Smokers Suing To Stop NY Smoking Ban

The Post Standard ^ | 07/23/2003 | The Post Standard

[Outraged At FLA]

Six New York taverns - including two in Syracuse - sued the state Tuesday and asked a federal judge to stop authorities from enforcing the new law that bans smoking in all indoor work sites, including bars and restaurants.

Buies Inc., the owner of Dodester's, a bar at 2426 South Ave., and Barmarsue Inc., owner of Murray's, at 2722 Burnet Ave., are plaintiffs in the lawsuit, along with the Empire State Restaurant and Tavern Association, and four other bar owners.

The lawsuit - which seeks to block the law statewide - was filed in U.S. District Court in Syracuse because five of the plaintiffs are Upstate bars. The sixth is on Long Island.

U.S. District Judge Lawrence Kahn, of Albany, is not expected to rule on the request to block the new law before the smoking ban takes effect at midnight today, said Scott Wexler, executive director of the state tavern association.

Wexler said he hopes that within a few weeks the court will issue a decision that will block the state from enforcing the law.

"We feel the state shouldn't be telling us how to run our business," said Sue Murray, co-owner of Murray's. "Our customers should be able to smoke if they want to. Tobacco is not illegal."

The Legislature passed the law in March to protect New Yorkers from being exposed to cancer-causing second-hand smoke while working.

New York's law is constitutional and the attorney general's office will vigorously defend it, countered Marc Violette, a spokesman for Attorney General Eliot Spitzer.

Donald Distasio, the chief executive officer of the American Cancer Society's Eastern Division, said the tavern owners' lawsuit "is the equivalent to a 'Hail Mary' play in football. It's a last act of desperation with little hope of success."

The lawsuit claims the state law is unconstitutional because it conflicts with workplace safety standards established by the federal Occupational Safety and Health Administration. Those standards were designed to protect workers from airborne contaminants, including second-hand smoke.

OSHA established permissible levels of exposure for hundreds of substances, including the chemicals found in second-hand smoke, according to the lawsuit.

"The law is pretty clear that once a federal standard is in place, a state law can't supplement, supersede or supplant that issue," said lawyer Kevin Mulhearn, of Orangeburg, who represents the Empire State Restaurant and Tavern Association.

The lawsuit also claims that the state law is unconstitutional because it is vague.

It notes that the law allows county health departments to grant waivers from the smoking ban to property owners who would experience undue financial hardship.

But the state Health Department has ruled that such waivers cannot be granted because the Legislature did not include in the law any criteria for waiver applicants to meet.

Included as an exhibit in the lawsuit is a letter Onondaga County Health Commissioner Dr. Lloyd Novick wrote July 10 to the owner of Mac's Bad Art Bar in Mattydale in which he denied Mac's a waiver from the smoking law.

Dodester's co-owner, Caren Snyder, said Dodester's agreed to be a plaintiff because the law will hurt her bar and other taverns.

"People come here for the entertainment of each other, and smoking seems to be part of it. If they have to go outside to have a cigarette, I believe they won't stay as long," Snyder said.

She said Central New York bars will especially get hurt in the winter when customers will not want to go outside to smoke.

Sue Murray said it is frustrating that she and other tavern owners have to sue the state to get politicians to listen to them.

She said she's not sure why the tavern association invited her bar - out of the thousands of bars in New York - to join the lawsuit as a plaintiff.

"Probably because we're a small bar, and it's just my mother and me that own it," she said.

But she admitted to being nervous about the attention the lawsuit might bring her and her mother, Barbara Murray, who co-owns Murray's.

"We're not limelight people," Sue Murray said. "We're just a neighborhood bar. Nobody knows about us. Now they will."

The other four bars suing the state are Stash's Pub in Lowville, Lost & Found Inn in Tyrone, Tazmond's Pub in Uniondale and Keefe's Tavern in Elmira.

[Outraged At FLA]

Well, I wish they would have started the lawsuits earlier than this, but it is a start. Starting tomorrow this stupid ban goes into effect.

[CJ Wolf]

I was in Jersey this weekend, stopped in a sub shop and was pleased to see the handwritten sign on the wall. "There is no non-smoking sections in here"

[Alberta's Child]

My understanding is that restaurants in particular have a solid legal basis for their lawsuit. When the state of New York passed a law a few years ago requiring all restaurants to have separate non-smoking areas for their patrons, many restaurants spent a lot of money installing separate ventilation systems for their smoking and non-smoking areas. If the state now wants to ban smoking in restaurants altogether, then the least it can do is compensate all those business owners who spent the money to meet those last restrictions.

[talleyman]

Burning a flag is protected speech, burning a cigarette isn't?

[wayoverontheright]

Smokers Suing To Stop NY Smoking Ban...

I love freedom more than I hate smoke.

Hopefully there are some non-smokers involved in this. If we all sit back and watch our private property rights eliminated by the busy-bodies then we'll get what we deserve.

[The Great RJ]

The anti-smoking zealots are missing the point--it's the taxes stupid. State governments depend on sin taxes especially on cigarettes as a major source of revenue. If smoking is banned the states will hve to look elesewhere for the tax revenues. To support a massive social welfare system smoking is essential.

[Texan5]

The American Cancer Society should go pound sand, stay out of government and private business, and totally defund. Or better yet, start looking for a CURE, because that is supposedly why you exist and get donations (but not from me).

[Outraged At FLA]

If the plan is that this is to keep workers healthy, then the law should be the same as it is for asbestos workers: require the workers wear the proper apparatus (mask, chem-suits etc.) to protect them.

This is just a property rights grab, plain and simple.

[Gabz]

Well, I wish they would have started the lawsuits earlier than this, but it is a start.

They've been moving as fast as they could - they needed to raise a bunch of money to get it started.

There are going to be several more coming down the road here very shortly, and not just in NY!!!!!!!!!!!

[Outraged At FLA]

Yeah, I donated to the NYCClash site as I liked their constitutional arguement on this. FYI it can be found here:

http://www.nycclash.com/

Their lawsuit also began this week.

[Gabz]

And the folks in Delaware are also working on theirs. They have been working closely with the CLASH folks.

There's rumbling in Florida as well.

[Beck_isright]

The lawsuits are starting up here in Florida too. One bar down in Miami got clever. The law states that "10% of gross food sales or less" would be the standard for granting a waiver. So this one bar in Miami is only serving food during football season and launching MASSIVE happy hours this summer to make sure 91% of his sales are in booze this year. This law is so moronic, it's pathetic.

[Outraged At FLA]

BTW, Clash has released a press release about their lawsuit:

PRESS RELEASE For immediate release: July 23, 2003 Contact: Audrey Silk (917) 888-9317 Contact: Kevin Mulhearn (845) 398-0361

SMOKERS' RIGHTS GROUP SUES NYC, NY STATE OVER SMOKE BAN

On behalf of its members, the 2 million smokers in New York City, and the 4 million smokers in New York State, NYC CLASH, the state's largest smokers' rights organization, has today filed suit in the federal Southern District Court of NY against both City and State, contending that the sweeping bans against smoking recently enacted in Albany and Manhattan are arbitrary, discriminatory and unconstitutional.

"There is no rational basis for any of these laws," says NYC CLASH founder, Audrey Silk, "and they obviously discriminate against smokers, as a class. The people who smoke seem to have been forgotten and this lawsuit is a chance for the people to be heard."

The lawsuit, filed by the group's attorney, Kevin T. Mulhearn, asserts that the laws, which prohibit smoking in virtually all privately owned establishments in the state ("with the exception--so far," Silk adds, "of private homes") violate the fundamental rights of all smokers as described in the First, Fifth and Fourteenth Amendments. Among these rights, granted to all citizens, are the unabridgeable right to enter into contracts, the right to free assembly and free association, and the federal guarantees of both equal protection and due process.

"It's as though," Silk says, "we've lost all our rights as American citizens just because we've made the legal choice to smoke. In fact, the only right these laws want to leave us is the right to pay taxes."

Link here:

http://www.nycclash.com/LawsuitPressRelease.html

[Gabz]

I had seen the press release.

They are not kidding around.

The problem is the amount of money and retained lawyers that the antis and the government have - these groups have no where near that kind of funding. And trying to get a lawyer to do this type of suit pro-bono or on contingency is a losing battle.

[nothingnew]

PUFF

FMCDH

[CSM]

I say that as patrons in a smoking ban city all tips come to a halt. If the servers didn't think it important enough to be active to protest the potential bans then their incomes should not be suplemented by smokers. Let the non smokers pay more, heck we all know the argument that the bars will make more money because the customer turnover will increase. In addition, if this is for their health then their health costs should go down and they tips from smokers would not be needed.

An economic protest will be the only way to get some of our citizens to "pay" attention.

If I am in a restaurant/bar that allows smoking I will continue to tip very well.

[Conspiracy Guy]

No anti's on this thread. Heck!

[Outraged At FLA]

Even though smoking is allowed in restaurants here (until tomorrow), a good portion of restaurants here voluntarily went non-smoking. I never had a problem with that, I just went to restaurants that did allow it. That is the free market.

My favorite pub will now have to go no smoking and I will not go there as often and when I do go, I can't see myself staying that long. I feel bad for the owner-operator who is my friend, but he understands. People will not buy a product if they do not like it. I do not enjoy craving for a cigarette while drinking a frosty one that in turn makes me want a cigarrette even more.

[yoe]

The Legislature passed the law in March to protect New Yorkers from being exposed to cancer-causing second-hand smoke while working. What about other contaminants, asbestos or tainted food or the chemicals used for cleaning? Lung Cancer is about 50/50 the cause of death and smoking is only a ‘related’ cause – maybe. AIDs is more costly to the government/insurance companies than cigarettes. Nosy, intrusive government has exacerbated the problem as have easily led hypochondriacs. As a result, venom has replaced respect, and obstinacy has replaced courtesy. It is government and those people not secondhand smoke, that have poisoned the atmosphere.

http://www.forces.org/humor/files/thermo.htm
an interesting chart where “truth” merits a zero. Secondhand smoke is still a myth and studies incomplete.

[Conspiracy Guy]

It hasn't got here yet but it's coming. Hopefully by the time it gets speed up here it will have been overturned enough to scare the Nannys off.

[Outraged At FLA]

Worry, because it is becoming a trend.

[Just another Joe]

It's good to see that some are fighting the anti-smokers.

[Labyrinthos]

The lawsuits are starting up here in Florida too. One bar down in Miami got clever. The law states that "10% of gross food sales or less" would be the standard for granting a waiver.

The county where I live has a similar exemption. The law is unconstitutionally vague, however, because it doesn't define the time period over which the pub or restaurant is supposed to measure the ratio between food and alcohol sales. The place where I hang out has taken the position that the sales percentages should be measured in 30 second cyles throughout the day. Another place takes the position that the calculation is for the previous 200 years (the tavern is one of those places where George Washington supposedly slept).

[Gabz]

It's good to see that some are fighting the anti-smokers.

Right now I want to see people taking the (*(*&^^% media to task for blaming the shooting in NYC earlier on the smoking ban protest going on today.

The protest is TOMORROW!!!!!!!!

[Outraged At FLA]

I may be wrong here since I have read so much information about smoking bans, but the ban they have in California has an exemption if you are an owner operator with no employees.

What many owners then did was give a %1 share of their business to their employees making them part owners and therefore leaving them out of the smoking ban.

[Conspiracy Guy]

I don't worry about anything. If I can't do something about it, I turn it over to my maker. I usually save that for the big stuff. Instead of worry we are already taking action to try to preempt it. It's very grassroots but it is spreading.

[bc2]

are you in New York?

it seems tomorrow is D-DAY!

I will be going to about 4 or 5 bars in my neighborhood to see which ones will follow the ban and which will flaunt it.

THIS IS JUST ANOTHER EXAMPLE OF GOVERNMENT INTRUSIONS

[Outraged At FLA]

Well, unless each of the owners of those bars has $2000 to pay for the FIRST fine laying around, I would expect compliance.

[Gabz]

I think you are correct about the situation in CA.

But the NY and DE one's do not have that type of situation. NYC did have an owner operated exemption and the state ban supersedes that.

[Gabz]

I can name every bar in the State of Delaware where you can smoke with your drink.

But I guarantee I would never mention them publicly.

[A. Pole]

I will be going to about 4 or 5 bars in my neighborhood to see which ones will follow the ban and which will flaunt it.

I will be willing to spend money in smoke-easy bar when one will pop-out around. I will tip well too!

[A. Pole]

What many owners then did was give a %1 share of their business to their employees making them part owners and therefore leaving them out of the smoking ban.

Seems like a good idea.

[Gabz]

Like the ban in Delaware, the bans in NYC and NYS and Florida are primarily complaint driven, and except in cases of real trouble, the police are not be called for involvement.

The Health department in Delaware is in charge of enforcement and they only have 18 people to cover the entire state. They claim that there were only 500 complaints and only about 100 sustantiated in the first 6 months that compliance is very high. What it tells me is that people by nature ARE NOT SNITCHES.

I would be very surprised if compliance is even as high as 50%, especially on the weekends.

[RobRoy]

I am not a smoker. Smoking and smokers disgust me.

That said, this law is pure facism. Nothing more, nothing less.

[A. Pole]

I am not a smoker. Smoking and smokers disgust me. That said, this law is pure facism. Nothing more, nothing less.

I would be happy to patronize smoke-easy bars to inhale the second hand smoke - the smell of freedom. :)

[Normal4me]

I won't smoke where people are eating if they promise not to eat where I am smoking. If they are that hungry then let them go to a restaurant and enjoy a quiet meal while I play pool and drink beer and smoke my overtaxed cigarrettes.

[Normal4me]

Better yet, make the eaters go OUTSIDE to eat!

[Gabz]

LOL!!!

I like your attitude.

[Normal4me]

Thanks. When ya think about it, its a lot easier to carry a sandwhich outside then it is to move a pool table outside! ;-)

[Gabz]

I've got several bets going in Delaware that the antis will seek to get smoking banned within 25 feet of entrances, which kills out door patios, when the Legislature returns in January.

[RobRoy]

Me too. Smoking increases your risk of various diseases to a point. But not as high as people perceive it. It is still not healthy, to say the least.

The problem is that second hand smoke has only a tiny fraction of the toxicity of “first hand” smoke. The extra risk of these same diseases is statistically zero. That is, unless you are a cat living in a home with a chain smoking owner. Then it does go up statistically. But that’s because they lick the smoke residue off their fur.

[A. Pole]

Smoking increases your risk of various diseases to a point. But not as high as people perceive it.

Smoking can reduce/delay the risk/onset of Parkinson and Alzheimer. So if you smoke Clinton way (no inhaling - cigars or pipe) depending on your genetic propensity (check you family history) smoking can be a good health choice.

[qam1]

That is, unless you are a cat living in a home with a chain smoking owner. Then it does go up statistically. But that’s because they lick the smoke residue off their fur.

Nope even the cats and dogs are uneffected by the nondanger of SHS, Actually Cats and Dogs could actually be helped by it

http://www.freerepublic.com/focus/f-news/812492/posts?page=22#22

[qam1]

One bar down in Miami got clever. The law states that "10% of gross food sales or less" would be the standard for granting a waiver.

Couldn't a restaurant to get around the ban do something like sell a beer for say $30 but with that beer comes a free steak dinner so technically 100% of their sales will be from alcohol

[Outraged At FLA]

The NYS Smoking ban allows waivers, but they set no qualifications of who can get the waiver.

[ImphClinton]

Now let me get this right the law protects workers from smoke.

Solution build a negative pressure room with separate ventalation (this keeps the smoke only in the smoking room). People can smoke eat etc. in there but no employee can enter the room during business hours. This overcomes the law while protecting the workers.

[ImphClinton]

I see no basis that is winable in this lawsuit except the wavier provision. I suppose the court could set standards but they would require the bar prove financial loss afeter the law took effect. This would be a difficult thing to do.

Rat poison is legal but you can't put it in someones soup. Tobacco is legal but you can't make someone else breath it based on the same princible.

These laws have been upheld everytime so far.

[Outraged At FLA]

"Tobacco is legal but you can't make someone else breath it based on the same princible. "

Actually, this is flawed, nobody is being forced to breath it. The same law was thrown out by a judge in Nassau county. It has a good chance to be overturned.

If someone was REQUIRED to go to a restaurant/bar/private business such as say children are required to go to school, then it would be different, but last I checked, there is no law requiring you to eat at a restaurant or bar.

It is not legal to ingest Rat Poison ever, so your point does not hold water. It is legal to inhale Tobacco.

[jjm2111]

I want to walk into the American Cancer Society office and light up a big Churchill.

[timestax]

Well, I wish they would have started the lawsuits earlier than this, but it is a start. Starting tomorrow this stupid ban goes into effect. 1 posted on 07/23/2003 11:20 AM PDT by Outraged At FLA [

I don't smoke, but I feel for the business owners. Hope it's not too little too late!