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Butt-riddled pavement, the scent of stale beer, and bar owners with tighter belts all have become signs of New York’s stiff-upper-lip approach to its smoking ban. Smokers have watched the places where smoking is accepted dwindle over the years, and last year New York state dropped the hatchet on smoking in workplaces. Come July 24, the smoking prohibition will have been on the books for a year, and to Howard Glassman, the proprietor of Valentine’s in Albany, “it’s been a continuous downward spiral since the ban took effect.”

Consider the scenario he offers: A man comes into the bar after work, sitting down with a pack of smokes, ordering a beer and a shot and splitting his time indoors sipping and outdoors smoking. “While he’s out there that’s one less shot he’s buying, one less shot he’s buying for someone else, maybe one less beer he’s buying. As the night goes on it multiplies,” Glassman says. “Needless to say, the bartender isn’t making as much in tips. The bar isn’t making as much in sales. Sales are down, hours are cut, the owner—myself—is working more shifts.” And then there’s the ripple effect: fewer towel orders, fewer quarters in the games and jukebox and less beer and liquor ordered. This, unfortunately, has been more of a reality for Glassman than merely hypothetical. It’s been a rough year, and there has been little relief to business owners who have been adversely affected by the ban.

“I understand the law and I think it was done with good intentions, but it was done with very little common sense and even less room for compromise, and that’s all I’ve been asking for,” says the owner of Desperate Annie’s in Saratoga Springs, who goes simply by Travis.

In last year’s Clean Indoor Air Act there is little flexibility. Membership organizations, like VFW posts, where members perform all staffing and receive no compensation for their duties are exempt from the law because they are not technically workplaces; the health of workers was, after all, the impetus for the ban. Businesses that can prove they’ve suffered an “undue financial hardship” since the ban can apply for a waiver, and the state left it up to county health departments to administer the waivers.

That required hardship is usually about a 15-percent drop in state sales-tax receipts for three consecutive months since the ban or due to capital-improvement projects at the establishment that would have provided a smoke-free environment prior to the ban taking effect, the cost of which would be unrecoverable. Waivers have been granted to places locally like Connie’s Roadhouse in Moreau and Broadway Lanes in Fort Edward, but those establishments are among the few.

“I was insulted to get the waiver form from the health department a couple months ago that said basically that you have to build a room that’s hermetically sealed with a filtration system that meets their standards,” says Glassman. He adds that the cost of such a renovation would be “about 20 grand, which is the amount I probably lost in the first three months of the ban going into effect.”

Travis says business is definitely down during the late-afternoon and early-evening shift “when your typical blue-collar worker gets off of work and just wants to come in have a beer and have a cigarette after a hard day’s work.” Over the winter, when having that smoke meant braving sub-zero temperatures, patrons were simply going straight home and staying in. That crowd was largely missing this winter, and he felt it.

“But at the same time”—Travis says chuckling and shaking his head—“I love my bar smoke-free.” And this is a bit of a conundrum. Years ago, he was a smoker, and as a bar owner he surely understands that smoking and drinking have had years to get cozy with one another. But he doesn’t want to watch his business slump, nor does he want to smell like cigarettes he hasn’t been smoking. He also would rather not see his patrons spend their time lingering on the sidewalk out front in all kinds of weather.

“It’s a pain in the neck because everybody comes to a bar and stands outside—the sidewalks are trashed,” says John Baker, who owns Gaffney’s, a bar and restaurant just down Caroline Street from Travis’ bar. But Gaffney’s is one of many establishments with the advantage of an outdoor space: It’s got a porch and gardenlike patio.

In the fair weather, patio spaces were already enticing to customers, but with smoking banned indoors, smokers seemed to flock to the patios in droves. And though he’s not bitter about nearby bars with outdoor spaces, Travis acknowledges that businesses like his are hurt doubly: “The law puts me at a disadvantage in the winter, and it puts me at a disadvantage in the summertime when you do have those patios.”

But has it helped businesses like Baker’s? “Well, it hasn’t hurt my business,” he says, acknowledging that his outdoor bar and seating areas could well be drawing even more people in this time of year. “I clean ashtrays and they’re full down there. People still smoke, right or wrong.”

Photo by: Ellen Descisciolo

The rule is that if an outdoor space is not covered, smoking is permitted in 25 percent of the outdoor seating designated as a smoking section. This section must also be at least three feet away from the nonsmoking area and both need to be marked with signs. The reality in many spots is that smokers cluster near doorways and outdoor spaces brim with people and a dissipating cloud of smoke hovering above.

Baker says his business dipped last year when the ban went into effect, but knows that the watering holes with real reason to complain are the “shot-and-a-beer joints—I think they’re hurt the most.”

‘I feel like I’m being picked on by the third-grade bully, with no recourse, and it didn’t have to be that way,” Travis says. “They could have written a law to make everybody happy.” He gets in a twist just thinking about it and has had a year to hatch plenty of compromises. He says he’d be willing to suffer the cost of sealing off a backroom and installing large expensive filtration devices in it so smokers could feel welcome.

Russell Sciandra from the Center for Tobacco-Free New York sees three major obstacles to the sealed-room approach: cost, space and the likelihood that workers would still have to risk going in the rooms. “While these rooms work in theory, in practice a lot of things can go wrong,” he says. “It would just be very burdensome for the public health authorities to monitor the proper operation of those rooms. If you leave the door open, for instance, you defeat the whole purpose.”

This week was a big one for smoke-free advocates like Sciandra. Massachusetts Gov. Mitt Romney just signed a bill ordering bars and restaurants in the state to go smoke-free by July 5, as only New York, California, Maine, Delaware and Connecticut have. Here in New York, the Assembly Health Committee voted to hold a bill that would have permitted smoking in bars with certified air-filtration systems in operation.

“We should never compromise people’s health,” Sciandra says. “The proponents of this legislation try to present this as a compromise, basically what they’re saying is you can allow smoking and have clean air because of these magical filtration machines that they have. But, in fact, the machines don’t work adequately: The air is still polluted and nonsmokers would still be exposed to harmful secondhand smoke.”

Smoke-free advocates have a boatload of statistics on their side. They point to studies linking heart and lung disease to tavern occupations: According to a report published by the Journal of the American Medical Association, one shift in a smoky bar is equivalent to smoking 16 cigarettes a day. And as to patrons, the University of California at Berkeley School of Public Health issued a study on secondhand smoke that states that two hours in a smoky bar is like smoking four cigarettes.

Previously, the bar owners complained that the smoke-free folks were using statistics that showed business was not, in fact, facing hardship because restaurants were lumped in with bars. So Sciandra had the state comptroller’s office tally employment statistics specific only to bars, which shows that employment is up: In May 2003 there were 19,000 people working in bars, and as of this May there were 21,600.

“You don’t hire employees unless you’re doing more business,” Sciandra points out. “I think you have failing businesses that are attributing their failure to the smoking law when it’s something else altogether, and then you have businesses that are being impacted by the law but don’t know how to adapt to it or are unwilling to adapt to it.”

But as with early polling on the ban, each side is saying something completely different [Newsfront, “Smoking and Mirrors,” Sept. 25, 2003], with numbers to back them. At the beginning of the month, a study done for industry groups the New York Nightlife Association and the Empire State Restaurant and Tavern Association said the ban cost the industry 2,000 jobs, and the state $37 million in revenue. This study, done by Ridgewood Economic Associates of New Jersey, was based on state and federal labor statistics.

Still, many bar owners think they should have been able to choose if they wanted to go smoke-free or not, so patrons and employees alike know what they’d be getting into by entering. In conversation, they frequently offer to pay extra for a special license and have employees sign off on the health risks. But Sciandra dismisses that as well. “We don’t give people a choice about working with asbestos,” he says. “We don’t do things that way, we protect all workers equally.”

“The fallacy that it’s for the people who work in bars is what kills me,” says Artie Fredette, owner of Artie’s River Street Stage in Troy, and the only nonsmoker employed there. “We don’t go to bars because we’re health nuts, we come here to relax.” (His band the Lawn Sausages even wrote a disdainful ode to the smoking ban, called “Smoke This, Joe Bruno,” for which the Sausages were inducted into a political song hall of fame in Scotland—the same year as Bob Dylan and Rickie Lee Jones, no less.)

But it’s also that voting against anti-smoking measures is a hard sell for politicians. “It’s political suicide,” Travis says. But on the other hand, he thinks smokers are being penalized for doing something that, in and of itself, is not illegal. “You’re inconveniencing people somewhere where they’re trying their best not to be inconvenienced, but to relax and wind down a little bit.”

Glassman is less kind to the politicians, and says they have more serious problems to deal with. “The only things politicians listen to are money and votes,” he says, threatening to lead the charge. “I don’t have any money, but I’m going to do my best to get the vote out.”

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