Where's the Opposition?
by: Joseph Van Harken

Harold Kramer doesn't smoke. But he's against the Smoke-Free Workplace Act of 2002, which will go into effect on March 30, 2003 in New York City.

"I'm a businessman," said Kramer, who owns the Raven Café, a typical one-room corner bar on 12th and A in the East Village. "Just about 90 percent of my customers smoke. It's unfair for the city to force me to jeopardize my business. My patrons come to the bar to have a drink and a smoke and because of this new law I'm going to have to tell them to stop. Talk about slapping the hand that feeds you. I can't believe this ban got passed."

I couldn't believe it either when I heard about this ban. I know that other cities out west, L.A. and San Francisco put a ban into place, but this is New York-tough, gritty, the famed crossroads of the world-no way could this pass, I thought. I remember hearing rumors that Mayor Bloomberg was going to try to push this through the City Council, but when it actually happened I was shocked that there wasn't more of an outcry, or at least some opposition.

Brett Goldman tokes on his giant paper bag cigar in protest of the City Council's smoking ban decision.

I remember reading about a solo demonstrator named Brett Goldman, an area real estate developer and former smoker who stood on the steps of city hall with a giant paper bag cigar chanting for the Council to repeal their decision.

"This bill flew so far under the radar that it bothered me," Goldman said when asked why he chose to demonstrate even though he doesn't smoke anymore. "I follow local politics closely and I don't like to see bills get bullied into place without much challenge or discussion."

Goldman was right. I consider myself a relatively well-informed New Yorker, but even after the bill had been passed, I didn't even know exactly what the terms were. After some intensive Googling, I learned that when the law goes into effect, it will be illegal for anyone to light up inside:

• any restaurant
• any bar or nightclub--with three exceptions:
  • the establishment houses a completely enclosed smoking tank with negative air pressure that no employee may enter, note: this exemption will expire in three years
  • the establishment is run and operated by the owner and has no employees
  • most of the establishment's business is derived from the sale of tobacco products, basically cigar bars, which there are seven of throughout the entire City
• private clubs
• bingo halls
• pool halls
• convention halls
• catering halls
• 75 percent of outdoor dining areas

But, to really understand the issue, I attended a public debate at Baruch College hosted by Justice Talking, a radio show associated with National Public Radio.

Speaking against the ban was Jacob Sullum, a senior editor at Reason, a libertarian magazine, and a syndicated columnist who's weekly column, distributed by Creators Syndicate, is carried by newspapers across the country including the New York Post, The Washington Times, and the Las Vegas Review-Journal. Promoting the ban was Joseph Cherner, president of SmokeFree Educational Services, Inc. and founder of B.R.E.A.T.H.E. (Bar and Restaurant Employees Advocating Together for a Healthy Environment). Their arguments were simple: Cherner wanted a safe work environment for all employees, whereas Sullum thought the government had no right to tell a bar owner how to run his business.

Not as concerned with the whys and why nots, I was at the debate to find out if there were any groups that were formally forming to fight the ban. Kramer was part of the audience and during the question and answer portion he spoke about a group he had formed called E.X.H.A.L.E. (Ex Hospitality Workers Already Losing Employment), which was his answer to B.R.E.A.T.H.E.

I didn't speak with Kramer that night so I did do some research on E.X.H.A.L.E. I couldn't find anything and decided to go to the Raven and check in with Kramer himself. There, he let me in on a little secret: the group was a fake.

"Yeah, I just said that that night because I think Cherner is ridiculous," Kramer said. "Y'know what? I found out he doesn't even live in New York. After September 11th, he took off to live in Paris. And now he's over there telling me how to run my business. How dare he."

Kramer obviously felt very strongly about the issue and how it will affect his business. Though E.X.H.A.L.E. was a made-up organization, he did tell me he has been playing an active role opposing the law. He said that since August he had been writing letters to his councilwoman, Margarita Lopez, who was in fact one of the few council members who had voted against the amendment. He also turned me onto a group called C.L.A.S.H. (Citizens Lobbying Against Smoker Harassment) run by a city employee named Audrey Silk.

"It's unbelievable that New York would put a law like this into effect during a time when it's barely keeping its head above water financially," Kramer said. "It should be looking for ways to increase consumer spending, not dissuade it. I think it should even go the opposite way all together and create a red light district with casinos and prostitution."

On the other hand, Kramer said, this could be a way for the city to increase revenues through increased ticketing. He said it's typical that during times of economic distress the city increases the number of parking tickets it gives out. In fact, he said, the City recently stopped allowing free parking on Sundays.

Kramer went on to quote a recent episode of the Penn and Teller: BULLSH*T! show on Showtime where they tackled this subject. On that show Penn noted that the data provided on the Environmental Protection Agency report that organizations like B.R.E.A.T.H.E. use to prove that second hand smoke is harmful was severely manipulated and the true data shows that the number of cases are so few that they can't be figured into accurate statistics.

The medical side of the argument was why Lopez voted against the amendment, she said.

"Smoking is a chemical addiction," Lopez said. "And to cut the public off without any contingency plans for the addicts or the bar owners is just wrong."

Lopez said she favored the idea of ridding the city of the tobacco epidemic, but not with such a black and white strategy. She felt that a staged approach laced with incentives for business owners and money for cessation plans would work better. However, because the amendment was introduced by the Mayor, the Council did not have the power to alter the language at all.

"I don't have all the answers," Lopez said. "But I just find it strange that the Mayor, who is so bent on forcing New Yorkers to quit, just reallocated money away from programs to help people quit." She alluded to $13 million that the City won from a class action law suit against the tobacco industry that was taken and given to the Department of Education. The Mayor's office would not comment on this.

Kramer said there could still be a glimmer of hope. He received a letter from the Department of Health about a hearing they are going to have on March 7th to discuss "repealing and reenacting" the law. The letter states that because the amendment alters the original law so drastically, that adopting it as an amendment is unlawful. Rather, the correct process is to repeal the law and to vote in a completely new law.

Silk, who established C.L.A.S.H. in January of 2000 in response to Governor Pataki raising the tax on cigarettes, plans to attend the March meeting too. But she doesn't feel that it will change anything. Silk is a New York City police officer and she noted that the city will have a tough time enforcing the law.

"It's rumored that the Department of Health hired 12 new inspectors who will work off hours and conduct impromptu inspections," Silk said. But it will not be the responsibility of the police to give out tickets.

Still, Kramer said that come March 30, he will comply with the law.

"I think it's terrible that the city is putting the burden on me," Kramer said. "But I think the inspectors will hit hard in the beginning and make examples of the first few bars that are in violation. One of Cherner's right hand guys has already been hounding me saying that he's going to come to my bar with a bunch of people to celebrate the law. I'm not sure if he's coming on the 29th at midnight, I hope not. I'm planning a smoke out party that night so all my patrons can smoke till their heart's content."

The day after the law goes into effect, Silk and C.L.A.S.H. are planning a night out at a famous steak house in Hoboken, NJ.

"I think a lot of New York bar business will move across the river," Silk said. "New Jersey will definitely benefit."

As far as planned demonstrations against the ban, both Kramer and Silk agree that there probably won't be much activity.

"Most smokers are still in denial," Silk said.

"It's just not in their nature. Smokers are generally more laid back," Kramer said. "And in these days with the war and environmental issues, I almost feel guilty protesting something silly like this."

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