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Codey Plans Stricter Limits on Smoking
By Damien Cave
NEWARK - With its smoky casinos where cigarettes are more common than jackpots, New Jersey has found tobacco a difficult habit to kick. Efforts to outlaw smoking indoors have stalled in the State Legislature for years, even as New York and other states have made such bans commonplace.
But Acting Gov. Richard J. Codey has taken aim at the tobacco industry, and if he gets his way during the last few months of his term, New Jersey might become much less friendly to those looking to light up.
On Tuesday, Mr. Codey said he would introduce legislation to raise the state's legal age for buying tobacco products to 19 from 18, a move that comes weeks after he signed into law a statewide ban on smoking in college dormitories - the first of its kind in the nation.
The governor also promised to win passage of a comprehensive ban on smoking indoors by the end of his term in January.
Mr. Codey's plan to raise the minimum age for buying tobacco products, announced at a news conference at Newark Beth Israel Medical Center, would make New Jersey the fourth state in the country to prohibit sales of cigarettes to 18-year-olds, joining Alabama, Alaska and Utah.
Mr. Codey said the proposed law, which he plans to introduce in the State Senate on Monday, was aimed at preventing teenagers from starting to smoke. He cited statistics from the American Cancer Society indicating that 90 percent of all smokers pick up the habit before age 18, and said that he had "a moral responsibility to stop the tobacco addiction death march."
Mr. Codey said that schools in particular would benefit from an increase in the legal purchasing age, while vendors would have an easier time identifying those who are underage.
"By raising the age limit just one year, it will become illegal for virtually all high school students to buy cigarettes," Mr. Codey said. "More importantly, fewer will be able to share them with their classmates."
Mr. Codey, a long-time coach of high school athletics, said fines for selling tobacco products to people younger than 19 could go as high as $1,000.
Peter Slocum, a vice president of advocacy for the American Cancer Society of New York and New Jersey, said that the other states that passed laws pushing the limit to 19 "have not shown a particularly significant decrease in smoking."
But, he added, the policy could be effective if coupled with a comprehensive ban on smoking indoors, a measure Mr. Codey said he would seek to move out of committee during the lame duck session that will follow the Nov. 8 election. "I think it will pass, and I'll sign it into law," the governor said.
Mr. Codey's push for limits on tobacco appears to be part of a larger drive to create a legacy tied to public health, political scientists say.
Unlike some of his other successful proposals, to limit diesel emissions, for example, antismoking plans might face stiff opposition. Assemblyman John F. McKeon, a longtime antismoking advocate who introduced a bill this year to ban smoking while driving, said that the prohibition might not include casinos and private clubs. Concerns about the impact of such a ban on those businesses, he said, might force a compromise that would allow for smoking in specified areas.
On the street on Tuesday, reaction was mixed. Keer Jones, 34, a medical assistant at Newark Beth Israel, said she would welcome limits on sales of tobacco, and on locations where she could smoke. "There's a lot of babies out here smoking who shouldn't be," she said, cigarette in hand.
Abel Flores, 45, the owner of Florez Tobacconist in Summit, seemed more skeptical. He said that trying to limit smoking would only increase its allure, without having much of an impact on access to the product.
Several students across the street from Columbia High School in Maplewood said that they doubted they would have a hard time finding cigarettes, even if the legal age for buying them is raised.
"I'd just keep doing what I do now," said Lucian Lai, 16. "I'd find a 19-year-old or a place that didn't card."
Award Limit in Tobacco Case Sets Off a Strenuous Protest
By Michael Janofsky and David Johnston
WASHINGTON, June 8 - A Justice Department decision to seek $10 billion for a stop-smoking program in its suit against the country's leading tobacco companies, instead of the $130 billion suggested by one of its expert witnesses, set off a firestorm on Wednesday.
Several Democratic lawmakers with a longtime interest in smoking and health issues attacked the department for what they said was a politically motivated decision, as did public health groups.
Judge Gladys Kessler of Federal District Court, who is presiding in the trial here against the companies, took note of the sudden change, telling the court on Wednesday, "Perhaps it suggests that additional influences have been brought to bear on what the government's case is."
The move infuriated lawmakers who have long been critics of the tobacco industry. "It reeks of an administration whose heart isn't really in this case," said Senator Frank R. Lautenberg of New Jersey, at a news conference with other Democrats who suggested that Justice Department officials with ties to the tobacco industry might have grown uncomfortable with a large financial demand as part of the government's case against the companies.
The payments are intended to finance a stop-smoking program that a government witness said would cost $130 billion over 25 years. In court on Tuesday, a government lawyer, Stephen D. Brody, said the government would ask for a program costing only $10 billion to be paid out over five years.
In a statement issued Wednesday evening, the Justice Department said, "The government's suggested smoking cessation program is only an initial requirement, based on the compelling evidence that the defendants will continue to commit fraudulent acts in the future."
A department official said that $10 billion figure represented an effort to ask for an amount that would comply with adverse rulings by a court of appeals. "This is not politics," said the official. "This is exactly the contrary. This is trying to stay within the law and trying to stay within a decision with which we disagreed."
Despite the lower figure, if the judge, who is hearing the case without a jury, rules against the companies, she can impose financial penalties of any size, no matter what the government has requested.
The appeals decision cited by the administration official occurred five months into the trial. The ruling held that under civil racketeering laws, the tobacco companies could not be forced to relinquish past profits. Instead, the court said, the government could only seek sanctions that involved payments for new programs ordered by the judge.
Tobacco company lawyers expressed surprised delight at the change, saying they believed the government lawyers realized that Judge Kessler would not grant them as much as $130 billion.
The original figure was based on testimony from Dr. Michael C. Fiore, an expert on tobacco addiction, who said an effective nationwide program that included a telephone help-line, access to medical treatment and counseling and a budget for advertising and promotion would cost $5.2 billion a year for 25 years.
"Why, in the middle of a lawsuit, would you give up, which is exactly what this administration has done?" said Senator Richard J. Durbin, Democrat of Illinois. "Was it because of the power of the tobacco lobby? Was it their close connection with people within the administration? Was it the fact that they'd never had the stomach to tackle this special interest group in Washington?" He added, "I think it's all of the above."
Representative Henry A. Waxman, Democrat of California, made public a letter he had written to the inspector general of the Justice Department asking for an investigation into whether improper political interference had led to the change in request and what role might have been played by Associate Attorney General Robert D. McCallum Jr., a former classmate of President Bush at Yale and partner in an Atlanta law firm that represented one of the defendants in the case, R. J. Reynolds.
Mr. McCallum, who attended court on Tuesday and Wednesday, declined to discuss the issue, saying he would answer questions after closing arguments concluded Thursday. Department officials would not discuss whether ethics officials in the department had reviewed his involvement in the case.
But they said no one who had represented any party in tobacco litigation was participating in the lawsuit.
William V. Corr, director of the Campaign for Tobacco-Free Kids, a health group that has fought the tobacco industry for years, said he and leaders of other antismoking groups, could only deduce from the retreat that the Bush administration did not want to inflict undue harm on the tobacco companies.
"Here we are, at the last minute of the case, with senior political officials interfering with the trial team's materials and decisions," Mr. Corr said. Referring to antismoking groups, he added, "We've had a widespread sense since 2001 that the Bush administration was trying to kill the lawsuit."
The tobacco case, which was filed by President Bill Clinton's Justice Department in 1999, has been bathed in political intrigue since President Bush took office in 2001, setting off widespread speculation that the new administration had no real interest in pursuing a case against a big American industry.
Early in Mr. Bush's first term, his attorney general, John Ashcroft, revealed his discomfort with the lawsuit, moving to reduce financial support for the legal team in the case and pushing for a settlement because he viewed the case as weak.
Nonetheless, trial preparations continued for four years under a career prosecutor, Frank Marine, who guided a team of 35 department lawyers. By the start of the trial last September, the department said it had spent $135 million on the case.
Five months into the trial, the government suffered a major blow, when the United States Court of Appeals for the District of Columbia Circuit ruled that under civil racketeering laws, it was only entitled to seek sanctions, known as remedies, that were forward-looking, intended to prevent and restrain any future misconduct by the companies. As a result, the court said the $280 billion the government was seeking as profits from illegal activities was backward-looking and thus, unavailable.
On Wednesday, lawyers for all the tobacco companies took their turns in closing arguments, as, one by one, they tried to convince Judge Kessler that their clients did nothing over the years that could be construed as a racketeering violation.
David Bernick, a lawyer for Brown & Williamson, which merged last year with Reynolds, said at the outset, "The government's case is fatally flawed." He proceeded to argue that the government had failed to prove any of its claims against any of the defendant companies: Philip Morris; its parent, Altria; Brown & Williamson; Reynolds; Lorillard; Liggett; and Batco, a British company that no longer does business here.
Post Office Sidesteps Fray on Illicit Sales of Cigarettes
By Michael Cooper
ALBANY, May 26 - As they move to thwart the illegal trade of cigarettes over the Internet, state officials have joined colleagues from around the nation in persuading the major credit card companies to stop processing payments for online cigarette sales. Additionally, the state has enacted a law prohibiting the shipment of cigarettes to its residents and banned private carriers, like FedEx, from shipping cigarettes.
But as state officials fight illegal online cigarette sales, one operation is not falling into line - the United States Postal Service, which officials say delivers the bulk of illegally purchased cigarettes to New Yorkers.
The Postal Service, citing concerns about the privacy of the mail and wary of putting postal clerks in the position of deciding which packages to accept and which to reject, is resisting the growing calls that it stop shipping cigarettes.
Its stance is exasperating law enforcement officials. "It is outrageous that the federal government - through the United States Postal Service - is knowingly acting as the delivery arm for these criminal enterprises," New York's attorney general, Eliot Spitzer, said in a statement.
The role of the post office in shipping illegally sold cigarettes is also attracting attention across the nation. Last month the National Association of Attorneys General asked the Postal Service to "adopt a firm policy prohibiting transportation of packages that the carrier knows or reasonably should know contains cigarettes sold illegally on the Internet." In Oregon, an online cigarette seller was charged in January with unlawful distribution of cigarettes and racketeering; the post office was not charged but was named in the indictment as part of the racketeering enterprise. Congress has considered legislation that would ban the mailing of cigarettes.
Postal officials say that they are committed to fighting illegal activities conducted through the mail, but complain that their hands are tied. They note that Priority Mail, which officials say is most frequently used to ship cigarettes, cannot be inspected without a search warrant or the consent of either the sender or the recipient.
The post office's investigative arm, the Postal Inspection Service, has worked to stop illegal cigarette shipments in a number of cases, but has only about 1,970 inspectors in the whole country, charged with investigating everything from the anthrax mailings to all suspicious packages to the distribution of child pornography. And postal officials say that postal clerks cannot be expected to figure out what people are shipping, and whether cigarette retailers are complying with obscure laws like the Jenkins Act, which requires cigarette sellers to keep lists of customers for tax collection purposes.
"Tobacco is a legal, mailable product," Mary Anne Gibbons, the Postal Service's general counsel, wrote last month in a response to the association of attorneys general. "It would be impracticable for postal acceptance clerks to make determinations on any given mailer's compliance with state excise or tax law or Jenkins Act filings."
But state officials reject this argument, pointing out that at least in New York State, public health laws prohibit direct sales of cigarettes by mail. They acknowledge that the state cannot bar the post office, a federal entity, from shipping cigarettes in New York, but say that since online merchants often violate tax laws, shipping their cigarettes violates federal mail fraud statutes and therefore should be stopped.
"Instead of complying with federal law, the Postal Service is taking a head-in-the-sand approach, by claiming that they have no idea what is in the packages being delivered - even if they are being mailed by Internet operators that sell nothing but cigarettes," Mr. Spitzer said in a statement. "That is an absurd argument that we would never accept from a private defendant."
And several law enforcement officials said that in small upstate communities like Salamanca, N.Y., which are dotted with smoke shops advertising the tax-free cigarettes sold from Indian reservations, the post office willingly accepts delivery of truckloads of cartons of cigarettes for delivery.
But Anthony Alverno, the post office's chief counsel for customer protection and privacy, said in an interview that the post office's research indicated that the smoke shops doing business in New York sold other items beside cigarettes, including "novelty items," so some packages they ship might not be cigarettes. "We would need to get a search warrant to make the determination," he said.
The Postal Inspection Service joined other federal and local law enforcement agencies to seize 300,000 cartons of illegal cigarettes last November at Kennedy International Airport. Mr. Alverno said that blocking overseas shipments was easier, because they must pass through customs. He added that the Postal Service would continue to discuss civil or criminal actions that could be taken with law enforcement agencies.
Not just government officials, but also antismoking advocates are trying to stop the mailing of cigarettes. And some see signs of progress.
John F. Banzhaf III, the executive director of Action on Smoking and Health, an antismoking organization that has warned the Postal Service that it could face legal liability for shipping illegally purchased cigarettes, said that the service was finding itself increasingly isolated, especially since credit card companies stopped processing the payments for such sales earlier this year.
"It may be more trouble - both from a legal and public relations point of view - than the benefits of the revenue that comes in," he said.
Several online cigarette sellers shut down after the credit card companies stopped processing their transactions; others are struggling. One Web site, tobaccobymail.com, which says it is run from western New York, complains on its site that it is "perpetually targeted by the state of New York," and says that it is not bound by state or federal laws because it is owned and operated by the Seneca Nation of Indians.
The Web site says that it ships cigarettes by Priority Mail, that they are tax-free, and that the company will not share its customer lists with the government. But state officials say the company is flagrantly violating tax laws.
Mr. Spitzer said that the Postal Service should stop carrying illegally sold cigarettes. "The entire law enforcement community - attorneys general, the federal Bureau of Alcohol, Tobacco and Firearms, police officers, state tax officials, and even the Postal Inspection Service - is united in trying to stop these illegal sales," he said. "The postmaster general should be instructing the 'delivery side' of his office to join us in this effort, rather than facilitating illegal conduct."
In One Long Island County, Tobacco-Buying Age Is 19
By Vivian S. Toy
Suffolk County, which was the first county in the state to approve a smoking ban in restaurants two years ago, made history again yesterday when a new law took effect making it the first county in the state to raise the legal age for buying cigarettes and other tobacco products to 19 from 18.
The new law, which was passed in an 18-to-0 vote by county legislators last December and signed by Steve Levy, the county executive, on Jan. 31, took effect with little fanfare. The county's Department of Health Services had mistakenly notified about 2,200 storeowners that enforcement would begin on May 1, leading many stores to start limiting sales of the products two weeks before the actual start date. But officials nonetheless heralded yesterday as a milestone.
Brian X. Foley, a Democratic county legislator from Blue Point and the prime sponsor of the bill, said that while Suffolk County has produced significant tobacco control proposals in the past, the new law was unprecedented because it was the first to receive unanimous support in the county legislature. He talked of the "persuasive and powerful testimony" given at public hearings by high school students, explaining how their 18-year-old classmates would often buy cigarettes and bring them into schools for underclassmen.
"Nobody's under the illusion that this will eliminate the problem," Mr. Foley said. "But it should have some impact on the situation in the future."
Under the new law, any store caught selling tobacco to someone younger than 19 would be subject to a $300 fine for a first violation and up to $1,500 in fines for subsequent violations.
Several other counties in the metropolitan area are also considering raising the legal age for buying tobacco products, including Nassau, Westchester and Rockland. Charles J. Fuschillo, a Republican state senator whose district straddles Nassau and Suffolk Counties, has also proposed state legislation that would raise the legal purchasing age throughout the state. Only three other states - Alaska, Utah and Alabama - have laws setting the minimum age for buying tobacco at 19.
Paul J. Tonna, a Republican Suffolk County legislator from West Hills and a co-sponsor of the new law, said he hoped the state would eventually enact similar legislation.
"That's been generally the pattern: Suffolk County does it and then the state picks it up," he said.
Mr. Tonna was referring to the county's smoking ban in workplaces, including restaurants and bars, and its ban on handheld cellphone use while driving, which were both eventually enacted statewide. "We have a tradition of enacting progressive and proactive legislation," he added.
Surendra Sherma, the manager at Melville Cards and Smoke, said he posted the "Stop You Must Be 19" decals provided by the county and started limiting sales on May 1. "We are very careful and we refuse to sell if they come in between 18 and 19 years old," he said.
At the 7-Eleven in Farmingdale, just a few blocks west of the Nassau-Suffolk border, Moe Shahid, a clerk, said they expected sales might go up slightly since Nassau County still adheres to a minimum age of 18. "But Nassau County is thinking about it and it's probably just a matter of time before it becomes a state law," he said. "So it won't be different for long."
William I. Stoner, the regional advocacy director for the American Cancer Society on Long Island, said in a statement, "We hope Albany will follow Suffolk's lead in taking this proactive step to protect the state's children from the scourge of tobacco."
But James Calvin, president of the New York Association of Convenience Stores, a trade group in Albany that represents more than 1,500 stores, said his group opposed the Suffolk law and would fight against a state law.
"The reality is that this will not bring any meaningful progress in the ongoing effort to restrict young people's access to tobacco," he said.
Tobacco Industry Is Given Victory by a Panel of U.S. Judges
By Anthony Ramirez
A panel of federal appeals court judges in Manhattan handed the tobacco industry a victory yesterday by striking down a proposal by a judge in Brooklyn to organize a single high-stakes trial that might have subjected the industry to billions of dollars in damages.
Three judges of the United States Court of Appeals for the Second Circuit ruled unanimously against the proposal of Judge Jack B. Weinstein of Federal District Court in Brooklyn, saying his plan was flawed for technical reasons. The proposal was returned to Judge Weinstein's court.
"The appeals court decision is the correct and proper one," said William S. Ohlemeyer, a top lawyer for Philip Morris USA, a defendant in the case and maker of Marlboro cigarettes, in a prepared statement yesterday.
A public relations representative for Altria, the parent company of Philip Morris, said Altria would not go beyond the prepared statement and that lawyers representing Philip Morris in the case had gone home for the weekend.
"Judge Weinstein has been a thorn in the side of the tobacco industry for some time, but we see this decision as further reducing his ability to be a nuisance to the industry going forward," said Robert Campagnino, a tobacco analyst for Prudential Financial, in a note to investors yesterday.
Whether the high-stakes trial ever reached a courtroom turned on technical legal issues like who had the right to sue and enter what is known as a class action and whether the proceeding was fundamentally fair by placing a limit on potential damages.
In September 2002, Judge Weinstein proposed presiding over a national trial that would not assess individual claims for compensation, but would decide only whether the cigarette companies should be assessed punitive damages because of the harm done to smokers and their survivors.
A single industry fund to pay potential punitive damages would be established.
The class for the trial, with some exceptions, would be all current and former smokers of the defendant companies' cigarettes since April 1993.
The proposal became known as the Simon II plan because it stemmed from a 1999 class-action lawsuit by a group of smokers titled Simon v. Philip Morris Inc.
In its 37-page ruling released yesterday, three appeals court judges - James L. Oakes, Rosemary S. Pooler and Richard C. Wesley - found flaws in Judge Weinstein's proposal, especially in the membership of the class and the size of potential damages.
"We hold that the order certifying this punitive damages class must be vacated," the judges wrote, "because there is no evidence by which the district court could ascertain the limits of either the fund or the aggregate value of punitive claims against it, such that the postulated fund could be deemed inadequate to pay all legitimate claims."
The ruling is subject to appeal to all 23 appeals court judges of the Second Circuit and the United States Supreme Court.
Trouble for Online Vendors of Cigarettes
By Bob Tedeschi
NOT since the dot-com bust have so many sites gone south so quickly.
Two weeks after credit card companies announced they would no longer accept payment for tobacco products bought online, scores of Internet cigarette merchants have effectively lost the means to do business profitably, and are either limping along or have shut down their operations altogether.
Visa International, MasterCard International, American Express, eBay's PayPal service and others cut off the online tobacconists last month after being told by a coalition of states and representatives of the federal Bureau of Alcohol, Tobacco and Firearms that virtually all such sales were illegal. Government officials said that merchants had not done enough to comply with age verification practices or to register sales with governments to insure the collection of state taxes.
Now, most merchants are reduced to accepting electronic or paper checks, and fewer customers may be willing to wait for those checks to clear before their orders are shipped. Meanwhile, some online merchants say they have been wrongfully singled out by authorities.
Maxine Jimerson, owner Ron's Smoke Shop in Allegany, N.Y., recently shut down the online part of her business and laid off 120 of her 160 employees. As a member of the Seneca Nation Indian tribe, she is entitled to sell cigarettes free of state tax.
"Most everybody else around here is going out of business too," said Ms. Jimerson, who will keep her retail shop open but has sold her Web address to another merchant who operates on Seneca territory. "We're talking about probably 30 businesses, and between 1,500 and 2,000 employees being laid off."
Ms. Jimerson said her company had gone to great lengths to verify customers' ages, contracting with a special vendor and requiring buyers to send in a copy of a government-issued picture ID, with age and signature, before a purchase could be made. Customer signatures at the time of delivery had to match the signatures on file.
But federal and state authorities said that online cigarette merchants did not do enough to insure the collection of taxes. In particular, they did not comply with the Jenkins Act, a federal law that requires sellers to register purchases in states where customers live. Like many other online sellers operating on Indian territory, Ron's Smoke Shop did not comply with such strictures because it argued that the law did not apply to it.
If there were online companies that complied with all state and federal regulations, "it's news to us," said Marc Violette, a spokesman for the office of Eliot Spitzer, the attorney general of New York, where all online cigarette sales are considered illegal.
"It's good public relations to say you're bending over backwards to comply with the law, but the fact is, they're engaged in an illegal industry, and on their face, these transactions are illegal," Mr. Violette said.
State officials had for years tried unsuccessfully to collect cigarette tax revenues from online merchants, and had redoubled such efforts as budget deficits skyrocketed in recent years. By using the credit card companies as leverage, though, they appear to have made progress in the fight.
The credit card company embargo "will significantly curtail cigarette sales over the Internet, to the advantage of the major cigarette manufacturers as well as state governments," wrote Robert T. Campagnino, an analyst with Prudential Equity Group, an investment firm, in a report late last month.
Mr. Campagnino estimated in his report that in 2004, $1 billion worth of cigarettes were sold online, or about 3.1 percent of the industry's total volume. Many of those sales were made to customers in states with particularly high cigarette taxes like New York, where offline merchants must charge $15 or more in taxes for each carton. New York bars direct shipment of tobacco products to its citizens, but many online merchants ignored that law.
Some established tobacco sellers, like Nat Sherman, a cigar and cigarette manufacturer based in New Jersey that also sells its products online, strenuously object to the government actions.
"They're throwing the baby out with the bathwater," said Joel Sherman, the company's chief executive. "We have over 70 licenses to sell directly to customers around the country - every state, and many municipalities. And we have a whole series of proofs in place for age verification."
Mr. Sherman said that credit card companies "have not gotten around to shutting us off yet," so his site still accepts plastic. But he said that since his customers can find Nat Sherman products at retailers throughout the country - at lower prices, since customers do not pay for shipping - his business will not be as deeply affected by a credit card embargo as others.
In theory, at least, law-abiding online tobacco sellers could avoid the credit card embargo. Joshua Peirez, a senior vice president at MasterCard, said that banks that issue his company's brand of credit cards may provide MasterCard with documentation if they believe one of their merchant customers is selling tobacco online legally.
"But if there's any doubt, banks have the obligation not to contract," said Mr. Peirez, who estimated that his company has so far cut off about 100 of the biggest online tobacco sellers.
Some online cigarette sellers, who spoke on condition of anonymity, said they were exploring ways to create their own credit cards, perhaps in association with other online tobacco sellers. They would then battle government regulators in court to determine the legality of their practices.
Still other online sellers are engaged in more creative practices.
Richard Johnson Jr., who until late last year sold foreign, duty-free cigarettes through www.internet-distributors.com, said he was in the process of reviving that site so he could sell domestic cigarettes to United States consumers. Mr. Johnson said he planned to establish credit card accounts with foreign banks, which he said were not bound by United States laws.
Because some Internet cigarette sellers continue to accept credit cards, this practice is possibly already being adopted. Mr. Peirez, of MasterCard, said the company's policy applied to any bank whose merchants sell to United States customers. "So no, we wouldn't allow them to process those transactions," he said.
Meanwhile, Ms. Jimerson of Ron's Smoke Shop said she hoped to use her company's former warehouse for a new party supplies and candle business, FirstAmericanCandle.com, which she began developing months ago.
"I could retire," she said. "But I don't like to be forced into anything."
Remedies Emerging as Issue in Federal Tobacco Case
By Michael Janofsky
WASHINGTON - Already one of the most costly civil cases ever prosecuted by the Justice Department, the racketeering trial against the tobacco industry, now in its seventh month, is being heard in two courts and could reach a third, raising questions about what the government might gain with a victory.
Testimony continues in the Federal District Court here in a nonjury trial to determine whether the companies hid the adverse health effects of cigarettes for 50 years, as the government contends. Meanwhile, an appeal is already under way to determine the extent of liability if the trial judge rules against the companies.
Barring a settlement, the efforts - along with appeals almost certain to reach the Supreme Court - are expected to drag out for months, driving up litigation costs to hundreds of millions of dollars for each side.
"This is a very expensive, very time-consuming process," said William S. Ohlemeyer, vice president and associate general counsel for Altria, the parent of Philip Morris, one of the five defendant companies. "It's particularly difficult with such a large number of people working for such a long period of time."
Looming over the daily parade of witnesses who have come before Judge Gladys Kessler is how the tobacco companies might be held accountable if she decides for the government.
Early in the case, Judge Kessler ruled that the government could seek $280 billion from the companies as a remedy for any past fraudulent acts. To speed things along, she encouraged the companies to appeal that decision while testimony proceeded. Last month, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit overruled her, asserting that financial remedies would be contrary to civil racketeering law, which requires remedies to prevent and restrain future illegal acts.
The panel's ruling prompted the government to ask the full appellate court to rehear the arguments. It also prompted Judge Kessler to reorganize the trial, ordering both sides to call witnesses to address remedies after the liability phase of the case. In effect, she made the remedy phase a trial within a trial, to help her assess how to hold the companies accountable if financial remedies remain unavailable.
The appellate decision, meanwhile, has cast doubt on other remedies the government might seek and whether they would accomplish the lawsuit's goals any better than, say, the latest tobacco bill in Congress, which seeks to confer regulatory authority over tobacco products to the Food and Drug Administration.
Government lawyers say that even without a financial remedy, Judge Kessler has at her disposal a broad pallet of methods that could discourage future illegal acts.
One proposal is creating a nationwide stop-smoking program the companies would sponsor at a cost of $5.2 billion a year for 25 years, a total commitment of $130 billion. Another is a campaign to reduce youth smoking that would set estimates of the population of young smokers, then penalize the companies $2,400 for every young smoker exceeding an annual target number. Judge Kessler could also impose restrictions on cigarette marketing, like limiting print advertisements to black-and-white pictures.
The companies contend that most of the remedies Judge Kessler could order were addressed in 1998 with the Master Settlement Agreement between states and the tobacco industry, which ended an enormous lawsuit concerning the states' health-care costs incurred from smoking-related illnesses.
"There are a lot of things the court can do that the F.D.A. bill cannot do," said William V. Corr, executive director of the Campaign for Tobacco-Free Kids, a nonprofit group that supports tighter controls on the industry.
But Mr. Corr acknowledged that current legislation could achieve many goals that a court decision could not, like forcing the companies to list all the ingredients in their products.
The legislation would also cover all tobacco companies, not just the lawsuit's defendants; increase the size of warning labels; prohibit flavored cigarettes; and end the use of terms like "light," "low" and "mild" that suggest some cigarettes pose lower health risks than others.
Lawmakers have tried since 1997 to pass measures giving the F.D.A. authority over tobacco. Recent efforts have fared better in the Senate than in the House, and that may be the case again, with measures introduced two weeks ago that revise efforts of last year.
The current Senate bill, sponsored by Senator Mike DeWine, Republican of Ohio, and Senator Edward M. Kennedy, Democrat of Massachusetts, has nine other Republican supporters and full backing among Democrats, giving it a reasonable chance to pass. Prospects for a parallel bill in the House are less certain.
Philip Morris, the nation's largest tobacco company, with about half the domestic market, supports the legislation as a way to standardize the industry and reduce corporate liability in tobacco lawsuits. But the other defendants oppose legislation, arguing that more regulation would make it harder for smaller companies to build market share at Philip Morris's expense.
"We believe the F.D.A. legislation is anticompetitive because it locks in market share," said John Singleton, a spokesman for Reynolds American, the company formed last year from R.J. Reynolds Tobacco's acquisition of the Brown & Williamson division of British American Tobacco. Reynolds is the second-largest company, with about a third of the domestic market. "If you're Philip Morris, with half the market, that's not a bad place to be," Mr. Singleton said.
Legislative success might ultimately depend on the White House, which has at least tacitly supported the lawsuit but has expressed no opinion on F.D.A. regulation of tobacco. At his Senate confirmation hearing last month, President Bush's nominee to become the new commissioner of food and drugs, Lester M. Crawford, said nothing about tobacco products.
While Mr. Bush "talks constantly" about the need for Americans to quit smoking, said Trent Duffy, a White House spokesman, "it's rare that the administration takes a position on legislation until it reaches the floor of the House or Senate."
"If it does," Mr. Duffy added, "the administration will obviously look at it."
Ban on Lighters in Air Travel
WASHINGTON - Airplane passengers are going to have to leave their cigarette lighters home, under a policy announced on Monday by the Transportation Security Administration.
The ban, which takes effect April 14, will also prohibit lighters inside checked baggage for safety reasons. Passengers will still be allowed to carry matches, at least for now.
"The ban is not an attack on smokers," said Yolanda Clark, a spokeswoman for the agency. "This is a serious security measure that is intended to reduce security vulnerabilities."
The ban is required under a provision of the intelligence overhaul bill that Congress passed late last year. It was motivated by the case of the so-called shoe bomber, Richard C. Reid, who tried to light an improvised explosive device while on a plane to the United States from Paris in December 2001.
The Federal Bureau of Investigation is said to have concluded that if Mr. Reid had had a lighter, instead of matches, the bomb probably would have been set off.
Panel Backs Case Directed at Tobacco
By Michael Janofsky
WASHINGTON, Feb. 24 - A group of former high-ranking public health officials who served presidents of both major parties stepped into the government's racketeering case against the tobacco industry on Thursday, asking the judge to reinstate an education program that cigarette companies once financed.
The request came through a "friend of the court" brief from the Citizens' Commission to Protect the Truth, a group of 21 former surgeons general, secretaries of health and human services and directors of the Centers for Disease Control and Prevention dating to the Johnson administration. The group was formed last year to protect antismoking educational programs that had been required under a 1998 settlement that ended litigation between the companies and 46 states over health-care costs from smoking.
Joseph A. Califano Jr., the commission chairman, who served as heath secretary under President Jimmy Carter, said in an interview that the commission's request satisfied a recent appeals court decision in the racketeering case.
The appeals court ruled against the government in its effort to seek $280 billion in illegal profits, calling it a "backward looking" remedy that was not permitted under civil statutes of the 1970 Racketeer Influenced and Corrupt Organizations Act, known as RICO.
The ruling said that if the government did prevail in the case, any other remedy should "prevent and restrain" future illegal acts, not punish the companies for acts in the past.
"If you want to focus on future conduct," Mr. Califano said, "this is one thing the industry can do."
Under the 1998 settlement, the four leading American tobacco companies - Philip Morris, Lorillard, R. J. Reynolds and Brown & Williamson - were required to pay for education programs for five years. After that, they have to continue the payments except in years when their combined market share falls below 99.05 percent, as it did in 2004.
By then, most of the $1.5 billion from the companies had been used to finance a television advertising campaign known as the Truth Campaign, which tried to discourage smoking by teenagers. It was sponsored by the American Legacy Foundation, a group created after the settlement agreement to raise awareness of the adverse health effects of smoking.
The companies also embarked on their own campaigns, warning young people of the hazards of smoking.
By some estimates, the Truth Campaign produced impressive results. A study by The American Journal of Public Health, published this week, found that it led to "roughly 300,000 fewer youth smokers" - those 18 and younger - from 2000 to 2002, with some areas reporting declines of as much as 50 percent.
The disease-control agency has estimated that a third of all smokers die prematurely and that every adult smoker accounts for $3,400 in annual health care costs, about $1 billion a year.
Over all, the report said the campaign accounted for a national drop of 1.5 percent in youth smoking. Citing that finding, the commission used its brief to tell the presiding judge, Gladys Kessler of the United States District Court for the District of Columbia, that the Truth Campaign was precisely the kind of remedy that would make companies alter their approach to selling cigarettes.
The trial, which began in September, continued Thursday with each side offering a summation of the progress. Judge Kessler said she would decide over the weekend whether the case would resume next week with government witnesses on remedies or with the start of the companies' defense.
New York Hits Online Sellers of Cigarettes
By Ian Urbina
Concerned about the booming trade in online cigarette sales, New York state officials have begun using a variety of techniques to clamp down on the trade, saying New York City alone is losing more than $75 million a year in uncollected tax revenues because of the sales.
In recent weeks, Attorney General Eliot Spitzer has been pushing local postal officials and private carriers to stop delivering cigarettes bought online. His office has also recently begun negotiations with credit card companies to block transactions of online cigarettes.
These efforts were given added push recently as local officials from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives met with credit card executives to alert them to the various ways in which these transactions are illegal.
"The tone was very cordial and unthreatening," said a city official who participated in the presentation three weeks ago at the bureau's office in Brooklyn. "But in the end they made it crystal clear that now that the credit card companies understood the law, they would be held accountable for processing these transactions."
Mr. Spitzer emphasized that the effort has as much to do with health as money. "These sales present a significant threat to public health because they provide easy access to cheap cigarettes, which increases smoking rates, particularly among children," he said. "These illegal sales also evade state tax requirements."
Whatever their motivation, city and state officials are broadening their efforts to eradicate the business.
Two weeks ago, a judge ruled in one of the city's four lawsuits against online sellers that the city can file a revised racketeering lawsuit against Internet cigarette sellers. The ruling was the first time a federal judge has indicated that Internet sellers can be charged under federal racketeering law, said Eric Proshansky, the city's chief lawyer on the case.
After gleaning the names and the addresses from a Virginia lawsuit against one online cigarette company, the city began sending letters last month to more than 2,600 New Yorkers who officials say bought tax-free cigarettes. The letters, sent to those who bought cigarettes online from July 2002 to April 2004, give the alleged violators 30 days to pay or face interest and penalties of up to $200 a carton.
In November, local law enforcement seized 300,000 cartons of illegal cigarettes at Kennedy International Airport. Joseph G. Green, a spokesman for the A.T.F., said that the seizure was the culmination of a yearlong investigation jointly conducted by the Queens district attorney's office; federal Bureau of Alcohol, Tobacco, Firearms and Explosives; postal inspectors; and city and state tax and finance officials.
Sam Miller, a spokesman for the city's Department of Finance, said that the city loses more than $75 million a year as people duck local taxes by purchasing online. But the crackdown has drawn some criticism.
"New York is simply trying to engage in economic protectionism by limiting cigarette sales to brick-and-mortar sellers," said James L. Bikoff, a lawyer who represents several Internet tobacco sellers. "Most of the folks who are in the online cigarette business are small outfits and they typically advise the consumer to check with their own city and state's laws regarding tax rules."
New York City smokers pay the highest cigarette taxes in the country, as the state charges a $1.50 tax per pack and the city adds an additional $1.50 tax per pack. A carton of cigarettes in the city costs about $70, including $33.30 in excise and sales taxes. Online, cigarettes cost as little as $15 a carton.
Thus far, the city and the state have met with mixed results in their efforts to control the online traffic in cigarettes.
Some banks that process MasterCard transactions have begun blocking sales from certain Internet tobacco sites to customers, said Joshua Peirez, a senior vice president at MasterCard. But other banks do not. American Express currently has no policy that blocks Internet cigarette sales, said Christine Elliott, a spokeswoman for the company.
After sending a letter to credit card executives in August, Mr. Spitzer joined several other state attorneys general to send another letter pressing credit card companies to stop the transactions.
Both letters cited several reasons for the failure of Internet tobacco sellers to comply with applicable laws, including that they make no effort to verify the age of their customers and fail to report shipment of cigarettes to the tobacco tax administrator of the state into which shipments are made.
While the United Parcel Service and other private carriers have been more open to the idea of blocking the delivery of these packages, postal officials have balked at pressure from Mr. Spitzer's office, claiming that they do not have the legal authority to stop the shipments, according to city officials who have been part of the discussions. But Mr. Spitzer's office contends that the postal service indeed has the authority under federal laws that prohibit mail fraud schemes, according to a letter sent by the office.
New York State passed a law that took effect in 2003 prohibiting online and mail-order sales of cigarettes to its residents. The law was largely intended to curb tax evasion and under-age smoking, since many online cigarette sites do virtually nothing to verify the age of customers.
Efforts to stop online sales are complicated, since Internet sites are sometimes based abroad and are therefore difficult to prosecute. City officials estimate that about 80 percent of the online cigarette sales come from sites that claim Indian affiliation, which for sovereignty reasons claim immunity from laws like the Jenkins Act.
In Barrooms, Smoking Ban Is Less Reviled
By Jim Rutenberg and Lily Koppel
Back in 2002, when the City Council was weighing Mayor Michael R. Bloomberg's proposal to eliminate smoking from all indoor public places, few opponents were more fiercely outspoken than James McBratney, president of the Staten Island Restaurant and Tavern Association.
He frequently ripped Mr. Bloomberg as a billionaire dictator with a prohibitionist streak that would undo small businesses like his bar and his restaurant. Visions of customers streaming to the legally smoke-filled pubs of New Jersey kept him awake at night.
Asked last week what he thought of the now two-year-old ban, Mr. McBratney sounded changed. "I have to admit," he said sheepishly, "I've seen no falloff in business in either establishment." He went on to describe what he once considered unimaginable: Customers actually seem to like it, and so does he.
By many predictions, the smoking ban, which went into effect on March 30, 2003, was to be the beginning of the end of the city's reputation as the capital of grit. Its famed nightlife would wither, critics warned, bar and restaurant businesses would sink, tourists would go elsewhere, and the mayor who wrought it all would pay a hefty price in the polls. And then there were those who said that city smokers, a rebellious class if ever there was one, simply would not abide.
But a review of city statistics, as well as interviews last week with dozens of bar patrons, workers and owners, found that the ban has not had the crushing effect on New York's economic, cultural and political landscapes predicted by many of its opponents.
Employment in restaurants and bars, one indicator of the city's service economy, has risen slightly since the ban went into effect, as has the number of restaurant permits requested and held, according to city records, although those increases could be attributed in part to several factors, including a general improvement in the city's economy.
City health inspectors report that 98 percent of bars and restaurants are in compliance with the rules, though some critics question those statistics. Wrath at Mr. Bloomberg, at least pertaining to the smoking ban, seems to be abating.
There are still those cursing the ban as an affront to their civil liberties, and some bar and restaurant owners say that it has undoubtedly caused a decline in business. City officials say they doubt that contention, pointing to data from the first year of the ban showing that restaurant and bar tax receipts were up 8.7 percent over the previous year's. They said they were still waiting for more detailed and current data from the state.
But a vast majority of bar and restaurant patrons interviewed last week, including self-described hard-core smokers, said they were surprised to find themselves pleased with cleaner air, cheaper dry-cleaning bills and a new social order created by the ban.
All of this comes as great relief to Dr. Thomas R. Frieden, commissioner of the city's Department of Health and Mental Hygiene, who took his job on a promise from the mayor that the smoking ban would be given priority. "It was not a pleasant time," he said of the initial uproar over the ban. "There was a myth that this was very unpopular."
Dr. Frieden credits the apparent success of the new smoking rules here with encouraging other seemingly unlikely places to follow suit, or at least to consider doing so. Among them are Boston, Virginia, Australia, Ireland and Italy. Last week, the City Council in Philadelphia began reviewing a newly proposed bill to make bars and restaurants smoke-free.
The councilman who introduced the bill in Philadelphia, Michael A. Nutter, cited New York as an inspiration. "This is kind of the epitome of the song: 'If you can make it there,' " he said in an interview. "What people are saying is, 'If New York can deal with clean-air legislation, why can't we?' "
Mr. Nutter said he was not worried about the political ramifications.
Mr. Bloomberg's Republican critics have indicated they will raise the smoking rules during the Republican primary campaign as an example of what they call his Democratic tendency toward regulation. But many of the mayor's staunchest opponents said they thought the ban would have no effect on his re-election bid. One of his Democratic challengers, Gifford Miller, the City Council speaker, helped secure the ban's passage. And a leading contender for the Democratic mayoral nomination, Fernando Ferrer, has said he would not seek to overturn it.
"I thought he would lose 50,000 votes simply based on the smoking ban," said Robert Bookman, a lawyer for the New York Nightlife Association, a trade group that aggressively fought the ban. "I'm not so sure anymore."
That is no small thing for Mr. Bloomberg, who once faced hecklers in the streets because of the smoking ban, and whose drop in popularity after it was put in effect was illustrated by The New York Post in a front-page bar graph with cigarette butts.
Mr. Bookman did not dispute most of the good-news numbers the city presented in relation to the smoking ban, though he disagrees with the conclusion that the ban has not had an adverse impact on restaurants and bars.
"Clearly employment is up in New York City going into 2005 or the end of 2004 compared with the year before the smoking ban went into effect," he said. "The year before was 2002; 2002 was almost a depression in New York City. It was the recession plus the 9/11 economic impact. Everybody's doing better in New York compared with 2002."
Mr. Bookman said that the nightlife industries would be doing better still without the ban. But he conceded during an interview that his group had all but given up any lingering hope of overturning the city's provision. It is instead focusing in part on what he said were unfair enforcement issues, like ticketing bar owners for the misbehavior of smoking patrons or for an increase in noise complaints drawn by customers smoking outside. City officials say noise complaints have risen because the city's 311 complaint line has made it easier to file them, not because of outdoor smoking.
The turncoats of Mr. Bookman's once vocal movement can be found on the sidewalk on any given night. Huddled in a tent at the Bohemian Hall and Beer Garden in the Astoria section of Queens on Wednesday and chain-smoking by two heat lamps, Kate Bly, who teaches English to foreign exchange students, said she was surprised by her own positive reaction to the measure, which she had expected would be terrible.
"I was really against the smoking ban," she said. "I thought, bars are for sinful things, smoking, drinking. Now my reaction has changed. I used to feel clammy, stinky, disgusting. Now there's a nice breakup to the evening and a new crowd."
Jason Sitek, 31, said he had similarly begun to enjoy the ban, even if smoke-free bars subtract from what he used to think a New York City bar should be. "The whole nature of New York City and the bar is you can go into a smoky atmosphere," he said. "It's like Disney World now."
Still, he said, smoke-free bars have their advantages. "You realize you stop stinking, you don't smell like an ashtray," he said on Tuesday night as he smoked outside Spike Hill, a bar in the Williamsburg section of Brooklyn.
The temperature was hovering near 30 degrees, but down the street, in front of Rosemary's Greenpoint Tavern, Brian Rennie, 23, said he did not mind that he was forced outdoors to smoke. "I like going outside," he said. "I like to get fresh air."
Several smokers cited other advantages.
"I'm all for it. My dry-cleaning bill's gone way down," said John Payne, 36, who was smoking on Tuesday night outside Toad Hall, in SoHo. "And I'm smoking less."
A friend, Bill Cauclanis, 29, said, "There's a secondary scene now outside of bars - a smoker's scene."
He added: "You can meet a girl out here. Strike up a conversation."
What is good for singles like Mr. Cauclanis is bad for bartenders, who cannot so easily go outside and who find themselves increasingly cut out of the social scene in which they centrally stood. Now, they are often placed in the role of hall monitors, chiding those who disobediently light up, said Barry Crooks, who was tending bar at Toad Hall. Mr. Crooks, an owner of Toad Hall, said he was far more worried about a falloff in business of at least 10 percent, which he said was a result of the new smoking ordinance. "It hurt the volume of business," Mr. Crooks said.
While such complaints were once more common, and perhaps more heated, there are still plenty of them. "It hurts," said John Mulvey, owner of Bridget's Public House on Staten Island.
Public acceptance of the ban has "come around a little bit," Mr. Mulvey said. Business was off 25 percent right after the ban took effect, he said, but now that decline has stabilized at about 5 percent. And while Mr. Mulvey is no longer furious over the anti-smoking ordinance, he says it bothers him that he is not free to run his business as he sees fit - without government intervention.
Mr. Mulvey still has a champion in Audrey Silk, founder of NYC Clash, or Citizens Lobby Against Smoker Harassment. In an interview, Ms. Silk vowed to continue fighting the ban. "We're not giving up," she said.
Appellate Court Backs Companies in Tobacco Case
By Michael Janofsky
WASHINGTON - A federal appeals court delivered a major victory to the nation's leading tobacco companies on Friday, ruling that the government cannot force them to turn over $280 billion in profits if a trial court finds that the companies engaged in a conspiracy of fraud and deceit to promote smoking.
The 2-to-1 decision by the United States Court of Appeals for the District of Columbia strikes at the heart of the government's biggest legal effort ever to punish cigarette makers.
It reverses a ruling by Judge Gladys Kessler of Federal District Court, who agreed with the government that the giving up of profits, or disgorgement, was a suitable remedy under federal civil racketeering law. Testimony in the trial continued while an appeal of that ruling was heard.
In writing the majority opinion for the appeals court, Judge David B. Sentelle found that the 1970 Racketeer Influenced and Corrupt Organizations Act, or RICO, the law under which the Justice Department sued, does not allow the government to recover illegal profits as a way to prevent and restrain future violations.
The law, Judge Sentelle wrote, only provides remedies intended to prevent future violations, like an injunction that blocks certain behavior or the dissolution of a corporation. Forcing the tobacco industry to give up profits, he continued, "is a quintessentially backward-looking remedy focused on remedying the effects of past conduct to restore the status quo."
The requirement that companies give up profits might be acceptable under the criminal section of the RICO act, which has far higher burdens for proving culpability, Judge Sentelle wrote, but not under the civil section, which the government used in the lawsuit.
He was joined by Judge Stephen F. Williams; both judges were appointed by President Ronald Reagan.
In a dissenting opinion, Judge David S. Tatel, who was appointed by President Bill Clinton, said Judge Kessler had properly ruled the companies could be forced to give up their profits. He said that evidence in the case had shown that forcing the companies to relinquish profits would, in fact, "prevent and restrain" them from committing future violations because they would know to expect severe penalties for repeating such conduct.
The majority decision has no immediate effect on the trial, which is expected to last well into spring. Should Judge Kessler, who is deciding the case without a jury, ultimately rule for the government on the merits, she could still hold the companies accountable by requiring them to finance stop-smoking and education programs or to change advertising and marketing strategies, rulings that could still cost the companies many millions of dollars.
But the appeals court ruling, for now, eliminates the government's biggest potential financial threat to the tobacco industry from the case. That is the government's calculation of $280 billion in profits it estimates that the industry garnered from cigarettes smoked from 1971 to 2000. Lawyers for the tobacco companies had contended that being forced to disgorge so great a sum could have driven some companies into bankruptcy.
The stocks of tobacco companies surged after the ruling. Shares in the Altria Group, the parent company of Philip Morris USA, jumped $3.26, or 5.1 percent, to $67. Shares in Reynolds American rose $3.69, or 4.5 percent, to $85.60, while British American Tobacco added 75 cents, or 2.1 percent, to $36.15.
It is unclear what the government intends to do next. It can request a review of the decision by the entire appeals court or an appeal to the Supreme Court. Justice Department officials said that any decision would be made by the new attorney general, Alberto R. Gonzales, who was confirmed by the Senate on Thursday.
Kimberly Smith, a spokeswoman for the Justice Department, said government lawyers were reviewing the ruling and would have no immediate comment.
Lawyers for Philip Morris USA, the biggest company in the case, declined to comment beyond acknowledging the court decision.
David M. Bernick, a lawyer for Brown & Williamson, now part of Reynolds, the second-largest tobacco company, said : "Obviously, we're pleased with the decision. What's happened is that an enormous piece of noise that never should have been there has been eliminated, and the case can now properly focus on whether or not we are doing something we shouldn't be doing."
"The threat of a Draconian monetary award was something we could not ignore," Mr. Bernick added. "But it was an improper threat."
The sum the government sought from the tobacco companies made this the biggest lawsuit they had ever faced, surpassing even the series of actions filed by the states' attorneys general that led to a combined settlement of $246 billion in 1998. Those were essentially product-liability cases in which states were seeking to recoup medical costs from treating patients who suffered from the adverse effects of smoking.
The conspiracy case was a novel approach for the government, which had first sued to recover federal health-care costs. When that approach was rejected, the government turned to racketeering laws, trying to prove that the companies worked in partnership for more than 50 years to sell their products by denying the health consequences of smoking, manipulating the level of nicotine to maintain addiction and marketing products to children.
Government lawyers have tried to show that the companies are still acting in bad faith despite their assertions that they have altered their behavior by measures like admitting that smoking causes health problems and eliminating marketing efforts to children.
The case was filed in 1999 during the Clinton administration, and it was pursued through President Bush's first term, at a cost of $135 million before opening arguments last September. Since then, scores of witnesses have testified, and the government still has, perhaps, another month of witnesses before the companies begin their defense.
Through the weeks of trial testimony, the issue of disgorgement hung over the proceedings. Now that it has been removed - for the time being, anyway - government lawyers may have to shift their focus to convince Judge Kessler that there are other ways to punish the companies if she rules for the government.
William V. Corr, executive director of the Campaign for Tobacco-Free Kids, a nonprofit group that has fought cigarette companies for years, expressed disappointment over the appellate ruling but said in a statement that the options open to Judge Kessler still "hold the greatest potential for reducing the death and disease caused by tobacco use."
Mr. Corr also urged the Justice Department to resist any request by the companies to settle the case, a possibility that company lawyers said they would consider if disgorgement was no longer a factor in the case.
"Today's ruling," Mr. Corr said, "should not be an excuse to let the tobacco industry off the hook for the wrongful practices that are the basis of the lawsuit."
Dean Richard A. Daynard of the Northeastern University Law School in Boston, a longtime industry critic, said tobacco opponents were initially skeptical of the Bush administration's commitment to the suit. But Dean Daynard said he believed that the administration would appeal the ruling and continue to press the case.
Mayor Backs City's Right to Tax Purchases Made on the Internet
By Winnie Hu
Mayor Michael R. Bloomberg said yesterday that he favored regulations allowing states and cities to tax purchases made on the Internet.
The mayor, speaking on his weekly radio program on WABC-AM, said that governments should have the right to impose a sales tax on such purchases as a way to raise money for their schools and police and fire departments.
"It's not fair when - just because you order it one way versus another - you can avoid the tax the other person pays," Mr. Bloomberg said.
"At the beginning you could maybe make a case that the Internet needed a little bit of help and therefore a tax break for a while was in the country's interest, but we've long gone beyond that. The Internet is an accepted way to do business, they do enormous volume, and why shouldn't you have to pay your taxes?"
In New York, the state government collects the sales tax and remits a portion to local governments. For Internet purchases, a resident is charged a sales tax when the retailer has a physical presence in the state. But when that is not the case, residents are supposed to pay an equivalent amount on their state income tax form, though many do not do so.
The debate over taxing Internet purchases resurfaced this week in New York City after Bloomberg administration officials announced that they were aiming at smokers who had bought their cigarettes online and avoided paying local taxes. Compiling names of customers from an online cigarette retailer, the city has so far sent letters to 3,700 smokers seeking more than a million dollars in unpaid excise taxes that amount to $1.50 a pack, which the city can collect directly.
"The law says you've got to pay your taxes," Mr. Bloomberg said about the city's efforts to collect from smokers. "You pay your taxes; I pay mine. Most people do, and the handful of people that don't are just stealing from the rest of us."
Bingo Players Flee, Dab-O-Ink and Cigarettes in Hand
By Jeff Vandam
In Richmond Hill, Queens, the marquee of the old RKO Keith's theater still speaks loudly with big type and yellow trim, as it did when vaudevillians ad-libbed on its stage and crowds swarmed its entrance. But no movies are shown there anymore, and the bright bulbs inside the bold red letters of the theater's name are gone.
One attraction, however, does get top billing. "Richmond Hill Bingo Hall," the marquee on Hillside Avenue now reads. "Cash Prizes." In place of the seats on the theater's main floor are a sea of plain brown tables. Bingo video monitors abound.
The game has ruled here since the late 60's, when the theater reopened as a bingo palace, with proceeds going to various charity groups. But in the last decade, the hall's managers say, the city's bingo industry took a series of hits, as O.T.B. parlors became more prevalent and Atlantic City regained its popularity. And no blow has been as damaging as the 2003 smoking ban.
"Business was decreasing before, but it was livable," said Bob Wooldridge, the hall's manager. "But the no-smoking law came in and really whammed it."
Since then, at least half of the customers, from all corners of the city, have decided to find entertainment elsewhere. Nightly games under the theater's dusty chandeliers used to attract 300 or 400 guests, but now the average is closer to 125. Some players tried ducking outside after every few games to light up, but it didn't last.
"If they want to spend their money, they want to be comfortable," said Susan Shkoditch, the volunteer who runs the bingo games for the charities. "They're mostly angry that their rights are being violated."
Competition among bingo halls in Queens for the remaining players has become so fierce that some establishments have resorted to sabotage, Mr. Wooldridge says. He believes that competitors have called the city's 311 phone line to report smoking at his hall, even though there isn't any. If a customer does manage to sneak an unauthorized smoke and an inspector arrives, an $800 fine and a day in court can result.
But the game is not dead yet. Dedicated players pass through the grand
old lobby, showing up hours early with their Dab-O-Ink markers and satchels
marked "My Lucky Bingo Bag." Posters covered in dollar signs advertise
"Dottie's New Game," where players are promised big jackpots and are asked,
politely but urgently, to "bring a friend."
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THEY'D RATHER FIDO THAN QUIT
By Neil Graves
Smokers were fuming yesterday over Mayor Bloomberg's suggestion that they quit puffing at home — for the sake of their pets' health.
"That's crazy, ludicrous," Yvonne Lee, a Manhattan mail clerk and owner of Annamae, a Jack Russell terrier, said while smoking with friends outside a Midtown office building. "I mean, it's my house."
Walter Henry Kaiser III agreed while playing at a Riverside Park dog run with his Shih Tzu, Lea.
"Let people do what they want to do," said Kaiser, 62, a stage manager. "I adore my critter, but I also smoke at home."
After two studies indicated health risks to dogs and cats from secondhand smoke, the city Health Department issued an advisory to pet owners — but it can't impose a law.
SEE SPOT COUGH
By Carl Campanile
He has already snuffed out your right to smoke in bars — and now Mayor
Bloomberg is trying to shame you from lighting up in your own home, by
dragging cats and dogs into the debate.
City Hall has issued a warning that secondhand smoke endangers the health of puffers' pets.
That's right. Even if you don't have a spouse or kids to worry about, that next smoke could push Fido, Sylvester or Tweetie one step closer to the pet cemetery, the city Health Department declares in its new advisory.
"Even cats and dogs whose owners smoke have higher rates of cancer," the Health Department reports.
The push for a "smoke-free home" is an extension of Bloomberg's campaign against secondhand smoke, including a ban on lighting up in most public places.
Hizzoner can't impose a law barring smoking in private abodes, as he did in bars and restaurants, but he is working on smokers' consciences to do the right thing for their families and pets.
City health officials said smokers should kick the habit at home because "moving to another room, opening a window, or using an air filter does not protect nonsmokers. 'No smoking' means even when no one else is around," the advisory reads.
Several studies and other research by pet experts have concluded that secondhand smoke does, in fact, harm cats, dogs and birds.
The Journal of Epidemiology published a report claiming that dogs in smoking households have a 60 percent greater risk of lung cancer. Another study said long-nosed dogs — such as collies and greyhounds — were twice as likely to develop nasal cancer living with smokers.
A Tufts University study found that cats whose owners smoked were three times as likely to develop lymphoma.
The studies also note that pets don't just inhale smoke. Tobacco particles are trapped in their fur and ingested when they groom themselves.
"Cats seem more sensitive to secondhand smoke than dogs. They can get asthma and bronchitis," said Manhattan veterinarian Jennifer Chaitman.
The American Society for the Prevention of Cruelty to Animals lists tobacco smoke as a poison for birds.
"Secondhand smoke is especially hazardous to birds because they have a very sensitive respiratory tract. It could cause fluid accumulation and lead to pneumonia, which is life-threatening," said ASPCA spokeswoman Dana Farbman.
The health advisory said that maintaining a smoke-free home makes kicking the tobacco addiction easier.
NYC C.L.A.S.H. Note: Click here for a debunking of this pet health alert
GOOD, BAD & UGLY OF BLOOMIN' SMOKE LAW
By Steve Dunleavy
YESTERDAY'S "Great American Smokeout," which urges people to quit the
weed or never start, is good.
I smoke, that's bad.
I support Mayor Michael Bloomberg, the Democrat in Republican pinstripes, in many ways, and that's good.
But his sucker punch — which deprived me of the right of partaking in a legal activity in a privately owned establishment — is virtually unconstitutional, and was never put to a public vote. That is bad.
Being concerned about the bartenders' health is good.
Running a taxpaying bar owner out of business or slashing a bartender's tips by up to 30 percent, because so many New Yorkers just don't go to the pubs anymore, is bad.
Bloomberg's concern about my health, which he has personally imparted to me, is good.
Me, standing like a frozen stork outside a bar smoking in the snow risking pneumonia, that's bad.
Bloomberg won his first mayoral race with big bucks and booming brains in his campaign — well, that's good.
But he didn't utter a word in his campaign about his Draconian intention to ban smoking in bars. That's bad.
People still smoke pot (an illegal substance), and that's bad. But if cops catch you smoking a joint in a bar, you will get fined $100. That's good.
But if you get caught smoking cigarettes, a legal substance, the bar owner gets fined $1,000 and eventually could lose a license, that's bad. Very bad.
CIG BAN INSIDE & OUT
By Kenneth Lovett
ALBANY — New Yorkers are fed up with having to pass through clouds of smoke created by clustered cigarette puffers congregating outside buildings, a poll shows.
A new study on smoking commissioned by the state Health Department found a whopping 75.5 percent of adult New Yorkers favor a ban on smoking in front of public buildings and workplace entrances.
Even a majority of adult smokers — 54 percent — favor such a ban, according to the study of 1,949 adult New Yorkers done earlier this year by North Carolina-based RTI International.
Meanwhile, 51.6 percent of adults would ban smoking at public parks and beaches.
"Clearly, people do not like walking through that cloud of smoke around doorways, and I think we're going to have to address it sooner or later," said Russell Sciandra, director of the Center for a Tobacco Free New York.
"It's a sign how rapidly public attitude is changing about smoking as the number of smokers continues to decline and people come to appreciate smoke-free environments."
Assemblyman Alexander "Pete" Grannis, the Manhattan Democrat who sponsored the statewide indoor-smoking ban for most public places, said he believed landlords and localities would soon begin addressing the problem as complaints grow.
He said it could be tricky for the state to outlaw smoking on public streets, though he wouldn't rule it out.
"Obviously, with those kinds of numbers, you can't help but think this is something that will happen one way or another," Grannis said of a push to end smoking in front of building entranceways.
Sciandra said a law could be drafted to ban people from standing still and smoking in front of a building, forcing them to walk up and down the street while puffing.
But state Conservative Party Chairman Michael Long, a former smoker, questioned how much more you can do to punish smokers for engaging in a legal activity.
"While I don't think people should smoke, we shouldn't treat those who do like lepers," he said. "That's what we're doing.
". . . What's next? Banning heavy people from walking on narrow sidewalks?"
SPITZER'S CIG SHOWDOWN
Attorney General Eliot Spitzer has bullied another private company into doing his bidding.
Last week, UPS announced that it will no longer deliver cigarettes to individuals, under an agreement reached with the aspiring — indeed, all-but-presumptive — governor.
What did he threaten to do to the company if it didn't knuckle under? Maybe some press conferences denouncing it?
Maybe a lawsuit, despite the fact that UPS has violated no law?
Whatever the AG wants, the AG gets. No questions asked.
Ostensibly, this agreement is supposed to make it harder for people — particularly New Yorkers, but UPS' new policy applies nationwide — to buy tax-free cigarettes online.
For consumers in New York City, facing an extra $3 a pack in taxes (the state and the city each impose a $1.50 levy), buying from Indian-reservation outlets, which don't charge taxes, is quite a bargain.
Whether Indian vendors who sell to non-Indians have to collect taxes is in dispute, but that's something for New York state and the tribes to work out — not for Spitzer to dictate.
Spitzer and his ilk say they want to stem the tide of lost revenue.
The price, however, is likely to be lost lives.
The principle here is fairly simple.
Any time you ban a product that people want — or make it prohibitively expensive, as is the case here — you inevitably create a black market.
Alcohol prohibition begat bootleggers, who eventually evolved into organized criminal enterprises that plague the United States to this day.
Similarly, "buttlegging" has become a problem in New York, with all kinds of unsavory characters getting in on the action — Russian thugs, Chinatown gangs and even rings of smugglers with ties to Hezbollah.
Cutting off one avenue for cheap cigarettes is only going to push more traffic to another: the streets.
New York has already seen a rash of murders as buttleggers fight over turf throughout the five boroughs.
The problem here, of course, ultimately stems from this state's politicians and their addiction to spending.
The politicians had to get their money-fix somewhere, and hitting smokers with a ridiculously heavy tax burden was the easy score.
The question at this point shouldn't be how to push the gray market for cigarettes on the Internet into blacker and blacker territory.
It should be whether the costs of Bloomberg-Pataki neo-Prohibitionism are really worth it.
And just how bad things might get during a Spitzer administration.
TICKET A KICK IN THE ASH
By Patrick Gallahue
Talk about a nicotine fit.
A Staten Island man was apoplectic yesterday after a ticket-happy New Jersey state trooper slapped him with a $240 fine for flicking cigarette ash — not a butt, ash — out of his car window.
"It's ridiculous," said John Nestor, 40, of New Springville. "Do people get summonses for walking down the street with a cigarette? Where do they flick their ashes? Are they going to put ashtrays on every street corner?"
Cops made an ash of Nestor on Sunday afternoon on Route 80, where he said New Jersey State Trooper Nestor Pla began trailing him as he drove home from the Poconos with his wife and twin 12-year-old sons.
"He was on my butt," the self-professed Marlboro Man said, punning obliviously.
After about 10 minutes the trooper flashed his lights and pulled Nestor over just outside Allamuchy.
"He said, 'You were littering,' " recalled Nestor, a telecommunications operations manager for CBS. "I looked at the kids and thought maybe they threw something out the window. Then he said, 'Your cigarette ash.' "
"But I didn't throw a cigarette out the window," Nestor argued, claiming he puts his butts in an empty Snapple bottle. "The trooper said, 'No, the ash off your cigarette.' "
The trooper then hit him with a stiff summons for "Littering from M.V. [motor vehicle.]." The ticket even says "ashes" in the space reserved for a description of the offense.
"If they actually went after him for flicking his ash out the window it's absolutely a form of harassment," said smokers-rights advocate Audrey Silk.
Even the State Police seemed perplexed.
"That would be littering — but I find it hard to believe it's just the ashes," said Sgt. Gerald Lewis, a spokesman for the New Jersey State Police, of the reported offense.
"More than likely it was an entire cigarette, which is a fire hazard," Lewis added. "If the gentleman is going to contest it, then all the specifics are going to come out in the trooper's testimony. But I don't believe this gentleman is telling you the whole story."
Nestor, a smoker for 15 years, said he plans to fight the charge in court — and that his version of events is the truth, the whole truth and nothing butt the truth.
Asked if his troopers target New Yorkers, Lewis scoffed. "Absolutely not," he said.
GOV BLOWS OUT APT.-CIG BAN
By Kenneth Lovett
ALBANY — Gov. Pataki yesterday snuffed out the idea of banning smoking in people's apartments.
Pataki wouldn't comment on the specific bill being introduced by Assemblyman Felix Ortiz to outlaw smoking in public housing — reported in The Post yesterday — but said he is not comfortable with the state telling people what they can do legally behind closed doors.
The Post reported that Ortiz (D-Brooklyn) is crafting legislation that would immediately require public housing projects to make 50 percent of their apartments smoke-free.
NICO-FIEND TENANTS FUMING OVER PROPOSAL
By John Doyle
No butts about it — the proposed no-smoking law targeting the city's housing projects shouldn't pass, say those who live and smoke in them.
"If I'm paying rent, I should be allowed to smoke in my own home," fumed Maritza Schelmetty, a 33-year-old resident of Brooklyn's Red Hook Houses.
The huge housing complex is situated in the district represented by Assemblyman Felix Ortiz, who is sponsoring the anti-smoking measure. Residents told The Post that the proposal should get snuffed out. "It's a silly law that won't get passed," said Schelmetty, who admits to smoking since age 8.
Her advice: "If you don't want people to smoke, then make cigarette sales against the law."
James Aston, 68, thinks the law is going to go down in smoke.
"It's a good thing, smoking can kill you," he noted. "But you can't tell a person what to do in their own home.
"People aren't going to quit. It won't stop me. It's not fair," said Aston, a smoker for more than 30 years and a resident of Red Hook Houses.
Julia Perry, a smoker for 60 of her 73 years, thinks the proposed law is "ridiculous. I don't think they'll be able to enforce it."
Another project resident, who refused to give her name, laughed when she heard about law.
"Stop the drugs out here before you stop the smoking," she suggested.
ASH FRAY IN CITY'S PROJECTS
By Kenneth Lovett
ALBANY — Thousands of New Yorkers living in public housing could soon be banned from smoking in their apartments.
Brooklyn Democratic Assemblyman Felix Ortiz said his legislation would immediately require public housing complexes to make 50 percent of their apartments smoke-free.
By 2010, smoking in the projects would be outlawed completely, Ortiz said.
Ortiz — best known for his successful push to ban the use of hand-held cellphones while driving — said he's concerned about the effects of secondhand smoke that seeps though the walls and ceilings into neighboring apartments.
"People have the right to smoke, and I'm not trying to stop people from making choices," he said. "I'm trying to have a cleaner and healthier environment for our children."
Ortiz said he has received complaints about smoking from a number of the 9,000 constituents in his district who live in public housing.
"Hotels have smoking and nonsmoking rooms, and housing complexes are not so much different than hotels," Ortiz said.
Supporters say the bill is designed to protect the health of nonsmokers.
But opponents charge lawmakers are seriously overstepping their bounds by trying to legislate what people can do in the privacy of their own homes — something they say they warned about when the city and state banned smoking in most public places two years ago.
"It's an outrageous move that seeks to take away the personal freedoms of our citizens," said state Conservative Party Chairman Michael Long.
"Once again, legislators are starting to take on the role of telling people what lifestyles they should lead, what they should be doing, what weight they should be and what social habits they should be participating in," he said.
Meanwhile, college students are also facing a crackdown as a bill already quietly making its way through the Legislature would ban smoking in all public and private college dormitories.
That bill overwhelmingly passed the Democrat-controlled Assembly last week, and has majority sponsorship in the Republican-controlled Senate.
Twenty-seven percent of colleges nationwide, including the universities of Vermont and Rhode Island as well as Harvard, have banned smoking in dormitories, according to a memo by Assembly-bill sponsor Amy Paulin (D-Westchester).
In New York State, Syracuse University, Hofstra, SUNY Buffalo and SUNY at Old Westbury have as well, she said.
CIG-SELLER FEUD ENDS IN DEATH
By Mark Bulliet and Chris Michaud
A dispute between two cigarette sellers led to a slap and a Macing, then escalated to a stabbing that left one of the vendors, a father of a newborn, dead.
Cops charged a Bronx man, Njasang Nji, 26, early yesterday with the murder of Luis Padilla, 20, also of The Bronx.
Padilla's family said both men sold bootleg cigarettes at 125th Street and St. Nicholas Avenue in Harlem, but on Friday their competition led to Nji smacking Padilla's common-law wife, with whom Padilla has a month-old son.
Padilla went after Nji but ended up getting sprayed with Mace and had to be treated at a hospital early in the evening, his brother, Andrew Martinez, told The Post.
Later, Padilla went to confront Nji again.
"I wanted to go together," Martinez said, "but he went and did it his way."
Padilla's wife, Mary Smith, 19, said she had warned him: "Be careful, just be careful. And call me when you get back."
But he never did.
Witnesses said Padilla was waiting on the street outside the Aristy Food Market on Kingsbridge Avenue in The Bronx when Nji, who lives on nearby West Kingsbridge Road, got out of a cab.
"I heard them cursing at each other," said a man who goes by the name Chino and was watching from his apartment window. "They were really going at it," cursing at each other, then Padilla "ran down the hill and the other dude chased him . . . he just started stabbing him."
Cops said Padilla, who had 14 arrests, was stabbed twice in the left arm and chest and was pronounced dead on arrival at St. Barnabas Hospital.
JUDGE SNUFFS CLUB'S 'LET US SMOKE' LAWSUIT
By Clemente Lisi
A federal judge yesterday tossed a lawsuit brought by a posh private Manhattan club that sought to overturn the city's smoking ban so it could continue to honor its members in "pipe ceremonies."
The Players Club is not entitled to any special privileges with health inspectors who enforce the ban and members "have no fundamental constitutional right to smoke tobacco," said Manhattan federal Judge Victor Marrero.
The judge also rejected the club's argument that the smoking ban infringed on the club's right to continue a tradition in which members are honored in a ceremony that involves smoking.
"While individuals' freedom of association, freedom of assembly and freedom of speech merit constitutional protection, there is no basis for concluding that the smoking bans infringe those rights," Marrero wrote.
The club, with nearly 700 members, including Academy Award-winner Morgan Freeman and legendary newsman Walter Cronkite, filed the suit in December 2003 after city health inspectors ticketed it for failing to remove ashtrays from its offices.
The city ban went into effect in March 2003, banning smoking from all restaurants, bars, offices and private clubs. A similar state law went into effect in July 2003.
The Players Club was founded in 1888 by Edwin Booth, the brother of Abraham Lincoln's assassin, John Wilkes Booth.
MIKE GOP FOE SMOKING MAD
By Stephanie Gaskell
That was the message to Mayor Bloomberg yesterday from Republican rival Tom Ognibene, who said that if he's elected mayor, he would lobby Albany to repeal the smoking ban.
"What he did is, he singled out a certain industry and then applied a draconian system that does more harm than good," Ognibene at Langan's bar and restaurant near Times Square.
"We had a law that was working," he went on, referring to Rudy Giuliani's 1995 smoking ban, which prohibited smoking in restaurants but allowed it in bars.
A Bloomberg spokesman said the ban is working well.
City Still Has Free Nicotine Patches
By David Seifman
Nicotine patches to help smokers quit are still available for free from the city's Health Department.
Health Commissioner Thomas Frieden said smokers who got the free patches have a 1 in 3 chance of quitting, compared to 1 in 20 for those who try to go cold turkey.
Pfizer donated 45,000 patches, which retail for $150. They can be requested by calling 311.
N.Y. BIDS TO RAISE AGE FOR SMOKING
By Kenneth Lovett
ALBANY — First, they raised the taxes on cigarettes, and now legislators are considering raising the smoking age, The Post has learned.
A bill quietly making its way through the Legislature would raise the purchasing age for smoking products from 18 to 19.
The Senate Health Committee is expected tomorrow to consider the bill, which is sponsored by the same senator, Charles Fuschillo (R-Long Island), who sponsored the statewide ban on smoking in most indoor public places.
The Assembly Health Committee has already "reported out" the bill last month. It now sits in the Assembly Codes Committee.
Three states — Alabama, Utah and Alaska — have raised the tobacco-purchasing age to 19. In New York, the smoking age is already set to increase to 19 in Suffolk County on May 16.
Fuschillo said the goal of his bill is to make it more difficult for high-school kids to get their hands on cigarettes.
Many younger teens, he said, use 18-year-old school friends to buy cigarettes for them. Raising the age by a year will greatly diminish that option, he said.
The state legislation has drawn joint opposition from the usually disparate state Conservative Party and the more liberal New York Public Interest Research Group.
Despite being "ferociously anti-smoking," NYPIRG's Blair Horner said his group opposes the legislation because it discriminates against 18-year-old adults, "with no proof raising the smoking age will do anything to reduce smoking rates among teens."
Conservative Party Chairman Michael Long, who quit smoking eight years ago, branded the bill as nothing more than "feel-good, politically correct legislation that really won't do anything."
"It's absolutely ludicrous when you think that an 18-year-old serving in the military who might be a smoker might come home on leave and not be able to buy a pack," he said.
Fuschillo, who said he has heard no objections to the legislation in his house, plans to speak with Senate Majority Leader Joseph Bruno this week to determine the chances of the bill making it to the floor this year.
Assembly Health Committee Chairman Richard Gottfried (D-Manhattan) said the legislation has "fairly broad support" in his house.
While a spokesman for Gov. Pataki said the governor "has been a strong supporter of anti-smoking efforts, especially those aimed at teenage smoking," it's unclear whether he will back raising the tobacco purchasing age to 19.
"If the measure passes both houses and is sent to us, we'll take a look at it," said the spokesman, Andrew Rush.
Representatives for the Altria Group's Philip Morris division, the leading cigarette manufacturer in the country, said the company does not oppose increasing the smoking age.
NIGHT LIFE RISES FROM ASHES OF SMOKING BAN
By Kenneth Lovett and Perry Chiaramonte
The Big Apple's night life is still thriving, despite predictions it would go up in smoke because of the ban on butts, a new state study shows.
The first-time study by the state Department of Taxation and Finance — a copy of which was obtained by The Post — shows that while tavern business in the city dipped the first six months after the smoking ban went into effect in March 2003, it has been rebounding steadily since.
The study, which for the first time separated out the sales at bars from restaurants, also showed the smoking ban had even less of an initial impact on restaurants, where business has grown at a faster rate than at watering holes.
"Certainly there was a short-term impact in the middle of 2003, but clearly since then business hasn't suffered," said state Tax and Finance spokesman Thomas Bergin. "As a matter of fact, business has improved."
Many bar workers and patrons are not surprised.
"We have smokers who come here that are still upset that they have to go outside, but people find a way to deal with it," said Lucie, a bartender at Milady's on Prince Street.
Samir Hadjarab, manager of Red Bench Bar on Sullivan Street, added, "It was quiet for a while, but now a majority of my customers are nonsmokers."
According to the state study, sales-tax revenue collected from bars dropped 5.9 percent and 7.8 percent during the first two quarters following the implementation of the city ban — the largest declines experienced since business dropped 17 percent right after the Sept. 11 terrorist attacks in 2001.
But since September 2003, bar business has begun climbing again, whereas statewide, it has dropped or remained relatively flat since the state smoking ban went into effect July 2003.
For the quarter beginning last June and ending in August, city bars and taverns reported $73.2 million in sales taxes, a healthy 3.8 percent increase over the same period in 2003.
Business even increased slightly during the winter months of late 2003 and early 2004, when smokers had to get used to going outside and lighting up, despite the cold and snow.
State tax officials contend that the numbers are evidence that, despite dire predictions by bar owners and pro-smoking forces, the ban has not decimated the city's bustling night-life industry.
But Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, said the increase in state sales taxes that were collected from bars can likely be pinned to a quarter-percent increase in the sales tax enacted by the state, as well as to establishments being forced to increase drink prices to make up for lost business.
Still, many customers told The Post they are happy with the smoke-free environment.
"It's more enjoyable," said Howard Glassman, 34, a nonsmoking patron at the Bleecker Street Bar. "People are pretty adaptive, and over time, they have gotten over it."
Yvonne, a bartender at Tom and Jerry's on Elizabeth Street, said: "I still see a lot of smokers coming out. They go outside, and it's become a very social thing."
BUTT BAN BITES BACK
Talk about a dubious policy coming back to bite you.
Raymond "Spanish Ray" Marquez, once the city's most famous numbers runner, has won judicial leave to pursue a $15 million lawsuit against the city, claiming he came down with bladder cancer while breathing second-hand smoke in the city's jails.
Manhattan Supreme Court Justice Michael Stallman will allow the lawsuit to go forward — and has given the city less than three weeks to produce all records of cigarette sales to prisoners at Rikers Island, where Marquez was held from 1998 through January 2001 before his acquittal on gambling charges.
Now, given Mayor Mike's notorious zealotry on the question of smoking by any New Yorkers — even those behind bars — you might think the City Law Department would just throw in the towel and write Marquez a hefty check.
After all, as the plaintiff's son and lawyer (that's right) notes: "How does the city even have the audacity to argue against this case when, after I filed suit, they banned smoking at Rikers?"
Fortunately, the mayor's fanaticism on smoking doesn't go quite that far.
Restaurant and bar owners who've had to pay a price for imposing a smoking ban might wonder why City Hall doesn't feel the need to be held liable for its smoking sins.
But foolish consistency, as Emerson noted, is the hobgoblin of small minds.
APPLE'S 'INHALE' OF A FIX
By Dareh Gregorian
A former Rikers inmate can sue the city for not placing him in a no-smoking section while he was in jail, a Manhattan judge has ruled.
Legendary numbers kingpin Raymond Marquez — better known as "Spanish Raymond" — says in a $15 million lawsuit that "he developed bladder cancer and injury to the urethra as a result of secondhand smoke he inhaled" while held without bail at the Manhattan Detention Center and Rikers Island between Jan. 1, 1998 and Jan. 30, 2001.
"Every time he complained about it, he was told, 'This is jail. What do you expect?' " said Marquez's son and lawyer, David Marquez.
Marquez, 75, was later acquitted of the charges he was being held on.
In a ruling made public yesterday, State Supreme Court Justice Michael Stallman snuffed out the city's bid to toss the suit, finding that the questions of whether the jails were "reasonably safe" because of the smoke condition and if the city's alleged negligence caused Marquez's injuries should be answered by a jury.
City lawyer Jennifer Plotkin said "we're disappointed with the judge's ruling," but "look forward to presenting our case in court."
A source close to the case said the city plans to bring up that Marquez was a longtime smoker — something his son said he plans to bring up, as well.
"He smoked for 20 years 20 years ago," which made Marquez "predisposed" to cancer, his son said — a predisposition that manifested itself during his time in the city's smoky cells.
The smoke "was so heavy it was palpable," and was the "proximate cause" for Marquez's injuries, the lawyer said. "It was a condition he did not have before he was incarcerated."
He said his father was first treated for cancer while awaiting trial on numbers-running charges in September 2000 — and was then sent right back to jail. "The tumors in his bladder grew back after they put him back in the smoky environment."
Plotkin said the city's jails "have been entirely smoke-free since March 2003."
"Spanish Raymond" was widely recognized as the king of the Harlem's number racket for decades, and pleaded guilty to attempted enterprise corruption back in 1996. He's now appealing that conviction. He beat other gambling related charges at his 2001 trial, and has since emerged victorious on charges he cheated the state out of taxes.
By Elizabeth M. Whelan
Dr. Elizabeth M. Whelan is president, American Council on Science and Health.
ENVIRONMENTAL activists this week brought the credibility of the noble science of epidemiology (the study of the cause of human disease) to another low.
The Air Resources Board of the California EPA declared that exposure to second-hand smoke upped a woman's risk of breast cancer. Nevermind that the "study" was preliminary and was neither peer reviewed nor published.
The national media picked up its scary conclusions in a generally uncritical manner, most scientists remained silent on the travesty and the California regulatory exorcists who are committed to removing all "toxins" from the air, pondered even more legislation to "protect" women from breast cancer by eliminating exposure to second-hand smoke.
But there is no persuasive evidence that smoking, no less second-hand exposures, cause breast cancer. In fact, there is some evidence that women who smoke may have a reduced risk of breast cancer given that smoking reduces the body's natural estrogen levels. Commonsense suggests that if a woman smoking a pack a day is not at increased risk of breast cancer, then a nonsmoking woman transiently exposed to second-hand smoke would not be either.
Indeed, why do anti-smoking advocates need to exaggerate their claims when there is already overwhelming scientific evidence of the dangers of smoking? Because the anti-smoking movement is driven by a zeal to regulate cigarette smoking out of existence and the ends justify the means.
They seem unaware that their baseless health claims threaten the acceptance and credibility of legitimate public health initiatives as facts and hype get tangled.
Let's not give the tobacco industry fertile grounds for claiming all smoking and health claims are based on junk science.
'NET CIGS MASTER-BARRED
By Kenneth Lovett
ALBANY — MasterCard yesterday became the first major credit-card company to warn financial institutions against processing payments to tax-free Internet cigarette companies.
MasterCard said such transactions should be approved only if there is documented evidence that Internet companies are complying with all federal, state and local laws, including the collection and payment of sales taxes.
"We put out the bulletin to remind our global membership that MasterCard does not tolerate illegal activities of any kind," said MasterCard Senior Vice President Joshua Peirez.
State Attorney General Eliot Spitzer applauded the decision and urged other credit-card companies to follow suit.
The Post reported in January that Spitzer warned credit-card companies and their processors to block orders from tax-free online tobacco companies because many of them skirt state tax laws and do not check the age of customers.
At least two Web-based tobacco companies, Cigs4free.com and 00taxfree.com, have already begun restricting shipments to customers in New York.
ALBANY'S SMOKING OUT PUFFERS FOR ONLINE TAXES
By Stephanie Gaskell
Smokers who got socked with tax bills from the city for buying cigarettes online are now hearing from another party with its hands out — the state.
State officials have just sent out 2,200 letters to customers who bought smokes on the Internet but failed to pay the state tax on them.
"Because the vendor did not collect and remit the appropriate taxes to New York State, you are responsible for the unpaid taxes," the letter says.
Tax-collectors took addresses from a lawsuit against an online cigarette sales company in Virginia.
"The addresses are wide and varied, not just New York City," said Tom Bergin, spokesman for the State Department of Taxation and Finance.
City officials used the same list recently to send out 3,100 letters to city residents who tried to dodge the city tax.
"The message we would like to get across to people who buy cigarettes on the Internet is that there is no such thing as a tax-free cigarette," Bergin said.
The state hopes to collect about $1 million in unpaid cigarette taxes.
354G IN ASH CASH
By David Seifman
More than 1,000 smokers caught buying cigarettes on the Internet have coughed up $354,000 to settle tax claims by the city, The Post has learned.
And more checks are in the mail.
"We're still getting about 100 letters a day," Finance Department spokesman Sam Miller said last week.
Armed with lists of buyers obtained under court order, the Finance Department last month sent out 3,100 letters demanding payments totaling $1.2 million from residents who ducked the city's $1.50-a-pack tax since July 2002.
Those who didn't pay within 30 days — the deadline was yesterday — were threatened with a draconian penalty of $200 a carton.
The largest single check was $3,075, representing the taxes owed on 205 cartons. Some smokers entered into installment plans.
Miller said no one was offered a discount, although double-billing errors were corrected.
"There are no deals," he declared.
Andrew Hoffer, a Queens utility worker among the first to get slapped with the tax shocker, decided after contacting a lawyer to reluctantly write the city a check for $1,005.
"I wasn't gonna pay," he said. "But if I didn't, the penalty was $13,500. The lawyer asked me, 'Do you want to risk that?' I wanted to get it out of the way."
Hoffer also said he's cut down on his smoking and has stopped using the Internet to buy cigarettes.
"I'm not going to make that mistake again," he said.
But other smokers might.
Numerous online tobacco retailers continue to advertise that their products are "tax-free."
Indian Smokes Online was offering a carton of Marlboros for $25.75 yesterday. That's about half the price charged by shops in the city.
CIG CYBER-SELLERS WIN A ROUND VS. BLOOMBERG
By Carl Campanile
A Manhattan federal judge ruled yesterday that the city hasn't shown that online brokers hawking "tax-free" cigarettes are engaged in racketeering -- striking a blow to Mayor Bloomberg's campaign to stop smokers from avoiding city taxes by using the Internet.
Judge Deborah Batts tossed out city claims that a half-dozen firms acted as a racketeering enterprise by falsely advertising that cigarettes are tax-free if bought out-of-state on the Internet.
But Bloomberg's case is not in ashes yet, because Batts also ruled city lawyers can amend the suit and plead its case again within 30 days.
The judge ruled that the lawyers had improperly described the racketeering enterprise, a defect that could be corrected.
She even said that the city is "defrauded" of taxes when out-of-state Internet firms fail to report cigarette sales to New York authorities.
City lawyers insisted the judge provided a "road map" to move ahead with its case.
"This ruling bolsters the city's efforts to prevent Internet cigarette vendors from misleading the public into illegal transactions," said Corporation Counsel Michael Cardozo.
The city has filed four lawsuits against 55 Internet companies and individuals it says are selling "tax-free' smokes illegally.
Batts also sided with the city by ruling that her court did have jurisdiction in the case.
MIKE'S CONTINUING OBSESSION
The Bloomberg administration's to bacco obsession seems to know no bounds — on both the smoking and anti-smoking sides.
Many New Yorkers are finding letters in their mailboxes from the city Finance Department demanding back taxes — sometimes hundreds of dollars — from cigarettes purchased online.
Now, the law governing out-of-state purchases is clear. New York state taxes are supposed to be collected at the point of purchase. If not, they remain the responsibility of the purchaser.
Thus the city probably is within its rights in dunning cigarette consumers who buy over the Internet.
Regardless, the mayor seemed a little too happy Thursday in reminding cigarette-purchasers that Caesar's tobacco-tax tribute must be honored.
Of course, this is the same administration that — enforcing the smoking ban — has fined business for having empty ashtrays . . . in out of the way back rooms!
In other words, an ashtray just on the premises was itself evidence of having broken the smoking ban.
Now, having jacked up the city per-pack tobacco tax to $1.50 (never mind the state and federal bite), it shouldn't come as a surprise that otherwise law-abiding people will try to find a bargain.
Are these people "avoiding" taxes?
Yes, but like any consumer when faced with a price hike in their preferred product, they are also trying to shop around.
By enforcing laws foolishly on the one hand and passing onerous tax hikes on the other, a government will ultimately encourage disrespect for the law.
Indeed, Internet sales of tobacco pales in comparison to the business "butt-leggers" are doing all over the city.
Meanwhile, before certain politicians get too gleeful over "getting" consumers with avoided taxes, remember that those consumers are also voters.
A close election could turn on how many voters might take letters from the Finance Department with them as they head to the voting booth.
BLOOMY PIPES UP ON CIG-TAX 'NET CHEATS
By David Seifman
Mayor Bloomberg yesterday vigorously defended his tax collectors for going after New Yorkers who didn't pay taxes on cigarettes they buy over the Internet.
"It's not fair to every other taxpayer in this city if some people avoid it," Bloomberg said. "I'd also like to point out these aren't people buying cigarettes to smoke for themselves. It's buying a lot of cigarettes for resale to avoid the taxes."
The Finance Department said 2,300 letters demanding payment went out Monday to a list of city smokers obtained from Web sites sued by the federal government in Virginia.
Another 1,800 letters went out yesterday to anyone who bought tobacco from another Internet company sued by the city.
The city has lawsuits pending against 30 other Web retailers, meaning that thousands more unwary smokers are going to get slapped with outstanding tax bills.
There's one smoker who's certainly burning up today — she's been hit with a $9,960 bill for buying 664 cartons of untaxed cigarettes. Officials wouldn't identify the culprit other than to say she lives in Brooklyn.
Several Web sites promise that their transactions are confidential. But the Finance Department said there's no legitimate way to buy tax-free cigarettes over the Web.
While smokers were squawking, grocery store owners were cheering.
"I think this is something fair for everybody," said Jose Fernandez, president of the 7,000-member Bodega Association.
CITY SMOKES OUT 'NET TAX
By David Seifman
Big Brother Bloomberg is watching.
Smokers who've been buying cigarettes from Internet sites to beat the city's $1.50-a-pack tax are in for a shock: tax collectors know who you are and are now sending out thousands of bills going back more than two years, The Post has learned.
Andrew Hoffer, a utility worker who lives in Queens, told The Post he was flabbergasted to get a threatening letter from the Finance Department demanding $1,005 for the taxes due on purchases he made back to July 2002.
"I had a feeling of violation," said Hoffer, 37. "Internet purchases are traditionally considered private and secure. This just doesn't seem right to me at all."
In fact, residents have to pay full city taxes on whatever they buy, even outside the five boroughs.
By law, New Yorkers who order untaxed merchandise over the Web are required to forward the applicable tax to state and city authorities. Few do.
Authorities rarely prosecute, except in cases where they catch high-end jewelers and art dealers deliberately ducking taxes by sending expensive purchases to fake out-of-state addresses.
With the price of a pack here reaching $7 or more, the Bloomberg administration last year filed lawsuits to prevent Internet tobacco sites from shipping to New Yorkers.
Tax-evading smokers are apparently next in the administration's sights.
Sources say the blitz will be widespread with possibly more than 2000 letters likely to be sent out.
In a Jan. 10 letter to Hoffer, the Finance Department wrote that it had "obtained information from cigarette retailers that you purchased over the Internet and received delivery in New York City of 67 cartons of untaxed cigarettes during the period July 2002 through April 2004."
Hoffer was advised that many online cigarette retailers claim they can offer huge savings because their cigarettes are tax-free.
"Those claims are false," wrote Assistant Commissioner Carlton Butler of the Office of Tax Enforcement.
Hoffer was given 30 days to pay up or face interest and penalties of up to $200 a carton.
Given that choice, he said he planned to pay the tab if he can work out an installment plan.
Hoffer said he turned to the Web for convenience, not to evade taxes.
"I smoke a relatively obscure brand (Broncos) that you can't find in too many places," he said
CARD FIRMS SMOKED ON 'NET SALES
By Kenneth Lovett
ALBANY — State Attorney General Eliot Spitzer has turned his attention to Internet cigarette sales by warning credit-card companies to block orders from tax-free online tobacco companies, The Post has learned.
At least two web-based companies, Cigs4free.com and 00Taxfree.com/Indiansmokeshops.com, have told customers that they are presently not shipping to New York.
Cigs4free directly blames Spitzer.
"Our site is temporarily down due to credit-card processor issues," the company says in a recent message posted on its Web site.
"New York State Attorney General Eliot Spitzer has ordered Verisign, our processor, to block any orders from our Web site!"
The Internet company yesterday began accepting phone orders again and said it hopes to begin accepting credit-card orders again as early as today.
Spitzer spokesman Marc Violette denied the AG's office ordered card companies to stop processing orders from online tobacco companies, but acknowledged that "letters of guidance" were sent.
"We're simply reminding credit-card companies and the processors of
credit-card transactions that . . . this falls into the category of illegal
transactions," Violette said.
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Spitzer is spittin' mad at tobacco
By Joe Mahoney
New York will be flooded with cheap tins of chewing tobacco unless a proposed "penalty" against the nation's largest maker of the product is snuffed out, anti-smoking groups and Attorney General Eliot Spitzer warned yesterday.
The U.S. Smokeless Tobacco Co., makers of Skoal and Copenhagen chewing tobacco, is on the verge of inking an anti-trust case settlement that would have them distribute $60 million in coupons to New Yorkers.
"It's simply a $60 million marketing campaign to dump tens of thousands of discount cans of Skoal and Copenhagen on New Yorkers," said Donald Distasio, the head of the American Cancer Society of New York and New Jersey.
Spitzer, in a sharply worded letter to the Kansas judge expected to approve the settlement later this month, contended the Internet-based system for handing out the $1.50 coupons "is insufficient to ensure that children do not seek and obtain" them.
But a spokesman for the firm, Mike Bazinet, countered that retailers are barred from selling chewing tobacco to kids - even if they somehow get the coupons.
UPS stamps out cig deliveries to tax dodgers
By Joe Mahoney
One thing Brown won't do for you: deliver untaxed cigarettes.
United Parcel Service, the world's largest package carrier, agreed yesterday to butt out of the business of shipping smokes to individual customers. A UPS spokesman said the company, reacting to pressure from state Attorney General Eliot Spitzer, agreed to end such deliveries because "we want to do what's right."
Spitzer called on the Postal Service to follow suit, saying it is the only remaining large delivery service to continue to ship untaxed and undertaxed cigarettes.
"It is an embarrassment that major private companies have stopped carrying contraband cigarettes, but the federal government continues to accept them," Spitzer said.
New York and other states lose about $1billion a year in tax revenue as a result of cigarettes being sold on the Internet, often by Indian tribes that claim they are not subject to state laws.
A Postal Service spokesman said privacy protections prevent the agency from trying to find out about the contents of the packages it takes in for shipment.
"We're required by law to deliver what we receive," said spokesman Gerry McKiernan. "We can't turn our window clerks into investigators."
Man guilty in bootleg cig killing
By Nancie L. Katz
A downtown Brooklyn cigarette bootlegger was convicted yesterday of brutally stabbing a younger rival to death for cutting prices.
A Brooklyn Supreme Court jury took only an hour to convict Jermaine Cox, 28, of second-degree murder in the death of 19-year-old Cody Knox in November 2003 because the teen was selling illegal cigarettes for $4 a pack, instead of the usual street price of $5.
The murder - along with two other killings involving the cigarette black market - prompted the NYPD to make street sales of untaxed cigarettes an arrestable offense.
"I feel great because there was enough evidence to convict him of murdering my son," said Knox's mother, Yvonne Knox. "They just blatantly murdered him. He was my baby.
"I just don't see them getting away with what they are doing to him. He had a life to live. He had people and family who loved him. He was an artist. He could draw," she said.
"He wasn't just downtown selling cigarettes," Knox said. "I wasn't working at the time. He was just trying to help his mother out. These were two grown men, and he was a 19-year-old boy."
Prosecutors charged that Cox and accomplice Harry Wilson, 35, both of Coney Island, targeted Knox after he moved from his designated vending spot at Fulton and Nevins Sts. to the duo's spot at Hoyt and Schermerhorn Sts. and began undercutting their price.
"Obviously the defendant wasn't happy about that," prosecutor Anna-Sigga Nicolazzi told jurors during her summation on Monday. Bootleg cigarettes are "big business. ... This was a thriving illegal trade!" she said.
Cox - also a livery cab driver and bounty hunter - maintained that witnesses misidentified him as the killer who slid a "small sword" and shears up his sleeve after rushing off and leaving his vehicle in front of a fire hydrant on Livingston St. the day of the murder.
He contended that cops set him up by flashing his photo in front of a key witness, April Vasquez, before she identified him in a police lineup.
Cox was charged with stabbing Knox in the neck and slicing off half an ear in the vicious daylight attack on Nevins St.
Five minutes after parking his Crown Victoria in front of a fire hydrant on Livingston St., Cox came running back from Nevins St. do fast that he bumped into an NYPD ticket agent issuing a violation for illegal parking, according to Vasquez.
As Cox watched impassively last week, Vasquez told jurors she was smoking a cigarette in front of 340 Livingston St. near where Cox's car was parked when she saw him slide the blades up his sleeve as he ran to attack and then hide them once again when he scurried back a few minutes later.
Cox faces up to 25 years to life at sentencing on June 16. Wilson has yet to go on trial.
Ognibene's race horse is smoking
By Sidney Zion
The odds against Tom Ognibene winning City Hall are north of what Giacomo faced in the Kentucky Derby. But in the former Queens councilman's run against Mike Bloomberg for the Republican nomination, he's no Tom Who? He'd be rated in the Racing Form as "can't be dismissed."
The other morning, Ognibene rushed where angels fear to tread: he announced that as mayor he would repeal Bloomberg's smoking ban, which he described as "Draconian."
This law has run the city's 2.5 million smokers into the streets outside saloons and restaurants, where they are harassed by the weather in winter and the neighbors in summer.
"I'm the only major candidate in the field," Ognibene said, "who clearly, squarely is in favor of repealing the smoking ban."
You can argue whether he's "major" - although he has the Conservative Party line - but he's surely right that nobody else has gone head-to-head with Bloomberg on this extraordinary attack on smoking - not to mention liberty.
Bloomberg rammed the ban through the City Council, with virtually no opposition from the Democrats, who completely control that virtuous body. According to Ognibene, the mayor then went to Albany and pushed Sen. Joseph Bruno and Assemblyman Sheldon Silver to extend it statewide. Whatever happened in private, the two bosses of the Legislature pushed an even more Draconian ban through in one day, without a hearing.
Now that it's a state law, what good would it do to repeal the city statute? Here's Tom Ognibene: "First things first. We knock off the city law and I guarantee you, Bruno and Silver will get the message."
It appears to be the only way to go. Last week a federal judge in Manhattan summarily dismissed a challenge by the Players Club (my very own), which argued that the city and state statutes violated the Equal Protection Clause of the U.S. Constitution by exempting such moneymakers as cigar bars and hotel rooms, while wiping out private clubs, including the American Legion and the Veterans of Foreign Wars.
Since the sole purpose of the ban is to protect workers and patrons from the alleged scourge of secondhand smoke, how about bartenders, waiters and customers in the cigar bars and cleaning ladies in hotels?
Judge Victor Marrero said no dice, threw out the case without permitting the Players Club to so much as question officials for their reasoning. The court rejected out of hand any attempt to challenge the science underlying the ban. But there is more than ample evidence that the science is junk. If Bloomberg and his health commissioner were right about secondhand smoke, few of us would be alive today. In all the debates among the Democratic candidates for mayor, nobody asked about it.
But out there in the Bloomberg Alleys, where smokers are exiled from the saloons, there is pure rage. Mention his name and you get profanity unprintable in family newspapers.
Ognibene quit smoking after a heart attack a few years ago. But he understands the distinction between dragging the butt and getting it secondhand. He sees clearly what the Bloomberg ban has done to restaurant and saloon owners. Joints are going out of business and in the outer boroughs, where Republicans live - Staten Island, Queens, Brooklyn - Mike ain't liked.
"We figure we need about 4,000 more votes to beat him and take the Republican primary," Ognibene says.
In those precincts, he's the horse who can't be dismissed.
Dem lights into Mike on cig ban
By Maggie Haberman and Michael Saul
If you're steamed up about Mayor Bloomberg's smoking ban in bars and restaurants, mayoral hopeful Anthony Weiner wants you to light up with him at the voting booth.
"The smoking ban was insensitive to the needs of small outer-borough pubs, like the ones in my district for whom accommodating smokers is part of the rationale for their business," said Rep. Weiner (D-Brooklyn, Queens).
Weiner, who doesn't smoke, said family-owned bars and small establishments "should have the right to have smoking" - a surprising move for a Democrat to take in the primary.
If elected, Weiner said, he would advocate changes to thelaw, but he conceded it would be a tough haul, given that Albany lawmakers enacted a statewide smoking ban in restaurants and bars after the City Council passed Bloomberg's ban in thecity.
"It is not going to be a holy jihad of mine to have the law overturned," Weiner conceded. "I'm not sure this is where I'm going to exhaust a lot of my time and energy."
Weiner joins Tom Ognibene, aRepublican and former city councilman from Queens, as the only mayoral hopefuls advocating major changes to the smoking ban. Ognibene called for repealing the ban last week.
City Council Speaker Gifford Miller (D-Manhattan), another mayoral hopeful, said the ban should stay in place.
"This is an important public health matter and as mayor I will keep the smoking ban in place because it is the right thing to do," Miller said.
Mike's GOP foe: Let 'em smoke
By David Saltonstall
One of Mayor Bloomberg's Republican opponents is trying to fire up a new base: smokers.
Former City Councilman Tom Ognibene (R-Queens) said yesterday that, if elected, he would work to overturn the mayor's smoking ban and return the city to separate areas for smokers and nonsmokers in city bars and restaurants.
"There is no logical reason why a legal activity in this society should be totally banned," said Ognibene, making a bid for the city's 2 million smokers.
Ognibene said the ban had cost jobs and tax revenue for the city, although a recent report by the state Department of Taxation and Finance suggested the opposite.
Ognibene's position places him squarely at odds with the Republican Bloomberg, who has argued that the smoking ban is needed to protect bar and restaurant workers from secondhand smoke.
"Tom Ognibene's desire to expose hardworking New Yorkers to carcinogens is perverse," said Bloomberg campaign spokesman Stu Loeser.
"This industry and the people who work in it have never been healthier."
But Ognibene is not alone.
Aides to Rep. Anthony Weiner, who is running against Bloomberg as a Democrat, also said yesterday he would work to change the smoking law.
The other Democrats in the race - former Bronx Borough President Fernando Ferrer, City Council Speaker Gifford Miller and Manhattan Borough President Virginia Fields - have said they would keep the ban.
Tobacco group smokes out pols
By Lisa L. Colangelo
Four Democratic mayoral candidates have taken over $60,000 in contributions from people with links to the tobacco industry, an anti-tobacco group claims.
According to the Tobacco-Free Kids Action Fund study, former Bronx Borough President Fernando Ferrer received $36,100 from cigar company executives including the owner of Cigar Aficionado magazine; City Council Speaker Gifford Miller received $17,175 from a number of sources including General Cigar and General Cigar Holdings; U.S. Rep. Anthony Weiner received $6,350 from groups including several tobacco and candy associations and Manhattan Borough President Virginia Fields received $1,350, including some from a Philip Morris executive who attended one of her functions.
The group also counted all contributions from Loews President and CEO Jonathan Tisch, since Loews owns a cigarette manufacturer.
Aides to the Democrats dismissed the study.
"Speaker Miller led the council in passing the toughest anti-smoking law in the country," said his spokesman Reggie Johnson.
"We have taken no tobacco money. It's patently ridiculous," said Weiner spokesman Anson Kaye.
"These are wholesalers who distribute pretzels and bubblegum to bodegas, he said."
"This speaks about how they feel about how we govern and how they like the idea of a black woman running for mayor," said Fields adviser Joseph Mercurio.
Chad Clanton, a spokesman for Ferrer, dismissed the notion that Ferrer would seek to weaken the smoking ban, which was pushed strongly by Mayor Bloomberg.
"Fernando Ferrer has already said he would not repeal the smoking ban," Clanton said.
Where There's Smoke...
If you like lighting up while gambling in New Jersey, prepare yourself for a drag: A bill in the State Legislature may ban smoking in Atlantic City's 12 casinos by summer.
But is it healthy lawmaking or a game of political arm-twisting?
The bill has the backing of Acting Gov. Richard J. Codey, but some cynics claim it could be nothing more than a gubernatorial smoke screen. They say Codey would quickly snuff the bill if the casino industry dropped its opposition to slots at the Meadowlands racetrack.
We'll have to wait until the smoke clears later this spring. But here's what has already played out: The Senate Health Committee passed Middlesex Dem. Joseph Vitale's bill prohibiting smoking in bars, restaurants, malls and everything from Elks Clubs to casinos. It was expected to get a quick vote last week, but Vitale suddenly pulled the bill (hoping to engage in some behind-the-scenes dealings in smoke-filled rooms, perhaps?). Now, a vote isn't expected until May.
"The governor has said that any bill has to be comprehensive," said an aide for Codey.
Others see things differently. "If the gaming industry drops its opposition, Codey will drop that bill like a hot ash," said a spy. "He needs the slot revenue to balance the state budget."
Michael Pollack, publisher of the Gaming Industry Observer, says "There is no doubt that a smoking ban would cut into revenue -- perhaps as much as 30%."
The Casino Association of New Jersey also "opposes the inclusion of casinos in the proposed statewide ban," says CANJ President Audrey Oswell, adding: "All of the casinos feature sophisticated ventilation and filtration systems, and most offer non-smoking sections."
New cigs' bad taste
State may ban flavored smokes
By Joe Mahoney
New York would be the first state in the nation to snuff out the sale of flavored cigarettes, if a proposed law passes.
"Big Tobacco's newest marketing ploy, the sale of flavored cigarettes, is another blatant attempt to lure children to ... the life-long addictive habit of smoking," said Assemblyman Pete Grannis (D-Manhattan).
The measure touted by Grannis and state Sen. Charles Fuschillo (R-Nassau) would ban the sale of all cigarettes with flavors except for menthol.
The two were the main authors of a controversial 2003 law that bans smoking in bars and restaurants across the state.
Flavored cigarettes already on the shelves in New York include products that sound like they might be on an ice cream parlor menu: Twista Lime, Caribbean Chill, Winter Mocha Mint and Midnight Berry.
Critics of the flavored smokes complain they also are being marketed to African-Americans, with many ads for the cigarettes featuring black models.
The proposed legislation won the quick approval of Attorney General Eliot Spitzer, who said he was "appalled" tobacco companies are producing flavored cigarettes that are "more attractive to children than to adults."
Anti-smoking activists said they're worried the marketing effort behind flavored cigarettes will make a bad situation worse, because more than 51,000 kids in New York begin smoking each year.
A lobbyist for one tobacco firm said privately he thought the measure had a "reasonable chance" of being enacted.
Gov. Pataki had no immediate position on the measure, though an aide said, "Clearly, no governor has done more to reduce teenage smoking than Gov. Pataki."
Cig suit snuffed, city may relight
By Robert Gearty
A federal judge stubbed out a $15 million lawsuit Mayor Bloomberg filed two years ago to get Internet smoke shops to reveal the names of their New York customers.
In her ruling, Manhattan Federal Court Judge Deborah Batts said the city's fraud claims had no merit, but that its federal civil racketeering claims could be refiled.
Bloomberg accused 15 Internet smoke shops of failing to report New Yorkers' cigarette purchases, costing the city millions in unpaid taxes.
But Batts didn't buy the city's argument that the shops were defrauding customers by not telling them they are legally obligated to pay local cigarette taxes.
The judge seemed to open the door to the city's claim that the shops were in cahoots with each other to help customers avoid taxes, but she said the city must name individuals as defendants, not just companies.
City lawyers said they did not consider Batts' ruling a defeat.
"It validates our legal theory" on the racketeering claim, said Assistant Corporation Counsel Eric Proshansky.
He said the task of refiling the lawsuit was just a matter of "reordering the names of the defendants."
But lawyers for the other side said the city was just blowing smoke.
"I don't believe the city will ever be able to replead a racketeering claim against our clients," said John Rogers, attorney for the popular Web site dirtcheapcig.com. "Obviously you can plead whatever you want, but if you don't have the facts to support your pleading you are not going to get very far."
The smoke shops that were sued advertise on their Web sites cartons of cigarettes for about $25 - $55 less than the price of a carton sold at a brick-and-mortar store in the city.
The city has three more lawsuits against two dozen more Internet tobacco shops.
Two weeks ago the city sent letters to city residents who bought tax-free smokes on the Internet, warning of severe penalties if they didn't pay taxes owed.
Ferrer gets puffed up
By Michael Saul
Mayoral candidate Fernando Ferrer has puffed up his war chest with thousands of dollars in donations from opponents of Mayor Bloomberg's smoking ban.
Records show that the publisher of Cigar Aficionado, Marvin Shanken, collected more than $27,000 in campaign donations from assorted stogie makers for the former Bronx borough president.
"Freddy obviously puts more of a premium on a couple of thousand dollars from tobacco fat cats than on the lives of New Yorkers," said Ed Skyler, spokesman for Mayor Bloomberg.
But Jen Bluestein, a Ferrer spokeswoman, said the donations won't sway the Democrat from backing the ban. "Freddy Ferrer supports the smoking ban and, as mayor, will assess it to make sure that it's implemented fairly," he said.
City Council Speaker Gifford Miller and Manhattan Borough President Virginia Fields accepted money from various members of the Tisch family, who run the Loews Corp. - owner of the Lorillard Corp. tobacco company. Both pols support the smoking ban.
That's your puff luck
So says mayor to all taxed for online cigs
By David Saltonstall
Mayor Bloomberg blew smoke in the eyes of city puffers yesterday, saying he has no sympathy for those who bought tax-free cigarettes over the Internet but are just now getting hit with the tax bill.
"The law says you have to pay taxes," Bloomberg told reporters. "It is not fair to every other taxpayer in the city if some people avoid it."
The mayor spoke a few days after the city began issuing harsh letters to 3,700 city smokers whose names popped up in lawsuits against three online cigarette sites.
The letters warn that the smokers have 30 days to pay taxes on cartons they may have purchased online in the past 30 months - with some bills topping $9,900.
The city and state boosted taxes on cigarettes to $3 a pack in July 2002, leading many smokers to seek cheap smokes online as the per-pack price jumped to about $7.
Though most Internet sites do not charge tax, the law still requires buyers to pay the taxman $3 on every pack.
"We have an obligation to level the playing field for city businesses that do collect the tax," said Finance Department spokesman Sam Miller. "We also know that kids buy cigarettes on the Internet."
But many smokers were fuming yesterday. Manhattan business owner Sheila Hansen got a letter saying she owed $900 for 60 cartons that the city says she bought as far back as 2002.
"It might be like a quarter for him, but it's not a quarter for me," she said of the billionaire mayor.
Hansen said she had no intention of paying her bill until the city provided written proof showing she made the purchases.
"If I owed a parking ticket, the Finance Department would give me a copy of the ticket," Hansen said.
City officials said they had company records showing the amount and time of each sale. But because the records included the buyer's credit card number, they did not want to send the information through the mail.
Other online shoppers should relax, though. City officials said they have no plans to go after buyers who may have avoided sales tax online.
They noted the sales tax, unlike the cigarette tax, is collected by the state. And shoppers are supposed to report unpaid sales tax when they fill out their state tax forms.
Bodega and grocery store representatives were glad to learn of the crackdown but pointed to a bigger problem: illegal smokes trucked from out of state and sold on city streets.
"Internet sales," said Richard Lipsky of the Neighborhood Retail Alliance, "are just the tip of the iceberg."
A kick in the ash
Smokers' free Web ride ends as city hits 'em with tax bill
By Nancy Dillon
Smokers, beware: City Hall is coming for your wallets.
The city has quietly launched a crackdown on New Yorkers who have bought tax-free cigarettes via the Internet, the Daily News has learned.
Some 2,300 city smokers were hit this week with warning letters from the city Finance Department, threatening severe penalties unless the back taxes are paid.
It's the first big crackdown of its kind in the city, officials said, with the smokers' names coming from a landmark Virginia court decision involving the now-defunct Cigs4Cheap.com Internet site.
"You owe $900 in New York City cigarette tax," read the letter sent to Manhattan resident Sheila Hansen.
"If you fail to pay," the note continued, "the Finance Department may also require you to pay interest on the tax due and penalties up to $200 per carton."
In Hansen's case, that would be a penalty tipping $12,000.
"How dare they ask for $900 in 30 days. Do they think I'm [Mayor] Bloomberg?" Hansen told The News. "The tone of the letter is so threatening. I didn't even know I was doing anything wrong."
The city and state boosted taxes on cigarettes to $3 a pack in July 2002, driving the cost of a pack of smokes to $7. That drove many smokers to tax-free cigs on the Internet, where 10-pack cartons can be had for less than $30.
City officials said sneaky smokers now cheat the city out of more than $40 million a year in unpaid cigarette taxes.
And they said the 2,300 smokers - representing nearly $1 million in lost tax revenue - are just a start.
They're planning to send another 1,800 letters to parties who appear to have resold the cigarettes they purchased on Cigs4Cheap.com.
People who bought tax-free smokes from other Web sites still owe the city money, but they won't be getting letters - not yet, anyway.
"This is the first time we've done this. It's part of a new, long-term effort to ensure we're enforcing the cigarette tax laws," said Finance Commissioner Martha Stark.
And although the city's efforts have been unpublicized, they won't be for long: A newspaper ad campaign designed to educate smokers about their tax obligations will soon be unveiled.
Once the ad campaign starts, Stark said the city may decide to charge interest on any tax owed.
She said the enforcement is necessary to "level the playing field" for cigarette vendors in the city and safeguard the goal of the $3-per-pack cigarette tax.
"The tax was increased because we wanted to keep young people from starting to smoke," Stark said. "Going on the Internet and purchasing packs without the tax evades the strategy around saving people's lives."
New York State tax officials also have the option of going after the puffers to collect the state's portion of the unpaid taxes.
Hansen admitted she did buy some cartons off the Web several years ago, but said the Web site said the purchase was completely legal. She quit smoking in November 2003, she said.
"I'm losing sleep over this," Hansen complained. "They could have at least offered a grace period, or maybe an amnesty.
"The whole thing is just such an outrage. How are they going to punish just 2,300 people when there are hundreds of thousands of others doing the same thing?"
Gotta pay up if you light up
By Nancy Dillon
The Law is crystal-clear: City smokers who buy cigarettes on the Internet must pay th $3-per-pack tax.
If they buy their cigs on Web sites that do not collect the hefty fee, they have 24 hours to complete and file the appropriate state tax form.
"The way the law is written, the cigarette tax liability falls on the consumer if the seller is outside the tax jurisdiction," said a spokesman with the city Law Department. "It's like buying a car out of state. You have to pay the tax when you go to register it."
On Monday, the city began sending out thousands of letters demanding nearly a million dollars in unpaid cigarette taxes.
The city got the offending smokers' names and numbers after the successful prosecution of an illegal cigarette Web site called Cigs4Cheap.com in Virginia.
Of course, the city has other use-tax laws it rarely enforces, like the ones that cover clothing or furniture purchased at reduced tax rates and brought into New York.
But officials sniffed at the idea they're discriminating against people with a dangerous and unfashionable habit.
"This isn't about smoking being out of favor," said city Finance Commissioner Martha Stark. "It's simply our job to make sure people are paying taxes owed the city of New York."
The city once tried recording the license plates of New York shoppers
at an Elizabeth, N.J.-based Ikea, which charges a lower sales tax.
But the practice was stopped when politicians started calling agents Grinches.
YORK NEWS FROM OTHER SOURCES
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Press - December 22, 2005
Tribe seeks permission for limited smoking at casino
By Damien Cave
UTICA, N.Y. An upstate Indian tribe says it should be granted a waiver from the state's smoking law for its popular central New York resort and casino.
The Oneida Indian Nation says it requires the smoking ban waiver in order to keep its Turning Stone Resort and Casino competitive and because it already has spent (m) millions of dollars on an air-cleaning system.
Oneida County health officials last month cited the tribe for violating the state's smoking ban. A hearing on the fine scheduled for tomorrow was postponed after the Oneida Nation entered its request for a waiver to allow some smoking at the casino resort.
The tribe contends the resort would lose business if smoking were banned at Turning Stone.
Press - December 16, 2005
Judge dismisses citizen group's lawsuit
VERONA, N.Y. A judge has dismissed a lawsuit to make Oneida County officials enforce the state's no-smoking law at the Oneida Indian Nation's Turning Stone Casino and Resort.
State Supreme Court Justice John Grow said a public agency cannot be forced to take action unless that action is specifically spelled out by law. The judge said the state's Clean Indoor Air Act gives the county Health Department some say in how to enforce the law.
The county last month issued a violation against the tribe for allowing smoking at the resort.
The sovereign Indian tribe has argued its land is beyond the reach of state and local laws.
The lawsuit was filed by Upstate Citizens for Equality. That group's president says at least the lawsuit inspired the county to finally crack down on smoking at Turning Stone.
Leader - December 16, 2005
Smoke ban violations net fines
Elmira | Four Elmira bars have been fined by the Chemung County Health Department for letting patrons smoke in their establishments.
The four businesses in violation of the state's Clean Indoor Air Act were: Westside Tavern, 219 Hoffman St.; Ward's Grill, 416 Luce St.; Lepky's, 1150 S. Main St.; The Boar's Nest, 519 Erie St.
Each establishment agreed to pay $500 to settle the violations. The maximum penalty for each violation is $1,000, the health department said.
The state Clean Indoor Air Act prohibits smoking in indoor public locations. The law took effect July 24, 2003.
The county health department said it has fined 10 businesses for smoking violations since the law was enacted. Thomas G. Kump, director of environmental health for the health department, said most businesses have followed the law.
“Most restaurants and bars are doing a great job of enforcing the smoking law,” Kump said in a written statement. “It is unfair to those facilities that are complying with the law when other establishments are still allowing smoking.”
Nine Chemung County businesses were found in compliance with the law during the health department's recent checks. Those businesses were: The Hot End and The Glass House, Elmira Heights; Keefe's Tavern, Chill and Angles, Elmira; County Tavern, Southport; Harris Hill Inn, Big Flats; Amici's, Horseheads; and Five Acres Tavern, Chemung.
More compliance checks during late-night and weekend hours are planned for the future, the health department said.
“If you allow smoking indoors, it will only be a matter of time before you are caught and fined,” Kump said.
Street Journal - December 9, 2005
Why It's Risky To Puff on a Hookah In Queens, N.Y.
Cafes That Don't Sell Alcohol Run Afoul of Smoking Ban;
The 'Cigar Bar' Exception
By Barry Newman
NEW YORK -- The Egyptian Cafe is in Astoria, a section of Queens, the most multiethnic borough of this cosmopolitan city. At midnight one Friday, everybody there was smoking. Not cigarettes, but hookahs -- the glass hubble-bubbles puffed from Casablanca to Islamabad.
As they rolled backgammon dice and shuffled dominoes, though, not one smoker sipped anything stronger than mint tea. In New York, that makes the Egyptian Cafe illegal.
The cafe has run afoul of a most uncosmopolitan quirk in the state's 2003 indoor-air act. The act's language outlaws smoking in restaurants and nearly all bars. It allows smoking in only a few bars that sell lots of tobacco -- as long as they also sell liquor. This is a problem for hookah cafes, where customers are mostly Muslim men, whose religion lets them smoke, but doesn't let them drink.
The smoking ban has only two exceptions: tobacco shops (which can't serve any drinks, even a glass of water) and "cigar bars" that were open as of 2002. A cigar bar, as the law defines it, must get at least 10% of its revenue from tobacco and at least 40% from liquor. If it doesn't sell alcohol, it can't sell tobacco.
Hookah cafes, which sell tobacco and soft drinks, don't qualify for either exemption. "Tobacco is the issue," says Elliott Marcus, the New York City Health Department's chief smoking enforcer, noting that 99% of New York's establishments have abided by the ban. "We inspect on every complaint. If we find tobacco, we cite the violation."
At least three hookah cafes existed in Astoria as of 2002, including the Egyptian Cafe, which opened six years ago. It sells no food, just tea, coffee, juice and soda. For $4 it offers customers long-hosed water pipes filled with a fragrant goop of tobacco, molasses and fruit that can be puffed for an hour or more. It makes enough in tobacco sales to have qualified for an exemption to the smoking ban, if only it were a bar.
Under an Arabian tent in the Egyptian Cafe's paved backyard, Ayman Mikhail set the house-special drink on a customer's table -- a mousse of juices, strawberry, mango and guava.
"I don't have beer," said the 38-year-old immigrant from Egypt and the cafe's part owner, wondering if his last hope might be to put it on the menu. "My customers won't drink it," he said. "But my life is here. I have kids. If I must sell alcohol, I must."
Since the smoking ban took effect, Mr. Mikhail has been caught in a legal fog. The city didn't padlock Astoria's hookah cafes right away. Emboldened, new ones opened on a busy street of Middle Eastern shops. Then the neighbors complained, and now inspectors are pelting the cafes with fines that start at $200 each.
But the crowds keep coming. Along with the men who immigrated to the U.S. from the Middle East, the loungers on a recent night under Mr. Mikhail's tent were immigrants from the suburbs.
"Better than cigarettes," said Malka Young, 22, passing a pipe to Irfan Syed, 25. Both were born on Long Island. "It's similar to a peace pipe," he said. "It promotes community ties."
In faraway lands, hookahs have promoted community ties for centuries (often aided by opium). In America, hubble-bubbles are the cause of a hubbub. Hundreds of hookah places have appeared near college campuses. But underage smokers sneak in, too, and some hookah aficionados drink beer, take drugs and set things on fire.
To hold the fad in check, Iowa is requiring hookah lounges to have special permits. So is Anaheim, Calif., where police have responded 499 times since 2003 to hookah-linked hooliganism. Most locales with smoking bans treat hookah cafes like tobacconists: If tobacco accounts for 51% of sales, they can stay open. Since alcohol brings in far more cash than tobacco at most ordinary bars, they don't win exemptions.
Except in New York. In 2002, when Mayor Michael Bloomberg resolved to snuff out smoking in bars and restaurants, the cigarette-and-beer lobby got nowhere, but the cigar-and-cognac lobby got a break. The law, later embraced by the state, spared a group of oak-paneled, brass-lamped, smoke-filled rooms like the Carnegie Club in midtown Manhattan.
The bar there on a recent night was populated by men in suits with big cigars and large scotches. The Carnegie's night manager, Geoffrey Williams, lives in Astoria, but he didn't know its scotch-free hookah cafes hadn't also won immunity from the ban. "Isn't alcohol a violation of their beliefs?" he said.
It is, but that didn't sway the legislative process. "Those hookah places are just a bunch of schlubs out in Queens," says Russell Sciandra of the Center for a Tobacco Free New York, which opposed the cigar-bar exemption. "They don't have lobbyists. If there was a hookah lobby, maybe they could have made the case."
Does City Hall see any unfairness in that? "No," says Jordan Barowitz, a spokesman for Mr. Bloomberg. "We've saved thousands of lives and made New York a healthier place to live and work."
The law did give leave to a couple of impious hookah bars in New York. One is called Kush. Behind a faintly Islamic facade on Manhattan's Lower East Side, its dark interior thumped on a weekday evening with Moroccan Gnawa music. The bartender, Kristina Dargelyte-Chierra, is Lithuanian. "Not Moroccan, as people expect," she said, serving a melon martini with a melon-scented hookah ($30 after 9 p.m.).
"We've combined hookahs with an artsy, downtown New York cocktail environment," said Mark Osborne, the owner, puffing on a pipe in a dusky alcove. "It's a feature of my ambience and decor. You couldn't compare this to a Queens cafe."
Half Jewish and half Irish, Mr. Osborne hasn't set foot in Morocco. But because his place opened in 1998, before the ban, and gets at least 10% of revenue from tobacco sales -- and mixes martinis -- Kush hangs on to its license. What about those cafes in Queens? "A blatant oversight," Mr. Osborne says. "Those guys were left in a void."
City inspectors ticketed Astoria's hookah cafes, but the tickets were dismissed by the health department's hearings officers. Why? "I presume it was in the interest of justice," says Astoria's city councilman, Peter Vallone Jr. Some cafe owners pleaded at their hearings that the paste in their hookahs contains just fruit, and no tobacco at all. The paste is imported in packages that have no listed ingredients and without evidence to the contrary, says Sandra Mullin, a health department spokeswoman, some hearings officers were "persuaded" that hookah lovers are fruit smokers.
Word that the city was looking the other way, for whatever reason, gave the hookah craze a green light in New York. At least 20 spots have fired up illegal hookahs in Brooklyn and Manhattan over the past two years, plus five more in Astoria. One, Layali Beirut, is right next to the Egyptian Cafe -- and its backyard is right under Laurie Lunenburg's bedroom window.
"Very strong," said Ms. Lunenburg, 46, sniffing the night air and lowering the window. Working after hours in an office, she gets home late to the hubbub. "The crowds keep growing," she said. "I can deal with noise. My problem is the smoke."
Ms. Lunenburg and 30 or her neighbors -- many of them immigrants from Italy and Greece -- have filed complaints, circulated petitions, called meetings and generally made an anti-hookah stink in Astoria.
So the inspectors are back. The Egyptian Cafe's manager, Mr. Mikhail, had hoped a tent would make his hookahs legal. The law does allow some outdoor smoking, but now the fire department has told him that the tent itself is illegal. The Health Department's ticket writers are on the march, too, and the department says it plans to tell its hearings officers that water pipes don't burn just fruit.
Mr. Mikhail has obtained a building permit in hope of adding a fire exit to meet New York tent regulations. He isn't sure it would be worth the expense. "I have no idea what's going on," he said the other night, puffing a hookah in his backyard. "But if I am told to make a bar or else," he says, "then I will do it."
- December 6, 2005
Hotel industry eyes extended smoking bans
As more guests ask for smoke-free rooms, smokers are shown the door
First came workplaces, then bars and restaurants. Now the ban on smoking is extending to hotels, as more guests ask for rooms that are free of smoking residue.
If the upcoming smoking ban by the upscale Westin hotel chain succeeds, more hotels are likely to follow suit. But some smokers' rights advocates say the bans will only go so far. As long as people who smoke travel, they’ll be looking for a room where they can relax and light up.
Completely smoke-free hotels aren’t new, but the move by Starwood Hotel’s Westin chain — eliminating smoking in all rooms and public places in all 77 of its hotels in the U.S., Canada and the Caribbean — is the widest such ban to date. When the restriction takes effect Jan. 1, smoking will be allowed only in designated outdoor areas. The company said it will tack on a $200 charge to anyone caught violating the policy.
"It's really a cleaning fee," said Westin senior vice president Sue Brush. To go smoke-free, the company is converting 2,400 formerly smoking rooms with an extensive cleaning. "Once you smoke in there, you've violated that entire environment and we have to clean it all over again."
Since California became the first state to outlaw smoking in workplaces over a decade ago, smoking bans have spread like the smell of a cheap cigar. Dozens of states and municipalities have followed suit, extending the bans to restaurants and bars. More than a third of the U.S. population is covered by smoking bans where they work or dine, according to the American Nonsmokers’ Rights Foundation, which has been lobbying for smoking bans for nearly 30 years.
Given the impact of smoking on non-smoking guests and workers, the move to ban smoking in hotels is a logical next step, according to Cynthia Hallett, executive director of non-smokers' group.
“The market demand for smoke-free rooms is skyrocketing — both in terms of patron satisfaction and employees’ health,” she said.
Westin said it made the decision based on guest surveys showing that 92 percent asked for non-smoking rooms and 80 percent said they prefer keeping dining and other common areas smoke-free. The company acknowledged that it may lose some business at the outset but said it expects to make it up with new customers who prefer the policy.
Other hotel chains are watching Westin’s move closely. A spokesman for rival Marriott International Inc., John Wolf, said several Marriott hotels and 85 percent of the chain's rooms are smoke-free, but there are no plans to go smoke-free nationwide.
As the number of smokers has declined over the years, hotels have been cutting back on the number of rooms set aside for smokers, according to a 2003 study by PriceWaterhouseCoopers. Some hotels have chosen to eliminate those smoking rooms to cater to the majority of their guests who don’t smoke.
“So often you go to a place and the non-smoking rooms are all taken or the smoking rooms and the non-smoking rooms are mixed up and the smoke spreads,” said Jacque Petterson of San Antonio, Texas, who maintains a Web site listing smoke-free hotels. “You're giving people a place to go without having to worry.”
But smokers' rights groups say hotels like Westin that fail to provide rooms for smokers will lose business in the long run.
“They’re making a big mistake,” said Audrey Silk, a smokers’ rights advocate in New York. “They’re in the accommodation business, and it’s not like smokers are about to spend their vacation being unable to relax — which is what you do on a vacation.”
Press - December 6, 2005
SMOKERS INN TROUBLE AS HOTELS BAN CIGS
By Jim Fitzgerald
A major hotel chain that includes Central Park's posh Essex House is going smoke-free next month — and will add $200 to the bill of anyone who violates the policy, an official said yesterday.
Westin Hotels & Resorts is banning smoking indoors and poolside at all 77 of its properties in the United States, Canada and the Caribbean, senior Vice President Sue Brush said at the company's White Plains headquarters.
Smokers will have to go to a designated outdoor area.
Westin hotels in New York include a Times Square flagship on West 43rd Street.
Enica Thompson, spokeswoman for the American Hotel & Lodging Association, said Westin is the first major American chain to go smoke-free and predicted that "many of the other hotel chains will probably want to see how it works out for Westin" before following suit.
Brush said market research found that 92 percent of Westin's guests were requesting no-smoking rooms, and some of those who couldn't get them were "quite upset," she said.
Brush said customers will be advised about the policy at check-in. If a guest violates the rule — "when we can observe it by smelling it or whatever" — a $200 fee will be added to the bill.
"It's really a cleaning fee," she said.
The smoking ban will apply to hallways, lobbies, and restaurants, except for the eight restaurants that are run by outside companies and not under Westin's control, Brush said.
The policy will not extend to Westin's overseas hotels or to other chains, such as Sheraton, which is under the same parent company, Starwood Hotels & Resorts Worldwide Inc.
50 - December 6, 2005
Mohawk Tribe Opts Out Of Agreement On Cigarettes
The St. Regis Tribe has decided not to enter into a Memorandum of Understanding on cigarette manufacturing with the Alcohol, Tobacco, Tax and Trade Bureau.
Instead, the Tribal Council says it will be up to individual cigarette manufacturers whether to pursue a permit from the ATTTB.
The issue of unregulated cigarette manufacturing has been a bone of contention between the Tribe and the state and federal governments.
The ATTTB approached the Tribal Council earlier this year about reaching a Memorandum of Understanding on the issue.
Tribal Chief Lorraine White said the tribe appreciates the "professional and respectful manner of the ATTTB" in working with the Tribal Council to resolve issues involving cigarette manufacturing in the Akwesasne community.
However she said that based on input from the community, the Tribal Council is opting out of the MOU.
The Tribal Council says if individual businesses seek a permit from the ATTTB, the tribe's Compliance Department will be available to assist or have a presence during the on-site inspection stage of the federal application process.
ATTTB representatives are still required to seek permission from the Tribal Council to enter Akwesasne territory before conduction such inspections, the Council said.
Observer Dispatch - December 5, 2005
County smoking policy unchanged
By Elizabeth Cooper
Oneida County has not changed its policy for enforcing the state Clean Indoor Air Act, despite an Observer-Dispatch investigation that found smoking in 10 of 20 bars visited.
"We worked on an approach based upon the law, we have that in place and we're following it, as it was written," said Oneida County Executive Joseph A. Griffo.
The O-D investigation found county health inspectors whose job it was to check bars for smoking only worked from 8:30 a.m. to 4:30 p.m., not prime bar hours. They also do not perform surprise spot checks after those hours.
Griffo has long called the Clean Indoor Air Act, which prohibits smoking in work places, an unfunded mandate. He looked at performing nighttime checks, he said, but money is an issue.
"We are still looking at the possibility of going out at night." He said, however, the county would not establish a permanent shift.
The state Health Department is monitoring the situation and working with Oneida County, according to Claire Pospisil, a department spokeswoman.
"We expect county Health Departments to investigate every complaint and take appropriate action to uphold the state's Clean Indoor Air Act, and we continue to review enforcement of the Clean Indoor Air Act throughout the state," Pospisil said. "(We) are in discussions with Oneida County and other counties on how they can improve enforcement efforts to better protect the public's health."
Pospisil also said the state Health Department had discussed the possibility of after-hours checks with Oneida County, and it was her impression the county was investigating that option.
"Other counties have done spot checks at night so that people don't get complacent and think they'll never get checked at night," she said.
Daily Dispatch - December 1, 2005
Oneida County cites Turning Stone for smoking
By Andrew Brown
The notice, Bara said, was issued after county officials conducted their standard three-step process to investigate smoking complaints. After informing Nation officials of smoking complaints at Turning Stone, through both a phone call and a written letter, they performed an unannounced inspection. During that inspection they found the violation.
Under New York's Clean Indoor Air Act, the county has the ability to fine the Nation up to $1,000 per violation, Bara said. While no fines have been issued yet, there is a hearing scheduled for Dec. 22 to investigate the infraction.
"The hearing is a chance for the health department to prove its violation, and if the Oneida Indian Nation decides to defend the case that would be their opportunity to defend it, as well," Bara said.
Nation spokesman Jerry Reed would not say whether the Nation plans to pay any fine, but said the Nation has had "productive discussions" with the county about the issue of smoking at Turning Stone.
"Regarding smoking at the resort, there is a state-of-the-art smoke-handling system that takes smoke out of the air that we're willing to show anyone at any time," Reed added.
If the Nation is fined but does not pay, Bara said he is unsure of what the county would do. "We really haven't developed the scenario for that," Bara said.
This is the first time in the two-year history of the state law that officials have cited Turning Stone for a violation. County health officials toured the resort and casino for the first time in September.
Upstate Citizens for Equality President David Vickers, who has sued Oneida County to enforce the smoking ban at the casino, had a mixed reaction to the news of the first violation.
"The good news is that the county is on board as recognizing that New York state law applies at the Turning Stone," Vickers said. "If the smoking ban applies, so do all other New York state laws; that seems very clear and very obvious."
Vickers said he still has a problem with what he sees as the county's selective enforcement of the smoking ban, though. He disagrees with the county's method for registering complaints, saying he believes the county only accepts them by phone. This, he believes, allows them to ignore complaints when they wish.
"What the county has done is provide for itself in this enforcement mechanism a very easy way to be selective and arbitrary," he said.
Bara disputed Vickers' claim that only phoned-in complaints are registered, saying the complaint that prompted the unannounced inspection was a written one. The county, Bara explained, will investigate an establishment if it receives three complaints about smoking violations there, which it did for Turning Stone. If officials do not receive three complaints they will only look for violations when they perform standard inspections.
"I find that numerology to be highly suspect, since the members of our group have sent in probably three dozen complaints against the Turning Stone," Vickers said.
Bara said the validity of every complaint they receive is verified before it is taken seriously, and if multiple complaints are received at once that is considered only one complaint. One problem with complaint-based enforcement systems, Bara said, is that people will lodge complaints in retaliation for offenses, and not because there are actually violations occurring.
While the hearing for Turning Stone's violation is scheduled for Dec. 22, Vickers has a Dec. 15 court date in to deal with to his legal action against the county.
Press - November 30, 2005
County fines tribe for smoking at casino
VERONA, N.Y. The Oneida Indian Nation could face a one-thousand-dollar fine for violating the state's smoking ban at the tribe's Turning Stone Casino near Utica.
County officials say a hearing is scheduled for December 22nd to consider the violation.
At least 37 other Oneida County businesses have been cited for allowing smoking, but all have paid fines and avoided hearings. County officials say it's not clear what will happen if tribal officials refuse to attend the hearing or pay a fine.
The tribe maintains it's a sovereign nation and that state and local laws do not apply to Turning Stone or any other of the tribe's property.
The county began enforcing health laws after the U-S Supreme Court ruled in March that the Oneidas can't claim sovereignty over former reservation land it has reacquired.
Tribal officials aren't commenting on the issue yet.
Times Herald - November 1, 2005
Tavern loses latest smoking-ban challenge
By Rick Miller
LITTLE VALLEY — A Franklinville tavern has lost its third court challenge to the state’s Clean Indoor Air Act.
The Long Branch Saloon, 5 Park Square, was cited by the Cattaraugus County Health Department for violating the indoor smoking ban for a fourth time by allowing patrons to smoke at 3:29 p.m. on May 28.
On Aug. 2, the county Board of Health voted to fine Long Branch owner Robert Allen $1,000 for the violation.
In his appeal to Acting State Supreme Court Judge Larry M. Himelein, attorney Andrew Goodell said his client complied with the smoking ban and said the Board of health cannot cite a business owner “based solemn testimony that patrons were observed smoking inside the establishment.”
He also raised the Constitutional issue of selective enforcement by the Health Department’s failure to cite smokers who violate the smoking ban.
In a brief written decision, Judge Himelein last week noted Mr. Allen’s third bid to have the Clean Indoor Air Act declared unconstitutional.
“Because the constitutional issues have been previously decided adversely to the petitioner, the only contention the court will review is the substantial evidence claim,” Judge Himelein wrote.
“The proof, as it has been in all cases in which the petitioner has challenged the statute, was sufficient to meet the substantial evidence test,” Judge Himelein wrote in the decision dismissing the Long Branch petition.
Press - October 24, 2005
UPS agrees to end cigarette deliveries to individuals
By Michael Gormley
ALBANY, N.Y. -- The world's largest shipping carrier, UPS Inc., will stop delivering cigarettes to individuals in the United States under an agreement announced Monday with state Attorney General Eliot Spitzer.
The agreement is the latest in federal and state efforts to combat the sale of under-taxed cigarettes and to fight underage smoking. Most under-taxed or untaxed cigarettes are sold by Indian tribes, where the taxation of sales to non-Indians is disputed.
Monday's agreement leaves only the U.S. Postal Service among major carriers to continue to deliver cigarettes to individuals, Spitzer said. He called that practice "an embarrassment." Spitzer continues to negotiate with Federal Express, but they are thought to handle a small amount of the trade, said Spitzer spokesman Marc Violette.
Despite a new policy adopted by the Postal Service in September to refuse delivery of illegal products, the federal service allows employees to accept packages suspected of containing under-taxed cigarettes, Spitzer said.
"Internet cigarette traffickers are increasingly using the federal mail system to distribute their wares," Spitzer said. He said the Postal Service "clearly" has the authority to refuse to deliver cigarettes to individual smokers. "It is an embarrassment that major private companies have stopped carrying contraband cigarettes, but the federal government continues to accept them," said Spitzer, a Democrat running for governor. "Congress needs to step in and stop this practice immediately."
The Postal Service can't stop delivery even if it suspects a package clearly marked as coming from a retailer contains untaxed cigarettes, said Postal Service spokesman Gerry McKiernan.
"There could be souvenirs in the package. We don't know because we can't see inside the package," he said.
Instead, the Postal Service will watch for packages if advised by law enforcement agencies. They also will alert law enforcement agencies when the service is shipping those packages, he said.
"It's up to law enforcement agencies to enforce the law," McKiernan said.
He said private companies have contracts with firms that regularly use their services which identifies materials being shipped. The Postal Service doesn't.
"As far as I'm concerned, it's illegal," said Audrey Silk of New York City Citizens Lobbying Against Smoker Harassment and a Libertarian Party candidate for New York City mayor. "They are exploiting children ... when you employ `for the children' you can get the public to do anything."
Earlier this year, DHL banned cigarette deliveries to individuals nationwide and the nation's largest credit card companies stopped processing payments for cigarette sales.
Spitzer said Internet and mail-order cigarette retailers violate federal, state and local laws governing taxes and underage smoking. Sales to minors also violate federal wire fraud and mail fraud laws, he said.
The agreement with Spitzer matches a nationwide policy at UPS aimed at avoiding the difficulty of complying with a "patchwork" of different state laws enacted in 28 states since 2003, said Steve Holmes, spokesman for the global company based in Atlanta. He said he had no estimate of how much business would be lost.
"Regardless of that issue, we believe it's a prudent business decision and we want to do what's right, of course, by the laws, but we want to do right by our customers and we want to do right by our communities as well," he said.
Violations of the UPS policy would eventually result in suspension of service, according to the agreement.
States lose more than $1 billion a year in tax revenue from Internet tobacco sales, according to the U.S. Bureau of Alcohol, Tobacco and Firearms. Enforcement, however, has been difficult, even though in many states, including New York, the Internet sale of tobacco products is illegal.
10 Now - October 19, 2005
Smoking ban to be better enforced in Cortland County
By Sarah Buynovsky
Tuesday, members of the Cortland County Board of Health approved a new smoking ban policy. They say it should clear the air about enforcement of the law.
"We have relooked at our policy and we tried to update it so everyone is being treated the same and so in the policy there's some specifics about the restaurant owner or bar owner to do to comply with the law," said Jacquelyn Gailor, Cortland County Public Health Director.
According to state law, the board of health will cite a business owner for violations, not the actual smoker.
The new Cortland County policy calls for business owners to use "reasonable effort" to stop people from lighting up, like posting no smoking signs, not offering ashtrays, and asking people to smoke outside.
Several local tavern owners attended the health board meeting and walked away dissatisfied.
"They've basically hired us as a free smoke police. I mean I'm in business and I'm expected to stand there and be their patrol person and really it's an unfair burden on us as business owners to basically alienate our patrons," said Larry Baker, owner of Night Owls.
"They've laid out their plans and they want us to digest it and follow it and I don't think some of us are going to be ready to follow it or willing to follow it," said Skip Boise, president of Cortland Co. Hotel, Restaurant and Tavern Association.
Baker and Boise say more has to be done. They plan on working with health officials to make the smoking ban waiver process easier.
Health officials say one waiver has been granted in the county so far. There have been six applications.
Right now, Cortland County health officials inspect businesses for smoking violations on a complaint basis only and during regular inspections.
Press - October 18, 2005
Restaurateur sues county health commissioner over smoking ban
By Carolyn Thompson
BUFFALO, N.Y. -- A restaurant owner who said the state's no-smoking law destroyed his business is suing the Erie county health commissioner over his enforcement of the ban.
Richard Naylon claims Commissioner Anthony Billitier's refusal to grant his Buffalo restaurant a hardship waiver allowed under the law forced him to sell the business for less than it was worth.
He is seeking $1 million in general compensatory damages and $50,000 in punitive damages.
While the state's Clean Indoor Air Act has been challenged in courts across the state since being implemented July 2003, Assistant Erie County Attorney Joseph Reina said Naylon's suit is the only one pending against the county as the law's enforcer.
"The conduct and action of the defendant caused plaintiffs' business to close and it was thereafter sold at a price well below its previous value," according to the suit, filed Sept. 14 in U.S. District Court.
The suit, brought by Naylon and his Elmwood-Anderson Corp., calls Billitier's actions "willful, wanton, malicious and oppressive."
Billitier's spokesman, Kevin Montgomery, said he could not comment on pending legal matters and referred questions to Reina.
Reina said the county had not formally responded to the allegations.
The federal suit is not the first court action taken by Naylon over the smoking ban, which he has fought since its beginning.
In a case brought by Naylon, a state appellate court last year directed Billitier to revise his criteria for granting smoking waivers. The new lawsuit accuses Billitier of failing to comply with the directive in a timely manner.
"Defendant caused plaintiffs to be denied their rights to due process of law and as a direct consequence, the business of Jimmy Mac's suffered financial losses thereby rendering it insolvent," the suit said.
Before shutting down a year ago, Naylon allowed customers who signed a form to smoke at Jimmy Mac's as a form of civil disobedience. The form confirmed they had been informed of the law prior to lighting up.
Press - October 18, 2005
Justices hand victory to cigarette makers
Shot down: Without the threat of a $280B judgment, the government has a weaker negotiating position
By Gina Holland
WASHINGTON - The Supreme Court refused Monday to let the government sue tobacco companies for $280 billion, a major victory for cigarette makers.
A federal judge presided over a nine-month trial and has not yet decided whether tobacco companies are guilty of wrongdoing.
The fight at the high court was over the amount of money the companies would have to pay if the judge rules that they violated a federal anti-racketeering law known as RICO by misleading the public about the dangers of smoking.
A lower court said that the government could not pursue Philip Morris, R.J. Reynolds and other companies for profits that the government claims they earned illegally.
The Supreme Court declined, without comment, to hear the Bush administration's appeal. The case could return to justices later.
The court's decision sent shares of tobacco companies surging, with Philip Morris USA parent Altria Group Inc. rising by $4.30 to $74.96 and rival Reynolds American Inc. by $5.06 to $83.80.
Attorney General Alberto Gonzales said that while the administration was disappointed, ''we continue to believe very strongly in this case.''
Several groups urged the Justice Department not to rush into a settlement with the cigarette makers.
''More than ever, the government should push for remedies that count, and not opt for a weak, watered-down settlement,'' said M. Cass Wheeler, CEO for the American Heart Association.
William Corr, executive director of Campaign for Tobacco-Free Kids, said the Justice Department ''should not use the Supreme Court's decision as an excuse to let the tobacco companies off the hook with a weak settlement.''
The judge in the case had urged the sides to try to reach a settlement. Without the threat of a $280 billion judgment, the government has a weaker bargaining position.
''The settlement value of the case dropped,'' said Mark Gottlieb, director of the Tobacco Products Liability Project at Northeastern University.
A lawyer for the tobacco companies declined to discuss the next step in the case. William Ohlemeyer, Altria vice president, said Monday's decision was appropriate.
The lawsuit was filed by the Clinton administration, and the Bush administration lawyer argued that if the court did not step in now to deal with this issue, the case may drag on for several more years. The $280 billion was the most ever sought in a civil racketeering trial.
The tobacco companies' lawyer, Michael Carvin of Washington, said that the court should give U.S. District Judge Gladys Kessler time to decide the case. He also argued that the government had a weak case.
The Supreme Court is already hearing a case involving the Racketeer Influenced and Corrupt Organizations Act and whether the law can be used against anti-abortion protesters. The law, aimed primarily at fighting mobsters, has both criminal and civil provisions.
The government may still pursue a request for $10 billion for a stop-smoking program and $4 billion for education. The government had been harshly criticized for not asking for more. An expert had recommended a $130 billion stop-smoking program.
The government has spent $140 million since 1999 litigating the case, and the Justice Department also is trying to force tobacco companies to pay those costs.
Observer Disptach - October 10, 2005
Smoking law focus of union talks
By Elizabeth Cooper
Unionized Oneida County workers may be willing to change their hours if it meant better enforcement of the state anti-smoking law.
An Observer-Dispatch report last month showed county health inspectors could not check bars at peak operating times and as a result were unable to fully enforce the state's Clean Indoor Air Act.
The O-D investigation found smoking in 10 of 20 bars randomly visited in and around Utica. Inspectors work from 8:30 a.m. to 4:30 p.m., but bars are more active in the evenings.
The United Public Service Employees Union "would gladly" discuss changes in hours or flex time if it would help workers do their jobs and help the county with its "fiscal constraints," according to a letter to the county from union official Linda Kirnan.
County Public Health Director Eric Faisst said he had received Kirnan's letter and would consider the option.
"I think what we're going to do is put together a proposal for people to review," he said.
There is no timeframe yet for the planning, he said.
Kirnan said she had spoken with Faisst since he received the letter and hoped he would follow up on her suggestions.
State Health Department spokesman Rob Kenny said his department was reviewing the situation with Oneida County, but as yet had no response to the issues raised by the O-D.
Russell Sciandra, director of the Center for a Tobacco Free New York, encouraged local residents who encountered smoking in places where it was illegal to complain.
"It's incumbent on people to speak up and insist the authorities enforce the law," he said.
Times Herald - October 4, 2005
Tavern takes third swing at smoking ban
By Rick Miller
LITTLE VALLEY — The Cattaraugus County Board of Health is being taken to court by a Franklinville tavern owner over a violation of the state’s indoor smoking ban — for the third time.
Robert F. Allen, owner of the Long Branch Saloon, 5 Park St., Franklinville, was cited by the county Health Department after an employee observed two patrons smoking at the bar on May 28. The bar has been cited three previous times for violations of the Clean Indoor Air Act.
Jamestown attorney Andrew Goodell, who has represented Mr. Allen in two previous lawsuits in state Supreme Court, filed the third lawsuit against the Board of Health with a new twist.
As he did in a appeal of the Long Branch’s fourth conviction before the Board of Health, Mr. Goodell cited a Suffolk County Court ruling from last year “that a Board of Health cannot cite a business owner for violating the Clean Indoor Air Act based solely on testimony that patrons were observed smoking inside the establishment.” Mr. Goodell notes also that the county has never cited an individual for smoking.
Mr. Allen states in the Article 78 proceeding he initiated that he does not allow smoking in his tavern and has posted at least 30 no smoking signs. He said he asks smokers to go outside and has told his bartenders to do the same.
Cattaraugus County Attorney Dennis Tobolski, who is representing the Board of Health in the lawsuit, said with the exception of the Suffolk County case Mr. Goodell cites, it appears to be much like the last two lawsuit filed by the Long Branch challenging smoking ban violations.
“It appears that is the only new twist,” Mr. Tobolski said, as he prepared his third defense of the Board of Health for the third challenge by Mr. Goodell representing the Long Branch.
Acting State Supreme Court Judge Larry M. Himelein will hear arguments in the lawsuit on Thursday, Oct. 13, at 9:30 a.m.
Mr. Tobolski said the ruling in the Suffolk County case is not binding in Cattaraugus County, where there are two prior state Supreme Court rulings that turned back challenges to the smoking ban by the Long Branch.
The county attorney said the state Supreme Court ruling in the Suffolk County case brought by Patricia Ann Cottage Pub Inc. is being appealed to the Second Appellate Division by the Suffolk County Board of Health.
“It’s not binding anyplace except Suffolk County pending the Appellate Division’s review of that case,” Mr. Tobolski explained.
Mr. Goodell has also challenged the enforcement of the Clean Indoor Air Act as unconstitutional because smokers are not cited for violations — bar owners are.
Buffalo News - September 26, 2005
Legalities crimp tobacco ad limits
City eyes other laws to shield children
By Brian Meyer
Buffalo's crusade to wipe out tobacco ads around schools, youth centers and playgrounds may face legal hurdles, so sponsors are quietly weighing a different strategy.
If attorneys conclude that Buffalo can't legally ban such ads, some officials want to start enforcing other outdoor advertising rules in hopes of achieving the same end. The city, for example, might target ads not properly affixed to buildings.
This summer, the city began enforcing a ban on tobacco ads within 1,000 feet of places frequented by children. That triggered a warning from R.J. Reynolds Tobacco Co., the nation's second-largest cigarette manufacturer.
Citing a 2001 U.S. Supreme Court decision, the company contended Buffalo's law tramples on First Amendment protections and violates federal laws preventing localities from imposing their own rules on tobacco ads. R.J. Reynolds warned it might sue if Buffalo continues the enforcement blitz.
The regional office of the New York Civil Liberties Union also has notified city officials it views the crackdown as unconstitutional. While the group acknowledged the city may have "the best interests of the community in mind," Jeanne-Noel Mahoney, the executive director, said the Supreme Court ruling struck down similar restrictions in Massachusetts as too broad.
The Civil Liberties Union said it had no immediate plan to challenge city actions. But in a letter, the group warned that Buffalo's plan to expand enforcement and possibly broaden the ban to include alcohol ads would be risky.
"We are extremely concerned that there are discussions of expanding this illegal and unconstitutional ordinance to include additional locations, as well as to attempt to restrict or ban advertisement of other legal products. This is not an eventuality that we can allow to pass unchallenged," she wrote.
John Curr, the group's assistant executive director, said the city has yet to respond to a letter that it received about a month ago.
"It's very irresponsible," he said. "We're citizens first, and we're trying to save the city from facing a lawsuit."
Working with city inspectors, Niagara Council Member Dominic J. Bonifacio Jr. spearheaded the tobacco ad crackdown. The Council is waiting for the Law Department to look into the court ruling. But Bonifacio conceded that the city might have to look at other ways to target outdoor ads.
"We might have to get more creative," he said. "We think there are other laws already on the books that, if enforced, would eliminate some of the problems."
Bonifacio cited the requirement that outdoor ads be posted in frames on buildings. Officials have complained that many cigarette ads are affixed improperly to storefronts or tied onto nearby utility poles.
Journal News - September 21, 2005
Rockland Legislature upholds veto on raising tobacco age
By Sarah Netter
The County Legislature voted to uphold the county executive's veto of a bill that would have raised the age to buy tobacco products from 18 to 19.
Though there were 10 votes in favor of overriding the veto, seven voted against, leaving the majority without the 12 votes needed to override.
While all legislators agreed that smoking is damaging to one's health and that underage smoking is a problem, they disagreed in their comments before the vote that raising the legal age to buy tobacco is the answer.
Legislator VJ Pradhan, D-West Nyack, said it's not the Legislature's job to restrict a legal adult from smoking.
"It's the parents' duty to make sure their children are not smoking," he said.
Legislator Theodore Dusanenko, R-Valley Cottage, said raising the tobacco sales age to 19 is not showing respect for the county's 18-year-olds.
"To not give them the right of full citizenship at age 18 is arbitrary, capricious and, I believe, unfair to them," he said.
Legislator Kenneth P. Zebrowski Jr., D-New City, said that while the bill wasn't the answer to the end of underage smoking, it was a start.
"Any small step we can take to curb smoking among our youngsters is worth it," he said.
In addition to Pradhan and Dusanenko, Legislators Gerold Bierker, C-Bardonia, Doug Jobson, R-Stony Point, Patrick Moroney, R-Pearl River, John Murphy, R-Orangeburg, and Ilan Schoenberger, D-Wesley Hills, voted not to override Vanderhoef's veto.
The measure, proposed by Legislator Ellen Jaffee, D- Suffern, was approved on a 10-5 vote last month and was vetoed Sept. 2 by County Executive C. Scott Vanderhoef.
Jaffee is running against Vanderhoef and independent candidate Richard Stolbach for the county executive seat in the November election.
Before voting to override Vanderhoef's veto, Jaffee said raising the sales age to 19 would have prevented 18-year-olds from bringing cigarettes into the high schools and giving them to younger students.
"Tobacco is just too accessible," Jaffee said. "It will be much harder for students to find anyone to buy tobacco for them."
Vanderhoef has said that he relied on information from the New York Public Interest Group to make his decision.
NYPIRG, which typically supports tobacco-control measures, said that while the group is sympathetic to the Legislature's concerns, there is little evidence that raising the age would have any effect on teenage smoking.
NYPIRG noted that Alaska, Alabama and Utah have raised the minimum tobacco-purchasing age to 19 and Alaska and Alabama still have higher rates of smoking than New York.
Vanderhoef has proposed creating criminal penalties for anyone caught selling or giving tobacco products to minors. Current penalties are civil.
Jaffee has said she will not support Vanderhoef's proposal.
Buffalo News - September 16, 2005
Truck stop gets waiver from state smoking ban
Jim's Truck Plaza of Cheektowaga, which has been catering to the trucking industry for five decades, has become the 17th Erie County business granted a waiver of the state's indoor-smoking ban, county officials confirmed Thursday.
After an extensive review of the operation at 2125 Walden, which never closes and seats 283 diners, county Health Commissioner Dr. Anthony J. Billittier IV granted it a two-year waiver.
Nicholas P. Amigone III, attorney for the plaza, said convincing evidence was submitted that the plaza incurred "a precipitous decline in gross revenues" because of the smoking ban.
White Arrow, which runs the plaza, has made all the modifications that the health commissioner sought and now has a separate enclosed smoking room, Amigone said.
Journal News - September 7, 2005
Bill to curb teen tobacco use is vetoed
By Sarah Netter
County Executive C. Scott Vanderhoef has vetoed a bill that would raise the legal age to buy tobacco, rolling papers and herbal cigarettes from 18 to 19, calling it ineffective, "feel-good" legislation.
The county Legislature passed the bill last month on a 10-5 vote.
Vanderhoef cited research by New York Public Interest Research Group that raising the minimum tobacco purchase age would do little to curb underage smoking.
"It is indistinguishable in my mind that 18-year-olds and 19-year-olds have different judgment values with regards to smoking," he said.
Sponsor Ellen Jaffee, D-Suffern, said the bill could have made it more difficult for minors to get cigarettes.
"Eighteen-year-olds are still in high school," she said, adding that if the bill were implemented, 19-year-olds "would be less able to pass those cigarettes along to younger teens in high school."
Jaffee said she would see if there was enough support to override the veto. She and Vanderhoef are running against each other in November for county executive.
Vanderhoef said the bill would only limit the rights of legal adults.
"Eighteen-year-olds are the age of majority. They can get married, they can have children, they can vote, they can enter into contract and they can go into the military," he said. "To discriminate against this particular age group, versus other adults, is unfair."
Vanderhoef has proposed creating criminal penalties for anyone caught selling or giving tobacco products to minors. Current penalties are civil.
Jaffee said she wouldn't vote for that: "I don't think it's appropriate to support criminal penalties for this."
Buffalo News - September 3, 2005
R.J. Reynolds challenging city's effort to restrict posting of tobacco ads
By Brian Meyer
The nation's second-largest cigarette company is challenging Buffalo's push to wipe out tobacco ads around schools, playgrounds and day care centers.
R.J. Reynolds Tobacco Company claims the city's crackdown on cigarette ads posted in store windows and outside businesses tramples on First Amendment protections. The company, citing a U.S. Supreme Court decision in a similar case in Massachusetts, is threatening to sue the city if it continues to enforce a city law that bans tobacco ads within 1,000 feet of facilities frequented by children.
"It is exceedingly likely that the City of Buffalo's tobacco advertising and promotion ordinances violate federal pre-emption principles as well as the First Amendment," wrote Chad A. Readler, an attorney with Jones Day, which represents R.J. Reynolds. "Not only does [the Massachusetts case] raise serious questions about the restrictions' validity, but the City of Buffalo also faces the risk of being ordered to pay Reynolds' attorney fees should the matter proceed to litigation."
Mayor Anthony M. Masiello reacted angrily to the company's threat.
"I couldn't care less what R.J. Reynolds says. Let them fight it," he said. "We have to start recognizing that cigarettes kill. If they don't like what we're doing, tough luck."
"He should care what the U.S. Supreme Court has to say about the matter," countered David P. Howard, a spokesman for R.J. Reynolds.
He cited federal laws that prohibit localities from imposing their own rules on cigarette advertising. City Corporation Counsel Michael B. Risman said lawyers will dissect the 2001 case in Massachusetts to see if the U.S. Supreme Court decision would have any impact on Buffalo's crackdown.
This month, inspectors began visiting dozens of neighborhood grocery stores that are near schools, community centers, playgrounds, day care facilities and other restricted areas. More than 40 businesses in the Niagara District were checked, and all of them violated the tobacco ad restrictions. Most owners took down the signs the same day, said inspector Vincent P. Ferraraccio. He said follow-up visits will be made starting next week, and he expects the crackdown to move into other parts of the city.
Many stores that have yet to be inspected continue to ignore the ad restrictions. For example, Ellicott Council Member Brian C. Davis' office received a complaint Tuesday about cigarette ads in a business that is near a school and a human services program for mothers and children.
An anti-smoking activist is encouraging the city to continue the crackdown. Judith M. Anderson is with the Minority Health Coalition, a group of health and human services agencies. While Anderson is unfamiliar with the case cited by R.J. Reynolds, she said she believes Buffalo has a duty to enforce a law that is on its books. Anderson said it is disturbing to see the facades of some stores plastered with cigarette ads when those businesses are so close to schools.
"Kids are bombarded with these ads. They can't turn their heads without seeing them," she said. "We think [tobacco companies] are targeting young people and are trying to build a market for the future."
Post Standard - August 26, 2005
Casino's smoking policy targeted
First, Oneidas faced property taxes. Now state smoking ban at Turning Stone.
By Glenn Coin
Oneida County Health Department officials have told the Oneida Indian Nation they will begin enforcing the state's no-smoking law at one of the few remaining havens for local smokers - the tribe's Turning Stone Resort and Casino.
County officials say the U.S. Supreme Court's ruling in March clears the way for them to enforce the smoking ban and all other state and county health codes on nation-owned properties. The high court ruled March 29 that the nation could not assert sovereignty over land that has been out of its hands for nearly 200 years.
"The Supreme Court decision . . . indicates, at least by our reading, that they're subject to regulatory controls," said County Attorney Randy Caldwell.
County officials on July 18 sent a letter to the nation asking for a meeting to discuss enforcement of "applicable statutes and regulations." The letter, from county Director of Health Eric Faisst, says that in light of the court's ruling, "the Oneida County Health Department must enforce all statutes and regulations under its jurisdiction at properties owned by the Oneida Indian Nation."
Besides the growing Turning Stone complex, the nation's portfolio includes a number of SavOn gas stations, marinas and a great deal of farmland. In all, the Oneidas own more than 17,000 acres in Madison and Oneida counties.
Faisst said Thursday that county and nation officials plan to tour the resort together in September so county inspectors can see what health codes might apply. The health department inspects, among other things, restaurants, swimming pools and water systems.
Turning Stone has all three.
Nation spokesman Mark Emery declined to comment specifically on the county's plans to enforce health laws at Turning Stone.
"The nation has had discussions and is continuing to have discussions
with Oneida County to resolve all tax and regulatory
issues, which the nation believes would be best resolved by agreement," he said in a prepared statement.
An area citizens group, the Upstate Citizens for Equality or UCE, has been after the county for months to either enforce the state's smoking ban at Turning Stone or not enforce it anywhere. The group filed legal action to that end in May.
On Thursday, state Supreme Court Justice David Grow postponed a ruling on UCE's legal action until Dec. 15 to see how the county enforces the ban.
Caldwell said Thursday the UCE action had nothing to do with the county's decision to begin enforcement at Turning Stone. "It takes a while to digest the (Supreme Court) decision and really study it carefully and make a determination as to how we would proceed," he said.
Full enforcement might not happen immediately, Caldwell said, and the nation may challenge it in court. He noted that while the Supreme Court decision appears to allow the counties to foreclose on nation properties, a federal judge has temporarily forbidden Madison County from foreclosing until a hearing Sept. 7.
"We are mindful of the potential barriers that could be placed upon us in court," Caldwell said. "We are also mindful of the fact that (Turning Stone) has been an enterprise that has been in existence for a while without regulation, based on the law as it has existed for a number of years."
10 Now - August 11, 2005
Cortland works on a new smoking ban policy
By Sarah Buynovsky
Skip Boise says keeping smokers from puffing in his tavern isn't his job.
"No one's given me a badge or a gun or $50,000 to be a policeman. I'm just a tavern owner," said Skip Boise, President of Cortland County Restaurant and Tavern Association.
The state smoking ban went into effect 2 years ago. But officials in Cortland County are still trying to figure out how best to enforce it. A health department subcommittee is working on it.
"The subcommittee was just set up to review that policy and procedure that is submitted a little more carefully, come up with possibly more ideas that would help the department enforce the Clean Indoor Air Act,” said Audrey Lewis, Dir. of Cortland Co. Dept. of Environmental Health.
Lewis says according to state law, the Board of Health cites business owners for smoking ban violations. The question for some like Boise is: Other than paying the fine, what's the business owner's responsibility?
"Some of us are operating under the letter of the law as we call it and others are just operating under their own gut feeling about what they can do and what they can't do and what they've been told by the health department," Boise said.
The subcommittee has a draft of a new policy and procedure that calls for business owners like Boise to use "reasonable effort."
That is to tell smokers it's illegal to light up inside and to take steps is they continue to smoke, like perhaps refusing to serve them.
The policy will be sent to the county attorney for review before going before the county board of health for approval.
There's no word on when the new policy might be adopted. Cortland County Health officials say even if it was put into place soon, they don't have the staff to visit businesses for regular compliance checks.
- August 8, 2005
'Bad Guys,' Poor Smoke More in Movies - Study
WASHINGTON - If someone is trying to make smoking look glamorous, it isn't at the movies, U.S. researchers said on Monday.
Their analysis of more than 400 blockbuster films shows that villains smoke more than heroes, and the poor light up more often than the rich.
``Most investigators have concluded that smoking is portrayed as glamorous and positive, but our study shows that the exact opposite is true,'' said Dr. Karan Omidvari of St. Michael's Medical Center in Newark, New Jersey, who led the study.
``Additionally, different studies in the past have subjectively concluded that movies are attempting to influence different groups of minorities to smoke. We have contradicted these findings as well.''
Omidvari and colleagues studied leading characters in box office hits made after 1990 portraying contemporary U.S. society. They included ``Armageddon,'' ``There's Something About Mary'' and ``Jerry Maguire.''
They found that 35.7 percent of antagonists smoked compared to 20.6 percent of protagonists.
And nearly half of the screen smokers were in the lower socioeconomic class compared to 22.9 percent in the middle class and 10.5 percent in the upper class, they reported in the August issue of the journal Chest.
Overall, the percentage of characters who smoked was about the same as in real life, about 23 percent, the study said. Men were more likely to smoke than women, and whites were more likely to smoke than minorities -- again an accurate portrayal of smoking behavior.
News - August 3, 2005
Smoking Ban Hurts Bingo's Future
by Rocco Vertuccio
One of Rochester's favorite pastimes is in jeopardy because of the state's smoking ban. Area bingo halls say they are having a tough time staying in business without smokers.
The numbers at Bingo World in Greece, don't always matter to Terry Hess. For her, the gamble is more than just a game.
"I come out to get out of the house. It's a good pastime," says Hess.
Lately the numbers haven't been good for several bingo halls in Rochester. Five say they are struggling. They blame the state's smoking ban. When the smokers left two years ago, so did some of the business.
Janet Vargas' favorite hobby now faces an uncertain future.
"That do upset me a lot, it does upset me. I want them to still have bingo," says Vargas.
At least one bingo hall in Rochester plans to close because of the smoking ban. Northwest Bingo Center on Driving Park will shut down later this month.
Bingo World is still surviving, but the loss of business has hurt the schools and charities that rely on bingo for fundraising.
Bingo World manager Ann D'Aurelia also worries about those who rely on bingo for more than just money.
"A lot of our people especially during the day are elderly. This is their out, they come here with their friends," says D'Aurelia.
Bingo halls, bars restaurants and other businesses can apply for a waiver at the county health department. They have to prove they have lost at least 15 percent of their business because of the ban. So far, Monroe County has not granted any waivers, mainly because they have had a tough time proving the ban has hurt business.
Monroe County Health Director Andrew Doniger says he doesn't expect to grant any waivers in the future either. He says he feels bad for the people who rely on bingo, but in the long run, health is the greater issue.
"I believe we are doing what citizens want us to do. They want us to protect them and their kids from second hand smoke," says Doniger.
With no waiver in sight, Bingo World is getting more creative to win back players. Different games and a progressive jackpot may do the trick.
Terry Hess' recreation depends on it.
"At my age, there is not that much I can do," says Hess.
Journal News - August 3, 2005
Legislature bans tobacco until age 19
By Rebecca Baker Erwin
Eighteen-year-olds would no longer be able to buy cigarettes in Rockland
under a bill county lawmakers passed last night.
The Legislature voted to raise the legal age to buy tobacco, rolling papers, herbal cigarettes and pipes to 19 from 18. The 10-5 vote was along party lines, with Democrats in favor.
The bill now goes to Republican County Executive C. Scott Vanderhoef, who has not said if he would veto or sign the proposal.
Bill sponsor Ellen Jaffee, D-Suffern, said she got the idea from Suffolk County, which raised the tobacco-buying age a few months ago. She began working on the legislation after talking with leaders from the American Cancer Society and American Lung Association in February. "I believe our students in our high schools would welcome this law," she said.
The Legislature's vote followed a 90-minute public hearing that drew more than a dozen speakers, who split on the issue.
Supporters of the bill, including the local chapter of the American Cancer Society, said raising the tobacco-buying age would help curb youth smoking because 18-year-olds students could no longer buy cigarettes for younger classmates.
"It would make it harder," said Sara Fernandez, a 16-year-old Pearl River High School student. "Changing the age to 19 is smart."
Opponents said the proposed law would do nothing to stop teens who want to smoke and would limit the rights of legal adults.
The New York Public Interest Research Group, which has fought tobacco interests for years, came out against the county bill, saying there is little proof that raising the tobacco-buying age stops teens from smoking.
"We don't think this will work," NYPIRG legislative director Blair Horner told legislators. "We don't think the evidence is there."
The president of the New York Association of Convenience Stores, James Calvin, said raising the age could confuse store owners and clerks, and could send teens across county lines or to the Internet, Indian reservations and bootleggers for smokes.
Similar bills before the New York state Legislature have been stuck in committee. Alabama, Utah and Alaska have set 19 as the legal age to buy tobacco products.
County legislators ignored a suggestion to delay voting to see how the higher tobacco-buying age in Suffolk affects youth smoking or to see how the state Legislature will act. Legislator Patrick Moroney, R-Pearl River, said Democrats voted to support Jaffee, who is the party's candidate for county executive.
"It's an election year, and some people need all the publicity they can get," he said.
10 Now - July 24, 2005
Second anniversary of smoking ban
It’s the second anniversary of the New York State smoking ban. A controversial law from the beginning, the ban has caused much debate among local business owners and the state.
At Little Gem in Syracuse, owner Doc Good says he has seen a significant drop in profit since the ban went into effect.
Instead of buying beer at local restaurants, bars and taverns, he says customers are choosing to buy retail and stay home. A change which he believes is hurting local business.
“I see a lot more of the mom and pop businesses going out, may be your larger franchises will take over the business, but I do not see a growth in the restaurant and tavern association like we had experienced in the past," Good said.
Good says before the ban went into effect about 85 percent of his customers smoked.
Many of them were veterans who do not support the smoking ban, and see it as a violation of the freedom of choice. Good says the number of those who like the no smoking law does not compensate for those who don't.
Citizen - July 24, 2005
The smoke hasn't cleared
By Linda Ober
A sign in the men's bathroom at Lucky's Sport Bar and Grill in Auburn reads: "If you're caught (smoking), you're barred for life."
Less than a mile away, a posting on the front door of Costello's tells a very different story. "Attention," it says. "Smoking will not be restricted."
Both are indications that after two years, Cayuga County establishments are still trying to get accustomed to - and are not 100 percent compliant with - the state's Clean Indoor Air Act. The act, which took effect July 24, 2003, bans smoking in almost all workplaces, including restaurants and bars.
The law was passed to protect workers from the potential health hazards of secondhand smoke and has been touted as a success by the state Department of Health and anti-smoking proponents.
"This product (cigarette) is legal, and it can kill you," said Anne McCarthy, program coordinator for the Cayuga County Tobacco Free Coalition. "Why should we as non-smokers be exposed to other people's smoke?"
A 2004 independent evaluation prepared for the state health department revealed a statewide compliance rate of 93 percent and said that the majority of New Yorkers reported no change in patronage of bars and restaurants due to the law. But compliance in bars lags behind other venues, with smoking still occurring in one of six bars across the state, according to the study.
Local establishments contend that the law has discouraged customers and hurt their bottom line.
Marcy Albino, owner of Legends Tavern in Union Springs, said there are some regulars that "won't even come in" and guessed that his revenue is down 30 percent since the act's passage. John Stevens, owner of Spirits Tavern and Cafe in Auburn, estimated the same amount.
"They don't stay as long as they used to," Stevens said. "They go outside to have a cigarette and they might not come back in."
Such stories are not unusual, according to Scott Wexler, executive director of the Empire State Restaurant and Tavern Association. He called the law an "economic disaster" and said that it has caused hundreds of establishments in the state to go out of business.
Wexler said that the industry has lost more than $100 million dollars since the law went into effect and is only now rebounding. But even this rebound puts it at the same levels immediately following 9/11, the worst point in the industry's history, he said.
"Ain't no one in the industry cashing in stock dividends," Wexler said.
In Cayuga County, environmental health director Eileen O'Connor said that the county has "generally a good compliance" with the law.
In an attempt to evaluate compliance, The Citizen conducted its own check of 54 county bars and restaurants from June 30 through July 13. The newspaper obtained the names and locations of bars with active bar liquor licenses through the New York State Liquor Authority.
Staff observed smoking at seven establishments; all seven have had previous complaints filed with the environmental health office, and some have been fined.
According to the county's official records, in the past two years there have been complaints about 34 establishments, seven of which received fines.
For such violators, the county has a three-strikes-and-you-pay policy.
After the first complaint, Environmental Health will call the facility and send a follow-up letter. The second time, someone from the division visits the establishment and sends another letter. By the third complaint, the board proceeds with a consent order and a fine.
The fine for a first-time offender is $100, $250 for a second offense, and a third offense results in a board of health hearing.
Cayuga County is more lenient than Oswego County, where in February, the board of health decided to eliminate any warning notice, guaranteeing an automatic $1,000 first-offense fine. First-time violators can receive a $500 reduction with an admission and stipulation agreement, but all subsequent offenses will be $1,000, said Natalie Roy, associate public health sanitarian for the county's health department.
The board of health felt that enough time had gone by for sufficient education about the law, Roy added.
Cayuga County only responds to violation complaints - which can be anonymous - and does not perform random inspections.
McCarthy thinks that this system is both effective and adequate because the health department also checks for compliance during its regular health inspections (once a year for establishments that don't serve food, twice a year for ones that do).
Enforcement of the CIAA is then often largely left up to each individual establishment.
At Legends, one of the bars in which The Citizen observed smoking, this can sometimes prove a difficult task, Albino said. While his staff will ask someone smoking indoors to stop, he explained that it's impossible to enforce the law all the time.
"I can't keep track of everything; neither can my bartenders," Albino said, noting that he often finds cigarette butts on the bathroom floors. "I don't know how to stop them. I don't know that anybody really does."
Karen Norris, owner of Lucky's in Auburn, said things aren't any easier at her bar. Despite numerous yellow signs and no-smoking notices in the bathroom, patrons continue to try to light up, she said.
For a month and a half after the law was implemented, Norris set out ashtrays, but she put them away because she didn't want to take the risk. "(Smokers) still to this day come in to complain," Norris said. "I tell them 'If you want to give me $150 to $200 for a fine, light up.' "
Enforcement is one of the main areas of concern for taverns, Wexler said. Owners are liable under the law, but Wexler believes that the smokers themselves should also be held accountable.
He said that inspectors sometimes only stop in for a few minutes and therefore don't see the efforts of bar staff to stop smokers. If inspectors do see smoking, they should personally approach the violators and ask them to stop, Wexler said.
"I believe if the owners were a bit more aggressive and the health department was a bit more customer-friendly, we'd probably be able to move past this whole issue," he said.
Although Wexler and bar owners are very vocal about their dislike of the law, McCarthy said there are plenty of people who support it.
"I think there's a silent majority out there that's just not raising the fuss that smokers are raising," McCarthy said, citing a study conducted for the Tobacco Free Coalition.
In June 2004, random telephone interviews of 400 people in the county indicated that 55 percent favored the Clean Indoor Air Act, while 28 percent opposed it. About 91 percent regarded exposure to secondhand smoke as harmful.
And according to the aforementioned independent study prepared for the state health department, total exposure to secondhand smoke in hospitality settings declined by 84 percent, from 13.5 to 2.2 hours.
Ellen Fiorenzo, a bartender at Lasca's in Auburn for the last 12 years, doesn't deny the health risks associated with secondhand smoke. But Fiorenzo, a lifelong non-smoker, said that it was her choice to work in the industry and that it should be a business' decision whether or not to allow smoking. Her tips have been cut in half since the law's passage, she said.
Lucky's owner Norris also recognizes the health risks - she's trying to quit smoking now because of her asthma.
"But even if I quit, I would still fight for (smokers) because it's their choice," Norris said. "I'm not going to let that cigarette take business away."
Press - July 14, 2005
State asking hundreds to pay back taxes on cheap smokes
By Curt Woodward
SEATTLE -- Washington state patrons of an American Indian-owned online tobacco store are being asked to pay uncollected taxes on their cheap cigarettes, and the state is threatening them with fines if they return to the Internet for tax-free smokes.
The enforcement efforts follow a state lawsuit against a business based in New York's Seneca Nation of Indians, whose reservations are home to some of the country's largest online tobacco retailers.
"The breakthrough here, in our mind, is successfully suing a tribal vendor because in the past, the tribes have contended that they're not subject to these federal laws, and we've demonstrated that they are," said Mike Gowrylow, a state Revenue Department spokesman.
In a U.S. District Court lawsuit settlement announced Thursday, Web site operator Scott Maybee agreed to provide state officials with lists of Washington residents who purchase cigarettes through his Web site, www.smartsmoker.com. The state already has received lists with about 1,100 entries, which it is using to identify consumers.
Those shoppers are getting letters from the Revenue Department that ask for full payment of the uncollected cigarette taxes. The payments are voluntary, but the letters warn of stiffer penalties if consumers keep buying tax-free tobacco online.
"We're not going to turn it over to collections, so it's somewhat of an honor system," Gowrylow said.
Those who continue buying tax-free cigarettes will face a penalty of $250, or $10 per pack, whichever is greater. State officials also may impose delinquency charges of as much as 45 percent.
"And not just from this vendor, but any vendor because there are many vendors out there and we haven't sued them all yet," Gowrylow said.
The 7,000-member Seneca Nation has two reservations in western New York, and businesses there are among the nation's biggest online retailers. In 2003, 55 such retailers sold $347.5 million worth of tobacco products, more than half to customers in other states.
The tribe's sovereignty allows the sellers to avoid charging New York's state sales tax. Consumers from other states can be held responsible for paying their own state taxes, but collecting those levies is difficult.
Federal regulators have estimated that states lose more than $1 billion a year in tax revenue from Internet tobacco sales. Washington officials estimate that the state lost $140 million in tax collections to cross-border cigarette sales in the 2004 budget year, most of it from online or mail-order suppliers.
The state's per-pack cigarette tax, which increased to $2.02 on July 1, is the third-highest in the nation, Gowrylow said.
Washington's legal case against Maybee contended that his Web site was violating the federal Jenkins Act of 1949, which requires businesses to supply lists of customers for tobacco taxing purposes.
Margaret A. Murphy, a lawyer for Maybee, said her client was planning to file state-by-state consumer reports before Washington officials sued in January, but got sidetracked by an ownership dispute.
Maybee volunteered to settle the case after learning of Washington's suit, and cooperated by sending customer lists to state officials before the settlement was even signed by a judge, Murphy said.
"We never filed an answer (to the lawsuit). We never needed to. We were in complete agreement," Murphy said. "We didn't change any of our practices because of this suit. Our practices had changed before this suit."
Maybee's Web site also notifies customers that it must "report all sales and shipments of cigarettes to the state taxing authority within your home state." That notice was posted online before Washington sued the company, Murphy said.
But state officials say Maybee's site was advertising heavily in Washington, despite previous warnings that it was violating the federal tax rules.
"The argument that 'we were going to cooperate all along but we were busy with other things' doesn't really fly," Gowrylow said.
News - July 11, 2005
Selling Tobacco to Minors Online Draws Fire
by Makebra M. Anderson
WASHINGTON (NNPA) – New York Attorney General Eliot Spitzer, has spearheaded an aggressive campaign against online tobacco retailers accusing them of making it easy and cheap for kids to buy cigarettes.
His attempts to stop all sales of tobacco products online have smoker’s rights advocates outraged.
“I think that the proposal to forbid online cigarette sales is unnecessary and takes away the consumer's freedom to purchase cigarette products from any store he or she chooses,” argues Erik Horne, founder of SmokingPermitted.com, a non-profit organization dedicated to the advancement of smoker's rights for young adults. “No other legal product would be subject to the same type of restriction. You can order clothing, books, electronics, and even alcoholic beverages on the Internet. Why is this different?”
This is different according to Spitzer because “virtually all Internet …cigarette retailers violate federal, state and local laws, including tax laws, age verification laws, delivery restrictions and reporting requirements…”
According to Public Health Law §1399-ll, commonly known as “Unlawful Shipment of Cigarettes,” it is illegal for a person who sales cigarettes to ship cigarettes to an unlicensed cigarette tax agent. It also makes it illegal for a carrier such as UPS or FedEx to transport cigarettes to an unauthorized recipient.
“UPS, Federal Express and the United States Postal Service all allow you to specify ‘ADULT SIGNATURE REQUIRED’ on the package, meaning the courier will not deliver it to anyone under the age of 21. The legal age to purchase cigarettes is 18 or 19 in every state—problem solved,” Horne explains.
Audrey Silk, from New York City Citizens Lobbying Against Smoker Harassment (CLASH), also believes that Spitzer’s attempts have nothing to do with public health.
“I’m embarrassed that my own state attorney general is leading this,” she says. “It’s a well-known strategy of anti-smoking activist to throw out ‘for the children’ in an attempt to gain support. Kids do not purchase cigarettes over the internet. They don’t have credit cards.”
But according to The Journal of the American Medical Association (JAMA),
kids are purchasing cigarettes online.
JAMA reports that “Kids as young as 11 were successful more than 90 percent of the time in purchasing cigarettes over the Internet and there was little effort to verify the age of Internet cigarette purchasers at the time of purchase or at the time of delivery.”
Marc Violette from the Attorney General’s office says that the inability to verify age is the reason all Web sites selling tobacco products should to be shut down.
“It’s a violation of the law to sell cigarettes to anyone without verifying their age. If you go to a store and try to purchase a pack of cigarettes, the clerk behind the counter will ask you to show identification. With the Internet, there is no face-to-face proof of identification, so this is a method that is very easy to exploit in getting tobacco into the hands of underage users,” he explains.
Some carrier’s say that is has become too taxing to comply with the strict laws regulating Internet tobacco sales. That’s why DHL has decided to stop delivering cigarettes to individual consumers that purchase from illegal Web sites.
“For us [online tobacco retail] is not a core commodity. It doesn’t represent a big revenue component of our business,” Jon Olin, general counsel for DHL explains. “In this case, compliance with state laws, tax laws and signature requirements for adults regarding the delivery of cigarettes was quite burdensome operationally.”
The announcement by DHL came with praise from Attorney General Spitzer and others.
“By taking proactive steps to prevent delivery of cigarettes to individuals nationwide, DHL has made clear that it does not want to be affiliated with the illegal cigarette traffickers,” Spitzer said in a statement. “We hope other shippers will follow DHL’s lead and refuse to do business with Internet and mail order cigarette retailers who routinely flout the law.”
The commitment by other carriers hasn’t come. Peggy Gardner of UPS says that her company is in meetings with Spitzer and that those meetings are open and cooperative.
“We do ship tobacco products, but with restrictions. Anyone that ships with us has to be a licensed dealer or distributor and if they are shipping cigarettes to individual consumers they can only do that through a contract,” Gardner explains. “We’re concerned whenever its alleged that a shipper uses our system for illicit purposes. We’re equally committed as anyone else to cooperate with authorities to make sure that our system is used as it’s designed.”
UPS says that they only ship products from legitimate Internet companies. Some say that the purpose of buying cigarettes online is to avoid high taxes, so no online tobacco Web site is legal.
“We’re in favor of carriers not delivering to individual consumers and we’ve long supported the action that’s been taken,” said Dana Bolden, a manager at Philip Morris USA. “We haven’t found any Internet seller out there that complies with all applicable laws—be it paying taxes or age verification.”
Stephen Helfer, host of CCTV’s The Smoking Section in Massachusetts and a smoker’s rights, advocate acknowledges that smokers are breaking the law by purchasing cigarettes online.
“All of this is being pumped up to get more taxes,” Helfer said. “The taxes on cigarettes are criminal to begin with and I think it’s good for people to avoid paying these taxes any way that they can. One way to avoid these taxes is to buy cigarettes over the internet or roll your own cigarettes.”
The reason Internet cigarette prices are much lower is because they almost never include the cigarette excise tax and sales tax charged by the state.
Some say that the inability to collect these taxes reduces state revenues by millions of dollars annually.
A report by Forrester Research Inc., a company that provides advice about technology's impact on business and consumers, says that states loss approximately $200 million in tobacco tax revenue in 2001 and as the number of Internet purchases increase so will the amount of money states stand to lose. By the end of 2005, the report estimates that states will be denied nearly $1.4 billion.
“Every pack of cigarettes that is sold to a consumer online…is avoiding a legal tax on those cigarettes placed on them by the state legislature. We’re trying to make sure that every purchase of a pack of cigarettes came with the appropriate taxes,” Violette said.
“We’re not looking to shut down a legitimate tobacco industry. We are taking steps to shut down an illegal industry that exist only because they have easy access to credit cards and shipping methods. If we remove those two supports, then hopefully we will disable the industry to the greatest extent possible.”
In March, Spitzer pressured credit card companies to help prevent the illegal sale of tobacco products online. Again, he was successful.
MasterCard now forbids anyone from using a MasterCard to pay for tobacco unless it is bought at a brick-and-mortar store.
“We put out the bulletin to remind our global membership that MasterCard does not tolerate illegal activities of any kind. Strict adherence to MasterCard's standards has become increasingly important as the use of the Internet for e-commerce has exploded,” said MasterCard senior vice president Joshua Peirez in a statement.
“Consumers purchasing cigarettes from an out-of-state merchant cannot
avoid paying state-mandated tobacco taxes and other tariffs, and vendors
need to be mindful of properly documenting and reporting such sales and
Silk, an affiliate of FORCES International, a pro-choice consumer organization, says that the attack on smokers is ridiculous.
“If this is about the taxes that [the government] says is owed on these products then stop being lazy and go after the individuals. Just because it seems like an impossible task, you don’t go after the shippers,” she says.
But Violette says that because internet sites are so easy to create and dismantle this is the only way.
“Internet sites pop up very quickly, can be set up very quickly and moved very quickly. It’s like wack-a-mole. You wack one mole and two others come up,” he explains. “Rather than attacking the websites directly, we simply starve them of their ability to do business by taking away their ready access to credit card sales and deny them the ability to easily ship stuff through national recognized shippers. That’s a far more effective approach.”
Park Press - July 9, 2005
Plan to ban smoking while driving lights fire under smokers
By Rob Jennings
Two state lawmakers want to make it illegal to drive a car while smoking — a seemingly long-shot proposal that extends the tobacco debate from public places into privately owned automobiles.
The bill, A-4306, introduced on June 27, would stipulate up to a $250 fine for smoking while driving. It would be a secondary offense — enforced only if a motorist had been pulled over for a separate traffic violation or other offense.
The proposed ban is lighting a fire under smokers.
"It's my car. I own it. Next time, will they come into my house? What's the difference," said Eileen Gilchrist while taking a smoke break from her job in Dover last week.
There are no states that prohibit drivers from smoking inside their own vehicles, according to Action on Smoking and Health in Washington, D.C. — although lawmakers in Germany began weighing a nationwide ban two months ago.
Assemblyman John F. McKeon, D-Essex, said his bill would promote safety. He did not cite any studies linking smoking to a heightened risk of car accidents.
Jefferson Police Sgt. Eric Wilsusen, a 20-year veteran, said he couldn't recall a single accident attributed to smoking by the driver.
McKeon, 47, who also is mayor of West Orange, acknowledged that his primary goal is "to bring focus to the ravages of tobacco."
"This is just another in a series of legislation to see what we can do to curtail the use of tobacco," said McKeon, whose father died of smoking-related emphysema two years ago.
The bill's co-sponsor, Loretta Weinberg, D-Bergen, introduced the New Jersey Smoke-Free Air Act — a proposal to prohibit smoking in indoor public places and in workplaces that would be similar to the New York law — in January. The bill has not yet come to a vote.
Weinberg said she agreed to back a smoking-while-driving ban after McKeon broached the idea, even though she does not believe that it will become law.
"I know there are people who will consider this kind of silly," Weinberg said.
Newsday - July 6, 2005
DHL won’t ship Internet cigarettes
By Robert Tuttle
Shipping company DHL Worldwide Express has made an agreement with New York Attorney General Eliot Spitzer to stop shipping cigarettes sold over the Internet illegally to individual consumers, a practice state officials estimate costs New York millions of dollars annually in lost tax revenue.
"We don't want people using DHL if they are going to avoid paying taxes or ship to minors," said Michael King, senior legal counsel for the express shipping firm.
Yesterday's agreement with DHL represents the latest development in New York State's effort to stop illegal tobacco sales. It comes nearly four months after credit card companies - under pressure from the attorneys general of New York and a number of other states, as well as the federal Bureau of Alcohol, Tobacco, Firearms and Explosives - agreed not to process payments of illegal Internet tobacco sales.
"The agreement that we are announcing today is not based on a lawsuit. It's not based on a threat of lawsuit," said Mark Violette, spokesman for the attorney general's office. "We simply worked with DHL to make them aware that the industry for which they are shipping is an illegal industry."
Violette added that the attorney general is also in discussions with UPS, FedEx as well as the U.S. Postal Service to secure similar agreements.
FedEx spokeswoman Kristin Krause said her company only delivers cigarettes to licensed entities, not to individuals.
"We don't deliver to consumers. Never have," she said.
Peggy Gardner, a spokeswoman for UPS, said she could not comment on the specifics of discussions with Spitzer's office. She said that UPS does ship to individual consumers, but only through licensed cigarette dealers who are expected to follow the laws as they apply in various states, and in New York such online shipments are illegal.
The number of online tobacco sellers has been proliferating rapidly, Violette said, and attempting to shut them down individually would be too difficult.
"It's like playing Whack-a-Mole; you just whack one, and another one pops up," he said. "Rather than playing Whack-a-Mole, it was more judicious use of our resources to work with the shippers."
But Audrey Silk, founder of New York City's Citizens Lobbying Against Smoker Harassment, a group that advocates for smokers, said, "DHL has crumbled under the bullying of a powerful person and a powerful office to go along with what we deem is a denial of free commerce."
Press - July 5, 2005
DHL agrees to end cigarette deliveries to individuals
By Michael Gormley
ALBANY, N.Y. -- One of the world's largest package delivery companies will stop delivering cigarettes to individual consumers nationwide under an agreement with New York Attorney General Eliot Spitzer.
Spitzer said DHL is the first major shipping company to agree to the ban and negotiations continue with other companies and the U.S. Postal Service. The agreement follows a March deal in which major credit card companies began refusing to participate in Internet sale of cigarettes nationwide.
The agreement in March involving Spitzer and the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives was aimed at ending a common method for youths to obtain cigarettes, which can't legally be sold to people under 18 years old.
In Tuesday's Spitzer agreement, DHL cuts off another route for the Internet cigarette sales, a growing business, Spitzer said.
Audrey Silk of New York City Citizens Lobbying Against Smoker Harassment said the actions are simply boosting an illegal market for cigarettes in which no one asks a consumers' age. The measures deny consumer choice, because some brands are only sold out of state.
"When the product is legal, who are you to say I can't order it?" said Silk, who's also a Libertarian candidate for New York City mayor. "He's attacking one consumer class trying to buy a legal product and strong-arming the common carries into going along with his campaign to keep cigarettes out of adult hands."
DHL General Counsel Jon Olin said the agreement is in the best interest of customers and the public. The company will still be able to deliver tobacco products to licensed retailers and other authorized recipients.
"By taking a proactive approach, DHL is pleased to be the leader in the prevention of illegal cigarette sales in the United States," Olin said.
State and federal law enforcement agencies have since 2004 sought to crack down on Internet sales of cigarettes partly because they lack age verification for the buyers and partly because it costs state and local governments billions of dollars in sales tax.
States lose more than $1 billion a year in tax revenue from Internet tobacco sales, according to the ATF. Enforcement, however, has been difficult, even though in many states, including New York, the Internet sale of tobacco products is illegal.
- June 26, 2005
Smoking Ban Anniversary
It has been two years since public restaurants and establishments went smoke free
By Dan Bazile
The state-wide ban does not seem to be hurting business, but it is a much different story for one local diner.
On any given Sunday, smokers are usually puffing away inside the local Menands Diner on Broadway in Menands. The state wide smoking ban put an end to it and the owner says business has never been the same. "I would notice people not coming in anymore. If they come in it's not as often as they used to."
Two years after the smoking ban, the small family diner is losing approximately seven grand a month. The owner says that is a lot for a small business. Smokers used to come in, play quick draw while having a smoke and a cup of coffee.
According to the post star newspaper, our media partner, many local establishments are doing just fine with the smoking ban. In an informal survey of ten places, five in Saratoga Springs and five in Glens Falls, nine said business is great and has even improved.
Many customers do love the smoke free environment. We had a tough time finding one smoker at the diner. Some were former smokers who say going out for a bite to eat is a little more enjoyable.
One customer said, "I think it's great. You don't go out smelling like a chimney anymore."
Another said, "It doesn't make a difference to me I’d come anyway, but I don't smoke."
The owner and workers at Menands Diner say they too enjoy a smoke free workplace, but it comes at a price they simply can't afford.
Island Press - June 22, 2005
Candidate and Legislator Square off in Heated Debate
By Rebekah Rombom
In a 4-3 vote on June 20, the Nassau County Legislative Health Committee tabled a proposal to raise the legal age for buying tobacco to 19 years old. Suffolk County unanimously passed a similar law that went into effect last month.
Patricia Maher, a candidate who will run for the 13th legislative district spot against Norma Gonsalves, one of the Republican Committee members who voted to table the proposal, says that she initially did not want to turn debate over Tobacco 19 into a political issue. She started a community forum called “No Smoke 19 and Under” to discuss the legislation because, she says, she personally believes the issue is important and that the law is sound.
“I didn’t want it to be put into a political forum because I’m a candidate,” Maher said.
The day after the vote, though, Maher’s office issued a statement in which she said, “Shame on Norma! The health of young adults in Nassau County should be more important to Gonsalves than voting in lock-step with the other Republican legislators.”
Gonsalves, who has defeated Maher in at least two races for her current position in the legislature, believes that there is not enough evidence that the law would be effective, and hopes to see a statewide regulation instead.
“I think this type of legislation requires statewide legislation. There has to be continuity throughout the state to be effective,” Gonsalves says. “We keep passing legislation thinking that it’s the answer to solving the problem; it’s not always the answer. You can go from one county to another and purchase [tobacco] very easily.”
In 2000, Gonsalves supported two different anti-smoking initiatives aimed at teens in Nassau, one to continue enforcement of the under-18 law and one to prevent the sale of herbal cigarettes to minors. She also rallied to keep cigarettes behind convenience store counters and away from youth-oriented candy displays.
“It’s far more enforceable,” Gonsalves says of the other legislation. “There are statistics to prove that it’s working.”
Gonsalves stresses that while there is not enough information to prove that the law would work, tabling the proposal could provide time during which research could be performed.
“Tabling the motion does not kill the legislation,” she says.
Maher, however, is skeptical. “As far as I’m concerned if you table it you’re voting no,” she says.
If the proposal goes to the legislature, each legislator will have to go on record with her position, a move that Maher believes not all legislators wanted to make.
“It’s sneaky, and it’s just a backdoor way of not having to answer to the public against it,” Maher said. “19 and under not purchasing tobacco is a good thing in today’s day and age.”
Newsday - June 20, 2005
Council: 311 used for smoking complaints
By Bryan Virasami
Many anonymous calls to 311 about crimes are actually sneaky smoke screens New Yorkers are using to rat out noisy, late-night smokers, City Council members said Monday.
The telephone lies are tying up the city's emergency life lines, council members say. The unintended consequence of the smoking ban, which has shooed puffers onto sidewalks from bars and restaurants, has prompted the council to call a hearing today to consider requiring a 311 caller to reveal his or her name and address if the complaint requires the police, fire or EMS to show up.
"The complaints are not about somebody outside smoking," said Councilwoman Margarita Lopez, a Democrat who represents the Lower East Side. "The complaints are about accusations that are false -- drug trafficking, crime being committed, crime in progress."
The problem also has bar and restaurant owners fuming.
Attorney Robert Bookman, who represents the New York Nightlife Association, which fought Mayor Michael Bloomberg's smoking ban, said owners are facing an indirect consequence of the ban.
He said police showing up at a bar can put a dent in that night's profit and send patrons home even if it's a false call.
Jonathan Werbell, a spokesman for Bloomberg, said some agencies encourage anonymous complaints for legitimate reasons. He also said 311 operators who receive emergency calls usually switch them over to 911 operators. Administration officials plan to testify at the hearing.
Press - June 9, 2005
Number of New York City smokers drops after ban, tax increase
By David B. Caruso
The number of adult smokers in New York dropped by 188,000 in the years after the city raised cigarette taxes and banned people from lighting up in bars and restaurants, health officials said Thursday.
An annual community survey by the health department found that 18.4 percent of adult New Yorkers were smokers in 2004, down from 19.2 percent the year before and 21.6 percent in 2002.
Before the implementation of the smoking ban in the spring of 2003 and the adoption of a $1.50 per pack tax in 2002, smoking rates in the city had remained substantially unchanged for a decade. The old cigarette tax was 8 cents per pack.
The health commissioner, Dr. Thomas R. Frieden, said the drop will save 60,000 people from a premature death.
"Young people and people who have less money quit at higher rates because of the tax," Frieden said.
Besides high taxes and restrictions on smoking in public places, the city has given millions of free nicotine patches to people trying to quit.
The new estimates on the city's smoking population were based on a telephone survey of 10,000 randomly selected adults. Smoking was one of several topics covered by the survey, which had a margin of error of 1 percentage point.
Women between the ages of 18 and 24 saw the largest decline in smoking rates, with 40.5 percent fewer smokers than in 2002, according to the survey.
The rate changed the least for blacks, who reported 1.9 percent fewer smokers, and Asians, who reported a 5.2 percent drop, the health department said.
"Certainly that is something that bears watching," Frieden said. "We want to make sure that every segment of the population benefits from the tax increase."
There are still more than 1 million smokers in New York, health officials said.
The city is among a number of places that have banned smoking in workplaces, bars and restaurants. The state passed a similar ban in the summer of 2003. Other states with bans include Massachusetts, Connecticut, Maine, Delaware and California.
Journal News - June 4, 2005
Bar owners still fuming
By Keith Eddings
From behind his long wooden bar at Pete's Saloon and Restaurant, Peter Riekstins has seen it all.
He bought the business in 1969 when he was barely old enough to drink himself and continued operating it as a college bar until the state began raising the drinking age in 1982. He threw the college kids out and, as drinking laws tightened even more over the decades, added a kitchen, brought in jazz bands and refocused his advertising to attract an older crowd.
So it wasn't the evolving attitudes about drinking that nearly ruined Pete's, an Elmsford institution at the corner of routes 9A and 119, Riekstins said.
It was the ban on smoking that took effect two years ago today.
"For a while, it looked like it might be tough to stay in business," Riekstins said about the early days of the smoking ban one evening this week as he sat on an outdoor patio behind his bar, chain-smoking Merits.
"Then it slowly started picking up, from the food end of it. So we started marketing our food more."
The move toward food and away from drink has cut profits, but business is good. This summer, Pete's is expanding into an adjoining storefront.
Pete's story has played out across Westchester since June 4, 2003, when the county became one of the first in the state to ban smoking in the workplace. Bar and restaurant owners fiercely fought the ban, promised retribution at the polls against the politicians who supported it and then watched revenues drop as smokers stayed home or headed to other counties and Connecticut in search of places where they could light up while they had a drink.
But similar bans were passed statewide and in Connecticut over the next year, cushioning the blow in Westchester. And although several bar and restaurant owners and employees still were grumbling about lost revenues and shrinking tips this week, outside their doors, several smokers said they were learning to live with smoking al fresco.
"It's not as bad as I thought," Chris Houghtaling, 29, an appliance repairman from White Plains and a smoker for 15 years, said outside the Lazy Boy Saloon on Mamaroneck Avenue in White Plains, a box of Parliaments and a Bud Light on the table in front of him. "It makes me smoke a little less. I definitely like it. I don't mind going outside. In the winter, it's a little cold, but I deal with it."
Last year, the Empire State Restaurant and Tavern Association, an Albany-based trade group that strongly opposes the ban, estimated that it had cost the industry 2,000 jobs and $28.5 million in salaries and wages.
In April, the state released its own survey of sales at 9,946 bars and restaurants in the year following the ban. At bars, sales dropped 3.4 percent between June and August 2003, remained flat over the next few quarters and then began a tentative rebound, the survey found. Restaurant sales increased 3 to 4 percent over the same period.
The study cautioned that other factors influenced revenues in the industry, including a sizable jump in general retail sales.
"Where there was an immediate impact on the smoking ban, the numbers have increased significantly since then," said Thomas Bergin, a spokesman for the state Department of Taxation and Finance, which conducted the survey. "If you look at the amount of sales in the most recent couple of quarters, they exceed the sales that immediately preceded the ban. So it seems like they've recovered, and recovered nicely."
No data are available on restaurant and bar sales specifically in Westchester. But employment in the industry nudged up 600 jobs — to 26,100 — between 2003 and last year in Westchester, Putnam and Rockland, according to state labor officials.
Owners and employees paint a bleaker picture.
"I used to work four days. I'm down to one day," said James O'Toole, a bartender at Dudley's Parkview Tavern in New Rochelle, who has taken another job driving a limousine. "From last summer to this summer, coming into this season, business is off by at least 45 percent. ... The bar is empty."
At the Willett House Restaurant in Port Chester, manager Dennis Gallagher said the ban landed a one-two-three punch. Revenues plunged — he said he lost an estimated $50,000 in June 2003, the first month of the ban — which forced him to put his by-the-hour bartenders on the payroll to make up their lost tips. And the business he ran selling cigars at the bar has closed.
"We just don't get people coming back (to the bar) to have after-dinner drinks — cognac, port," Gallagher said. "They just leave the restaurant. They go home."
Putnam County bars and restaurants may have seen a slight bump in business when Westchester banned smoking, but it lasted only until the state ban took hold seven weeks later.
At the Cold Spring Depot, owner Tom Rolston said the ban has had little impact. "Maybe we lost a couple of customers, but we've gained some who wouldn't come in because the smoke was too much," Rolston said.
In Westchester, county Health Commissioner Joshua Lipsman said there has been "phenomenal compliance" with the law but did not have information about the number of citations issued for violations.
Last year, an effort to repeal or amend the statewide ban fizzled in Albany. In fact, antismoking advocates are winning more battles in the state Capitol: The Assembly voted 111-20 Thursday to ban the sale of flavored cigarettes; the bill is in a Senate committee. A bill that would ban smoking in college dormitories may come to a vote next week, according to its Assembly sponsor, Amy Paulin, a Democrat from Scarsdale. In the Senate, the bill is sponsored by Vincent Leibell, R-Patterson.
"It addresses two things," Paulin said. "It acts as a deterrent on smoking, and it protects the rest of the young people in the dorm from second-hand smoke. Second, it's a safety issue. Deaths related to residential fires are predominantly from cigarettes."
The new laws appear to be taking a toll on smoking. On Tuesday, the state Health Department reported that just 19.9 percent of New York adults are smokers, the smallest percentage since the department began counting in 1985. Back then, 31.4 percent of adults in the state smoked.
"From a health standpoint and from an economic standpoint, the law has made a tremendous amount of sense and has been an overwhelming success," said Rick Lepkowski, vice president of the Westchester chapter of the American Cancer Society. "Culturally, most people are a lot less tolerant of being in places where people do smoke. In terms of education and the cultural acceptability of smoking, I believe we've really turned a corner."
Times Herald - June 3, 2005
Olean tavern wants smoking section
By Rick Miller
ELLICOTTVILLE — An Olean tavern on Wednesday avoided a possible 30-day suspension of its food permit for repeated violations of the state’s Clean Indoor Air Act.
Bradford attorney Anthony Clark, who represents the Phil-N-Station on West State Street, told members of the Cattaraugus County Board of Health that the tavern plans to seek a waiver to the smoking ban and suggested a $2,000 fine instead of suspending the license for a month.
“You’ve got their attention,” Mr. Clark told the Board of Health, meeting at the Hearth Restaurant in Ellicottville. “They are now aware of penalties past the fine.”
The Phil-N-Station, owned by Philip Siago of Olean, has been cited seven times for violating the state indoor smoking ban since it was initiated in July of 2003. Fines of $5,500 have been paid for the previous six violations. The latest fine will bring the total to $7,500.
On May 4, the Board of Health voted to fine the Phil-N-Station $1,000 for the seventh violation on March 17, and to suspend its operating license for 30 days effective June 1. The tavern owner appealed the board’s decision on May 20.
Mr. Clark said the 30-day suspension could cause the owners to lose the business. “If you close them down, there won’t be any smoking, but there won’t be a business either.”
After meeting in a closed-door session. The Board of Health voted to amend its earlier suspension and double the fine from $1,000 to $2,000.
Mr. Clark said the second floor of the tavern would be a designated smoking area with ventilation and no food or beverage service. Patrons would purchase food and drinks at the bar downstairs and walk upstairs if they wished to smoke.
“They don’t want to use the front porch” as many other taverns do, Mr. Clark said.
Mr. Clark said he is helping to guide the tavern through the waiver process, with the Board of Health making the final decision if it meets state regulations.
Board members also hard an appeal from Cathy Maley of Don’s Tavern, another West State Street bar in Olean that was cited for violating the indoor smoking ban.
Ms. Maley said the alleged violation occurred on Nov. 27, the night after Thanksgiving, which traditionally is the one of the busiest nights of the year for bars. She said her bartenders contended they didn’t see anyone smoking inside, and that the complainant was a Health Department employee.
Public Health Director Barbara J. Hastings said anyone can be a witness in a Health Department hearings.
News - May 31, 2005
Secretary of state wants business friendly climate in New York
Creating a smoking ban in public places, including bars and restaurants, may not have been the best thing to do, according to state Secretary of State Randy Daniels.
While Daniels fell short of calling for the government to revisit the smoking ban, he said the current administration is cognizant of the need to be business friendly. “We want to be able to create an environment where all of our businesses can flourish where the burden of taxation and regulation is lessened,” he said. Governor Pataki has worked “very hard over the last nearly 12 years to do that; to create an environment to attract new development and keep what we have.”
Daniels did tell a Poughkeepsie audience recently that while he was in an upstate community near the Pennsylvania border, a restaurant owner told him the smoking ban was killing his business and as a result, he was planning on moving his eatery across the state line where smoking is allowed.
Press - May 25, 2005
Judge upholds NY smoking bans after private Players Club sues to defend pipe ceremony
By Larry Neumeister
A judge has tossed out a lawsuit brought by a 115-year-old private club that sought to strike down smoking bans so it could continue to honor its members _ who include Walter Cronkite and Carol Burnett _ with pipe ceremonies.
The Players Club is no more entitled to special privileges with city and state health inspectors enforcing the smoking bans than are pro-tobacco organizations that tried unsuccessfully to overturn the laws, U.S. District Judge Victor Marrero said Wednesday.
"Individuals have no `fundamental' constitutional right to smoke tobacco," the judge wrote. "While individuals' freedom of association, freedom of assembly and freedom of speech merit constitutional protection, there is no basis for concluding that the smoking bans infringe those rights."
He said the smoking bans target conduct _ smoking in certain places _ rather than speech, association or assembly, which are not regulated by the statutes.
The judge rejected the argument that the smoking bans caused a prohibition on a club tradition in which members are honored with pipe ceremonies, which involve smoking on the club's premises.
The judge suggested that the ceremonies at the club's Gramercy Park facility still might be able to occur after a substitution of suitable non-tobacco products.
The Players Club filed the lawsuit in December 2003 after health inspectors ticketed it for keeping ashtrays behind an office desk. A telephone message for comment left with a club lawyer was not immediately returned Wednesday.
The city smoking law went into effect in March 2003, banning smoking from all restaurants, bars, offices and private clubs with paid staff and requiring the establishments to remove their ashtrays. The state law went into effect in July 2003.
The Players Club had claimed that scientific evidence of second-hand smoke's health effects was bogus and that the ban violated its rights to due process and equal protection.
Besides Cronkite and Burnett, the club counts among its roughly 700 members Angela Lansbury and Timothy Hutton.
Newsday - May 25, 2005
Ognibene lights up a burning issue
By Glenn Thrush
The dying embers of the smoking-ban controversy are being reignited by former Queens councilman, current GOP/Conservative mayoral hopeful and ex-smoker Tom Ognibene.
Ognibene, who snagged the Queens GOP endorsement, is demanding that "Mr. Bloomberg's law" be rolled back or weakened, even though it has already been written into state law. He also said the mayor is strong-arming his potential donors.
"There is no logical reason why a legal activity in this society should be totally banned, particularly in places where it's logical that you engage in that activity," Ognibene said at a news conference yesterday at Langan's, a midtown bar that's a haunt of chain-smokers.
Ognibene, who kicked the habit after a 2001 heart attack, was joined by bar owners and the head of an association representing owners of video poker machines and pool tables, who all said their businesses have been hurt by the law.
Scott Wexler, executive director of the Empire State Restaurant & Tavern Association in Albany, called state and city estimates showing the ban has had a minimal effect on business "bogus data" that discounted the impact on establishments that have closed.
"Tom Ognibene's desire to expose hardworking New Yorkers to carcinogens is perverse because the Smoke-Free Air Act is overwhelmingly popular," said Stu Loeser, Bloomberg's campaign spokesman.
10 Now - May 21, 2005
Bars still hurting from smoking ban
By Al Nall
Smoking may be hazardous to your health, but New York's smoking ban is proving to be hazardous to the financial health of some bar owners.
At Rosie's Tavern in Granby, owner Rose Anthony has watched her business plummet over the better part of two years. To stop the loss she applied for a smoking waiver through the Oswego County Health Department. In spite of spending thousands of dollars on ventilation equipment, remodeling and legal fees, her application was denied.
"They want me to close my doors. This is what they want me to do. I will not, I will fight to the end," Anthony said.
Anthony says she will continue her fight in court and may sue the county.
Just down the road in Fulton, bar owner Joe Mancino says he is experiencing similar problems. He isn't exactly sure what he's lost in revenue, but says the less he makes, the less the state collects.
"My last quarter that I had to pay my sales tax, I only paid four hundred and fifty dollars. That's considerably down from fifteen, sixteen hundred I normally pay per quarter," said Mancino, owner of Fulton Ale House.
Mancino says he's tired of fighting and unless something drastically changes, he will give up his business of 35 years in September.
Oswego County legislator Doug Malone says now is the time for state lawmakers to step in and save small business owners before it's too late.
"We can push and shove and borrow and steal and see if we can make them maybe go back in there and look at the law," Malone said.
Malone says the law was approved too quickly and will be difficult to undo.
In spite of good intentions, both bar owners say the ban has hurt more people than it has helped.
The owners say they know of several other Oswego County bar owners who have gone out of business because of the ban.
Press - May 21, 2005
Bowling lane owners send shoes to lawmakers
TRENTON, N.J. -- A bowling alley industry group has sent a single bowling shoe to each member of the state Legislature as a reminder of why they oppose a proposed indoor smoking ban.
The Bowling Proprietors' Association of North Jersey and Southern New Jersey said it sent the shoes to highlight how the special leather-soled shoes slip easily on wet surfacing. The group claims an indoor smoking ban would raise their insurance rates because smokers going outside to smoke on a rainy day would bring water back onto the lanes.
"Our insurance will then go up, and we're forced to pass on that cost to the consumers," Stephen DiDonato, owner of DiDonato Bowling Center in Hammonton, told The Press of Atlantic City for Saturday's editions.
Other bowling alley owners worry it would hurt their business because smoking and drinking is so associated with the activity, a concern echoed by owners of bars, casinos and other places where smoking is commonplace.
If signed into law, the legislation _ known as the New Jersey Smoke-Free Act _ would ban smoking in all indoor public areas and make the state one of at least seven that have comprehensive smoking bans.
The bill's sponsor, state Sen. John Adler, D-Camden, thought a smoking ban would help, rather than hurt, bowling lane owners. It would create a healthier environment for customers, he said.
"The known exposure to second-hand smoke pails in comparison to the hypothetical threat of bowlers trekking in water onto bowling lanes," Adler said.
Observer Dispatch - May 21, 2005
County sued over smoking at casino
Landowners' group wants ban enforced
By Krista J. Karch
A local landowners group pressured Oneida County Friday to take action against smoking at the Turning Stone Resort and Casino.
In a lawsuit filed in Oneida County Court, Upstate Citizens for Equality, a group long critical of the Oneida Indian Nation's tax and codes exemptions, took the county's Health Department to task for not enforcing the two-year-old state smoking ban on Nation property.
Court clerks said the case would be assigned next week.
The lawsuit came after an April 22 letter of complaint to the county was ignored, said UCE President David Vickers.
"If they had come up with some kind of response that made sense, I certainly wouldn't have raced into court," Vickers said.
The UCE hopes the lawsuit will result either in a total repeal of the smoking ban, a move Vickers said would be "ideal," or equal enforcement of the measure in every venue.
Ray Bera, attorney for the Oneida County Health Department, said Vicker's April 22 letter was the first complaint the county had received regarding smoking at the resort. He said health department officials had discussed whether codes should be enforced on Nation property, but hadn't reached a decision.
"In light of a lot of the factors involved in this, we have not begun enforcing at the Turning Stone casino," he said.
Oneida Indian Nation spokesman Mark Emery said the Nation has never been contacted by the county regarding the smoking ban, but he said the land is not subject to state and local civil laws.
In the April 22 letter, Vickers referenced a telephone conversation that same day with Oneida County Sanitarian Susan Batson, who oversees the ban.
"You stated that you were waiting for instructions from either the county or the state, but you claimed to know very little about the scope of your enforcement duties with respect to this law," Vickers wrote.
Batson could not be reached for comment Friday.
Inquirer - May 13, 2005
Smoking ban will be passed before end of term, Codey says
He has indicated the bill would not be voted on until later this year. He leaves office in January.
By Robert Moran and Kaitlin Gurney
TRENTON - Acting Gov. Richard J. Codey predicted yesterday that New Jersey will have a ban on smoking in restaurants and bars before he leaves office.
Codey's statement during a news conference in North Jersey came as supporters of a ban gathered in Trenton to urge state lawmakers to pass the legislation immediately.
However, Codey has already indicated that a vote might not come until later this year. His term as acting governor ends in January.
Smoking-ban advocates expressed dismay over the stalled measure, which would prohibit smoking in workplaces and indoor public places, including casinos.
"It is inexcusable that every day that this legislation gets held up by Trenton's politics, real people lose their lives from exposure to secondhand smoke," said Alfred Ashford, chief medical officer for the American Cancer Society of New York and New Jersey.
The bill, sponsored by State Sen. John H. Adler (D., Camden), was approved by the Senate Health Committee in March, but it has not been posted for a vote by the full Senate.
Codey is also the Senate president, but he declined yesterday to comment on why he had not yet moved the bill.
"We'll vote on that before I leave the office of governor," Codey said.
Adler, who attended the Trenton news conference, said he believes that the bill has not come up for a vote because legislators are focused on other issues, including the state budget, which must be passed by the end of June.
But he said he is "very optimistic" that the bill will be passed this year.
"This bill has so much more momentum now than it's ever had before in New Jersey," Adler said.
Ashford slammed legislative leaders for not allowing a vote on the bill.
"It is being held hostage," he said.
He also accused the Assembly leadership of being "conspicuously silent."
Assembly Majority Leader Joseph J. Roberts (D., Camden) said that the Assembly has been focused on the budget and had expressed a willingness for the Senate to take the lead on the issue.
Roberts said the inclusion of casinos under a smoking ban "remains a thorny issue in South Jersey."
But when asked whether he expected a ban to be enacted by the end of the year, Roberts replied: "I think that's a reasonable and achievable goal."
He also said it was more likely that a smoking-ban bill would get a vote this fall than in the coming weeks.
Ashford said he suspected that the delay "is a manifestation of big tobacco's influence and our pay-to-play political system."
The Adler bill originally had an exemption for casinos and a two-year delay for social and fraternal organizations, such as Veterans of Foreign Wars posts and Elks lodges.
Those exemptions were stripped out in committee when the bill was moved to the full Senate.
The legislation appeared to gain momentum when Philadelphia seemed poised to pass its own ban. But the effort in Philadelphia has also faltered.
In New Jersey, restaurant and bar owners have argued that the state should stick with the current law, which allows establishments to designate nonsmoking areas.
State Health Commissioner Fred M. Jacobs, former president of the American Lung Association of New Jersey, has said that there are 1.16 million smokers in New Jersey and that 1,000 to 1,800 state residents die each year from the effects of secondhand smoke.
Seven states, including New York and Delaware, have similar smoking bans in place.
Press - May 13, 2005
Indoor smoking ban left off Senate's list
TRENTON — Fearing lawmakers may have gotten cold feet, anti-smoking groups rallied outside the Statehouse Thursday, questioning why a proposed ban on indoor smoking that includes Atlantic City's casinos was left off a list of bills on which the Senate was voting.
Supporters say the ban is needed to clear the air in restaurants, bars and the gambling halls, sparing workers and nonsmokers from secondhand smoke.
Casino executives fear a smoking ban would drive business away, cutting into revenues and leading to lost jobs in Atlantic City's $4 billion-a-year casino gambling industry. That has fueled concerns among anti-smoking groups that the casinos' clout could doom the legislation.
"The bill was unanimously approved by the Senate Health Committee two months ago. It's the logical time for it to go up before the full Senate, and it hasn't been posted," said Karen Becker of the American Cancer Society, one of several anti-smoking groups at the rally. "We're not sure it's the casinos or not. We know there are a lot of people who are nervous about that."
The New Jersey Smoke-Free Air Act would ban smoking in all indoor public areas. If passed, New Jersey would join at least seven states that have comprehensive bans. The measure easily advanced in March and enjoyed the support of acting Gov. Codey, who also serves as Senate president.
There has been speculation the smoking ban legislation was being used by Codey as leverage to get support for a proposal to put gaming devices similar to slot machines at the Meadowlands Racetrack, an idea that has casino officials concerned about competition.
But Codey's office disputed that, calling it "inaccurate," and saying the governor supports the measure for public health reasons.
Press - May 12, 2005
Smokers' rights groups boycotting cancer charities
By Michael Gormley
ALBANY, N.Y. - Smoking rights' groups, tavern owners and libertarian political parties in nine states are calling for a boycott of donations to major charities, saying their support of smoking bans is a threat to small businesses and civil rights.
"No more," says Audrey Silk, founder of NYC Citizens Lobbying Against Smoker Harassment, which is leading what appears to be the first-ever boycott of the American Cancer Society, American Lung Association and American Heart Association.
"We will stop contributing to Big Nanny," she said. "Why do we want to donate to groups that are out to ruin our businesses and demean us as human beings?"
Smokers' and libertarian groups from Minnesota to Massachusetts are targeting the nonprofits for their political activities. The smokers' rights groups complain that the charities don't just support research and people afflicted with disease, but use their considerable lobbying power to help write smoking bans in states and municipalities.
Silk says her group gets no money from tobacco interests.
Silk targeted the American Cancer Society's radio and print advertising campaign in New Jersey, which calls on residents to urge their elected officials to pass an indoor smoking ban. Such bans hurt "mom-and-pop businesses and are intended to make pariahs out of adults engaging in a legal behavior," she said.
American Cancer Society national spokeswoman Colleen Wilber said she hasn't heard of such a boycott before. But she said the organization's lobbying efforts to support smoking bans to protect workers from secondhand smoke draw local opposition.
"We know people lose their lives to secondhand smoke and we see it as our obligation to protect those people from getting sick or dying," said Karen Becker, spokeswoman for the American Cancer Society of New York and New Jersey, which supports New Jersey's proposed indoor smoking ban.
The boycott effort is supported by Silk's CLASH, the national Smokers Club Inc., Illinois Smokers' Rights group, Indiana Amusement & Music Operators Association, the Kentucky Licensed Beverage Association, the Metro Louisville Hospitality Coalition, the Cambridge Citizens For Smokers' Rights in Massachusetts, the Smoke Out Gary group based in Minneapolis, Minnesotans Against Smoking Bans, the Fight City Hall group of Minnesota, Taverners United for Fairness New York, the American Arborist of New York, the Madison County Chapter of the Independence Party Ohio, the Lakewood Hospitality Association of Pennsylvania, Pennsylvania Smokers Action Network and Tennessee's Yes S.I.R. group.
The groups are urging members and sympathizers to continue to donate to charities with similar goals including the Make-A-Wish Foundation, Mary Crowley Medical Research Center, Fred Hutchinson Cancer Research Center and the Shriners Hospital for Children as well as local medical charities.
Post Standard - May 12, 2005
Group to seek smoking ban at Turning Stone
By Glenn Coin
A citizens group plans to go to court to force Oneida County to crack down on smoking at Turning Stone Resort and Casino, one of the last bastions in the region where smokers can light up.
Upstate Citizens for Equality decided this week to ask a judge to intervene. The group's president, David Vickers, said he is preparing legal papers, and next week plans to file the action in state court against county health department officials.
"What they're trying to do is ignore this law out there that compels them to act," Vickers said. "We want laws applied equally to everybody, regardless of race."
Turning Stone is owned by the Oneida Indian Nation, which argues the state's no-smoking law doesn't apply because the resort sits on sovereign Indian territory. The U.S. Supreme Court ruled in March, however, that the nation can't claim sovereignty on land it has bought in the past two decades.
Despite that decision, nation spokesman Mark Emery said, federal law and previous Supreme Court decisions make nation land immune from local and state laws.
Nick DeRosa, Oneida County's director of environmental health services, said his department has not taken any action at Turning Stone and didn't know if it would.
"We haven't gotten any direction on that as of yet," DeRosa said.
A spokesman for Gov. George Pataki said late last month that enforcing the state smoking ban at Turning Stone was "under discussion." Oneida County Executive Joe Griffo said then that any directive to enforce the ban would have to come from the state.
However, the state law calls on county health departments to enforce the smoking ban.
"We can debate about whether it's smart to make the county health departments the enforcement agents I don't think it is but that's the law," Vickers said.
Vickers filed a complaint with the county April 22. Nothing happened, he said, so it's time to take the next step and go to court.
"That's the only mechanism available to compel them to do what their job requires them to do," Vickers said. "All we're asking is to follow the letter of the law."
The local and statewide chapters of the American Cancer Society also have called on health officials to enforce the smoking ban at Turning Stone since the Supreme Court decision.
Echo - Week of May 11, 2005
Smoking issue lingers two years on
By Ailbhe Jordan
Two years on, bars and restaurants in New York have recovered from the economic effects of the smoking ban, according to new figures released by the state.
A recent study by the New York State Department of Taxation and Finance indicates that sales in bars and restaurants in New York are at their highest levels in recent years.
Last March, one year after the introduction of the smoking ban, sales rose by 24.3 percent in New York City.
"Understandably, the figures went down a little bit after the smoking ban but I think they've recovered nicely," according to Department spokesperson Thomas Bergin.
"Businesses are doing better now than they were before the ban, whatever difficulties they had have been resolved."
However, many Irish bar owners argue that the smoking ban continues to choke their business.
"It has taken at least 70 percent of my day trade and 50 percent of my night trade," according to Pat Withers, who owns Suffern's Bar 32 in Rockland County. His bar lies on the border with New Jersey, where it is legal to smoke in bars and restaurants.
"New Jersey is literally across the street. Of course people are going to go where they can smoke with out having to sit out side in the rain or sweltering heat," he said.
"Its not just affecting me -- most of the kids who work here don't smoke but would love to bring smoking back because their tips have decreased so much."
According to anti-ban website www.hitmann.com, at least 150 bars in New York have closed or lost significant trade as a direct result of the smoking ban.
The site claims some Irish bars have reported losses of up to 50 percent, whilst others, like Fiddler's Green Tavern in New York, have closed their doors since the smoking ban came into force. Bergin admitted that the study did not take into account bars that have closed down since the ban was introduced.
Said Jack Donavan, general manager of Donavan's Pub and Restaurant in Woodside: "Its been another nail in the coffin; its very difficult to do business in New York."
"It's been positive for places like McDonalds, but pubs and restaurants have been affected negatively. If people are outside smoking, they're not inside eating and drinking."
One bartender in an Irish pub in Queens says the only way it can counter the effects of the smoking by flouting it occasionally.
"Winter is especially bad," she said. "Business is ok at the moment, but it would definitely be better without the smoking ban."
Bob Battipaglia, East coast sales manager with Castle Brands, who distribute Boru Vodka, says revenue that was lost following the ban, "never came back."
"Business has dropped," he said. "We started a huge outdoor advertising campaign last year to combat it."
According to Robert Bookman, legal representative for the New York Nightlife Association, the ban has also led to spin-off problems associated with patrons standing outside licensed establishments to smoke.
"Since the ban, the number of noise complaints has increased and the cops are telling bar owners to do something about it. As a result of that, new license applications are receiving a higher degree of antagonism because the State wants to know what they're going to do about smokers on the streets," he said.
"There are numbers of people who are teetering, and when the time comes to renew their leases they're going to be in trouble."
Some Irish bars concur with the State's study, however, like Maggie's Place in midtown Manhattan.
"There was a huge dip in trade initially, which lasted a good part of a 18 months, but people are used to it now. I would say we're back up the same levels," said general manager Tory Delany.
Press - May 11, 2005
Lawmakers seek ban on flavored cigarettes
By Mark Johnson
ALBANY, N.Y. -- They're called "Winter Warm Toffee," "Kauai Kolada," and "Twista Chill," but the flavored cigarettes are leaving a bad taste in the mouths of lawmakers who say they should be banned because they target young people.
Anti-smoking groups have charged that tobacco companies, particularly Reynolds American Inc., are luring teenagers into the smoking habit by offering flavored cigarettes and advertising them in magazines with heavy adolescent readership like Rolling Stone, Glamour and Elle.
"These are designed to attract younger smokers," said Michael Bopp of the American Cancer Society. "We don't want to see a product introduced that will give back the gains we've made in this state in reducing teenage smoking. From a commonsense perspective, adults are not going to be interested in these products."
A bill introduced in Congress in March gives the Food and Drug Administration power to regulate tobacco products and would ban the sale of candy flavored cigarettes. It is currently in the Senate's Committee on Health, Education, Labor, and Pensions and in the House Subcommittee on Health.
And legislators in New York, Minnesota, West Virginia, Connecticut, Illinois, North Carolina and Texas have proposed bills prohibiting the sale of the flavored cigarettes.
A national survey presented last week by Buffalo's Roswell Park Cancer Institute found that 20 percent of smokers ages 17 to 19 used flavored cigarettes in the past 30 days while just 6 percent of smokers over the age of 25 did, said Dr. Gary Giovino, a senior researcher at the institute.
"Of course they're going after kids, they're going to be the longer-range consumers," said Katie Spector, 17, a student at Colonie High School outside Albany who recently quit smoking after about five years.
Separately the study found that 8.6 percent of ninth graders in western New York have tried flavored cigarettes in the past 30 days.
"They are using flavors to sweeten the poison," Giovino said.
Winston-Salem, N.C.-based Reynolds American, formed by last year's merger of R.J. Reynolds Tobacco Co. and Brown & Williamson Tobacco Corp., sells flavored versions of its Kool and Camel brands.
Fred McConnell, a spokesman for the company, said it does not target minors with its marketing. After meeting with Sen. Charles Fuschillo, a sponsor of New York's bill, Reynolds decided to stop advertising cigarettes with candy or fruit names though the products will still be sold, he said.
"We recognize use of certain names on Camel Exotics have resulted in unintended concerns," he said.
Currently, the company offers two Camel products _ "Mandarin Mint" and "Dark Mint." Those will no longer be advertised in magazines, newspapers or stores, McConnell said.
Nonetheless, McConnell said, the company opposes the legislation to ban flavored cigarettes because it would also ban "conventional" cigarettes.
"Ingredients like cocoa, sugar, licorice and menthol have been used in cigarettes for 100 years," McConnell said. "You would ban almost all cigarettes."
The sponsor of the New York bill that would ban flavored cigarettes said he expects the measure to pass the Assembly.
"If there is an effort to discourage kids from taking up the habit, we need to go after products boutique-designed to target them," said Assemblyman Alexander Grannis, D-Manhattan.
The measure is currently in the Senate's Health Committee.
Jamie Drogin, a spokeswoman for Altria, the maker of Marlboro and other cigarettes, said her company does not make any candy or fruit-flavored cigarettes and supports the proposed federal ban on those products.
Press - May 9, 2005
Bill would raise smoking age to 19 in `nanny-state'
By Mark Johnson
ALBANY, N.Y. -- Eighteen-year-olds can vote and fight in combat, but in New York they couldn't buy cigarettes under a proposal that pits civil rights against the health threat of smoking among high school students.
"What difference does it make raising the limit one more year?" said Ernie Panarites, a 16-year-old sophomore at Brighton High School in suburban Rochester. "You know how many friends I have that buy me cigarettes? My mom buys them for me."
Critics say there is no proof the bill to prohibit tobacco sales to anyone under 19 years old would achieve its aim: To reduce smoking in the earlier teen years when most smokers first light up.
Alabama, Utah and Alaska have raised the age at which smokers can buy cigarettes to 19. Yet officials in Alabama, where the age requirement went into effect in 1991, say they've only seen a slight improvement under the law.
State Assembly Health Committee Chairman Richard Gottfried argues that by raising the purchasing age to 19, fewer high school students would be able to legally buy cigarettes and share them with classmates. Between 85 and 90 percent of adults who smoke started before they turned 19, according to Russell Sciandra of the Center for a Tobacco Free New York.
Sen. Charles Fuschillo Jr., a Long Island Republican who sponsored the state's 2003 law banning smoking in public places, is backing the measure in the Senate.
Blair Horner of the New York Public Interest Research Group, a longtime opponent of major tobacco interests in Albany, said "there is simply no evidence" that raising the smoking age would curb teenage smoking.
He points to a multiyear Centers for Disease Control and Prevention study showing that a greater percentage of teens in Alaska and Alabama reported trying smoking than in New York. In Utah, a smaller percentage of teens than in New York admitted smoking at least once, but that was also the case before the age to legally buy cigarettes was raised to 19.
The CDC study also found that since 1997, the number of teens trying cigarettes in New York has dropped 17 percent, more than in Utah, Alabama and Alaska.
"It's important lawmakers base decisions on evidence," Horner said. "In this case they don't have it."
Opponents also say the proposal would discriminate against 18-year-olds.
"An 18-year-old is old enough to defend our country, he's old enough to marry, to vote, but we're going to tell him he can't by a pack of cigarettes?" asked New York Conservative Party Chairman Michael Long. "It's the nanny-state mentality. Lawmakers are saying, `We know what's better for you. It's all right for you to go fight in Iraq, but not to buy cigarettes."'
Horner and Long both say education is the way to cut down on teen smoking, citing numerous programs they say have led to fewer teenagers lighting up.
Jim McVay, a spokesman with the Alabama Department of Public Health, said his state's age restriction on tobacco purchases has not been very effective in curtailing teen smoking. About 25 percent of Alabama teenagers in 2003 still reported smoking at least once in the past 30 days in the CDC survey. That compares with about 22 percent of New York teens, according to the American Cancer Society.
"We have not seen a large difference between Alabama and the neighboring states," McVay said. "We see it as just one element of an overall campaign to reduce smoking. Social norms have much more of an effect."
Mark Hansen, spokesman for Senate Republican Majority Leader Joseph Bruno, said Bruno has not taken a position on the bill yet. The senator, who survived prostate cancer in 2003, has in recent years become a vocal opponent of smoking.
Andrew Rush, a spokesman for Gov. George Pataki, said that if the legislation passes both houses, the governor "will certainly take a look at it."
Sun - May 9, 2005
Movement Afoot To Raise State's Smoking Age
By Meghan Clyne
In a move opponents are labeling an invasion by the nanny state, the state Senate's Health Committee expects to take up, and probably approve, legislation this week that would raise New York's smoking age to 19.
The bill, sponsored by Charles Fuschillo Jr., a Republican of Long Island, was introduced April 18. The chairman of the Senate committee, Kemp Hannon, another Long Island Republican, confirmed that the legislation is on tomorrow's agenda and said he thought the bill would be approved by the committee, at which point it could be brought to the Senate floor.
Mr. Fuschillo's legislation would amend state public-health laws governing the sale of tobacco products, replacing "eighteen" with "nineteen" wherever a minimum purchase age is stipulated. Retailers would also be required to check identification for anyone appearing to be under 26, where previously ID scrutiny was waived for "any individual who reasonably appears to be at least twenty-five years of age."
Similar measures have been passed by the Health Committee in the state Assembly in previous sessions, and similar bills have had Senate sponsors in the past. This would mark the first time such legislation would make it to deliberation in a committee of the Republican-controlled Senate.
Mr. Fuschillo, who has sponsored and supported other anti-smoking bills, said this legislation was designed to reduce underage smoking by keeping cigarettes out of high schools. Because many high-school students are 18, he said, it was possible for seniors to obtain cigarettes for underclassmen, facilitating underage tobacco usage.
Raising the smoking age to 19, he and Mr. Hannon said, would help combat the problem and provide a deterrent to underage tobacco consumption.
"This is a public-health issue," Mr. Fuschillo said, "and we as a state should do all we can to limit access and ensure a healthy life for individuals."
Another Senate Republican, Martin Golden of Brooklyn, who as a member of the City Council voted against New York City's stiff smoking controls enacted at Mayor Bloomberg's urging, said he approved of Mr. Fuschillo's legislation.
"Any time you can get cigarettes out of kids' hands, it's a good idea," Mr. Golden said. "I still believe government shouldn't be in this, but if it's saving lives, and the jury's still out on it, I can be convinced."
To the chairman of the state Conservative Party, Michael Long, however, the state has no business legislating individuals' health or limiting citizens' access to a legal commodity. The Conservative Party - which has endorsed both Mr. Fuschillo and Mr. Hannon - has long supported smokers' rights and vocally opposed the city and state smoking restrictions enacted in 2002 and 2003.
If New York really wanted to keep tobacco out of high schools, Mr. Long said, it should enact laws cracking down on underage possession of tobacco, or raise the smoking age to 21, to match the age requirements for the sale of alcohol. Because there are also many 19-year-old high-school students, he said, increasing the smoking age by one year would not keep tobacco out of schools.
While Mr. Long said he would not support such measures, they would at least have a better chance of achieving Mr. Fuschillo's stated aims, he said.
"If they want to save lives, then they ought to have the courage to ban smoking altogether," he said of legislators who argue that tobacco usage is lethal and should be restricted by government.
Such a ban, however, is unlikely. "These same legislators don't mind using the tax money they get from cigarettes on their pet projects," Mr. Long said.
Indeed, overreaching government measures to restrict access to tobacco while its consumption remains legal are only counterproductive, Mr. Long said. Raising the smoking age and levying oppressive taxes on cigarettes as New York has, Mr. Long said, have only fueled a black market for tobacco, especially on the Internet, where consumers can more easily dodge taxes and bureaucratic obstacles. A black market, Mr. Long added, was impossible to regulate. Providing incentives to sell tobacco illegally, beyond state scrutiny, only increases the likelihood that minors would obtain cigarettes, he said.
Mr. Long also expressed frustration at the Senate's priorities, citing a report in the New York Post yesterday that the body was moving to legalize medicinal marijuana as it was looking to impose further restrictions on tobacco usage.
A self-described advocate in the Senate of limited government, Raymond Meier, a Republican of Utica, also questioned his colleagues' priorities. There are more pressing issues facing the Senate, Mr. Meier said, than "meddling in personal decisions." He called Mr. Fuschillo's legislation "government as mommy."
"We permit people at the age of 18 to vote. We require them to shoulder a lot of responsibilities. A lot of 18-year-olds serve in the military," Mr. Meier said. "They're smart enough to use tobacco."
The founder of New York City Citizens Lobbying Against Smoker Harassment, Audrey Silk, likewise found the discrepancy puzzling.
"We're going to have kids coming back from Iraq, and then tell them, 'Sorry, you can't buy cigarettes here'?" she said.
Ms. Silk, who is the city Libertarian Party's candidate for mayor, said New Yorkers were "fed up" with the continuing attempts to "beat down" smokers, citing the public frustration with city and state tax hikes on tobacco products, in addition to opposition to Mayor Bloomberg's prohibition of smoking in bars and restaurants.
"It's Big Brother," Ms. Silk said.
"They're making our bodies belong to the state. And then there's the slippery slope," she said. "Already they're looking at food - what you should eat, what you shouldn't eat."
Ms. Silk expressed her concerns as the Associated Press reported yesterday that the city of Detroit was seeking to implement a 2% tax on fast food, the first of its kind in the nation.
Regardless of a person's views on the role of government or on tobacco, Mr. Fuschillo's legislation is unwise because it will not be effective, the executive director of the New York Public Interest Research Group, Blair Horner, said. The average age at which smokers begin to use tobacco, he said, was 14, and raising the legal smoking age to 19 from 18 would not affect youth tobacco consumption.
"We're serious anti-smoking activists," Mr. Horner said, "but there's no evidence that this will work."
He also said no major health agency or organization, such as the Centers for Disease Control, had advocated raising the legal smoking age.
"All you end up doing is treating 18-year-old adults as second-class citizens," Mr. Horner said.
Three states - Alaska, Alabama, and Utah - have smoking ages higher than 18, Mr. Horner said, and Alabama and Alaska have higher youth smoking rates than New York. Utah, Mr. Horner said, was not an indicative example, since almost 70% of the state's population belongs to the Church of Jesus Christ of Latter-day Saints, which prohibits tobacco usage.
According to a NYPIRG report, between 1997 and 2003, all three states saw tobacco usage among minors decrease at a slower rate than did New York.
Moreover, the results of increasing the drinking age to 21 from 18 suggested that raising the smoking age would be counterproductive, Mr. Horner said.
Adjusting the age at which citizens can legally purchase alcohol, Mr. Horner said, was intended to curtail drunken-driving accidents, which it succeeded in doing. At the same time, however, drinking between ages 12 and 17 increased dramatically
"If you're looking to reduce smoking related car crashes, you'd have a case," Mr. Horner said, but otherwise, Mr. Fuschillo's legislation would only "torture small businesses that have to deal with it," and undermine its sponsor's stated goal.
Opponents of the bill, however, were also critical of what they saw as its unstated political goal.
"This is just a charade," Mr. Long said. "Legislators will be able to stand in front of grammar schools, and pound their chests, and pat themselves on the back, and say how courageous they were."
The bill's critics called it "feel-good legislation" with few political drawbacks. "Eighteen-year-olds don't make campaign contributions, and they're least likely to vote," Mr. Horner said.
Mr. Long said the Senate's Republican majority would probably jump on the feel-good bandwagon if the Senate leadership decided to endorse the legislation, assuming it emerges from committee. The majority leader, Joseph Bruno, a 75-year-old from Rensselaer whom Mr. Horner described as a "health nut," could not be reached for comment yesterday but in the past has supported anti-smoking legislation.
TV - May 6, 2005
Tavern Cited for Repeat Violations of Smoking Ban
(Olean, NY) - - Violations of New York's indoor smoking ban will turn out the lights next month at a Southern Tier tavern.
The Cattaraugus County health board has suspended the operating permit at the Phil-N-Station in Olean for the entire month of June.
The Phil-N-Station is one of half a dozen taverns cited for repeat violations of the smoking ban.
Press - Week of May 4, 2005
AGAIN WITH THE FROG IN THE PAN
A new study just released by the state's always-reliable Department of Taxation and Finance reveals that the smoking ban wasn't the deathblow to local taverns we expected it to be. In fact, business has even improved since the ban went into effect in 2003. There was a little dip in business for the first six months or so, but then everyone gave up the fight and agreed that they'd just step outside to smoke. After that, things picked up where they left off.
As one nonsmoking bar patron told the Post on Monday, "People are pretty adaptive, and over time, they have gotten over it."
"Adaptive" is one way of looking at it, we suppose. If you ask us, what the study reveals is just one more sad bit of evidence that you can take anything you want away from people—any right or small pleasure or scrap of freedom—and they'll soon not only get used to not having that freedom,in time they'll forget it was something they ever had in the first place. Was there ever a time when large demonstrations were allowed in Central Park? Wow. Must have been a long time ago, that.
News - May 3, 2005
Disputed state study says smoking ban hasn't hurt businesses
By Matt Winterhalter
Judi Justiana isn’t shocked to see an analysis released Monday reporting that business at bars and taverns statewide has remained steady since the smoking ban took effect in July 2003.
“I’m disappointed, but not surprised,” the owner of Judi’s Lounge on Military Road said of the study released Monday by the state Department of Taxation and Finance.
Pointing out she’d like to know who sponsored the study, Justiana added, “How come my figures say it’s hurting us?”
According to Tax Department spokesman Tom Bergin, after a 3.4 percent drop in sales during the first quarter of the ban, business has remained about the same statewide. Sales fell 0.3 percent and 0.1 percent in the two quarters following the ban, but in the period from March 2004 to May 2004 sales rose 0.2 percent to $169.6 million. Statewide sales rose 1.1 percent in 2004’s June to August quarter, the last quarter included in the report.
“It seems that there was slight decrease in business, but all statistical evidence points to business improving since then,” Bergin said. “Even bars and taverns are doing better now than before the ban.”
The report looked at businesses that filed sales tax returns for every quarter of the 5 1/2 years included in the study, Bergin said. Still, the tax department said the figures “should be interpreted with caution and not be attributed solely to the effects of the smoking ban.”
Justiana agrees with that.
“It didn’t include any of the businesses that have closed since the ban,” she said, pointing out several Falls’ bars and taverns that have closed their doors the past two years. “These are places that have been here 10, 15, 20 years. (The ban) was just the straw that broke the camel’s back for them.”
And there are probably more to come.
“Several places have said they won’t renew their liquor licenses,” she said.
The head of an association representing bars and taverns also disputed the state’s findings, labeling the study as “junk economics.”
Frank Berkoski, owner of Big Ugly’s in Lockport, agrees, saying, “you can make a study say anything. (The ban) is devastating us.”
Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, said that factor skewed the data by eliminating businesses that may have failed because of the ban and ignored price increases. He said positive numbers in New York City masked a sales drop of around two percent in the rest of the state since the ban took effect.
“This is a worthless analysis,” Wexler said. “It leaves out most severely impacted businesses but includes the people who were the least hurt. It totally undermines the entire report.”
Lakes Times - May 3, 2005
Area bar owner disputes smoking ban study
By Sujata Gupta
Dan “Dewey” Dowd bought the 3rd Ward Tavern on Bridge Street in Seneca Falls last summer when sales at the then year-old bar had slipped 10 to 15 percent.
“[Former owner James Richar] had a pretty good decline in business because of the smoking law,” Dowd said, who added “Dewey” to the name.
Now, almost two years after the statewide ban went into effect, sales have rebounded, but Dowd doesn’t attribute much of that rise to new business.
“You might have half a percent of new people coming out because there’s no smoke, but it doesn’t compensate for the 8 percent loss,” said Dowd, who increased his food menu and created an outdoor smoking area.
“I’ve actually tried to cater to the smoker. We have an area out back so people here can go and smoke. It was a bocce court area and it’s kind of just like a shelter. [Now] they don’t have to stand on the sidewalk and look like criminals,” Dowd said.
But Dowd’s experience runs counter to the results of a study released Monday by the state Department of Taxation and Finance. Those figures indicate that sales have remained steady since the smoking ban went into effect in July 2003.
Dowd said the numbers can’t be believed because many area bars have folded in the last two years.
“In Seneca Falls there have been three places of business that have closed since I opened,” Dowd said, noting that decreased competition is helping existing bars.
Dowd added that as a former beer salesman, he had access to numbers that dispute the study’s findings.
“I had evidence that the on-premise business declined. The average was around 10 percent right at the beginning. A year later, [it] probably rebounded to about 8 percent,” Dowd said.
But Parker’s Grille and Tap House owner Pete Mitchell said his sales have risen steadily since the smoking ban went into effect.
“It’s not like [sales] went through the roof or palace someplace. The increase I’ve seen in my business over the years has just remained steady,” said Mitchell, who suspects part of that rise would have occurred regardless of the ban.
While Mitchell says he’s seen a lot of new people at his restaurants in Newark, Auburn and Geneva, both he and Dowd say they’ve stayed afloat by creating a niche for themselves.
“Don’t forget I serve food, and I have a family -oriented place,” Mitchell said, adding that he also draws a large student crowd.
“Young people that want to go out, they want to go out regardless,” said Mitchell, who sympathizes with bar owners who offer a drinks-only type environment.
Despite their misgivings, Mitchell and Dowd say the ban has yielded some positive results.
“I think young people are smoking less because of this,” Mitchell said.
Dowd agreed, saying that even older patrons have mentioned lighting up less than they used to.
But he added that many area bar staffs look the other way when patrons light up.
“They will go out of business if they don’t ignore the rules,” Dowd said.
Press - May 2, 2005
State says smoking ban has not hurt bar business
By Mark Johnson
ALBANY, N.Y. -- Despite dire warnings from tavern owners, business at bars and taverns statewide has remained steady since the smoking ban went into effect in July 2003, according to an analysis released Monday by the state Department of Taxation and Finance.
Caren Snyder, owner of Dodesters tavern in Syracuse, took issue with the state, saying her business has dropped about 10 percent because of the ban.
"To lose that much, it really hurts a small business like this one," she said. "We've also seen an increase in the fee for a liquor license, our unemployment assessment is up as well. And liquor companies have increased prices, which I don't necessarily pass on to my customers because my clientele is dwindling."
The head of an association representing bars and taverns also disputed the state's findings, labeling the study as "junk economics."
After a 3.4 percent drop in sales during the first quarter of the ban, business has remained about the same statewide, Tax Department spokesman Tom Bergin said Monday. Sales fell 0.3 percent and 0.1 percent in the two quarters following the ban, but in the period from March 2004 to May 2004 sales rose 0.2 percent to $169.6 million.
Statewide sales rose 1.1 percent in 2004's June to August quarter, the last quarter included in the report.
"It seems that there was slight decrease in business, but all statistical evidence points to business improving since then," Bergin said. "The amount of sales taxes collected in the last quarter we looked at exceeds amount of sales taxes before the ban. Even bars and taverns are doing better now than before the ban."
In the quarter before the statewide ban took effect, sales were $169.3 million. In the June 2004 to August 2004 period sales were $176.8 million, according to the analysis, first reported in the New York Post.
Still, the tax department said the figures "should be interpreted with caution and not be attributed solely to the effects of the smoking ban."
New York City bars and taverns fared better than the rest of the state, seeing growth in four straight quarters after two quarters of falling sales following the city's enactment of its smoking ban in March 2003. From March 2004 to May 2004, business jumped 4.9 percent. Sales increased 3.8 percent in last year's June to August time frame, the tax department said.
The report looked at businesses that filed sales tax returns for every quarter of the 5 1/2 years included in the study, Bergin said.
Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, said that factor skewed the data by eliminating businesses that may have failed because of the ban.
He also said the report ignored price increases and the fact that alcohol sales generally rise along with retail sales in general. And he said the positive numbers in New York City masked a sales drop of around two percent in the rest of the state since the ban took effect.
"This is a worthless analysis," Wexler said. "It leaves out most severely impacted businesses but includes the people who were the least hurt. It totally undermines the entire report."
"We're just looking at the numbers that came in," Bergin said, noting there are a number of reasons why a business may have closed. "We can't fine tune the data to that degree."
The state law banned smoking in bars and restaurants with seating for fewer than 50 patrons, Off-Track Betting parlors, bowling alleys, billiards parlors and company cars.
Full-service and limited-service restaurants were included in the survey of 9,946 businesses statewide, but their data were reported separately.
Full service restaurants showed even greater growth than the bars and taverns. Sales figures for those businesses rose 0.5 to 4.2 percent in each of the five quarters since the statewide smoking ban started. Limited-service restaurants' sales rose 3.5 to 14.3 percent in each of those quarters.
Press - April 29, 2005
Court upholds ban on Internet cigarette sales
ALBANY, N.Y. -- A ruling Thursday by the state's highest court upholding New York's ban on Internet cigarette sales retains the power of a governor to limit public review of bills before they are rushed to a vote.
"Messages of necessity" can be issued by the governor and are intended to enact emergency measures without waiting the minimum three days for lawmakers and the public to read what the bills contain.
"It gets abused by the governor and the Legislature when they want to ram through agreements they don't want anyone to know about," said Blair Horner of the New York Public Interest Research Group. "Abuse of the message of necessity is bad for the public because lawmakers don't know what they are voting on and the public, through the media, or on its own, or lobbyists can't possibly plow through the bills that are still warm from the copier" as they are voted on.
Gov. George Pataki and legislative leaders this year have tried to avoid messages of necessity. They each said they wanted to limit the rushed-votes as part of efforts to provide greater openness to Albany.
Thursday's ruling advised the governor to make wise and limited use of messages of necessity.
Seneca Indian businessman Scott Maybee had asserted that state lawmakers passed a ban on Internet cigarette sales in 2000 improperly when, acting on a request by Pataki, they skipped a three-day waiting period for voting on legislation.
Maybee asserted that since the governor stated no reason in his message to immediately pass the bill, it violated the state constitution.
Journal News - April 22, 2005
Bar to sue over smoking ban
By Jane Lerner
MOUNT IVY — A bar owner who has been repeatedly cited for violating Rockland's indoor smoking ban has filed a notice in court that he intends to sue the county for $27.5 million for violating his civil rights.
Frank Watkins, owner of the Mount Ivy Pub, said the smoking ban that went into effect in July 2003 interfered with his right to make a living.
"What gives the county the right to tell me how to run my business?" he asked.
A spokeswoman for Rockland County Executive C. Scott Vanderhoef yesterday said the county would not comment on the legal action because the actual complaint had not been received.
Watkins, who has owned the Mount Ivy Pub for 15 years, said the smoking ban had hurt his business. But he said he was taking the county to court over the law because he thought it was unfair.
"There are good laws and there are bad laws," he said as he sat in the dining area of his bar Wednesday evening. "Laws that say you can't sell beer to a 13-year-old — now that's a good law. Laws like the ones they used to have in Alabama that certain people had to ride in the back of the bus — that was a bad law. This smoking law is a bad law."
Patrons at his bar — many of whom were openly smoking despite numerous No Smoking signs — cheered when Watkins announced he had filed suit against the county.
"Way to go, Frank," exclaimed Laurie Ranieri, a Haverstraw nonsmoker who was at the bar with a friend who was smoking. "It's your bar, you should be able to run it the way you want to."
Garnerville resident Bob Schreiner, who was having a cigarette at the bar, said Watkins should be allowed to put a notice on the door that people inside were smoking.
"That way, if you don't want to be exposed to smoke, you don't have to come in," he said.
Watkins is one of a handful of Rockland bar and restaurant owners who have been cited by the Board of Health for violating the smoking ban. He has paid about $1,500 in fines.
"The county's position is as unconscionable as it is illogical," said Watkins' lawyer, Dennis Lynch of Nyack. "The county gets millions of dollars in tax revenue from cigarettes, then it goes after the people who allow cigarettes to be consumed. What's up with that?"
The county had planned to hold a hearing next Thursday on charges that he had again violated the regulation by allowing customers to smoke in his bar.
That hearing has been postponed because of the lawsuit, Lynch said yesterday.
County officials worry that the legal action will make it harder to take action against restaurant owners.
"It looks like the idea here is to have a chilling effect on enforcement," Assistant County Attorney Thomas Walsh said at Wednesday's meeting of the Board of Health.
David Martin, executive director of the American Lung Association of the Hudson Valley, which lobbied for passage of the indoor smoking ban, said he's confident the rule will stand up in court.
"Anybody can file a lawsuit," Martin said yesterday. "That doesn't mean it has merit."
Many people throughout the state have benefited from the smoking ban, he said.
"Second-hand smoke is a proven health threat," Martin said. "The state and counties have a right to legislate to protect the public from a very real threat."
Press - Week of April 20, 2005
THE VANISHING FRENCHMAN
A study just published in Crain's reveals that, since 2000, the number of foreign tourists visiting NYC has dropped dramatically. When it comes to a head count, foreign tourists have been replaced by domestic ones, and Americans aren't so free with the cash, especially these days. As a result, the city is losing an estimated $1 billion a year.
The reasons cited by Crain's are obvious and banal—"Oh, they're afraid to come here after 9/11," and, "Oh, New York is just too expensive."
But there's an even simpler reason to explain why they're avoiding us, one that Crain's won't consider: New York isn't New York anymore. They'd get a better taste of the New York they're looking for by going to Philly, or that casino in Vegas.
Here's just one example. Tourists will find all the chain stores and restaurants in Manhattan they'd find most anywhere else—but in those other places, they'd be allowed to smoke. It's a bigger issue than most people realize. Why come here and go to the smoke-free Olive Garden on Broadway, when they can have exactly the same experience at one of the many fine Olive Gardens in Topeka? Not only would it be cheaper in Topeka, they'd still be able to light up after a meal like a civilized person in a civilized city. If you were Eurotrash, which would you prefer?
[NYC C.L.A.S.H. Note: Interesting because it mirrors our own conclusion - letter to the editor printed in the NY Post on April 21st:
IF YOU BAN IT, THEY WON'T COME
Even after taking whatever safety concerns still might linger into account, it's quite likely that one reason behind the 32 percent drop in foreign tourism ("Apple losing its 'abroad' appeal," April 18) is that the prohibitionists have succeeded in making the choice to vacation or do business in NYC prohibitive.
Just look at which foreigners are noted as particularly missing — Germans and Japanese. Both have higher rates of smoking than most countries, with 51% of Japanese men who smoke.
According to Mayor Bloomberg and the rest of the anti-smokers, smoking bans are supposed to be good for business. That "hordes" of nonsmokers will now flock to nonsmoking places. Yeah, right.
How about they take credit for "robbing" the city — and local businesses — of a portion of the $4 billion dollars lost?]
- April 20, 2005
U.S. Denied Rehearing on Tobacco Penalty
WASHINGTON - A federal appeals court on Wednesday refused to reconsider a ruling barring the government from seeking $280 billion in past profits from cigarette makers as part of its civil racketeering case against the industry.
The U.S. Court of Appeals for the D.C. Circuit dealt another setback to the government's case by rejecting a request that the full court review a February ruling by a three-judge panel that concluded the government cannot pursue past industry profits.
In a tied, 3-3 vote, the appeals court judges left standing the Feb. 4 ruling that stripped the government of its strongest penalty in the racketeering case, which charges that tobacco companies lied for decades about the dangers of smoking.
The decision leaves reversed a previous ruling by U.S. District Judge Gladys Kessler, the judge presiding over the case that went to trial in September.
In reversing Kessler, the appeals judges concluded that civil racketeering law only allows for ``forward-looking'' remedies designed to prevent future violations.
``The law that's going to be applied to this case is pretty clear right now,'' William Ohlemeyer, associate general counsel of Altria Group Inc. (MO.N), said in a telephone briefing.
Kessler said in a court order the appeals court ruling had severely constrained the government's options in obtaining remedies from cigarette makers.
The Justice Department issued a statement saying it would ``carefully review its options and make a determination in the near future as to what course of action it will pursue.''
The anti-smoking group Campaign for Tobacco Free Kids urged the Justice Department to appeal to the U.S. Supreme Court and ``continue to pursue the case aggressively.''
The appeals court decision comes as lawyers for the tobacco industry are preparing to rest their case. They have been presenting their defense for more than a month.
Justice Department lawyers are scheduled to begin presenting a separate case outlining what remedies should be imposed on the industry if Kessler concludes they violated the law.
The department modified its case for remedies shortly after the appeals court's first ruling in the matter. Among the ideas that will be raised by its witnesses are a court-appointed monitor to oversee the companies' future conduct and forcing the industry to fund billions of dollars worth of smoking cessation programs.
Targeted in the lawsuit, filed in 1999, are Altria and its Philip Morris USA unit; Loews Corp.'s (LTR.N) Lorillard Tobacco unit, which has a tracking stock, Carolina Group (CG.N); Vector Group Ltd's (VGR.N) Liggett Group; Reynolds American Inc.'s (RAI.N) R.J. Reynolds Tobacco unit and British American Tobacco Plc (BATS.L) unit British American Tobacco Investments Ltd.
The tobacco companies deny they illegally conspired to promote smoking and say the government has no grounds to pursue them after they drastically overhauled marketing practices as a result of a 1998 settlement with state attorneys general.
Newsday - April 18, 2005
Indian negotiations could make casinos smoke-free
By Mark Johnson
ALBANY, N.Y. -- Limiting smoking in Indian-run casinos will be a part of Gov. George Pataki's renegotiations of pending land claim settlements with four tribes, a governor's spokesman said Monday.
Still, anti-smoking groups want the governor to go one step further and make sure the casinos abide by the 2003 state law banning smoking in longtime smoking refuges: bars and restaurants with seating for fewer than 50 patrons, Off-Track Betting parlors, bowling alleys, billiards parlors and company cars.
That law has not applied to the state's Indian-run casinos, since they were considered sovereign territory.
"We want to ensure all workers in New York state have equal protection from secondhand smoke," said Paul Andrew Hartman, director of advocacy for the American Heart Association. "Any employees who work at these venues are putting themselves at risk. And it's an unnecessary risk."
Pataki spokesman Todd Alhart said the administration is continuing to examine smoking in casinos.
"We are continuing to review the issue, but the gaming compacts under discussion would provide for designated smoke-free areas in the casinos," Alhart said.
On Friday, Pataki said he was withdrawing the land claim settlements with the Cayuga Indian Nation of New York, the Seneca-Cayuga Tribe of Oklahoma, the Oneida Tribe of Indians of Wisconsin and the Stockbridge-Munsee Band of Mohican Indians. The move followed last month's ruling by the U.S. Supreme Court that an Indian tribe could not expand its sovereign territory simply by reacquiring former reservation lands and declaring them sovereign and tax-exempt.
The court decision was a victory for the Oneida County city of Sherrill, which has been locked in a fight with the Oneida Indian Nation of New York over unpaid taxes.
"We think this should be negotiated now while the Indians still want something," said Russell Sciandra of the Center for a Tobacco Free New York during an Assembly hearing on the land claim settlements Monday. "I can't imagine they'd want to negotiate after they already have the casinos. We're very skeptical about the idea of postponing negotiations."
Calls to the four tribes were not immediately returned.
Alhart said enforcement of the state's smoking ban at the Oneida-owned Turning Stone Casino in Verona, which is now considered to be operating on state land after the Sherrill decision, is an "issue still under discussion."
Press - April 18, 2005
Indian negotiations could make casinos smoke-free
ALBANY, N.Y. A governor's spokesman says limiting smoking in Indian-run casinos will be a part of Governor Pataki's re-negotiations of pending land claim settlements with four tribes.
Still, anti-smoking groups want the governor to go one step further and make sure the casinos abide by the 2003 state law banning smoking in public buildings including restaurants and bars.
That law has not applied to the state's Indian-run casinos, since they were considered sovereign territory.
Pataki spokesman Todd Alhart said the administration is continuing to examine smoking in casinos.
On Friday, Pataki said he was withdrawing the land claim settlements with the Cayuga Indian Nation of New York, the Seneca-Cayuga Tribe of Oklahoma, the Oneida Tribe of Indians of Wisconsin and the Stockbridge-Munsee Band of Mohican Indians. The move followed last month's ruling by the U-S Supreme Court that an Indian tribe could not expand its sovereign territory simply by reacquiring former reservation lands and declaring them sovereign and tax-exempt.
News - April 6, 2005
Regulations in works to collect taxes on Indian sales of cigarettes, gas
By Tom Precious
ALBANY - The state tax commissioner said Tuesday his agency is moving ahead with regulations to collect taxes on Indian sales of cigarettes and gasoline, a move the head of the Seneca Nation believes will never happen.
Tax Commissioner Andrew S. Eristoff told lawmakers his proposed regulations mirror a similar rule his agency killed last year over the opposition of the State Legislature, health groups and non-Indian retailers. The new rules, which have not yet been publicly released, are also similar to legislation passed last week as part of the state budget, ordering Eristoff's agency to collect what lawmakers believe is at least $400 million a year in taxes from sales by Indian smoke and gasoline shops and Internet sites. The new budget provision is the third straight year that the Legislature has ordered Gov. George E. Pataki to collect the tax - an edict the governor, citing Indian sovereignty, has ignored.
In January, Eristoff surprised both sides in the debate by saying his agency was drafting new rules to collect taxes at the wholesale level before the products reach Indian retailers. Some lobbyists saw the move as a negotiating tactic by the Pataki administration in trying to deal with ongoing casino and land claims issues.
On Tuesday, in a hearing on Indian casino and taxation issues, Eristoff said his agency has completed drafting the rules and that they are now under review. It is not clear when they might take effect.
Seneca President Barry E. Snyder Sr., who skipped his planned testimony before the legislative panel on Tuesday, said he believes Pataki will not try to collect the taxes.
"If he's a man of his word, we should have no problem," Snyder said, noting Pataki's longtime public vow not to upset relations with Indian tribes by going after the taxes that Native American leaders say they don't have to pay under long-standing treaty rights.
Snyder said he hopes to meet with Pataki soon to discuss various issues, including the tribe's possible interest in a Catskills casino and the taxation dispute.
"He's held our sovereignty very close. Probably no other governor has recognized as much that the Seneca Nation is a sovereign nation," Snyder said.
Newsday - April 4, 2005
Rally to back tobacco bill
Tobacco control advocates are planning a rally on Monday afternoon outside the Nassau Legislature to support a bill that would increase the county's legal age to buy cigarettes from 18 to 19.
The Nassau bill was introduced last October by Legis. Jeff Toback (D-Oceanside) and Legis. Diane Yatauro (D-Glen Cove). Organizers said they hope the rally will prompt lawmakers to speed action on the bill. The American Cancer Society, other tobacco control advocates and high school students are expected to be at the 1:30 p.m. gathering in Mineola.
Similar legislation to raise the legal age to buy cigarettes to 19 was adopted in Suffolk County earlier this year. That bill is to become law on May 1.
Buffalo News - April 4, 2005
Internet cigarette sales take hit
Retailers on Cattaraugus Indian Reservation feeling impact as credit card companies stop participating in transactions
By Lou Michel
The nation's biggest Internet cigarette sales industry is showing signs of decline following concerted pressure by several states to shut off tobacco customer access to credit cards.
Several retailers on the Cattaraugus Indian Reservation who operate Internet smoke shops selling tax-free cigarettes are laying off workers, closing or attempting to retool their operations.
The decline follows credit card companies' decisions to cooperate with law enforcement authorities from across the nation. The credit card companies no longer are participating in Internet tobacco transactions, following a meeting last month with law enforcement officials who explained that Internet tobacco sales violate several laws.
In addition, Seneca sellers face a barrage of threatening letters and, in some cases, subpoenas aimed at recovering unpaid tax revenues.
Seneca Maxine Jimerson's response was to sell her lucrative online business.
"They were harassing me. They sent me a subpoena asking me to forward all of my records, lists of employees, customers' names and who owned the business," Jimerson said of authorities in several states. "The letters kept getting more and more aggressive listing the laws we were breaking."
She received the subpoena from Indiana and letters from tax officials in New York City, Pennsylvania and Washington State and has received many other notices in the past from tax officials around the country.
"I don't feel I have to comply with them," she said. "I'm on an Indian reservation, and they don't have rights on the reservation."
No exact figures
It is not easy to get exact figures on how many people were laid off or how many businesses closed, because many of these Internet businesses are mom-and-pop operations in homes with family members and a handful of employees.
But with the sale of Jimerson's business to another Native American, it is estimated that as many as 80 workers lost their jobs, according to Gregg Prockton, who serves as Jimerson's chief operating officer.
Jimerson, who still runs a smoke shop on the Allegany Reservation, was one of the biggest online merchants from the Seneca Nation, which comprises one of the largest blocs of Web cigarette sellers.
For years, New York State has gone back and forth on the issue of collecting taxes on Native American cigarette and gasoline sales to non-Indians.
In 1997, Gov. George E. Pataki backed away from attempts to collect taxes following violent Native American protests. Three times the State Legislature has adopted laws ordering the collection of taxes, including a new measure in the just-adopted state budget.
A lot of money is at stake.
More than 90 percent of the $347.5 million worth of cigarettes and other tobacco products sold by Senecas in 2003 was generated through telephone and Internet transactions.
Senecas have a huge price edge over non-Indian retailers when it comes to selling untaxed cigarettes for as low as $9 a carton - about $15 less than cigarettes sold off reservation lands.
Question of sovereignty
State governments claim that the Internet crackdown is about stopping sales of cigarettes to minors, halting the flow of black market cigarette profits to criminal enterprises and complying with laws governing the sale of tobacco products.
Senecas see different issues.
They say it is all about collecting billions of dollars in lost tax revenue that, if successful, will come at the expense of the Seneca Nation's sovereignty, which they insist makes them immune to state taxes.
But Seneca President Barry E. Snyder Sr. has said the Internet sales dispute is outside the realm of native sovereignty rights - a stance that has upset the tribe's online retailers.
By failing to take up their cause, the merchants say it is only a matter of time before state government once again attempts to force collection of sales taxes on tobacco and gasoline sales involving customers who drive onto Seneca reservations.
"We are a sovereign nation, and the nation has to back us up. It can't say you guys are out on your own," said Suzanne Smith, who works at a family-owned Internet smoke shop. "The nation has to draw the line."
Snyder, at a Tribal Council meeting last week, said he plans to set up a meeting with State Attorney General Eliot L. Spitzer to discuss the credit card ban.
But if the state succeeds in shutting down Internet businesses, Smith says, it will destroy the economic progress Senecas have made in recent years and hurt the overall Western New York economy as Internet workers lose their jobs.
Senecas estimate their Internet tobacco businesses employ as many as 1,500 people, many of them non-Indians, though that number is now dropping because of the credit card prohibition. They note these jobs pay above minimum wage, sometimes as much as $10 or more an hour.
"Most of us are just small businesses trying to make a dollar, and New York State is coming in and telling us they want the business and we can't have it," said 22-year-old Joseph Campbell, a shipping clerk at an Internet smoke shop. "I'll probably go to Tops or Wal-Mart looking for work."
In the fight to stay in business, Irene and Gerald "Chief" Jimerson say they have diversified and now are selling pet food and bottled Native American water for walk-in sales at their shop on Richardson Road.
An older couple, they opened their business in 1999 to create an economic opportunity for their younger son, who had not gone to college.
"A small amount of our business comes over the Internet," Irene Jimerson said. "We're here in our shop seven days a week, 12 hours a day. It's not an easy life. I don't believe the government should be involved in anyone's livelihood."
A different strategy
Other Seneca Internet sellers say they are attempting to find ways around the credit card ban by making use of money orders and financial services that guarantee checks written by customers or verify that there is enough money in the customers' checking accounts to cover the purchases.
But this strategy has generated concern among customers, according to Smith, who says some of her customers have expressed reluctance in switching over to checks and banks.
"Customers have asked if authorities could come in and see our business records. We tell them no one sees our records, and the reason we say that is we are a sovereign nation," Smith said.
For buyers who switch over to money orders or checks, the state considers that an illegal practice as well, according to Marc Viollette, a spokesman for Spitzer.
"The payment mechanism is irrelevant. It's an illegal act," Viollette said. He declined to say what legal steps Spitzer is taking to ensure compliance of halting Internet tobacco sales.
And while some Native Americans believe they are being racially discriminated against, Viollette says the efforts against tobacco credit card sales by state attorneys general are not only nationwide, but also aimed at blocking cigarette bootleggers abroad.
"This extends beyond U.S. borders. In October we seized a planeload of cigarettes at (Kennedy) Airport that came in from Switzerland," he said.
Attorney Joseph Crangle, who represents Seneca retailers on tax issues, said that the Seneca's online businesses will ultimately "persevere and succeed."
He blamed convenience store owners, in part, for the push to deprive Senecas of the Internet business they have built up in recent years.
When told that it appeared the credit card ban was shutting down Internet sales of cigarettes, James Calvin, president of the New York Association of Convenience Stores, welcomed the development.
"It's encouraging that there is movement toward the level playing field we have been seeking all these years," Calvin said. "American society simply won't accept sales of cigarettes without proper taxation and age verification."
Convenience store operators, Calvin added, want state law requiring collection of taxes at reservation stores enforced.
Wire - March 30, 2005
Federal District Court Dismisses MSA Challenge
RICHMOND, Va --A judge in the U.S. District Court for the Northern District of California has granted the defendants' motion to dismiss a suit that challenged the validity of the Master Settlement Agreement (MSA) between 46 states and several major cigarette manufacturers.
The court disagreed with the plaintiff's allegation that the agreement, and the related escrow statutes, stifled competition and prevented cigarette companies who are not parties to the agreement from growing. The suit named the attorney general of California, Philip Morris USA and other cigarette manufacturers as the defendants. This is the latest in a string of unsuccessful challenges to the Master Settlement Agreement at the state and federal level.
"Contrary to the plaintiff's allegations, competition in the tobacco industry has increased in the years following the signing of the Master Settlement Agreement," said Denise Keane, Philip Morris USA senior vice president and general counsel.
Since the agreement was signed in 1998, the competitive nature of the marketplace has allowed new tobacco manufacturers to gain market share, including taking share from manufacturers who participated in the settlement.
"We believe the judge's opinion is consistent with a long line of cases concluding that the MSA and its implementing laws are lawful and we believe the opinion will stand as an important precedent in these matters," said Keane.
Times Herald - March 25, 2005
110 jobs snuffed out in Vandalia
By George Nianiatus
As a result of a nationwide deal to crack down on Internet cigarette sales, Ron’s Smoke Shop in Vandalia is in the process of trimming 110 employees from its online and call center operations.
Gregg Prockton, chief operating officer at Ron’s Smoke Shop, said the initial cutback phase has begun and would “continue over the course of a couple weeks.”
Ron’s Smoke Shop owner Maxine Jimerson, a Seneca Nation member, could not be reached for comment.
The Vandalia business and several others on the Seneca Nation reservations in Western New York have been selling tax-free cigarettes, tobacco products and gasoline under their sovereign nation status for several years. A ongoing issue has been New York state trying to collect sales-tax revenue from Indian retailers.
The layoff will leave 45 to 50 employees at Ron’s Smoke Shop to operate
a nearby convenience store, Mr. Prockton said.
Ron’s Smoke Shop began six years with three employees and ultimately grew to 160, Mr. Prockton said. Its employment growth also led to several building expansions over that time frame.
The timing of the crackdown on Internet cigarette sales comes when Ron’s Smoke Shop also is in the process of launching a new business to diversify the company.
Mr. Prockton said Ms. Jimerson is now launching the First American Candle Co., a home party division. “We have a manufacturer” which is producing the candles, he said.
The employee cutback at Ron’s Smoke Shop follows last week’s agreement by major credit card companies to refuse to participate in Internet cigarette sales nationwide under a government agreement. The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, the credit card companies and state attorneys general agreed to work together to prevent the unchecked use of credit cards to buy cigarettes over the Internet across state lines.
The immediate result is virtually all credit card companies will no longer participate with Web sites based in the U.S. and abroad that sell cigarettes and tobacco products in every state.
States reportedly lose more than $1 billion a year in tax revenue from Internet tobacco sales, according to information provided by the U.S. Bureau of Alcohol, Tobacco and Firearms.
For years, there’s been a push to collect excise taxes on cigarettes
sold by Seneca-owned businesses, said Mr. Prockton.
The refusal by major credit card companies to participate in Internet cigarette sales is something that will affect more than Ron’s Smoke Shop, said Mr. Prockton. He estimated that 1,000 to 1,500 employees at Seneca-owned businesses could be adversely affected.
Seneca Nation President Barry Snyder did not return messages left by The Times Herald for comment on future impact to the Nation.
One of the largest sellers of cigarettes on the Internet is the Seneca Nation in Western New York. It sold $347.5 million worth of tobacco products in 2003, more than 90 percent by telephone or Internet, according to federal agencies. Their untaxed cigarettes sell for as little as $9 a carton, about $15 less than non-Indian retailers.
In September, the Senecas agreed with state officials to label packages so that the person receiving them must be of legal age to purchase tobacco products. The policy began March 17.
New York’s ban on Internet cigarette sales was the first in the U.S. But opponents argued the law wasn’t about minors smoking, but about state tax revenue. The state’s tax on a pack of cigarettes is $1.50, pushing the total price to around $5. Lower prices are offered on the Internet and in mail-order catalogs by tax-exempt Indian merchants and retailers in states with lower taxes.
Meanwhile, some of those workers being furloughed at Ron’s Smoke Shop
may be finding employment elsewhere.
“Injun Enterprises will be absorbing some of the displaced workers,” Mr. Prockton said.
Scott Maybee, owner of 100-employee Injun Enterprises in Salamanca, said he has talked with officials at Ron’s Smoke Shop about hiring some of its furloughed staff. “She’s shutting down her (online and call center) business so we’ve been interviewing for some positions.”
Mr. Maybee is looking to fill 25 positions, mainly in his call center. Although his call center handles cigarette sales, the operation does contract and subcontract work for other companies throughout the U.S. that need additional call center support.
“It’s essentially a call center for hire but we also do marketing and human resources outsourcing” for other companies, Mr. Maybee said.
Injun Enterprises relocated from Irving to Salamanca nearly five months ago because of better infrastructure and a strong pool of potential employees. Mr. Maybe said, “We’re always looking to find good-quality people” to hire.
In his view, “Salamanca is on its way to sparking development,” Mr. Maybee said.
Spectator - March 21, 2005
Hookah Bar Should Be Smokin' By April
Kasbah Rouge Replacing Caffe Taci On Broadway at 110th
by Josh Hudelson
If the good-luck Hamsa symbols lining the walls are any indication, the restaurant and hookah bar that is replacing Caffe Taci should have a takeoff as smooth as its apple-flavored tobacco.
Kasbah Rouge is expected to open at 110th Street and Broadway before the end of the month. The bar will offer both Middle-Eastern cuisine and a chance for patrons to smoke hookah, a centuries-old Middle Eastern water pipe filled with fruit-flavored tobacco.
Gianfranco Langatta, the construction manager, said he designed the bar to be a “classic, elegant, Middle Eastern room” in which patrons could recline and relax amid sumptuous foods and flavored smoke.
A hookah bar was the natural choice for Kasbah Rouge’s co-owner, Marcos Jacob, who has several other Middle Eastern restaurants to his name.
“It’s my background—I’m Egyptian. It’s the thing we do back home,” he said.
But against the backdrop of New York’s smoking ban, the legality of hookah bars is a burning issue.
According to the New York City Department of Health Web site, tobacco bars must make at least 10 percent of their income from tobacco sales and their sale of food must be “incidental” to the sale of alcohol. This poses something of a dilemma for Muslim bar owners who don’t want to have a wet bar, not to mention those who can’t keep up with ratios.
But for all the regulations, communication between the city and business owners has been about as effective as a smoke signal. The Department of Health did not answer numerous inquiries about how it is dealing with hookah establishments, and those bar owners who don’t know the law have been relying purely on intuition to keep business alive and puffing.
“It’s not really an issue with the hookah as much as with the cigarettes,” said Jacob, who claims that nicotine is the true target of the smoking ban. He added, “We always use smoke filters.”
Jacob’s other Manhattan restaurants—Le Souk on Avenue B and Falucka on Bleecker Street—both serve hookah and have fared well over the past few years. But the same can’t be said of all such bars.
“I don’t think this law is very effective,” Mahmoud Damaa, the owner of Sahara East, a hookah bar in the East Village, said. “It did run a lot of businesses to Jersey.”
Damaa said that he is thankful that the smoking ban hasn’t turned his 14-year-old, 60-flavor bar into thin air, but like Jacob, Damaa isn’t certain what he’s doing right.
“Hookah is not really tobacco,” he said, explaining that, percent-wise, the tobacco content is negligible compared with the flavoring. “People eat cherries, we smoke cherries. People eat peaches, we smoke peaches.”
But if it seems like opening a hookah bar is all smoke and mirrors, be forewarned—success might be a cultural thing.
“A lot of people try to copy what we do,” said Damaa, himself an Egyptian native. “The hookah, my friend, is like sushi.”
Kasbah Rouge promises it won’t leave patrons waiting to inhale. Smoking aside, Jacob expects the main attraction to be the Middle-Eastern cuisine, prepared by a “three-star chef.”
“He is, as we speak, in Morocco,” said Jacob, who sent the chef on a mission to bring back new flavors.
“I know that Columbia has highly diverse students from everywhere, so that’s what we’re catering to.”
Times - March 21, 2005
Both sides are fuming
By Mark Perkiss
Wendy Guerra of South Brunswick says she deserves the right to go to a restaurant, bar or nightclub of her choice without having to worry that a nearby smoker might trigger a potentially fatal asthma attack.
On the other hand, Larry Williams of Trenton says he and other smokers deserve the right to light up while they sit and drink in their favorite bar instead of being forced to go outside.
The two typify the conflict of rights and freedoms with which lawmakers are grappling as they consider a proposed law barring smoking in indoor workplaces, including restaurants, bars, casinos and private clubs, such as American Legion or Veterans of Foreign Wars posts.
"I'm an ex-smoker so I understand their point of view, but my health is more important," said Guerra, 54, who suffers from severe asthma. "I can't go to any restaurant I want to because they might allow smoking. I can't go to bars or nightclubs or shows.
"I've had to leave parties of family occasions at restaurants because of smoking," she said. "Why should I have to suffer like that because someone else wants to smoke? It's not fair."
Williams, 49, a regular at the Ivy Inn, a Princeton Borough bar that draws many smokers, takes the opposite view.
"I have rights and this law would take those away from me," he said. "I respect people who don't smoke and I try not to smoke near them. They should respect me. If you don't want to smoke or smell smoke, don't go where people are smoking, but give us somewhere to go. We have rights, too."
Backing the legislation are the American Cancer Society, various health organizations and Fred Jacobs, the commissioner of the state Department of Health and Senior Services.
Opposing the measure are Atlantic City casinos, restaurant and tavern owners and veterans, who say American Legion and VFW halls should be exempt from the legislation.
"I served my country and I should be able to smoke while I have my drink in a private club that I pay to be a member of," said Gary Lashutka, 47 of Lawrence as he sat in the VFW hall on Cherry Tree Lane in Lawrence with a beer in one hand and a cigarette in the other.
"If the members here want to have a vote and ban smoking, that's OK because we'll be making the decision ourselves," he said.
Sen. John Adler, D-Cherry Hill, a prime sponsor of the legislation, says the health risks of smoking, particularly second-hand smoke, are his motivation for the bill.
"We have the opportunity through this bill to save the lives of hundreds and hundreds of New Jersey residents by removing their exposure to second-hand smoke in the workplace," he told the Senate Health, Human Services and Senior Citizens Committee, which last week unanimously approved the bill.
No date has been set for a vote by the full Senate, but Adler said the bill could become law by the end of the year. A similar bill has been introduced in the Assembly but no hearings have been held.
Some smokers say the bill has some merits but needs to be limited.
"I can see making restaurants nonsmoking," said Adam Leverish, 22, of West Windsor as he smoked a cigarette at McGuinn's Place, a tavern on Business Route 1 in Lawrence. "I don't smoke when I go out to eat. But when I come here, I want to be able to smoke while I have a drink."
"The government shouldn't be getting involved here," he said. "People have a right to kill themselves if they want. If someone doesn't want to be exposed to smoke they should go somewhere else and not come here."
Kelly Malone, a bartender at McGuinn's, said that while she is concerned about the effects of second-hand smoke from working at the establishment, she has a more practical worry.
"If this gets passed and becomes law, am I the one who will have to enforce it?" she asked. "Will I have to go up to someone who's smoking and tell them to put it out?"
Guerra says she is hoping the proposed law will expand her horizons. "I can't go to shows in night clubs. I can't go to comedy clubs. I have to check with restaurants to see if they allow smoking, all because of my health condition," she said. "This law would give me a lot more options than I have now.
For some, the rights of nonsmokers are paramount.
"I don't care about smokers' rights," said LuAnne Nutt, 48, of Hamilton. "I'm more concerned about how what they do is affecting my health. My health is more important."
Williams says he understands that perspective. "I know that people who don't smoke want to relax and have a good time," he said. "That's what smokers want too. Give us a place we can go and we won't be hurting anyone."
Chronicle (Duke University) - March 21, 2005
Groups aim to cut online cigarette sales
by Dan Englander
Several major credit card companies, attorneys general from across the country and the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives are teaming up to curb online cigarette sales.
The majority of online tobacco retailers are violating at least one state or federal law, according to the groups. Online tobacco retailers often ignore state age verification laws and laws prohibiting direct shipment of cigarettes to consumers. And they often fail to pay state or federal taxes and violate the federal Jenkins Act, which requires that cigarette sales that cross state lines—including online sales—be reported to the buyer’s home state.
Also, cigarette sales made by foreign companies over the Internet often violate federal smuggling, cigarette labeling, money laundering and contraband product laws.
In the past week, regulatory groups have enlisted the help of credit card companies to enforce these long-neglected laws.
According to an ATF statement released Thursday, all credit card companies have policies in place that prohibit using their cards for illegal transactions.
In teaming up with the credit card companies, ATF and the National Association of Attorneys General are hoping to adopt policies to prohibit the use of credit cards for online cigarette sales and take action against retailers that accept them.
“We are taking a multifaceted, multijurisdictional approach to halting illegal Internet cigarette sales,” NAAG President and Vermont Attorney General William Sorrell said in a statement. “We believe this is the most effective and efficient strategy to enforce state and federal laws regulating online sales.”
Other opponents of online cigarette sales expressed similar concerns with Internet sales.
Jeff Lenard, a spokesperson for the National Association of Convenience Stores, said online cigarette sales “may actually encourage smoking [because] you take away the convenience store, where there is face-to-face ID check. I think that anyone who thinks that kids can’t order cigarettes over the Internet is deluding themselves.”
Several online tobacco retailers could not be reached for comment.
Some states, like New York, Ohio and Pennsylvania, are taking a different approach by retroactively collecting back taxes from people who have purchased cigarettes online without paying state taxes.
Some officials are also concerned with public health risks associated with cheaper online tobacco sales. “It is well established that lower cigarette prices lead to increased smoking rates, which in turn lead to more smoking-related illnesses and deaths,” according to an ATF statement.
Some supporters of the joint effort also fear that online tobacco sales might support terrorism. “ATF investigations show that millions of dollars each year in illegal sales of cigarettes are diverted to fund terrorists and criminal organizations,” said Michael Bouchard, ATF assistant director for field operations.
Norman Kjono, a board member of Forces International, a non-profit smokers’ rights group, said further enforcement of existing laws will increase illegal cigarette sales and related terrorist activity. He also disagrees with taxes that specifically target smokers.
“Creating an economic incentive for smuggling operations is a predictable outcome of further increasing discriminatory cigarette taxes,” Kjono wrote in an e-mail.
Kjono, who comes from a military family, added, “I do not appreciate the fact that my son, his cousin and their comrades in arms could become targets for terrorist bullets, as a consequence of [legislators’] apparent need to ‘target’ smokers.”
News - March 18, 2005
Senecas cry foul on stymied cigarette sales
Call ban on credit sales on the Net 'interference'
Local Seneca Nation leaders are calling Thursday's agreement between the government and credit card companies that bars cigarette smokers from buying their tobacco over the Internet with credit an "interference with commerce."
The agreement, which is effective immediately, was struck Thursday between the credit card companies, U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives and several state attorneys general, including Eliot Spitzer of New York.
It results in almost all credit card companies ceasing participation with Web sites that sell cigarettes and tobacco in every state, according to Spitzer.
The companies also agreed to take action against Internet sellers - the Senecas are among the top sellers - that authorities identify as violating state and federal laws regulating cigarette sales.
Seneca Nation leaders called the pact a clear "interference with commerce" but downplayed the notion that it violated native sovereignty rights.
"Taxation is a sovereignty issue," said Seneca Nation President Barry Snyder. "As far as Internet sales go, it's really outside of the realm of the sovereignty issue.
"We have to look at what position we have to take. We can't just throw our sovereignty around, we have to be very cautious."
However, Snyder said that doesn't mean that the tribe won't attempt to fight the measure.
"It bothers me in the sense that we're talking about commerce. We'll have to deal with it," Snyder said. "They say it's a health issue . . . that's a cover. The real issue is the state of New York is hurting and trying hard to tax more."
Sales by Seneca Nation members comprise one of the largest blocs of Internet cigarette sellers.
The nation sold $347.5 million worth of tobacco products in 2003, more than 90 percent by telephone or Internet. Untaxed Seneca Nation cigarettes sell for as little as $9 a carton, about $15 less than non-Indian retailers.
Government officials contend that it's not about taxing more so much as collecting the lost tax revenues and preventing proceeds from Internet sales from being funnelled into criminal organizations.
States lose more than $1 billion a year in tax revenue from Internet tobacco sales, according to Sheree Mixell, a spokeswoman for the ATF.
Michael Bouchard, ATF assistant director for field operations, added: "ATF investigations show that millions of dollars each year in illegal sales of cigarettes are diverted to fund terrorists and criminal organizations."
The effort is also important because enforcement has been difficult even though in many states, including New York, the Internet sale of tobacco products is illegal, officials said.
The trade undercuts traditional business operators, often avoids sales tax for states and localities, and can be a way for underage consumers to buy cigarettes and chewing tobacco before they turn 18.
Smokers can still buy cigarettes over the Internet, but they would have to use checks, money orders or some other payment system that would likely delay receipt in the Internet business built on speed. Operators of cigarette Web sites didn't immediately respond to requests for comment.
Attorneys general from California, Oregon, Colorado, Idaho, Louisiana, Maryland, Pennsylvania, Vermont and Wisconsin were also involved in the negotiations.
In September, the Senecas agreed with state officials to label packages so that the person receiving them must be of legal age to purchase tobacco products. Ironically, that policy also began Thursday.
New York's ban on Internet cigarette sales was the first in the nation. But opponents argued the law wasn't about minors smoking, but about state tax revenue. The state's tax on a pack of cigarettes is $1.50, pushing the total price to around $5.
Lower prices are offered on the Internet and in mail-order catalogs by tax-exempt Indian merchants and retailers in states with lower taxes.
In January, a federal judge tossed out racketeering charges against a group of online cigarette sellers. New York City had sued 16 cigarette Web sites to require taxes be paid on Internet sales. The city, which estimates it loses as much as $100 million a year because of the unpaid cigarette sales taxes, continues to seek to recover $15 million.
50 WWTI - March 18, 2005
BARS IN JEFFERSON, ST. LAWRENCE COUNTY RECEIVE SMOKING BAN WAIVERS
Two local bars, one in Jefferson and one in St. Lawrence County, have been granted smoking ban waivers.
Aunt Donna And Uncle Bill’s Tavern in Adams, and Jeremiah’s Tavern in Norwood have been granted smoking ban waivers by the New York State Department of Health.
This is the ninth waiver granted to a Jefferson County bar and the fifth for a St. Lawrence County bar.
Press - March 18, 2005
Taverns lose smoking-ban fight
Federal judge dismisses group's challenge of law
By Michael Gormley
ALBANY -- A federal court on Thursday rejected an attempt by tavern owners to gut the state's indoor smoking ban.
The Empire State Restaurant and Tavern Association had fought the 2003 provisions of the state's Clean Indoor Air Act, which banned smoking in most public businesses unless a waiver was warranted because of lost business.
U.S. District Judge Lawrence Kahn, however, dismissed the group's challenge to the law as well as its challenge to the waiver system.
The law allows state and county health officials to rule on whether financial hardship of a business can be blamed on the ban.
Greg MacBlane, owner of Charley's Tavern in Johnson City, said he was hoping the law would be ruled unconstitutional.
"I've exhausted myself complaining about it," MacBlane said.
The law has hurt him in several ways: His utility bill is up because people keep opening and closing his door to go outside to smoke, his business has declined and he's had to spend money for a back porch for his smokers.
The Tavern Association's attorney, Kevin T. Mulhearn of Orangeburg, said the criteria are too vague and interpreted differently in counties. For example, he said some counties are refusing to grant any waivers at all, saying that is their interpretation of the law.
Charles Quackenbush, the attorney on the case for state Attorney General Eliot Spitzer, said that if the tavern owners' group won, then the law could have been struck down.
"This is clearly a victory for public health," said Spitzer spokesman Marc Violette.
Steve Griesinger, owner of The Galley, a tavern in Endwell, said he enjoys the health benefit of not being exposed to second- hand smoke.
While Griesinger initially didn't like the law because it was vague and didn't give owners enough time to adjust, he said he's moved on.
Griesinger said he's improved his menu, which is helping to draw more of a family crowd to his establishment. But not everyone has that opinion.
"This law does continue to cause hardship for people," said Scott Wexler, executive director of the Restaurant and Tavern Association. "We lost because the law says they 'may' grant waivers rather than they 'shall' grant waivers."
"We don't like this law. We want this law changed," he said.
However, no decision has been made on whether to appeal the case in federal courts, move the effort to state courts, or to renew lobbying of the Legislature to alter the law.
"There is no evidence of hardship that is big enough to show up in any kind of statistic and, just walking around, I don't observe taverns being shuttered," said Russell Sciandra of the Center for a Tobacco Free New York. "It's time for the Empire State Restaurant and Tavern Association ... to live with this law and figure out how they are going to exploit the vast new market of nonsmokers."
The 2003 measure allowed waivers to the smoking ban for bars, restaurants and other businesses that 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.
Press - March 18, 2005
Deal Aims to Prevent Web Cigarette Sales
ALBANY, N.Y. (AP) -- Major credit card companies will refuse to participate in Internet sales of cigarettes nationwide under a government agreement made Thursday.
The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, the companies and state attorneys general agreed to work together to prevent the long unchecked use of credit cards to buy cigarettes over the Internet across state lines. The agreement is effective immediately.
The result is that virtually all credit cards will no longer participate with Web sites based in the United States and abroad that sell cigarettes and tobacco products in every state, said New York Attorney General Eliot Spitzer. The card companies also agreed to take action against Internet sellers that authorities identify as violating state and federal laws regulating cigarette sales.
States lose more than $1 billion a year in tax revenue from Internet tobacco sales, said Sheree Mixell, ATF spokeswoman.
The effort is important because enforcement has been difficult, even though in many states, including New York, the Internet sale of tobacco products is illegal. The trade undercuts traditional business operators, often avoids sales tax for states and localities, and can be a way for underage consumers to buy cigarettes and chewing tobacco before they turn 18.
``By working with all the major card companies, we will severely restrict the availability of the Internet retailers to make these illegal sales,'' said Spitzer, one of the lead attorneys general in the partnership sealed Thursday.
The negotiations were also led by California Attorney General Bill Lockyer and Oregon Attorney General Hardy Myers. Attorneys general from Colorado, Idaho, Louisiana, Maryland, Pennsylvania, Vermont and Wisconsin also participated.
``ATF investigations show that millions of dollars each year in illegal sales of cigarettes are diverted to fund terrorists and criminal organizations,'' said Michael Bouchard, ATF assistant director for field operations. ``Through today's initiative, we are addressing the problem of illegal sales across multiple jurisdictions with tremendous support from the country's largest credit card companies. We welcome the help.''
Earlier this month MasterCard International issued a bulletin to its member banks on ``the need to comply with rules governing the Internet sale and shipment of tobacco.''
``MasterCard does not tolerate illegal activities of any kind,'' the statement said.
The agreement announced Thursday also includes American Express, Visa, Discover, Diners Club and the Internet financial transaction service PayPal, which is owned by eBay Inc.
Joshua Peirez, senior vice president at MasterCard, told The Associated Press the policy basically meant the card couldn't be used for Internet purchases of tobacco ``because at this point, no merchants are complying with all of these laws.''
Smokers can still buy cigarettes over the Internet, but they would have to use checks, money orders or some other payment system that would likely delay receipt in the Internet business built on speed. Operators of cigarette Web sites didn't immediately respond to requests for comment.
New York's ban on Internet cigarette sales was the first in the nation. But opponents argued the law wasn't about minors smoking, but about state tax revenue. The state's tax on a pack of cigarettes is $1.50, pushing the total price to around $5. Lower prices are offered on the Internet and in mail-order catalogs by tax-exempt Indian merchants and retailers in states with lower taxes.
In January, a federal judge tossed out racketeering charges against a group of online cigarette sellers. New York City had sued 16 cigarette Web sites to require taxes be paid on Internet sales. The city, which estimates it loses as much as $100 million a year because of the unpaid cigarette sales taxes, continues to seek to recover $15 million.
Press - March 17, 2005
Lawmakers Push for FDA Tobacco Regulation
WASHINGTON (AP) -- The Food and Drug Administration could regulate tobacco products under legislation revived by a bipartisan group of lawmakers Thursday. The proposal renews a push for tobacco oversight that was blocked last year in the House.
Under the bill, the FDA could regulate the sale, marketing and advertising of tobacco products, and could require companies to list all ingredients added to cigarettes and other forms of consumer tobacco.
The legislation was brought back in the Senate by last year's sponsors, Mike DeWine, R-Ohio, and Edward Kennedy, D-Mass., who reintroduced the bill on Thursday. The Senate approved it last year, but it died in the House.
``The detrimental effects of smoking are widely known,'' said DeWine. ``But many consumers, including smokers, are surprised to learn that no federal agency has the authority to require tobacco companies to list the ingredients that are in their products.''
The legislation would prevent the FDA from banning cigarettes; the agency also could reduce but not eliminate nicotine. The FDA would not regulate tobacco as a drug, but would create a new product category.
Last year's House sponsors, Reps. Tom Davis, R-Va., and Henry Waxman, D-Calif., were expected to introduce a similar bill.
In 2004, supporters tried to tie FDA regulation of tobacco leaf to a tobacco-buyout program within a corporate tax bill. The final tax bill included tobacco buyout provisions, but no FDA regulation, and many believed supporters had lost their best shot at oversight.
Strong resistance to the proposal has come ``solely from the House leadership and a very small number of tobacco-state legislators,'' said Matt Myers, president of the Campaign for Tobacco-Free Kids.
The FDA asserted authority over cigarettes in 1996, but the Supreme Court later ruled that only Congress can give the FDA that power.
Philip Morris USA is the only leading tobacco company in favor of FDA regulation. The company says such oversight will give the public more confidence in the industry and help the company market new tobacco products.
Other companies oppose regulation because they say it would affect their ability to compete for new customers.
Press - March 16, 2005
Senate passes bill to protect tobacco industry
By Michael Gormley
ALBANY, N.Y. -- Gov. George Pataki and the state Senate want to limit to $100 million the amount of money a tobacco company could be ordered to set aside while appealing lawsuits won by smokers or their families.
Currently, tobacco companies can be forced to set aside billions of dollars in a bond during an appeal, denying the company use of that capital for months or even years while cases play out in court. Last year in Illinois, a judge ruled Philip Morris USA Inc. must set aside $6 billion _ half of what was originally ordered _ while the company appealed a $10.1 billion class-action judgment.
Philip Morris officials said paying the full amount could drive the company to bankruptcy and force it to default on its share of the $206 billion promised over 25 years under a 1998 federal settlement with the tobacco industry. Officials from 33 states signed a friend-of-the-court brief asking the judge to reduce the bond.
Originally part of Pataki's executive budget proposal, the language approved Monday by New York's Republican-led Senate appeared in three paragraphs on page 123 of a budget bill, according to the Senate's Web site. The bill would need to be approved by the Democrat-controlled Assembly.
State Senate majority spokesman Mark Hansen and officials in other states that have proposed the limit said the massive bonds could threaten the states' ability to collect their share of the settlement. New York state and local governments got $3.7 billion under the settlement, in part as compensation for health care costs blamed on tobacco use.
"It's a huge gift to the tobacco industry," said Blair Horner of the New York Public Interest Research Group. Horner said if tobacco companies are allowed to keep a restricted reserve far less than the court-ordered payment they face, there will be an incentive to delay appeals beyond the lives of plaintiffs.
"The tobacco bond cap is designed to protect the state and its taxpayers from losing funds it is scheduled to receive from the tobacco companies as part of the tobacco settlement," said Pataki budget spokesman Michael Marr. He noted many other states have done so.
"I can't believe a legitimate case can be made in public for supporting this," said Assemblyman Alexander Grannis, a Manhattan Democrat and leading anti-smoking advocate in the Legislature. "This is a favor for a lobbyist."
Altria Group Inc., the parent of Philip Morris USA Inc., said the measure is intended to protect tobacco companies' right to appeal.
"We believe it's only fair that companies pay proper judgments under the law. However, due process demands that we have a right to appeal," said Altria spokeswoman Dawn Schneider.
She said 38 states have caps or don't require appeal bonds. Nine states approved bond caps in 2004 and 14 acted in 2003, she said. Last year, Hawaii, Iowa, Minnesota, Nebraska, South Carolina, Georgia, Oklahoma, Virginia and West Virginia adopted caps, Schneider said.
California, Pennsylvania, Minnesota and Oregon are among other states that have adopted caps ranging from $25 million to more than $100 million.
Tobacco remains big money for lawmakers.
Altria Group Inc. spent $1 million last year lobbying New York's legislators on food and tobacco issues, according to state lobbying records.
Since 2003, Altria contributed $43,015 to Republican, Democratic and Conservative campaigns, according to state election records. That includes $1,000 in August to the state Republican committee and $6,000 in September to the Senate Republican Campaign that was in the midst of a close election year in which the GOP advantage was threatened. The same week as the Republican Senate donation, Altria contributed $3,800 to the Democratic Senate Campaign.
Since 1999, Philip Morris made $453,684 in campaign contributions to Democrats and Republicans including Assembly campaign committees, according to election records.
"This is special treatment for one industry that happens to be the most despised industry in America. So of course they intended to do it quietly," said Russell Sciandra of a Center for a Tobacco Free New York
The bill to protect tobacco companies comes a month after state health officials said they hoped to stem criticism of state anti-smoking efforts by pledging a stronger campaign. New York plans to spend $1 million a month this year on a media campaign.
Star Ledger - March 15, 2005
No-smoking bill gains after 2-year deadlock
State panel approves ban over businesses' protests
By Susan K. Livio
A bill that would ban smoking in all indoor public establishments except cigar bars cleared a Senate committee yesterday as lawmakers took action on legislation that had been stalled for nearly two years.
The bill would prohibit smoking not only in bars, restaurants and bowling alleys but in places not included in earlier bills: casinos and social clubs such as the Knights of Columbus.
Senate Health, Human Services and Senior Citizens Committee Chairman Joseph Vitale (D-Middlesex) declined to speculate on whether the bill would survive the intense lobbying expected from business owners who vigorously attacked the proposal at a standing-room-only hearing in Trenton.
"I can't tell you what will happen anywhere else. We set the standard today," Vitale said after a 7-0 vote sent the bill to the full Senate.
The vote included one abstention, by Sen. Ronald Rice (D-Essex), who expressed concerns about a ban's impact on jobs and wages.
Sen. Tom Kean Jr. (R-Union), a co-sponsor of the bill, had expressed dismay a few weeks ago when Vitale wanted to include casinos to the list of affected places. Kean said yesterday his outlook has brightened.
"This is the furthest we have gotten this bill after three years of fighting," Kean said. "I was concerned adding casinos would sink the bill, but a lot of momentum has built in the last week."
Anti-tobacco groups also celebrated the vote, proclaiming it breaks the logjam that has scuttled the passage of an indoor smoking ban in prior years.
"This is a huge step forward and should make it easier to get the bill enacted," said Peter Slocum, vice president for advocacy at the American Cancer Society.
Larry Downs, director of New Jersey Breathes, a coalition of groups that oppose tobacco use, said there is "tremendous momentum" behind the bill. "It's clear the time has come," Downs said.
Advocates of a smoking ban were joined by the state's top health official, Health and Senior Services Commissioner Fred Jacobs, who called smoking "the most important public health issue facing us today."
"As a specialist in pulmonary disease, I have seen firsthand, in thousands of patients, the wide-ranging damage that tobacco caused to smokers and to those exposed to secondhand smoke. It harms nearly every organ in the body," Jacobs said.
Yesterday's action represented lawmakers' first movement toward a smoking ban since June 2003, when the same committee approved a bill that carved an exception for casinos and social clubs. This measure, which would make New Jersey the eighth state to enact a smoking ban, faces a full Senate vote and a review in an Assembly committee.
At the hearing, casino operators joined restaurant and bar owners in vowing to snuff out the bill. They argued a complete ban would devastate their businesses.
Mark Sandson, attorney for the Casino Association of New Jersey, said Delaware's gaming industry lost one-quarter of its business after a smoking ban was enacted.
"If you take away a substantial part of our earnings, obviously there is going to be a drastic impact on tax revenues in the state of New Jersey by people in Atlantic City and the South Jersey region," Sandson said.
James T. Hill, president of the New Jersey Licensed Beverage Association and owner of the Knotty Pine Pub in Wharton, asked the committee to allow the public to make its own choices.
"We have a bar in Hillsborough that has been nonsmoking since 1992. She (the owner) has a great business, but her customers decided that, not the government," he said.
Sen. William Gormley (R-Atlantic), a champion of the gaming industry, testified he would seek "economic incentives" to offset any casino's losses. To help casinos, Gormley suggested diverting the $72million the state uses to subsidize prize money, or purses, in the horse racing industry. Casinos' tax money helps support programs for the elderly, he noted.
Gormley acknowledged acting Gov. Richard Codey is a staunch supporter of horse racing. "But wouldn't he choose seniors over horses?" the senator asked.
Bar and restaurant owners did persuade the committee to expand the smoking ban to the locations of small fraternal organizations, such as Elks lodges or Knights of Columbus halls. The original bill, co-sponsored by Kean and Sen. John Adler (D-Camden), would have given these groups two years to phase in the ban.
Terry Duffy, a Passaic County freeholder who owns a tavern and a smoke-free restaurant, said that without the expanded ban, tavern patrons would take their business to these community establishments so they could be free to smoke. He said many bar owners would not be able to survive during that two-year phase-in period.
"Please, a little compassion," Duffy pleaded. "We are a vibrant part of our communities ... and you're killing us."
Inquirer - March 11, 2005
N.J. restaurant group voices opposition to smoking ban
It would "indeed hurt our industry," an owner said. Some critics suspect an ulterior Codey motive.
By Robert Moran
TRENTON - Restaurant owners warned yesterday that many of their establishments across New Jersey would suffer financially if they were forced to ban smoking.
"We do not need legislation to tell us how to please our customers," said Tom Schmierer, owner of the Alchemist & Barrister Restaurant in Princeton, at a Trenton news conference organized by the New Jersey Restaurant Association.
The association said it opposed a smoking ban, which the state Senate Health, Human Services and Senior Citizens Committee is scheduled to consider Monday.
A bill introduced in October would prohibit smoking in workplaces and indoor public places other than casinos and cigar bars. It would exempt social clubs, such as Veterans of Foreign Wars posts, for only the first two years.
Sen. Joseph F. Vitale (D., Middlesex), chairman of the committee, plans to amend the bill to remove the casino exemption, which would have allowed smoking in a casino's gambling areas and bars.
Some casino industry officials suspect the sudden push against the exemption is an attempt by acting Gov. Richard J. Codey to pressure casino owners to relent in their opposition to his proposal for video slot machines at the Meadowlands Racetrack in North Jersey.
Codey spokeswoman Kelley Heck has denied that he is targeting the casinos. Some lawmakers say Codey, who had opposed the smoking legislation, was won over by New York Mayor Michael Bloomberg and the apparent success of the ban in that city.
Antismoking advocates argue that a ban would be good not only for restaurant customers but also for employees who must endure secondhand smoke.
Those advocates cite statistics showing that business improved in places, such as New York, that outlawed smoking in public establishments.
The restaurant association and other critics dispute such figures.
A New Jersey ban "will indeed hurt our industry," Schmierer said.
Clearly some restaurants and bars with significant numbers of smoking customers dread a ban, but others with few smokers shrug at the prospect.
Amber Tromble, manager of The Pub in Pennsauken, said the smoking crowd at her restaurant was very small.
"Our smoking section is the quietest" in the restaurant, she said. "If the restaurants are all nonsmoking, people will still come out to eat."
Jess Mashaw, manager of the Red Hot & Blue barbecue restaurant in Cherry Hill, said he had friends in New York whose establishments had been hurt by the ban.
"They told me they lost a lot of business," he said, but added that they had adapted with "smoking gardens" and other outdoor areas for smokers.
Some places see a ban as an opportunity to boost business.
The Top Dog entertainment complex, a popular nightspot in Cherry Hill, is prepared with an outdoor deck that can be heated in winter, said Frankie Laino, in charge of promotions and entertainment.
When smoking bans "hit L.A. and New York, we knew it was just a matter of time before it hit Philly and Jersey... . Quite frankly, we're looking forward to it," Laino said, predicting his establishment would "clean up" on the unprepared competition.
If a smoking ban cannot be stopped, the restaurant association has offered two fallback positions.
The association has proposed an "80-20 solution" that would prevent any restaurant from dedicating more than 20 percent of its dining area to smokers.
And if a ban is inevitable, the association opposes any exemptions, especially for casinos.
If "the smoking ban would hurt the casino industry, then why would it not hurt our industry?" Schmierer asked. "To exempt the casinos in Atlantic City and their 50,000 employees from the smoking ban is not protecting them."
He added: "This is not a health issue if you're going to have these large exemptions.
"It's more political than it is health."
Inquirer - March 10, 2005
Smoking ban nears N.J. vote
Codey's support has given the legislation new life in the Senate. Even casinos could be affected.
By Kaitlin Gurney and Robert Moran
TRENTON - Following the lead of New York and now Philadelphia, New Jersey lawmakers are poised to take action on legislation that would ban smoking in most public places - including casinos.
The proposal had been stalled in the Legislature for years but has gained momentum since New York Mayor Michael Bloomberg won acting Gov. Richard J. Codey over to the antismoking cause, lawmakers say. Codey, who had opposed the bill, has called for strengthening the smoking ban by including Atlantic City casinos, which the current legislation would exempt.
Their inclusion could be an attempt by Codey to pressure casino owners to relent in their opposition to his proposal to allow video slot machines at the Meadowlands Racetrack in North Jersey. South Jersey Democrats in the Assembly who have fought Codey's video-slots proposal also oppose the smoking ban.
"The governor is not singling out the casinos," Codey spokeswoman Kelley Heck said. "It's just the opposite. If there is going to be a statewide smoking ban, he wants it to be comprehensive."
The New Jersey Smoke-Free Air Act, sponsored by Sen. John Adler (D., Camden), would prohibit - with certain exceptions - smoking "in all enclosed indoor places of public access and workplaces."
Casinos and restaurants oppose the ban.
In addition to casino floors and casino bars, the current bill would exempt social or fraternal organizations, cigar bars and lounges that make at least 15 percent of their income from on-site tobacco sales, and tobacco retailers.
Sen. Joseph Vitale (D., Middlesex), chairman of the Senate's health committee, said he planned to amend the bill to include casinos at a Monday hearing. He said he expected the legislation to pass the panel and be posted for a full Senate vote as early as March 21.
A push in the Senate
Including casinos "has always been something I believed was the right health policy," Vitale said. "You can't say secondhand smoke is dangerous in one area of the state and not in another."
He said he had let Codey know the bill would be amended to "meet our shared vision" but noted that exemptions for social clubs and cigar bars probably would remain. Whether the governor's interest is connected to his video-slots proposal "is not my concern," Vitale said.
Similar legislation that already includes casinos has stalled in the Assembly because the Democratic leadership there does not support it, Vitale added.
Seven states, including New York and Delaware, have smoking bans. A ban in Rhode Island took effect last week.
"The fact that less progressive states have gotten ahead of New Jersey is embarrassing," Adler said. "Kentucky grows tobacco, but Lexington has banned smoking. New Jersey can learn a lesson from Kentucky."
'Race with Philadelphia'
In Philadelphia, City Council appears poised to implement a citywide ban. Legislation may be introduced on first reading today and could come to a final vote as soon as next Thursday.
"We're in a race with Philadelphia," said Peter Slocum, an advocate with the American Cancer Society.
The decision to include the casinos in the Senate bill was cheered by Alfred R. Ashford, chief medical officer with the American Cancer Society of New York and New Jersey.
"By including casinos in this measure, the governor and the Senate will rightly extend the same protections to all workers in New Jersey and ensure that a person's ability to make a living in our state is not tied to his or her level of tolerance for cancer-causing toxins in the workplace," Ashford said in a statement.
Casino advocates said a smoking ban could hurt gambling revenue.
Rhode Island, for example, exempted gambling areas, and the Dover Downs racetrack and casino reported a 24 percent drop in income during the first year of Delaware's smoking ban.
Some have concerns
Audrey S. Oswell, president and chief executive officer of Resorts Atlantic City and head of the Casino Association of New Jersey, did not respond to a request for comment.
Lawmakers representing South Jersey have united on behalf of casino interests in the last week, opposing Codey's plan to allow as many as 2,000 video slots at the Meadowlands, which is in East Rutherford, Bergen County.
Sen. William Gormley (R., Atlantic), a longtime champion of Atlantic City casinos and a staunch opponent of video slots, issued a one-sentence comment on the smoking legislation yesterday: "I'd like to talk to Dick Codey."
The New Jersey Restaurant Association opposes a smoking ban, fearing it will hurt business.
Deborah Dowdell, the association's president, said that if a ban was implemented, there must be no exceptions. "We support a level playing field," she said.
Dale Florio, a lobbyist for the restaurant association, called the antismoking advocates "zealots," and argued that the the issue should be determined by the marketplace.
"A restaurant is not a public place," Florio said. "It's a place where the public is invited. A restaurant should have some flexibility to run how it wants."
Increasingly, data from states with smoking bans show that restaurant business has increased.
In Massachussetts, revenue from the state's 5 percent meal tax rose after a smoking ban took effect July 5.
New York City's restaurant and bar business also has surged since its smoking ban took effect in 2003, but the city has experienced a general resurgence after the recession and the 2001 terrorist attacks.
Heck, the governor's spokeswoman, said Codey had discussed New York's ban with Bloomberg.
"People are starting to get that a ban doesn't hurt the economy, and it doesn't hurt restaurants or bars. Maybe it hurts the dry-cleaning industry, because people don't stink anymore," said Adler, noting he was the son of a dry cleaner. "I'm glad New York and Philadelphia are leading New Jersey in the right direction."
Today - March 7, 2005
Online tax bill due for smokers
By Larry Copeland
William Blakemore is a pack-a-day smoker in Hightstown, N.J., who started buying cigarettes online several years ago. His goal: avoid his state's cigarette tax, which has tripled since 2002 to $2.40 a pack, the nation's second highest.
But the bill suddenly came due last week when Blakemore opened his mail and found a claim from New Jersey for $1,842.79 in back taxes from his Internet purchases.
Blakemore, 55, an unemployed computer programmer, has been buying Benson & Hedges online for $29 a carton, compared with the $50-$60 he would have paid at a convenience store or supermarket. The tax notice, he says, "kind of raised the adrenaline level. That got my dander up."
Blakemore is one of thousands of smokers getting letters from state and local tax collectors demanding they pay up for their Internet purchases.
The governments want the taxes to support budgets that are stretched thin and to level the playing field for conventional retailers, who must collect taxes on every pack sold.
Smokers increasingly are turning to the Internet because state and local taxes in some areas account for more than half the cost of cigarettes.
People who evade cigarette taxes by buying online are part of a broader pattern in Internet commerce.
According to a study last year by economists at the University of Tennessee, state and local governments in 2003 lost an estimated $15.5 billion in taxes that went uncollected from Internet sales.
As e-commerce expands, that loss is expected to grow to $21.5 billion to $33.7 billion by 2008, the study predicted.
"Despite the fact the e-commerce boom tended not to be as robust as people thought, it still amounted to a significant revenue loss for the states," says William Fox, professor of economics at the university and co-author of the study.
Collecting sales taxes on goods bought from mail-order and Internet businesses has frustrated state and local governments for more than a decade. The Supreme Court ruled in 1992 that states could not force businesses outside their borders to collect their sales taxes unless the companies have stores or headquarters in those states. The ruling spared such businesses from having to comply with the tax codes of 45 states — and the District of Columbia — that levy sales taxes.
Many states are collaborating on a uniform tax system that would make it easier for online retailers to collect sales taxes on goods they sell. The Streamlined Sales Tax Project would let retailers determine the proper state and local tax rates by entering the customer's ZIP code. The project has been enacted or partially enacted in 20 states.
Government's power to find people who thought they had surreptitiously purchased cigarettes without paying taxes dates to a 1949 federal law. The Jenkins Act requires vendors that ship cigarettes to another state to provide customers' names and addresses to taxing agencies in the receiving state, which then can levy taxes.
Most Internet cigarette vendors do not comply with the Jenkins Act, says Kurt Ribisl, an associate professor at the University of North Carolina School of Public Health who studies tobacco marketing on the Internet. Ribisl says he found 775 Internet sites selling cigarettes.
Among states and cities targeting online buyers:
• The Pennsylvania Department of Revenue sent letters to 63 people last month, demanding payment of $1.35 per pack they bought from two Web sites, spokeswoman Stephanie Weyant says. By Friday, 44 had paid.
• The Ohio Department of Taxation sent letters to 25 customers of one Internet vendor, seeking unpaid taxes ranging from $400 to $800, spokesman Gary Gudmundson says. Tax collectors there plan to send 1,000 more letters.
• New York City mailed bills in January to 3,700 people. By Friday, 2,010 had paid $680,000 of $1.2 million owed. That's a small amount in a city that collects $18 billion in taxes every year.
"But this is not so much about the money as it is about our local retailers, who are put at a competitive disadvantage" if they have to collect the taxes and Internet vendors don't, Finance Commissioner Martha Stark says.
In addition to a $1.50 state tax per pack, the city adds another $1.50, making cigarettes in New York City the nation's most expensive.
Sheila Hansen of Manhattan says she got a letter from the city demanding $900 in unpaid taxes on 50 cartons of Kool Milds she bought over three years. Hansen says the city reduced her bill to $750 after she pointed out record-keeping errors. But last week, she got another bill — a $525 claim from New York state.
"I was totally shocked," she says. Hansen says she stopped buying cigarettes online and quit smoking before she got the first bill.
"My biggest beef is, unless they go after every single person that buys anything on the Internet and doesn't pay taxes, it's not fair," she says. "Right now, they're only targeting smokers."
New York Business - March 7, 2005
Queens eatery takes heat for smoking
Uncle Jack's Steakhouse in Bayside, Queens, is no longer allowing customers to smoke cigars or cigarettes in its bar.
The upscale eatery lost an 18-month battle with the Department of Health last week over the no-smoking law, and the department slapped Uncle Jack's with a $32,000 fine for allowing smoking while it sought permission to do so.
The restaurant's owner, William Degal, will appeal the ruling, arguing his business qualifies to be grandfathered from the two-year-old city and state ban on smoking in restaurants.
Press - March 4, 2005
Justice Department Appeals Tobacco Ruling
WASHINGTON (AP) -- The Justice Department on Friday asked a federal appeals court to reconsider a panel's decision to bar the government from seeking $280 billion from cigarette companies in a civil racketeering lawsuit.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 last month that the RICO statute under which the case was filed required ``forward-looking remedies'' and seeking the money was not one.
In asking the full appeals court to hear the case, the Justice Department argued the panel's decision was out of step with legal precedents and could damage the strength of the RICO law designed to prosecute mobsters.
``The statute involved is the government's most potent weapon for combating organized crime and the issue arises in the biggest civil RICO action the government has ever brought,'' the Justice Department wrote in its filing.
The Justice Department sued major U.S. tobacco companies in 1999, alleging the tobacco industry engaged in a five-decade conspiracy to conceal the health dangers of smoking.
In addition to seeking $280 billion, the government has asked U.S. District Judge Gladys Kessler to impose other penalties, including requiring the companies to pay for smoking cessation programs and public education campaigns about the dangers of smoking.
Construed broadly, however, the panel's decision could eliminate the ability to impose any penalties aimed at curing the effects of past fraudulent activities, the Justice Department said.
Earlier this week, Kessler called the panel's decision a ``body blow'' to the government's case and cautioned the government that she is now limited to forward-looking remedies aimed at stopping future RICO violations.
``In a way, I think Judge Kessler was helping the effort to get a reconsideration when she read it very broadly and suggested the government case was almost entirely gone,'' said Paul Rothstein, a law professor at Georgetown University.
The defendants in the lawsuit are: Philip Morris USA Inc. and its parent, Altria Group Inc.; R.J. Reynolds Tobacco Co.; Brown & Williamson Tobacco Co.; British American Tobacco Ltd.; Lorillard Tobacco Co.; Liggett Group Inc.; Counsel for Tobacco Research-U.S.A.; and the Tobacco Institute.
Press - February 28, 2005
Activists rally for anti-smoking ban
TRENTON, N.J. -- Braving snow and chilly winds, about 25 anti-smoking activists rallied on the Statehouse steps Monday to urge lawmakers to ban smoking in all indoor public places, including bars and restaurants.
The state's chapter of the American Cancer Society was joined by the Black Ministers Council of New Jersey in supporting the ban.
Activists had hoped the measure would be heard Monday by the Senate Health, Human Services and Senior Citizens Committee. But that panel had scheduled discussion on separate legislation that would ban smoking in college dormitories.
According to Alfred Ashford, chief medical officer of the Cancer Society's eastern division, secondhand smoke kills 65,000 Americans each year, while worker smoke breaks and worker absences cost employers nearly $300 billion annually.
Ashford also disputed claims of lost business, saying smoke-free bars and restaurants actually gain patrons thanks to the cleaner surroundings.
The rally follows a radio advertising campaign the society began in mid-February to raise awareness of the issue and legislation.
The organization urged state residents to support the measure by calling acting Gov. Richard J. Codey's office. The Cancer Society has also distributed leaflets at train stations in northern New Jersey.
Deborah Dowdell, president of the New Jersey Restaurant Association, said her organization supports a statewide smoking ban that does not offer any exemptions.
Dowdell said the bill in question exempts casinos, private clubs and fraternal organizations, "all of which compete for the same food dollar that owners of restaurants and bars compete for."
Record - February 27, 2005
Smoking ban challenged in federal court
By James V. Franco
ALBANY - Nearly two years after the state enacted the nation's strictest smoking ban, a pro-smoking group is still battling to get it overturned, this time in federal court.
The Empire State Restaurant and Tavern Association argued last week the ban is unconstitutional and should be overturned because the state does not give counties clear enough guidelines to grant waivers and claims the ban is duplicative because clean air standards are already set by federal law.
The state gave county health departments the power to grant waivers
if business owners could prove the smoking ban caused them an undue financial
The restaurant association claims the loose state guidelines are open to different interpretations by the individual county departments, and businesses with identical financial situations could receive different treatment because they are located in different counties, which the association claims is unconstitutional.
"The first bar will likely survive; the second undoubtedly will not," said Kevin Mulhearn on behalf of the association and Dodester's Tavern in Onondaga County. "Can this scenario, which is really not far-fetched, have possibly been intended by the Legislature?"
"Such differences do not compel a conclusion that the statute is vague, rather, they are a consequence of a statutory scheme in which numerous state and local officials serve as law enforcement officers," countered Assistant Attorney General Charles Quackenbush, on behalf of the state.
U.S. District Court Judge Lawrence Kahn could rule within the next two
In the 21 (out of 62) counties that do not have a health department, the state Department of Health enforces the law and is in charge of granting waivers.
According to Mulhearn's legal papers, as of Nov. 15, the state received 111 applications and issued 34 waivers while city and county enforcement offices received 369 waiver applications and issued 131.
"So both the state and city and county enforcement officers have granted approximately one third of their waiver applications," Mulhearn writes. "One cannot help but conclude, therefore, that the departments of health, which categorically deny all waiver applications have trampled upon the Legislature's intent to mitigate potentially harsh effects (of the ban)."
The association also claims the ban inappropriately attempts to supercede federal law. Mulhearn maintains the federal Occupational Safety and Health Act of 1970 already stipulates a clean air standard for employees.
Quackenbush, however, writes that the U.S. department of Labor intentionally left issues pertaining to tobacco, including taxing and selling, to the states.
"Indisputably, the federal government has opted to step aside and let the states attend to this important public health issue," he writes.
After a long, bitter battle between pro- and anti-smoking groups, the state Legislature amended the Clean Indoor Air Act in March 2003, and it was immediately signed into law by Gov. George E. Pataki. It took effect in July of the same year and New York became the third state, behind California and Delaware, to prohibit smoking where there are employees, including inside bars, restaurants and bowling alleys.
What the impact has been depends on who is asked.
Business owners, particularly those owning small bars like those represented by the Empire State Restaurant and Tavern Association, maintain the ban has chased their customers away. Proponents point to California, where bar and restaurant sales tax receipts are up since the ban took effect there. It is not as stringent a ban, however.
A flurry of polls were taken by both sides, with those commissioned by anti-smoking groups showing strong support for the ban and those paid for by pro-smoking groups showing most New Yorkers are against it.
A number of lawsuits were filed to stop the ban, most of which died in lower level state courts. Scott Wexler, executive director for the restaurant and tavern association, said the legal strategy being employed at the federal level has not been tried anywhere in the nation.
"We had good arguments, we presented them well and I think we were well heard," he said. "Nearly two years after the smoking ban was passed, the law continues to cause problems for New York's bars and restaurants."
"Business, from what we've seen, is not down and the people of New York state want it, not only for their own personal needs. It is a good business policy as well," said Marc Kaplan, spokesman for the American Lung Association of New York State. "The opponents will continue to try different strategies. We sympathize with small business owners, but there is a process in each county and they should use the current process."
- February 25, 2005
Global Anti - Smoking Pact Takes Effect from Sunday
GENEVA (Reuters) - A global treaty aimed at dissuading children from smoking and helping adults kick the habit comes into force Sunday despite what health officials say has been heavy lobbying by the tobacco industry.
The World Health Organization (WHO) says the world's first international public health treaty could save millions of lives through strong warnings on cigarette packages and bans on tobacco advertising and sponsorship.
``I encourage all countries ... to implement the range of measures that will make tobacco use less and less attractive,'' WHO Director-General Lee Jong-wook said.
Tobacco, the second leading cause of preventable deaths globally after hypertension, kills 4.9 million people a year, the U.N. agency said.
And the annual death toll from tobacco-related diseases -- lung cancer, heart attacks and cardiovascular diseases -- could soar to 10 million by 2020, with 70 percent of the deaths in developing countries, it added.
The treaty, known as the Framework Convention on Tobacco Control, gives members three years to slap strong health warnings on tobacco packages and five years to ban advertising, promotion and sponsorship.
It also recommends tax increases on tobacco products, a crackdown on smuggling, and reducing exposure to second-hand smoke.
Approved by the WHO's 192 member states in May 2003, the pact becomes law Sunday, 90 days after the trigger of the 40th state ratifying it.
It will only carry legal weight in those countries which have ratified it, now numbering 57. In total, 167 countries have signed the pact -- but have not necessarily sent it to parliament for ratification.
(C.L.A.S.H. Note: And even then there are no penalties if the policies aren't implemented)
- February 24, 2005
Bar owners argue smoking ban is too vague
Group says enforcement varies from county to county
By Bill Lambdin
Albany - Restaurant and bar owners went to Federal Court in Albany Thursday to attack the state's ban smoking on smoking in workplaces.
Part of the current law allows a waiver if a business can show it has suffered hardship.
But the tavern owners complain some counties are rejecting all applications. The group wants a more uniform system.
“And the fact that we have 62 counties, 37 different enforcement jurisdictions and they all have different rules demonstrates to us that this law is vague,” said Scott Wexler of the Empire State Restaurant and Tavern Association.
If a judge agrees with the Tavern Association's lawsuit, it is possible the state smoking ban in restaurants and bars could be set aside. However, it is also possible no change will be made.
A ruling is expected in a couple of weeks.
9 News - February 24, 2005
Group tries to overturn smoking ban
Eddie Shea said business dropped 30 to 35 percent ever since his smoking patrons were forced to light up outside.
"If you look around Albany, you'll see many businesses have gone out. Many places have been hurt, and reached in their own pockets to keep going. Has it gotten a little better? Yes. Will it ever come back the way it was not at all," said Shea.
To help business owners like Shea, The Empire State Restaurant and Tavern Association is challenging the law in Federal Court. The group said the way the smoking ban is written is unconstitutional -- especially when counties are given the discretion to grant or not to grant smoking waivers.
Scott Wexler of the Empire State Restaurant & Tavern Association said, "Many of the counties haven't been granting waivers because they claim they don't have to, they don't want to. We believe that is not allowed under the law. We've asked the judge to set aside the law because the law must be vague if the counties can act that way."
Tioga and Livingston counties don't issue waivers at all. Wexler said this isn't the first time the two sides have debated the issue in court.
"What the attorney general said today is that Erie County and other counties would have the right to issue no waiver without any criteria. This is a decision that the state's appellate courts have already ruled to be illegal," he said.
As for Shea, he said the lawsuit is a move in the right direction, but nothing will change until everyone is on the same page.
A decision isn't expected for a couple of weeks.
County Observer - February 20, 2005
Pols eye smoke-free N.J. Statewide ban pushed for businesses
By Lilo H. Stainton
TRENTON -- As cities and states bordering New Jersey approve smoking bans for businesses including bars and restaurants, anti-smoking advocates are rolling out a public campaign that paints the Garden State as the "ashtray of the Northeast."
With a new state health commissioner who strongly backs such a ban, less resistance from tobacco giant Philip Morris and wide support for restrictions on smoking elsewhere around the country, groups like the American Cancer Society believe its high time for Trenton lawmakers to take action.
"I think it's time for the smoking ban to start moving, and I think New Jersey is behind the curve on this since we're surrounded by states that have instituted a statewide smoking ban," health commissioner Fred M. Jacobs said.
A pulmonary doctor who recently charied the anti-smoking coalition New Jersey Breathes, which is organized by the Medical Society of New Jersey, Jacobs suggested prohibitions in smoking meccas like Italy, Cuba and Ireland shame New Jersey.
"It becomes downright embarrassing, don't you think?" Jacobs said.
But restaurant owners like Ray Cosgrove, whose family has owned Bahr's Landing in Highlands, Monmouth County, for four generations, said the current law, which allows businesses to set their own policies, works well.
Public demand and market forces have provided lots of choice for diners who prefer smoke-free meals, as well as those who want to light up, Cosgrove and others said.
"This is a place where you come to drink and smoke and engage in adult vices. Do we have to be treated like nine-year-olds," said Francis Schott, owner of the Stage Left Restaurant, an upscale eatery in New Brunswick. "If it's illegal to breath dirty air, then it's illegal to smoke."
But Aggie Ivans, a manager at Mugsy's Bar and Grill in Toms River, sees no problem with a smoking ban in New Jersey.
"In the beginning, people get all huffy and puffy about it," she said. "And then they forget about it."
A smoker that's trying to kick the habit, she said being forced to smoke outside - especially on a cold New Jersey night - might even help people like herself.
"It would make it easier to quit," she laughed.
After a decade-long battle and several unsuccessful efforts to pressure lawmakers, the Cancer Society hopes the Senate health committee will hear testimony on a statewide smoking ban on Feb. 28.
Its activists also hope their radio advertising campaign, which began last Friday, and their distribution of leaflets at North Jersey train stations last week will propel lawmakers to act.
The Cancer Society supports a measure that would eliminate smoking at private businesses -- facilities like racetracks, parking garages, elevators and lobbies -- as well as throughout school buildings and grounds. The plan would exempt certain parts of casinos, cigar bars and private clubs such as VFW halls.
"Basically we've reached a tipping point of social and political attitudes about this issue," said Peter Slocum, lobbyist for the North Brunswick-based chapter of the American Cancer Society. "The public ... has totally accepted the idea that there should be laws to protect people from this toxic exposure in the workplace."
Bills banning smoking have been stuck for years in the state Legislature, Slocum conceded, but the dire predictions by bar owners of economic gloom haven't come true in other places where bans are imposed. "Essentially the tide has turned," he said.
Sen. John H. Adler, D-Camden, largely agrees. "I'm more optimistic about the bill now than I was a month ago, or six months ago, or a year ago," said Adler, a sponsor of the measure. "I think it's becoming less of a political risk to pass this legislation and more of a political disability."
Sen. Joseph F. Vitale, D-Middlesex, the Senate health committee chairman, said he hopes to hold a vote on the smoking ban Feb. 28 but noted several bills are still under consideration. He supports a complete ban but said he fears some lawmakers believe the casino industry would kill a bill that doesn't exempt their bars and gaming floors.
"If it was evenly applied in all places, it would be the right policy decision for public health," Vitale said.
"I think there is an opportunity, but it has become a political argument, not a public health argument. And that's where the average citizen loses," Vitale said.
Acting Gov. Richard J. Codey, an Essex County Democrat who also serves as Senate President, is still reviewing several pro-posals, spokeswoman Kelley Heck said.
While the New Jersey Restaurant Association opposes a smoking ban in general, it fears that uneven restrictions -- exempting private clubs and casino bars -- would be even more onerous. The competition will drain customers from the bars and restaurants that prohibit lighting up, owners fear.
"There's tremendous competition for the food dollar," said association president Deborah Dowdell. She said the associa-tion's 22,000 restaurants take in $9 billion annually but that most make annual profits of between 1 percent and 3 per-cent.
"If the fellow down the street is operating a private club," said Cosgrove, of Bahr's Landing, "and can permit his patrons to do whatever he wants to do, it doesn't seem fair."
As it is, roughly one-third of Garden State eateries are now smoke-free already, Dowdell said, and thousands more se-verely restrict the practice. "We already have a plethora of choices," Schott said.
Smoking bans, such as the one in New York, often start with partial restrictions imposed on restaurants. California passed the first law, 10 years ago, and now more than 90 percent of residents support the ban, according to that state's health department.
The success of the 2002 effort to curb smoking in the Big Apple had a ripple effect across the Northeast, Slocum and others said. More than two-thirds of New Yorkers now back that measure, says data provided by the city, and restaurant receipts are climbing.
Delaware passed a ban -- that includes casinos -- in 2002. New York state's restrictions took effect in July 2003. Philadelphia is now considering a similar measure.
"The evidence is overwhelming that this is a public health concern," health commissioner Jacobs said, promising to use his office as a "bully pulpit" to get the ban passed. "Here's a product that, used as directed, is the most preventable cause of death in the United States. I think that's outrageous."
Another key advantage is a change in policy at Philip Morris, the nation's largest tobacco company. The cigarette manu-facturer made a business decision late last year to stop fight-ing local smoking bans, spokeswoman Jamie Drogin said, though its position -- that outright bans are unnecessary -- remains the same.
While the American Cancer Society believes this change provides a big opening for reform, the restaurant association said it doesn't impact their opposition. "There are still some people who want to go smoke and have a nice meal," Dowdell said.
The smoking ban backed by the American Cancer Society would:
Prohibit smoking in indoor public places, including the public portion of businesses, regardless of ownership.
Include all school facilities and grounds, museums, hospitals, train stations, race tracks and hotels and motels; up to 20 percent of hotel and motel rooms could be designated for smoking patrons.
Exempt cigar bars, if they sold a certain amount of tobacco, as well as the gaming floors and bars at casinos and private clubs.
Carry fines that could be im-posed on either smokers or business owners, starting at $250 for a first offense and rising to $1,000 for a third offense.
Jersey Journal - February 18, 2005
Where there is smoke, there's ire
By Michaelangelo Conte
HOBOKEN -Welcome back to New Jersey, "the ashtray of the Northeast," was the message American Cancer Society workers were getting out to evening commuters at the Hoboken Terminal last night.
Passing out flyers, holding up signs and shouting facts and figures through a megaphone, the half dozen representatives of the ACS worked to build support for a bill pending in state Legislature that would ban smoking in all New Jersey work places.
According to the ACS, New Jersey is becoming an island in the Northeast, around which New York, Connecticut, Delaware and most of New England have state laws banning smoking in the work place.
Karol Quinn, of Hoboken, took one of the flyers as she returned home from her work day in New York City and read it as she walked down River Street. Quinn said she thought the ban was a good idea because she quit smoking in January and eliminating cigarettes from bars and restaurants would make her struggle easier.
"Even four months ago I would have been for it because I was thinking about quitting then," Quinn said. "A year ago I probably would have been against it."
New Jersey has a law on the books banning smoking in work places where more than 50 people are employed but ACS New Jersey branch spokesman Lernard Freeman said about 96 percent of the state's work places have fewer employees than that.
While the ACS representatives tried to make their point to commuters during the evening rush hour, all over Hoboken people were relaxing in the city's numerous bars for a drink and a smoke.
George Stewart, a smoker, sat beneath one of the clouds of cigarette smoke in Texas Arizona, a bar across the street from where the ACS workers were campaigning against smoking.
"Outlawing smoking in a bar, I think, is going to an extreme," said the former Jersey City resident who was commuting from New York City to his home in Morris County and stopped for a drink. "We pay a lot of taxes on cigarettes and it's getting almost like they are discriminating against us. I've lived in Jersey City all my life and people don't complain at the bar."
Jennifer Meyer, a non-smoker and resident of New York City, was at the other end of the bar.
"I think it's great, but I'm very anti-smoking," Meyer said, adding that she likes the smoking ban in New York.
The bar's manager, Jose Martinez, said he was worried business would suffer if the cigarettes were snuffed out.
"From what I hear about Manhattan, it would not be a good thing for business, unfortunately," Martinez said.
Assemblyman Eric Munoz, R-Union County, a trauma surgeon and professor of surgery, is the primary sponsor of the New Jersey Smoke-Free Air Act in the assembly.
A spokesman for Munoz said yesterday that both the Assembly and Senate versions of the bill are still in committee. If approved, the bills will move to the floor of each legislative body for a vote by the entire legislature.
Daily Star - February 18, 2005
Cancer society, groups want smoking banned at five Catskills casinos
Bonacic supports plan
By John Milgrim
ALBANY — Health advocates have launched a campaign to make proposed Catskill casinos smoke-free.
The American Cancer Society and other groups want a no-smoking condition added to Gov. George Pataki’s bill authorizing five Catskill gambling resorts. And the state senator who represents the region is on board.
Since 2003, smoking has been banned in virtually all businesses and enclosed public places in the state. But Indian-owned facilities are considered sovereign territory and are exempt from the ban.
Tribes hoping to open casinos, however, need to sign formal compacts with the state. Those agreements can contain a variety of conditions, from forcing the collection of state sales tax to turning part of the casino revenue over to the state.
State cancer society Advocacy Director Michael Bopp said the legislation should require no-smoking provisions be added to the compacts.
That could run into resistance from tribes such as the St. Regis Mohawks, which allows smoking at its Franklin County casino.
"Our goal would be first and foremost to protect the thousands of workers who would be employed at those casinos," Bopp said. "We can’t create a group of second-class citizens who don’t have their health protected like they would in any other workplace. Secondarily, the law is only fair when it is uniformly applied."
Businesses subject to the state smoking ban, but near Indian-owned casinos, could lose customers to the tribes, he said.
Sen. John Bonacic, who is holding hearings on Pataki’s proposal to locate five casinos in Sullivan County, supports the cancer society’s proposal.
"It ensures restaurants on reservation property are not given an advantage over restaurants outside the casinos," said Langdon Chapman, a spokesman for Bonacic, R-Mount Hope. "It is good for the health of the workers and the patrons."
Scott Wexler, executive director of the Empire State Restaurant and Tavern Association and the most vocal opponent of the 2003 ban, declined to take a position on the cancer society’s initiative. He noted that the cancer society’s largest fund-raiser in the state last year was at the Oneida Indian Nation’s Turning Stone Resort and Casino, where smoking is allowed.
Bopp said Turning Stone was the only facility in central New York capable of handling the event.
The Mohawks are among the tribes hoping to open a casino in the Catskills. The compact for their northern New York casino was reauthorized last year without any smoking restrictions.
"The tribe is a sovereign nation and is not limited to such restrictions," said Mohawk spokesman Brendan White, adding that there is a nonsmoking room at their bingo palace on the reservation.
A Pataki spokesman was noncommittal about the proposal.
News - February 17, 2005
Indians' cigarette, gas sales targeted
Pataki tax proposal would be 'about-face'
By Tom Precious
ALBANY - Sales of cigarettes and gasoline by Indian retailers would be subject to state taxes under a proposal being drafted by the Pataki administration, reversing its long-held position of ignoring calls to target the lucrative businesses.
At the same time, the state Department of Taxation and Finance is sending out invoices to more than 2,000 state residents demanding that they remit unpaid sales and excise taxes on thousands of cartons of cigarettes they purchased tax-free from an Internet firm based in Virginia.
Last November, Gov. George E. Pataki vetoed legislation that would require him to end the flourishing business of tax-free sales to non-Indians. He called the measure "an assault on tribal sovereignty."
There is uncertainty in some quarters over whether the new move to collect the taxes is real or just a negotiating tactic to use with the tribes, especially the Seneca Nation, that are trying to get state permission to locate a casino in the Catskills.
Word of the new proposal came from state Tax Commissioner Andrew S. Eristoff, who during testimony before two fiscal committees of the State Legislature examining the Pataki administration's proposed 2005 budget, briefly mentioned the idea of collecting taxes on cigarette and gasoline sales to non-Indians. He did not offer details.
Just last year, the tax department let die a set of rules ordered by the Legislature to begin taxing the Indian sales at the wholesale level - an approach designed to bypass Indian retailers' refusal to collect the taxes.
Eristoff surprised all sides in the debate by saying his agency would release new regulations in the next several weeks to begin collecting the taxes.
The new effort comes after Pataki announced "price parity" arrangements with several tribes that would somewhat level the playing field between Indian and non-Indian retailers.
But none of those tribes are major sellers of tobacco and gasoline - indeed, some don't sell any of the products in New York, but acquiesced as part of an agreement to let them locate a casino in the Catskills.
Tax officials later insisted that the proposed rules being drafted are not part of any change in direction, but rather an attempt to comply with a 2003 law mandating the collections.
"It's not a change in policy. It's just continuing existing policy," said Thomas Bergin, a tax department spokesman.
However, others on both sides of the issue saw the tax commissioner's remarks as a sharp turn for an administration that has steadfastly refused to collect the taxes.
Though tax officials deny it, the new tax-collection effort appears to target Seneca retailers who through more than 100 Internet sites and smoke shops, are, by far, the biggest Indian tobacco sellers in the state.
Seneca officials say their retailers are protected by federal treaty rights against the tax collections.
"This is certainly an about-face regarding our discussions with Gov. Pataki, who has always maintained that the Indian sales are immune from state taxation," said Seneca President Barry E. Snyder Jr.
The state charges $1.50 excise tax; New York City adds $1.50 on top of that. And then there are sales taxes. Indian retailers charge no taxes, which allows them to cut the price of a carton of cigarettes by half or more.
Non-Indian retailers reacted cautiously Wednesday.
James S. Calvin, president of the New York Association of Convenience Stores, said, "Up to now, in defiance of the state constitution, they have refused to execute that law. Perhaps this signals a long-overdue change in posture by the tax department. Time will tell if it's a sincere step towards tax fairness or a cynical ploy to prop up the governor's land-claim legislation."
Health groups expressed surprise at the Pataki administration's apparent about-face. "Better late than never," said Michael Bopp, an American Cancer Society lobbyist.
Meanwhile, the tax department is sending letters to 2,200 state residents who bought tax-free cigarettes online at a now-defunct Internet company in Virginia. It wants the buyers to pay the state $1.50 for every pack of cigarettes purchased.
Asked whether the letter is part of a broader effort to target Internet sales of cigarettes, Bergin said, "This is just one component of an ongoing enforcement effort."
Ithaca Journal - February 10, 2005
Eagles prove smoking ban too costly
By Andrew Tutino
ITHACA -- For now, the smoking room in the Fraternal Order of the Eagles No. 1253 is two green metal chairs and a tin can that greet visitors outside the front door.
Within weeks, though, the club will become the first establishment where smoking is permitted since the Tompkins County Legislature passed a law in August 2003 outlawing smoking in bars and restaurants.
The Tompkins County Board of Health Tuesday approved its first waiver to the New York State Clean Indoor Air Act. The board ruled that the Eagles were able to show a loss of income since the smoking ban took effect, and were able to provide a separate room where smoking will be allowed.
"They showed they had a significant decrease in income since the enactment of the ban," said John Andersson, director of environmental health services at the Tompkins County Health Department. "They clearly had a loss of income."
According to figures submitted to the Health Department, the Eagles revenue dropped from $92,343 in 2003 to $57,327 in 2004. The revenue drop almost crippled the organization's ability to donate to charitable causes, members said. Donations went from $60,000 before the ban to $12,000 after it went into effect.
"It made it very difficult for us to pursue our charitable work," said Rick Nelson, the club's vice president. "But we still ran our fund-raisers and tried our best to help local charities first."
The Eagles will be allowed to permit smoking in a 24-foot-by-25-foot room on the side of its Cecil A. Malone Drive building, called the North Social Room. A wooden partition separates the room from its main bar area.
An existing exhaust fan will run to ensure smoke does not drift into the other parts of the building and the room has separate heating and air conditioning, according to Health Department records. A separate entrance to the room will also be built.
"It is important our nonsmoking members and guests are not faced with secondhand smoke they have no choice about," Nelson said.
Like many clubs and bars, the Eagles lost patrons following the state's enactment of the smoking ban in 2003.
"One of the interesting things that has developed since the ban took effect is that people go to clubs where smoking is permitted," Nelson said. "Some of our more militant smokers we can't get back if they don't have a smoke to go along with their beer at the bar."
The Eagles decided to poll their membership, which is about 800 people, to see if it should pursue a waiver. The decision to go forward was made and the club applied in December.
After some consultations with the Health Department, the matter went before the Board of Health on Tuesday. Nelson said the waiver process can be intimidating.
"There is the perception that even if you apply through the state waiver process, you can't get a waiver in Tompkins County because of the county law," Nelson said.
"We have respect for the law," said Lambertis Gibbs, the club's president. "We've worked within it. Fighting it is not the issue. Cooperating is what you need."
But compliance for the Eagles, and others, has hurt business, they said.
"You have to try compliance to demonstrate it didn't work for you," Nelson said.
The outdoor chairs and the tin can was the solution for the Eagles.
"That is how we have complied with it," Nelson said. "We put our coats on and go outside. But there was a lot of complaining."
Herald Record - February 10, 2005
Anti-smoking effort blasted
Pataki spending too little, critics say
By John Milgrim
Albany – Gov. George Pataki's Health Department has done such a miserable job with its anti-smoking campaigns that it should get out of the business altogether, health advocates said yesterday.
Critics at a hearing sponsored by Assembly Democrats said the state is spending too little on anti-smoking advertising and the ads created and approved by department bureaucrats have little impact.
"It appears people in the (advertising) approval process are more concerned with avoiding controversy and not insulting the tobacco industry than in consistently delivering effective messages to kids," said Matthew Myers, president of the Washington, D.C., based Campaign for Tobacco-Free Kids.
Ursula Bauer, director of the department's Tobacco Use Prevention and Control Program, conceded that "the quality of the media program has been a concern of mine."
The state's anti-smoking ads have either been developed by other states or the federal Centers for Disease Control and Prevention, or created in-house under the supervision of Pataki-appointed public relations specialists, she said.
Bill Van Slyke, the deputy health commissioner who approves the advertising campaigns, said the state's anti-smoking ads are based on marketing research.
"New York has one of the most aggressive anti-tobacco campaigns in the nation," Van Slyke said. "Only two or three states spend more than we do, and our messages that are on the air now are generally regarded in research as being very effective."
Pataki has proposed $38.5 million for anti-tobacco programs in fiscal 2005-06. Based on the state's population, New York should be spending $95 million a year, according to the CDCP.
Press - February 9, 2005
New York promises stronger anti-smoking campaign
By Alicia Chang
ALBANY, N.Y. -- Stung by criticism that New York is not doing enough to encourage people to quit smoking, health officials are pledging to wage a stronger anti-tobacco campaign.
"Earlier on, our campaign was a bit hit or miss," Ursula Bauer, director of the Tobacco Control Program of the New York state Health Department, testified Wednesday during a legislative hearing.
The majority of the anti-smoking commercials aired across New York are produced by other states that do not always resonate with New Yorkers, health officials said. This year, the state is polling focus groups to see how they react to certain advertisements.
Last year, an independent review of New York's tobacco program faulted the state for choosing anti-smoking ads that failed to elicit emotions from viewers. The report, conducted by research group RTI international hired by the state Health Department, was three years overdue.
New York plans to spend $1 million a month this year on a media campaign to encourage smokers to kick the habit and raise awareness about cigarette addiction and chronic health problems. The television and print ads, developed by the Massachusetts Department of Health, centers around real-life smoker Pam Laffin, who started smoking after watching the movie "Grease." Laffin died at age 31 after smoking for almost two decades.
New York is also in the early stages of developing two of its own ads to debut in the spring that counter tobacco advertising in communities across the state.
Bauer said the ability of the state to maintain an effective media campaign depends on funding. The federal Centers for Disease Control and Prevention recommends that New York spend $95 million annually on anti-tobacco efforts, including media campaign spending. But the state budget only gives the program $40 million a year.
Bauer told state lawmakers there are no current plans to promote the state indoor smoking ban because compliance of the law has been high. The law expanded smoking restrictions in the workplace including bars and restaurants.
From July 2003, when the ban went into effect, to December 2004, the state took action against 547 violators, resulting in $292,200 in fines. So far, only 187 establishments in upstate New York received waivers to the law.
10 Now - February 4, 2005
Bar smoking fines
By Nick Cowdrey
Fran Buske has owned Fran's Riverfront Inn for 10 years. She says when the Clean Indoor Air Act went into effect she suffered.
"It cut my business almost right in half of what it was," Buske said.
In Oswego County, the health department decided it would only be fair to give warnings to first-time offenders.
"We took those first offenses as an opportunity to educate them on the law and gave them practical advice on how to comply with the law," said Kathleen Smith, Oswego Co. Health Commissioner.
But 18 months later the county says first time offenders will now be fined.
"We we're seeing repeat offenders and felt these folks knew about the law and had ample opportunity to learn about the law and what they needed to do to comply with the law," Smith said.
In 2003, the health department in Oswego County got 72 complaints of businesses breaking the smoking law. 2004 saw that number increase to 93 complaints. Since the law went into effect 37 warnings have been given and 24 tickets were issued totaling $11,000 in fines.
Fran's Riverfront Tavern was one of the last places to get a warning.
"I do have all my signs up, my bartenders try to push the issue, but when you are really busy and someone sneaks over and has a cigarette there isn't much I can do about it," Buske said.
In Oswego County 18 businesses have applied for smoking waivers. Nine have been denied, six granted, two granted pending the construction of a smoking room and one under review. But the owner of Fran's says she doesn't have room to build a smoking room, nor does she think it would help.
"I have a deck but they tell me I can't build out there because the windows are still attached or something and I don't have a lot of property besides to stretch out the building more," she said.
Buske says she will do everything to comply with the law because she can't afford to pay the fine.
The Health Department says first time offenders of the Clean Indoor Act will be fined $1,000 but that fine can be reduced to $500 with a stipulation agreement. Every offense after that will be $1,000.
Times Herald - February 3, 2005
Bars violating smoking ban could lose licenses
By Rick Miller
SALAMANCA — Multiple violations of the Clean Indoor Air Act could lead to revocation or suspension of taverns’ operating permits under proposed changes in the Cattaraugus County Sanitary Code.
The county Board of Health reviewed proposals Wednesday that would allow “revoking or suspending for a specified period of time, any permits previously issued by the commissioner, for repeated and flagrant non-compliance with a provision from the NYS Public Health Law, State Sanitary Code, this (county Sanitary) Code, or earlier orders of the Board of health.”
Public Health Director Barbara J. Hastings said several taverns have been cited repeatedly for allowing smoking. “They just keep paying their $1,000 fine and they continue to allow smoking,” she told Board of Health members.
Mrs. Hastings said as the result of conversations county Health Department officials have had with the State Liquor Authority, the SLA has begun sending warning notices to offending taverns, but they have yet to suspend any liquor licenses due to repeat violations of the state’s indoor smoking ban that went into effect in July 2003.
Eric Wohlers, director of the county Health Department’s Environmental Health Unit, said more than 37 violations the Clean Indoor Air Act have been recorded in the county, with repeat violations reported at nine establishments.
One Olean tavern has been cited five times for violating the Clean Indoor Air Act, Mr. Wohlers said. Others have been cited two and three times.
The state Health Department “sees no problem” in revoking or suspending operating permits for repeat violations of either the Clean Indoor Air Act or other sections of the Sanitary Code, he added.
The county Sanitary Code already has a section that states the Health Department does not have to renew permits of establishments with unpaid fines, Mr. Wodlers said.
The maximum fine under the state’s Clean Indoor Air Act is $1,000.
Mr. Wohlers likened the proposed change in the county Sanitary Code
regarding the Clean Indoor Act to the state’s suspension of store’s tobacco
and lottery license for three violations of the law prohibiting tobacco
sales to minors.
Mr. Wohlers said the repeat violations of the Clean Indoor Air Act “gives the appearance that we are not enforcing the regulations.”
Mrs. Hastings asked members of the Board of Health to review the proposed changes to the county Sanitary Code and respond within two weeks so the board could vote on the proposed changes next month.
Only six taverns in the county that have met the criteria of separate smoking rooms that meet the smoke test and have no service have waivers from the Clean Indoor Act. Another four membership organizations that have no paid employees also have waivers.
Telegraph (UK) - January 30, 2005
Cigar lobby aims to oust mayor over New York smoke ban
By Charles Laurence
Cigar connoisseurs from New York and some of the world's leading tobacco rollers have teamed up to seek vengeance on Mayor Michael Bloomberg, the architect of the city's draconian smoking ban.
Led by Marvin Shanken, the publisher of the glossy Cigar Aficionado magazine, the informal "Get Bloomberg'' alliance has raised more than $25,000 (£13,000) for the war chest of the mayor's Democrat rival as he campaigns for re-election in November.
Fernando Ferrer is a powerful New York politician who appeals to the city's black and Hispanic populations and is running neck-and-neck with Mr Bloomberg in the polls.
The alliance, furious about the near-total ban on smoking cigars, and cigarettes, in any public gathering place - from gentleman's club to restaurant and stadium VIP box - are keen to see the mayor humiliated at the polls even if the law is unlikely to be changed.
"We want Bloomberg out - not only is he responsible for this drastic but unnecessary change in New York lifestyle, he is a shocking hypocrite because we knew him for years as a lover of fine cigars," said Carlos Fuente, the fourth-generation head of Tabacalera a Fuente y Cia, one of the world's leading hand-rollers of cigars. Mr Fuente has contributed $1,000 to the campaign.
"The Bloomberg ban is very sad - not just because I am in the cigar business but because it is so un-American," said Mr Fuente, speaking from his company's factory in the Dominican Republic.
"My great-grandfather came to Florida to make cigars in 1910, and I was brought up to believe that America was more than a piece of land with boundaries. It is an idea of freedom. To take away such a simple freedom of choice is not American."
Mr Shanken, who had wanted to keep the campaign secret, issued a statement saying that the contributions were "private". Campaign records, however, show that 18 contributions have brought in a total of $27,900. Donors include Edgar Cullman of New York's General Cigar company, which owns Club Macanudo on the Upper East Side - one of a dozen "cigar bars" that remain open.
The new laws invoked employees' rights to be protected from second-hand smoke. Only private clubs without waiting staff and a few cigar bars can now operate legally.
Although cigar sellers are dismayed by the laws, opinion polls show that a narrow majority of New Yorkers support them - among them, ironically, Mr Ferrer himself.
York Law Journal - January 28, 2005
N.Y. Suit Against Internet Cigarette Sellers Dismissed, but City Can Refile
By Mark Hamblett
New York City's novel pursuit of tax revenue lost to direct sales of cigarettes over the Internet was dismissed Thursday by Southern District Judge Deborah Batts.
But Corporation Counsel Michael A. Cardozo and attorneys with the Law Department say they are confident that Batts' decision allowing them to refile its complaint against 16 Internet cigarette dealers under the Racketeer Influenced and Corrupt Organizations Act will allow them to prevail eventually.
City v. Cyco.net, 03 Civ 383, attempted to break new ground by claiming that the dealers' failure to file so-called Jenkins Act reports with New York state on the volume of cigarette sales in New York constitute the predicate acts of mail and wire fraud needed to make a case, and win treble damages, under RICO.
Batts ruled the city had failed to meet the standard for "distinctiveness" under RICO, in that it had not shown there was any difference between the employees of the Internet sales companies named in the suit and the companies themselves.
"We are very happy with the decision," said James L. Bikoff of Silverberg Goldman & Bikoff in Washington D.C., who represents the dealers.
He said the judge made it clear that, under relevant case law, the city had not adequately pleaded distinctiveness because "you don't have unrelated entities who are involved," in the alleged racketeering enterprise.
But Batts' grant of leave to replead on this point gave the Law Department all the encouragement it needed to proceed with the case after it remedies what Cardozo called a "technical pleading imperfection."
The case was the first of five brought against some 55 dealers of cigarettes who have carved out a sizeable market share in a state that imposes more than $1.50 in tax on every pack of cigarettes sold.
The direct sales over the Internet, the city claims, cost it and the state as much as $100 million a year. New York City has already won a default judgment against one foreign company, leaving the number of suits at four and both sides agree that yesterday's decision set the parameters for the other remaining cases.
Batts dealt a clear victory to the defendants on common law fraud claims and claims for deceptive acts and practices under §349 of New York's General Business Law -- claims based on the dealers' advertising on their Web sites that their cigarettes are "tax free."
On those claims, the judge denied the city leave to replead.
For the city, the language of Batts's decision on the RICO claims gave lawyers at the Law Department reason to hope that their aggressive use of the RICO statute will pay off.
Aside from the issue of distinctiveness, Batts found that the city had met the pleading standards under RICO in several other respects.
"Plaintiff has shown, through its communications with the New York State tax authorities, that none of the defendants have ever filed Jenkins Act reports, which ... may be construed as a misrepresentation resulting in fraud," she said. "Therefore, reading the Complaint and the RICO Statement generously and drawing all inferences in favor of the pleader, as the court must do in deciding a Rule 9(b) motion ... the Court finds that Plaintiff has successfully pleaded fraudulent intent and the content of the alleged omissions with sufficient particularity."
Bikoff pointed to several passages in the judge's 91-page opinion in which he said she appeared skeptical of the city's theory of recovery under RICO.
In a footnote, Batts said the city's "novel theory of causation here, based on the Jenkins Act -- the Court is unaware of any other civil RICO actions based on the Jenkins Act -- is questionable on several grounds."
"One question that arises is whether the Jenkins Act even applies in a civil case. The plain language of the Jenkins Act makes it clear that it is a criminal act, to be used by the federal government against tobacco companies to prevent state cigarette tax avoidance prospectively, through the use of injunctions, and retrospectively, through the use of criminal penalties."
The judge said it was "extremely unlikely" that any party other than the federal government may sue under the Jenkins Act.
But, Batts added, "As Plaintiff here is not basing its complaint on actual violations of the Jenkins Act, but merely using the Defendants' violation of the Act (which Defendants do not seem to deny) to bootstrap allegations of fraud, the Court need not reach the question of whether in a civil case a municipality may validly enforce a seemingly criminal statute that requires that reports be filed with state taxing authorities."
The city said the dealers' "pattern of racketeering activity" involved "intentionally concealing from New York State tax authorities cigarette sales made to New York City residents, in violation of the Jenkins Act"; and of "assurances given to Internet cigarette purchasers that cigarettes sold to New York City residents are 'tax free.'"
And an integral part of that scheme, the city argues is the "evasion of taxes through cigarette smuggling across interstate boundaries" in violation of federal mail and wire fraud statutes.
"While the Court finds these arguments survive, it notes that they are extremely attenuated," Batts said. "A scheme to defraud under the mail or wire fraud statutes in the Second Circuit is described as 'a plan to derive a person of something of value by trick, deceit, chicanery or overreaching."
She said, "The defendants here do not deny the fact that they do not file Jenkins Act reports. While the consumers here could not be deceived by these true statements, the Court recognizes that, however attenuated, the fact that the Defendants state that they do not file the reports may have encouraged some consumers into purchasing cigarettes safe in the knowledge that they would not get caught for not paying taxes. This could be considered part of an overall scheme to defraud the city of taxes owed."
The decision came shortly after the city announced a crackdown on bulk purchasers of cigarettes in the five boroughs. The names of those purchasers, officials said, came from lists of Internet cigarette dealers who complied with filing requirements on sales in the state. In an effort to collect more than $1 million in lost tax revenue, the city last week sent letters warning about 3,700 buyers of their tax liability.
Eric Proshansky, deputy chief of the Law Department's Affirmative Division, who is leading the case against the dealers, said yesterday that he would soon file an amended complaint in the action.
Newsday - January 28, 2005
City lawsuit not up in smokes yet
By Patricia Hurtado
A federal judge yesterday dismissed a civil racketeering lawsuit the city filed in an effort to collect millions of dollars in taxes from people who buy their smokes online.
However, in dismissing the lawsuit in Manhattan, U.S. District Judge Deborah Batts also gave the city 45 days to refile an amended suit to address technical issues. The city hailed the move.
"I think it's passed all hurdles and it's a complete win for the city," the city's top lawyer on the case, Eric Proshansky, said.
Meanwhile, lawyers for some of the 16 defendants sued by the city also claimed victory, saying they were confident Batts would eventually dismiss the city's refiled claims.
"We think it's a victory for us, and we believe that while they have a chance to replead, they're not going to be successful," said James L. Bikoff, whose Washington firm represents several of those sued.
The civil suit, filed in 2003, alleges the companies engaged in a tax evasion scheme by not notifying state tax authorities about out-of-state cigarette purchases.
Press - January 27, 2005
New York encouraged despite setback in lawsuit against online cigarette dealers
A federal judge on Thursday tossed out racketeering allegations the city brought against a group of online cigarette sellers but permitted the city to refile its claims in its bid to collect millions of dollars in taxes.
The ruling by U.S. District Judge Deborah Batts came after the city had sued the operators of 16 cigarette Web sites to require taxes be paid on Internet sales.
The judge said the city had failed in bringing civil racketeering charges against the defendants because it had not shown that the people who operate the online enterprises and the enterprises themselves are distinct, a requirement of that law.
But the judge ruled in the city's favor on other grounds, including finding that it was proper for the city to bring the action in New York, preventing it from being transferred to Kentucky, Missouri, New Mexico or Virginia.
When the lawsuit was filed in January 2003, Mayor Michael Bloomberg said it was aimed at companies that advertise that customers will pay no taxes for tobacco purchases on the Internet.
The city, which estimates it loses as much as $100 million a year because of the unpaid taxes, seeks to recover $15 million in damages and to bar the defendants from failing to collect taxes or from misrepresenting the tax status of Internet sales.
The city said some defendants routinely and falsely state that cigarettes sold over the Internet are "tax free," despite New York City and state laws requiring purchasers to pay excise and sales taxes.
City lawyer Michael Cardozo said in a release that the ruling "bolsters the city's efforts to prevent Internet cigarette vendors from misleading the public into illegal transactions."
A message left with a lawyer for the defendants in the lawsuit was not immediately returned.
Times - January 21, 2005
New York's cigar men put heat on Bloomberg
By Christopher Grimes
New York's cigar smokers never liked mayor Michael Bloomberg's two-year-old ban on smoking in restaurants, bars and most other indoor public venues.
Now executives from some of the world's largest cigar companies are donating thousands of dollars to Fernando Ferrer, one of the Democrats hoping to unseat Mr Bloomberg in the mayoral election taking place in November.
The fundraising is being led by Marvin Shanken, publisher of Cigar Aficionado magazine, who arranged donations from at least eight cigar companies, according to campaign finance records. Mr Shanken is listed as the “intermediary” for more than $25,000 (€19,300) of donations, most from people in the cigar industry.
One donor is Edgar Cullman Jr, president and chief executive of General Cigar in New York, which manufactures cigars and runs Club Macanudo, a cigar club. Other donors include Carlos Fuente, president of Tabacalera A. Fuente y Cia; executives from Altadis USA in Fort Lauderdale, Florida; and Holt's Cigar Company in Philadelphia.
In the 12 months after the ban took effect in 2003, the number of adult smokers in New York fell 11 per cent, according to the mayor's office. A poll that year by Quinnipiac University showed 59 per cent of New Yorkers supported the ban.
Mr Bloomberg once enjoyed a good smoke. In his autobiography, Bloomberg on Bloomberg, he described a party from his Wall Street days: “We shot pool, smoked Cuban cigars, played poker and laughed uproariously.”
Polls this week showed Mr Bloomberg in a dead heat with Mr Ferrer.
Independent - January 21, 2005
County busts smoke-ban violators
By Jack Mabb
HUDSON--Environmental health technicians from the Columbia County Health Department have handed out the first local fines for violations of the ban on smoking in public places.
Nine visits were made by technicians to bars and restaurants on December 30 with three found to be out of compliance, according to Health Department Director Nancy Winch.
Two establishments, face a fine of $300 each, with a third given a warning. Ms Winch declines to name the businesses noting that they have an opportunity to request a hearing on the charges. Those hearings, if requested, will take place in early February. Ms Winch said the visits to the out-of-compliance businesses came as a result of citizen complaints.
Ms. Winch also declined to give the names of the five local businesses which sold cigarettes to minors during a recent sting operation required by the Adolescent Tobacco use prevention Act.
Three of the five were fined $300 for first time offenses with two fined $500 for second offenses. A total of 84 establishments were visited by underage teens looking to buy cigarettes with 79 found to be complying with the law.
Times - January 18, 2005
In New York, where there's smoke, there are taxes
City sends bills to those who bought cigarettes online, avoiding $3 levy.
By Maggie Farley
About 3,700 New Yorkers who thought they had avoided a hefty $3-a-pack tax by buying their cigarettes online have found that the city has smoked them out.
New York City's Department of Finance has sent out thousands of letters to New York customers of Internet cigarette vendors, asking for $1.3 million in lost taxes. The city gleaned the names and addresses from a Virginia lawsuit against one site, cigs4cheap.com, which went out of business. Some people owe as much as $10,000.
''The law says you got to pay your taxes. The handful of people who don't are just stealing from the rest of us,'' Mayor Michael Bloomberg said Friday in his weekly radio address.
''If you have a bill for $10,000 for cigarette taxes, you're a dealer, you're not just smoking,'' Bloomberg said.
The letters, sent to those who bought cigarettes online between July 2002 and April 2004, give the alleged violators 30 days to pay or face interest and penalties of up to $200 a carton. By Friday morning, the department had received several phone calls asking to set up payment plans.
Andrew Hoffer, 37, a utility worker in New York, said he was stunned by the letter, which said that penalties could increase his $1,005 tax bill to more than $13,000 if he didn't pay within 30 days.
''I thought someone was pulling a prank on me,'' he said. ''I didn't purchase online to intentionally evade the taxes. I smoke kind of an obscure brand called Broncos, and they're hard to find.''
Hoffer said he is working overtime to come up with the tax money.
''I think we'll get it all,'' said a Finance Department spokeswoman, Joanna Perlman. ''We're very good at collections. We have lots of tools we can use, including liens on people's bank accounts and houses.''
Since the taxes raised the price of a pack to about $7 in July 2002, Perlman said, the city has lost about $40 million a year in untaxed cigarettes. But on top of getting the city's money back, the letters are also meant to protect New York's retailers and stop young smokers, Perlman said.
''We sent out the letters to level the playing field for retailers here in New York City who are collecting the tax and losing business to online sites,'' she said. ''We also did it to deter minors from starting smoking. We don't want them to get cheap cigarettes online and start up a habit.''
One recipient of the letter, Peter Reiser, 42, isn't even a smoker. He bought a couple of cartons of Benson & Hedges Deluxe Ultralight from the Web site as a gift two years ago, and last Thursday he received a letter asking for $30 in unpaid taxes.
''Usually those official letters are quite polite, but this one is oddly belligerent,'' said Reiser, a Manhattan lawyer. ''It's several pages long, it talks about vendors' false claims, and if you don't pay, we're going to get a judgment against you and you won't be able to get a credit card.''
What it didn't have was details about the transaction, which Reiser could hardly remember, leading him to joke it was ''taxation without information.''
''If I owe them money, I'll pay it,'' he said, ''but it was very cryptic.''
New York also has launched lawsuits against 30 other Web sites, hoping to recover lost revenue. But those customers won't be getting letters just yet. The lawsuits ask for buyers' names and their orders to calculate how much taxes to demand from the Internet companies, a city lawyer said. New York resorted to going after the buyers this time because cigs4cheap.com was bankrupt.
''We would prefer to collect the money from the companies,'' said Eric Proshansky, a litigator for the city. ''It's rather inefficient to go after 5,000 people one at a time.''
Many of the Web sites have ''legal notices'' declaring that all sales taxes have been paid, but buyers should check with their local governments about whether they may owe further local taxes. Not many people do.
A half-dozen of the vendors under litigation did not return phone calls seeking comment.
New York's lawsuits invoke the Jenkins Act, a decades-old law written before the Internet era to prevent large-scale tax evasion. The law requires dealers who ship cigarettes to another state to inform that state's government who had purchased them. Sites owned by American Indian reservations often claim that the tax laws don't apply to them, because they are sovereign nations.
Those claims are false, New York argues.
''There's no such thing as a tax-free cigarette,'' said Perlman, the Finance Department spokeswoman.
A bill pending in Congress would force the vendors to pay each state's excise tax before shipping the cigarettes and would increase the penalty for noncompliance.
''That would put the Internet sites out of business,'' said Proshansky. ''The reason they're so cheap is because they don't pay the taxes.''
One Internet lawyer said some customers could be seen as fraud victims who were misled by the sites' statements, including guarantees of privacy.
''I think New York is getting away with it because it's tobacco. If it were cell phones, it probably wouldn't work,'' said Harvey S. Jacobs, a Washington Internet lawyer with Jacobs & Associates. ''It's a dangerous precedent. I don't see why other states couldn't retaliate to protect products they think are being hurt by online sales.''
Street Journal - January 17, 2005
A Taxing Situation
The use tax could be called many things. The "huh?" tax. The obscure tax. The you-must-be-kidding tax. But, a recent crackdown signals, it may soon lose one of its other alter-egos: the don't-worry-about-it tax.
Last week, New York City sent letters to more than 2,000 residents demanding back-taxes on cigarettes they purchased online. Many residents use the Web to avoid heavy taxes, which can push prices to over $7 a pack and are a major revenue source for the city and state. The Daily News broke the story1, highlighting Manhattan resident (and incidentally ex-smoker) Sheila Hansen, who the city alleges owes a whopping $900 in back taxes.
Cigarettes taxes are fairly unique in that they are very high and are imposed, in part, to deter purchases by driving up the price. But similar tax liability applies to ordinary items as well – music, books, you name it. In general, these use taxes are owed by residents when they buy items out of state or jurisdiction and then transport or ship those items home. So, while most Internet users won't get caught up in this sweep – and the city signaled no plans to expand its collection efforts beyond tobacco -- many are technically on the hook nonetheless.
For instance, New York state's income-tax instructions4 spell out at length the items and services that are subject to use tax, a list that includes tobacco products, candy, electronics, art, furniture and auto repair. (Exempt items include medical services, newspapers and most food.) In practice, however, very little use tax is ever paid by individuals, and states generally put compliance rates in the low single digits.
That may be changing. Before the Internet, the main concerns were big-ticket items like cars and art. But with the rise of Web shopping, panicked governments saw significant amounts of taxes being siphoned off from everyday online purchases. Jurisdictions put pressure on national Web retailers to collect more taxes, and states such as California and New York now have "use tax" lines on personal income-tax forms, making it harder for consumers to claim ignorance.
We won't wade into the politics of sales taxes. But as people who purchase items online quite a bit, we have a simple request: Someone save us from the madness. We'll pay the taxes. Just don't put us in the guilt-ridden business of checking Amazon.com receipts and performing long division every time we buy online or take a road trip.
Efforts to standardize tax definitions and increase state cooperation are in the works. (Catalog and Internet retailers are required to charge sales tax only if they have a physical presence in a particular state.) But in the meantime, many online buyers are left in legal limbo – though, to be sure, few may know or care. New York's tax form includes a convenient guesstimate5 of how much you owe in annual use tax (for goods under $1,000 each), ranging from $5 for someone making less than $15,000 a year in adjusted gross income to $71 for someone making $175,000. That seems practical, but is hardly how sales taxes are usually computed – you buy more, you should pay more.
Of course, the alternative is likely no better. In Tennessee, revenue commissioner Loren L. Chumley recently told the (Memphis, Tenn.) Commercial Appeal that she dutifully paid her use tax after compiling her online purchases for the year. What about ordinary taxpayers? Compliance is low, though Ms. Chumley said the state did get a return from "one very diligent person who made a $1 purchase and filed a return to pay nine cents in tax. I think he was playing with us a little."
News - January 17, 2005
NYC Smokes Out Smokers Who Buy Cigarettes Online
By Jeff McKay
The tax man in New York City has quietly decided to "butt" in on the sale of cigarettes over the Internet. The city is demanding that residents who purchased cigarettes online pay the taxes slapped on tobacco sales now, or face huge fines and the garnishment of their wages later.
In letters sent to about 2,300 city residents, the city warned that the recipient has 30 days to pay the taxes on the cartons of cigarettes purchased over the Internet from out-of-state sites, or face further fines which could also include penalties of up to $200 per carton. Some individuals reportedly owe as much as $10,000.
The New York City Finance Department believes it is losing millions of dollars in unpaid taxes as smokers purchase their tobacco products out-of-state over the Internet and not at stores in town.
The city's finance department gained access to the names of the Internet cigarette buyers thanks to a Virginia court that ruled a now-defunct Internet site could not keep the list of its former customers under wraps. New York City has similar pending litigation against other Internet retailers.
"Purchases of unstamped or unlawfully stamped cigarettes require the consumer to pay the New York City tax on those cigarettes," reads the letter sent out to the consumers.
By law, New Yorkers who order any untaxed merchandise over the Internet, including tobacco products, are required to forward the applicable tax to state and city authorities. However, it is rare for the city or the state to prosecute anyone for violating this law. Hoping to avoid paying the taxes, some smokers turned to Internet sites, mail-order catalogs and tax-exempt Indian merchants.
New York City is planning to send out thousands more of the letters to smokers who purchased cigarettes over the Internet. According to the finance department officials, the city loses about $40 million annually from untaxed cigarettes sold by Internet retailers.
New York City is the most expensive place to buy cigarettes in the U.S. due to the taxes placed on the tobacco product. An individual pack of cigarettes in New York City carries a state tax of $1.50 per pack, a city tax of the same amount and a 39 cent per pack federal tax.
It was these taxes that sent some city and state residents scurrying away from their corner stores and into cyberspace to find their favorite brands, where a 10-pack carton of cigarettes can be as cheap as $30. However, not everyone is motivated by avoiding the high taxes. Some people use the Internet to find a certain type of cigarette they are unable to find in their area.
Andrew Hoffer, a resident of Queens, New York, received a letter from the city demanding $1,005 for 67 cartons of Bronco cigarettes he bought from a now defunct website called "cigaretteoutlet.com." The letter states that if he doesn't pay up in 30 days, he will be fined $200 a carton, which in his case adds up to $13,400.
"For me this was not about evading taxes. Honestly that thought never even entered my mind," said Hoffer.
Hoffer said he discovered the Bronco brand during a trip out-of-state, but that upon returning to New York City, went to his corner store and found the store did not carry it. Hoffer searched stores all over New York City, he said, including numerous smoke shops in Manhattan, Brooklyn, and Queens, none of which carried Broncos.
"One storeowner said maybe I should go on the Internet, so I did a search and found a place that sold them," said Hoffer. "I didn't think I was breaking any laws. Then out of the blue I get this letter from the city, threatening to garnish my wages and damage my credit if I didn't pay.
"I'm just a typical blue-collar guy living paycheck-to-paycheck like everyone else," Hoffer added. "I want to do the right thing, but the city doesn't even offer anything like a payment plan, or even a warning. All they say is you have to pay now or else."
In a copy of the letter obtained by the Cybercast News Service, there indeed are no warnings given to the recipient, and actions to be taken by the city against the individual buyer are clearly dictated.
"Failure to pay the required cigarette tax could eventually lead the Finance Department to file a judgment against you in court, allowing the Department to take more severe collection actions, such as garnishing your wages and taking money from you bank account to pay the tax due," the letter warns. "Such actions would damage your credit, making it difficult to buy a home or obtain a loan."
Audrey Silk, president of NY CLASH, a smoker's advocacy group, said New York City officials first targeted companies that were selling cigarettes out of state. "When that didn't work, their tactic is to now scare individuals," she said.
"Mayor (Michael) Bloomberg claims he wants people to stop smoking for their health. Then he raises taxes on cigarettes to get income for the city. Then he claims that he is fighting for small businesses who are losing money when smokers buy cigarettes out-of-state," Silk said. "Then he says the city is not getting its fair share of taxes from smokers. Then he boasts he is raising taxes so kids can't afford to smoke. Which one is it, Mr. Mayor," she asked
Silk has heard from a number of individuals who have received the letters. The letters are not only vague, she said, but they make demands with no proof. "The letters say that this is what you owe, and this is what you must pay -- period," said Silk. "Even if you get a parking ticket, at least you have the right to fight it. Here, there is no appeals process, no grace period."
The city claims it will not penalize citizens at this time who purchase tobacco products from Indian tribes, whose sales are tax-exempt, or people returning home from vacations where they purchased duty-free cigarettes.
On a recent trip abroad, a stop in a duty-free store at an international airport found a carton of Marlboro cigarettes priced at a mere $16. In New York City, a single pack of Marlboro cigarettes cost $7 and a ten-pack carton more than $55, due to the city, state, and federal taxes slapped on tobacco sales.
There are no city, state, or federal taxes applied to duty-free items, regardless of whether they are purchased at an airport duty-free store outside the United States or even at J.F.K. International Airport in New York City.
But for New York City residents receiving the letter from the city, there appears to be no other option but to pay up. Hoffer and Silk criticized what they said was government intrusion and wondered how far it might continue into the personal lives of New Yorkers.
"I know smoking is bad for you, but drinking too much coffee or eating too many Big Macs isn't healthy either. The government can't force you to quit. That has to be up to the individual, Hoffer said.
"All I wanted was to find a certain brand that I couldn't find anywhere here. If I have to pay the tax, then I'll pay it, but for the city not to offer any payment options -- any options at all -- isn't fair," he added.
Hoffer said his dilemma involves either paying about $1,000 now, which he said he does not possess, or paying $13,000 later, about one-fifth of what he earns at his job in a single year. "I want to do the right thing, but I hope the city realizes this isn't easy on working people and bends a little. They need to do the right thing too," added Hoffer.
A spokesman for the New York City Department of Finance, who refused to identify himself, stated that the city was "merely enforcing the cigarette tax laws," and that more than a thousand additional letters were about to be mailed.
Newsday - January 14, 2005
City wants its cut for cigarettes
By Monty Phan
New York City smokers may not be cheating death, but some are being accused of avoiding another of life's certainties: taxes.
The city mailed out 3,500 letters this week to people accused of buying untaxed cigarettes over the Internet and is suing more Web sites to round up additional names.
The city Finance Department mailed out 1,200 letters yesterday and 2,300 on Monday, all to people who the city says bought untaxed cigarettes between July 2002 and April of last year, said Finance Commissioner Martha Stark. The city got the New Yorkers' names from lawsuits brought by other jurisdictions that compelled online cigarette sellers to turn over their customer lists, and Stark said the city expects to get more names from suits it filed last year against online cigarette retailers.
The 3,500 letters represent a total tax liability of $1.25 million, Stark said. The city loses about $40 million annually from untaxed cigarettes sold by Internet retailers. Even if the retailers don't collect the tax, they are supposed to report the customer's purchases to the city.
One suit filed by the city alleges that the retailers' business "relies on the fact that the state of New York imposes combined excise and sales taxes of $33.30 on every carton of cigarettes sold in stores located within the city, an amount substantially in excess of the cigarette tax of most other states."
Peter Reiser, 42, of Manhattan, said he got a letter this week saying he owed $30 for two cartons of cigarettes that he said he doesn't even remember buying. An occasional smoker, he said there was no information identifying the vendor, what kind of cigarettes they were or when they were purchased, so he wrote a letter back to the Finance Department asking for any other information they can give him. He said if he owes the money, he'll pay it.
"I've heard of taxation without representation. This is taxation without information," Reiser said. "Basically, this is a letter that says, 'Send us $30, please. Trust me, you owe the money.'"
A Middle Village woman who declined to be identified said she received a letter saying she owed $75, while her brother got one declaring he owed $2,700.
Newsday - January 13, 2005
Mayor's smoking crackdown could be election year boon, or bomb
By Dan Janison
With city finance officials pushing to collect millions in tax revenues from cigarette sales on the Internet, Mayor Michael Bloomberg may face a political risk or a political win, depending on who's talking.
Eleven years ago, Gov. Mario Cuomo -- in what became his last term -- had tax agents go to New Jersey malls, write down New York license plate numbers, and send the registrants a reminder that any goods purchased out of state are subject to New York tax.
Reaction was furious; images of Big Brother were conjured.
When asked about his own crackdown, Bloomberg said Thursday that Finance Commissioner Martha Stark was doing right by the city and those who pay taxes.
"These aren't people buying cigarettes to smoke for themselves," he said. "It's buying a lot of cigarettes for resale and trying to avoid the taxes that you pay, and I pay, and it's not fair."
To be fair, city officials later acknowledged that some of those shown to be buying smokes from Web sites, as listed in papers provided for a lawsuit, were individuals. But they insist most were for resale.
Finance Department spokesman Sam Miller argued that the city's latest tax move differs markedly from the unpopular Cuomo crackdown in New Jersey.
"First, the city administers the cigarette tax and the state administers the sales tax," Miller said. Also, he added that children are buying cigarettes on the Internet in part because of the high taxes locally. And, he said, the city aims to "even the playing field" for store owners and bodegas selling heavily taxed cigarettes.
Jose Fernandez, president of the U.S. Bodegas Association, said: "We've been waiting for a long time so it could be fair to everyone. This is going to help. Buying through the Internet was reducing sales in stores."
A bigger problem for merchants remains street sales by people outside the bodegas, he said.
Daily Reporter - January 11, 2005
County smoking fines go from bar to board room;
Several taverns, administrator found violating indoor air act
By Shane M. Liebler
BELMONT -- No one in Allegany County, from bar patrons to the county administrator, is above New York's Clean Indoor Air Act. The health department has been busy issuing anything but waivers since the law's inception in July 2003 in every corner of the county and even in its own building.
There isn't a social club that's not sitting on one or two warnings, Deputy Public Health Director Tom Hull said. The county has used a complaint-based enforcement technique, taking action when complaints are submitted in writing.
That action includes fines ranging from $100 to $1,000 or administrative hearings if the charges of challenged. Businesses or county employees get a couple warnings before they begin getting fines, which increase exponentially with each additional offense.
"It's complaint-driven law and if we don't get the complaint, were not going in," Hull said, explaining the lack of resources to commit to sting operations and the like. A rash of complaints on the second floor of the county office building, "smoke-free" since the mid-90s, led to the eventual fining of County Administrator John Margeson, who declined comment Saturday.
"The individual in question has been seen going to the smoking hut, so that problem has pretty much corrected itself," Hull commented before reluctantly identifying the offender, who did pay a fine.
By his estimation, Allegany County has adjusted to the 18-month-old law fairly well. Hull sympathized with bar owners who may have a difficult time kicking out regular customers who've smoked indoors for years. He suggested the law unfairly places the most primary enforcement on bar and eatery owners.
"I think with the way that it was written and the way that it was run out (so quickly), most places are doing as well as we would expect with it," Hull observed. Unlike the law prohibiting teens from smoking, inn which sting operations yield exact fines and levy points against a business, the indoor air act envelopes considerable gray area.
Although the county has a different approach from sting-oriented and high-fining methods of neighboring counties, Hull said its goal remains the same and procedure should not be viewed as lax. "These facilities need to know that if we do get complaints ... we do actively pursue them," he said. "We care about the law and we'll enforce the law when we get the complaints."
About 40 facilities have been fined since the law's inception, Hull said.
TV 13 - January 5, 2005
Smoking Ban Becomes Routine For Most
By Patrice Walsh
(Rochester, NY) - The state's smoking ban has been in effect for 18 months and the number of complaints from businesses is down. Still, not all bars and restaurants are complying with the law.
The Avenue Pub on Monroe Avenue in Rochester has been fined at least three times for violating the smoking law.
The Monroe County Health Department says the bar not only ignored the law but set up tip jars--so violators could contribute to any fines they would have to pay.
A bartender at the Avenue Pub told us by phone they are still allowing smoking and they’re collecting fine money from customers.
"The businesses that run against the trend...continue to pay increasing fines until they come into compliance,” said Doniger.
He added that despite a few bars, the majority of other businesses are complying. Complaints in Monroe County have dropped from an average of 25 a month to just five or ten.
Fifteen businesses have been cited and have paid a total of $10,000 in fines.
Todd Quinlan protested the law by turning off the Quickdraw machines at his Henrietta bar. They're still off but Quinlan is complying with the law even though he doesn't agree with it.
He said, "They took away my customers' rights, I stood up for my customers….it's a losing battle, it will never be back.”
He won't risk violating law; he can't afford the fines. The health department is hoping bar owners who are ignoring the law will do like Quinlan and follow the rules even though they may not like them.
Health departments in surrounding counties are also reporting a drop in the number of complaints and violations. They believe the majority of their businesses are complying even though not all are smoke-free yet.
Newsday - January 1, 2005
NEW YEAR, NEW LAWS
By Emi Endo
In Suffolk, a bill that would raise the smoking age to 19 from 18 within the county was passed in 2004 but likely will have to be approved again because it would have inadvertently repealed the other county laws that are more stringent than the state's. Lawmakers are expected to consider a revised version at their organizational meeting Monday.
Press - January 1, 2005
New law bans sale of nicotine-laced water to minors
ALBANY, N.Y. Starting today in New York, the sale of nicotine-laced bottled water to consumers under 18 years is prohibited.
The legal beverages contain about the same amount of nicotine as two cigarettes and now will be regulated the same as other tobacco products.
Supporters of the new law say barring sale of the beverages to youths under age 18, the legal smoking age in the state, will prevent young people from using the beverages to maintain or deepen their dependence on nicotine and smoking.
[NYC CLASH Note: Ummm, so, is the use of nicotine gum, pushed by the big health organizations, a way of maintaining or deepening the dependence??]
The bill passed over the summer is aimed at a product called "NicoWater" that was marketed in New York and other states by a Q-T Five, a Westlake Village, Californina-based enterprise.
The company called the product a "homeopathic nicotinum formula" and asked vendors to prevent anyone under 18 from purchasing the beverage.
It also warned consumers not to drink more than one bottle of NicoWater
per hour or more than eight bottles in a 24-hour period.
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