Taverns Lose Lawsuit To End Indoor Smoking Ban
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A federal court yesterday rejected an attempt by tavern owners to gut the state’s indoor smoking ban.
The Empire State Restaurant and Tavern Association had fought the 2003 provisions of the state’s Clean Indoor Air Act that banned smoking in most public businesses unless a waiver was warranted because of lost business.
District Judge Lawrence Kahn, however, dismissed the group’s challenge to the law as well as its challenge to the waiver system. The law allows state and county health officials to rule on whether a business’s financial hardship can be blamed on the indoor smoking ban.
The group’s attorney, Kevin T. Mulhearn of Orangeburg, said the criteria are too vague and interpreted differently in counties. For example, he said some counties are refusing to grant any waivers at all, saying that is their interpretation of the law.
Charles Quackenbush, the attorney on the case for state Attorney General Eliot Spitzer, said that if the tavern owners group won, then the law could have been struck down.
“This is clearly a victory for public health,” said a Spitzer spokesman, Marc Violette.
“This law does continue to cause hardship for people,” said Scott Wexler, executive director of the Restaurant and Tavern Association. “We lost because the law says they ‘may’ grant waivers rather than they ‘shall’ grant waivers.
“We don’t like this law. We want this law changed,” he said. No decision, however, has been made on whether to appeal the case in federal courts, move the effort to state courts, or renew lobbying the Legislature to alter the law.
“There is no evidence of hardship that is big enough to show up in any kind of statistic and, just walking around, I don’t observe taverns being shuttered,” said Russell Sciandra of the Center for a Tobacco Free New York. “It’s time for the Empire State Restaurant and Tavern Association … to live with this law and figure out how they are going to exploit the vast new market of nonsmokers.”
The 2003 measure allowed waivers to the smoking ban for bars, restaurants, and other businesses that could show a decline in business of at least 15% from pre-ban revenues. The waivers are being granted by departments of health in 41 counties and by the state health department in 21 mostly rural counties that do not have their own health departments.
