It looked like the perfect plan.
Late last winter, armed with spurious statistics, irrelevant comparisons and a strategy for sneaking the nation's strictest smoking ban through the state legislature and onto the desk of Gov. George Pataki, anti-smoking forces descended on Albany.
While the mainstream media snoozed, legislation prohibiting smoking almost anywhere except your own home or vehicle -- and don't think they didn't try to tell you what to do in those places, as well -- zipped from fond wish to state law in less than 48 hours.
The law took effect after state Assembly members and senators returned home for the five or six months off they get each year. Whatever resistance there might be from business owners and constituents, the thinking went, would surely die down by the time the 2004 legislative session kicked off in January.
Well, not quite.
"Based on public opinion I'm hearing, I think it's appropriate to try to find some kind of middle ground," state Sen. Byron Brown told the Niagara Falls Reporter.
Brown said he was stunned by the level of response to a survey his office sent out to hundreds of businesses, bingo halls and veterans' groups stung by the smoking prohibition.
"Even people in the hospitality industry said, 'They're not going to respond,'" Brown said. "But we got a phenomenal response rate. More than 40 percent of the surveys we sent out came back, and 87 percent of the responses said this is hurting their business and wanted to see a modification."
Brown, who initially voted in favor of the ban, said legislators were hoodwinked by ban supporters, who cited statistics allegedly showing that a similar law in California hadn't hurt restaurant and bar business, while pointing to the support of the New York State Restaurant Association as evidence that business owners supported the bill.
Last weekend, while sub-zero temperatures made standing outside for more than 30 seconds a nostril-freezing, flesh-endangering experience, California also endured a cold snap. In Los Angeles, the mercury dropped all the way down to 53 degrees on Saturday.
"It's like apples and oranges," Brown said of applying California's experience to New York. "They don't have the harsh weather we have, and people just aren't able to go out on a patio and smoke in the middle of winter here."
And the lobbying group in favor of the ban only represented a fraction of the industry, mainly large chain restaurants that don't rely heavily on their bar business. Most of those hardest-hit by the ban -- the mom-and-pop restaurants and corner taverns -- didn't know anything about the ban until the law was passed.
"I was led to believe by advocates for the ban that business groups had changed their position and come to the point where they felt the ban was fine and wouldn't hurt their business," Brown said. "I was under the belief that a lot of outreach and education had been done with businesses and not-for-profit groups. Those factors really motivated me at the time to vote for it.
"Then we started hearing from businesses in the community. As we began hearing more and more, I realized, 'There's a problem with this and I've got a lot of unhappy constituents.'"
Brown said multiple bills have already been introduced in the Senate and Assembly that would modify the ban and that he and several colleagues are working on their own amendment to introduce in the coming weeks.
Possible changes range from granting waivers to businesses that put in separate smoking rooms with special ventilation systems, similar to those seen at some restaurants in Erie County. An increase in the number of one-day exemptions available is another possibility, Brown said.
One option would be the introduction of what amounts to a smoking license.
"Some have suggested charging an administrative fee and allowing establishments to indicate with a sign whether they're a smoking or non-smoking establishment," Brown said. "That would give people some choice."
While the hospitality industry is already heavily taxed, even by the standards of the fee- and surcharge-addicted state government, most bar owners say they'd be willing to pony up so their customers can light up.
"An administrative fee would be less than the amount of money we've lost through losing our smoking customers, so it's certainly worth it," said Judi Justiana, owner of Judi's Lounge and a vocal critic of the ban. "If (adding another fee) was the plan from the beginning, I'd be upset, but I really don't think it is."
While smoking-ban revisions have been a frequent topic among rank-and-file legislators in the early days of the 2004 session, which opened last week, Senate Majority Leader Richard Bruno and Assembly Speaker Sheldon Silver haven't indicated when, if ever, they'll allow revision of the ban.
"There seems to be some reluctance on the part of leadership to discuss any modification or changes," Brown said. "Some of the most controversial issues don't come to the floor until later in the session."
With state officials staring at a $6 billion budget hole, the session could extend well into the summer. But even if Bruno and Silver resist revisiting the ban, the heat many legislators are feeling will keep it on their agendas.
"I can tell you, this will be something members will be talking about amongst themselves," Brown said. "I think there's middle ground that can be found here so that we can safeguard people's health and not trample on people's liberties. We should allow people to make decisions on how to live their lives when it comes to legal products."
Democrats like Brown can't pass legislation in the Senate without Republican cooperation. State Sen. George Maziarz, who also voted for the ban initially, said there's now support on that side of the aisle for change, as well.
"I think there is no question there are going to be revisions to the law," said Maziarz, who sent out surveys to his constituents last week aimed at getting their input on the ban.
Of course, it would have been nice to hear such reasonable voices emanating from Albany before the ban was passed in the first place. But the business owners whose numbers are getting crunched by the prohibition will settle for "late" when it comes to fixing the over-reaching and quite possibly unconstitutional law.
Just so long as it doesn't turn into "never."
While possible revision of the smoking ban works its way through Albany, local restaurant and tavern owners are continuing their fight with a meeting at 7 p.m. on Monday, Jan. 19, at The Ritts on Upper Mountain Road in Lockport.
Renee Lembke, who closed her Middleport Inn in October due to the drop-off in her business after the ban took effect in July, said an attorney will be on hand to talk with bar owners about contesting citations for violating the law, as well as possible future legal action by opponents.
Lembke said the meeting is for business owners and employees affected by the ban, but not open to the general public.
Following the law's passage last year, anti-smoking fanatics crashed several meetings designed to explain the ban to business owners and offer them a forum for their opinions. The Ritts is located across Upper Mountain Road from the Delphi-Harrison plant.
| Niagara Falls Reporter | www.niagarafallsreporter.com | January 13 2004 |