Ever since New York State lawmakers passed the nation's most restrictive smoking ban, they've artfully danced around one basic question -- how will already cash-strapped counties saddled by Albany with making sure no one smokes in public within their borders get the job done?
In Niagara County, at least, the answer is simple.
They can't.
Restaurant and bar owners who attended one of three meetings sponsored by Niagara County to explain the ban -- scheduled to go into effect July 24 -- got few answers to their questions. They were told that the county wouldn't send out smoking patrols, but instead rely on snitches to call in reports of smoking in bars and restaurants.
"They said they're going to be reactive, rather than proactive," said Judi Justiana, proprietor of Judi's Lounge on Military Road and a leading opponent of the ban. "They'll respond as complaints come in. They say, 'We don't have enough people to go out and check.'"
Undercover inspectors will follow up on complaints, with citations mailed to business owners who never knew they were being inspected in the first place.
If the Niagara County enforcement plan sounds like something out of the files of the KGB, with $2,000 fines replacing extended vacations at the local gulag, neighboring Erie County's approach is decidedly more Gestapo-like.
In Niagara's neighbor to the south, County Executive Joel Giambra is pulling fully half the health department staff off trivial beats like inspecting restaurant kitchens and turning them into smoking police.
While Giambra's approach may avoid the blatant flaunting of the ban that's sure to occur in Niagara County, you might want to order your chicken well-done and run a visual scan for moving, multi-legged ingredients in your salad the next time you dine out in Buffalo.
The obvious inadequacy of each approach underscores the most egregious shortcoming of a law hideously flawed, even by Albany's standards. Your representatives in state government claim they want to protect the health of restaurant and bar workers and patrons, but won't spend a penny to do so.
Meanwhile, a group of local business owners is launching a campaign to make sure voters don't forget that hypocrisy. Justiana said the informal coalition of proprietors that's been campaigning against the ban since its passage has organized under the name Service Industry Ending Government Encumbrance (SIEGE).
Besides challenging the law's constitutionality in court, SIEGE members are planning to launch a voter registration campaign in conjunction with the Erie County-based Western New York Innkeepers Association, which has about 1,200 members and a 30-year legacy of business advocacy.
"We want to let our legislators know that we're mad about this and are getting our customers registered to vote them out in the next election," Justiana said.
The voter registration campaign kicks off with a rally at 3 p.m. on July 24 at the Erie County Board of Elections building at 134 West Eagle St. in Buffalo.
"Our goal is to activate the largest new voter registration campaign this state has ever seen," Justiana said. "When I called the State Board of Elections Office in Albany the other day, I was laughed at when I asked for a few thousand forms. The lady I was talking to said, 'Honey, if you can get 20 people to register, you can have my job.' I told her she never tried to sign up a bunch of people as MAD as these people are!"
On the legal front, a lawsuit filed by the Empire State Restaurant and Tavern Association is expected to be heard in federal court this week. Association lawyers plan to ask for an injunction to stop the state from imposing the ban until constitutional questions can be considered, but Justiana thinks the no-smoking edict will take effect.
"The ban will definitely be going into effect," she said. "Hopefully, we'll get an injunction eventually -- the Empire Association is hoping by about Labor Day -- but there will be a period of time that we'll have to deal with this."
In addition to the statewide group's federal case, SIEGE is raising money to fund a lawsuit in state court.
Though the law allows counties to grant waivers if "compliance with a specific provision of this article would cause undue financial hardship," Niagara County Health Department officials told owners that no waivers would be granted until the folks in Lockport can figure out precisely what level of financial hardship they find acceptable.
As one of the point people for the anti-ban movement in the Niagara Falls area, other tavernkeepers regularly seek Justiana's counsel on the issue.
"One guy called and told me he has an 84-year-old woman who comes in every afternoon and has two Seven and Sevens and a couple cigarettes," Justiana said. "He asked me, 'How do I tell an 84-year-old woman she has to go outside?'"
Advocates of the ban, particularly the Erie/Niagara Tobacco-Free Coalition, continue to cite misleading surveys to bolster their dubious claim that chasing away the core of their customer base will somehow help business owners.
But a trip across the river to Niagara Falls, Ont., where public smoking has been outlawed since June 1, reveals a quite different story.
Other factors -- including SARS, travel concerns stemming from the "War on Terror" waged by the United States and a strengthening Canadian dollar -- have made this tourist season the worst in recent memory on both sides of the Niagara. Ontario's smoking ban, though, has been brutal even on establishments that cater to locals.
Several such Niagara Falls, Ont., restaurants and taverns report drop-offs ranging from 40 to 60 percent from the same period last year.
"I know of two places in this neighborhood that have shut down since June 1, and another three that are right on the brink," said one downtown restaurant manager. "They keep telling us that people will come back once they get used to not smoking after dinner or while having a drink, but I don't know if I can last that long."
Justiana said a similar drop-off in Niagara County will wipe out a hefty chunk of the areas' 1,500 licensed establishments and hundreds of restaurants that don't serve alcohol.
"You can't stay in business with those kinds of numbers," she said. "We're all working on a very narrow margin to stay in business -- a 10 percent loss would put a lot of us on the brink. Forty to 60 percent? Those kinds of numbers are devastating."
Several local proprietors who requested anonymity, for obvious reasons, said they plan to continue business as usual and take their chances, while others will try to follow the law as long as it remains on the books. But less than a week before "Smoke-Free New York" becomes a reality, the majority weren't quite sure what they were going to do.
"I guess I'll worry about that Thursday," said one.
In a bit of a twist, the businesspeople most vocal in their opposition to the smoking prohibition are among the most likely to abide by it, for fear they'll be targeted first.
"I'm very high-profile, and I'm not a lawbreaker," Justiana said. "I intend to cooperate with this, but I will fight until the day I go out of business or the day this gets repealed. When other owners ask me what to do, I tell them, do whatever you have to do to survive. In the meantime, I tell them to get active and help get this thing overturned."
| Niagara Falls Reporter | www.niagarafallsreporter.com | July 22 2003 |