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Home > What's New > A Loophole in the Ban
A Loophole in the Ban
Posted: Thursday, September 04, 2003
By Michael Moretti Restaurateurs and bar owners struggling with New York State's smoking ban could have a second chance -- a recently unearthed loophole might allow some of them to reopen their doors to smokers.
According to a clause in the New York State Smoke Free Air Act, cities and other municipalities have the right to grant waivers to businesses in their communities that have been adversely affected by the state's smoking ban. Several municipalities, including New York City, already had smoking bans when the state ban went into effect in July; the state ban made many of those laws tougher.
An interoffice memorandum from the New York State Department of Health in late August specified that businesses that have lost money as a direct result of the state smoking ban are eligible for exemption. The memo, a copy of which was obtained by Cigar Aficionado Online, stated that a large volume of "requests and inquiries received from enforcement officials and other impacted parties concerning waiver provisions" sparked a review of the waiver clause, leading to the recent release of guidelines for proving exemption.
In parts of New York where the state ban is the sole smoking ban -- such as Suffolk county -- restaurants and bars submitting an application for the waiver could conceivably allow indoor smoking again. Smoking could return to a bar; a restaurant could regain a smoking section. In other parts of the state where local bans are also in place, the situation is more complicated.
The New York City smoking ban, for example, allows separately ventilated smoking rooms in restaurants and bars until January 2, 2006. Under the state law these rooms were not permitted. Several establishments, such as F.illi Ponte, Angelo & Maxie's and Del Frisco's, had installed ventilation systems in accordance with the city smoking laws. If those establishments have been financially affected by the state smoking legislation, they can cite this as a grievance and reason for exemption, according to the state health department. Owner-operated businesses in New York City that do not have employees, could also potentially become smoker-friendly with exemption from the state law.
Frank's, a steak house in the meatpacking district of Manhattan that has been open since 1912, has a glass-enclosed room with a separate ventilation system where cigar aficionados once gathered. It has been off limits to smokers since the July ban went into effect.
"My check average is down," said owner Steven Molinari. "My smokers always spent more money. They always stayed longer, they had an extra cocktail after dinner; it was all about the night, rather than just eating."
Although his restaurant seems tailor-made to apply for exemption, Molinari is still weighing his options. "If the state was willing to grant the waiver, it would be very helpful because our business was impacted," he said.
For some, it may be too late. Swan's Bar & Grill, which went to extremes to remain smoker-friendly under city law, as an owner-operated bar -- closing down its kitchen and laying off all its employees -- was unable to remain smoke-friendly under the state ban, which eliminated exemption for owner-operated establishments. "We're down 48 percent from the beginning of June, when we were smoking, until the end of August, when we could no longer allow smoking," said Shay Leavy, co-owner of Swan's. "If we keep this up, we will have to close down."
Leavy said that business typically subsides a bit in August, but usually only by about 15 percent. A 48 percent decrease, Leavy said, is "out of wack."
Cigar bars remain smoker-friendly, regardless of the waiver. Several New York City bars that had appeared to be covered under the city tobacco bar exemption such as Aubette, the Oak Bar at the Plaza Hotel, and the Lobby Court Lounge and Cigar Bar (aka the West 53rd Street Cigar Bar) no longer allow smoking.
Ultimately, it's up to the city or municipality to choose whether it will grant waivers. According to The New York Post, the New York City Department of Health and Mental Hygiene has yet to decide how it will proceed on requests for waivers to the state legislation. If the waiver option is approved by the city, it would give adversely affected metro businesses a chance to prove that a downturn in profits was directly related to the state smoking ban. Also in Cigar News:
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