A New York smoking ban has barstools reeling

DUNKIRK, N. Y. -- In this city along Lake Erie, once a humming industrial center now plagued by factory closures, anyone hoping to toss back a couple of drinks in a bar and talk of better times must do so without a cigarette.

Two cousins, one who smokes, the other who never has, were drinking one night in a Central Avenue bar called Tito's.

"You really think anyone's going to quit smoking because of a law?" said

Carlos Gonzalez, 45, a janitor who likes to smoke when he drinks. He asked the bartender if she knew about a lawsuit filed against the state's Clean Indoor Air Act, which was hailed by health advocates as one of the nation's strictest smoking bans when it took effect July 24. "You don't have the right to inflict harm on others," said Manuel Gonzalez, 48, a machinist and the nonsmoking cousin, who supports the ban. "There is no right to smoke. It's dangerous."

Bars in places like Dunkirk, near the Pennsylvania border, and in towns along the New Jersey border to the south have complained of losing business to states that do not have similar smoking restrictions. (In Massachusetts, a statewide ban was voted in November that included smoking in bars and restaurants. It will take effect in July.)

Critics have called the New York ban too harsh for the upstate economy; supporters have pointed to a recent finding that bars and restaurants have not been hurt.

Tax receipts on alcohol increased 2.8 percent from August to November of 2003 compared with the same period of the previous year, while the number of bars and restaurants licensed to serve liquor increased 1.1 percent from October 2002 to October 2003, according to an analysis of state data by the Roswell Park Cancer Institute of Buffalo. The study did not differentiate between downstate and upstate, where tough enforcement of the ban began only recently, and where rural counties without health departments rely entirely on the state for crackdowns on bar owners.

Supporters of the ban say it allows everyone to compete on a level playing field. Critics call that a fantasy because the prohibition is being enforced differently in the state's 62 counties.

Ignoring the law has been easier in the rural northern and eastern regions that border Vermont and Massachusetts, said Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, which has filed a lawsuit against the ban. While compliance varies around the state, bars everywhere are struggling, he said.

"There are a couple every week that close down, due at least in part to the smoking ban," Wexler said.

Brad Dixon, owner of the Solsville Hotel, near Syracuse in central New York, said that after one fine he is "trying to go legit" but notes losing money to other bars, including one right across the street, that still allow smoking inside. Business on the weekends has been cut in half, he said.

"It's unfair," Dixon said. "They're enforcing it on a complaint basis only at the Health Department, and they have only four employees. I'm not going to turn in the guy across the street."

A health official, Dr. Michael Caldwell, however, said the process has been "surprisingly smooth." Fines can total thousands, get the message across quickly, said Caldwell, president of the New York State Association of Public Health Officials and health commissioner of Dutchess County, in the Hudson Valley.

"We go in and educate them . . .After a day or two if they're still permitting smoking, we make it clear to them that we're not kidding, and we start fining," he said.

The state Health Department ruled recently that waivers can be granted to businesses that can show they have lost at least 15 percent in sales since the ban went into effect.

The state's other 41 counties are free to set a higher standard or refuse to allow waivers altogether, but the 15 percent mark could still become the benchmark.

The state's ruling was cheered by the ban's opponents, like the Empire State Restaurant and Tavern Association. That group filed a lawsuit seeking a preliminary injunction, asserting that the law is vague and that it gives the federal power of regulating workplace safety to the state. A federal district court judge in Syracuse dealt the suit a blow in October when he dismissed a request for a preliminary injunction against the ban.

In 1998, California became the first state to ban smoking in public places, though it permits it at bars with fewer than five employees.

Delaware, Florida, Vermont, Connecticut and, as of Jan. 1, Maine all have some form of a ban on public smoking. Legislation is pending in Maryland, and the Massachusetts Legislature has approved a statewide ban.