When Sam Morreale and Dave Melloni got a letter from the Niagara County Health Department saying that they were being fined for allowing smoking in Culbert's, the Buffalo Avenue tavern they purchased last March, they decided to appeal.
They came away from Wednesday's hearing, the first in the county since the statewide smoking prohibition went into effect in July, wondering why they bothered.
"I didn't do two tours of duty in Vietnam so I could have my civil rights taken away," Morreale said.
Yet that's exactly what happened, or more accurately, continued on Wednesday.
Ignoring assertions by Morreale and Melloni that they actively tried to stop people from smoking inside their business, as well as flaws in the violation report itself, Niagara County Public Health Director Paulette Kline upheld the $250 fine.
Kline's imperious behavior throughout Wednesday's hearing drew several interruptions from Assistant County Attorney Michael Fitzgerald, who nervously suggested that she should listen to some of the explanations offered.
Kline, who was appointed by the county Board of Health and whose term ends in October 2004, would have none of it.
"I have to enforce this law, and I will demand compliance in Niagara County," Kline ruled from on high.
When Melloni called the proceeding a "kangaroo court" and said he wouldn't pay the fine, Kline haughtily quadrupled it.
Demanding $1,000 from people who actually work for a living as punishment for failing to show her proper deference is in line with Kline's lack of regard for those who pay her salary. In the past, when all county department heads were ordered to cut spending, she not only ignored the dictate, but submitted a budget larger than the year before. She got away with such impudence due to the patronage of county Legislator John Cole, who leaves office Jan. 1, several county government sources said.
Apparently, Kline believes her lofty position and those of her friends allow her to ignore basic tenets of due process. Her inspectors skulk anonymously into private businesses -- the narc in the Culbert's case said she was in the bar for "20 or 30 seconds" -- then flee before being discovered.
"It's ridiculous," Melloni said. "How does she know that I didn't just tell the person to put out his cigarette? How does she know that Sam or I wasn't in back, and the person lit up without us knowing?"
Business owners got a brochure explaining the law before it went into effect telling them not to call the police if a patron refuses to extinguish his or her cigarette.
"They told us not to call the cops, but we get fined if someone won't put out their cigarette when we tell them," Melloni said. "What are we supposed to do?"
Owners get a letter in the mail days or even weeks later, notifying them of the violation without giving any specifics of the incident, making it virtually impossible to prepare a defense should they appeal.
That tactic gives the Health Department powers law enforcement officials can only dream of.
"Imagine the police sending someone a letter saying that an anonymous witness saw them selling drugs, so they have to report to jail," said the owner of another Niagara County business smacked with a fine. "The courts would never stand for it."
The courts will likely be where these cases and others like them wind up, one reason the assistant county attorney tried to stem Kline's arrogance.
One legal problem with the state law will likely be its unequal application in different areas. Less than a week before Kline's performance, a Chautauqua County hearing officer recommended no fines for two bars that had been fined.
Kline's enforcement tactics could also expose the county to litigation, and even make her a defendant in lawsuits brought by business owners. In 1991's Hafer v. Melo decision, the U.S. Supreme Court ruled that government figures can be held personally liable for actions taken in their official capacities.
In another sign that she's not up to her job, Kline has yet to spell out guidelines for hardship waivers, nearly five months after the ban went into effect and eight months after it was signed into law.
Last week, the state Health Department set a standard requiring restaurants and taverns to show a 15 percent loss in business to receive a waiver in counties that don't have their own health departments. Counties like Niagara with their own enforcement systems would seem bound to follow suit or risk being sued over unequal enforcement, but Kline's conduct indicates she believes her powers are divine, rather than bureaucratic.
She also sicced an inspector on the Loyal Order of Eagles Post in Wheatfield, apparently unaware that such all-volunteer organizations are specifically exempted from the ban.
To be fair, Kline didn't institute the smoking ban. But her chosen method of enforcing it points up some of the many flaws in the nation's strictest prohibition, and her high-handedness should embarrass her and the government she represents.
Whether Kline will complete her term is anything but certain, given her unrealistic budgetary demands in the past and questionable use of limited resources in enforcing the smoking ban. But last week's proceedings made a few things very clear:
Speaking of which, lawyers interested in taking on the state's smoking prohibition and making a few bucks in the process can still get involved by writing to Fight the Ban, c/o the Niagara Falls Reporter, 345 Third St., Suite 463, Niagara Falls N.Y. 14303, e-mailing to dstaba13@aol.com or by calling 284-5595.
| Niagara Falls Reporter | www.niagarafallsreporter.com | December 16 2003 |