NY Bars Defeat Smoking Ban
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L.I. BARS WIN BIG IN LEGAL ASH FRAY
By PERRY CHIARAMONTE
November 13, 2004
Despite the state smoking ban, smokers are being allowed to light up with abandon in a trio of Suffolk County taverns as long as they're willing to pay the fine if they get busted.
The responsibility is placed upon the smoker if caught in the act by state inspectors.
"The way I see it, it's my prerogative to smoke, and I'd rather pay the fine than the bar," said Richard Long, 47, a regular at Tobin's II.
The smoke-in was sparked by the ruling in a class-action suit filed by owners of the three pubs against the state Department of Health, which had leveled hefty smoke-ban violations fines against them.
The owners claimed they obeyed the Clean Indoor Air Act to the letter by posting no-smoking signs and telling customers that smoking in the bar violates state law.
"We knew we had an airtight case going in," said Jack McCarthy, owner of McCarthy's Pub.
"We knew if we behaved ourselves, followed the law and did what we were supposed to do, we were okay."
Supreme Court Justice Paul Baisley Jr., ruled for the taverns on Oct. 13. Tossing out $650 in fines, the judge noted that while bar owners must inform patrons of the law, they are not required to refuse service, toss them from the establishment or make the smokers extinguish their cigarettes.
This week, a Post reporter went to all three establishments to see if management was complying with the Clean Air Act. At all three bars, he was greeted with the same caveat after asking if he could light up - smoke if you want to, but it's against the law.
"I have to let you know that smoking is still against the law," said one bartender when asked if it was OK to puff away. ". . . If you get caught, you'll have to pay the fine."
In addition, all three bars had no-smoking signs clearly posted, and smokers used plastic cups filled with water as ashtrays.
In explaining his landmark ruling, Baisley noted that when a health inspector visited the pubs, "No smoking" signs were posted.
And while the inspector claimed bar employees did nothing as customers puffed away and flicked ashes into plastic cups, the judge noted the inspector didn't interview any of those employees.
The inspector's failure to talk to employees, Baisley said, was fatal to the DOH argument - the presence of smoking customers doesn't prove the tavern's failure to comply with the law.
The DOH is appealing the ruling.
NY: Fear, loathing as bars go quietly up in smoke.
So, after weighing the risks, he followed the example of barmen in scores of other low-rent joints and began distributing saucers to his late-night regulars. They have to be saucers because the mere presence of an ashtray - even a clean one - is taken as proof positive that illegal activities have been going on.
NY Bars Defeat Smoking Ban - Sort Of
New York Lawyer
October 26, 2004
A trio of Suffolk County tavern owners have defeated the state law that outlaws smoking in bars - sort of, the New York Law Journal reports. Supreme Court Justice Paul J. Baisley Jr. ruled this month that the Clean Indoor Air Act (Public Health Law Art. 13-E), requires bar owners to post "no smoking" signs in their establishments and to admonish people who light up in defiance of those laws. The statute does not, however, require the bar owners to enforce the law by ordering patrons to stub out their cigarettes or otherwise refuse to serve them. To read such a requirement into the law grafts on to it "an onerous, substantive enforcement requirement that the law itself does not impose," Justice Baisley wrote in an Oct. 13, decision. Patricia Ann Cottage Pub Inc. v. Mermelstein, No. 005806-2004. Accordingly, the judge vacated and annulled rulings, including the imposition of $650 fines, by the Suffolk County Department of Health Services against three different establishments.
The case came before the court in the form of an Article 78 proceeding challenging the fines against Jack McCarthy's Pub in Centereach, Tobin's 2 Pub in Ronkonkoma and the Dunton Inn in East Patchogue. In two of the three cases, the judge recounted, a health department inspector arrived in the tavern and discovered that despite the placement of no-smoking signage, patrons were puffing away and flicking their ashes into water-filled plastic cups apparently provided by the bar tenders. (In the third case, the requisite sign was posted, but not seen by the inspector.) The health department agent testified that at no time did she see any employee take action to stop any customer from smoking. But, in the 20 to 25 minutes the inspector spent in each bar, she did not interview any of those employees, the judge noted. Her failure to do so was fatal to the county's case, Justice Baisley said. "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," he said. The judge rejected the establishments' contention that the Indoor Clean Air Act was unconstitutional, however, ruling that the petitioners had failed to notify Attorney General Eliot Spitzer's office, as required by Executive Law §71. He did, however, grant leave to renew upon the provision of proper notice.
The law office of William C. Goggins in Mattituck represented the bar owners. The petitioners will likely pursue that leave to explore the constitutional issue, said Mr. Goggins' partner Anthony H. Palumbo. Deputy County Attorney Christopher M. Gatto represented Suffolk County. County Attorney Christine Malafi said that her office is filing an appeal. She maintains that the investigator's observations were sufficient to support the penalties assessed.
New York Ban 'Has Cost 2,600 Jobs'
November 10, 2004
By Chris Moncrieff, PA
New York bar owners have denied the city's smoking ban has been an unqualified success.
Tom McCabe, former health minister in the Scottish Parliament and now finance minister, has been told that nothing could be further from the truth.
In a letter to Mr McCabe, made public today, the Empire State and Tavern Association, the New York Nightlife Association and the United Restaurant and Tavern Owners said the latest available statistics are damning in terms of the economic effect the ban has had on the city's hospitality industry.
New York's bars and taverns and their suppliers have lost 2,600 jobs, 50 million dollars in wages and 70 million dollars in production, it was claimed.
"For months, bars across New York have felt the pain of a total smoking ban, only to be accused by the anti-smoking supporters of misrepresenting the impact," the letter said.
They claim that another important knock-on effect has been the loss of tips.
"Many bartenders are losing upwards of 50% of their nightly tips and as they are only paid 3.35 dollars per hour, this is having a major impact on their salary."
The letter said that disgruntled city residents are unhappy about the noise caused by smokers, who are forced to congregate on the street outside bars.
"In some cases this has even led to violent behaviour towards smokers in the street."
The letter continued: "As if this isn't enough to contend with, there is the major issue of how the smoking ban is enforced.
"The burden of imposing the ban is on the bar owner, not the customer who is actually breaking the law. If customers were fined, as legally they are supposed to be, we really would have seen a riot here.
"The real solution is to put smokers back inside the bars where they belong."
Roger Franklin: Bar's still smokin'
Like a lot of New York's straight-off-the-boat Irish barmen, Brian - "no surname, thanks" - has a problem with authority; one that means keeping a weather eye on the door of the unfashionable watering hole where he slings suds from 6pm until closing time.