

According to the Post Star, the Department of Health has approved the waivers for Peter's Pub on Maple Street in Glens Falls and Good Times in Hudson Falls.

Smokers will be allowed to light up in designated, enclosed areas of the two establishments.

Officials said the bars proved they suffered "undue financial hardship" after the smoking ban went into effect in July.

WOKR 13 TV - April 8, 2004
        Smoking Law To Change?
        By Jane Flasch

(Rochester, NY) - Up until now only two smoking waivers have been granted in Monroe County. It's possible that might change.

A state appellate court in Rochester could soon make a decision which would ultimately allow smoking in many area bars and restaurants.

The Center Street Smoke House in Batavia built a separate smoking room with its own ventilation system in order to obtain a smoking waiver.

Because food and drinks are not served in the separate space, employees are not exposed to second hand smoke.

However, because different counties interpret the law differently a separate room is still not enough to get a smoking waiver in Rochester. This is one reason Ronnie Davis, who owns three clubs, hasn't even applied.

"I’m not going to waste my time for someone to say ‘No,’" Davis said.

Scott Paul, at the Center Street Smokehouse, said, "You've denied those citizens in the county the same right the bars in the next county have. They're re-writing the guidelines the state intended."

A ruling by a state Supreme Court judge in Buffalo could change that.

The judge in Buffalo ruled that Erie County is too restrictive when it comes to granting waivers.

Her ruling implies that if a bar or restaurant has an enclosed smoking room which limits exposure to secondhand smoke, it would not need a waiver because it is already complying with the purpose and intent of the clean air act.

The state's highest court, based in Rochester, has been asked to review the decision. If the high court agrees, Rochester bars and their smoking patrons could force similar changes.

Davis said, "If there's any way to do it, I'll put in a ventilation system. People want it, they want to be able to smoke."

The state has said only businesses which can prove financial hardship can apply for a waiver. That's the standard in Monroe County but not for all counties.

The judge in Buffalo is calling for "equal enforcement." She said business owners shouldn't have to prove hardship and build a smoking room; one or the other is enough.

Tuesday, April 12, lawyers will file papers in state appellate court.
The justices could then schedule arguments for another day.

The court could uphold all, part, or none of the ruling.

Buffalo News - April 8, 2004
        County goes to appellate court to halt bar's smoking waiver
        By Matt Gryta

Rick Naylon and his Elmwood-Anderson Corp. are expected to learn early next week whether patrons at his Jimmy Mac's bistro on Elmwood Avenue will be able to smoke for the next six months, or if he will have to hide the ashtrays again, pending further court fights.

On Wednesday, Erie County filed a motion with the five-judge Appellate Division of State Supreme Court, seeking to vacate the six-month waiver of the state's no-smoking law a Buffalo judge granted Jimmy Mac's on Friday.

County Attorney Frederick A. Wolf and Joseph F. Reina, the assistant county attorney handling the case, said the county slightly altered its legal tactics and decided not to seek an immediate stay of the entire 14-page order issued by State Supreme Court Justice Rose H. Sconiers.

Wolf and Reina said that while the full Appellate Court on Tuesday will review papers from both sides on the six-month waiver issue, an actual courtroom hearing will be conducted in Rochester some months from now on the county's overall appeal of Sconier's decision.

Naylon declined to comment Wednesday, referring all questions to his attorneys.

Arthur G. Baumeister, one of Naylon's attorneys, confirmed that Jimmy Mac's has until Monday morning to file legal papers with the appellate court on lifting the six-month smoking waiver.

"We're going to vigorously oppose" the county government's request for the appellate court to either stay that portion of Sconiers' 14-page decision in the case or vacate her self-imposed waiver of the no-smoking ban for the next six months, he said.

Reina said the county is convinced Sconiers acted "in excess of her judicial authority" in vacating County Health Commissioner Anthony J. Billittier IV's Feb. 6 rejection of Jimmy Mac's application for a hardship waiver on the smoking ban.

Reina said the county will argue that Sconiers erred in finding Billittier acted in an illegally arbitrary and capricious manner in denying Jimmy Mac's waiver application.

Wolf stressed Sconiers' ruling only applies to Jimmy Mac's and not to any other Erie County businesses affected by the state's no-smoking law, which became effective last July.

"Her order, which we believe is legally incorrect, does not grant a waiver to anyone else and businesses had better make darn sure they abide by the law," Wolf said.

Democrat and Chronicle - April 6, 2004
        Positives of smoking ban cited
        Data show healthier workers, but waivers are given unevenly.
        By Joseph Spector

Dale Steffen is torn over the state’s smoking ban.

As owner of The Kendall Inn in Orleans County, Steffen prefers not working in a smoky bar. But Steffen has lost customers because of the ban and, as a result, is trying to sell the place.

”Personally I like it because I don’t smoke,” he said. “But they should have their own right to do it.”

And so goes New York’s tough anti-smoking law that took effect last July and prohibits smoking in workplaces, including bars, restaurants and nightclubs, as well as off-track betting parlors, bowling alleys and company cars.

Evidence shows that the ban is starting to have a positive effect on sales and workers’ health, but counties are still wrestling with its enforcement, and some businesses remain adamant that it is hurting sales.

Counties enforce the ban differently. The 21 county health departments run by the state — including in Wayne and Ontario counties — determined in December that businesses would be eligible for a waiver if they can prove at least a 15 percent decline in sales tax receipts specifically related to the smoking ban.

The state Health Department has granted one waiver, to a restaurant in Oneonta, Otsego County.

But many of the 41 counties with their own health departments, including Genesee, Livingston, Orleans and Monroe, are staying clear of setting a financial threshold for receiving a waiver, arguing they would need a team of accountants to review a business’s books.

So some, such as in Genesee and Orleans, will consider granting waivers if businesses build separate smoking rooms that comply with a list of criteria. Monroe County has had several requests from businesses to build smoking rooms and has denied them.

Livingston County, meanwhile, is streamlining the process: No waivers at all.

”It’s very hard to determine financial hardship and say, ‘You deserve a waiver and you don’t,’” said Joan Ellison, the county’s health director.

Bar owners argue, for example, that it’s unfair that an establishment in one county could have a smoking room and one in another county couldn’t.

”The fact that we got a waiver is great, but it doesn’t level the playing field. It makes it worse,” said Cregg Paul, owner of the Center Street Smoke House in Batavia.

The barbecue joint got Genesee County’s only permanent waiver after it created a smoking room. But the waiver was revoked last week after health inspectors found the door to the room was broken.

Genesee County has also granted temporary waivers to two businesses that had smoking rooms but whose rooms needed to be updated to meet current codes.

An American Cancer Society survey shows that 10 counties have granted a total of 83 smoking ban waivers.

The Oneida County Health Department had granted the most waivers at 23.

Monroe County has granted two, both for compliance reasons: at Eastman Kodak Co. and for a temporary performance at Geva Theatre.

”The worries that rampant waivers would be granted has not come to fruition,” said Hillary Clarke, the cancer society’s local advocacy director.

Health advocates have also been encouraged by recent studies.

In the first 10 months of New York City’s ban, tax receipts from bars and restaurants rose 8.7 percent, city agencies said. A poll last week by the Campaign for Tobacco-Free Kids found that 61 percent of the 500 respondents in New York support the ban.

And last month, the state Health Department found that saliva tests from a small group of bar and restaurant workers since the ban showed a significant drop in the levels of cotinine, a nicotine byproduct.

”Our overall impression is that the law is working as intended,” Clarke said.

”The air is clean, the public supports it, and the hospitality economy has remained strong.”

The Villager - April 6, 2004
        Some bar owners are still fuming over smoking ban
        By Elizabeth O’Brien

Some local bar owners blasted Mayor Mike Bloomberg’s announcement that his year-old smoking ban has not hurt business in the city’s bars and restaurants.

On March 29, Bloomberg celebrated the anniversary of the ban by announcing that business tax receipts filed by bars and restaurants were up 8.7 from April 1, 2003, to January 31, 2004, compared with the same period the previous year.

But some nightspot proprietors called that comparison flawed, since the data does not show the smoking ban’s impact on bars alone. By combining the whole hospitality industry, the bar business appears to get a boost whenever a new Starbucks opens, said David Rabin, president of the New York Nightlife Association and an owner of Lotus, a nightclub on W. 14th St.

Another problem with the data, Rabin said, was that the 8.7 jump came as the restaurant and bar business began to bounce back from the Sept. 11, 2001, terror attack. Such an increase would only be expected after the dramatic dip in business post-9/11, he explained.

“2002 is a horrendous year — to compare this year’s results to last year’s is patently absurd,” Rabin said.

But a spokesperson for the city Dept. of Finance said the nightlife industry should be pleased that the ban did not live up to bar owners’ predictions of 30 or 40 percent profit losses and widespread layoffs.

“They were basically predicting gloom and doom and they were wrong,” said Sam Miller, the spokesperson.

Miller said the city could not accurately measure the impact of the smoking ban on bars alone, since most bars serve food and some small bar owners identify themselves as restaurants on tax forms.

Rabin said the smoking ban has particularly hurt smaller bars and pubs. Dave McWater, the owner of four neighborhood bars on Avenue A, agreed. Although he declined to specify exactly how the ban had affected his bottom line, McWater said that until it began he had never experienced a month without growth.

McWater said the ban hurt his businesses more than he expected, but that he had enough resources to weather the dip in revenues.

Eric Petterson, a partner in the Coffee Shop at Union Square, said his beverage sales were actually up five percent since the smoking ban started, compared with the previous year. He explained that since his business was 55 percent food and 45 percent drink, the ban might not affect it as much as it would a pure bar.

Petterson said one negative consequence of the ban has been that his staff must devote more time and effort now to cleaning cigarette butts off the sidewalk.

“But that’s just the nature of the beast,” Petterson said.

McWater and Rabin both voiced concern about the increase in noise complaints that have accompanied the smoking ban as patrons light up outside. This noise has stiffened community resistance to supporting liquor-licensed premises in their neighborhoods, and this will ultimately make it much harder for young entrepreneurs to open bars, they said.

“I think it’s a very, very dangerous trend, and it’s directly related to the mayor’s ban,” Rabin said.

WROC TV - April 5, 2004
        Smoking Ban Waiver Revoked

A bar in Genesee County that led a fight against the state smoking ban has lost its waiver.

Health officials say the Center Street Smokehouse in Batavia did not put a door on its designated smoking room. They revoked the waiver, because once one is granted, businesses must have an enclosed smoking room with a ventilation system.

The Center Street Smokehouse was one of four businesses to get waivers from the Genesee County Health Department. They had to prove a loss of business because of the ban.

Post Standard - April 3, 2004
        'Butt hut' deemed legal
        Structure used by county employee smokers allowed under Clean Indoor Air Act.
        By John Stith

No ifs, ands, or buts about it, it's legal to smoke in the so-called "butt hut" behind the Cayuga County Office Building in Auburn.

"So long as there wasn't a door connecting the hut to the workplace, and no one was required to go in there and perform any sort of work duties such as cleaning . . . that type of structure was permitted," said Scott King on Friday. King is the county health and human services department public health sanitarian.

King said the county confirmed with the state health department last summer that the smoking shed is allowed under the indoor smoking ban that went into effect July 24. The county received a complaint Friday about people smoking in the butt hut.

The butt hut might even be a protected right under the county's contract with Civil Service Employees Association Local 806, which represents more than 200 employees working at the county office building.

"Once you allow somebody to do something, it's really difficult to change what has been a past practice," said county Legislature Chairman Herbert D. Marshall, R-Port Byron.

Attempts to reach Local 806 President Marilyn Cowen on Friday afternoon were unsuccessful.

The hut is a wooden shed abutting the office building with a slightly sloped roof, windows and a door. It's just barely big enough to hold a picnic table and a few standing ashtrays, and is used by county employees as a place to smoke.

Frank Thomas, financial officer for the John Cool American Legion Post 257, filed a formal complaint on Friday with the county health department alleging that allowing people to smoke in the shed violates the state's amended Clean Indoor Air Act. The law bans smoking in most indoor public places, including the legion hall.

Post Commander Richard Potempa said legion officers paid a $250 fine on Wednesday for violating the smoking ban. As they left the county office building that day, they spotted the butt hut. They were unhappy, Potempa said.

"They got a smoking room - no ventilation, nothing - right there on the health department building," he said. "I couldn't believe it when we walked out of there. I seen that, after here we've just paid a fine, but they can do it. It's kind of hypocritical, don't you think?"

County Environmental Management Director Eileen O'Connor said the county this week checked again with state health officials, who reiterated their position of last summer that the smoking shed is permitted.

O'Connor said other businesses or organizations in the county could consider a similar solution to on-site smoking problems.

"That type of facility would be OK elsewhere, at other places," she said. "And, we've told other employers, a facility like a restaurant, they could have something like that as well."

Marshall said the butt hut was erected around 1995.

He said the shed was built by county office staff, and the materials cost about $1,000.

County officials have talked about what to do with the shed in light of the smoking restrictions, he said.

For Potempa, it's a fairness issue.

"You're going to tell him you fought a war, but you can't smoke in your own Legion. . . . It's hard for me to tell a veteran that he can't smoke in his own club," he said.

Potempa noted that some military veterans even received a cigarette ration while in the service.

The Legion officers assured the county this week they will crack down on illicit smoking.

The Legion has now paid separate fines of $100 and $250. State law allows for a fine of up to $1,000 for violating the law.

Potempa said the money that goes toward fines would otherwise go to the post's charitable giving, such as paying $675 to send three people to this year's Boys' State, scheduled for June 27 to July 3 at Morrisville State College.

The county health department has already received yet another complaint from the public about smoking at the Legion post, according to Thomas.

Scott said the facility can expect a follow-up visit by a department technician sometime within two weeks.

Buffalo News - April 3, 2004
        Smoking ban waived for 6 months at Jimmy Mac's
        By Matt Gryta

 The operator of Jimmy Mac's, a popular Elmwood Avenue bistro, was told by a judge Friday to "smoke 'em if you've got 'em," at least for the next six months.

State Supreme Court Justice Rose H. Sconiers granted Rick Naylon an immediate six-month waiver from the state's no-smoking law.

Sconiers faulted Erie County's health commissioner, Dr. Anthony J. Billittier IV, for legislating and improperly expanding the state's smoking restrictions that took effect in July. She claimed he imposed "some significant" different standards.

While ruling that the Billittier-imposed operating conditions were arbitrary and capricious and beyond his powers as health commissioner, Sconiers urged both sides to evaluate the matter over the next six months.

County Attorney Frederick A. Wolf said the county would not comment immediately on Sconiers' ruling or whether it will be appealed. Billittier was unavailable to comment Friday night.

Naylon said the judge "has given us a six-month window to operate our saloon the way it was operating for 23 years. Hopefully within that time, maybe the county and the state and legislators can come up with a more logical, rational and reasonable way to deal with smoke in bars."

Naylon's attorney, Nicholas P. Amigone III, said he was "gratified the judge agreed with us that Billittier far exceeded his authority."

In her decision, Sconiers held that while Billittier's demand that businesses entirely eliminate exposure of employees and nonsmoking patrons to secondhand smoke is "a laudable goal, it is not what (the state law) requires in order to obtain a waiver."

Sconiers also noted that while the state health commissioner is empowered to grant two-year waivers for businesses in counties without health commissioners, she called "irrational" Billittier's mandate limiting any local business to a one-year waiver.

The judge also faulted Billittier's requirement that Naylon prove he suffered a drop of at least 15 percent in sales "solely" due to the smoking ban as unduly restrictive and improper legislating by a nonlawmaker.

The judge called the state's requirements for showing undue financial hardship justifying a waiver much more liberal than Billittier's because they take into account capital expenditures made prior to the law and "other exceptional circumstances resulting in adverse economic impacts."

She also cited state guidelines allowing waivers if a business can demonstrate "that there are safety, security or other factors that would make compliance unreasonable" under the no-smoking law.

She called the Erie County guidelines "irrational" because businesses like Naylon's would have to prove the no-smoking law "is the sole reason for a decline in business," a more severe requirement than under the state law.

During a March 5 court hearing, Amigone said that since the smoking ban went into effect, Jimmy Mac's had suffered "a precipitous decline" in revenue, which caused layoffs and threatened the business' viability.

Associated Press - April 3, 2004
        Two OTBs get smoking waivers; Buffalo bistro wins suit

ALBANY, N.Y. (AP) _ Two Off-Track Betting parlors in Oswego County have been granted waivers from the state's tough anti-smoking rules, while the operator of a Buffalo bistro won a waiver after suing in state court.

The Oswego County Board of Health on Friday granted waivers from the statewide ban on public indoor smoking to the OTB parlors in Central Square and Phoenix.

Waivers were rejected for the OTB parlor in Oswego and a tavern in Schroeppel. In March, the board approved four business waivers and rejected five.

Affected businesses have to show financial hardship from the ban and ensure that employees and non-smokers are protected from second-hand smoke.

The Central Square OTB showed that betting activity between November and January fell almost 42 percent from the previous year, and it spent $3,780 to minimize second-hand smoke.

The Phoenix OTB showed a 13.2 percent business drop and spent $127,500 to build a separate smoking room. The Oswego OTB showed a 6.6 percent drop, and its smoking room was found to be too close to the building entrance.

In Buffalo, State Supreme Court Justice Rose Sconiers on Friday granted Rick Naylon a six-month waiver from the no-smoking law for his Jimmy Mac's bistro.

Sconiers found that Erie County Health Commissioner Dr. Anthony Billittier improperly expanded the restrictions in requiring businesses to entirely eliminate smoke exposure of employees and nonsmokers. She also found unduly restrictive a requirement that Naylon prove he lost at least 15 percent in sales solely due to the smoking ban.

Knight Ridder Newspapers - March 30, 2004
        A year after New York smoking ban, debate still rages over effects
        By Miriam Hill

NEW YORK - (KRT) - Moses Rodriguez says he's healthier.

Theodore Lauterborn, on the other hand, says he's out of work, forced to close his family's 100-year-old Queens bar.

A year after New York Mayor Michael Bloomberg banned smoking in bars and restaurants, city officials, most nonsmokers, and even a few smokers claim big benefits - including 1,000 fewer smoking-related deaths a year, clothes that no longer reek of tobacco after a night out, and the ability to breathe deeply at a bar without coughing.

But restaurants and many smokers are fighting to overturn the ban. They say it has cut sales by 30 percent at many establishments, reduced tips for bartenders, and forced residents to deal with the noise of smokers who now congregate on the sidewalks to light up.

"It has effectively changed the tone of New York nightlife," said Michael Musto, nightlife columnist for the Village Voice. "I don't smoke and didn't love coming home and having my clothes smell like smoke, but all the bad behavior you're supposed to indulge in in a nightclub, that's what it's all about."

So far, the banning advocates seem to be gaining momentum. On Monday, Ireland banned smoking in all workplaces, including restaurants and pubs, despite strong protests from pub owners. Several states, including Delaware and California, have banned smoking in indoor public places. In Philadelphia, Councilman Michael Nutter introduced legislation last year to ban smoking in bars and restaurants, but it failed to generate support in City Council.

New York bar owners took their fight to Albany after the state adopted the ban in July and are pushing to allow smoking in bars and restaurants with filtration systems. Some barkeeps are rebelling, allowing smoking after 11 p.m., when they believe city inspectors have gone home. New Yorkers call such places "smoke-easies."

City officials, however, say they won't back down. They note that 80 percent of New Yorkers are nonsmokers. The health benefits of avoiding secondhand smoke are also well-documented, and the economic losses minimal, said Thomas Frieden, the New York City health commissioner.

"We've measured air quality, and during one minute in a smoky bar, you are exposed to as much pollution as you would be standing for an hour at Holland Tunnel during rush hour," Frieden said. Secondhand smoke is known to increase heart disease, cancer and infant deaths, he said. He calls arguments that filtration systems protect people from secondhand smoke "a lot of hot air."

But David Rabin, owner of Lotus, a Meatpacking District nightclub where Mick Jagger has hung out, and president of the New York Nightlife Association, said commercial filtration systems kept air almost 100 percent clean. He also said the exemption would be only for establishments that generated 60 percent or more of their income from alcohol sales - those believed to be hardest hit by the ban.

The economic impact has been difficult to measure, because statistics include all restaurants, including fast-food outlets and others that do not sell alcohol.

Those numbers show that from April 2003 to January, the city collected about $17.3 million in tax payments from bars and restaurants, a rise of about $1.4 million over the year-earlier period.

One indicator suggests that owning a bar is just as popular now as before the ban: The New York State Liquor Authority says it received 127 applications for liquor licenses in a recent month, one more than in late 2002.

Nonsmokers such as Moses Rodriguez of the Bronx say they enjoy going out more now.

"It's better for your health," he said. "I hate the odor of cigarettes in general."

Some smokers even see benefits.

"To tell you the truth, I smoke less," said Brandy Wykes, as she stood outside the Whiskey Ward in the East Village smoking with friends.

Bar owners say they are hurting. They don't like telling their patrons to go outside or stop smoking. They say that many smokers, denied the pleasant melange of alcohol and tobacco, simply stay home.

Joseph Franco, owner of Caffe on the Green in Queens, a bar and restaurant in a home formerly owned by Rudolph Valentino, said his bar business fell about 35 percent immediately after the ban. It has picked up since he added a "butt hut," an outdoor tent where patrons may smoke, but it's still less than before the ban. He said he had to cut one of his bartenders to weekends only.

Patrons "don't want to go out and be subjected to not being able to smoke," he said.

Lauterborn, 60, said his bar, Roesch's in Queens, saw 40 customers nightly before the ban but only about five after it. He closed in September and says his children are supporting him while he looks for work.

"When the smoking ban hit, it was like a ton of bricks," he said. "It just killed the business instantly. I didn't even have time to regroup."

Times Herald-Record - March 30, 2004
        High bar for smoking waivers
        By Brendan Scott

Goshen – Orange County smokers, don't hold your breath.

The county Health Department has just released its guidelines for restaurants and bars seeking a waiver from New York's indoor smoking ban. And they're so strict, tavern owners say it's unlikely any Orange County bar patrons will ever again legally smoke a cigarette in their favorite neighborhood pub.

Not only do the new regulations require business owners to build a separate, self-ventilated smoking chamber, no hostess or bartender can set foot in the room. An alarm must sound if the door is left open for more than 60 seconds. Providing four years of sales-tax receipts that show a decline in sales since the Clean Indoor Air Act went into effect last July is not enough to qualify for a smoking ban waiver. Proprietors must prove the business losses don't stem from the stricter drunken driving laws enacted around the same time.

"It's totally unfair," fumed Jim Mullany, owner of the small, library-like bar that Goshen pub crawlers simply know as "Maureen's." "I don't think anybody in Orange County can meet these requirements."

Like many of the 200 or so licensed liquor sellers in Orange County, Mullany claims business has wafted away in the wake of the Clean Indoor Air Act. Some tavern owners hoped that a provision requiring counties to offer "hardship" waivers would provide some relief.

But the legislation allowed each county health department to draft its own standards and their approaches have varied, to say the least.

In Oneida County, where the county executive came out in support of restaurant and bar owners, health officials have already granted 23 waivers. That's more than a third of the 60 waivers issued statewide, according to a running survey by the American Cancer Society.

But some county health departments, like those in Orange and Erie counties, decided to apply the full power of the new law in their own rules.

Orange County Health Commissioner Dr. Jean Hudson said she doesn't think the regulations are draconian. She said county health inspectors have met with a handful of business owners to accommodate those who don't have the space for a separate smoking room.

"Business owners, even if they get a waiver, must still meet the environmental requirements laid out in the law," Hudson said. The guidelines, she said, comply with "the spirit of the act."

Sullivan County, which doesn't have an organized health department, is one of 21 counties supervised by the state. Of the 14 establishments that applied directly to the state Health Department, only one has gotten a waiver. An Ulster County health official did not return a call for comment.

Still, the economic impact of the indoor smoking ban remains a matter of heated dispute.

Yesterday, a New York City report found sales tax receipts from city bars and restaurants actually increased 9 percent in the 10 months since the city's own smoking ban began.

Locally, Dana Distributors Inc., which serves Orange Rockland and Sullivan counties, reports their tap beer sales have dropped 9 percent since the smoking ban. Package beer sales, on the other hand, have held steady.

Russell Sciandra, president of the Center for a Tobacco-Free New York, called the economic issue a red herring. He hailed Orange County's waiver guidelines.

"This law is to protect people from a known carcinogen," Sciandra said. "We don't give people waivers to allow asbestos in buildings. We don't give waivers so you can park a truck outside a restaurant and pump exhaust through the window."

Smoking-room standards

To qualify for a smoking ban waiver in Orange County, a bar or restaurant owner must be willing to operate a smoking room that:

   Is totally isolated from all nonsmoking areas from floor to ceiling.
   Has its own ventilation system with an exhaust strong enough to create negative pressure in the room.
   Has self-closing doors and an alarm that sounds if a door is left open for more than 60 seconds.
   That does not consume more than 20 percent of the establishment's overall floor space.
   Does not allow waiters, bartenders, other employees, or any person under 18 years of age to enter.
   Has a plan to remove garbage, glasses, etc., and handle other problems in the room without employee entrance or exposure.

The Publican - March 29, 2004
        New York bars face new smoking clampdown

Pubs and bars in New York are facing a new clampdown from health officials enforcing the City's smoking ban.

Health officials say that despite the fact that 97 per cent of bars and restaurants are complying with the law it received 2,833 complaints about illegal smoking at bars and restaurants in the past year.

A number of late-night bars in the city are understood to have been flouting the ban and allowing customers to smoke, especially late at night when enforcement officials have not been working.

Health department spokeswoman Sandra Mullin said in the New York Post: "Officials will inspect places late at night and into the morning especially when we receive complaints related to violations at those times.

David Rabin, president of the New York Nightlife Association, said: "In many parts of town, places have to choose between risking a ticket for allowing smoking inside or getting summons for the noise of their patrons out front smoking."

Associated Press - March 29, 2004
        NYC restaurant tax receipts up 8.7% since city implemented its smoking ban

In the first 10 months after the city instituted a ban on smoking in public places, tax receipts from bars and restaurants jumped 8.7 percent, according to a report by several city agencies.

From April 2003 through January 2004, the city collected about $17.4 million in tax receipts from bars and restaurants, compared with $16 million in that period a year earlier, said the report, to be issued Monday by the Departments of Finance, Health & Mental Hygiene and Small Business Services and the Economic Development Corp.

The city said the findings indicate that concerns the smoking ban would choke restaurants and bars were unfounded.

"One year later, the data are clear," the report said. "The city's bar and restaurant industry is thriving and its workers are breathing cleaner, safer air."

Mayor Michael Bloomberg signed the smoking ban into law a year ago, stamping out smoking in most public places.

Some opponents of the ban say their establishments are suffering as a result of the no-smoking law. Owners of nearly two dozen hookah bars recently requested an exemption from the law, saying their businesses have been hurt by the ban. A hookah is a kind of pipe with a tube for drawing smoke through water in a bowl.

Currently, cigar bars, designated hotel and motel rooms, tobacco retailers and membership associations operated by unpaid volunteers are the only establishments exempt from the law.

Yet, the city said the indications for the industry were generally strong. The city's report found that the number of workers employed in bars and restaurants averaged 164,000 in 2003, the highest number in at least a decade. The industry added a seasonally adjusted 2,800 jobs between March and December 2003.

The number of bars and restaurants in the city remained unchanged between third-quarter 2002 and 2003, the most recent time for which statistics were available.

At the end of 2003 the city had 9,747 active liquor licenses outstanding, a net gain of 234 from 2002.

The city said that 97 percent of the 22,000 bars and restaurants inspected between April 2003 and February 2004 were in compliance with the ban, meaning that no patrons or workers were seen smoking, no ashtrays were present and "No Smoking" signs were properly displayed.

NY Newsday - March 29, 2004
        Some bars skirt smoking ban
        By Christine Armario

Plenty of bartenders agree with the city that they're doing better since the start of the smoking ban. Better at outfoxing the smoke police, that is.

"One place at 1 a.m. had a 10-minute smoke-in," said bartender John Twomey, 55, smoking a cigarette outside a West Village bar.

Twomey said the bar, which he declined to name, handed out shot glasses with water for patrons to later extinguish their cigarettes.

"It sounds like a speakeasy," Twomey said. "Everyone laughed about it."

But as bar owners and employees continued to bemoan the ban, city officials and health groups gathered yesterday at the Blind Tiger Ale House on Hudson Street to celebrate the controversial ban's first anniversary. They said the law has made 97 percent of the city smoke-free.

"New York City is a healthier place to work, eat and drink," said city Health Commissioner Thomas Frieden. "The law has not hurt the bar and restaurant industry and 150,000 more workers in New York City breathe smoke-free air."

David Brodrick, owner of the Blind Tiger, said he had misgivings about how the law would affect his business.

"I was feeling nervous about the smoking law. The first six weeks were a lot of change but it went smoothly and business didn't suffer," Brodrick said.

But Bob Zuckerman, executive director of the New York Nightlife Association, was skeptical about the city's figures. "We are comparing statistics from 2003 to 2002 when the economy was recovering form the effects of 9/11," Zuckerman said. "Any industry's earnings would be up."

Zuckerman said he too had heard "anecdotal evidence" of the relaxed attitude some places have taken.

"I know a lot of people waiting till after hours and going to smoke on the East Side," said Lisa Jones, 24, a bartender at Fiddlestick's Pub and Grill in the West Village.

Yet the need to find creative solutions has hardly enticed patrons.

"It makes me feel like a criminal that I have to go outside to smoke," said Paco Brown, 38.

According to city officials, 10,600 new jobs have been created in the restaurant industry past year. But Mayor Michael Bloomberg said the ban was about more than just money.

"It's not just the economy," Mayor Michael Bloomberg said. "It's the right thing to do. And those who want to run against it, you know, good luck on having a campaign on bringing back smoking."

Scotsman.com - March 28, 2004
        Counting the cost of New York's smoking ban
        By Richard Luscombe

IT IS early evening in Swift’s, a Scottish-themed pub in the heart of Manhattan’s East Village, and bar manager Sean Byrne is surveying the rows of empty stools.

The first anniversary of a controversial smoking ban introduced to New York’s bars and restaurants is on Tuesday, and Byrne says he and many others across the city are left counting the cost of the lost business it has caused.

"It’s absolutely killed us," he said. "This time last year the bar would be packed with the after-work cocktail crowd. Now they just take a bottle of wine or a six-pack to each other’s apartments, where they can smoke.

"They don’t come in for lunch any more either. Business is down 40%, and we’ve had to cut back on our shifts."

While some bar owners and restaurateurs say the smoke-free atmosphere has attracted new customers, many others have stories similar to Swift’s. Ciaran

Most bar-going New Yorkers want a more reasonable smoking law.

Staunton, proprietor of the mid-town O’Neill’s bar near Grand Central Station, says he has laid off three staff.

"It was one of the great myths that kicking out the smokers would lead to non-smokers coming to the pubs and bars in their droves," said Staunton, who says he has lost 20% of his business since last March.

"People who don’t go to pubs just don’t go to pubs. They said the ban would be good for business and for employees, yet my business is down and three good staff are out of work and unable to find another job.

"One big irony is that most of my staff are smokers, and now they’re being protected from second-hand smoke."

New York mayor Michael Bloomberg cited concerns over employees’ health as a main reason for the ban, which can see landlords fined £550 if customers are found smoking.

"You have a right to smoke, you just don’t have a right to make somebody else sick and kill them, and that’s what second-hand smoking does," he said, when he announced the extension of an existing ban on smoking in offices and public buildings to pubs, clubs, restaurants and other places where people gather socially. A similar ban comes into effect in the Republic of Ireland tomorrow.

Some say Bloomberg’s intentions have backfired. "Since the ban took away my customers and cut my tips in half, I can’t afford to pay my health insurance," said Vanessa Rohrbach, a bartender on the Upper East Side. "They said it would help employees."

The issue has become a political hot potato for Bloomberg, who faces a tough battle for re-election next year. New York newspapers have been debating the unpopularity of the ban, and respected New York political consultant Hank Skeinkopf said: "This could lose Bloomberg 400,000 votes."

Given that the billionaire media tycoon won the November 2001 election by a margin of less than 44,000, he cannot afford such a backlash, yet he appears determined to stick to his guns.

City health commissioner, Thomas Frieden, will tomorrow release data on the first year of the ban, which will claim that 150,000 New Yorkers are now protected from second-hand smoke, and that air-pollution levels have dropped. Frieden says that before the ban, second-hand smoke claimed the lives of 1,000 city bartenders and waiters each year, and led to the daily treatment of 100 children for asthma, ear or lung infections.

The success stories, however, are unlikely to appease those bar and restaurant owners who have lost business. The New York Nightlife Association - a trade association for the city’s pubs, clubs and lounges, is calling on Bloomberg to implement changes that will allow smoking in certain places, such as those bars with air-filtration systems installed.

The group claims that 76% of 300 members surveyed about the ban said business had fallen by an average 30%. "The majority of bar-going New Yorkers want a more reasonable smoking law," said Bob Zuckerman, executive director of the NYNA. "The ban went too far."

NY Newsday - March 28, 2004
        City to make case for smoking ban
        By Herbert Lowe

The Bloomberg administration intends Monday to make its case that the city's ban on smoking in restaurants and bars is not hurting businesses or costing people their jobs.

"One year later, the data are clear," states a new report that was produced by four municipal agencies and was to be released at a city news conference. "The city's bar and restaurant industry is thriving and its workers are breathing cleaner, safer air."

Despite outcries from smoking and business advocates, the city's Smoke-Free Air Act went into effect a year ago Tuesday.

According to the report, because of the ban:

· Business tax receipts in restaurants and bars are up 8.7 percent.

· Jobs in restaurants and bars have increased by 10,600.

· Air quality in those places has improved dramatically.

· Levels of cotinine, a tobacco byproduct, decreased by 85 percent in nonsmoking workers in bars and restaurants.

· 150,000 fewer New Yorkers are exposed to second-hand smoke while at work.

The report also insists that New Yorkers overwhelmingly support the law.

"The vast majority of New Yorkers ... say they are more likely to patronize bars and restaurants now that they are smoke-free," the report states.

The New York Nightlife Association, one of the ban's most vocal opponents, could not be reached for comment.

Associated Press - March 28, 2004
        Poll: New Yorkers support smoking ban

More than 60 percent of New Yorkers support the ban on smoking in workplaces, including restaurants and bars, according to a new poll by an anti-smoking group.

The survey by the Campaign for Tobacco-Free Kids found that 61 percent of respondents "strongly" support the ban, while another 14 percent "somewhat" support it.

Women favor the ban more strongly than men, with 80 percent in support and 19 percent opposed, the poll found. That compared with 70 percent of men who favor the ban and 19 percent opposed.

"Those are amazing numbers," Josh Isay, a spokesman for the group, told The Daily News for Sunday editions. "People should know that contrary to some press reports, this law is very popular ... it's a vocal minority that opposes the law."

But Bob Zuckerman, of the New York Nightlife Association, said the poll had been designed to skew results toward the ban.

"When you group bars and restaurants together, you get a much different result than if you just ask about bars," he told the News. "We continue to hear from members and even nonmembers that the smoking ban has hurt business and curtailed the bar business."

The poll of 500 registered voters had a margin of error of 4.5 percent.

Associated Press - March 25, 2004
        Restaurants divided on anniversary of workplace smoking ban
        By Carolyn Thompson

A year after Gov. George Pataki signed legislation to snuff out cigarettes in virtually every place of business, the bars and restaurants most affected remain divided over whether it has helped or hurt them.

Supporters of the ban, meant to protect workers' health, celebrated the anniversary of its passage with cake and discounts Thursday, even as opponents were pushing lawmakers for changes.

The former president of the California Restaurant Association, meanwhile, predicted that a favorable consensus would eventually follow the ups and downs. California enacted a smoke-free restaurant law in 1995 and banned smoking in bars in 1998.

"I can assure you," Paul McIntyre said, "that when you hit your 10th birthday, you'll look back just the way we look back at airlines today and say, `Wow, I can't believe we ever had it any other way."'

Lee Federiconi, owner of Lebro's, credits the smoke-free atmosphere in his suburban Buffalo restaurant with an 8 percent rise in food sales and 11 percent increase in alcohol sales over the past year. More customers coming in for dinner now start and finish the evening with a drink at the bar, he said, rather than eat and run.

"Technically, I've gained four drinks by (being) smoke-free," said Federiconi, one of a dozen western New York business owners to rally around the ban Thursday.

But the Empire State Restaurant & Tavern Association said hundreds of other business owners have sought hardship waivers amid sinking sales.

"There is mounting evidence that New York's smoking ban has imposed a great deal of economic harm on the state's hospitality industry," the association's director, Scott Wexler, said.

Wexler's group supports a proposal to permit smoking in bars and bar areas of restaurants that operate super-efficient air-filtration systems.

"If the technology used to protect against bioterrorism and to prevent the spread of infectious diseases in hospitals can be used to clean the air in bars and restaurants, then what's the problem?" he asked.

Dr. Michael Cropp, medical director of the HMO Independent Health, one of several health agencies expressing support for the ban Thursday, responded that such systems would leave smoke's tiniest toxins in the air.

"There is no machine capable of filtering the air quickly and completely enough to protect nonsmokers to the extent that the current law protects them," Cropp said.

Besides restaurants and bars, the Clean Indoor Air law, which took effect July 24, outlaws smoking in Off-Track Betting parlors, bowling alleys and pool halls, company cars, enclosed parking lots and outdoors around the entrances to public buildings.

Buffalo News - March 25, 2004
        COUNTY SETS APPLICATIONS FOR SMOKING BAN WAIVERS
        By Michael Zwelling

Andrew Lucyszyn, director of the Orleans County Health Department, told the County Legislature on Wednesday that he hopes to make applications for smoking ban waivers available to businesses by April 1.

The county's Health Department approved a policy for waivers Tuesday that permits businesses to allow smoking in a separate and ventilated room, but the economic impact of the ban on business is not part of the equation.

"As a Health Department, we're more concerned about health issues than economic issues," Lucyszyn said.

While the state recommends a 15 percent loss of revenue for businesses and not-for-profit organizations for waiver eligibility, Orleans County has decided on zero percent loss.

The reasons cited by the health board includes that the revenue requirement is a disadvantage to new businesses, which have no previous revenue to base a loss on, and as a cost savings to the county.

"By the time we pay for someone to go through the paperwork submitted to determine if their 15 percent loss is accurate, we'll spend more than we make," Lucyszyn said.  The county plans to include a $100 fee to apply for a waiver.

The smoking rooms, whether modifications of existing space or new additions, must meet size and ventilation requirements and must receive approval from the Board of Health.

Legislative Chairman Marcia B. Touhey praised the waiver.

"It's a very controversial topic, and I think the board did a wonderful job of angling it," she said.

Times Union - March 24, 2004
        Advocates toast state's smoking ban
        Albany-- Supporters celebrate first anniversary of Clean Indoor Air Act as debate continues over impact on bars
        By Erin Duggan

A year after the state Legislature passed the Clean Indoor Air Act, advocates held a party at the Capitol heralding the law as a boon for business and public health.

"Smoke-free New York is working," said Russell Sciandra, director of the Center for a Tobacco Free New York. Sciandra pointed to a recent survey of nonsmoking bartenders that showed an 85 percent drop in how much nicotine their bodies had absorbed and to a slight increase in the number of New York's hospitality jobs. The ban, which took effect July 24, is helping business, Sciandra said, because "more people want to go out and eat and drink."

But for each of Sciandra's figures, the Empire State Restaurant and Tavern Association had its own set of numbers: declines in both bar and restaurant sales, fewer New York City restaurant openings, a drop in Quick Draw revenue and, since April 2001, a loss of 7,000 hospitality jobs in the New York City area. Whether those losses are a product of the smoking ban, the economy or Sept. 11 is hard to say.

Rick Sampson, president of the New York State Restaurant Association, said his members are generally pleased with the ban.

"There's an adjustment period," he said. "Not just for the restaurants, but for the customers."

For avid smokers who aren't patronizing smoke-free restaurants, Sampson said it will just take time.

"Do they really think smokers are never going to dine out again?" he said.

His association does have two problems with the law. First, he said, local health departments should be more proactive in enforcing the ban. Currently, they respond primarily to complaints, so some bartenders still permit smoking.

Second, the state law allowed county health departments to decide for themselves who would get waivers from the ban. The issuance of those waivers has not been consistent between counties -- some gave waivers to most businesses that showed measurable loss of revenue, others, like New York City and Westchester, have granted none.

The state Health Department is not tracking waivers issued by each county. Spokesman William Van Slyke said state and local health inspectors are doing spot checks specifically for compliance with the no-smoking law and checking for violations during routine inspections.

Legislative Gazette - March 22, 2004
        Technology can clear air of smoke, CEO claims
        By Michael Trupo

A Western New York company official says technology is capable of clearing rooms of the smoke and toxins emitted from burning tobacco.

Paul Chirayath, chief executive officer of Failsafe Air Systems, said the filters produced by his company are being used in hospitals and by the military. The filters are designed to remove airborne pathogens such as viruses from an enclosed environment. Chirayath said removing tobacco smoke and toxins is a relatively easy challenge to meet.

“We get rid of smallpox and anthrax and things like that,” Chirayath said.

FailSafe, based in Tonawanda, provided documents that said its portable air purification systems have been tested independently. During tests conducted in 1997 by EnviroSafe, a consultant to the Department of Cancer Control and Epidemiology at Roswell Park Cancer Center, researchers found that the booth provided an “acceptable level” of contaminant containment.

Chirayath said similar filtration systems are in place in some restaurants, including Dickie’s Donuts in Buffalo. David Costanzo, owner of a Dickie’s location, said his experience with FailSafe’s Model 7000 has been positive. Costanzo said he never had any complaints about smoke escaping the booth. In addition, smoking customers are served with take-out containers that they take into the booth with them. This, Costanzo said, prevented non-smoking employees from having to work in the smoking booth.

Costanzo went on to say that the unit in his store cost about $8,000, including building permit fees and related electrical work. He said the booth was worth the initial cost as it allowed smoking customers to stay within the store and make purchases of food and coffee.

Costanzo said he has definitely lost business since the New York State smoking ban went into effect. Though his losses have not reached the 15 percent required to apply for a smoking ban waiver, the 5 to 6 percent loss is a detriment to his business. His biggest loss has been in coffee sales to smokers who used to pay for multiple take-out beverages, but now usually buy one cup and exit the store.

According to Chirayath, establishments have the option of installing an enclosed booth for smoking, or retrofitting the building with filtering equipment. Prices range from about $3,000 for a basic booth, up to $30,000 for a complete building retrofit. In terms of energy costs, Chirayath said the basic unit uses three amps, about as much electricity as a microwave oven. He added that the initial cost of installing a FailSafe system is still much easier to bear than the financial losses many establishments have faced as a result of New York’s smoking ban.

In terms of reliability Chirayath said the filters are like any other mechanical device. When used and maintained properly they will perform as designed. However, if the filtering equipment is neglected, it will fail to clean smoke from the air.

Chirayath rebutted claims made by some health professionals and the American Cancer Society that filters can never remove enough tobacco toxins from the air to be deemed effective. He said FailSafe technology is a patented filter design that is unique in that it uses HEPA filters, carbon filters and ozone to not only capture, but eliminate, toxins.

Answering questions about the toxicity of the ozone used in the process, Chirayath said it did not present a threat to consumers. He compared ozone to other airborne chemicals saying, “Oxygen is a contaminant [in the air] if it’s more than 25 parts per million.”

He said his company’s machines emit a negligible amount of ozone when compared to other common machines such as photocopiers.

Chirayath said FailSafe technology could create an indoor environment that is safe for all. He disagreed with the study done by James Repace, a health physicist and international consultant on second-hand smoke, which concluded that it would take 100,000 air changes per hour to keep a room clear of smoke and toxins.

He described Repace’s analysis as being “in stark contrast” to that of the Erie County Health Department’s own tests that found the FailSafe device reduces air contamination to an acceptable level.

NY Newsday - March 22, 2004
        Banning the ban on smoking
        By Alan J. Wax and Rose French

Kelly Knefel is no fan of New York State's workplace smoking ban.

A bartender at Mo's Caribbean Bar & Mexican Grill on Manhattan's Upper East Side for four years, Knefel has seen her tips tumble since the state's tough ban took effect in July.

The winter was particularly tough, she said. Her tips for a typical weeknight shift lately have been a third of the three- digit amounts she pocketed before the ban.

Knefel's not alone.

"I know a lot of friends who work on the Upper East Side, and they say business has gone down," she said, discussing the impact of the ban.

The law, which prohibits smoking in virtually all indoor workplaces with only limited exemptions, has given rise to complaints from bartenders, bar owners and beer distributors that their incomes have been cut, sometimes sharply. Smaller neighborhood establishments appear to have been hit the hardest, and the city has issued thousands of violation notices. As a result, the tavern industry is asking the State Legislature to ease the restrictions.

"In New York City, the smoking ban has really hurt," said Mike Vitale, vice president of sales at Brooklyn Brewery. "People go to a bar and expect to be able to smoke, especially those bars that have a daytime business. Most of those people are smokers."

Vitale said the smoking ban -- along with cold weather and the still limp economy -- resulted in "a horrendous" January for the Williamsburg-based brewery. "The biggest thing was the smoking ban."

And it's not just beer sales that are off. Sales of spirits and wine in bars and eateries are off from 25 to 40 percent, according to Vincent Fyfe, president of the union that represents liquor salespeople, Brooklyn-based United Food & Commercial Workers Local 2D.

The smoking ban seems, however, to have helped restaurateurs, who said they've seen an increase in diners since they've been required to make their eateries smoke-free.

Anecdotal evidence

Evidence of the bar business downturn is largely anecdotal, although 76 percent of some 300 bars and nightclubs surveyed last fall for the New York Nightlife Association, a trade group, reported that the number of customers has dropped by 30 percent on average. Bars and clubs that don't serve food reported a 19 percent drop in the sales.

State Labor Department figures for employment at food and drinking places paint a different picture, however. Jobs in the industry rose 0.8 percent to 158,700 in January, from 157,400 one year earlier.

Be that as it may, customers are irked about the ban and having to stand outside bars and restaurants lighting up, even on the coldest days.

"It's been a pain in the winter months," said Nicole Hernandez, 23, of Sunnyside, as she and a group of friends lit up outside the Acme Underground in SoHo.

"People don't want to go outside, throw a coat on and smoke," said Sam Barbieri, whose two Waterfront Ale House locations, in Manhattan's Kips Bay and Brooklyn Heights, have experienced a drop in bar sales because customers don't come as often. "I'm sure the liquor stores are happy, though."

Bar owners said that customers who step outside to smoke are likely to order fewer drinks or leave altogether, and sometimes skip out on their tabs.

The law, passed by the State Legislature a year ago and in effect for almost nine months, aims to reduce workers' exposure to second-hand smoke.

"I think the reason for the ban is kind of stupid," said Hernandez. "They say it's going to protect the workers, and I don't really think it has much to do about that."

Employees benefit

The State Health Department, however, has evidence the ban is working. Earlier this month, it said preliminary tests on a small group of nonsmoking bar and restaurant workers -- 49 people -- found a significant drop in the levels of a nicotine byproduct in their saliva.

Be that as it may, some bar owners insist the prohibition has hurt profits.

"Business is definitely slower," said Michael Wendrow, who for the past five years has owned the Galloping Green Pub in Flushing, a 60-year-old business. Bar sales are off 20 to 30 percent from a year ago, he said. "On a average night we'd get 60 to 80 people ... Within the last year, since the smoking ban, it's been between 30 and 40 a night." Wendrow said at least five nearby eating and drinking establishments shut within the past year.

It's worse at Tony's Sports Bar & Restaurant in Queens Village. "It killed our business," said owner Tony Narain. Within the past year, alcohol and beer sales have declined 70 percent, he said. "I'm losing money right now."

There's been a small, bright side to this, said the Waterfront's Barbieri. His two locations have seen dining revenues grow by 2 to 3 percent. "Most people I speak to appreciate not having a smoke-filled room and say they're eating here more than they would have before the smoking ban," he said. "It doesn't really financially compensate us for the sales we lose at the bar, though." Waterfront's bar sales are off 5 percent, he said.

Meanwhile, there is new activity in Albany to ease the restrictions. State Sen. Raymond Meier (R-Western) has introduced legislation that would allow smoking in bars that install hospital-style air filtration and purification systems.

The Empire State Restaurant and Tavern Owners Association, which represents 20,000 businesses with on-premise liquor licenses, supports that measure as well as proposals to issue smoking licenses to bars, said Scott Wexler, the group's executive director. "Why put people out of business, if you can provide similar protection to the employees and the public without the economic loss to business?" he asked.

Russell Sciandra, director of the Center for a Tobacco Free New York, an Albany lobbying group, said there's no way such filters could do the job without creating hurricane-force winds.

Enforcement of the smoking ban is the responsibility of county and city government. Violations carry a civil fine of up to $1,000.

"There's fairly widespread noncompliance," said Wexler, declining to name any of the alleged violators.

The city Department of Health and Mental Hygiene said it received 3,500 smoking-related complaints and issued 3,300 citations for violations, as of early February, since the ban was imposed. The agency couldn't say how many citations were upheld, but the city collected $200,000 in fines in fiscal 2004. The violations include failures to post no-smoking signs and having ashtrays present, spokesman Sid Dinsay said. It also issued six hardship waivers, but details were unavailable.

In reality, though, enforcement falls mainly to bartenders like Knefel. "To this day, I have to check the bathrooms every 10 minutes to see if people are smoking in there," she said. "I hate having to be mean to people about it."

The Journal News - March 18, 2004
        Health officials get tough on smoking ban violators
        By Khurram Saeed

PEARL RIVER — The first time Kate Johnson of the county Health Department went to Fennell's to see if patrons were smoking inside, she found the bar's owner sitting at the table with the very people lighting up.

Johnson, who is responsible for enforcing the state's indoor smoking ban, gave him a warning. That was Sept. 23, two months after the law took effect.

A couple months later, on Dec. 30, she returned and found customers still puffing away. With the county not ready to hand out fines, she issued another warning.

After receiving her fifth phone complaint about smoking in the Pearl River bar, Johnson dropped in at 11:25 p.m. Jan. 30, saw a customer smoking and promptly issued a $250 fine to Fennell's.

That's how the bar became the first business in Rockland to be fined for violating the state's nearly 8-month-old smoking ban.

The Rockland County Board of Health made if official yesterday by citing Fennell's and Kennelly's Grille House in Congers, which was ticketed the same night. The owners of both businesses have already paid their penalties. By imposing fines, the county is effectively putting bar and restaurant owners on notice that their customers' actions, combined with the lack of action on their part, might cost them.

By comparison, the state Health Department, which enforces the law in 21 counties, started issuing fines as early as September.

But in Rockland's case, health officials also had to develop a waiver process for business owners who could demonstrate "undue financial hardship." Many complain they are unfairly hurt because the county borders New Jersey, which leaves it up to bar and restaurant owners to decide whether, and where, smoking is allowed.

Rockland Health Commissioner Dr. Joan Facelle said there has been ample education about the new law, plenty of publicity and more than enough time for businesses to comply since the smoking ban took effect July 24.

"Now it's time to do our job to protect public health," she said.

Johnson noted that the vast majority of Rockland establishments are complying with the law. Of the 68 complaints she's received, only three have resulted in penalties.

"I've been out on the weekends, I've been out at night, I've been out after midnight, and they're not smoking" indoors, Johnson said.

A handful of businesses that believe their bottom line has been hurt by the smoking ban have applied for exemptions from the smoking ban with the county Health Department. Only two have reached the second stage, which means they have already proved their business has dropped at least 15 percent since July 24.

The owners must still show how they would minimize secondhand smoke's adverse effects before being granted a waiver.

Kennelly's, which was fined, has applied for a waiver. Its owner declined to comment yesterday.

However, Tom Fennell, owner of the Pearl River bar, said he believed he was being held up as an example, and disputed the county's charges that the bar had repeatedly violated the law.

"It happened that an individual was breaking the law and unfortunately, I have to pay the fine for that individual," Fennell said. "It's like a teacher in class. You can't watch all 25 students at one time."

Fennell said he has lost 12 regular customers to New Jersey since the ban took effect, but "99.9 percent" of his customers have willingly gone outside to smoke, or done so when asked by staff.

He called past violations isolated incidents that likely went unnoticed because of large crowds.

"My father was a police officer," Fennell said from his bar. "I follow the law as closely as I can."

Some say the businesses that are not adhering to the law might be more apt to do so now that it will hit them in their pockets.

Richard Pedri of Haverstraw said bars and restaurants have been given enough leeway to comply with the smoking ban, and he favored strict enforcement.

"They know the law and if they choose to let their patrons break the law, they should be penalized," Pedri said.

Until now, the emphasis has been on education and warnings, said Carl Dornbush, a senior environmental health specialist for the county Health Department.

"Sometimes the warnings haven't been as clearly heard as they should be," Dornbush said.

Margaret Hallet, coordinator of POW'R Against Tobacco Coalition, which is made up of community groups in Putnam, Orange, Westchester and Rockland, said a survey her group is participating in shows most people and businesses are abiding by the law.

Its volunteers have observed two bars, two restaurants and one bowling alley in each of those counties since the ban started.

They were there after a month, three months and six months to look for telltale signs such as ashtrays, people smoking or even to detect the strong smell of smoke.

The survey is being conducted in all 62 counties in New York.

After a month, 84 percent of businesses were complying, Hallet said. At the three-month mark, 90 percent were in compliance.

Associated Press - March 18, 2004
        Cigarette makers not in settlement could face tax

Cigarette manufacturers who weren't part of a multibillion-dollar lawsuit settlement with the state may get hit with a 50-cent per pack tax that could raise $50 million to $100 million.

Although the Republican-led Legislature usually bristles at the idea of raising taxes, in this case supporters say it is only fair that if the four largest manufacturers have to pay hundreds of millions of dollars to the state each year, small manufacturers also should.

''It is a tax,'' said Sen. Paula Dockery, R-Lakeland. ''You can't hide from that fact. The purpose is noble -- it's equalization.''

Supporters say the state is losing money because the settlement agreement is based on the so-called ''Big Four'' market share, which has been eroded by smaller manufacturers who sell cigarettes for about $2 a pack less.

The Senate Regulated Industries Committee approved the bill by a 7-5 vote.

Cigarette makers fighting the tax say it's unfair to impose it on only a portion of the industry just because large manufacturers agreed to make payments to states in exchange for not being sued.

''They pay and they pay a lot, but it isn't a tax. It is a settlement,'' said Yolanda Nader, chief financial officer for Miami-based Dosal Tobacco Corp. ''You can't compare one thing to the other.''

Suffolk Life - March 17, 2004
        Smoking Ban Waiver Applications Available
        By Erin Carpenter

As was previously reported in Suffolk Life Newspapers, applications are now available for business owners to apply for a waiver to the New York State smoking ban, which became effective in New York in March of last year.

As of March 11, 2004, 65 applications have been requested and none have been returned, according to Ed Dumas, spokesman for County Executive Steve Levy.

"Applications for the smoking ban waiver are available through Suffolk County's Department of Health," said Dumas. "It's important to note that there is a $500 application processing fee; however, I do not believe that there is a fee to have the application mailed to you."

The application itself requires that all information be filled out, otherwise it will be returned to the sender. Applicants must choose from one of two options pertaining to the reason for application, selecting either "Undue Financial Hardship" or "Factors Which Would Render Compliance Unreasonable."

"There were a lot of people that made significant changes to their businesses before the smoking ban went into effect," said Dumas. "I know that some businesses went so far as to put all-new ventilation systems and others that constructed separate areas for smokers. We take that into account when we are reviewing these applications. We're basically looking for those business who have suffered significant financial loss due to the ban and can prove it through their paperwork."

So what exactly qualifies a business to claim "Undue Financial Hardship?" According to information provided by the Empire State Restaurant and Tavern Association, Inc., an undue financial hardship due to loss of revenue may be "found to exist if the facility has experienced at least a 15% reduction in state sales tax receipts from the sale of food and beverages for a period of three consecutive months during which the facility has operated smoke-free, as compared to the combined average of such receipts during the same three-consecutive-month period in the two years immediately prior to smoke-free operation."

In addition to providing the aforementioned information, the applicant must demonstrate how they will protect nonsmokers from the effects of secondhand smoke. This includes making certain that the smoking areas are located far away from general traffic areas, that there are separate smoking and nonsmoking areas, that signs indicating where smoking is and isn't permitted can be clearly observed and that exposure of employees of the establishment to secondhand smoke will be limited.

Secondhand smoke, according to the American Cancer Society, is a group A carcinogen, meaning that there is sufficient evidence that it causes cancer in humans.

"In granting these applications, we are not looking to create an unlevel playing field," said Dumas. "We don't want one bar in the area to have a smoking permit while all of the others do not; that would be unfair. All factors will be considered in this process."
Audrey Silk, founder of New York City Citizens Lobbying Against Smoker Harassment, stated that the applications are "too lengthy" and that the $500 fee is "unreasonable." She also stated "this is really a false face they are presenting to the hospitality industry," with regards to the application process.

"It's important to note that in 2006, this will all be a moot point," commented Dumas. "On January 1, 2006, Suffolk County local law, which bans smoking in all bars and restaurants, becomes effective. This means that there will be no waivers ... no smoking inside of establishments, period." Dumas explained that in this particular situation, county law supersedes state law.
For more information, or to obtain an application for a waiver to the smoking ban, call the Suffolk County Department of Health Services at 853-2967.

Press Republican - March 17, 2004
        Trying to clear the air
        Machines aimed at replacing state smoking ban
        By John Milgrim

ALBANY — Tavern-industry associations and air-cleaning companies say technology can do as good a job clearing the air as the outright ban on indoor smoking.

But proponents for the law against lighting up indoors said those groups are just puffing on junk science.

The dueling stances on the state’s nearly 8-month-old indoor smoking ban comes as lawmakers consider a bill that would allow smoking again in some businesses using the new technology to clear the air.

"This is about legislators thinking they can make both sides happy, that they can allow smoking and protect nonsmokers’ health," said Russell Sciandra, director of the Center for a Tobacco Free New York. "We just need to convince them they are being sold a bill of goods."

Sciandra and other health advocates are resorting to "fear mongering" instead of allowing a fair change to a law that is killing business, said the New York Nightlife Association.

Paul Chirayath, the chief executive of FailSafe Air Safety Systems, said his equipment has been proven to virtually eliminate poisons in the air.

"If I, with a machine, can eliminate the smoke, what’s the problem?"

Late last July, smoking in virtually all state businesses was outlawed. Since then, counties have issued a total of about 50 waivers to the law, many of them going to bars, Sciandra said.

The bar industry has been pushing to ease the law and allow air-filtering technology instead.

James Repace, a health physicist affiliated with Sciandra, said there’s no way the touted technology could reduce air toxins in a smoking environment to safe levels.

The proposed change in the law "not only seeks to roll back the Clean Indoor Air Law, it tries to repeal the law of physics," Repace said.

"Nonsmokers cannot safely occupy an airspace in which smoking takes place without the use of ventilation equipment that turns the room air over so quickly as to create a tornado-like condition."

As it stands, waivers to the law can be granted only when a business can prove significant loss of revenue — and often only when that business can also provide a separate smoking area where employees do not have to go.

Chirayath said his systems, which include enclosed booths, were originally designed to clean surgical rooms and for military operations involving poisonous gas. The air-cleaning systems, which can be as small as a filing cabinet or as large as a room, range from $3,000 to $18,000.

Times Union - March 16, 2004
        Doubts cast on clean-air claims
        Albany-- Retired physicist says machines touted as way around smoking ban don't do the job
        By James M. Odato

It would take a tornado to clear a bar of the pollutants in cigarette smoke, a health physicist consulting for several nations said Monday.

James Repace, an expert on secondhand smoke, told Assembly members that purification technology will never be able to remove the contaminants generated by burning cigarettes.

"Even if 99 percent is removed, that doesn't mean what is left is safe," Repace said at a news conference with reporters. Repace, who has done field studies in bars on the effects of tobacco smoke, said concentrations of carcinogens can't be removed by ventilation and filtration technology.

To cut contamination to safe levels, a bar would need a machine "comparable to a tornado" that produces 100,000 air changes per hour, Repace said.

Repace worked for 30 years with the federal government as a research physicist for the Navy, Occupational Safety & Health Administration and Environmental Protection Agency. Now retired, he consults with governments proposing smoking bans. The American Cancer Society paid Repace to come to Albany to help in the fight against proposed amendments to the state's 8-month-old ban on workplace smoking. The changes would exempt bars that install state-approved purification devices.

Makers of such systems have conducted demonstrations for lawmakers. The manufacturers have been aided by lobbyists with the Empire State Restaurant & Tavern Association and New York Nightlife Association.

On Monday, one manufacturer, FailSafe Air Safety Systems of Tonawanda, claimed it can install machines that can rid bars of more than 99 percent of pollutants. The company's products are used by military and hospital customers to protect people from germs and chemicals. Erie County officials approved FailSafe's machines two years ago -- before the ban -- as an alternative to setting up smoking rooms.

The debate on whether purification devices can protect people from secondhand smoke comes as lawmakers are considering a bill introduced this month by Sen. Ray Meier, R-Utica. Meier said he wants to help bar owners who complain their businesses are hurting because they can't allow customers to smoke.

Niagra Falls Reporter - March 16, 2004
        'WAR ON TERRORISM' MAY YET YIELD COMPROMISE IN BATTLE OVER SMOKING
        ANALYSIS by David Staba

It's a compromise everyone can agree upon.

Almost everyone, anyway. But we'll get to that later.

The proposal in question is an amendment to New York's smoking ban introduced earlier this month by a state Sen. Ray Meier, a Republican whose district includes parts of Oneida, Lewis and St. Lawrence counties. As written, the bill would allow bars at which food accounts for less than 40 percent of total sales to permit smoking if they install equipment that filters air to near-pristine quality.

Several companies offer filtration equipment, designed to deal with acts of bioterrorism such as an anthrax attack, that has been shown to remove 99.97 percent of the contaminants from the air almost instantaneously. Cost for a unit capable of handling an average-sized establishment -- $3,000.

More important than the bill's specifics is its list of co-sponsors: 13 prominent Republicans, including George Maziarz (North Tonawanda) and fellow Western New Yorker Dale Volker (Depew).

Maziarz signed on after seeing a demonstration in an Albany conference room. With the filtration equipment running, a manufacturer's representative turned on a smoke machine that instantly produced more exhaust than a roomful of Marlboro puffers. Just as quickly, the smoke vanished.

"It worked pretty well," Maziarz said. "There was no trace of smoke."

While no corresponding bill has yet been introduced in the state Assembly, the equipment demonstrations have drawn attention in that house, as well. RoAnne Destino, a Democrat whose district overlaps with Meier's, is pondering introducing a similar measure.

While Democrat Francine Del Monte has not yet signed on as a co-sponsor, she told the Niagara Falls Reporter that the filtration gear could provide middle ground in one of the most politically contentious statewide debates in years.

"If this equipment works as well as it's been profiled, it might offer the happy compromise everyone is looking for," she said.

An amendment backed by members of the majority in each party -- the same caucuses that rammed the original ban into law in record time nearly a year ago -- could push the amendment through just as easily.

"I think that what this will take care of those types of bars and taverns where the mainstay is not food, whose business was impacted the worst by this," Maziarz said. "It wasn't anyone's intention to hurt those places."

Maziarz didn't rule out expanding the bill to include restaurants that provide a completely separate non-smoking area.

Some ban opponents worry that without such an amendment to the amendment, larger restaurants may actively oppose the bill in fear that they'd lose business to the mom-and-pop corner bars.

"That would divide us and possibly defeat the bill," said Judi Justiana of Judi's Lounge. "The formula of 40 percent food and 60 percent alcohol would exclude a lot of businesses. And it doesn't include billiard halls, or small places with no alcohol sales.

"Why have those limitations if the system really works? As long as the employees are breathing clean air -- the figure is 99.9 percent pure air, as good as if not better than operating room quality -- the 'true goal' of protecting our workers would be met."

Which brings us to the people certain to most vocally oppose any relaxation of the nation's strictest smoking ban. Anti-smokers fervently worked to push state lawmakers into overstepping the bounds of the government-business relationship in establishing the prohibition in the first place. They're certainly not going to give it up without a fight.

The concept of "protecting workers" is one of the arguments for the ban that carries as much intellectual weight as President Bush's pre-invasion implication that Iraq had nuclear warheads ready to sneak into the United States. "You're protecting me right out of a job," reads one T-shirt popular among bar and restaurant employees involved in protesting the ban since its imposition last July.

But logic and reason have little to do with the anti-smoking campaign. It's all about winning, about imposing their will and satisfying a savage addiction to self-righteousness.

Their goal has never been protecting workers. It's been to make smokers stop smoking, no matter how many business get snuffed out in the process.

They cite empty statistics that blame every cancer death on smoking or second-hand smoke, figures that long ago lost all meaning to anyone who actually looks at them.

They point to increased overall tax revenues for food and beverage sales as evidence that the ban isn't so destructive, ignoring the simple fact that people go to a large restaurant with very different motives than when they walk into a neighborhood tavern.

Even the Niagara Gazette flip-flopped its editorial position last week, calling for the ban's repeal. This from a newspaper whose editorials since the ban's inception repeatedly called those who oppose the ban "whiners" -- a favorite rhetorical flourish of the paper's exiled former editor -- and whose stories on the issue generally focused on a few anecdotal cases of businesses that had done well by not allowing smoking, while ignoring those that have already gone under or teeter on the brink.

With even the very legislators who voted for the ban and media outlets who blindly accepted it finally seeing the flaws that make it untenable, the anti's find themselves outnumbered and outflanked.

At the very least, the issue will get a proper airing in a public debate, something the anti's spent plenty of money and effort to make sure didn't occur when pushing through the original prohibition.

"That is going to happen this time," Maziarz said.

Associated Press - March 16, 2004
        Anti-Smoking Campaign Could Go Off Air

WASHINGTON - An edgy ad campaign aimed at getting kids to stop smoking could be forced off the air because tobacco companies are refusing to keep footing the bill.

Former top federal health officials gathered Tuesday to urge the companies to keep paying for the "truth" ad campaign run by the Washington-based American Legacy Foundation.

"I say to the tobacco executives, look if your words aren't just rhetoric, then fund the truth campaign," said Joseph Califano Jr., who served as former President Carter's health secretary and is heading a petition drive to push cigarette makers to keep paying for the ads.

Tobacco companies agreed to fund the ad campaign in 1998 when the industry reached a $206 billion legal settlement with the states. But the agreement said if the companies participating in the settlement saw their market share drop below 99 percent after March 2003, those companies wouldn't have to pay for the ads anymore.

That happened recently as small manufacturers, who aren't part of the settlement, gained new customers. Morgan Stanley tobacco analyst David Adelman estimates those companies now have about 5 percent of the cigarette market.

The industry has so far given the American Legacy Foundation $1.5 billion to pay for the truth ads, which often showcase teenagers. In one, teens are seen dragging body bags in front of a cigarette company's office. The teens are holding posters stating that 1,200 people die each day from tobacco-related diseases.

Lorillard Tobacco Co. has filed suit against the American Legacy Foundation, saying the ads have vilified the company. Lorillard points to one radio ad in which a person identifying himself as a dog walker phones the company and tells the operator he wants to sell the company "quality dog urine" because it is "full of urea," one of the "chemicals you guys put into cigarettes."

Lorillard, of Greensboro, N.C., has said urea is found naturally in tobacco leaves.

Company spokesman Steve Watson said Tuesday his company does not plan to fund the ads now that it has no legal obligation to do so. "We have no intention of aiding them in their misguided mission to vilify tobacco companies," Watson said.

Philip Morris USA issued a statement Tuesday saying it had lived up to its commitment and touting the $125 million the company says it spends annually on anti-smoking and health initiatives.

But anti-smoking advocates say the companies' ads aren't effective. "There's no way that you can rely on them and their ads to discourage teen smoking," Califano said.

An estimated 2,000 young people become smokers each year, according to the American Legacy Foundation.

Cheryl Healton, head of the foundation, says it costs about $100 million annually to run the national ad campaign. Healton said if the companies refuse to pay for the ads, the foundation will have to decide whether to put itself out of business by spending down its $800 million endowment to continue the campaign.

FOX News Channel - March 16, 2004
        No Ashtrays? No Problem!

Someone had better tell Mayor Mike Bloomberg: Rock stars smoke indoors.

At last night's ceremony in the Waldorf there was more than one white cloud rising over the dinner tables. The first to start puffing, I think, was Jane Wenner, who lit up while estranged hubby Jann was giving his acceptance speech.

In short order, Keith Richards — I mean, well, of course — found a cigarette, followed by John Mellencamp and Kid Rock.

Buffalo News - March 15, 2004
        City of Tonawanda, N.Y., Firm Demonstrates Air-Purifying Unit for Taverns
        By Matt Glynn

Bar owners in Erie County should be allowed to install air-purifying technology to bring back smokers and recover business lost to the state's smoking ban, some lawmakers said Friday.

They said the county Health Department should consider waivers for bars and taverns that install standalone smoking booths equipped with the machines. They see it as a solution that protects the health of the public and the economic health of businesses.

FailSafe Air Safety Systems, based in the City of Tonawanda, demonstrated its air-cleaning technology on Friday at Jimmy Mac's on Elmwood Avenue. Jimmy Mac's owner, Rick Naylon, says the smoking ban has hurt his business, and he has filed suit in an effort to obtain a waiver.

FailSafe set up a smoke machine inside one of the company's booths -- which resemble an oversized shower stall, though not fully enclosed -- to show how quickly the device sucks up smoke. The smoke was drawn into the booth's hood, where the air was purified and recirculated.

The technology raises the air's quality to the same level required in hospitals, said Paul Chirayath, FailSafe's chief executive officer.

County Legislator Charles M. Swanick, R-Kenmore, said the technology would enable customers to smoke without a bar or tavern compromising air quality standards or affecting its employees' health.

"No one wants to see people get sick, and no one wants to see businesses go out of business," he said.

Swanick was joined by two other Republican legislators, Elise M. Cusack of Amherst and Steven P. McCarville of Orchard Park, and state Sen. Byron W. Brown, D-Buffalo.

Chirayath said the booths range in price from $3,000 to $17,0000, depending on their size. The same air-purifying technology could be installed in the ceiling above a bar -- eliminating the need for a booth -- but that would be much more expensive because of engineering and permit costs, he said.

Swanick suggested setting up a "pilot program" at a local bar or tavern, to show what one of the booths can do. The larger goal, he said, is to enable businesses that install the technology -- made by FailSafe or another company with comparable air-quality results -- to obtain waivers.

The county Health Department declined to comment on the idea, citing litigation by Naylon involving the smoking ban.

On the state level, a state Senate bill calls for allowing smoking in establishments that install air filtration and purification equipment approved by the state Health Department.

Bill DeLuca, owner of Mr. Bill's Restaurant and Bar in Cheektowaga, attended Friday's demonstration and said he liked what he saw.

As for the equipment's cost, DeLuca said: "Right now, my loss of sales would have paid for it three or four or five times."

DeLuca said Mr. Bill's already has a floor-to-ceiling divider between its bar and restaurant areas. He was intrigued by the idea of installing the technology directly above the bar, instead of buying a booth. "If this system works the way they say it does, I can't see why they wouldn't go for it," DeLuca said.

FailSafe's technology is already used to remove odors and contaminants in hospitals and other settings in the United States and other countries, Chirayath said. Its technology was approved for waivers by the city and county a few years ago as an alternative to workplace smoking rooms.

Buffalo-based Austin Air Systems also makes air-purification systems, but its technology would not be applicable for bars, said Richard Taylor, the president.

News 10 Now - March 11, 2004
        Meeting held in opposition of smoking ban
        By Al Nall

Bar and restaurant owners gathered in Fulton Wednesday night to discuss ways to fight New York's Clean Indoor Air Act, which they say is hurting their business.

Around forty owners were joined by representatives from The Empire Restaurant and Tavern Owners Association and local legislators.

Whether it's legal or political, they say action needs to be taken.

Whether it's legal or political, some Oswego County business owners say action needs to be taken against the smoking ban.

Options laid out on the table range from minor civil disobedience to a class action lawsuit.

Those in attendance say it should be a matter of choice, not law.

Bar owners from neighboring counties, including Cayuga, were also on hand at the meeting.

Smoking ban waivers have not yet been granted in that county.

Buffalo News - March 9, 2004
        Proposal favors smoking in bars
        Some restaurants call bill unfair
        By Tom Precious

ALBANY - Smoking would return to bars across New York State under legislation introduced Monday.

It is the first major legislative push by taverns since the state eight months ago enacted one of the nation's toughest anti-smoking laws.

Yet while the issue over smoking in public has been mainly between health and business interests, the new proposal has spawned new combatants: restaurants vs. bars.

The legislation, introduced by a central New York Republican in the GOP-led Senate, would let bars take advantage of a major loophole by permitting them to install ventilation systems to clear the air of smoke - and bring smokers back to their bar stools.

But while health groups insisted bar customers and workers will still be at risk from secondhand smoke, an influential association representing restaurants has joined the fray.

Some restaurants say the bar industry is trying to grab unfair advantage by changing the law to permit smoking only in their establishments. But bar owners, some of whom have seen business plummet since the ban went into effect last July, say restaurants already enjoy an edge - food service - that taverns haven't been able to rely on to make up for the loss of business from the smoking prohibition.

Monday, both sides could not even agree on what the legislation states.

Restaurant owners said it would give exclusive rights to bars to return to smoking, while bar industry officials insist the intent of the bill is to let restaurants bring back smoking if they have separate bar areas. Restaurant owners themselves were split over whether they even want to bring back smoking.

"This is what divides the industry. Our members will go through the roof," Rick Sampson, president of the New York State Restaurant Association, said of the new legislation signed onto by three Western New York lawmakers.

Restaurants, which long opposed smoking bans, dropped that fight two years ago, arguing that they would rather have a level playing field across the state for all businesses than the patchwork of anti-smoking laws and rules differing from county to county. They view this newest bid to weaken the 2003 clean indoor air act as a return to confusion and, ultimately, one that will draw restaurant patrons to bars.

"Once you start to divide the industry, you've got a problem," said Sampson, whose group represents 7,000 members, from small, independent restaurants to the big chains. He said the new proposal, pushed by the tavern industry, "totally defeats the purpose of the law."

But Brenda Perks, a bar owner in the Chautauqua County community of Falconer, said there is no level playing field as long as there are businesses in border communities competing with cross-border rivals with less restrictive laws and places like Indian casinos and private clubs that are exempt from the smoking ban.

"This whole law is out of whack," said Perks, owner of Mel's Place, who is among the leaders of the campaign to change the law to benefit bars. Her business, down 48 percent since the smoking ban, could not compete without the waiver she recently was granted from the county, after proving financial hardship, in the way restaurants can because she serves no food. Restaurants without bars, which would not qualify for the exemption under the new legislation, want to keep the status quo, as do others not suffering from a drop in business.

Dennis DiPaolo, owner of Ilio DePaolo's Restaurant in Blasdell, said he spent thousands trying to comply with Erie County's smoking ban, which was replaced last year with the tougher state ban. He said his reading of the legislation introduced Monday is that it would apply only to bars, not his establishment.

"It makes for an uneven playing field. It pits bars and restaurants against each other," he said.

For DiPaolo, the status quo is working.

"We've got the law. Live with it. We're in America. Live by the law we've got," he said. Besides, he added, "My customers like it the way it is."

The bill's sponsor, Sen. Raymond Meier, an Oneida County Republican, did not return calls to comment.

His legislation would permit smoking in bars that have installed filtration devices - which can cost upward of $6,000 to install - that remove at least 99 percent of air contaminants, as determined by the state Health Department.

Health groups believe the bill would threaten public health, and they insist the relaxation of the law applies only to bars, not restaurants.

"Why are bars the only industry where workers don't deserve to be protected from carcinogens in the workplace," said Michael Bopp, a lobbyist with the American Cancer Society.

"The reason why it's so tough is that it was perfectly fair," he said of the law. "Once some businesses get out from under, then it's harder to make the case that all other businesses should comply as strongly as they now must."

The state's tavern industry says the law has shuttered bars and unfairly hits smaller businesses where drinking and smoking have been a draw for generations. Scott Wexler, head of the Empire State Restaurant and Tavern Association, insisted the intent of the bill is to permit restaurants that also have bar areas to bring back smoking.

"If the objective of the law was to protect employees from secondhand smoke, and this technology will do it, then what's wrong with it?" he said.

But Sampson, the state restaurant association president, questioned the new rollback drive. "If the issue really is public health and the health of employees, I'm confused. You're now putting business and profits ahead of public health." he said.

Restaurants themselves are divided over the issue. At Mr. Bill's restaurant in Cheektowaga, owner Bill DeLuca said it would not be fair to allow just bars to bring back smoking.

But he said he would like to see smoking again in his bar area of the restaurant.

News 12 Long Island - March 8, 2004
        Many LI bar and restaurant owners say smoking application is not worth the hassle

BAY SHORE - It is possible that lighting up at Long Island bars and restaurants could soon become a reality. Business owners across the Island are starting to apply for waivers to the state smoking ban. But many business owners told News 12 Long Island it is a hassle to apply for the waivers, and many of them do not think it is worth it.

Bar and restaurant owners have to pay a $500 filing fee and fill out a 23-page application proving financial hardship -- losing at least 15 percent of their profits due to the smoking ban -- with state sales tax receipts to back up the claim. Because the intent of the law was to protect workers from second-hand smoke, there is more to it than just taking a monetary hit. Owners also must prove that they will take actions to limit, if not eliminate, second-hand smoke exposure for employees.

Between Nassau and Suffolk counties, nearly 80 waiver applications have been sent out to bars and restaurants. So far, none have been completed. Some business owners say the application was so complicated that they simply did not bother completing it.

Additionally, any waivers granted in Suffolk County would become null and void in 2006. That is when the county law goes into effect, which is stronger than the state law now being enforced.

Buffalo News - March 6, 2004
        Waiver bid on smoking is resisted
        By Matt Gryta

A county attorney told a state judge Friday that giving Jimmy Mac's a waiver from the state's no-smoking law would constantly expose nonsmoking diners and employees to dangerous secondhand smoke.

Owner Rick Naylon has no plans for a separate smoking room at the popular Elmwood Avenue restaurant and bar, and nonsmoking waitresses would be forced to carry food through a smoke-filled bar where diners would also have to wait to be seated, Assistant County Attorney Joseph F. Reina argued.

During an hourlong hearing before State Supreme Court Justice Rose H. Sconiers, the restaurant's attorney, Nicholas P. Amigone III, contended the county health commissioner was trying to create a political "fiefdom" in Erie County by imposing operating conditions the State Legislature never contemplated in the nonsmoking law.

Amigone contended that requirements by Dr. Anthony J. Billittier IV, Erie County health commissioner, amount to an unconstitutional "taking" of private property rights because Jimmy Mac's business "is driven by alcohol sales."

The restaurant's attorney told the judge the state health commissioner's guidelines seek to "minimize, not eliminate" smoking, "which obviously Dr. Billittier is trying to do" with "preposterous" mandates for waivers.

Reina countered by charging that Jimmy Mac's owner has failed to meet "reasonable" regulations that Billittier imposed. He also noted that last month the health commissioner granted waivers to Recckio's Bowling Center on South Park Avenue and the Irish Center on Abbott Road.

Amigone told the judge that Jimmy Mac's revenue had dropped by about $100,000 since the smoking ban took effect in July and threatens the 20-year-old business.

But Reina stressed that Naylon's sales tax receipts have not dropped by the 15 percent the health commissioner wants for a waiver.

The county attorney also told the judge that Naylon cannot prove the no-smoking ban is been the sole reason for his revenue decline.

Reina told the judge that records show Naylon's wholesale alcohol purchases have been dropping for the past year and a half and he has yet to develop plans for a separate smoking room, which the state health commissioner has recommended as a possible local waiver requirement.

Since the nonsmoking law took effect last summer, Amigone said, Jimmy Mac's has experienced "a precipitous decline" in business because drinking customers have "stopped coming in because we didn't cheat the way other bars are cheating."

Sconiers reserved decision on Naylon's request for a court-imposed waiver of the no-smoking law for his business, saying that she likely will have a decision within several weeks.

WBNG-TV - March 5, 2004
        NY Senate Debates Smoking Bill
        Chris Flickinger

Larry Zopp senior lights-up his cigar inside a bar in downtown Binghamton.

He can do so in spite of New York's smoking ban because he's inside the Moose Lodge, a private organization.

Larry Zopp Sr. says, "Plus we pay no employees. We pay nobody at all. If you don't pay anybody, you can have smoking. There can be smoke in your place."

But Zopp isn't allowed to smoke in his own bar, Zopp's II, in Johnson City because it's open to the public.

He says since the smoking ban started in July, business has decreased by 25-percent.

But a bill working its way through New York's Senate could allow smoking back indoors if air filters are installed.

Senator Thomas Libous says, "This law will allow them to buy these filtration systems that are going to be extremely effective and work in clearing the air. If the Health Department does approve their wavier because of financial hardship, then the smoking can be allowed."

Senator Libous says the cost of an air filtration system could range from $2,500 to $6,000. But, Zopp says it could be much more. He installed this filter 15 years ago, and he says it cost him $2,000.

Larry Zopp Sr. says, "Its just a way of saying they're helping us out, but in the long run they're not helping us out. All they're doing is charging us more money to operate our own business. That's what they're doing."

Senator Thomas Libous says, "It is a business expense that can be amortized over a period of time, but the bar owners we talked to that are in need of these sytems are very optimistic in saying they would seriously consider it."

But, Zopp Sr. says he's not impressed with the bill.

Last week the Broome County Health Department said, under the current law, it would not grant any smoking waivers to local businesses.

Today the county's Health Department tells Action News if the proposed bill becomes law, they will examine it, but it's too early to know what the law would say in the end.

News 10 Now - March 5, 2004
        Smoking waivers granted to four Oswego County businesses
        By Adam Balkin

Frank Church has a tough task.

As Chair of Oswego's Board of Health, he has to follow the state smoking ban and keep smoking out of indoor businesses.

But he says he must also allow exemptions when a business proves the ban caused undue financial hardship.

"It's appropriate. They're entitled to it under those circumstances because the law says they are."

On Friday, the Oswego Board of Health gave out smoking waivers to four bars and taverns within the county, The Sting being one of them.

But the Health Department says for the businesses to get the waiver, they had to agree to meet several requirements.

"Basically, the acceptable plan would be to have a separate, enclosed room, separately ventilated, for a smoking room and with that room no employees would be allowed to go into that room,” said Natalie Roy, Oswego Health Department.

Some at the meeting don't agree with these waivers, saying employees will still be at risk.

"There's no studies to show that filtration systems are effective in getting carcinogens and some of the other factors out of the air,” said Nancy St. Onge, Tobacco Free Network of Oswego County. "Hopefully, there's not a lot of economic effects on businesses, but the reality is workers' health is much more important than worrying about some of the businesses. You've got to make priorities and women's and workers' health must be our priority.”

Church knows how controversial this issue can become, so in response to these complaints, he just says, "We have to do what's required of us and people will have to accept that, I think."

Aside from The Sting, Route 29 Entertainment, Trackside Pub, and Buoy's Dockside Restaurant also got the smoking waivers.

WOKR 13 TV - March 5, 2004
        Batavia Restaurant Gets Smoking Waiver

This week, Genesee County issued a smoking waiver to the Center Street Smoke House in Batavia.

In July, the restaurant owners were fined $9,000 for handing out free cigarettes and letting people light up.

To qualify for the waiver, the bar had to build a separate smoking room with adequate ventilation.

Center Street Smoke House owner Cregg Paul said, "The people who smoke will be happy… and the customers who want a smoke-free environment at the bar--you got it, we don't smoke in the bar."

Each county chooses its own guidelines for smoking waivers. So far, Monroe County has not granted any waivers.

Hornell Evening Tribune - March 4, 2004
        Help on the way for anti-ban effort
        By Kyle A. Torok

HORNELL - Local opposition to the New York state smoking ban is moving forward, and the little group could get some big-time help next week.

Scott Wexler, executive director of the Empire State Restaurant and Tavern Association (ESRTA), will travel to Hornell to speak to local bartenders and tavern owners Tuesday at 7 p.m. at the Elks Lodge about lobbying and litigation against the ban, and provide advice and strategies for locals.

"We need to be getting into a bigger organization," said John Price, Hornell Association president, on inviting Wexler to speak. "If we organize Corning, Bath and all that, we're still just a drop."

Price and Hornell Lodge of Elks Chief Steward Art Burdick met last week with Bath- and Corning-area social clubs, trying to organize with them in a unified rural effort. They need some assistance organizing into a more cohesive effort, which they may receive from the ESRTA, which boasts about 23 chapters across the state.

Wexler is eager to speak to the Steuben County businesses, which he says could be in better condition to obtain waivers than other counties.

"Other counties' boards of health have decided not to do waivers at all ... Steuben has no board of health," Wexler said.

Rather than jump to the state Department of Health for waivers, the ESRTA is urging businesses to reach out to the governor, according to Wexler.

"They're entitled to these waivers that they're being denied," he said.

Wexler is eager to speak to the local group, as he agrees the ban affects rural areas much more than metropolitan areas.

"It's not a metropolitan area issue so much ... it's about upstate hurting more than downstate," he said. "It has everything to do with smoking clientele and what they do when they smoke. Cigar bars are very popular; they're exempt. Down in New York City, people are puffing away like crazy."

Bars have been much more hurt than restaurants, according to Wexler, who says food sales have been little affected.

Next week's presentation will address current legislation to amend the smoking ban, what the ESRTA is challenging the law and their work on granting of waivers.

The ESRTA has helped introduce legislation that will allow smoking in bars and private clubs as long as they have certain technology installed to remove 99 percent of contaminants or more from the air. Such a set up would make the air cleaner than if smoking had been eliminated, since it removes much of the other airborne contaminants like dust, according to Wexler.

Wexler will urge local businesses to contact their state representatives and pressure them to co-sponsor the bill. He will also urge them to join the ESRTA.

"What they are right now is a small group in one part of the state, but they're not connected to business owners in other parts of the state," Wexler said. "We want to make them aware of what other members, other local groups are doing ... make them stronger, better informed."

Price has high hopes for the meeting, and the future of the local effort.

"We'll consider joining up with (the ESRTA) if we are satisfied with what they are offering, what they are doing," said Price, who will invite Bath- and Corning-area businesses to the meeting. "I think he's going to be tremendously helpful to us."

Democrat & Chronicle - March 3, 2004
        Bills would allow new smoking ban waivers
        By Joseph Manez

ALBANY — A state senator is proposing a partial rollback of the state prohibition on smoking in bars and restaurants, possibly signaling a growing backlash.

Under the ban instituted in July, smoking was outlawed in bars and restaurants that didn’t receive waivers. Under a bill that will be introduced by Sen. Raymond Meier, R-Western, Oneida County, later this week, bars that install air filtration systems could be added to the exemption list. Filtration systems would be required to clean the air of 99 percent of the contaminants from cigarette smoke.

Assemblywoman RoAnn Destito, D-Rome, said she’s considering a similar measure in that house. The action would be significant because it would be the first time that a rollback bill has sponsors from the majority party in each house. The assemblywoman said the latest air-filter technology deserves study.

“I think our bars and taverns are owed at least a look at what is out there,” Destito said.

Conservatives concerned about government oversight and bar owners claiming lost business have promoted ventilation systems as a compromise. They say patrons and employees would avoid the hazards of smoke while allowing smokers to frequent the businesses.

“In a perfect world it would be best if no one smoked, but to tell someone ... they can’t have a cigarette in their favorite neighborhood bar, I think, is kind of outrageous,” state Conservative Party Chairman Mike Long said.

The Center for a Tobacco Free New York and other health groups, including the American Cancer Society and American Heart Association, oppose relaxing the ban, saying it would endanger bar employees.

“What loopholes do is create secondhand citizens,” said Russell Sciandra, director of the Center for a Tobacco Free New York. “Everyone should be protected. That’s what these laws are about.”

He believes filtration systems are ineffective and do not necessarily make the air safe. For instance, a vent system wouldn’t protect someone standing between it and the smoker. Also, the machines take time to remove carbon dioxide and other harmful chemicals. The appeal of the vent system, he said, was that it allows lawmakers to please bar owners and appear health conscious.

“This makes (lawmakers) think they can have it both ways,” Sciandra said.

There are also other rollback initiatives. Byron Brown, D-Buffalo, has a bill that would allow smoking in bingo games run by volunteer associations. Howard Mills, R-Hamptonburgh, Orange County, has a bill that would allow bars and restaurants to apply for a smoking license.

Groups involved in the debate, including the Conservative Party and the Center for a Tobacco Free New York, are planning mail campaigns.

Times Union - March 3, 2004
        At Capitol, a means of clearing the air
        Albany-- As part of push to modify smoking ban, lawmakers get look at smoke-removal devices
        By James M. Odato

As a Republican senator readied a bill to permit smoking in taverns with air purifiers, a liquor industry lobbying team on Tuesday met behind closed doors with lawmakers to show how $3,000 devices can clear a room of smoke.

Sen. Ray Meier, R-Utica, is circulating a draft of a measure he intends to introduce within a few days. Meier, who voted for the law that bans smoking in workplaces, said he has received numerous calls from tavern owners in his district who say the prohibition is substantially cutting into their businesses.

"I told them: 'Nobody intended to put you guys out of business,' " Meier said.

His bill would allow bars that draw less than 40 percent of their revenue from food sales to be eligible for an exemption. They would have to install a filtration and purification device approved by the state Health Department and able to clean 99 percent of the contaminants out of the air.

Assemblywoman RoAnn Destito, D-Utica, said she is sympathetic to bar owners who say they are hurting, and invited purification device manufacturers to exhibit their products at her Legislative Office Building quarters.

On Tuesday, she and several other Assembly members looked over one such device and listened to a presentation from a manufacturer's representative.

The device, an Airistar 1000, swiftly cleared Destito's conference room of "theatrical smoke." A particulate meter showed contaminants were drastically reduced. John Warling, of Airistar Technologies, said the machines can clear 99 percent of pollutants from air and are good enough for medical rooms. One of the machines can clear the smoke from a small bar, he said.

Russell Sciandra, director of the Center for Tobacco Free New York, said the machines aren't reliable.

Warling was brought to the presentation by lobbyists of Hinman Straub and its public relations firm, Corning Place Consulting. The lobbying team represents the New York Nightlife Association, funded heavily by liquor distributors, wholesalers and corporate sponsors such as Anheuser Busch, Heineken and Bacardi. The association has already spent more than $100,000 lobbying to amend the smoking law in the past year.

The group has joined the Empire State Restaurant & Tavern Association and other hospitality groups to fight for an amendment to the ban.

Destito, who also recently heard a presentation on air-cleaning technology from FailSafe Air Safety of Tonawanda, said she is trying to learn more before deciding whether to sponsor Meier's bill.

"I'm not getting lobbied," she said. She said some counties are granting waivers to the smoking ban without any concern for secondhand smoke.

"I'm doing my research. We live in a technology-driven world. I'm looking at allowing people to have choice," she said.

Members who saw the Airistar demonstration offered mixed opinions.

"They can't tell me it's not going to hurt people to smoke even with this," said Assemblyman David Koon, D-Fairport.

Associated Press - March 3, 2004
        Composer's Defense of Tobacco Airs

LONDON -- It's short, and it's smokin'.

The English composer Edward Elgar's musical defense of tobacco -- billed the ``Smoking Cantata'' -- received its world premiere on British Broadcasting Corp. radio Wednesday morning -- all 40 seconds of it.

``That was it, there is nothing more,'' said Mark Elder, music director of the Manchester-based Halle Orchestra and an Elgar lover, after the orchestral strains died away on BBC Radio 4's ``Today'' program. ``That recording you've just heard is the world premiere.''

Elder said Elgar, whose more famous works include ``The Enigma Variations'' (1899) and ``The Dream of Gerontius'' (1900), wrote the piece in 1919 after staying with a friend in Hertfordshire, north of London, who asked him to refrain from smoking.

Elgar, who smoked cigars all his life, decided to write the music and soon afterward produced the mini-cantata, in which two male singers implore, ``Kindly, kindly, kindly do not smoke in the hall or staircase.''

Elder said Elgar had hoped the work, which is ``scored for a huge orchestra,'' would be ``a much grander thing'' with five movements, which was meant to be satirical.

The composer had intended to open the work with a group of ``unintelligent smokers,'' who would discover their error and appear ``repentant'' in the final stages, Elder said.

The manuscript came to light when the friend who banned Elgar from smoking died and his belongings came up for sale. The BBC did not say who had recorded the work.

BBC radio featured the work as part of an item on the decision by British singer Joe Jackson to return to live in his homeland, partly in response to the ban on smoking in public places in New York City.

He has written a pro-smoking protest song that includes the words, ``... You can do what you want / It's the Land of the Free / But don't take it too far/You can do what you want / You can live just on lard / But in twenty-oh-three you can't smoke in a bar...''

Niagra Falls Reporter - March 1, 2004
        SMOKE 'EM IF YOU GOT 'EM, LEGALLY, IN BUFFALO AVE. TAVERN'S NEW ROOM
        By David Staba

At precisely 3 p.m. on Friday afternoon, a Niagara County health inspector gave the final OK to the enclosed, separately ventilated room at the front of Foley's Tavern on Buffalo Avenue.

A few minutes later, legal smoking returned to a Niagara Falls bar for the first time since the statewide smoking ban took effect last July.

Becoming the first business to get a waiver from the Niagara County Health Department was a time-consuming, expensive proposition for Roger Foley and Phil Beacher, partners in the business for six years.

Their accountant had to assemble the paperwork to show that the smoking ban led to a drop in revenue of more than 10 percent -- a loss of closer to 20 percent in their case. They had get their plans approved by the city engineer's department, build walls to enclose the 10-by-15-foot room next to the bar, install a new ventilation system to keep smoke from leaking out into the bar area when the door opens and go through three separate city inspections. Total cost -- about $4,000.

"We were aggressive," Foley said. "That's why we got it done before anyone else."

Both men, each a non-smoker, said they still strongly oppose the ban, but couldn't sustain the lost revenue any longer.

"It's part of doing business now," a resigned Beacher said. "It's time to get with the program."

After the ban passed, they built a patio behind the bar at a cost of $10,000 to accommodate smokers. That helped the bottom line -- until the first frost.

Despite having the first bar with a legal smoking room, the two men don't expect a huge increase in new business.

"All we're looking for is for our customers to hang around longer, like they used to," Beacher said. "Before we got this, a lot of them would go outside to have a smoke and figure, 'Might as well get in my car and go.'"

The Health Department and its director, Paulette Kline, have been the targets of a flood of criticism -- including plenty in this space -- for their enforcement methods and initial handling of appeals by businesses receiving citations. But Foley's experience hints that the department has adopted a less hostile stance.

"They've been helpful all the way through the process," Foley said. "They're in an awkward position. They're taking all the heat, but it's not their fault there's a stupid law."

Other bar owners said more recent appeal hearings have been much less contentious, with health department officials almost apologetic. While no businesses appealing their fines have been cleared entirely, most first-time fines have been lowered from $250 to $100 on appeal.

Many questions remain about the waivers. What about new businesses that can't demonstrate a loss since the ban's implementation, since they weren't open yet? What about the half-dozen bars and restaurants near Foley's in LaSalle? Can they apply for waivers based on the loss in business they'll inevitably experience now that customers can smoke inside at a competitor's establishment a few steps away?

Whether or not the county will extend the two-year waivers indefinitely also remains unclear -- Chautauqua County officials announced last week that they won't extend the one-year waivers granted by that health department.

A similar decision in Niagara County would leave Foley and Beacher with a very small, very expensive front room. Both said they'd take that in stride, too.

"We'll turn it into a barbershop," Beacher said.

Times Herald - February 26, 2004
        County sued over smoking ban
        By Rick Miller

LITTLE VALLEY — A Franklinville tavern is suing the Cattaraugus County Board of Health over a citation for violating the state’s indoor smoking ban.

Robert F. Allen, owner of Long Branch Saloon of 5 Park Square claims in his lawsuit that the Board of Health exceeded its authority on Feb. 4 when it fined him $1,000 for a violation of the Clean Indoor Act when a Health Department employee allegedly observed patrons smoking Nov. 8.

The lawsuit accuses the Board of Health of violations of both the U.S. and New York state constitutions.

Acting State Supreme Court Judge Larry Himelein will hear arguments from attorneys for Mr. Allen and the Board of Health at 1:30 p.m. March 11 . The judge also ordered that the $1,000 fine and a $10 a day fine for each day it is not paid after Feb. 23 (Monday) be halted until the court decides the issue.

“We will be on the cutting edge in litigation” on the smoking ban, said County Attorney Dennis Tobolski, who is preparing to defend the Board of Health in the lawsuit. It could take two years or more before the issue is settled in court, he added.

Long Branch Salloon had been fined $500 by the Board of Health last fall for an earlier violation of the Clean Indoor Air Act.
The judge’s order also directs the Health Department to proceed with an annual health inspection and to grant a permit to operate if justified. The Health Department had told Mr. Allen the inspection would not take place until after the fine was paid.
Mr. Allen’s attorney, Andrew W. Goodell of Jamestown, claims in the lawsuit “the Health Department has targeted business owners and not individual smokers, even though the latter clearly violates the law, in an improper and illegal effort to make the business owners de facto enforcement officers.”

Mr. Goodell also claims in the court papers that the Board of Health violated the state Open Meetings Law when it met in executive session Feb. 4 to discuss Mr. Allen’s appeal of the $1,000 fine.

The lawsuit was disclosed at Wednesday’s County Legislature meeting by the county attorney as lawmakers discussed sending a message to Albany that the Clean Indoor Air Act is hurting businesses and should be reviewed.

Mr. Tobolski said such a resolution would not help him in the process of defending the Board of Health and the Health Department against the lawsuit.

“Do you want me to defend the county Health Department and the Board of Health?” he asked.

Among the claims Mr. Allen makes in the suit is a charge that the Board of Health acted unconstitutionally in refusing to consider a Sept. 23 request for a waiver based on undue financial hardship. The department “thereby effectively engaged in an unconstitutional taking of the petitioner’s property rights,” the suit claims.

Public Health Director Barbara J. Hastings said department’s focus in enforcing the state law is “to prevent exposure to second-hand smoke by employees.”

“This is quite a hardship on small places,” said Minority Leader Carmen Vecchiarella, D-Salamanca, who wanted a resolution asking state legislators to consider revising the Clean Indoor Air Act. “People are going to places that aren’t as strict. I think we should get on the bandwagon and ask the state to review this.”

Majority Leader Jon Baker, R-Olean, who is a representative to the Board of Health, said, “Whether we agree with this or not, it is here.”

The public health director spoke to county lawmakers on requests for waivers of the law at the request of Howard “Bud” Zollinger, C-Randolph.

Mrs. Hastings, who said only three waiver requests have been received since the Board of Health approved waiver request procedures earlier this month, emphasized her department’s focus in waiver requests is “minimum involuntary exposure to secondary smoke.”

There are other criteria — “factors that would make enforcement unreasonable” — for seeking a waiver besides the 15 percent loss of business over a corresponding three-month period from the previous year, Mrs. Hastings said.

County Legislature Chairman Gerard “Jess” Fitzpatrick, R-Ellicottville, said, “I know we have to defend against the lawsuit,” but he said it would not be without cost to the county.

Mr. Tobolski said later, “We would welcome the state attorney general’s assistance in defending the state law.”

Salamanca Press - February 26, 2004
        Tavern owner sues county over smoking fine
        By Kevin Burleson

LITTLE VALLEY — A Franklinville tavern owner is claiming the county overstepping its bounds by asking him to enforce a state indoor smoking ban.

Robert F. Allen, owner of the Long Branch Saloon, 5 Park Square, filed suit in Cattaraugus County Supreme Court on Tuesday seeking to vacate a $1,000 fine and a $10 per day penalty for not paying the fine and also asks the court to order the county Health Department to proceed with the process for granting a waiver to the smoking law if it is proper.

A show cause order was signed by Judge Larry M. Himelein staying the fine and a hearing was scheduled before the court at 1:30 p.m. on March 11. The judge also ordered Allen to put $1,500 in escrow pending the outcome.

Allen was fined under the Indoor Clean Air Act by the county Board of Health after patrons in his bar were seen smoking on two occasions. The a $500 fine was levied Sept. 23 for a Aug. 1 violation and a $1,000 fine was imposed Dec. 3 for a violation occurring Nov. 8.

Allen, represented by attorney Andrew Goodell, alleges that the county acted in an unconstitutional manner and “effectively condemned the business rights of the petitioner.”

“The Cattaraugus County Board of Health has improperly and illegally attempted to make business owners responsible for the enforcement of the Clean Indoor Air Act.

“Indeed, the Commissioner of Health stated in a presentation before the Board of Health on Feb. 4 that ‘the owner, manager, or operator of an area open to the public, place of employment, food service establishment or bar that is covered by the Act is required to enforce the law so as to prevent smoking.’”

Quoting the law itself, Allen noted the Act imposes two obligations on the business owners: 1) post “no smoking” signs and 2) advise anyone who is smoking are that the smoker is violating the law.

In his complaint to the court Allen also notes that the county Health Department has refused to cite a single individual smoker for violating the law, even though the Health Department has claimed to have witnessed such smokers at several businesses.
County Attorney Dennis Tobolski discussed the case at the legislature on Wednesday.

“Ultimately the courts will decide if the law is valid,” Tobolski said. He predicted the case could take up to two years and end up in the Court of Appeals in Albany.

“You are now on the cutting edge of litigation,” he said.

Columbia Spectator - February 26, 2004
        Local Bar Owners Fight Ban on Smoke
        By Julia Israel

In response to falling sales and hoards of complaints by smokers, bar staff, and owners, numerous organizations throughout Manhattan are fighting back against New York City Mayor Michael Bloomberg's smoking ban.

"Isn't [smoking in bars] a right-to-choose issue?" said Lee Seinfeld, owner of three Upper West Side bars. "Shouldn't it be a right-to-choose issue when you're dealing with 25 percent of the nation who does smoke?"

Seinfeld, along with many other Upper West Side bar owners, is involved in a campaign to repeal the ban. The New York City Nightlife Association, in conjunction with the Empire State Restaurant and Tavern Association, is working toward an amendment to the ban that would allow smoking in bars where state-of-the-art filtration systems are in place. New York City Citizens Lobbying Against Smoker Harassment (CLASH) has also launched a campaign--and filed a lawsuit--hoping to see the smoking ban abolished.

"There's no compromising. Every time we compromise, it just comes down to greater limitations," said Audrey Silk, founder of CLASH.

CLASH filed its suit in July and is currently awaiting confirmation from a judge as to whether the case contains enough merit to proceed to court. According to Silk, the group will be notified about the case's status sometime in March.

"We're hopeful," Silk said. "We believe we'll get a fair trial. A lot of it rests with the judge, and sometimes personal opinions can sway a judge one way or the other. We have given them plenty of evidence to rule in our favor, and we've put the science on trial as well [in terms of second hand smoking]."

The "science" Silk referred to involves evidence found by CLASH that secondhand smoke is not as dangerous as many might believe.

"I'm still waiting to meet the first person who's died from secondhand smoke," Seinfeld said.

Silk believes that the scientific evidence CLASH has found points to the Bloomberg administration having other intentions where the smoking ban is concerned.

"People who happen to enjoy a legal product are being told they can't go anywhere," Silk said. "You can't even open up a smokers' club, which really tells you what this is about ... It's not about protecting anybody. It's about keeping people from smoking."

The smoking ban currently contains a clause allowing bars and restaurants to apply for a waiver from the no smoking rule, but smokers and bar owners say the clause is not effective.

"We'll never get waivers in New York," Seinfeld said. "They'll never have waivers--they'll be for mental institutions and charitable organizations."

Silk agreed. "Those waivers are a joke," she said. "They put the waiver provision in the law, and we know that years down the road, they'll come down to revisit that loophole and they'll do away with it."

Silk added that it costs hundreds of dollars to apply for a waiver, a fee that many bars are reluctant to pay when obtaining the waiver is not a guarantee.

But Seinfeld is confident that soon the waivers will become a non-issue if the law is repealed.

"More and more politicians on the state level have changed their stance on it," Seinfeld said, citing the changed opinions of City Councilman Tony Avella and New York State Senator Byron Brown.

"I think it'll be turned," Seinfeld said, "hopefully tomorrow."

Poughkeepsie Journal - February 25, 2004
        Smoking ban waivers in works
        Exception will only apply to bars
        By Anthony Farmer

Only bars and taverns -- not restaurants -- in Dutchess County would be eligible to apply for waivers to the statewide ban on smoking in most indoor workplaces.

The county Health Department is developing criteria for waivers that should be finalized by early April, Commissioner Dr. Michael Caldwell told the Board of Health last week.

Caldwell also said restaurants would be precluded from receiving a waiver because a prior county smoking ban included restaurants without any provision for a waiver.

Because the county law preceded the state law, the more stringent aspects of the county law still apply.

Some in the restaurant business feel that granting waivers to bars, but not restaurants, will give those businesses an unfair advantage.

That was one of the chief complaints restaurant owners had when the county law took effect nearly 14 months ago.

''We all know smoking is not good for us,'' said Tony Marchese, president of the Dutchess/Putnam Restaurant and Tavern Association. ''But that's a choice people make.''

So far, 10 businesses in the county have been fined or

agreed to pay $500 for violating the law, Caldwell said. Health officials have received 20 to 30 complaints, he said.

''We're doing well overall,'' Caldwell said. ''We know, pretty much, where we need to focus our attention.''

In July, the state banned smoking in virtually all indoor public places to protect employees from secondhand smoke.

The state Department of Health enforces the law in 21 rural counties. It allows waivers if an establishment has suffered an ''undue financial hardship.'' The remaining counties can establish their own criteria for waivers.

Several inquiries received

Caldwell said the department has received written inquiries about waivers from 15 to 20 businesses, mostly stand-alone bars.

Marchese said many members of his association have lost business.

Alan Jacobs, owner of The Rio in the Town of Poughkeepsie, said his daytime bar business is down at least 60 percent.

Jacobs also owns a restaurant by the same name adjacent to the bar, but the two are separate businesses, he said.

He is seeking a waiver for the bar, but not the restaurant, which was smoke-free prior to the law.

''People should not be subjected to secondhand smoke when they're having their dinner,'' Jacobs said. ''But people are very social animals and they don't enjoy coming to a bar if no one's in it.''

News 10 Now - February 24, 2004
        Oswego County bar owners fight smoking ban

Oswego County bar owners continued their fight against New York's smoking ban at the County Legislature's Health Committee meeting Monday afternoon.

The group asked the committee for its assistance in communicating with state legislators in Albany.

Bar owners say that at the very least, they need less stringent standards for waivers in the County.

Committee members suggested the owners form their own group to increase the pressure on their elected officials.

"We've come to an agreement today that we're all going to work together. Try to get an association together for all the tavern owners the bar owners, people that are hurting in business. This is what we need,” said Rose Anthony.

The Committee also passed a resolution to inform state legislators that New York's Clean Indoor Air Act is causing harm to several small business owners in the county.

WBNG - February 24, 2004
        Broome & Chenango County Smoking Ban Debate
        By Grant Loomis

The Health Department says based on research on ventilation systems, employees who don't smoke would still be at risk from second hand smoke.

So, the decision's made not to grant any waivers to any business to allow smoking.

Claudia Edwards from the Broome County Health Department says, "You cannot zero out health lung and cancer risks by creating an enhanced ventilation system or putting people in a seperate room. If you can't zero out that risk, we can't support the policy."

The Broome County Health Department says it will continue to enforce the ban on smoking. Edwards says of the 43-hundred businesses in the county, only 20 inquired about a smoking waiver.

Broome County is saying no to waviers, but Chenango County is leaving it up to New York State.

Chenango County leaders vote today to give the State control over ALL issues relating to the smoking ban.

The outside of the Ontario Hotel in Norwich used to look a lot tidier before the New York State smoking ban.

And business was better, too.

Thomas Brewer of Norwich says, "I haven't seen the influx of non-smokers that they said was going to happen."

The New York State Legislature approved a smoking ban last year in all workplaces to cut down on people's exposure to second hand smoke.

Now Chenango County leaders vote to give New York State full responsiblity for enforcing it in their county.

They also want the state to decide which businesses, if any, qualify for waviers that would allow smoking.

Public Health Director Marcus Flindt says, "I think it really relates to our limited resources and ability to properly administer this law."

County leaders also say their Health Department has never been in charge of tobacco issues, and won't start now.

Everyone inside the Ontario Hotel hates this law no matter who is enforcing it, but they hope New York State does a better job of making sure everyone complies.

Thomas Brewer says, "There are some people around here who are not obeying the law and they're getting my night business. If you're going to have a law, you need to enforce it. You have to keep the playing field fair."

But some say if State eyes instead of local eyes are watching for smokers, there will be a lot more people lighting up.

So, Chenango County is leaving it up to the state whether to grant smoking waivers, and enforce the law.

In Tioga County, it's already decided not to grant any waivers for any business.

And, as we told you minutes ago, the Broome County Health Department has now also decided against granting any smoking waivers.

Associated Press - February 24, 2004
        Generic cigarettes cut into funds

PITTSBURGH -- Smokers who pass over name-brand cigarettes are inadvertently contributing to state budget deficits across the nation, including West Virginia.

By switching to generic cigarettes, smokers aren't contributing as much to the multistate tobacco settlement fund intended to fund anti-smoking campaigns, cancer research and Medicaid programs.

States like West Virginia, California, New York and Pennsylvania are getting less than what they anticipated from the landmark 1998 settlement with major tobacco firms.

According to a report by the Council of State Governments, payments to states are falling short of projections every year, sometimes by 20 percent, and the annual shortfalls could reach $2.3 billion by 2010.

West Virginia was promised about $2 billion in future payments.

But this year, the Mountain State will receive about $55 million instead of $65 million.

Pennsylvania is losing an estimated $25.9 million from its overall $11 billion windfall.

"It's a very contentious issue," said Irakli Khodeli, a researcher with the council.

The settlement was initially criticized over concerns that it would drive tobacco companies, and the farmers who supply them, out of business.

But while lower tobacco sales account for much of the lost revenue, Khodeli said gains made by independent cigarette makers also have shrunk the payments.

When major cigarette manufacturers -- Philip Morris, R.J. Reynolds, Lorillard and Brown & Williamson -- lose market share to independent cigarette makers, they are permitted to trim settlement payments to states.

Discount brands such as Lobos, Cowboys, Marathons and others don't contribute to the settlement fund because they weren't included in the lawsuits.

Instead, they have been able to keep prices low, extending the gap between established and discount brands.

By some high estimates, discount brands now make up 15 percent of the U.S. cigarette market, up from less than 3 percent seven years ago.

Brand-name cigarettes such as Marlboros can cost $30 a carton, but some discount brands sell for as little as $12.

Utica Observer Dispatch - February 21, 2004
        Businesses with smoking-ban waivers waiting for rebound
        Sweet Relief for Some Smokers, Businesses
        By Elizabeth Cooper

The front door of Knucklehead's Saloon in Whitestown sports a big sign reading "We have a smoking area in the back room."

On entering, a slight aroma of cigarettes permeates the air. Walking toward the smoking room, it becomes more pronounced.

After a six-month hiatus, the smell of smoke is making a return to a smattering of establishments across Oneida County.

The state's Clean Indoor Air Act bans smoking in all workplaces, including bars and restaurants. But many counties, including Oneida, began issuing waivers to places that could show the ban caused them financial hardship or safety hazards and could demonstrate a plan to mitigate the effects of second-hand smoke.

Two-and-a-half weeks after Knuckleheads received a waiver, owner Barbara Phillips says business is picking up again, but it's hard to tell by how much.

Knucklehead's profits were down about 35 percent during the ban, Phillips said. She estimates the bar has rebounded between

10 percent and 15 percent since getting the waiver.

"It's a great thing," Nicholas J. Reale said of Knucklehead's waiver, as he sat on a barstool Thursday evening and flicked ash from his cigarette into the ashtray beside him. "To tell the truth, (under the ban) I didn't come out as much, and I stayed less. Maybe I'd have a beer or two and then leave."

Down the bar a bit, Dave Becker, Ken Fall and Dave Clark were enjoying after-work beers and smoking. Fall and Clark said they hadn't seen much of Becker since July 2003, when the ban went into affect, and they were glad to see him back.

"I stayed home or went to a friend's house," Becker said of the six smoke-free months.

Oneida County Health Director Eric Faisst said he and his department are working with bar and tavern owners to help those suffering at least a 10 percent drop-off in profits with their applications.

"We are as user-friendly as any county," Faisst said. "We'll work with the bars and help them look at ways to meet the requirements (for mitigating the effects of second hand smoke.)"

So far, the county has awarded 14 waivers, denied 11 applications and has 27 applications still under review.

Faisst said one-room establishments were not receiving waivers.

"With one-room establishments, it's just not going to work," he said. "There's still exposure to second-hand smoke no matter what you do."

Oneida County's waiver does not require establishments to directly link profit decreases to the ban other than to show a decrease from the same period before and after the ban, Faisst said.

Ralph Dittenhoefer, president of the Oneida County chapter of the Restaurant and Tavern Association, said he doesn't blame the county health officials for the situation.

"They're basically the messenger," he said. "They're dictated by the state guidelines.

Dittenhoefer said he still wants one-room bars to apply for waivers, if only to get their requests on the record. Having their applications and statistics on record could help bolster a lawsuit if similar establishments in other counties got waivers, and more information about businesses' hardships could help sway the minds of legislators in Albany, he said.

Faisst said he believes there will be changes at the state level this year, though he's not sure which way the state will go. Waivers could be abolished or the ban could be relaxed, he said.

"We firmly believe some changes are going to be made at the state level," he said. "We'll look at what those changes are and adjust."

As it stands, the bar and tavern owners who have waivers say they're waiting to see how much good it does them.

Liberty Lanes' Gary Clark said his bowling alley in Camden got a waiver a week ago, and he can't tell yet whether he'll rebound. His profits were down about 19 percent during the ban, he said.

Martin Marchese, co-owner of Belview Sports bar in Utica said after a week with the waiver, business had revived "a little bit, slightly, maybe."

He had been down by about one-third during the ban, he said.

For those whose applications were denied, they have 15 days to appeal. Establishments may also reapply for waivers on different grounds, the Health Department said. Waivers expire at the end of 2004.

The Spectator - February 20, 2004
        Smoking Ban Lowers Turnout at Local Bars
        By Julia Israel

As New York Mayor Michael Bloomberg's ban on smoking in restaurants and bars marches toward its one-year anniversary, local bars continue to suffer from dwindling sales and vacant barstools. Although bar regulars can now return home without burning, red eyes and smoky clothes, customers to bartenders to owners are complaining about the changes--not only in profit but also in ambience and convenience--that the ban has caused.

"The atmosphere is very different," Lee Seinfeld, the owner of three Upper West Side bars, said. "My cocktail hour is devastated. I don't have the same old faces that I used to have for hours."

According to a November 2004 survey by the New York State Restaurant Association-Greater NYC Chapters, bar sales have dropped an average of 22.7 percent in the city, and an average of 1.8 employees per bar have been laid off as a result of the ban.

An earlier survey--which caused the NYSRA to back the smoking ban--reported that of the 450 members who responded to the survey, 300 were in favor of the ban. But according to Seinfeld, these results were convoluted.

"They didn't ask are you in favor of the smoking ban. They asked would you back a smoking ban if it were statewide versus county by county. Of course most people wanted a level playing field," Seinfeld said. "It's very involved--they really cheated."

In 2002, another NYSRA survey stated that 65 percent of bar and restaurant owners did not want the ban.

The drop in sales for many Morningside Heights bars has mirrored, and even exceeded, the city average. At Nacho's Kitchen, sales are down 10 percent; at Seinfeld's Dive Bar on 101st Street and Broadway, sales are down 35 percent; and at 1020, sales are down 25 percent but are getting better.

Even at West End Bar, where, according to owner Jeff Spiegel, sales have not been hurt by the new law, complaints surrounding the ban have arisen. Manager Victoria Al-Din, CC '03, said that the smoking ban has caused crowds of smokers to convene outside of the bar. Their noise draws police attention, forcing the West End to apply even more stringent standards to checking IDs at the door and to the maintenance of the smoking law.

"They [the police] are using the smoking ban as an excuse to check for underage drinking. They want to ID everyone," Al-Din said.

Another problem lies in bar-goers' tendency "to want to drink and smoke at the same time," Al-Din said. According to Al-Din, smokers try to bring their drinks outside with them while they smoke, which puts the West End Bar in danger of incurring serious fines. She also noted that a great deal of the West End's staff smokes, making them unhappy about the ban as well.

"Sometimes the bartender will have to leave the bar unattended to go out and smoke a cigarette. Someone could easily just come behind the counter and steal drinks or the tip jar," Al-Din said.

Nacho's Kitchen owner Joseph Aguilaur is upset by the less lively atmosphere in his bar that has resulted from the ban.

"There is less socializing," Aguilaur said. "You'd rather go to places where you can dance and have the space to smoke."

Customers who smoke are equally displeased with the new rule.

"All my regulars that are in here seven days a week--they're all going home," Seinfeld said.

Fernando Martinez, CC '04, said, "I despise [the ban]. I just hate it." Despite his displeasure, Martinez continues to patronize many of the local bars.

Tim Monaghan, a bartender at 1020, finds that customers like Martinez return because "the students ... want to party anyway, so that hasn't been all that affected."

At 1020, the fall in sales is most prevalent between the hours of 4 and 11 p.m. After 11--when most students hit the bars--business picks up.

But some people--primarily those who do not smoke--have praised the ban.

At The Heights, bar sales have gone unchanged.

"It's even better without the smoke," Heights general manager Kevin Lydon said. "People complain all the time, but that doesn't mean they're not going to drink."

Many local bar patrons commented that going outside to smoke has fostered a new sense of community among smokers.

"In a sense, it's definitely a good conversation starter," David Papiasvili, CC '07, said.

"The smokers bond," Martinez said. "It's like freshman year in Carman."

Opinions on whether the ban has actually curbed New Yorkers' smoking habits are less positive.

"My friends do smoke just as much, though maybe not quite as much when they're in a bar," Papiasvili said.

"Are people going to stop drinking if Bloomberg closes the bar earlier?" Al-Din asked. "No. People don't stop smoking because there's no smoking in bars. People don't even stop smoking from the threat of cancer."

Oswego Daily News - February 20, 2004
        Bar Owners Urged To Share Smoking Ban Concerns With County, State Lawmakers
        By Steve Yablonski

Several tavern owners gathered Thursday at Rose Anthony's tavern in Granby Center air their concerns about the Clean Indoor Air Act which has prohibited smoking in almost every public area.

Nearly a dozen area tavern owners attended. They were joined by four county legislators, Doug Malone, Clayton Brewer, Mike French and Fran Hoefer.

The owners are concerned because they have been losing business since the new law which prohibits smoking in their business started last summer.

"They've got to let us choose. It's our lives, our business that they're destroying," Anthony said. "I pay my taxes, and for what? So they can use the money to put me out of business?"

There should be smoking and non-smoking bars, several of the owners suggested.

That way, if someone walked into a smoking establishment and didn't like it all they had to do was turn around and walk right back out, they said.

Craig Malcott, of Boog's Tavern in Fairdale, said he got a warning from the county health department and could face up to $1,000 in fines because there were ashtrays at his bar and someone was allegedly smoking during a recent inspection.

Bar owners can apply for waivers to the smoking ban if they can fulfill certain requirements.

"They have to allow us to be a smoking bar or a non-smoking bar. I don't have enough room to add on (a separate area for smoking)," Anthony pointed out. "I'm not spending $25 to apply for a waiver just to be turned down."

Businesses all over the state are having the same problem, Ed Williamson, a member of the grassroots group Citizens for True and Honest Government, said.

He advised the bar owners to get together with their counterparts in neighboring counties as well as their legislators and go to Albany.

"You will get somewhere if you go down in numbers. If you send a petition or a letter it goes right in the basket," he said.  "Politicians have a real fear when they see a large number of people coming out against something. Big numbers are a real attention getter."

"We've got to stick together," Anthony agreed.

Legislator Hoefer volunteered to go to a bar and light up a cigarette and be arrested to fight for the bar owners' rights, he said.

Joe Mancino, of Fulton Ale House, pointed out that Hoefer probably wouldn't be arrested; the bar owner would be fined instead.

He compared it to if someone is caught speeding in a friend's car and the person who owned the vehicle was ticketed and not the driver.

"We're not pushing smoking," Legislator French said. "We're here to support you."

Legislator Malone urged the bar owners to attend the county meetings and speak to the entire legislature about their concerns. He also told them to write letters and call their state representatives.

"Flood 'em," he said "If everybody does it, they're going to pay attention. They might not do anything, but you'll get their attention and they'll be thinking about all this when it's re-election time."

Hoefer suggested a large rally. "Make some noise, raise hell," he suggested.

Malcott is one of the few bar owners who has submitted an application to the county for a waiver to the smoking ban. He doesn't think it will be accepted, however.

"I filled it out to the best of my ability and put down a few things about what this is all about and how much I'm losing," he said.

He said besides spending about $5,000 installing several windows that can be opened for additional ventilation he also put in a "smoke eater" to draw the smoke out of his business.

"They'll still turn me down. I wrote things in there about people going out to smoke and trashing my parking lot," he said. "I had one person flick the cigarette butt right at the bartender when he told him to put it out."

People, sometimes three or four at a time, have gone into his bathrooms to sneak a cigarette or two and plugged up his sink and toilets with the butts, Malcott continued.

"Bartenders can't be baby-sitters. They can't walk around and check everyone everywhere all the time," he said.

The new law has put a strain on some of his friendships, he noted.

"They're irritated at me because they can't smoke," he said.

Mancino says a lot of customers come to his business to have steak dinners. Some used to come and have a few drinks and a cigarette before their dinner.

They don't do that any more.

"My business is way down since this new law started," he said. "I've lost a lot of business."

He said that he is down around $16,000 on the Quick Draw lottery game.

That's money the state is missing out on, he noted, because people aren't coming to the bars because of the smoking ban.

"You add that all together around the state, and that's an awful lot of revenue the state is missing out on and it's directly related to the smoking ban," he pointed out.

While he says he agrees with the principle of the law, he thinks the state has gone too far.

"Where is it all going to end?" he said. "What's next that they're going to tell us we can't do and say they're doing it for our health?"

News 10 Now - February 20, 2004
        Smoking waiver granted

Members of the Eastwood American Legion in Onondaga County no longer have to stand outside for a smoke.

Thursday the post was granted a smoking waiver. The Legion proved to a county board that it has suffered serious financial loss since the smoking ban went into effect July 24th.

The Eastwood Post is the first private club and veteran's organization in Onondaga County to receive a waiver.

The waiver includes both the bar and bingo hall. Smokers will be restricted to an isolated indoor area.

News 10 Now - February 20, 2004
        Smoking ban may be hurting lotto sales
        By Al Nall

Many Oswego County bar owners are blaming the smoking ban for a significant drop in business.

In a strange twist of the fate, some of those owners say the ban may be hurting the state more than it's hurting them.

Joe Mancino owns the Fulton Ale House. He says that since the smoking ban took effect, his business is down 25%. While that may not sound like anything new, Mancino says the money he collects for the state's Quick Draw game is down as well.

He says that people used to, "come, sit down, relax have a drink, play some Quick Draw. You can shoot a cannon through that time of night now, those people are not here," Joe Mancino, owner of Fulton Ale House said.

The Lottery runs Quick Draw games in bars and restaurants throughout the state. If owners don't do as much business, neither does the lottery. There is a similar story at Buoy's Dockside in Brewerton.

"Overall we're down over 30%, if we're talking Quick Draw alone I'm down 55% percent for the 3rd and 4th quarters of this year," said Jim Griffin, owner of Buoy's Dockside.

That contrasts with records that show less of a decline for sales in Oswego County. Lottery records show only a $20,000, or a 6% loss for last month. But Griffin says there is a reason for that as well.

“There's kind of a secret to it. We found out that they used to do a draw every five minutes and they lowered it to every four minutes so they could generate more revenue from that,” Griffin said.

Lottery officials confirm they now have 197 drawings per day which is up from 158. Since the totals sales are still on a decline, owners say the state will need to make up the money somewhere. They hope it comes from removing the ban.

Buffalo News - February 20, 2004
        Higher fees sought for waivers from smoking ban
        Review process costs $500 to $600
        By Sandra Tan

County Health Department administrators want to increase fees for restaurants, bars and other businesses applying for a smoking ban waiver.

Thursday, they told county legislators that it costs $500 to $600 for every waiver application they review, and the $98 application fee that businesses pay now doesn't go far enough to cover those costs.

A number of legislators were far from eager to approve fee increases. Several Democrats said they were upset to hear that the county was charging even $98.

Health Commissioner Dr. Anthony J. Billittier IV asked the Legislature on Thursday for immediate consideration and approval of a sliding fee scale that would charge restaurants and other businesses between $98 and $188 for a full Health Department review of any application likely to be granted a waiver.

This would be on top of the initial, nonrefundable $98 fee, and would apply only to businesses whose applications are not immediately rejected by the Health Department.

"No matter how you slice it, this is additional work," Billittier said. "That $98 does not cover our true costs."

Legislature Chairman George A. Holt Jr., D-Buffalo, said he was "shocked" and "stunned" to read about the $98 fee in a newspaper article, because the Legislature typically must approve new county fees.

"We need to be informed," he said. "We all have businesses confronting this issue."

Billittier said the fee was clearly listed in the waiver application criteria that had been previously submitted to the Legislature. He also said the $98 was a "generic fee" that the Legislature had allowed the Health Department to apply in instances like this years ago.

He called the smoking ban an unfunded mandate from the state because it makes the county's Health Department responsible for enforcing the ban and reviewing waiver applications.

The county's recently established waiver criteria require proof from businesses and social clubs that the ban has caused undue financial hardship, including at least a 15 percent decline in sales tax receipts caused solely by the smoking ban.

Only a handful of establishments have submitted waiver applications.

Jimmy Mac's Restaurant on Elmwood Avenue was the first to have its application reviewed after restaurant owner Rick Naylon challenged the county in court for the development of waiver criteria.

The Health Department rejected the application earlier this month. Naylon is challenging the department's decision in court. A hearing is scheduled next week.

Billittier's request to increase application fees for a smoking ban waiver was referred to the Human Services Committee.

News 10 Now - February 19, 2004
        Oswego County bar owners rally against smoking ban
        By Sarah Sevier

Outraged bar and restaurant owners in Oswego County are mobilizing against the smoking ban.

They met Thursday to create a plan of action to force the Health Department and State legislators to loosen up smoking laws.

Owners of taverns that are only comprised of one room say the smoking ban's brutal on bigger bars, but will absolutely destroy them.

“In order to get a waiver they say we have to have a separate room for people to go in. If we've only got one room, where are you gonna put it? They say add on. I own very little property where my establishment is,” said Fran Buske, owner, Fran’s Riverfront.

Buske says her only option is to enclose her patio, which would cost her twenty thousand to thirty thousand dollars - money she says she doesn't have.

Rosie Anthony, who owns Rosie's Tavern, believes the ban is discriminatory.

“The Indian Casino, they can smoke...and all the American people going in there. They're talking about the employees’ health. They say the Indian's have their rights. What about my rights? I pay taxes,” she said.

When the ban first started, Rosie built a patio for her smoking customers. She says it took around two thousand dollars and a large portion of her parking lot. Now that the weather's cold, she says she's lost those customers along with a wealth of money.

Some County Legislators are in agreement and say they'll light up in a bar whether it's illegal or not.

"This is about freedom. It's time for us to stand up for our freedom and I'm telling you one thing, I'm willing to be arrested to protest this thing. I think it is very, very wrong, it's not what America's about,” said Fran Hoefer.

Supporters of striking down the ban created an activist group called Citizens for True and Honest Government.

They'll start taking members next week.

The Oswego County Health Department says they chose to adopt the guidelines laid out by the state.

They have not approved any smoking waivers yet.

Buffalo News - February 18, 2004
        Smoked out?
        Erie County has one of the state's toughest, most heavily enforced bans on smoking,
        and some bar owners say it's a death knell for their business
        By Gene Warner

The state's smoking ban is tough. No doubt about it.

It's especially tough in Erie County, which is earning a reputation around the state as one of the toughest communities for smokers. The reason in part is because the county Health Department adopted waiver guidelines so rigid that only two businesses have applied.

Jimmy Mac's is one of the two, and its bid was denied Feb. 6.

The popular Elmwood Avenue watering hole and restaurant has become the poster child in the local battle over the state's smoking ban.

For years, Jimmy Mac's has thrived on the Elmwood strip - as a magnet for government officials, power brokers and the Delaware District crowd to mingle over a few drinks after work, often deep into the evening.

But now owner Rick Naylon says Jimmy Mac's future is threatened by the state's Clean Indoor Air Act, better known as the state's smoking ban.

"Am I going to go out of business?" Naylon asked. "I hope not, but I'm not going to run the business indefinitely losing (almost) $10,000 a month."

After recording profits of close to $10,000 a month in the first seven months last year, Jimmy Mac's now is losing about $300 per day, Naylon claims. That adds up to more than $50,000 in losses since the law took effect last July.

Statewide, Erie County has long had a reputation as an unfriendly place for smoking in public. It enacted initial restrictions before the state's first 1989 law, and toughened them even more in the mid-1990s.

Today, health groups are distributing Erie County's tough waiver process to other counties as a model for developing their own standards under the new indoor-air law.

"The Erie County standards are state of the art," said Russell Sciandra, director of the Center for a Tobacco Free New York.

He cited the amount of financial documentation businesses must submit to persuade officials to grant a waiver as well as creation of marketing plans to show how the business will eventually go smoke-free.

Billittier doesn't relish task

Who's largely responsible for Erie County's tough waiver guidelines?

Dr. Anthony J. Billittier IV, the county health commissioner, who's been forced to create the county's guidelines for granting the waivers.

The state's smoking ban allows counties to grant waivers, which basically would permit a business facing an "undue financial hardship" from the ban to set up a separate smoking area. But the waiver guidelines have been left to each county's Health Department. Billittier refused to comment for this story, based on the advice of county attorneys who cited pending legal action by Jimmy Mac's.

But Billittier is a medical doctor, a public official entrusted with reducing health risks for county residents. He's not an economic development official charged with saving jobs and businesses.

And it's clear that Billittier doesn't relish his role, setting the waiver criteria and ruling on waiver requests. Health commissioners across the state have grumbled that lawmakers passed this law, then failed to provide any guidelines for granting waivers, leaving that task to state and county health officials.

"This ban was dumped on health departments with little guidance," Billittier said late last month, when he released the county criteria. "We were asked to do the impossible, to decide on a level of financial hardship that was worth compromising the health of employees and customers in a business."

Unfair playing field alleged

The toughness of Erie County's waiver standards is playing into part of the bar owners' legal strategy. The group has a pending federal lawsuit trying to overturn the smoking law. They're expected to argue that application of the law will vary by county - thereby creating an unfair playing field for bars, restaurants and other businesses.

Beyond the legal strategy, the bar owners' group has been leading the way in Albany to amend the law - or weaken it, as health advocates term it. The group also vows to make the smoking law an election issue this year, to use against lawmakers who backed the ban.

"We are going to be reporting on who was helpful to us and who was not," said Scott Wexler, executive director of the Empire State Restaurant and Tavern Association.

The number of waivers to the indoor-air law issued so far statewide is 24, according to the state Health Department.

Health officials in Allegany and Tioga counties have decided not to grant any waivers, while Onondaga County already has granted at least four to local bars. Chautauqua County has granted seven waivers, but only for 90 days each.

The waiver process varies greatly across the state, and bar owners aren't the only ones complaining.

"It's a state law. The state ought to be reviewing the waiver applications, so it can be consistent across the state," said Thomas Hull, deputy public health director in Allegany County. "This doesn't give the bars across the state a level playing field."

Critics of Erie County's tough waiver guidelines have pointed out that Billittier was appointed to his job by County Executive Joel A. Giambra, a cancer survivor who has appeared in anti-smoking ads.

"Difficult, if not impossible'

But top aides to Giambra insist that he has had absolutely no role in Erie County's guidelines.

"This is not something the county executive's office was ever involved in, because we cannot promulgate regulations," said Bruce L. Fisher, Giambra's chief of staff. "There was no interference from this office. It would be inappropriate. It also would be stupid."

Erie County's criteria seem strict, especially compared to the state guidelines that apply to 21 counties without health departments.

"I believe the county Health Department guidelines make it very difficult, if not impossible, for a business to get a waiver," said County Legislator Charles M. Swanick, R-Kenmore, who held public hearings on the issue. "Businesses aren't applying because they can't meet the standards and can't afford to make the (structural) changes."

Andy Pozantides, owner of the two St. James sports bars in the Town of Tonawanda, won't be applying for a waiver. He thinks the application asks for too much detailed financial information. And even if he got a waiver, he'd have to create a separate smoking room that he couldn't afford to build.

"They do not want to grant waivers," he said of county officials. "Has anyone gotten one? I don't think anyone's going to get one, except for a family restaurant maybe that already has a smoking room."

Here's how the county and state guidelines compare:

 The county guidelines require proof of a financial hardship, as demonstrated by a drop in sales tax receipts of at least 15 percent.

That's in line with the state guidelines, but the application for a county waiver requires pages of detailed financial documents to prove that the reduction was caused solely by the smoking ban.

"It's a joke," Pozantides said of all the required financial data. "Is it an audit or a waiver?"

 A state waiver can last for two years. The Erie County maximum is one year.

 Any establishment granted a waiver from Erie County must have a dedicated smoking room separated from nonsmoking areas by floor-to-ceiling walls, with no employees even allowed in that room.

The room also must have self-closing doors, equipped with an alarm activated whenever the door remains open for more than 60 seconds.

"They're talking about second-hand smoke like it's a nuclear bomb," Naylon said.

The county Health Department determined that Jimmy Mac's didn't meet its guidelines for being granted a waiver.

Beverage dollars are down

Jimmy Mac's year-to-year food and beverage revenue declined only slightly, Naylon said, well short of the 15 percent county threshold. But Naylon pointed out that that's largely because his menu prices have risen between 15 and 20 percent in the last year, due to rising costs and an attempt to build some profit into his food sales.

The business model for Jimmy Mac's seeks to break even on food and make a decent profit in the bar business. Historically, revenue for food makes up no more than 55 percent of the bar-restaurant's total take.

Food now makes up 63 percent of the revenue.

"We're doing the same food dollars, but our beverage dollars are down," Naylon said. "Our bar trade is down about $4,000 a week."

"You don't have to be a student of higher mathematics to understand how much money is bleeding out of this place," Naylon said.

In the first seven months last year, Jimmy Mac's recorded between $60,000 and $70,000 in profits, enabling it to pay its bills on time, pay off some debt and provide a decent living.

Then came the smoking ban, which took effect last July 24. It was summer, and the chronic smokers among Jimmy Mac's bar crowd had no trouble heading outside for a cigarette. So Naylon saw little dropoff in his bar business the first few weeks.

"By the first of September, my regular drinking customers, one by one, figured out where they could go to smoke (illegally)," he said.

Like many other bar owners, Naylon longs for at least a level playing field, but he estimated that up to 80 or 85 percent of the local bars are cheating in some way on the smoking ban.

"I know of three places that have already set up buzzer systems: "Oh, it's Bill Smith. Come on in,' " he said.

"It's like speakeasies, but now they call them smokeasies."

"Slowly bleeding to death'

Naylon is continuing his legal battle against Erie County, for some relief from the smoking ban. But no matter how he crunches the numbers, he sees plenty of red ink.

"I'm going to do everything I can not to go out of business, but I'm running the business out of my savings," Naylon said. "I'm slowly bleeding to death."

Buffalo News - February 18, 2004
        Panel OKs bar's request for waiver from smoking ban
        By Thomas J. Prohaska

LOCKPORT - One of five applications for waivers from the state public smoking ban was approved Tuesday by a Niagara County Board of Health committee.

Foley's Tavern on Buffalo Avenue in Niagara Falls proved its business has fallen by at least 10 percent since the ban took effect in July. It also submitted plans for a separate smoking room.

The full board will vote on the waiver Feb. 26, and may also vote on a waiver for bingo games at North Tonawanda's Rescue Fire Company.

The board's Legislative Committee leaned toward approving the fire company's application, but members said the financial records weren't detailed enough, although they appeared to show a steep decline in receipts. The application was to be returned for more data.

The fire company proposed using an existing lounge as a separate smoking area for bingo. Health Department officials will inspect it to confirm the ventilation system is separate from the rest of the hall.

Two other applications, from Spanky's Bar in Middleport and the Diamond in Lockport, were too incomplete for the committee to decide, committee members said.

The panel turned down an application from Calhoon's Pub in Newfane, which did not offer plans for a separate smoking room.

The waiver criteria approved by the Board of Health last month requires a separate smoking room with its own ventilation system to the outdoors. No employees would be allowed to work in the room and no drinks or prepared food could be served.

The Calhoon's application envisioned improving the ventilation system in the bar. That doesn't qualify, according to the committee.

"I don't think filtration or ventilation is something that meets the law," said Barbara A. Brewer, a Lockport engineer who is chairwoman of the committee. "It's either a separate room or it isn't there."

But Brewer also said she believes the board needs to loosen its criteria, especially in the case of one-room bars. "We've roadblocked ourselves," she said.

Lockport veterinarian Dr. Steven Lewis said Calhoon's was "trying to make the whole bar into a smoking area."

North Tonawanda pharmacist John Gotowko said, "He could have a partition. There's no reason why he couldn't."

Calhoon's application complained that its business fell by 14.5 percent even before the establishment started complying with the law in mid-November.

The application admitted that Calhoon's didn't prevent smoking until it was fined for noncompliance.

Lewis said bars change hands often and frequently come and go. "I do not feel it is the function of the Niagara County Board of Health to keep failing businesses in business," Lewis said.

The Leader - February 18, 2004
        Legion's smoking waiver revoked
        By Derrick Ek

HORSEHEADS | The Bentley-Trumble American Legion Post, one of nine establishments in Chemung County that was exempt from the statewide smoking ban, had its waiver revoked Tuesday.

The Legion Post, on Old Ithaca Road, was granted a waiver by the Chemung County Department of Health last week because of "undue financial hardship due to capital expenditures." The building, built just a couple of years ago, had an expensive ventilation system installed that was supposed to keep the air smoke-free.

However, when Thomas G. Kump, the county's director of Environmental Health, stopped by Sunday night during bingo, he found the ventilation system inadequate, and notified the Legion Tuesday morning its waiver had been revoked.

"It wasn't like a cloud of smoke in the room, but certainly the first thing you noticed when you walked in the door was the smoke, which you wouldn't have smelled prior to the issuance of the waiver," Kump said Tuesday. "As you proceeded into the bingo area, a few people commented, 'It's not as bad as it's been in the past.' But it was certainly evident throughout, and it certainly did not meet the intent of the waiver or the law.

"Prior to the law being in effect, some bingo halls had a blue haze floating in the air over everyone, regardless of where people where smoking.

That wasn't the case here," Kump added. "There wasn't a large amount of visible smoke, the type that would burn your eyes and just hang there. But certainly, smoke was evident right as you entered the room."

Lou Schmeiske, the Legion Post's commander, said the presence of smoke was more noticeable because the building had been smoke-free since the smoking ban went into effect in July.

"If there's just the least little tinge in the air, it's going to show up," Schmeiske said.

The Legion Post won't be allowed to apply for another waiver unless changes are made to the building's ventilation system, Kump said.

"The original unit, I think, was $80,000, plus all the piping and stuff. It was quite an expense," Schmeiske said. "It was built to exhaust the smoke, but it was not built to ... well, it was built to exhaust the smoke. To make sure that nobody was irritated. They changed the rules, I guess."

Schmeiske said the post hadn't yet decided how to react to the Health Department's decision.

"I don't know what direction we're going to take at the present time, but we're certainly going to pursue it," he said.

A handful of Chemung County businesses have been issued waivers, including MT Picture Display Devices (formerly Toshiba) in Horseheads; Blondie's Tavern and The Old Heights Tavern in Elmira Heights; the Elmira Heights American Legion; Gerber's Grill and Angles dance club in Elmira; and the Tiny Tavern in Southport.

The Bentley-Trumble Legion Post was an unusual situation, Kump said.

"This was the only place that had a waiver where there wasn't an actual separate, enclosed room with a separate ventilation system, so this was kind of a test study," Kump said. "Based on the paperwork that I saw, I felt obligated to give them an opportunity to prove me wrong, and they weren't able to do that. I guess I've felt all along, as I looked at these applications, that I doubt the ability of a filtration system alone to be able to remove secondhand smoke satisfactorily."

Claire Prospisil, a spokeswoman for the New York State Department of Health, said she was unaware of any other waivers being revoked in the state.

However, the state only enforces the smoking ban in the 21 counties that don't have a local health department, such as Steuben County. No waivers have been issued as of yet in Steuben County, Prospisil said.

There have been just 24 waivers issued by the state so far in the 21 counties under its watch.

Suffolk Life - February 18, 2004
        Conservatives Want Smoking Ban Amended
        By Erin Carpenter

Although New York State officially adopted the much-talked-about smoking ban in March of last year, it is still drawing attention from the Conservative Party of New York State. In a recent statement, Conservatives announced that they are calling on state legislators to amend what they are describing as the "draconian smoking ban."

Conservative Party Chairman Michael R. Long has been cited as the person responsible for calling on all 212 legislators to consider amending the ban. A memo was sent out to each legislator from the Conservative Party outlining their desire to see the ban amended.

"We are certain that you are aware that we have spearheaded the movement to amend the draconian smoking ban by distributing over 300,000 postcards and petitions and we receive daily requests for more," the memo reads. "Clearly there is a need to amend this law before any more businesses are forced to close."

In September, following a statewide survey conducted by the Conservative Party, Long stated, "New Yorkers feel burned by the state Legislature's extreme smoking ban and strongly oppose Albany's inflexible new restrictions. It's time to listen to the voters and add a little common sense to the law."

According to the results of the statewide voter poll, Long commented that the independent survey shows two out of three voters would "change the sweeping new smoking prohibition and allow for some reasonable accommodation for smokers.

"The Legislature just went too far," said Long. "Voters wisely know we can find a workable way to handle smoking without big government crushing everybody's freedom of choice. Even non-smokers are offended by the Legislature's extreme methods."
The memo also noted that New York State Assemblyman Peter J. Abbate, Jr. (D-Brooklyn) has introduced a bill that "seeks to provide a limited exception to the ban in restaurants and bars." Additionally, the memo points out that Assemblyman Howard Mills (R-Hamptonburgh) "has introduced a bill that would allow bars to purchase a 'smoking' license for bars.

"These bills are not moving and businesses are still closing," the memo continued. "We are not advocates of smoking, rather we are advocates of justice. The justice of allowing a business, which pays taxes and employs people, to conduct its business as it chooses to with legal substances. Tobacco is still a legal substance in New York State."

"We urge you to reconsider this draconian law now," the memo said in closing. "We urge you to listen to your taxpaying constituents who own small businesses and those who responded to our survey. Sixty-seven percent of voters across New York support amending the harsh new prohibition to allow some carefully structured form of limited smoking in restaurants, bars, lounges and bingo halls. Only 27.7% of non-smokers support [the ban]. We urge you to listen while you can before there is no one left to hear and the lights are all out."

Sentinel Online - February 17, 2004
        County approves two more smoke law waivers

The county has approved a Utica sports bar and a New York Mills veterans club for smoking ban waivers, while rejecting a Utica steakhouse's application.

Approved most recently were Belview Sports Bar, 1407 Bleeker St. in Utica; and Whitestown Overseas Vets, 21 Garden St. in New York Mills.

Rejected was 257 Steakhouse and Saloon, 257 Genesee St. in Utica.

The newest round of applications was processed by county Health Director Eric W. Faisst. Sought were an exemption from the state Clean Indoor Air Act that bans smoking in most public places. The health director has the final say on waiver requests after they have been reviewed by the department's environmental health unit. The guidelines allow for applicants to appeal denials.

In Rome, the county has approved waivers for King Pin Lanes, 7157 E. Dominick St.; and Henry P. Smith Post, American Legion, 325 Erie Blvd. W.

Faisst has denied Rome applications for Rhine Haus II, 513 W. Dominick St.; and Sammy G's, 417 W. Dominick St.

Applications from Rome businesses still pending are: Karen's, 301 Adams St.; and Walt's Bar, 425 S. James St.

There are 25 applications awaiting a decision.

WIVB TV 4 - February 17, 2004

(Alabama, NY) - - Onto Genesee County where smokers can once again light up at a Bingo Halls.

Bingo was packed last night at the Alabama Volunteer Fire Hall. The Department applied for and was granted a waiver from the State's Indoor Smoking Ban due to the Economic Hardship it caused.

Bingo revenue accounts for 15% of the Fire Department's Budget. Without it, Firemen say they'd have to cut services.

Associated Press - February 14, 2004
        Veterans complain of ban on smoking in VFW halls
        By Michael Gormley

ALBANY -- Veterans are complaining that their Lucky Strikes went to war, but they can't accompany them to veterans halls in New York under a smoking ban they hope to change.

World War II and Korean War veteran Al Carpenter sees an irony in government banning smoking in veterans hall for those who may have started the habit because of free cigarettes distributed through the armed forces in the 1940s and 1950s.

"They were given to us in the military by, I'm sure, the tobacco industry and they were small boxes of various types, Lucky Strikes, Camels, Chesterfields," recalled Carpenter of the American Legion's New York state headquarters.

Carpenter said that since the state's indoor smoking ban began seven months ago several American Legion posts statewide have pushed for an exemption to the law.

"We've had several American Legion posts who have sent documents into our legislative chairman citing the effect it's had financially," Carpenter said. "Some of it has been rather damaging."

The American Legion is preparing a resolution for the Legislature, proposing that it be considered a private club exempt from the law. Carpenter said the Legion wants each post to vote whether to be smoke-free.

The law allows veterans halls to permit smoking if all workers are volunteers. However, if workers are hired the halls must ban indoor smoking.

Local health departments have reported most businesses are complying with the ban, although many bar and restaurant owners say they have lost business. Some are seeking waivers under the law, which are allowed if a business can prove substantial business loss because of the ban.

New York's smoking law went into effect July 24, prohibiting smoking in workplaces including bars, restaurants and nightclubs, as well as off-track betting parlors, bowling alleys and company cars.

"The law is intended to protect employees, workers; and it says if they are paying people to work there, then those people deserve protection just like anybody else," said Russell Sciandra of the Center for a Tobacco Free New York.

"Why do people who work behind a bar at the VFW deserve less protection than bankers and lawyers?" Sciandra said.

He said similar efforts are under way to exempt bingo halls and bowling alleys.

"It's all about creating a bunch of second-class citizens that don't get the protection everyone else has," Sciandra said. "It's just not fair."

Assemblyman Dan Hooker, a Marine Corps Reserves officer, is among 45 mostly Republican members of the Assembly controlled by Democrats who supports the petition to change the law.

"I can't help but think of the irony of the situation where a soldier or Marine comes home from the war, goes into a local VFW for a beer and a cigarette, and the bartender says, 'I'm sorry, young man, while you were overseas fighting for freedom, your state Assembly was quietly legislating it away here at home."

Pataki spokesman Rob Kenny said any change in the law beyond the current provisions would have to be reviewed by the state Health Department.

A spokesman for Senate Majority Leader Joseph Bruno, a key to the smoking law, didn't immediately respond to a request for comment.

NY Press - February 13, 2004
        Doctoring the Numbers

In the second paragraph of the press release that accompanied the Dept. of Health’s latest Summary of Vital Statistics, there’s an odd little aside. After DOH Commissioner Thomas Frieden crows that the number of deaths in the city (59,651) was the lowest since 1986, and after detailing a few other cold, hard facts, he tosses out this non sequitur:

"Nearly one out of every six New Yorkers who died was killed by tobacco."

Excuse us? From what part of his ass did he pull that, exactly, and why?

Maybe it was just a slip, we thought, and kept reading. Further down the page, we learned that 5,000 of the 18,000 New Yorkers under the age of 65 who died had succumbed to some form of cancer. One thousand of those had died of lung cancer. And suddenly, there it is again: "80-90 percent of lung cancer is the result of tobacco use."

What?! There’s not a peep about AIDS prevention, nary a word about how diet and exercise can help lower the risk of heart disease and other forms of cancer, nothing at all about how most gunshot deaths were the direct result of firearms.

Nor is there anything about how asbestos, air pollution and other environmental factors can contribute to lung cancer. Yet there in the midst of all the numbers and statistical breakdowns is that damned cigarette bugaboo.

Numbers are one thing. How those numbers are interpreted and skewed is another. In this case, we’re given crass, brownnosing politics, intended to feed and justify one mayor’s personal hysteria.

Business First of Buffalo - February 12, 2004
        Smoking allowances sought for some bingo halls
        By James Fink

Two state lawmakers are seeking exemptions from the 2003 Clean Indoor Air Act for certain bingo halls.

State Sen. Byron Brown and Assemblyman Brian Higgins have introduced legislation that would exclude smoking bans in any bingo facility run by a membership association and whose actual operations are manned by volunteers. The legislation would also allow smoking in bingo halls that offer completely separate smoking and non-smoking areas, with completely separate entrances and exits.

The pair presented the legislation during a Thursday afternoon press conference.

Brown said since the controversial clean air act became law last summer, it has negatively impacted a number of bars, restaurants and bingo operators within his district, which covers portions of Erie and Niagara counties, including Buffalo and Niagara Falls.

"This legislation comes from direct conversations I have had with bingo operators and I feel it will still maintain the spirit of the original legislation," Brown said.

Higgins agreed.

"While I was a supporter of the original clean air legislation last year, I always believed that it would require subtle amendments to ensure smooth implementation," he said.

News 10 Now - February 11, 2004
        Tompkins County businesses cited for smoking violations

Two businesses in Tompkins County have been cited for breaking New York State's no smoking laws.

They are the first businesses in Tompkins County to be cited since the law was implemented.

Health Department officials say they received more than three complaints about smoking in the Bowl-O-Drome in Ithaca and Bar Angus in Ulysses.

When they followed up on the complaints, officials say they did see people smoking inside both places.

The businesses got the citations for failing to sign stipulation agreements and for refusing to attend meetings with health officials to talk about their alleged violations of the smoking ban.

Caryl Arsenault, President of the local chapter of the Empire State Restaurant and Tavern Association said the Health Department is catching violators by acting like undercover sting operators.

She said they're just as responsible as owners for making sure the Clean Indoor Air Act is followed.

"According to the State law it is up to the Health Department to enforce that law so why didn't the Health Department go up to those people who were smoking and tell them to put their cigarettes out?”

The owners of the Bowl-O-Drome and Bar Angus are scheduled to go before a hearing officer next week.

If they are found guilty, the owners could have to pay fines of up to two thousand dollars per violation.

The Tompkins County Board of Health is currently waiting for a draft form of a waiver that would allow smoking in certain businesses.

Buffalo News - February 11, 2004
        Bid to Collect Taxes From Senecas Halted
        By Thomas Precious

ALBANY - The state Tax Department is suspending indefinitely the government's efforts to collect taxes on sales of cigarettes and gasoline on Indian reservations to non-Indian consumers.

Gov. George E. Pataki last month said he would ask the Legislature for permission to delay the tax collection for a year while he negotiates side deals with Indian tribes.

But State Tax Commissioner Andrew Eristoff said Tuesday that his agency does not intend to collect the tax. Collections were supposed to start next month.

The Legislature last year ordered the agency to devise regulations to stop the flow of what lawmakers say are costly and illegal tax avoidance schemes by Indian tribes taking advantage of New York's high cigarette taxes.

Non-Indian retailers condemned the move by the tax chief, while officials with the Senecas, considered among the nation's top Indian cigarette sellers, said the tribe's multimillion-dollar ad campaign against the tax may have persuaded Albany to back down.

But in a rare display of division within the Pataki administration, the governor's economic development director said the state needs to provide a level playing field for small businesses to compete with Indian retailers.

Eristoff recalled the violence along the Thruway in 1997, the last time the state tried to enforce the tax rules. He acknowledged that the threat of violence by some Indians contributed to his decision to stop the collection efforts.

Trying to work something out makes most sense for the state, Eristoff told reporters after he testified before Senate and Assembly committees on the governor's 2004 state budget plan.

"I think it would give anyone pause before taking action," Eristoff said of the violence in 1997.

"We feel this has been an extremely complicated process. We have endeavored to strike a reasonable balance between the Legislature's intent and the need to respect Indian sovereignty," he said.

Assembly Speaker Sheldon Silver, D-Manhattan, has said he is willing to give Pataki time to negotiate deals with Indians.

A spokesman for Senate Majority Leader Joseph L. Bruno, R-Brunswick, said Tuesday the issue will be discussed in state budget talks.

Charles Gargano, the state's economic development chief, said, "I can't speak for the Department of Taxation, but I do believe there should be level competition at all times to protect our small businesses."

He added that the state needs to look out for small businesses and that he would not support any unfair competition.

Tax officials said Tuesday that New York tribes account for more than 50 percent of Internet cigarette sales in the nation. One official estimated that some Seneca retailers export 85 percent of their cigarettes out of state.

The agency estimates 28 million cartons of cigarettes were sold by wholesalers to Indian nations in New York, with much of that going to Seneca retailers.

Non-Indian retailers and legislators say the state is losing at least $400 million in excise taxes - $15 on a carton of cigarettes - by not collecting on Indian sales of cartons. But tax officials say the number is closer to $40 million because much of the Indian cigarettes are sold beyond the state's borders.

Critics dispute that, and say the agency is not taking into account lost sales of cigarettes Indians purchase from sources outside those monitored by state tax officials.

Non-Indian retail groups said the tax department's decision Tuesday is illegal.

The leader of the New York Association of Convenience Stores noted that Pataki last month asked the Legislature to approve a one-year delay in the law's implementation and the state tax commissioner is now pushing off the enforcement.

"It sends a message that the state of New York does not care about equality in enforcing its tax law, and it sends a message to every citizen of New York that if you don't like a certain tax policy, you threaten some sort of violence and then you can get a pass," said James Calvin, executive director of the New York Association of Convenience Stores. Dan Finkle, a spokesman for Fair Application of Cigarette Taxes, a consortium of non-Indian businesses and health groups, said: "This isn't cooperation or confrontation. It's capitulation."

Last month, Pataki said the regulations should be put on hold while he tries to negotiate separate deals with Indian tribes. He suggested the Indians might raise the price of their products to create price parity with non-Indian retailers.

But Seneca leaders insisted they would never negotiate such deals and said their tax-free sales are protected by an 1842 treaty between the tribe and the federal government. The tribe last week asked President Bush to intervene in the dispute.

"For the Seneca Nation, it's one of the end results we were looking for," Arthur Montour, a Seneca tribal council leader, said of the tax commissioner's announcement Tuesday.

Eristoff said the tax agency also has signed a memorandum of understanding with the New York State Police to work more closely together on cigarette bootlegging crimes.

"It's really designed to ensure we don't trip over each other," he said.

NY Newsday - February 10, 2004
        See No Evil.../ Mike: Hotel puffers not in sight
        By Glenn Thrush

Smoke didn't get in Mayor Mike's eyes.

Michael Bloomberg says he never saw anyone light up when a group of cigar-puffing Wall Street pashas partied at the St. Regis Hotel on Jan. 15 - and therefore didn't suspect anyone violated his smoking ban.

Bloomberg, who has exhorted New Yorkers to turn in violators by dialing 311, said yesterday that the city Health Department is investigating the hotel for possible violations.

"I didn't see anybody smoking when I was there," the mayor said during a news conference at Staten Island University Hospital. "I arrived late, I stayed for about an hour and a half."

By "didn't see," Bloomberg also meant he didn't smell smoke at the gathering of the exclusive Kappa Beta Phi society, an aide said later.

The incident was first reported in the New York Times on Friday, which quoted former Bear Stearns Chairman Alan Greenberg as saying he and a handful other executives "had the guts" to smoke in Bloomberg's presence.

The mayor may have been distracted: His longtime girlfriend, Diana Taylor, the state's banking superintendent, was inducted into the organization as a "neophyte" that night.

The mayor yesterday conceded that some of the puffing attendees "very well could have been" violating city law. A spokeswoman for the Health Department said they would soon dispatch an inspector to suss out the claims.

"We have one standard. It should apply to everybody whether I'm there or not," Bloomberg said.

If the hotel on East 55th Street at Fifth Avenue is found to have violated the ban, it could face fines ranging from $200 to $2,000 depending on how many prior summonses it has had.

A St. Regis spokeswoman couldn't be reached for comment.

WOKR TV 13 - February 10, 2004
        Bar Owners Continue To Fight Smoking Ban
        By Gavin Reynolds

(Rochester, NY) -- As officials at the Monroe County Health Department say it's "very unlikely" they will give smoking waivers to local bars and restaurants, some local owners are taking a new step to allow smoking again.

Since their voices weren't heard individually, bar owner John Diamantopoulus and others started the first local chapter of the Empire State Tavern and Restaurant Association.

"I think if we stick together as a group, we will get things done than if we do it on an individual process," he said.

By forming a local chapter of the restaurant association, the business owners hope to put more pressure on the state legislature to either repeal the ban or force health departments to grant exceptions.

Another owner, Bruce Miles, said, "It's probably close to a 100 local businesses, and as a large group maybe we'll have a voice."

In order to get a waiver, an establishment must show a 15 percent drop in business solely due to the ban.  However, the health department says too many variables contribute to a loss in customers, like the economy or stricter DWI laws.

So far, a couple dozen business owners have applied for a waiver.

MidHudson News - February 10, 2004
        Local Conservative leader wants smoking ban lifted

Orange County 's Conservative Party chairman is supporting the party's position urging the state to remove its ban on smoking in public places.

Speaking from the annual state convention in Albany , John DeLessio said the ban must be lifted. “We would like to see some easement of that, we would like to see that ban done away with,” he said. “Some of the restaurants are either going out of business or they're hurting. Hopefully they can overturn it or get the businesses some relief on that.”

DeLessio supports a proposal by Assemblyman Howard Mills of Orange County , which would allow bars and restaurants to show a hardship to pay a $100 annual fee and get a smoking wavier. DeLessio said that's “ a step in the right direction.”

Associated Press - February 9, 2004
        Mike: I Saw No Smokers At Fancy Bash

See no evil. Hear no evil. Smell no evil? Mayor Michael Bloomberg said Monday he didn't see any of an estimated 50 people who fired up cigars during a posh Wall Street party he attended last month.

Smoking at the black-tie event for the exclusive Kappa Beta Phi society held at a ballroom in the St. Regis Hotel on Jan. 15 would have been in violation of the city's ban on smoking in bars, restaurants and other public places, which the mayor pushed through last year. The state has a similar prohibition.

But the mayor said he did not see -- nor apparently smell -- smoke from the cigars of the current and former financial industry titans in the room, including former New York Stock Exchange boss Richard Grasso. Grasso, who was not seen smoking, resigned last year after a furor over his $139.5 million pay package.

"I didn't see anybody smoking when I was there," said Bloomberg, a billionaire member of the society.

The mayor, who arrived at the event late and stayed for about an hour and a half, said the Department of Health is investigating the St. Regis Hotel.

"We have one standard," he said. "It should apply to everybody whether I'm there or not. It's ridiculous."

The society, described as a Wall Street version of Yale University's Skull and Bones, has a secret membership estimated at more than 250 of the financial industry's current and former executives. It was founded in 1929 and holds an annual party to induct new members, who stage campy performances to hoots of derision and hurled dinner rolls.

On Jan. 15, it was the turn of Bloomberg's girlfriend, Diana Taylor, the state superintendent of banks, to be inducted.

Though one partygoer told the New York Post that as many as 50 of the 130 guests were sucking foul-smelling stogies, a Bloomberg aide said there were no more than "a handful" -- an estimate gleaned from the hotel itself.

A St. Regis spokeswoman did not return a telephone call seeking comment Monday.

The New York Times, which first reported the story, said Bloomberg was present while people smoked.

"He condoned it," one attendee told the Post.

The health department will send an inspector to the hotel "to investigate a complaint about smoking," it said in a statement.

A mayoral aide, who spoke on condition of anonymity, said Monday that Bloomberg does not deny that some among the group of wealthy executives may have been smoking -- but the mayor simply did not see or smell them.

"He doesn't go around busting out a summons book when he sees a violation," the aide said.

Bar and restaurant patrons who have been forced outside to take a few puffs since the ban went into effect last year were not pleased at the news Monday.

"See, it's like I've always said, the rich take care of their own," said Robert Bianchi, smoking outside 17, a bar and restaurant a few blocks from City Hall. "We freeze our (expletive) off while the fat men stay inside smoking and sipping Dom Perignon."

"It's Cristal now," said a friend, also smoking, who declined to give his name. "Fat cats drink Cristal now."

News 10 Now - February 8, 2004
        Smoking ban hurts local business

Viva Debris Comedy and Magic Club in Syracuse said the state’s smoking ban has put a damper on business.

Since the state's smoking ban took affect in July, there hasn't been a lot of laughs at Viva Debris Comedy and Magic Club. Business is down way down.

"We have lost about 30 percent of our business which includes 30 percent of our staff," said owner Joe Delion.

The comedy club says the smoking ban hasn't only impacted their business, but other companies that it does business with has also been affected.

“Our liquor and beer salespeople are losing business. People who supply us with supplies are losing business, it has been a disaster," said Delion.

The handful of local taverns that have received smoking waivers have an enclosed room to light up. Viva Debris, which is the only comedy and magic club in Onondaga County wants a waiver to provide smokers with two nights of smoking and laughs out of its six scheduled shows. Owners say unlike a bar, its business is entertainment.

"They don't want to sit an hour and a half, get up in the middle of a show, go outside and have a cigarette and come back and try to figure out what's going on. Also when people do go in and out it’s very disturbing to the performer on stage," said office manager Lori Hackett.

The club will submit its application to the Onondaga County Health Department on Monday.

If the waiver isn't granted, the club says it may have to consider other alternatives if business doesn't pick up.

Harness Racing Portal - February 7, 2004
        WAIVER RECEIVED FOR SMOKING ROOM
        By Jeremy Rangiawha

Vernon Downs, a harness racing track and simulcast facility located in western Oneida County, has been granted a waiver from the New York State smoking ban by the Oneida County Health Department.

County health department officials reviewed the track’s proposed smoking room at the west end of the lower clubhouse Miracle Mile Room on Monday, February 2 and the permit was approved on February 4.

Under the waiver criteria, smoking will only be allowed in this special enclosed room, which is self-contained and has television monitors and self-service wagering machines.

The room, which includes a special ceiling exhaust system, was used as a smoking room by the track prior to the state ban, which was implemented this past July.

“We’re very pleased the plan we submitted, offering a self-contained, well-ventilated smoking room at Vernon Downs, was approved,” said Dave Wilson, the track’s acting chief executive officer and vice president of racing and facilities.

“This will enable us to provide a comfortable indoor setting for our patrons and employees to use when they wish to smoke.”

Vernon’s special smoking room will available to both simulcast and live racing patrons.

WVIB TV 4 Buffalo - February 7, 2004

A Buffalo businessman is fuming mad over a decision to deny his restaurant a smoking waiver.  Rick Naylon, owner of Jimmie Mac's said, "We're legitimately losing $300 a day, everytime we open the door."  But because he couldn't prove that to the satisfaction of the Erie County Health Department, owner Rick Naylon was denied a smoking waiver for Jimmy Mac's Restaurant.

Erie county has opted for more strict smoking rules than the NY State guidelines. Rick Naylon said, "The Erie County guideline, even if you are granted a waiver, you have to build a separate room with automatic doors, and air neutral systems with alarms in case, God forbid, any smoke were to escape to another area, and then it's only one year, and then they'll probably take it away from you."  So for now, the smoking stays outside at Jimmie Mac's, but Naylon is taking the County back to court later this month on the issue.

Naylon said, "I just wanna stay in business for the sake of my workers and my family, it's very simple."  In South Buffalo, Recckio's Bowling Center is the only other Erie County establishment to apply for a waiver and it's still under consideration. Owners there claim it's dangerous for their bowlers to have to walk outside to smoke in bowling shoes because they might slip. Tammy Recckio, owner of Recckio's Bowling Center said, "I'm hoping to get granted the waiver on the safety issue, but yes I can prove a substantial decline as well."

Owner Tammy Recckio is ready and willing to pay between 10 and 20 thousand dollars to build the special smoking rooms, hoping they'll pay for themselves.  Recckio said, "I think we will, especially if you don't have to go out in the cold people will be more likely to stay here and party more."

WGRZ TV 2 Buffalo - February 3, 2003
        BINGO HALL CRIES FOUL AFTER SMOKING BAN

Phillip Magee is having a heck of a time reversing the slide. Seven hundred dollars and 125 people one week, but the next week $218 and 90 people in attendance. "It's really killed us," he says.

"It" is the state Clean Indoor Air Act which ended smoking in bingo halls such as Niagara Frontier American Legion Post 1041 on Amherst Street in Buffalo. That's where Phil Magee is trying to make ends meet.

"We fought in the wars for the freedom to do what we want," he tells Channel 2's Rich Kellman, "and it's just unfair."

Post 1041 has been hosting bingo since 1975. The post depends on its income to pay for heat and electricity, and for charitable donations to VA Medical Center and Roswell Park Cancer Institute.

Magee points out the facitilies include separate rooms for smokers and non-smokers. But this summer, the law said no smoking at all. So at break time between the calls, the players head for the door and light up outside.

"This is my pleasure," says Buffalo resident Emily Scherer, "away from the children and everything, and I have to stand outside and freeze."

"People pay taxes," says one smoker. "Even smokers pay taxes."

"Supposed to be a free country," says another. "But it's not."

Magee tells Kellman, "The post couldn't survive without bingo."

But farther along Amherst Street at Woodward, St. Mark's Church survived when it lost bingo seven years ago. Msgr. Francis Braun remembers, "This whole gym was filled with people, and all of them smoking."

But the school smoking ban of 1997 finished off what the loss of aging bingo players in the neighborhood had begun. "It happened before the smoking ban," says Braun, "and then the smoking ban really killed it."

But it didn't kill St. Mark's. They've held auctions and other fundraisers. And they raised tuition.

But Post 1041 seems to have nowhere to turn. "We have to find ways to make money to keep this post open," says Magee.

Outside during a break in the bingo, meanwhile, a woman notes, "If the cigarettes don't kill us, the damn cold will," and lights up.

The American Heart Association says the main reason bingo halls are in trouble is because of an historic decline due to competition from casinos and other activities, and says it will oppose any change in the law to allow smoking in bingo halls.

Poughkeepsie Journal - February 3, 2004
        Home's smokers may get reprieve
        County, facility working on deal
        By Anthony Farmer

Smokers at the Ferncliff Nursing Home in Rhinebeck could be coming in from the cold soon to light up.

The nursing home is working with the Dutchess County Health Department on a plan to allow residents to smoke inside the building, technically in violation of the county's no smoking law.

County Health Commissioner Dr. Michael Caldwell confirmed this week he is working with Ferncliff administrators to accommodate, what he called, their unique situation.

A county law banning smoking in virtually all indoor work places in the county took effect Jan. 1, 2003. A handful of residents at Ferncliff who smoke were forced outdoors to continue their habit.

''We don't want to subject anyone to secondhand smoke unnecessarily,'' said Sister Sean Damien Flynn, chief executive officer of Ferncliff. ''We just want to make sure these poor old souls aren't out in the cold.''

County law strict

When a statewide smoking ban, that permitted smoking in nursing homes, went into effect over the summer, the smokers at Ferncliff were still forced to stay out. If portions of a county law are more stringent than a state law, they take precedent.

For many nursing homes, it isn't a problem. When the Lutheran Care Center in Poughkeepsie opened in 1998, it was smoke-free.

''People know that before they come,'' Katz said. ''People have to smoke outside whether they are our residents or staff members.''

Flynn said Ferncliff was put in a difficult position when the state Department of Health, during a routine inspection in September, threatened to cite the facility for making the residents smoke outside.

''They felt it was a violation of the residents' rights, making them go outside to smoke,'' she said.

Caldwell said there is flexibility in the county law that allows him to come up with accommodations for unique situations like this one.

''We want to make sure that residents, employees and visitors are protected from unwanted exposure to secondhand smoke,'' Caldwell said.

County legislators learned of the situation recently and had considered amending the law to correct the problem.

They were pleased health officials are working with Ferncliff on a new arrangement.

''I am no big fan of secondhand smoke,'' said Legislator Joel Tyner, D-Clinton. ''In this case, it appears to me the county Health Department is working with Ferncliff to make sure the air in that room is not going to hurt the health of anybody else in that facility.''

Troy Record - February 2, 2004
        Bar owners use occasion of big game to let rules go up in smoke
        By Kate Perry

LATHAM - On Super Bowl Sunday, some bar and restaurant owners stepped over the line for their sales - and for some customers - by letting smokers come in out of the cold, despite the hefty fine threatened by the state.

An hour before kickoff, ashtrays lined the bar at Jessica Stone's on New Loudon Road in Latham and customers smoked freely despite the passage of the state's Indoor Clean Air Act by the state Legislature last July.

The state Health Department will issue permits to allow smoking under select circumstances, but a woman identified only as the manager wouldn't say if Jessica Stone's was operating with one on Sunday. She insisted that smoking was not normally allowed there and that a special exception was made for the Super Bowl. She also said that the smoking ban has hurt business, but as she ripped raffle tickets off a long strip, she added that she was too busy to talk.

At another bar and restaurant in Latham, whose owner requested that the name not be printed, smokers also enjoyed one night sheltered from the bitter cold. The establishment had a sign on the door for several days leading up to the Super Bowl, advertising that smoking would be allowed on that day.

The owner said he applied for a special permit for Sunday and was led to believe early in January that he would get it, however, just a day or two before the big game on Sunday, he said the state added on requirements that he had no time to fulfill. On Sunday, though, ashtrays were out in the establishment, smokers lit up and no one asked them not to.

"People assumed they were going to be able to smoke tonight, so I'm letting them," the owner said. "I'll take the hit."

"The hit" is up to a $1,000 for each violation and $2,000 in certain circumstances, according to the state Health Department Web site. The amount seems high, but to bar owners, it is dwarfed by the sales they have lost since the ban went into effect six months ago.

At Ziggy's, a bar and nightclub just off the Latham Circle, owner Shane Zyglewicz said he has lost half his daytime business because of the prohibition. And while the air was clean at Ziggy's on Sunday, by comparison to the two other bars visited by The Record, it was nearly empty. Just a few people sat at the bar.

In fairness, Zyglewicz said Super Bowl Sunday isn't normally very busy, but he said business was made even worse by the ban. He said it was unfair that other bars in the area were breaking the law and cashing in while he lost out, and added that some of his neighbors ignore the law all the time, not just for Super Bowl. Still, he said he wouldn't mind the ban so much if it was enforced evenly.

"It's not fair to me because they're not enforcing the law in some neighborhood and inner-city bars that are more off the beaten path," he said.

Despite the law, smoking was so common in other bars last fall that Zyglewicz said he let a few customers smoke one night, but the next day state Health Department officials were at his door with an official warning. Since then, he's played by the rules.

The owner of the unnamed bar said he has lost $10,000 per month because of the smoking ban, a lot of which he suffered during the months of regular National Football League play that led up to Sunday's championship game. Football season used to bring major business into his bar.

The owner said the ban and its enforcers are threatening his livelihood.

"The Health Department doesn't feed my family, I do, and they are making it difficult," he said.

Oneida Daily Dispatch - February 2, 2004
        Madison ready to weigh smoking waivers
        By Mike Ackerman

WAMPSVILLE - Taverns and restaurants in Madison County that have lost revenue because of the state's new indoor smoking ban can now seek relief from the Madison County Public Health Department.

According to county health educator Virginia Zombek, the Madison County Board of Health will now issue smoking ban waivers to businesses that can prove a 15 percent loss in revenue from the prior year's business.

The waiver will permit public smoking if the business can prove the loss of revenue, but in order to receive the waiver application, a business must pay a nonrefundable fee of $150. Businesses must be able to prove that the ban directly caused financial hardship either from loss of business or from pre-ban investment in air filtration systems or smoking rooms.

The state Clean Indoor Air Act went into effect on July 24, 2003, banning smoking in the workplace.

Since it's inception, the law has been hotly contested by local businesses, mainly taverns and restaurants that rely on smokers for much of their business.

Each county-run health department has been able to develop its own waiver which many times differs from those prepared by state-run health departments.

Madison County's waiver demands a 15 percent proven loss, while Oneida county's only asks for 10 percent.

The Madison County waiver application allows businesses to check one, two, or three reasons the business feels it should receive the one-year exemption: undue financial hardship due to loss of revenue; financial hardship due to capital expenditures prior to the law; and any other factors that make compliance a hardship.

"This will solely be done on a case-by case basis, so anyone who is thinking of requesting a waiver should call the health department first and get the information," said Zombek.

The county has received about 20 applicants dating back to August of 2003. The waiver, if accepted, will exempt a business from the law until July 24, 2005.

"Our waiver is very comparable to other surrounding counties and the state's. For someone to request a waiver they must first send us a written request."

For more information, call the Madison County Public Health Department at 366-2361.

CORRECTION: This article incorrectly reports that the Oneida County Health Department requires financial records from 2002 for businesses to be eligible for the smoking ban waiver.

Oneida County actually requires a business' financial information from the last quarter of 2001, 2002, and 2003 (October through December). The county will also take information from September through November of those years.

New York Press - January 31, 2004
        White Man Foul’um Pipe: Seneca Nation Says Peace to Cheap Smokes

You’ve undoubtedly seen or heard those baffling and vague tv and radio spots put out by the Seneca Nation, accusing the U.S. government of trampling on treaties and the Constitution without ever really explaining what they’re so upset about.

They’re upset, it turns out–and with good reason–over the statewide ban on Internet cigarette sales. The state claims that the law banning such sales (passed in 2000, but not enforced until last June) was intended to keep children from buying cigarettes online. They insist it’s a health issue, but it’s clear that more and more people are turning to Internet sales in order to evade city and state taxes. As a result, the state is losing out on millions of dollars in tax revenue.

Unfortunately, by trying to put an end to those sales (and thus reclaim that money), they’re also killing what has become an integral part of the Seneca Nation economy. Likewise, beginning in March, the state is also demanding that taxes be collected from gas and cigarette sales made on reservations to non-Native Americans. That is, those people who drive from New York to one of the reservations on Long Island to fill up on cheap gas or buy cheap smokes will now have to pay the same taxes they would if they’d stayed in the city.

Seneca lawyers, who are filing suit against the state, argue that the Internet sales ban is an unlawful intervention into the sovereignty of the Nation. They’re absolutely right about that. But are they surprised? The wild-eyed mania that has swept through city and state government these past three years doesn’t care what sort of damage it causes.

Take, for instance, the mayor’s latest effort to ban smoking, which put the screws to local small businesses and turned New Yorkers into his own private Stasi. Early last week, he proposed a bill that offered real cash money to those people who would rat out cigarette bootleggers. Not just those guys with the black plastic bags, either–he’s after bodegas and delis, too. Anyone selling under-the-radar cigarettes. He suggested that if wholesalers happened to notice a sudden drop in orders from a specific retailer, that retailer should be reported.

The mayor has already seen that people are willing to rat each other out for free, so imagine what they’ll do when there’s money involved. As it’s laid out, the stoolies who drop a dime on a local bodega owner would receive about 15 percent of the back taxes owed by that owner. That could add up pretty quickly. (Of course, getting that check from the city might take awhile.)

The façade that this is about "health" is fast disappearing. This isn’t even about cigarettes anymore. This is about a mayor who cost the city $80 million a year with his taxes and bans and who’s now desperately trying to recoup that loss without admitting that he made a terrible mistake. We’re no fans of the governor, but at least he realizes, in part, that you’ll make more money feeding the vices of the people than by attempting to strangle them.

Capital News 9 - January 31, 2004
        Oneida County grants two smoking ban exemptions

The Oneida County Health Department has granted its first exemptions from the state ban on indoor workplace smoking to a silverware factory and a bowling alley.

Oneida Limited in Sherrill and King Pin in Rome are among 50 business that have applied.

Oneida Limited spokesman Dave Gymburch said the factory and warehouse, with 700 to 800 employees, already has several smoking rooms with separate ventilation systems.

Susan Batson, a Health Department sanitarian, told The Post-Standard of Syracuse that company employees had to go outside to smoke, so there was a safety issue with things like ice and snow. Company officials showed it was safer to allow workers to smoke inside.

The bowling alley's owners showed their business had dropped more than 10 percent since the ban in July, the threshold for financial hardship in Oneida County.

Utica Observer Dispatch - January 30, 2004
        2 places given OK to smoke
        Several establishments denied
        By Elizabeth Cooper and Krista Karch

Oneida Ltd. and a bowling lane won permission to allow smoking on premises.

A veterans' post and four small bars did not.

That's triggered concerns from restaurant and bar owners about whether the county's smoking waiver policy will really help their struggling businesses.

At Shaffer's Village Pub in New Hartford, a large "smoke eater" hangs above the people lined around the bar. It was owner Jamie Shaffer's $2,000 investment in the future of her business, but it wasn't enough, she said.

Her application for a waiver from the smoking ban was still denied, she said, for failing to have a plan to mitigate second-hand smoke. The pub was already fined once for the lit cigarettes dotting the dim room, and Shaffer expects she will be fined again.

"The waiver is going to hurt us even more, because a lot of bigger places have separate rooms with separate ventilation," Shaffer said.

But with a 15 percent business loss since the ban began last summer, Shaffer isn't sure how she will survive.

"My business consists of smokers," she said. "There are other bars that won't get the waiver, and non-smokers can choose to go there."

The county's smoking waivers would permit smoking at businesses that can prove the state's smoking ban cuts their income by 10 percent. Businesses can also get the waiver if they prove it's impractical to enforce the ban. In either case, they must present a plan to mitigate the effects of second-hand smoke.

Oneida Limited did not say in their application that they had smoking-ban-related losses, but argued that other circumstances made compliance with the ban unreasonable. Susan Batson, who oversees the county's smoking ban policy, said the tableware manufacturer had argued that smoking out of doors put employee safety in jeopardy when the weather was dark or cold. Also, they said it took time out of work shifts for some staff to walk to distant exits, she said.

The manufacturer already has existing smoking rooms with separate ventilation, and Batson is recommending smoking staff be allowed to use them.

Meanwhile, Steve Lewandrowski, whose family has owned Riverside Lanes in Marcy since 1964, says the rejection of his waiver application may be the death of the vintage bowling alley.

"We're very close to going out of business," he said, reached there Thursday evening. "I don't know what I'm going to do."

Lewandrowski's application was rejected because he failed to show the required 10 percent decline in business since the Clean Indoor Air Act was enacted on July 24, 2003. Business owners were required to show the decline over the same time period in the previous two years.

Lewandrowski said the records he submitted were skewed because in 2001, bowling leagues started earlier than usual, hiking September profits. He said he is down 17.4 percent between September 2002 and September 2003.

But another bowling lane, King Pin Recreation Center in Rome, did get a waiver. Lane co-owner Paul Panek said he argued that some smokers at his establishment walked outside in their bowling shoes and then tracked water on the lanes, causing dangerous, slippery conditions. The bowling lane will convert its locker room into a smoking room with separate ventilation, Panek said.

Panek said King Pin's revenue is down by $10,000 a month since the ban, or between 10 percent and 12 percent.

Eileen Tiller of Verona VFW Post 6811, which was also denied -- because it didn't show the 10 percent financial loss, Batson said -- said the VFW was down 14.33 percent. The post has already built an addition to allow for a smoking room, Tiller said.

"As far as I knew, we qualified," Tiller said, but declined to comment further, as she had not yet received the official denial letter.

"There's a lot of unhappy business owners out there that have worked very hard to develop their businesses, and they're not getting any help from the county," Empire State Restaurant and Tavern Owners Association Oneida County President Ralph Dittenhoefer said. "We're just trying to deal with it and make ends meet."

Dittenhoefer owns the one-room South Trenton Pub and is hoping for a waiver himself.

Many of those rejected say they will appeal. Appeals must be filed with the Oneida County Health Department within 15 days of the denial.

At least three more decisions will be issued Friday, Batson said.

Steven Klosek, owner of the Varick Bar and the Stiefvater Room on Varick Street, is crossing his fingers. He applied for a waiver early this month, and expects to hear the verdict today.

"It was looking good when (Susan Batson) left," he said.

Klosek opened the Stiefvater room last April -- a mellow version of the Varick Bar, complete with a crackling fireplace and shuffleboard table. He has owned the Varick for 16 years, and built the second establishment without the smoking ban in mind. But with a separate bar, entrance and restrooms, he is one of the few bars in town that is eligible for a waiver.

He lost 42 percent and 31 percent of business in the first and second quarters after the ban began last year.

"Nobody's saying, now that it's smoke-free, I'm coming out," he said. "There are no new people here because of the ban."

So far, about 50 establishments have applied for a waiver.

Post Standard - January 29, 2004
        Three more taverns get smoking waivers
        Bars win permits from health department after showing financial hardships from ban.
        By Mike McAndrew

There's now a tavern where smoking is allowed in almost every direction in Onondaga County's suburbs.

The county health department this month granted waivers allowing tobacco smoking in enclosed rooms at the Thor Restaurant, Route 11, in LaFayette; at Franks Country Roadhouse, 7119 Minoa-Bridgeport Road, in the town of Manlius; and at Village Tavern, 6 E. Main St., Marcellus.

All qualified for waivers under a provision of the state smoking ban that allows businesses to permit smoking in enclosed areas if they can prove the ban poses a financial hardship.

In December, the health department issued what was the first waiver given to any tavern in New York, allowing smoking in an enclosed room at Damon's Party House, 8424 Damon Road, Cicero. Another tavern, Awful Al's in Armory Square, allows smoking because it qualified as a "cigar bar."

The state's Clean Indoor Air Act, which became effective July 24, prohibited smoking tobacco in virtually every workplace in New York.

The county required that smoking be confined to enclosed rooms where employees are not permitted to serve drinks or provide other services, said Gary Sauda, director of the environmental health bureau.

"The employees are protected," he said. "The general public can walk into these places and not be exposed to secondhand smoke."

The law remains unpopular with many tavern owners, who say it has cost them customers and money.

Thor Restaurant owner Jim Stirner Jr. said he would have had to shut down the tavern, which he has owned for 15 years, if the county did not grant it a waiver Jan. 22.

"I've been losing money for four months," he said.

Post Standard - January 28, 2004
        County issues smoking-waiver policy
        Auburn bar owner fined $1,000 for disobeying ban won't say if she'll apply.
        By John Stith

An Auburn bar owner has been fined $1,000 and ordered to obey the state's ban on smoking in bars.

Patty Glanville, of Fleming, owner of Costello's on Aurelius Street, had no comment when told of the fine, levied Tuesday by the Cayuga County Board of Health.

Glanville did say that patrons at her establishment were still smoking at the bar as of Tuesday afternoon. She said she had not received formal notification of the board's action.

She referred further questions to her lawyer, Kenneth R. Ray, of Utica. Attempts to reach Ray late Tuesday afternoon were unsuccessful.

Also Tuesday, the Board of Health approved the procedure for establishments that wish to obtain a waiver from the smoking ban. Waivers will be for one year. Applicants must pay a $150, nonrefundable application fee, which must be paid when the application is filed.

Anyone who has inquired about a smoking waiver will receive a copy of the county guidelines and a copy of the application form, said Eileen O'Connor, county director of environmental health.

Glanville would not say Tuesday whether she will apply for a waiver.

Larry Hilimire of Stanton Automatics, a vendor that places jukeboxes, pool tables and other game equipment in bars, didn't think Glanville should be fined. Hilimire has acted as unofficial spokesman for a group of bar owners unhappy with the smoking ban.

"I just think the way the law is written, without her having any employees - the law is meant to protect employees, and she has none - so how can they fine her $1,000?" Hilimire said. "She really hasn't broken the law. I really don't feel she's breaking the law with no employees."

Glanville is the first bar owner to be fined in the county under the state's amended Clean Indoor Air Act, which went into effect July 24. After a complaint about smoking in the bar and two subsequent visits by a health inspector, the county Health Department fined Glanville $100 and ordered her to comply with the smoking ban.

Glanville, who does not smoke, refused and was then ordered to appear at a hearing Jan. 20. Hearing officer Jack Tonzi listened to testimony for two hours that day. His report was presented Tuesday to the Board of Health, which accepted his recommendation.

O'Connor said at least 19 other establishments have received letters advising them of possible violations of the law.

Hilimire commended the Board of Health for getting the waiver procedure started.

"Up until today, I felt they were dragging their feet. . . . They finally stepped to the plate," he said. "I commend them for putting the process in place and having the waiver application finished, so people can pick them up, read them . . . and figure out what they have to do to get waivers, which is what the state intended from square one. It's about time that has happened in Cayuga County."

Daily Freeman - January 27, 2004
        County may relax ban on smoking
        By Jack Mabb

HUDSON - Local restaurants and bars that want to apply for a waiver from the smoking ban in New York will soon be able to, but it won't be easy to get.

Columbia County Health Department Director Nancy Winch told members of the County Board of Supervisors Health/Mental Health Committee last week that she has completed work on the forms and criteria for waivers of the smoking ban. She has handed them over to County Attorney Daniel Tuczinski for his review.

Winch said she expects the review to be completed in time for the forms to be on the agenda for the Feb. 17 committee meeting. She said part of that discussion will include how those waivers will be processed. She is proposing a three-person review committee made up of Tuczinski, County Treasurer Ken Wilber and a department staff person.

"I really need someone with an accounting background," Winch said of Wilber's inclusion. The county treasurer will look at the hardship claim of the establishment seeking the waiver.

To obtain a waiver, the establishment must show a 15 percent reduction in business because of the ban that went into effect in July 2003. Proof must include income tax returns from two years ago before the ban as a base of comparison to current income. The applicant will also have to pay a $100 non-refundable application fee.

"This paperwork is above and beyond the work we do," Winch said of the fee.

Beyond proving the hardship, the establishment must also take steps to ensure that neither non-smoking customers nor staff are exposed to secondhand smoke.

Winch offered two examples. A restaurant could have a smoking section well removed from non-smokers but they must also ensure that a non-smoking waitress or waiter doesn't have to serve that section. The second example involved a nursing or adult home where a resident is in a private room. Under the law that resident can smoke in that room, but nonsmoking staff should not have to enter it.

Enforcing such conditions could be difficult. "There are a lot of things that have to be worked out," Winch said.

So far, nine local establishments have requested the application for waivers once it is available. One other withdrew the request. Winch said that business "upped their food selection," improving business that way.

Following the meeting Winch said that to date the department has received a handful of complaints about violations of the smoking ban, but as yet has issued no fines, only verbal warnings.

"It's about educating the owner at this stage," she said, noting that as far as she knows only a few fines have been handed out statewide, in New York City.

Waivers are also pretty rare at this stage. Other than a recent well-publicized waiver granted to bingo halls in East Greenbush and Schenectady, only a handful of waivers have been given including a few in Oneida and Onondaga counties.

Left to be decided is the length of the local waiver. Winch said a year or two is under consideration.

Oswego Daily News - January 27, 2004
        Health Committee Sets Fee For Smoking Ban Waiver Applications
        By Steve Yablonski

Oswego County taverns and restaurants might get some financial relief from the Clean Indoor Air Act, which bans smoking from nearly all public buildings.

Recently, the county Board of Health approved a policy which would grant waivers to the smoking ban to businesses that apply.

On Monday afternoon, the Oswego County Legislature's Health Committee approved a $25 application fee, which was below the health department's recommendation of $100.

The waiver forms are being mailed out today.

According to Kathleen Smith, Oswego County's health commissioner, nearly 60 businesses have already requested the information.

One of the ways a businesses can be eligible for the waiver is if they can prove they have lost 15 percent or more of their revenue due to the smoking ban.

To prove their case, business owners would have to submit sales tax statements that show business trends over three years, comparing the three consecutive months immediately prior to the smoking ban and the same three months after the smoking ban, according to the application.

They also have to devise a plan to limit secondhand smoke to a specific area.

The application also provides for "applicants asserting that other factors exist which would render compliance unreasonable" such as safety or security factors.

"There has been a lot of interest in the waivers since the law went into affect last July," Smith said. "The county waited for the state health department to come up with its set of guidelines to allow waivers before we proceeded."

Oswego County's version is very similar to the state's as well as those created by Onondaga County prior to Dec. 12 when the state issued its guidelines.

A committee will review the waiver applications the county receives; and a public healthy engineer will go out and inspect the businesses, Smith explained.

The committee would recommend to the board of health whether the waiver should be granted.

Legislator Doug Malone moved to have the fee lowered to $25.

"The state has handed down this stuff, and who has suffered? It's been the bar owners and restaurants. I don't know why we have to punish them more," he said.

"With a shorter staff we're going to add more work and charge less money, it doesn't make any sense," Legislator Barb Brown said.

It's either that or put more bars and restaurants out of business, Malone pointed out.

Legislator Art Ospelt noted if patrons come back because the smoking ban has been waived, it would be a boost to the sales tax.

"I think the Clean Indoor Air Act is a violation of my personal liberty," Legislator Fran Hoefer said. "These businesses are struggling to survive right now and for us to add another $100 isn't right. Our job is to help prosperity."

He added he felt the county should give everybody a waiver and leave them alone.

"This is a health issue, and it was enacted for the health of workers," Brown pointed out. "We're sitting in a county where the Medicaid bill put us in dire financial straights. We do alcohol rehabilitation, drug rehabilitation and then we have all these people sitting in nursing homes hooked up to oxygen tanks and we want to promote this? I'm sorry; I'm not going to be a hypocrite. I chair the Social Services Committee and we get the bills."

She added that she's heard from some area bar owners who say they're glad people aren't smoking any more "because they don't have to wash the ceiling every day."

She tried to raise the fee to $150 to help "a staff we're overburdening that we have already cut to the quick," she said. The motion, however, failed to get a second.

"This here is not a health issue. It's a money issue. I run a business and I am fee-ed to death, taxed to death," said Malone, a business owner in Oswego Town.

Hoefer said it is a freedom issue, not a money issue.

"When you restrict freedom, business starts to die and people start to leave," he said. "That's what's happening."

"I've gotten more calls on this than the Saturday closing of the landfill," Ospelt noted.

"This is a very complex thing. It's not just a one aspect situation. We have a number of rights involved here - the rights of the businessmen trying to make a living, we have the rights of people to exercise their own personal judgments in terms of what they're doing. And, we also have the rights of people who are affected by the judgments of the people doing what they choose to do," explained Legislator Jack Proud, committee chair. "We have a complex bundle here."

For more information concerning the waiver process or applications, contact Natalie Roy, county public health sanitarian, at 349-3557.

Casino City Times - January 26, 2004
        New York OTB Hope for Smoking Waivers

NEW YORK – As reported by the Syracuse Post-Standard: "The state created Off-Track Betting corporations in 1970. The state banned smoking in public places in July.

"Now some OTB parlors - including several in Central New York - are hoping for waivers that will allow their customers to smoke.

"OTB executives say many of their parlors lost money last year because of the smoking ban.

"…[Ed Carney, a spokesman for Western OTB and owners of OTBs in Oswego and Cayuga counties] said his managers consider the Clean Indoor Air Act, which banned smoking from virtually all public places beginning July 24, a greater threat to business than Native American casinos.

"…Health departments in Cayuga, Madison and Oswego counties are close to implementing policies that would grant waivers to the smoking ban. Some policies may begin this week.

"Natalie Roy, a public health sanitarian for Oswego County, said businesses that can prove financial hardship could receive a waiver…"

NY Newsday - January 24, 2004
        Smoking Ban Limping Along

ALBANY, N.Y. -- Six months after New York stamped out cigarette smoking in virtually all places of business, a number of bars and restaurants legally let patrons light up while others face penalties for violating the smoke-free law. Local health departments report the crackdown is going smoothly.

Meanwhile, bar and restaurant owners bemoan that they are left in a lurch by local health departments that have not developed waiver guidelines for financially pinched businesses. Some bar owners claim the restrictive ban forced them to close.

"Our restaurant members appear to be holding their own," said Scott Wexler of the Empire State Restaurant & Tavern Association, "but the bar owners are just getting killed." New York's tough anti-smoking laws went into effect last July 24, prohibiting smoking in workplaces including bars, restaurants and nightclubs, as well as off-track betting parlors, bowling alleys and company cars.

Proponents argued the ban would protect workers from inhaling second-hand smoke and that businesses would adjust to the change.

The state law superseded local smoking laws, but allowed waivers for businesses that can prove undue financial hardship under the law.

Local health departments enforcing the anti-smoking law initially warned violators and allowed months to lapse before handing out citations. The departments generally report high compliance among businesses. No statewide tally of violations exists since enforcement is carried out individually by counties.

"I feel very confident that the (anti-smoking) law is being followed probably much more closely than many other public health laws that are on the books," said Dr. Michael Caldwell, president of the New York State Association of County Health Officials.

The Onondaga County Health Department recently granted waivers to a bingo hall and two bars after they proved their profits eroded by more than 15 percent since the ban went into effect.

Three nonprofit groups that run bingo games in Troy, across the Hudson River from Albany, also received waivers after documenting financial hardship. The waivers hinge on the bingo hall maintaining a separate smoking room with an independent ventilation system.

David Damon Jr. noticed a slight economic rebound since his bar Damons in Cicero, about 10 miles north of Syracuse, was issued an exception last month after experiencing a 40 percent drop in business.

"I've seen some new faces come in. Some are just curious to see what the smoking room is like," said Damon, a 69-year-old retired engineer.

Smokers now puff away in a banquet room next to the bar. Damon rejected any notion of having an advantage over smoke-free establishments, saying, "I don't think I'm hurting anybody." Royal Pheasant, a bar and restaurant in Buffalo, shut down last month after 60 years, partly because its business took a plunge from the smoking ban, according to its owner.

Last month, the state Health Department, which serves 21 mostly rural local health departments, released guidelines designed to ease the smoking ban on financially pressed businesses.

Businesses that can prove they lost at least 15 percent of their profits to the smoking ban can apply for waivers. Eighteen applications were received and no waivers have been granted, said Claire Pospisil, a state Health Department spokeswoman.

The state has cited 17 businesses for failing to comply with the ban, including slapping eight of them with fines ranging from $100 to $300. The other cases are pending.

The 41 remaining counties with full-service health departments were given the authority to establish their own waiver policies, resulting in a hodgepodge of smoking rules among neighboring counties.

Tioga County has adopted a no-waiver policy. Chenango and Broome counties are leaning against granting exemptions. Oneida County gives reprieves for businesses that experience lost revenues of at least 10 percent. Niagara County set a 10 percent threshold and said bars and restaurants must have a separate enclosed smoking room. Guidelines have yet to be drawn up in other counties.

Buffalo News - January 24, 2004
        Criteria set for waiver of state smoking ban
        By Henry L. Davis

Erie County -- After months of criticism, Erie County slightly loosened a strict smoking ban by releasing long-awaited rules Friday for obtaining exemptions.

Some anti-smoking advocates praised the guidelines. Others continued to call for a total ban on smoking in public places.

Meanwhile, some businesses expressed optimism about the new waiver process, while others described the guidelines as a disappointment.

"The county criteria are more stringent than the state's. They are more stringent than those in Niagara County," said Nicholas P. Amigone III, attorney for Jimmy Mac's, an Elmwood Avenue bar-restaurant that took legal action on the waiver issue.

"It will be difficult for us or anyone else to qualify," he said. "We have lost our ability to make a profit."

Businesses and social clubs have fiercely lobbied for exemptions since the State Legislature enacted the smoking law in July, saying the ban jeopardized their livelihoods by driving away customers.

The waiver application process released by the county's top public health official requires proof from businesses and social clubs that the ban has caused undue financial hardship, including documentation of at least a 15 percent decline in sales tax receipts caused solely by the smoking ban.

Even if a waiver is granted, smokers can light up only in clearly marked rooms that are ventilated and equipped with self-closing doors.

"We've tried in our approach to protect the public's health while carrying out the spirit of the law," said Dr. Anthony Billittier IV, county health commissioner.

About 150 establishments - from bars to bowling alleys to social organizations - have expressed an interest in a waiver in Erie County, according to Health Department officials. It's not clear how many more will apply. A waiver application costs $98 and must be resubmitted annually.

The state law provided for exemptions but gave little guidance about how to decide who should get them if counties choose to allow them.

Counties with health departments could establish their own criteria for waivers, the state said. But, as in Erie County, most waited for the state to set standards.

Things changed in December after a lawsuit was filed by Jimmy Mac's and later joined by the Gaelic American Athletic Association's Irish Center on Abbott Road.

The establishments argued in court that the county ignored the state law for five months and had no right to reject their requests for exemptions when the law includes an exemption provision.

An "impossible' task

As a result, State Supreme Court Justice Rose H. Sconiers ordered Billittier to devise criteria for waivers by Friday.

Shortly after her order, the state issued rules that applied to the 21 counties that don't have their own health departments but that other counties might use as a guide.

The state rules allow two-year waivers of the smoking ban for "undue financial hardship," defined as a reduction in food and beverage sales of at least 15 percent. Waivers also can be issued for safety or security reasons that make compliance unreasonable, for "exceptional circumstances" and in cases where establishments spent significantly to accommodate smokers for smoking restrictions that existed before the state ban.

While outlining his policy, Billittier leveled criticism at the State Legislature for enacting the law with a provision for waivers that lacked details about how counties should handle them.

"This ban was dumped on health departments with little guidance," he said. "We were asked to do the impossible, to decide on a level of financial hardship that was worth compromising the health of employees and customers in a business."

Court action is expected

He and others want the Legislature to modify the bill either by declaring definitively that waivers are not allowed or by setting more detailed guidelines that can be applied equally across the state.

"Our policy is going to be the subject of criticism and court action," he said.

Erie County's waiver decision follows a similar release of guidelines in Niagara County that are not as stringent. Those rules, for instance, set the bar for undue financial hardship at a 10 percent decline in sales tax receipts.

Billittier's guidelines received praise from some anti-smoking advocates.

"(The criteria) cut through the rhetoric of financial doom and gloom and put the onus on business to protect employees, patrons and vendors," said Gretchen Leffler, regional vice president of the American Cancer Society.

Others were critical.

"We don't support weakening the law. The health protections are too important," said Terry Alford, a representative of the Erie-Niagara Tobacco-Free Coalition.

"The simplest and fairest rule is to not grant waivers, as is the case for the majority of the population in New York. If waivers are to be granted, then they need to prove losses are because of the law," said Andrew Hyland, a Roswell Park Cancer Institute researcher who studies tobacco issues.

Bar owners greeted the changes with cautious optimism, although few were familiar yet with details of the guidelines. Now, at least, a process exists to review waiver applications.

"It's a foot in the door. The counties are at least listening to the business owners," said Judi Justiana, owner of Judi's Lounge, a longtime pub in Niagara Falls with a cast of regulars who enjoyed a smoke with their drink.

"This is so important to small businesses," said Michael Campbell, owner of Buddies, a bar on South Elmwood Avenue. "Customers are just not coming out. My business is down at least 30 percent."

Amigone said, "We believe the criteria are arbitrary and capricious," noting that different counties will have different standards.

Use of sales tax criticized

Like other critics, he pointed out that the county guidelines fail to take into consideration business owners who spent handsomely on ventilation systems or smoking rooms in recent years.

He also argued that sales tax receipts inadequately reflect how well a business is doing. A business could have fewer customers, for instance, but not see a change in sales tax receipts if it raised prices.

Post Standard - January 21, 2004
        Protesters back bar owner
        By John Stith

Discontent with the state's indoor smoking ban continues to smolder in Auburn.

As demonstrators marched Tuesday outside in subfreezing temperatures, Auburn bar owner Patty Glanville spent two hours at a Cayuga County Board of Health administrative hearing to answer complaints she allowed smoking at her business, Costello's.

Glanville has refused to ban smoking in her establishment and has refused to pay a $100 fine levied by county health officials.

"The hearing today is the first step in the process of final determination as whether or not the law does apply to her and whether it should apply to her," said Kenneth P. Ray, of Utica, whom Glanville retained to represent her at the hearing.

Hearing officer Jack Tonzi made no decision but will advise the board of health and Glanville when he makes a ruling. The board will then decide if it will abide by the decision. "The law does provide for her the ability, if she wishes, to take the matter to court upon an adverse decision," Ray said.

Outside the county office building, about a dozen friends and supporters of Glanville marched for 90 minutes to show their displeasure over the state law.

"We're just showing support for Mrs. Glanville," said Joe Lober, protest organizer, as he carried a large American flag outside the building.

The state Clean Indoor Air Act, which took effect July 24, banned smoking in virtually all public places, including private businesses such as restaurants and bars. Violators face fines, but the law allows waivers for financial hardship or unusual circumstances.

Costello's is the first bar in Cayuga County to be fined under the law, but other establishments have been contacted about violations.

Eileen O'Connor, county director of environmental health, said 19 other facilities have received letters about reported violations of the ban, and three others have been notified by letter about violations witnessed by health inspectors.

Tonzi said the law is clear in banning smoking indoors. He said part of Tuesday's hearing focused on Glanville's claim that her bar should be exempt since it has no employees.

Glanville, a nonsmoker who lives in Fleming, runs the neighborhood bar on Aurelius Street that was opened by her father in 1948.

After three complaints from the public, the county Board of Health fined Glanville $100 on Nov. 12 and asked her to obey the law. She refused, and the board scheduled a hearing for Tuesday.

Cayuga County has yet to develop procedures to handle waiver requests.

The state Department of Health and several other counties have developed procedures to grant waivers, as allowed under the law.

Onondaga County has granted at least two waivers. The Brigadiers Bingo Hall in Syracuse received a waiver in November, and Damon's Party House in Cicero received a waiver in December. Both facilities have separate rooms where smoking is permitted.

For the protesters on the sidewalk Tuesday, the issue was freedom of choice as well as a show of support for Glanville.

"I'd like to see the law reversed," Lober said. "Smoking is bad for your health, but it should be people's choice to do what they want to do. I'd like to see them just let people smoke in her place."

Suffolk Life - January 21, 2004
        Local Bars Waiting For Smoke To Clear
        By Erin Carpenter

Several smokers are standing outside of the Printer's Devil in Port Jefferson on the evening of January 9. They are bundled up, furiously puffing away at their cigarettes.

Their exhaled smoke blends inconspicuously with the plumes of breath from surrounding non-smokers who are running to the warmth of the bar. All are grumbling that they miss "the good old days" when one could enjoy a cigarette inside, safe from the harsh winter elements.

Inside, the bar is looking rather empty. A smattering of loyal patrons are enjoying drinks and listening to the live music. Patrick Rimlet, a smoker, flips his zippo lighter subconsciously, announcing loudly, "I hate the smoking ban." Then he bundles up, goes outside, and lights up.

Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, explained the history of the smoking ban, and the waivers included within the law that might mean the return of smoker-friendly environments. "The Cleaner Air Act of 1989 is really where the story begins," said Wexler.

"With all of the media coverage on the smoking waiver lately, people probably think that the waiver is a new thing," said Wexler. "It's not. Actually, the possibility of a waiver has been in existence since 1989, with the passing of the Clean Air Act. When the smoking ban was passed on March 26, 2003, the waivers were still apparent, it's just receiving coverage now for some reason."

Wexler also explained the problem with the smoking ban legislation. "It's complicated," he noted. "Basically, the law is extremely unclear. The waivers are obtainable if, according to the law, a business can prove that it has suffered 'undue financial hardship' or if 'strict compliance with the law is unreasonable.' The problem with those provisions is that it's difficult for most people to understand what that means."

Wexler explained that the New York State Department of Health has issued five additional guidelines that could help clear up discrepancies in the waiver amendments in response to growing complaints from local bar and restaurant owners. "The five guidelines are as follows," said Wexler. "If a business owner wants to file for a waiver application, they have to do so on the basis of one of these criteria. Firstly, if a business owner can prove that they have lost at least 15% of their business by comparing revenue from three months after the ban to the same three months in the two years before the ban, then they would meet the first eligibility criteria.

"The second guideline pertains to business owners who had spent money on renovating their locations in order to meet health standards initiated by the Clean Air Act. For example, if someone spent thousands of dollars installing a separate smoking room and has not yet made back their money, they may be eligible for the waiver.

"The third guideline is really an amendment to the 'undue financial hardship' clause. Basically it states that if a business owner can prove that he has a reduced profit margin that directly relates to the smoking ban - for example, a decrease in bar profit only - then they may be eligible even if business has picked up in other areas, such as in dining rooms.

"The other two guidelines expand the law's explanation even further. The fourth guideline addresses the safety and security issue that the smoking ban has raised. I know of a bowling alley owner on Long Island who is applying for the waiver under this guideline because after people go outside to smoke in their bowling shoes, they run the risk of slipping on the slick floors inside. The forth guideline also pertains to bars and restaurants on busy streets where traffic/pedestrian safety issues are raised.
"The fifth guideline is an 'other' category, giving business owners a chance to plead a case that may not necessarily fall into the previously listed guidelines," Wexler stated.

"These additional guidelines were issued by the state Department of Health, but the Suffolk County Department of Health Services has not allowed these provisions into their legislation," said Wexler. "The Suffolk County Department of Health Services ultimately has the power to decide whether or not they will allow these guidelines to be grounds for application."
Wexler further explained that the state Department of Health can only issue the extended guidelines as a suggestion to counties that fall under the jurisdiction of county departments of health services. "Ultimately, the county departments make the final call."
Angie Carpenter (R-West Islip), deputy presiding officer of the Suffolk County Legislature, offered this statement: "Right now, the Suffolk County DOHS is charging a $500 application fee for business owners interested in the waiver. I think that this is slightly counterproductive, seeing as how people applying for the waiver are most likely suffering from financial hardships. My other concern is that if Nassau County begins to okay waivers to businesses out there, that tavern and restaurant patrons will travel out of Suffolk County to bring their business someplace where they can smoke indoors. Not only will this take away from business in Suffolk County, but it could place people on the road who may be under the influence and should not be driving. While the Suffolk County DOHS has not yet passed and legislation regarding the waiver, one way or another, I am planning on working with other legislators to address this issue and there will surely be further developments in this matter."

The Suffolk County Department of Health Services failed to return phone calls by press time.

Rimlet, who works as a bartender for a restaurant on eastern Long Island that he didn't feel comfortable disclosing the name of, walks back inside the Printer's Devil, muttering a few choice words before pulling off his gloves and scarf. "You know what the thing is," he begins, blowing warm breath onto his red hands. "I think all businesses have suffered [because of the smoking ban]. I know the place I work at has. I think that almost everyone can prove it, too. I just don't think that anyone will be able to prove it by the standards provided by either the state or local government. And that's really unfair."

Jonathan Schwadron, owner of the Sage Cafe in Blue Point, offered his opinion. "My bar business has slipped, definitely," he said. "However we've picked up business in our dining area so it kind of evens out. Still, though, I'd be interested in applying for the waiver."

A bartender at Someplace Else, a bar in Patchogue, who did not wish to be identified, commented that "business here is less than half of what it was at this time last year. As a matter of fact, right now I would usually have a semi-full bar of workers on lunch breaks, but there is no one here right now except for me."

Meanwhile, John Hall, a waiter at the Printer's Devil, is waiting for news regarding the status of the waiver possibility in Suffolk County. "I've noticed a slip in patronage, and have listened to the complaints of smokers for months. It gets particularly difficult to deal with in the wintertime, where people who smoke would rather just stay home and smoke their cigarettes and drink there instead of having to come out and stand outside to smoke."

Until the Suffolk County Department of Health Services decides whether or not to allow the additional guidelines into their legislation, it appears that Suffolk County smokers will remain left out in the cold.

Buffalo News - January 21, 2004
        Permanent smoking ban waivers sought

 JAMESTOWN - Supporters of the recently approved smoking ban waivers for area businesses will be heading to Mayville Thursday to once again plead for permanent waivers to the Chautauqua County Board of Health.

Brenda Perks, owner of Mel's Place, said her business is one of four that have been granted smoking ban waivers for the next 90 days.

But what happens after the expiration is anyone's guess, Perks said.

". . . We want to know what's going to happen after our 90 days are up," she said. Members of the Board of Health "still haven't given us any concrete answer to that."

Perks' group, Operation New York Freedom, was in Mayville Dec. 11 when the county announced the temporary waivers. The Board of Health also announced then that two bars would be fined for violating the smoking ban, even after a hearing officer recommended leniency.

Press Republican - January 18, 2004
        Ortloff: Let business make smoking rules
        By Joe LoTemplio

PLATTSBURGH — State Assemblyman Chris Ortloff is supporting a move to allow bars and restaurants to buy a license to allow smoking in their establishments.

Under the proposed bill, any business that has a liquor license may also apply for a license to permit smoking.

The license would cost $100 per year and would be granted without a review of a business’s financial records.

"This is not meant to be a revenue generator, but rather a means for someone to get back in the game if they want to, and they can do it by paying a nominal fee,’’ said Ortloff, who voted against the statewide smoking ban that went into effect last July.

Many bar owners have complained about the ban, saying they have lost business because of it. But recent surveys by the State Health Department show that business has actually improved for many bars and restaurants.

Businesses can apply for a waiver to the smoking ban, but they have to provide detailed records to prove that they have been financially hurt.

Fewer than 1 percent of businesses have expressed interest in obtaining a waiver.

Ortloff said a smoking license would give bar owners, and patrons, a choice of whether they want smoking.

"As an American, I am free to choose whether or not I want to enter an establishment where smoking is permitted,’’ he said.

"A license system allows restaurant and bar owners to decide whether their establishment is smoke-free or not. It need not be government’s decision.’’

Bobby Hall, owner of Bobby’s Lounge on South Catherine Street in Plattsburgh, agrees.

"Government has no business telling people how to run their own businesses. I’m an adult; I can decide what’s best for me."

Hall said the license idea may work, but it still is another shot for bar owners.

"I’m surprised it would be that low ($100), but what other restrictions are they going to put on it?’’ he said.

Ortloff hopes the bill gets introduced into the State Legislature in the next few days.

Associated Press - January 17, 2004
        Tribe Sues to Halt 'Net Smokes-Screen

Buffalo -- The Seneca Indian Nation is suing New York over the state's ban on Internet tobacco sales, claiming the law is unconstitutional and interferes with the nation's sovereignty.

The suit, filed in U.S. District Court, is the third legal challenge to the 2000 law enacted in June.  The other suits are pending.

The ban on Internet and mail-order sales of cigarettes was passed as public health law, with lawyers saying the goal was to limit children's access to cigarettes.

Times Union - January 17, 2004
        Bingo groups win smoking waivers
        Albany -- 3 nonprofit organizations that use Troy hall get region's first exemptions from ban
        By Erin Duggan

The jackpot hit by three Rensselaer County bingo groups this week wasn't cash or prizes, but yellow laminated pieces of paper: the first smoking ban waivers in the Capital Region.

The Capital District Celtic Cultural Association, St. Jude the Apostle School and St. Augustine Church were granted temporary waivers to allow smoking during their bingo games in the Troy Atrium. The groups, all nonprofit organizations that rely on bingo to help fund their activities, were the first in the county to apply for waivers. They showed the county they lost profits because of the smoking ban, said Rensselaer County Director of Environmental Health Roy Champagne.

"We had at one point considered giving bingo up," said Kevin Roe, director of the Celtic Cultural Association, which saw its profits decline 30 percent after the state's Clean Indoor Air Act took effect in July. "We're hopeful this will improve the situation to the point where we can depend on bingo to fund the operation of our programs."

The law prohibits smoking in bars, restaurants and other establishments that have employees. It includes a provision allowing businesses experiencing undue financial hardship because of the ban to apply to their local health departments for exemption waivers.

But the law didn't define what qualified as hardship, and county health departments struggled for months to develop an evaluation system -- with no guidance or financial help from the state. The state Health Department, which oversees 21 New York counties that don't have their own health departments, released its own standards in December.

Some supporters of the smoking ban, which was touted as a way to protect employees from secondhand smoke, fear the waivers could be the unraveling of the ban. Others see it as a way to keep the ban in place.

Russell Sciandra, director of the Center for a Tobacco Free New York and one of the ban's most ardent supporters, said Friday the Rensselaer County waivers were the right way to go. He said he was comfortable with the waivers, in large part because the waivers are contingent upon the bingo hall in the Troy Atrium maintaining a separate smoking room with an independent ventilation system. Workers at the hall are never required to enter the smoking room, so it protects nonsmokers, Sciandra said.

"I don't see that as an unraveling, as long as they require adequate protection for nonsmoking patrons and employees," Sciandra said. "Our concern is that this waiver situation is going to be used by (smoking ban opponents) to try to get loopholes written into the law."

Scott Wexler, the executive director of the Empire State Restaurant and Tavern Association and an outspoken critic of the ban, said his group will do exactly that if some business owners who show hardship are denied waivers.

"It could be very bad for the people who don't get waivers," said Wexler, adding that various counties are interpreting the waiver provision differently, with at least one county, Tioga, refusing to grant any.

Senate Majority Leader Joseph Bruno, R-Brunswick, said last month he supports the waivers, but his office had no comment on Bruno's district being the first in the region to see them granted.

Buffalo News - January 16, 2004
        Cold shoulder for smokers
        Now that winter is at its frigid peak, a quick drag is seen as an 'inhumane' exercise in endurance
        By John F. Bonfatti

New York's indoor smoking ban went into effect in July, when going outside for a smoke was, at worst, an inconvenience.
But on nights when the temperatures drop to zero or below, grabbing a cigarette between periods of a Sabres game can be much more than that.

Just ask Brian Mitchell of North Tonawanda, who was standing outside between periods of the Sabres-Flyers game Tuesday. "It's inhumane," said Mitchell, standing in the "cattle pen." That's the term smokers attending HSBC Arena events use to describe the fenced-in area on the sidewalk at Main and Perry streets where arena patrons are told they can light up.

As Buffalo's winter settles in, smokers are finding little shelter outside of their homes and cars from the biting winds and frigid temperatures.

Some smokers, like one man spotted inside one of the entrances at City Hall, use out-of-the-way places indoors and take their chances that they won't get caught.

Some said they're setting up special places in their homes, where the comforts of their neighborhood bar - camaraderie, sports on TV and cold beer - can be enjoyed along with their favorite smokes.

"I've set up a bar in my garage," said Mark Johnson of South Buffalo, who was grabbing a between-periods cigarette at the Sabres game. "And a friend of mine has also set one up in his garage, and we go over there to watch games."

Some bars remain defiant

Others seek out bars that have essentially ignored the ban, much to the frustration of compliant bar owners who believe they're losing customers to competitors who allow smoking.

"I'm not going to blow anybody in, but I know my regulars are going to other places and smoking," said Dottie Knapp, owner of Dottie's Place in South Buffalo. Knapp said she is complying with the law.

But mostly, smokers stand outside - as they have since the state's Clean Indoor Air Act went into effect. And they wonder how long they will have that option.

"It'll get to the point where . . . if you're walking down the street, you can't have one," said Linda Coleman of the Town of Tonawanda as she took a smoke break with friends in front of the Verizon building downtown.

As it is, said Coleman and her co-workers, Verizon has cut down on the number of areas in front of the building where people can smoke.

"And you're not supposed to be smoking there," one of the workers said, pointing to an area five feet away from the designated smoking area but closer to the entranceway, where a co-worker was lighting up.

Statistics vary on how many Western New Yorkers smoke.

According to a 2001 survey conducted for Roswell Park Cancer Institute, 22.2 percent of Western New York adults smoke, although the most recent statistics from the federal Centers for Disease Control and Prevention put the proportion at 29 percent locally.

The national average is 22.8 percent, and the statewide average is 23.4 percent, according to the American Lung Association.

Nowadays, people aren't supposed to be smoking indoors, but it's not difficult to find bars that are turning a blind eye toward the ban.

At Hopper's Rush Inn in South Buffalo on a recent weekday afternoon, the bartender, who was smoking himself, hesitated only slightly when a patron sidled up to the bar and asked for an ashtray. Smokers puffed away at either end of the bar.

Owner Bob Rush acknowledged he has been issued a county citation and said he would start being more insistent about people not smoking in his bar.

"I have to," he said, adding that the "crazy law" had cut his business in half. "Hey, I let a guy from Vietnam with one leg smoke in here. What am I supposed to tell him, go outside?"

And at the bar commonly known as the Old Pink on Allen Street, where patrons are greeted with a large "No Smoking" sign on the front door, a handful of patrons and one of the bartenders spent the better part of a Wednesday evening smoking at the back of the bar.

But that may change.

Grace period is over

Erie County didn't start to agenforce the smoking ban gressively until December, said Peter Coppola, the county's associate public health sanitarian, who said the emphasis until then was on educating patrons and owners about the law.

The grace period is over, and the county has issued about 20 citations since the first week of December.

"We're going to actively enforce this law," Coppola said. "People are surprised we're out at 11 at night, but we are. Some of the complaints we're getting are that the bars are allowing people to smoke after midnight. Well, guess what - we're going to be out after midnight."

Since the law went into effect, Coppola said, the county has received 370 complaints about smoking in prohibited places.

Some bars, like the Third Room on Chippewa Street, have found ways to accommodate smokers within the law. Co-owner Charlie Goldman has installed a series of gas heaters on the outdoor deck behind his bar.

"But it's not covered, so it doesn't stop the cold, and we were unable to use it last weekend because it was too cold," he said, adding that the heaters are ineffective when the outside temperature is less than 20 degrees.

Has law inspired quitters?

Is the colder weather pushing smokers to quit? Two possible indicators - smoking cessation programs run by the American Lung Association of Western New York and Roswell Park - provide contradictory evidence.

Dr. K. Michael Cummings, director of cancer prevention at Roswell Park, said 40 people enrolled for the center's most recent quit-smoking program that started earlier this month, up from 15 for the previous class.

But Cummings said a possible reason for the increase is that this month, the program offers an incentive: nicotine substitutes such as gum or a patch.

Calls to the New York State Smokers Quit Line, which is operated by Roswell Park, are also up, he said.

"But it's because we're doing promotions with a lot of local groups around the state," he said.

The lung association, which also conducts smoking cessation classes throughout the area, has been disappointed by the response to its most recent classes.

"Not only haven't we seen any (increase in enrollment), but we scheduled three classes and it looks like we will not run any of the three because we've only had three people respond," said Susan Schutte, the association's acting chief executive officer.

"It seems to me, no matter how inconvenient we make it for people to smoke, people will still smoke," she said, "even if it means standing out in the inclement weather."

NYC CLASH Note: Admittance that the smoking bans pushed by the nannies are not to protect others from smoke but to "inconvenience" smokers in the hopes they'll be forced to stop smoking?

The Ithaca Journal - January 16, 2004
        Tioga Health Board nixes all smoking ban waivers
        By Greg Erbstoesser

OWEGO -- Tioga County will refuse to grant any waiver that would allow smoking in bars, restaurants and other businesses, becoming the first Southern Tier county to do so.

The county Board of Health voted unanimously on Thursday to disallow all waivers, Health Director Johannes Peeters said. The vote followed the board's monthly meeting.

Board members, Peeters said, view the dangers of second-hand smoke as outweighing any potential economic hardship claims by the businesses.

Peeters said other New York counties, including Chautauqua, Westchester, Suffolk and Livingston, have taken "no-waiver" positions.

Tioga's position follows the views taken by the New York State Association of County Health Officers, Peeters said. A 2003 law prohibits smoking indoors in most such businesses unless they've been granted a waiver.

"The board carefully considered the balancing of economic hardship against the known health hazards of exposure to second-hand smoke and concluded that its responsibility ultimately rested with the protection of public health," Peeters said.

Deborah Pursell, who owns the Stagecoach Saloon on North Avenue in Owego, said the smoking ban and the health board's decision are driving patrons to Pennsylvania, where smoking is permitted in bars and taverns. She attended Thursday's meeting.

Tioga County Attorney David Dutko said the health board views the indoor smoking ban as a serious health issue that should not be compromised or diluted by waivers.

Dutko and Peeters also questioned a state law that allows counties to adopt waiver provisions that could differ from county to county. Dutko said the state Legislature should consider a statewide waiver policy.

Peeters said several bar owners have sought waivers from Tioga health officials. Denial of any waiver can be appealed to the state Department of Health and ultimately to the state courts, Peeters said.

Tioga's seven-member health board is composed of three physicians, two veterinarians and two Tioga County legislators. Board member John Ober, a veterinarian, was absent from Thursday's meeting, Peeters said.

Oneida Dispatch - January 15, 2004
        Oneida County to issue smoking ban waivers
        By Mike Ackerman

UTICA - Tavern and restaurant owners who are losing business in Oneida County may now see some light at the end of the economic tunnel regarding the state's newly-imposed smoking ban.

On Wednesday, Oneida County Executive Joseph Griffo announced the county will immediately begin granting waivers to businesses that have lost money because of the indoor smoking ban.

The Oneida County plan will require businesses to prove financial hardship of at least a 10 percent reduction in sales tax receipts for three months since the ban took effect last July, compared with the same three months in 2002 and 2001.

A tavern or restaurant owner can also show financial hardship by showing that he or she made capital expenditures prior to July 24, 2003 that were related to providing a smoke-free environment, though the new law makes it impossible to recover the costs of that investment.

The smoking waiver will only be valid through the end of 2004. At that time, the county will evaluate its waiver policy in light of any state legislative or administrative actions that revise the Clean Indoor Air Act's enforcement provisions.

"The goal of our waiver policy is to work with the many bar, tavern and restaurant operators who have faced significant losses from the impact of the new law," said Griffo. "Despite the law's good intention, it's not helping employees who are facing reduced hours and owners who are facing reduced profits.

"Breathing cleaner air cannot come at the cost of income needed to support a family."

Many county taverns and restaurants signed up for the long-awaited waivers as soon as the state announced them. Having to show a three-month, 10 percent hardship though, may only come from the winter months, says Nothin' Fancy Cafe owner Abe Acee.

"Right now is the time that we're being hurt the most," he said. "We're fighting the smoking ban, the lowered blood alcohol level, and now the cold weather ... no one wants to go out and this has just knocked the heck out of my business."

Acee said he is one of the many owners who signed up early on. Oneida bar owner Terry Karst (Bec's Ivy Grill), said any who didn't early on may be wishing they did.

"I don't know how long it will take the health departments, but I think it's on a first-come, first-served basis," said Karst. "One good thing is that at least Oneida county lessened up on the regulations compared to the state's."

New York state-run health departments (those not operated solely by counties) are issuing a waiver that requires proof of a 15 percent loss in business.

Madison County has been taking a wait-and-see approach to developing its waiver, according to county leader Rocco DiVeronica. Madison County Health Educator Virginia Zombek said the county should have its policy developed soon.

U.S. Senator Charles Schumer, visiting Madison County on Wednesday, said he opposed the law from its inception.

"I couldn't believe the state passed it," said Schumer. "The original law that New York had wasn't bad with the requirement of separate seating.

"This law just came out of Albany like a bat out of hell. There might be some ways to amend it, I hope."

Karen Reid, who owns the Westshore Hotel in Vernon, said she signed up for the Oneida County waiver last year.

"They told me that as soon as it came out I'd be able to get one. My business has been awful ... it's a tough nut to crack, and that's why I have a 'for sale' sign out front."

Acee said the waiver, though a step in the right direction, places bar owners between a rock and a hard place.

"So, everyone comes to your establishment to smoke and drink for a year, you make good money, then you won't qualify for the waiver the next."

The smoking waiver applications are available at the Oneida County Health Department and on the Oneida County website, www.ocgov.net.

"Oneida County will enforce the law, but we will also protect business owners for whom this has been an economic disaster," said Griffo.

Observer Dispatch - January 15, 2004
        Griffo eases smoking ban
        Businesses in Oneida County can get waiver if 10% revenue is lost
        By Elizabeth Cooper

Oneida County Executive Joseph A. Griffo will allow waivers for businesses that can show their revenues have dropped at least 10 percent because of the state-mandated smoking ban.

The ban, which took effect July 24, forbids smoking in any workplace in order to protect employees from the effects of second-hand smoke. Though many health advocates have thrown their support behind the ban, restaurant and bar owners say customers are staying away in droves.

The statewide smoking ban, called the Clean Indoor Air Act, includes a clause allowing businesses experiencing undue financial hardship to apply for a waiver. County governments have discretion over such waivers for businesses within their boundaries.

"We have two goals, both of which must be met," Griffo said. "We want to achieve cleaner indoor air to improve the public health and comply with state law. We also want to work with all of our businesses so that the price of cleaner air isn't going out of business."

He also announced new policies to enforce the smoking ban in establishments that do not receive waivers.

Some waivers may be granted as early as Feb. 1. Waivers will be valid until Jan. 1, 2005, and could be renewed for at least a year.

Griffo said the county has received numerous calls from bar and restaurant owners reporting significant drops in business. Fifty-seven entrepreneurs had requested waiver applications before Griffo's announcement.

Tom Legg, vice president of the Oneida County chapter of the Empire State Restaurant and Tavern Association, welcomed the news.

"This is a good day," he said. "Since the law went into effect, we have been waiting for a lot of non-smokers to fill our chairs and it hasn't happened yet."

He said the businesses his organization represents have suffered greatly under the ban and called the 10 percent business drop requirement "more than enough" to help troubled establishments.

But a spokesperson for the American Cancer Society said the 10 percent waiver made Oneida County "the black sheep of New York state," because it is too lenient.

"It is very obvious that Oneida County has caved to the small minority of squeaky wheels," said Sherry Tomasky, advocacy director for the regional office of ACS. "They are absolutely disregarding the large number of lives that could be devastated if unrestricted smoking is allowed back in the workplace."

Tomasky and Katie Baker-Wood of Smoke Free Mohawk Valley noted that Griffo's 10 percent sales reduction was less than the 15 percent loss the New York state was requiring for waivers in the 21 counties in which it oversees the enforcement of the ban. Neighboring Herkimer County is one of those.

But Griffo said requiring a 15 percent was too hard on businesses.

"We thought it was important not to devastate businesses," he said.

Tomasky and Baker-Wood said Griffo had not defined how he would protect workers and patrons in establishments that were granted waivers.

"The only way to protect workers is to have a separately enclosed, separately ventilated, smoking room that employees don't have to enter," Baker-Wood said.

Assemblywoman RoAnn Destito, D-Rome, called the smoking ban a "double-edged sword," adding that its backers and opponents had valid concerns. Though Destito voted for the bill, she said she had reservations about it even then.

"I'm glad he issued the waivers," she said. "There were a lot of businesses that were really hurt by this legislation."

State Sen. Ray Meier, R-Western, could not be reached for comment.

County Public Health Director Eric Faisst estimated that processing each waiver request will take between one and two hours of county time. His director of environmental health, Nicholas DeRosa, said there are between 900 and 1,100 bars and restaurants in the county. Faisst said they had not yet determined how much implementing the waiver process would cost, as there is no telling how many establishments will apply.

Existing health department staff will be processing the requests, Faisst said. The state did not supply any funds to aid with the enforcement of the ban or the implementation of waivers.

WSTM TV - January 14, 2004
        Hotel, Club Owner Turning To Internet To Net A Sale

You've probably seen the commercials, showing what you can do on eBay.  Well, with a click of the mouse, you could add buying hotels and nightclubs.

The owner is closing up shop because of the state smoking ban, and he's tuning to the online auction site to net a new owner.

Hotel Oneida is for sale, so folks worldwide can check it out on eBay.  They can also bid on it, with an asking price of $350,000.  Richard Pfhol, the owner, is selling this property, which features, among other things, two bars, because customers there can no longer light up.

"My biz is down, 50/60 percent that was during the slow part, now were going into the slow, it's not worth staying open," said Pfhol.

Pfhol says he's using eBay because the web site reaches so many people.

But he's not stopping at selling off the hotel.  He's also selling Pfhol's Beach House, a waterfront nightclub and bar located in Sylvan Beach.  That property is going for $750,000.  On eBay, you can check out pictures of the property, and a description which draws attention to the location.

"You're also close to Turning Stone Casino.  I think a lot of the outlying area could do a good business off of Turning Stone," said Karen Norton, nightclub manager.

Now, both properties are closed up.  Pfhol can finally do what he wants in the building...smoke.

He says the state law banning smoking in bars and restaurants is ridiculous.

"I am a hands-on owner.  I am always in the building when it's open, and I can't smoke in my own building," he said.

Pfhol is taking his bar down south, saying he plans to open up a business in Florida.

Oswego Daily News - January 14, 2004
        Cold Weather Plus Smoking Ban Equals Bad Business, Tavern Owners Report
        By Steve Yablonski

Business at area taverns is plunging lower than the mercury this winter, according to the owners.

Some of them say they aren't sure if they'll survive.

The Clean Indoor Air Act was amended last summer to prohibit smoking in just about every workplace and public area.

Lou Ann Ahart, owner of the Lighthouse Tavern on East Bridge Street in Oswego, said it's hurting business - everybody's business.

"Business was so bad we couldn't even afford to pay for a bartender yesterday," she said.

The tavern did an OK business during the warm weather, she admits. However, during December and January business has dropped off considerably, she said.

"A lot of bars in Oswego aren't going to be able to survive much longer," she said, adding that she has heard from her beer suppliers and other vendors that approximately 15 bars around the county would likely close before the end of this year.

She named four that had already closed recently in the Port City.

Ahart says she has no room in which to build an enclosed shelter to protect patrons going outside to smoke.

"It doesn't look good. I've even been closing early," she said. "My lease runs out in July.  If things don't turn around before that, I'll just pack up and get out of Oswego."

Taverns can apply for a waiver, if they meet certain criteria. Ahart said the county doesn't have the waiver forms yet, but she is on a waiting list.

The county has a "proposed policy" for granting waivers, she noted. But, until it officially adopts it, people requesting waivers are put on a waiting list, she explained.

"I still think it's wrong," Ahart said of the smoking ban. "Not too many people are willing to stand up for their rights. A lot of people are just standing in the background complaining."

Business has also slowed down at Toucan's Tropical Tavern in Oswego.

Nestled between Water and West First streets, the tavern has no area to afford smokers protection from the elements, especially the brisk winter winds coming off the Oswego River.

"People have been complaining about it, even more so since the cold weather. Some have even said they'd try to quite smoking instead of standing out in the cold," said Denise Constanza, one of the owners.

Business has slowed down "quite a bit" since the cold weather hit, she said.

During last week's cold snap, the doors and windows were iced over so badly that you couldn't see the people smoking outside, she added.

She said Toucan's might also try and get a waiver.

"We don't know exactly what we might have lost," she said. "When we get everything together to do our taxes we can compare last year with the previous year and look at what the difference is between July to December for the two years."

Denise and her husband, John, own the building and took over the bar about two years ago, she explained.

"It's been tough at times. But we're still hanging in there," she said.

Pam McLaughlin of the Shamrock Tavern on West Seneca Street said she's still hanging in there as well, but her days may be numbered, she added.

"Our business is down half since the ban started," she said. "If you don't have darts or Karaoke or something to bring in customers, they're going somewhere else now, somewhere they can smoke."

She said she is also considering applying for a waiver. However, since the county doesn't even have a policy in place, she wondered what's the use?

"I am going to give it another year. And if it doesn't turn around after that, I'm done. I'll just close up and look for another job. I can't afford to keep losing money," she said.

Like many other tavern owners, she says she doesn't agree with the smoking ban.

Maybe in the summer people don't mind stepping outside for a smoke; but who wants to stand outside and smoke in freezing cold and snow, she said.

"We're losing a lot of business to the clubs where smoking is allowed. An awful lot of people are going to the clubs, and I don't blame them," she said. "We usually get a small crowd of people after work who stay for about an hour. Then, I might be sitting here with just two or three people until midnight."

Niagra Falls Reporter - January 12, 2004
        CITYCIDE: SMOKING BAN AMENDMENTS HOT TOPIC AS ALBANY LEGISLATIVE
      SESSION OPENS
        By David Staba

It looked like the perfect plan.

Late last winter, armed with spurious statistics, irrelevant comparisons and a strategy for sneaking the nation's strictest smoking ban through the state legislature and onto the desk of Gov. George Pataki, anti-smoking forces descended on Albany.

While the mainstream media snoozed, legislation prohibiting smoking almost anywhere except your own home or vehicle -- and don't think they didn't try to tell you what to do in those places, as well -- zipped from fond wish to state law in less than 48 hours.

The law took effect after state Assembly members and senators returned home for the five or six months off they get each year. Whatever resistance there might be from business owners and constituents, the thinking went, would surely die down by the time the 2004 legislative session kicked off in January.

Well, not quite.

"Based on public opinion I'm hearing, I think it's appropriate to try to find some kind of middle ground," state Sen. Byron Brown told the Niagara Falls Reporter.

Brown said he was stunned by the level of response to a survey his office sent out to hundreds of businesses, bingo halls and veterans' groups stung by the smoking prohibition.

"Even people in the hospitality industry said, 'They're not going to respond,'" Brown said. "But we got a phenomenal response rate. More than 40 percent of the surveys we sent out came back, and 87 percent of the responses said this is hurting their business and wanted to see a modification."

Brown, who initially voted in favor of the ban, said legislators were hoodwinked by ban supporters, who cited statistics allegedly showing that a similar law in California hadn't hurt restaurant and bar business, while pointing to the support of the New York State Restaurant Association as evidence that business owners supported the bill.

Last weekend, while sub-zero temperatures made standing outside for more than 30 seconds a nostril-freezing, flesh-endangering experience, California also endured a cold snap. In Los Angeles, the mercury dropped all the way down to 53 degrees on Saturday.

"It's like apples and oranges," Brown said of applying California's experience to New York. "They don't have the harsh weather we have, and people just aren't able to go out on a patio and smoke in the middle of winter here."

And the lobbying group in favor of the ban only represented a fraction of the industry, mainly large chain restaurants that don't rely heavily on their bar business. Most of those hardest-hit by the ban -- the mom-and-pop restaurants and corner taverns -- didn't know anything about the ban until the law was passed.

"I was led to believe by advocates for the ban that business groups had changed their position and come to the point where they felt the ban was fine and wouldn't hurt their business," Brown said. "I was under the belief that a lot of outreach and education had been done with businesses and not-for-profit groups. Those factors really motivated me at the time to vote for it.

"Then we started hearing from businesses in the community. As we began hearing more and more, I realized, 'There's a problem with this and I've got a lot of unhappy constituents.'"

Brown said multiple bills have already been introduced in the Senate and Assembly that would modify the ban and that he and several colleagues are working on their own amendment to introduce in the coming weeks.

Possible changes range from granting waivers to businesses that put in separate smoking rooms with special ventilation systems, similar to those seen at some restaurants in Erie County. An increase in the number of one-day exemptions available is another possibility, Brown said.

One option would be the introduction of what amounts to a smoking license.

"Some have suggested charging an administrative fee and allowing establishments to indicate with a sign whether they're a smoking or non-smoking establishment," Brown said. "That would give people some choice."

While the hospitality industry is already heavily taxed, even by the standards of the fee- and surcharge-addicted state government, most bar owners say they'd be willing to pony up so their customers can light up.

"An administrative fee would be less than the amount of money we've lost through losing our smoking customers, so it's certainly worth it," said Judi Justiana, owner of Judi's Lounge and a vocal critic of the ban. "If (adding another fee) was the plan from the beginning, I'd be upset, but I really don't think it is."

While smoking-ban revisions have been a frequent topic among rank-and-file legislators in the early days of the 2004 session, which opened last week, Senate Majority Leader Richard Bruno and Assembly Speaker Sheldon Silver haven't indicated when, if ever, they'll allow revision of the ban.

"There seems to be some reluctance on the part of leadership to discuss any modification or changes," Brown said. "Some of the most controversial issues don't come to the floor until later in the session."

With state officials staring at a $6 billion budget hole, the session could extend well into the summer. But even if Bruno and Silver resist revisiting the ban, the heat many legislators are feeling will keep it on their agendas.

"I can tell you, this will be something members will be talking about amongst themselves," Brown said. "I think there's middle ground that can be found here so that we can safeguard people's health and not trample on people's liberties. We should allow people to make decisions on how to live their lives when it comes to legal products."

Democrats like Brown can't pass legislation in the Senate without Republican cooperation. State Sen. George Maziarz, who also voted for the ban initially, said there's now support on that side of the aisle for change, as well.

"I think there is no question there are going to be revisions to the law," said Maziarz, who sent out surveys to his constituents last week aimed at getting their input on the ban.

Of course, it would have been nice to hear such reasonable voices emanating from Albany before the ban was passed in the first place. But the business owners whose numbers are getting crunched by the prohibition will settle for "late" when it comes to fixing the over-reaching and quite possibly unconstitutional law.

Just so long as it doesn't turn into "never."

Post Standard - January 11, 2004
        County studies smoking waiver plan
        Health department has received 58 inquiries to allow smoking in bars.
        By Edwin Acevedo

Bar and restaurant owners in Oswego County who want a waiver for the state's smoking ban will likely face a 20-page application, health department officials said.

The state's Clean Indoor Air Act, which went into effect July 24, banned smoking in virtually all public places. The county board of health on Friday reviewed a proposed policy for granting waivers to the state smoking ban.

The county health department has received 58 inquiries about smoking ban waivers, including 14 written requests, said Natalie Roy, a county public health sanitarian.

Department workers reviewed the requests but without a policy in place, the requests are on hold, Roy said.

There was no quorum Friday on the nine-member board, so no vote was taken. Kathleen Smith, the county's health commissioner, said she would survey members by phone to see when a quorum can next meet. Smith said she'd like to get a policy in place as soon as possible.

The law allows for waivers if a business can prove that the smoking ban has caused a financial hardship or unusual circumstances.

"Certainly we've heard anecdotal stories of people who have lost 40 percent of their business, but they've got to show something so we can see the undue hardship," Smith said.

The county had been waiting for the state health department to come up with guidelines to allow waivers, Smith said. Those guidelines were issued Dec. 12.

Roy, who presented a report to the board of health Friday, outlined what the application process would be like.

The fee for an application would be $100, which is the same as neighboring counties. Oswego County would look at sales tax statements over two years, comparing three consecutive months prior to the smoking ban and the same three months after the smoking ban. The business would have to show a 15 percent loss in business since the smoking ban took effect.

Any establishment that has

been open less than two years would turn over all their financial data.

Applicants also would have submit a diagram of their establishments to show how employee exposure to secondhand smoke would be minimized, either with a separate smoking room or a mechanical ventilation system.

A review committee, made up of health department staff, would review the applications, Roy said.

A waiver would last two years and are not transferable.

"It's really going to behoove them to do a good job to fill out the application," Roy said. "We'll definitely answer their questions, but we're not going to fill out their applications for them."

Since the ban went into effect, the county health department has warned 12 establishments they were violating the law.

Violators in Oswego County are warned first, then assessed a fine of $500 if the owner doesn't contest the violation. If the owner contests the violation and loses, the fine is $1,000.

Cindy Sinisgalli, owner of Ship & Shore Tavern, 56 Kellar Road, West Monroe, said she has been waiting for the county to come up with a policy, even though she's opposed to the smoking ban in the first place. Hers is one of the 14 businesses that put its request for a waiver in writing.

As far as protecting employees, toll booth workers on the state Thruway are exposed to far higher levels of pollutants than smokers, she said.

"All these liberals, they want to stop this, they want to stop that," said Sinisgalli, who has owned her tavern for four years. "Our soldiers are over there (in the Middle East) fighting for people to get what they never had and over here they're taking it away faster than we can give it to them over there.

"I don't see how they're going to be able to give one and not all," she added. "I believe that it should be up to the individual establishment. I think I should have the right to ask my customers if they want smoking or nonsmoking."

Onondaga County, which developed a waiver policy before the state released its guidelines, has granted two waivers: one to Damon's Party House, in Cicero, and the other to the Brigadiers Bingo Hall, in Syracuse.

Several Onondaga County establishments have been granted one-day "tobacco sampling night" provisions to the smoking ban, including seven on New Year's Eve.

However, one Onondaga County establishment, the Cam-Nel Restaurant in Mattydale, closed Nov. 30, blaming the smoking ban.

In Cayuga County, an Auburn bar owner has defied the law by allowing smoking without a waiver. Patty Glanville, owner of Costello's, also has refused to pay a $100 fine.

The Boston Globe - January 11, 2004
        A New York smoking ban has barstools reeling
        By Ron DePasquale

DUNKIRK, N. Y. -- In this city along Lake Erie, once a humming industrial center now plagued by factory closures, anyone hoping to toss back a couple of drinks in a bar and talk of better times must do so without a cigarette.

Two cousins, one who smokes, the other who never has, were drinking one night in a Central Avenue bar called Tito's.

"You really think anyone's going to quit smoking because of a law?" said

Carlos Gonzalez, 45, a janitor who likes to smoke when he drinks. He asked the bartender if she knew about a lawsuit filed against the state's Clean Indoor Air Act, which was hailed by health advocates as one of the nation's strictest smoking bans when it took effect July 24. "You don't have the right to inflict harm on others," said Manuel Gonzalez, 48, a machinist and the nonsmoking cousin, who supports the ban. "There is no right to smoke. It's dangerous."

Bars in places like Dunkirk, near the Pennsylvania border, and in towns along the New Jersey border to the south have complained of losing business to states that do not have similar smoking restrictions. (In Massachusetts, a statewide ban was voted in November that included smoking in bars and restaurants. It will take effect in July.)

Critics have called the New York ban too harsh for the upstate economy; supporters have pointed to a recent finding that bars and restaurants have not been hurt.

Tax receipts on alcohol increased 2.8 percent from August to November of 2003 compared with the same period of the previous year, while the number of bars and restaurants licensed to serve liquor increased 1.1 percent from October 2002 to October 2003, according to an analysis of state data by the Roswell Park Cancer Institute of Buffalo. The study did not differentiate between downstate and upstate, where tough enforcement of the ban began only recently, and where rural counties without health departments rely entirely on the state for crackdowns on bar owners.

Supporters of the ban say it allows everyone to compete on a level playing field. Critics call that a fantasy because the prohibition is being enforced differently in the state's 62 counties.

Ignoring the law has been easier in the rural northern and eastern regions that border Vermont and Massachusetts, said Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, which has filed a lawsuit against the ban. While compliance varies around the state, bars everywhere are struggling, he said.

"There are a couple every week that close down, due at least in part to the smoking ban," Wexler said.

Brad Dixon, owner of the Solsville Hotel, near Syracuse in central New York, said that after one fine he is "trying to go legit" but notes losing money to other bars, including one right across the street, that still allow smoking inside. Business on the weekends has been cut in half, he said.

"It's unfair," Dixon said. "They're enforcing it on a complaint basis only at the Health Department, and they have only four employees. I'm not going to turn in the guy across the street."

A health official, Dr. Michael Caldwell, however, said the process has been "surprisingly smooth." Fines can total thousands, get the message across quickly, said Caldwell, president of the New York State Association of Public Health Officials and health commissioner of Dutchess County, in the Hudson Valley.

"We go in and educate them . . .After a day or two if they're still permitting smoking, we make it clear to them that we're not kidding, and we start fining," he said.

The state Health Department ruled recently that waivers can be granted to businesses that can show they have lost at least 15 percent in sales since the ban went into effect.

The state's other 41 counties are free to set a higher standard or refuse to allow waivers altogether, but the 15 percent mark could still become the benchmark.

The state's ruling was cheered by the ban's opponents, like the Empire State Restaurant and Tavern Association. That group filed a lawsuit seeking a preliminary injunction, asserting that the law is vague and that it gives the federal power of regulating workplace safety to the state. A federal district court judge in Syracuse dealt the suit a blow in October when he dismissed a request for a preliminary injunction against the ban.

Buffalo News - January 10, 2004
        Businesses plead for smoking ban waivers
        By Henry L. Davis

Business owners passionately criticized the state's smoking ban at a public hearing Friday, warning that they need exemptions from the law to survive.

"I've cut my staff by half. My bottom line has been eroded," said Joseph Augello, owner of Crabby Joe's Bar in Buffalo.

He and many others - from corner tavern owners to officials of the  huge Western Regional Off Track Betting Corp. - contend the law imposes a financial hardship they cannot bear. They say they should be allowed to use separate smoking areas and other measures to accommodate smokers, instead of forcing them outside.

The hearing, one of three held Friday by County Legislator Charles M. Swanick, R-Kenmore, was billed as an opportunity for the business community to have its say on waivers.

But smoking opponents and others also showed up to make equally passionate arguments.

To Terry Alford, the ban makes sense, considering the high rates of smoking-related disease in the area.

"We don't support waivers. They won't work," the representative of the Erie-Niagara Tobacco-Free Coalition told the crowd of about 35 people who attended the hearing at the Erie Community College City Campus.

Another hearing held earlier in the day on the ECC North Campus in Amherst attracted about 70 people, Swanick said. A third hearing was scheduled late Friday afternoon on the ECC South Campus in Hamburg.

The state's smoking ban took effect July 24. Since then, the county Health Department has received about 130 requests for waivers, according to officials.

The law allows counties to establish their own criteria for exemptions, but Dr. Anthony J. Billittier IV, county health commissioner, had said he preferred to wait for guidance from the state.

But things changed in December when, ruling in a lawsuit filed by Jimmy Mac's, an Elmwood Avenue bar and restaurant, State Supreme Court Justice Rose H. Sconiers gave Billittier until Jan. 23 to devise criteria for waivers.

The county ignored the law for five months, said Nicholas P. Amigone III, the attorney who represented Jimmy Mac's. The suit claimed that the county had no right to reject the restaurant's request for an exemption when the law includes an exemption provision.

Dec. 12, the state issued rules that apply only to the 21 counties that don't have their own health departments but could provide guidance for others, such as Erie County. The state rules would allow two-year waivers of the smoking ban for "undue financial hardship," defined as a reduction in food and beverage sales of at least 15 percent. Waivers also could be issued for safety or security reasons that would make compliance unreasonable, for construction-related hardships or in "exceptional circumstances."

Amigone questioned the use of sales tax data to measure economic hardship.

Tax collections could rise while alcohol excise tax collections decline. Because the profit margin on alcohol is greater than on
other items sold in bars and restaurants, the businesses could suffer even while sales tax collections increase, he and others argued.

"I certainly can prove a loss of revenue greater than 15 percent," said Michael Campbell, owner of Buddies, a bar on South Elmwood Avenue.

"Overall, my business has fallen by 25 percent to 30 percent," he said. "I have been forced to cut back my staff and their benefits, and to reduce business hours."

But is business really falling?

Alford offered another perspective.

He said labor statistics for the food and drinking industry across the state show employment has increased in each of the four months after the law took effect, compared with same month the previous year.

For the August-to-November period, statewide collections of the alcohol excise tax increased by 2.8 percent compared with the same four months in 2002. Also, he said, the number of facilities licensed to serve liquor has increased from a year ago.

"The law has not been given enough time," Alford said.

Other critics of allowing waivers cited the health risk, especially for employees, of breathing secondhand smoke and said a "silent majority" not represented at the hearings supports the legislation.

"Smoking is legal and shouldn't be made illegal. But when you smoke, there is secondhand smoke, and there is a lot of evidence that it is harmful," said Daniel Sack, a Buffalo resident.

Sack said the previous county smoking ban, which allowed separate smoking areas, was poorly enforced and made nearly worthless by the approval of too many waivers.

If the county allows exemptions to the state ban, Sack said, the guidelines should be clear and strictly enforced.

Swanick said he was pleased with some of the ideas that came out of the hearings.

The proposals included accommodating businesses that see themselves as having special circumstances, such as bowling alleys and billiard halls; applying the waivers while adhering to the spirit of the law; not making proof of undue financial hardship too burdensome; and providing exemptions for businesses that previously spent money to separate smokers from non-smokers.

Press of Atlantic City - January 8, 2004
        INDOOR SMOKING BAN LIKELY STUBBED OUT IN NEW JERSEY
        By Thomas Barlas

An effort by New Jersey anti-smoking groups to get the Legislature to pass the best-they-could-get version of the "Indoor Clean Air Act" has apparently failed.

Bill advocates made a final push last month to get the lame-duck Legislature to approve the measure before it adjourns.

The Legislature meets Monday for the last time this session. The bill isn't included in the Assembly's schedule, and New Jersey officials said they don't expect the state Senate to take up it up, either.

Buffalo News - January 6, 2004
        Bowling center closes, victim of smoking ban
        By Tom Buckham

Amherst Bowling Center, one of the city's largest and oldest businesses of its kind, has closed, and the two-story brick building at 47 E. Amherst St. near Main Street was sold, sources said Monday.

The proprietors, Max Striegl Jr. and his sister, Betty Warden, could not be reached to comment, and Dale Brenkus, who managed the facility, declined to speak with a reporter.

However, bowling industry sources familiar with the 48-lane Amherst Street operation said that like most bowling alleys, it was hit hard by the statewide smoking ban that took effect last July.

Business has fallen 11 to 12 percent at bowling establishments across the state and may have been the last straw for Amherst Bowling Center, which "was not doing that well" before the anti-smoking law was imposed, said Len Pimm, president of the Western New York Bowling Proprietors Association.

"They haven't been using the whole facility for a while," Pimm said of the Amherst Street establishment, which closed Friday after 57 years of continuous operation.

"But everybody in our business took a hit because of the smoking issue."

Without question, the smoking ban sealed Amherst Bowling Center's fate, said Mark Williamson, manager of Voelker Bowling Center, 686 Amherst St. at Elmwood Avenue. The two establishments shared many of the same customers, he said.

At Voelker's, the smoking ban "hit us like an anvil," curtailing bowling activity by 30 to 40 percent and the bar business by 20 to 30 percent, Williamson said.

"We had to lay off one of our managers and two or three waitresses at the lunch counter, and cut down on bartenders," he said.

For Voelker's, which is open until 4 a.m., the sharpest decline has been in its late-night business, Williamson said. "Late night people are drinkers and smokers. Bowling and smoking and drinking seem to go hand in hand," he said.

Bowling proprietors statewide are continuing to push for an amendment to the anti-smoking law that will let them install separately ventilated smoking rooms, said Pimm, whose regional association represents 30 of Western New York's 45 to 50 bowling alleys. He is leading the initiative in his capacity as legislative chairman of the New York State Bowling Proprietors Association. Pimm owns Rapids Bowling Center in Niagara Falls and Tonawanda Bowling Center in the Town of Tonawanda.

Amherst Bowling Center was opened in 1946 by Max Striegl Sr. and for much of the last half-century was home to the Max Striegl Memorial League, one of the area's first senior citizen bowling organizations.

In 2000, the owners launched what was planned as a five-year, $500,000 renovation program that included the latest automatic scoring equipment and was to include renovation of the seating area and the addition of a banquet facility seating 200.

At the time, Brenkus said Amherst Bowling Center was losing banquet business from the bigger leagues to competitors.

"It's something the community (in the Main-East Amherst Street area) needs," Brenkus said. "There isn't anything around here that will hold that many people."

The center's bowling equipment is for sale, and the unidentified new owners of 47 E. Amherst apparently do not plan to reopen it as a bowling facility, sources said.

Buffalo News - January 6, 2004
        Hearings set on criteria for smoking ban waivers
        By Sandra Tan

With less than three weeks to go before the Erie County Health Department issues its criteria for financial hardship exemptions to the state's smoking ban, business owners will get the chance to offer some perspective.

County Legislator Charles M. Swanick, R-Kenmore, will hold public hearings Friday on the three campuses of Erie Community College to allow establishments to offer advice on how the county should shape its criteria.

"There has never been any public hearing process on this issue," Swanick said. "I think it's wrong. I really do."

Swanick said bar and restaurant owners deserve the right to be heard and expressed disappointment that the county Health Department has not acted more quickly to establish criteria for waivers.

The state's smoking ban took effect in July. Since then, the Health Department has received about 130 requests for waivers, said Kevin Montgomery, department spokesman.

The law allows counties to establish their own criteria exemptions, but Dr. Anthony J. Billittier IV, county health commissioner has said he preferred to wait until the state Health Department had issued its own guidelines.

Swanick, however, said he was displeased getting the county Health Department to come up its criteria has taken a court imposed deadline of Jan. 23 and even more displeased that the county hasn't held any
hearings on the matter.

"I don't know how anyone can make a decision realistically without hearing from the constituency," he said.

The court order resulted from a suit filed early last month by Jimmy Mac's, an Elmwood Avenue bar and restaurant, which claimed that the county had no right to reject its request for an exemption hearing when the law includes an exemption provision.

Montgomery, however, noted that the state did not issue any guidelines on exemption criteria until more than a week after the
suit was filed.

The County Legislature has no authority or control over the waivers, but Swanick said he intends to forward all comments from the hearings to the Health Department. He stressed that the hearings will cover only to the waiver process, not the health-related merits of the law overall.

Montgomery said the Health Department administration looks forward to receiving comments for and against the procedure and has been working with the county Law Department to pull its criteria together.

The state's rules, which apply only to the 21 counties that don't have their own health departments, will serve as "a starting point" for the Erie County's own criteria, he said.

The state criteria would allow two-year waivers of the smoking ban for "undue financial hardship," defined as a reduction in food and beverage sales of at least a 15 percent. Waivers also could be issued for safety or security factors that would make compliance unreasonable, construction-related hardships or "exceptional circumstances."

Friday's hearings will be held from 9:30 to 11:30 a.m. in Gleasner Auditorium on the ECC North Campus in Amherst, 1:30 ti 3:30 p.m. in Gillette Auditorium at the ECC City Campus in downtown Buffalo and 5:30 to 7:30 p.m. in Room 5102 on the ECC South Campus in Hamburg.

Buffalo News - January 1, 2004
        SMOKING LAW
        Some bars get OK for patrons to puff away
        By Anthony Cardinale

Smokers freely lit up cigarettes on New Year's Eve at the Bradford Grill on West Chippewa Street and several other bars in the Buffalo area.

The owners were taking advantage of a little-known provision that permits bars and restaurants to sponsor a tobacco promotion or sampling night twice a year and allow smoking on their premises.

Attorney Paul Cambria stood at the bar at the Bradford Grill, a Monte Christo cigar in hand, counting the reasons why he thinks that the smoking ban was poor legislation.

"They should create an alternative plan in which a bar can have a closed room only for smokers," he said. "Not even bar employees could enter - unless for a smoke during their break."

Cambria said his proposal falls in line with the "cigar room license" that the state grants to a few businesses.

Manager Tim Cavanaugh said business was twice as brisk as normal, with "hundreds" of smokers coming and staying for a while.

Among other bars approved to hold New Year's Eve tobacco nights were Slick Willie's Billiard Hall on Niagara Falls Boulevard in the Town of Tonawanda; the Village Inn on Cedar Street, Akron; Dottie's Pub on Seneca Street; Jack's Place on Millersport Highway, Amherst; and Milligan's Pub on Abbott Road, Orchard Park.

The smoking ban took effect July 24 with amendments to the state's Clean Air Act. Several businesses chose New Year's Eve for their exception after being granted permission.

County health officials, opening the loophole with great reluctance, used the occasion to publicize the results of the first five months of smoke-free bars.

The study was compiled by researchers at Roswell Park Cancer Institute, using statistics compiled by various state agencies:

The findings:

• Air pollution levels were reduced by an average of 93 percent at 14 Western New York bars that were monitored before and after the law took effect.

• On the state level, alcohol excise tax collections increased by 2.8 percent from August to November, compared with the same period last year, despite the smoking ban and a decrease in the beer excise tax that took effect in September.

• During each of the four months since July 24, employment levels have increased over last year.

• The number of bars and restaurants licensed to serve liquor increased from 16,126 in October 2002 to 16,315 in October 2003.

"The economic statistics are in stark contrast to the many stories about businesses failing because of the new smoking rules," said Andrew Hyland, the researcher who led the study.

"While these data do not rule out the possibility that a given business may be affected by the new smoking rules, the overall trend is very positive and suggests that the law has not harmed the restaurant and bar business in New York State."

According to health officials, more than 24,000 deaths a year in New York State are attributable to smoking.

Associated Press - January 1, 2004
        New York State Will Require That Cigarettes Be Able to Put Themselves Out

The Pataki administration said on Wednesday that it had adopted regulations to require that cigarettes sold in New York State be manufactured with paper that can extinguish itself.

The so-called fire-safe cigarettes stop burning if no one is puffing on them. Supporters of the new rules, which go into effect on June 28, say the cigarettes will prevent many of the fires now caused by smokers who leave cigarettes unattended, typically when they fall asleep and bedding or upholstery catches fire.

The regulations, first proposed in December 2002 and later modified, were adopted by the Department of State.

They were developed by the department's Office of Fire Prevention and Control under a mandate from Gov. George E. Pataki and the State Legislature.

"This could be the beginning of a global standard for cigarettes," said Blair Horner, legislative director for the New York Public Interest Research Group. "If New York goes ahead, it will drive a national debate because tobacco companies are not going to make one set of cigarettes for New York and one for the rest of the U.S. And if the U.S. sets standards, those will be standards for the entire globe."

The New York regulations call for cigarettes to be wrapped in banded paper. The bands stop the paper from burning down when no one is puffing on the cigarette.

Under the state's standards, 75 percent of a manufacturer's cigarettes must be in compliance in order to be allowed into the market in New York.

Manufacturers who falsely certify that their cigarettes have met the standard face fines of up to $10,000. Retailers who sell uncertified brands face fines of up to $500 per transaction for sales of fewer than 1,000 cigarettes and fines of up to $1,000 for sales of more than 1,000 cigarettes.

Department of State officials said they had responded to the concerns of retailers by allowing them to sell off existing inventories of uncertified cigarettes after June 28.

Stockpiling of uncertified cigarettes will not be allowed, state officials said.

Philip Morris began marketing cigarettes with banded paper under its Merit brand in 2000, and several other states — including Massachusetts, Rhode Island, California and Minnesota — have recently considered laws requiring self-extinguishing cigarettes.

From 1997 to 2001, fire officials reported 199 deaths in fires caused by smoking materials in New York. They were the most frequent cause of fatal blazes during that period.

The lower-ignition paper does nothing to reduce the toxicity of cigarettes to smokers or to reduce the effects of smoking on health.
 
 

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