FOR IMMEDIATE RELEASE - February 1, 2010
Contact Audrey Silk, NYC C.L.A.S.H., (917) 888-9317
NYC'S SMOKING BAN: SORRY MR. MAYOR, IT'S 7 YRS LATER AND THE ISSUE IS NOT DEAD Established in 2000 with a particular eye on New York, NYC C.L.A.S.H. (Citizens Lobbying Against Smoker Harassment) has grown into a nationally active grassroots organization dedicated to advancing, promoting and protecting the interests of adults who choose to smoke tobacco. ____________________________
On March 30, 2003, the New York City smoking ban law -- extended to cover bars and clubs among all other places not previously covered by the 1995 version -- took effect.
Mayor Michael Bloomberg said, "People will adjust very quickly." (1) Anti-smoker advocates backing the law all asserted that people "will get used to it." (2) Using the years earlier ban on smoking in movie theaters as comparison, Bloomberg said, "after a week the stories [about the ban] went away and so did the smoking," in predicting the same would occur with this ban. (3) When the proposal was first announced Councilman James Oddo said, "[Y]ears from now, people will look back with amazement that smoking was once allowed in bars and restaurants." (4)
It's seven years later. They lied.
By all recent media accounts (and others through the years) (5) regarding violations of the smoking ban, it proves, as NYC C.L.A.S.H. has said all along, that it was not popular with bar and club-goers. (6) Polls of the general population presented in the anti-smoker crusaders' arsenal of propaganda tools to support the notion of "popularity" were skewed. It did not represent the segment of the population, nor the employees, directly affected by the ban. The real results reveal that it is unpopular.
Worse yet, the current threat to effectively shut down places by yanking their liquor licenses flies in the face of the alleged need for the law -- as advanced by the anti-smokers -- in the first place. The smoking ban issue was framed in terms of protecting worker health. (7) An estimated 400 workers will lose their jobs if this is the penalty for the five locations currently under attack according to Steve Lewis' (blackbookmag.com) calculations. (8)
"The anti-smoker fanatics are 'protecting' the employees right out of the very job this law is designed to protect them at. These employees never asked for this and now they're looking at unemployment thanks to them. Just what we need more of these days -- unemployed New Yorkers. At the hands of an administration that is trying to reverse this bleeding yet," says Audrey Silk, Founder of NYC C.L.A.S.H.
Stepped Up Enforcement Means Bogus Summonses
It's quite clear the Bloomberg administration and his Dept. of Health has been embarrassed by these reports. There are indications that they have instructed their inspectors to prove enforcement (i.e. summons numbers to be later presented to the public) as a show of strength in the face of this defiance which is producing bogus summonses.
On January 18, 2010, one Manhattan bar (named upon request) was issued a summons by a DOH inspector for allowing smoking in the outdoor garden. There are no seats or tables or any enclosure that, depending on limited conditions, would fit within a portion of the language of the law regarding outdoor seating areas. The inspector claimed it was a violation because the outdoor space was considered an extension of the bar and there was no smoking in bars. There is absolutely no such language in the law to justify that explanation.
The Conscription of Owners/Staff as Involuntary Police
There is nothing in the law to support the allegations leveled at the owners of these places by the DOH. Although the law puts the responsibility of maintaining it on the shoulders of the owners and its staff there are limits on what they are expected to do:
According to Elliot Marcus, a city health official, quoted in an April 26 article in the Daily News: “No one is requiring bartenders to become cigarette cops,” and “All the law requires of operators is to remove ashtrays, post ‘no smoking’ signs and to make a good-faith effort to tell people not to smoke.”
-- "Not for anyone: Bartending under the smoking ban." The Villager. May 21, 2003
In fact, on October 14, 2004, a Suffolk County court found in favor of three bars on those very grounds who had received notices of violations. In part, to wit:
"The mere fact that patrons continued to smoke in defiance of the law is not ipso facto evidence of the establishment’s failure to comply with the law, as the law does not require that bar or restaurant owners refuse service to patrons who refuse to comply with the law[...] (Similarly, providing a minimal receptacle for the cigarette butts of those smokers who persist in violating the law, i.e., the plastic cups observed by the investigator, is not per se unreasonable.)"
-- Patricia Ann Cottage Pub, Inc. et al v County of Suffolk Dept. of Health; Index No.: 005806/2004
Though based on the state's smoking ban law, there is no difference in this regard between the two laws.
And who but Mayor Bloomberg himself lent support to the position that nobody but the DOH should be the "cigarette police" when in February 2004, in response to reports that while at an affair people were smoking around him, he huffed, "The bottom line is, I don't really remember anybody smoking. Most people weren't, and if there were some people in the corner smoking, they were smoking. What do you want me to do, call the cops?" (9)
Fine the Smokers Instead
Siding with the owners, NYC C.L.A.S.H. agrees that until the day this law will be undone the individual smokers should be fined instead according to that provision in the law. However, the DOH will not do that because they know it will be impossible to control the thousands of people per day instead of the approximate 1300 establishment owners that have been unfairly involuntarily thrust into doing that job for them:
"Health Department spokeswoman Sandra Mullin said that won't happen. 'We did not exercise this aspect of the 1995 law and do not intend to begin this practice now,' Mullin said."
-- "Fuming Over a Fine Mess." NY Post. March 8, 2003
The smoking ban experiment is depraved in its purpose (in its more true pursuit of the war on smokers bars are treated as collateral damage), its methods and its ensuing practices. And like Prohibition before it -- another tyranny imposed by a loud intolerant few -- it is also a failure. Current events illustrate that telling this lie long and loud enough did not conclude with the usual expectations -- molding belief to effect behavior -- of this practice.
It's seven years later. We see the people have not "adjusted to it" or "gotten used to it" and the smoking did not "go away." To quote Christopher Snowden, author of "Velvet Glove, Iron Fist: A History of Anti-Smoking," "Most bans meet the same fate. They usually end with the same kind of passive resistance you see here." NYC C.L.A.S.H. warned as much in 2003. Silk maintains, "This fight isn't over."
(1) "No smoking in city that never sleeps." Associated Press. March 31, 2003
(3) "Mike: It'll All Blow Over." New York Post. March 31, 2003
(4) "MAYOR MICHAEL R. BLOOMBERG AND CITY COUNCIL LEADERS ANNOUNCE 2002 NEW YORK CITY SMOKE-FREE AIR ACT." Press Release, PR-219-02. August 12, 2002
(5) "City fumes as clubs smoke on." New York Post. December 27, 2009
"Blowing smoke at ban." New York Times. January 3, 2010
"Health Dept. to yank permits of nightclubs that scoff at New York City's cigarette smoking ban." NY Daily News. January 27, 2010
(6) Public Opinion Polls / Smoking Ban Popularity. NYC C.L.A.S.H.
(7) Smoke-Free Air Act of 2002. NYC Dept. of Health and Mental Hygiene.
(8) Steve Lewis. "More on the Smoking Crackdown." blackbookmag.com. January 28, 2010
(9) "Smoke if You Have Money? Hardly, Mayor Says." NY Times. February 11, 2004