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New York Operators Join Bar Owners In Lawsuit Against State Smoking Ban

Posted On: 6/25/2003

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ALBANY, NY - Two New York operators are supporting a lawsuit against the state by the Empire State Restaurant and Tavern Association that seeks to rescind New York's statewide law prohibiting smoking in public places. The law goes into effect July 24. New York City has already imposed a workplace smoking ban.

Frank Calland of E&S Music Corp. (Holbrook) reported that the New York State Legislature and Gov. George Pataki are considering softening the state's stricter version of the ban under pressure from bar and restaurant owners.

Two bills, one in the Assembly and one in the state Senate, would amend the state ban to allow smoking in owner-operated bars and let business owners build ventilated smoking rooms.

Calland said operators and bar owners are seeking a more equitable solution, however. "We want [bar] businesses to have a choice whether to be smoking or nonsmoking," he said. "There's a simple solution: the state can provide a tax break to establishments that enforce a nonsmoking policy, and create a license, and new revenue source, for taverns that choose to permit smoking."

Kenny Goldberg of Emerson's Amusement Co. (Woodside) is one New York operator who has already experienced the business impact of outlawing smoking in bars. Emerson's operates music and games equipment in Manhattan and in Nassau County, which also implemented a ban in public workplaces about three months ago. Goldberg, who, along with Calland, has joined the lawsuit against the state, reported that his collections have been down about 30% in bars and taverns, his best locations, in municipalities and counties that forbid smoking in all public places.

Scott Wexler, executive director of the ESRTA, said the best hope for opponents of the ban is the association's lawsuit. Wexler estimates that liquor sales in some bars and restaurants in New York City have decreased by as much as 50% since the citywide ban went into effect.

Elsewhere in the Northeast, the action to ban smoking in workplaces has picked up steam this year with a smoking ban passed in Boston. Connecticut has passed a statewide ban on smoking in workplaces and the topic is being debated in Massachusetts.

Calland said that smoking bans in bars and taverns will significantly harm all segments of the coin-operated entertainment industry. New York will become the third state to enact statewide no-smoking ordinance, following California and Delaware.

In the meantime, Goldberg and other operators in Nassau County won a small victory in June when a U.S. District Court judge issued an injunction against the no-smoking law. The judge said sloppy writing of the law made it constitutionally vague.