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.

[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!

[ImphClinton]

Laws prohibiting smoking in the workplace have been upheld for at least twenty years. People should not be forced to smoke second hand smoke just to choose bartending as an occupation.

As I suggested bars could have rooms for smokers as long as employees were banned from them under this law.

Your smoke is poison even if you deny that it is so. It isn't as fast as rat poision but just as deadly in the end. Tobacco would be made illegal if possible. The fact is it is not possible at this point, there are just too many smokers addicted to it. Society is the reason it is legal not science. It would be illegal were it a new product.

[Giddyupgo]

Since the law here in Florida, I know a lot of people here (in Tallahassee) go to Georgia to eat, shoot pool, etc.

My brother, a trucker, told me about a truck stop near So. Florida where you can still smoke. The owner told him it's his property, and the govt. be damned. LOL.

Here's a link to some interesting facts on this no-smoking law: http://ourworld.compuserve.com/homepages/CarolASThompson/

[Outraged At FLA]

"Laws prohibiting smoking in the workplace have been upheld for at least twenty years. People should not be forced to smoke second hand smoke just to choose bartending as an occupation. "

Actually, you are wrong. You have no proof second hand smoke is any more dangerous than the smoke that comes off of a flame broiler in any restaurant. Secondly, not all laws prohibiting smoking in the workplace have been upheld:

http://www.iowastatedaily.com/vnews/display.v/ART/2003/06/19/3ef1312298151

http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A17854-2003Jul6&notFound=true

http://www.cigaraficionado.com/Cigar/CA_Daily/CA_Weekly_Wrapper/0,2331,820,00.html

The government cannot stop the facilitation of people to use a product that is legal without stomping on several rights of the constitution.

Provided the lawsuit can get into court in front of a judge who is not a card carrying member of the American Heart And Lung Association, I cannot see how this law can stand.

[Giddyupgo]

Here's something Peggy Noonan wrote:

THEM

The one group for whom liberals have no tolerance at all.

There's a lot to think about this week--the rise of Nancy Pelosi, the
meaning of the Republican triumph--but my thoughts keep tugging
toward a group of people who are abused, ostracized and facing a cold winter.
It's not right what we do to them, and we should pay attention.

I saw them again the other day, shivering in the cold, in the rain, without
jackets or coats. The looked out, expressionless, as the great world, busy
and purposeful, hurried by on the street. They were lined up along the wall
of a business office. At their feet were a small mountain of cigarette butts
and litter.

They are the punished, the shamed. They are the Smokers. As they
stood there--I imagined a wreath of smoke curling round their shoulders
like the wooden collar of the stocks of the 17th century--I thought: Why
don't we stop this?

For a decade now we have been throwing them out of our offices and
homes and public spaces. We have told them they are unclean. We treat
them the way India used to treat the untouchables.

We have removed them from our midst because they take small tubes
of soft white paper with flecks of tobacco stuffed inside, light them on
fire and suck on them. This creates smoke, which pollutes the air.

"Second hand smoke kills." But--how to put it?--we all know that's
just politically correct propaganda invented by the prohibitionists,
don't we? If you spend 24 hours a day in a 4-by-4-foot room with a chain
smoker you'll feel it, and you'll be harmed by it. But are you damaged by the
guy down the hall who smokes in the office at work? No, you're not, and you
know it. You just don't like it. Your nostrils are dainty little organs, and
your nostrils trump his rights.

But you definitely wouldn't be harmed if the handful of smokers
in you office were allowed to smoke only in a common room with good ventilation.
Why wouldn't that be a civilized and acceptable compromise?

And why is it smoking that is the object of such fierce disdain?

Within blocks of where the smokers stood in front of the office
building on Madison Avenue the other day, there were people who last night
bought five rocks of crack cocaine. There were people who watch child porn.
There were people who drive by with the sound up so you can hear the lyrics
of the song they're listening to, which is about how women are ho's who should
be shot. Talk about air pollution. There were people who gorge on food, people
who drink too much, people who perform abortions in the eighth month
of pregnancy--the eighth month, so late that the child could almost
come out and shake his little fist and say "I wish you had not killed me!"
Within blocks of where the smokers stood there were thousands of purveyors
of and sharers in all the mutations and permutations of human woe, sin,
malfeasance, messiness and degradation.

And they all get to stay inside. They all get to sit at their desks.

It's the smokers we ostracize.

It's odd, isn't it?

Actually it's crazy.

PEGGY NOONAN

[Mears]

As a long time smoker,I agree with you. These laws are pathetic.

The restaurant owner you mentioned will encourage people to drink,rather than eat,just because of a dumb law.

Get rid of one minor problem and create a far worse one.

[ImphClinton]

Sorry but you sound like the Tobacco Companies used to. Cigarettes are not dangerous they told all of us. What a piece of crap. Your assertion smells just as bad as your cigarettes.

Never said all laws were upheld. Even said part of this one might not be upheld. But they will fix it and it will become illegal sooner or later in all bars. I am betting the law will stand with little change if the lawsuit is upheld at all.

[Mears]

You don't smoke and smoking disgusts you! Fair enough,but the fact that smokers disgust you is a bit if a stretch.

I don't drink and drinking disgusts me,but I like drinkers,they are just folks doing something I don't like and too bad for me.

[NotQuiteCricket]

I'm sorry, but the reason smoking is not illegal is because there is too much tax money going to the taxing authorities. If they get rid of smoking, all that money goes away. I smoke "for the children." Because the tax revenue supposedly goes to edumacation.

[rocky88]

"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."

And isn't it ironic that while cigarette smoking is being made illegal in many states that the SCOTUS just made it legal to basically increase the spread of AIDS via the sodomites? What the hell is going on in this country, anyway? This is too disturbing.












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[Madame Dufarge]

Hope this helps with the tag line.