ERIE COUNTY Criteria set for waiver of state smoking ban
After months of criticism, Erie County slightly loosened a strict smoking ban by releasing long-awaited rules Friday for obtaining exemptions.
Some anti-smoking advocates praised the guidelines. Others continued to call for a total ban on smoking in public places.
Meanwhile, some businesses expressed optimism about the new waiver process, while others described the guidelines as a disappointment.
"The county criteria are more stringent than the state's. They are more stringent than those in Niagara County," said Nicholas P. Amigone III, attorney for Jimmy Mac's, an Elmwood Avenue bar-restaurant that took legal action on the waiver issue.
"It will be difficult for us or anyone else to qualify," he said. "We have lost our ability to make a profit."
Businesses and social clubs have fiercely lobbied for exemptions since the State Legislature enacted the smoking law in July, saying the ban jeopardized their livelihoods by driving away customers.
The waiver application process released by the county's top public health official requires proof from businesses and social clubs that the ban has caused undue financial hardship, including documentation of at least a 15 percent decline in sales tax receipts caused solely by the smoking ban.
Even if a waiver is granted, smokers can light up only in clearly marked rooms that are ventilated and equipped with self-closing doors.
"We've tried in our approach to protect the public's health while carrying out the spirit of the law," said Dr. Anthony Billittier IV, county health commissioner.
About 150 establishments - from bars to bowling alleys to social organizations - have expressed an interest in a waiver in Erie County, according to Health Department officials. It's not clear how many more will apply. A waiver application costs $98 and must be resubmitted annually.
The state law provided for exemptions but gave little guidance about how to decide who should get them if counties choose to allow them.
Counties with health departments could establish their own criteria for waivers, the state said. But, as in Erie County, most waited for the state to set standards.
Things changed in December after a lawsuit was filed by Jimmy Mac's and later joined by the Gaelic American Athletic Association's Irish Center on Abbott Road.
The establishments argued in court that the county ignored the state law for five months and had no right to reject their requests for exemptions when the law includes an exemption provision.
An "impossible' task
As a result, State Supreme Court Justice Rose H. Sconiers ordered Billittier to devise criteria for waivers by Friday.
Shortly after her order, the state issued rules that applied to the 21 counties that don't have their own health departments but that other counties might use as a guide.
The state rules allow two-year waivers of the smoking ban for "undue financial hardship," defined as a reduction in food and beverage sales of at least 15 percent. Waivers also can be issued for safety or security reasons that make compliance unreasonable, for "exceptional circumstances" and in cases where establishments spent significantly to accommodate smokers for smoking restrictions that existed before the state ban.
While outlining his policy, Billittier leveled criticism at the State Legislature for enacting the law with a provision for waivers that lacked details about how counties should handle them.
"This ban was dumped on health departments with little guidance," he said. "We were asked to do the impossible, to decide on a level of financial hardship that was worth compromising the health of employees and customers in a business."
Court action is expected
He and others want the Legislature to modify the bill either by declaring definitively that waivers are not allowed or by setting more detailed guidelines that can be applied equally across the state.
"Our policy is going to be the subject of criticism and court action," he said.
Erie County's waiver decision follows a similar release of guidelines in Niagara County that are not as stringent. Those rules, for instance, set the bar for undue financial hardship at a 10 percent decline in sales tax receipts.
Billittier's guidelines received praise from some anti-smoking advocates.
"(The criteria) cut through the rhetoric of financial doom and gloom and put the onus on business to protect employees, patrons and vendors," said Gretchen Leffler, regional vice president of the American Cancer Society.
Others were critical.
"We don't support weakening the law. The health protections are too important," said Terry Alford, a representative of the Erie-Niagara Tobacco-Free Coalition.
"The simplest and fairest rule is to not grant waivers, as is the case for the majority of the population in New York. If waivers are to be granted, then they need to prove losses are because of the law," said Andrew Hyland, a Roswell Park Cancer Institute researcher who studies tobacco issues.
Bar owners greeted the changes with cautious optimism, although few were familiar yet with details of the guidelines. Now, at least, a process exists to review waiver applications.
"It's a foot in the door. The counties are at least listening to the business owners," said Judi Justiana, owner of Judi's Lounge, a longtime pub in Niagara Falls with a cast of regulars who enjoyed a smoke with their drink.
"This is so important to small businesses," said Michael Campbell, owner of Buddies, a bar on South Elmwood Avenue. "Customers are just not coming out. My business is down at least 30 percent."
Amigone said, "We believe the criteria are arbitrary and capricious," noting that different counties will have different standards.
Use of sales tax criticized
Like other critics, he pointed out that the county guidelines fail to take into consideration business owners who spent handsomely on ventilation systems or smoking rooms in recent years.
He also argued that sales tax receipts inadequately reflect how well a business is doing. A business could have fewer customers, for instance, but not see a change in sales tax receipts if it raised prices.
e-mail: hdavis@buffnews.com