The Story of Jimmy Mac's

Story behind Jimmy Mac's not a simple one

January 3, 2005
Nicholas Amigone III

In your Dec. 17 issue, "Inside Real Estate" columnist Jim Fink ran a story on the sale of Jimmy Mac's Restaurant on Elmwood Avenue from Rick Naylon to Mark Supples.

The aspect of the story regarding the sale of the business is basically accurate; your description of the smoking litigation is, however, inaccurate.

In November 2003, this law firm sued the County of Erie on behalf of the corporation that owns Jimmy Mac's, asking Supreme Court Justice Rose Sconiers to compel the county to establish criteria for the waiving of its indoor smoking ban.

While the county did so, we asked that the court invalidate those criteria as arbitrary, capricious and illegal.

Sconiers initially ordered that the county commissioner of health institute the criteria in question, and the commissioner denied our subsequent waiver application on behalf of Jimmy Mac's. But on April 5, 2004, Sconiers ruled that the county criteria were indeed unenforceable.

Sconiers directed the health commissioner to refashion the criteria, granting a six-month smoking waiver to Jimmy Mac's. The commissioner reissued the waiver criteria, and we reapplied.

The county appealed that decision, obtaining a stay of Sconiers' order granting a temporary waiver to Jimmy Mac's.

The appeal as filed by the county would not be resolved until October, causing irreparable harm to Jimmy Mac's over that five-month period.

The case was argued at the September term of the Appellate Division. On Sept. 30, 2004, the court unanimously affirmed Sconiers' order striking the county regulations in their totality. Regrettably, the Appellate Division could not grant a smoking waiver, but directed that we reapply once the county had reformulated its regulations. To say that Naylon "lost" the appeal is inaccurate and insulting.

Naylon won at the trial-court level and won again at the Appellate Division. It was a David and Goliath battle, and David won. Unfortunately, "David" was so financially devastated by the battle that he had to discontinue the fight.

We were hoping that the county commissioner would follow the court's directive to repromulgate regulations, allowing us to reapply with a greater chance of success.

Some three months after the Appellate Division's decision, alas, the good commissioner has not, apparently, had the time or the concern to do so.

The economics of running a non-viable business operation for several more months caused Naylon to close the doors at Jimmy Mac's and sell his battered asset.

"David" beat back the onerous policy of the county commissioner only to ultimately give up in frustration. Now, he and 25 other people are out of work.

You may draw your own conclusion.

Nicholas Amigone III Amigone Sanchez Mattrey & Marshall LLP
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Bright light of Elmwood darkens with parting shot at government

October 19, 2004
About 8:45 a.m. Monday, just moments before he officially closed Jimmy Mac's, owner Richard E. Naylon Jr. turned to his wife, Michele, and said, "I feel like I'm about to euthanize an old friend."

Fifteen minutes later, Naylon pulled the plug and began calling his 35 full-time employees, thus ending the 23-year run of Jimmy Mac's, a popular watering hole at Elmwood Avenue and Anderson Place.

During its lifetime, Jimmy Mac's became a symbol of Elmwood prosperity, stretching the reach of the trendy strip farther south, below West Delavan Avenue and West Ferry Street.

Jimmy Mac's catered to an eclectic clientele, everyone from happy-hour yuppies to police commissioners and old pols, with a smattering of middle-class folks drawn by the upscale bar and an inexpensive menu.

In its death, Jimmy Mac's became a symbol of something else - a victim, in Naylon's mind, of oppressive state and county governments that choked the life out of Jimmy Mac's with their enforcement of the state's smoking ban.

"I never anticipated my Jimmy Mac's career ending quite like this," Naylon said Monday in front of the now-dormant bar. "There's a thousand ways to go broke in the bar business. I just never anticipated it would be at the hands of the government."

Jimmy Mac's, though, may not have taken its last breath.

Naylon said he has a letter of intent from Mark Supples, owner of Mother's Restaurant on Virginia Place, to lease the space from Naylon and his limited partnership that owns the building.

"We're working toward a deal, but as of yet, we don't have one," Supples said late Monday.

Naylon said he is negotiating to sell the business to Supples for $100,000. Before he went public with his battle over the smoking ban, Naylon said, he could have sold the business for $300,000 to $350,000.

"It's hard to demand a big number when you've been all over the newspaper and TV complaining about all the money we've lost," Naylon said.

The bar's history dates from at least the early 1970s, when the Shamrock Bar moved to that location and opened as a neighborhood tavern. In 1981, Naylon and Jim McLaughlin bought the Shamrock and changed the name to Jimmy Mac's. At the time, the Elmwood bar scene revolved around five bars - Cole's, Mister Goodbar, No Name, Bullfeathers and Casey's - all located between West Delavan and Forest.

The new bar helped the Elmwood strip become the place to see and be seen.

"Jimmy Mac's wasn't just another business on the street," said Robert Franke, executive director of Forever Elmwood, an organization that boosts business on the strip. "They played a leadership role among the other restaurants and retail shops, particularly around that end of Elmwood."

Some customers and business sources have questioned whether the smoking ban really knocked Jimmy Mac's out of business. They speculated that Naylon, who got married a few years ago and has two younger children, tired of the long hours and hands-on approach his business required.

Those sources said that even after the smoking ban was enacted, Jimmy Mac's still seemed to do a pretty brisk business.

"The place wasn't and isn't dying, but as in any business, there's a break-even point," Naylon replied, citing his gross revenue of about $90,000 per month.

When the business was going well, early in 2003, after surviving its post-9/11 problems, Jimmy Mac's was grossing $100,000 to $115,000 per month, enough to pay its bills and turn a profit, Naylon said.

Since the smoking ban went into effect in July 2003, the bar-restaurant has grossed consistently in the low $80,000s, translating into losses of about $10,000 per month, Naylon said. "What I've grown tired of," he said, "is coming in here and working for no money. If I had been making a living, I probably would have run the place indefinitely."

Naylon became the most vocal local spokesman against the smoking ban, even letting customers smoke in the bar, once they signed a slip acknowledging that they were in violation.

Last spring, Jimmy Mac's was granted a six-month waiver from the smoking ban, but an appeals court later suspended that waiver. On Oct. 1, in a hollow victory for Naylon, a state appellate court agreed with him that Erie County health officials had exceeded state guidelines in their rigid procedures for granting waivers, but the court directed only that Naylon's waiver bid be reconsidered.

Naylon still refuses to pay a $2,000 fine to the county Health Department for allowing customers to smoke.
e-mail: gwarner@buffnews.com and mgryta@buffnews.com

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Jimmy Mac's Closes; Owner Blames State Smoking Ban.

October 18, 2004
A longtime Buffalo restaurant has closed and it's owner says the New York State smoking ban is to blame.

Jimmy Mac's, a fixture on Elmwood Avenue for close to 25 years, shut its' doors Monday. Owner Rick Naylon says months of legal battles and thousands of dollars in legal fees left him no choice. "My bar business is down thousands of dollars in revenue each month and I can't continue to tap my children's college funds to make up the lost revenue."

35 employees are affected by the closure. Naylon says those include single mothers, college students and minorities. "My employees are direct victims of this harsh law and the arbitrary and capricious way it has been enforced by the Health Department", said Naylon.

New York passed a law that went into effect in July, 2003 banning smoking in most public places.
County health departments do have discretion in granting waivers to the ban, but Naylon has been repeatedly unsuccessful in obtaining one.

http://www.wgrz.com/news/news_article.aspx?storyid=23705

Smoking Ban Snuffs Out Business

(Buffalo, NY, October 18, 2004)
A popular watering hole and restaurant along Buffalo's Elmwood strip is no more Monday afternoon. The owner of Jimmy Mac's says the smoking ban has snuffed out his business. You saw the story first, right here on News 4. News 4's Marie Rice reports.

Jimmy Mac's has poured its last drink.

Jimmy Mac's owner Rick Naylon says he's had a great run over the last 23 years, but New York's fifteen month old smoking ban has devastated the profitability of his business.

Naylon says he's spent 30,000 dollars on legal fees and beat Erie County in the Supreme Court and appellate division, but he says he can't wait any longer for Erie County's Health Department to reconfigure its smoking guidelines.

With Jimmy Mac's closing Monday, 35 people are losing their jobs.

Naylon says he's lost about 40 per cent of his loyal base of customers.

Naylon says he never thought he'd be put out of business by the government.

Coming up later on News 4, we'll talk to more Jimmy Mac's workers losing their jobs Monday.
http://www.wivb.com/Global/story.asp?S=2444202&nav=0RapS6l8

Jimmy Mac's owner wins a hollow victory
By MATT GRYTA
News Staff Reporter
10/2/2004 
 
 A state appellate court Friday ordered Erie County Health Commissioner Anthony J. Billitier IV to "reformulate" the county's guidelines for business waivers of the state's no-smoking law, but the owner of Jimmy Mac's said he will still have to sell his business.
In what amounts to a victory in name only for Rick Naylon, owner of the popular Elmwood Avenue bistro, the Appellate Division of State Supreme Court in Rochester agreed with Naylon's attorneys that Billitier's criteria for granting businesses waivers improperly exceeded state guidelines.

The court otherwise upheld State Supreme Court Justice Rose H. Sconiers' ruling of last April that the Erie County waiver provisions were illegally "irrational." It only directed Billitier to reconsider Naylon's months-old application for a waiver.

The court, which heard the case Sept. 13, five days after Naylon was slapped with a $2,000 fine for allowing patrons to smoke at Jimmy Mac's last spring, ruled Sconiers "exceeded" her legal authority in granting Naylon a six-month waiver last April.

Billitier could not be reached to comment Friday.

Assistant Erie County Attorney Joseph F. Reina, the government's chief attorney in the case, said Law Department officials will confer with the health commissioner within days to determine whether the county will ask the state's high court to consider the case.

Reina said that even under the appellate court's ruling, no smoking is allowed in Jimmy Mac's until Billitier makes a new decision on Naylon's application for a waiver due to alleged business losses caused by the smoking ban.

Contacted Friday afternoon, a dejected-sounding Naylon said that, despite his lawyers' "Pyrrhic victory" in Rochester, he is proceeding with plans to sell Jimmy Mac's for about $100,000.

Naylon said that his 23-year-old restaurant-tavern was worth $300,000 to $350,000 prior to the state no-smoking law but that the Erie County health commissioner's continuing refusal to allow his customers to legally smoke "has put us on a course of disaster" financially.

"They are literally driving me out of business," Naylon said, adding that he has no intention of paying the $2,000 fine.

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