Cigar Aficionado

Courts Side with NYC Cigar Bar

A New York State Supreme Court Justice last week upheld the rights of a Manhattan cigar bar to stay smoky.

The Cigar Lounge at Merchants NY, a go-to smoke spot in the Big Apple since 1997, has been under fire from the New York City Health Department over its status as a "tobacco bar." The eastside lounge, located on 62nd Street at First Avenue, had been fighting the health department in the courts over the past few years. The department claimed that the establishment was not in accordance with the city's Smoke Free Air Act, which went into effect in March 2003. To legally be labeled as a "tobacco bar," a bar must have been in business since December 2001 -- without expansion or change of location -- and annually generate at least 10 percent of total gross revenue from the on-site sale of tobacco products.

"We opened as a cigar bar in 1997, and that's the way it was designed," said Richard Cohn, who owns the bar with Abraham Merchant. "We've never closed and never stopped — we are enforcing our rights…."

Merchants NY contended that it was in accordance with the law because it met all the specifications for exemption and that the health department was endeavoring to find ways in which to deny it its right to allow customers to puff indoors. The health department pointed to a change of ownership in 2003 and improperly reported revenues as grounds to refuse exemption.

The establishment counts its basement-level cigar lounge as a separate and self-sufficient business from the upstairs restaurant: having separate ventilation, bathrooms, hours and financial records. Both Merchants NY and the health department were in agreement that the 10 percent requirement for the lounge was met, but the department argued that the lounge and the restaurant had to be considered one entity and therefore did not meet the criteria.

Justice Alice Schlesinger's conclusion favored Merchants, ruling that it met the conditions for exemption and that the claims made by the health department were both "arbitrary and capricious in form and substance."