So much for due process.
With New York State's smoking ban already trampling any number of privacy and property rights, the Niagara County Health Department has decided to throw in the foundation of the American legal system for good measure.
In case you missed it, the Health Department announced last week that it has fined 17 bars, restaurants and social clubs for violating the nation's strictest smoking prohibition, which went into effect in July.
Fair enough -- in an effort to look like it was doing something without spending a penny, the state legislature foisted enforcement responsibilities on the counties.
But leave it to Niagara County to come up with the creepiest, most weaselly enforcement tactics you can imagine.
First, the Health Department puts out the word that it welcomes anonymous complaints. Don't like the guy running the gin mill down the street? Drop a quarter and tattle on him. Mad because a bartender cut you off? The good folks in Lockport are awaiting your call.
This also brings the anti-smoking fascists into the picture. One Buffalo-based group actually ran ads in a weekly Buffalo rag soliciting students and other jobless losers to slink into taverns looking for smoking-ban violations in Erie and Niagara counties. Willing to sell whatever remnants of decency they possessed for $8 an hour, these collaborators have reportedly been making the rounds in Niagara Falls, as well as Buffalo.
Once the Health Department receives an "anonymous" tip, an inspector is dispatched to the offending establishment. Thrilled to be assigned a task more glamorous than checking expiration dates or searching kitchens for signs of fecal matter, the undercover inspector looks, and sniffs, for signs of verboten tobacco smoke, eating and drinking on the taxpayer tab all the while.
The inspector leaves without identifying himself or herself. After returning to a beige cubicle smelling of compressed sweat and stale urine, he or she writes the report that triggers the fine on someone who actually works for a living.
Scummy enough for you yet? It gets even worse.
Business owners allegedly have the right to appeal. But before doing so, they're warned that an unsuccessful bid could mean a fine of $1,000 -- four times the standard $250.
Punishing business owners who strive for the due process they're supposedly guaranteed by the United States Constitution is especially troubling considering some of the citations themselves.
Some bar owners were told that the inspector didn't see anyone smoking, but merely smelled smoke. In other words, if a patron complies with the ban and goes outside to smoke, then comes in and stands next to an inspector, the place could well get fined without a single cigarette being lit indoors.
Another fine resulted from an inspector seeing a metal cigarette case behind the bar. Seems a patron had dropped it and the bartender had put it next to the cash register until she returned.
Then there's the Fraternal Order of Eagles in Wheatfield, which got slapped with a fine even though the law clearly exempts such all-volunteer organizations.
Supposedly, restaurants and taverns can apply for hardship exemptions. But almost five months after the law took effect, the Niagara County Health Department has been too busy devising its espionage network to bother deciding what constitutes such a hardship. This, even as businesses go under due to the loss of customers.
Hear enough of these stories, and you realize there's a good reason the Health Department is trying to bully alleged offenders out of appealing -- because it can't win in anything approaching a fair forum.
All the Health Department has is the word of the inspectors -- political hacks who get the jobs through patronage -- against business people who, again, work for a living.
Forget evidence. Forget due process.
Were these criminal cases, the prosecution would lose every single one. In most, a judge would throw them out before a jury even heard them.
That's why it's so important for the businesses being attacked to fight back. But they can't do it alone. For all the things Niagara County may be short on, there's an abundance of attorneys. Just flip through the Yellow Pages if you don't believe me. There must be at least one who is up for a good fight.
Here we have an indefensible law affecting more than a thousand businesses in Niagara County, enforced by a government department that doesn't appear to understand what it's enforcing.
There must be a lawyer out there somewhere in Niagara County who went through law school and took the bar for reasons beyond making a lot of money without doing any heavy lifting.
This battle has nothing to do with spurious statistics on second-hand smoke, misleading surveys asking people whether smoking should be allowed in places they never go, or how much money the state isn't going to save in health-care costs.
It's about the rights business owners and private citizens possess, as well as the powers the government doesn't.
We're not lawyers here at the Niagara Falls Reporter, but we'll make this offer to those who are: Take up this battle, and we'll make sure hundreds of potential clients know about you.
If you're an attorney willing to take up the cause at reasonable rates, write to us at Fight the Ban, c/o Niagara Falls Reporter, 345 Third St., Suite 463, Niagara Falls, N.Y. 14303, send an e-mail to dstaba13@aol.com or call us at 284-5595. List your qualifications and any relevant experience, along with how you intend to take on the state and county officials who are busily usurping your new clients' rights. We'll feature one or more qualified candidates in an upcoming edition.
Nobody's trying to argue that smoking is good for anyone. But allowing the government, any government, to ignore the principles on which it's founded is bad for everyone.
| Niagara Falls Reporter | www.niagarafallsreporter.com | December 9 2003 |