A statewide smoking ban swept through Albany like undigested feed through a goose in March, but a growing group of local bar and restaurant owners aren't going to wait for it to take effect as scheduled on July 23 without a fight.
The battle won't center on the issue of smoking, said the head of one grassroots group, but on whether the state can dictate the practices of private businesses.
"It's not a smoker's rights issue -- we're not saying smoking is good for you," said Renee Lembke, owner of the Middleport Inn and founder of Operation New York State Bar and Restaurant Freedom. "We're fighting for our rights as business owners. The law is not clear, it's not justified, it's contradictory. Ideally, we will make them rescind the law."
Lembke said her group is joining forces with the Empire State Restaurant and Tavern Association, which is planning a lawsuit and preparing amendments to submit to the legislature before the ban takes effect.
"Our monies will go to help them, so that we'll be one larger group instead of a lot of groups trying to fight this on our own," said Lembke, whose group had collected more than 4,000 signatures on petitions protesting the ban as of Saturday.
The opposition's first strike is a planned week-long boycott of the state-run Quick Draw Lottery game, set to begin on May 19.
Judi Justiana of Judi's Lounge on Military Road said her business generates $7,000 to $9,000 per week through Quick Draw, 94 percent of which goes to state coffers.
"We're asking bar and restaurant owners to do what they can, whether it's turning off Quick Draw for a day or two, or for the whole week," Justiana said. "If enough people do it, there will be a huge impact on the state."
A meeting for local business owners is scheduled for 6 p.m. on Tuesday, May 6, at the Alps Chalet on Military Road.
This particular group of business people is especially prickly when it comes to interference from Albany, given the amount of cash they send to Albany via sales taxes, liquor licenses and other fees specific to their industry.
"Every time we turn around, our industry is hit," Justiana said.
The New York State Legislature passed the ban so quickly, the people who voted for it more than a month ago still don't seem quite sure why.
Maybe it's to protect the health of bar and restaurant employees, our elected officials say, whether they want such sheltering or not.
Or maybe it's because health costs in general are spiraling out of control across the state, even though no one has cited a shred of evidence that keeping people from lighting up in taverns will make a substantial difference.
Or it could be, as state Sen. Byron Brown suggested last week, it's because the people who want the ban yelled louder than those who don't. Or more accurately, wrote bigger checks.
The bill didn't get the fast-track treatment because the American Cancer Society or other traditional anti-smoking groups suddenly had more money to throw around. It passed before almost anyone knew it was being considered because the New York State Restaurant Association, which isn't affiliated with the Empire State Restaurant and Tavern Association, wanted it that way.
"They're actually the ones that really pushed it," Sen. George Maziarz said.
The association opposed statewide smoking regulations until this year. With more and more localities passing bans that exempted bars, whether or not they served food, association members, most of whom don't serve alcohol, decided to "level the playing field," in their words, by inflicting the ban on every eatery and watering hole in the state.
Since the NYSRA possesses a wealthy political action committee ready to dole out campaign cash to legislators willing to see things its way, finding enough legislative leaders willing to buy into one of the above rationales didn't take much time.
Brown cited the organized lobbying of the ban's supporters in a Niagara Gazette story last week. Apparently, Brown believes that if people don't take time to fight against a law they don't know is under consideration, they must be in favor of it or not care. That remarkably self-important world view discounts the fact that most tavern proprietors are too busy running their businesses to scour Albany's agenda on a regular basis.
While the Restaurant Association's flip-flop on the issue received a smattering of publicity statewide in January, none of it was local.
Assuming Brown is in Albany on June 3, he'll hear plenty from the ban's opponents. Tavern and restaurant owners from across the state are planning to gather that day to protest.
A meeting held Saturday at the UAW Hall in Lockport drew about 75 people, most of them bar and restaurant owners. The majority were business owners who wanted to ask questions or voice their opinions to Maziarz and Assemblywoman Francine DelMonte, both of whom voted for the ban, but a handful of anti-smoking protesters showed up, as well.
The UAW Hall allows smoking, so the protesters initially refused to enter. Finally realizing that no one else cared whether they came in or not, the anti-smoking contingent plugged their noses and entered.
Justiana, who has given up the habit but says, "I'll always consider myself a smoker at heart," said the protesters were predictably self-righteous when given time to speak at Saturday's meeting.
"They always make us out to be the bad guys," she said. "We've tried through all this to be courteous to non-smokers, by giving them their own sections and staying in ours. But at the same time, they've been so rude about any kind of smoke around them. But I said, 'Let's continue our tradition and not smoke for 20 minutes while they speak.' And we did."
Opponents of the ban also spoke, as did DelMonte and Maziarz. Maziarz said there's a clause for hardship waivers built into the law, but that the specifics of what constitutes a hardship and what remedies would be offered to those who qualify aren't specifically defined.
"There's always room for movement," Maziarz said of potential amendments to the law before July 23. "I want to help the small owners."
One possibility mentioned at Saturday's meeting was extending Quick Draw eligibility to bars that don't serve food, in an effort to offset any lost business.
"I don't have Quick Draw and I don't want Quick Draw for the kind of place I have," Lembke said. "We asked questions like, what would the waiver entitle you to? Total exemption? A blocked-off smoking room? And they didn't know. They didn't. No more questions were answered. I was very frustrated at the end of the meeting. All of the gray areas are still gray."
While the anti-smoking interests are more than willing to tell business people how to make a living, they're not the ones who ultimately pay the bills.
"Losing even 10 percent of my business will kill me, but it will be even more than that," said Lembke, who celebrated her first full year as proprietor of the Middleport Inn last month. "I'll do whatever I have to to cater to both sides. The government wants us to cater to only one side, and it's not the side that keeps bars in business. I can't see any of my avid non-smokers coming in any more than they do."
"Smokers go to bars -- they're the ones that keep us in business," Justiana said. "They're going to continue to smoke no matter what laws you pass. Our elected officials need to know, you're passing laws to make sure they smoke somewhere else, and not come in and spend money to keep us in business."
Supporters of the ban love to cite the supposed success of California's smoking ban, without bothering to cite any sources to bolster their claims.
But a study by the American Business Institute showed 59.3 percent of California bar and restaurant owners reported a loss of business since the ban went into effect in 1998, while only 6.7 percent said business had increased. Those that lost business reported an average decrease in sales of 26.2 percent, while those "helped" by the ban experienced a boost of 6.7 percent. And an analysis of California's sales-tax rolls showed that there are 1,039 fewer bars and restaurants in the state since the ban went into effect.
"I don't know what kind of morons they think we are," Lembke said. "We're hearing it from our customers, from the inside. And the politicians are saying, 'It's proven that business goes up.' If that was the case, don't you think we would have picked up on that and gone with it? We know our businesses inside and out. That's all they have to say: 'Everybody knows that business increases.' No, it doesn't."
The California analogy also conveniently ignores differences in climate and lifestyle between the Golden and Empire States. A more telling comparison comes from looking at the results from a ban on smoking in bars and restaurants in Ottawa, Ontario.
An Oct. 26, 2002 article published in the Edmonton Sun, headlined "Smoking ban disaster for Ottawa bars," details the fallout from a law passed a year earlier.
"We lost close to $80,000 in sales," said Dave O'Connor, who operated the Beacon Hill Arms for nine years before the losses drove him out of business. "I wasn't going to be a millionaire, but everyone enjoyed the place."
"I would say it's been an unmitigated disaster," said Barry McKay, general manager of the Pub and Bar Coalition of Ontario, which formed to fight the Ottawa ban. "It was disastrous. People stopped going out, and they still haven't come back. I don't think they ever will."
Justiana said that local proprietors need to fight to avoid a similar fate.
To get involved, bar owners and other opponents of the smoking ban can call her at 297-5759 or e-mail her at judilou02@aol.com. Lembke can be reached by calling 735-9496 or e-mailing nysfreedom@middleportinn.com.
"We have to keep saying, 'I'm mad as hell and I'm not going to take it anymore,'" she said. "When the politicians tell us about other places and how this is going to help us somehow, we need to say, 'You're not going to take it away from us as easy as they did. We're not giving up. It's not a done deal.'"
STATE SENATE
Byron Brown
615 Legislative Office Building
Albany, N.Y. 12247
854-8705 or (518) 455-3371
e-mail: bbrown@senate.state.ny.us
George Maziarz
805 Legislative Office Building
Albany, N.Y. 12247
438-0655 or (518) 455-2024
e-mail: maziarz@senate.state.ny.us
STATE ASSEMBLY
Francine DelMonte
428 Legislative Office Building
Albany, N.Y. 12247
282-6062 or (518) 455-5284
e-mail: delmont@assembly.state.ny.us
More information on the smoking ban and its opposition, including printable petitions, is available at www.middleportinn.com.
| Niagara Falls Reporter | www.niagarafallsreporter.com | May 6 2003 |