D.O.H. Hearing Impaired
by: Joseph Van Harken

East Village bar owner Harold Kramer at first thought the New York City Department of Health's "repeal and reenact" hearing Friday, March 7 was promising. His hope dimmed as he and a handful other anti ban advocates learned that the purpose of the meeting was not to discuss the lawfulness of the Smoke Free Air Act of 2002. Rather it was to listen to the public's sentiments regarding the regulations, meaning how the law will be enforced.

"This is not a debate about the law. The law is a done deal, there's no reason to bring the troops here today and have a big fight," said Bob Bookman, an attorney who represents the New York Nightlife Association. "But what we can do is talk about the regulations- the Department of Health cannot promulgate the regulations to make the law lighter or harsher than what the City Council voted in. "

Specifically, Bookman said the Department of Health determined they can revoke the license of an establishment owner who is ticketed more than three times within one year. Bookman said that language was not specified by the City Council and that if it were the Council's intent, the Council would have deliberately included it in the draft of the Act.

"Bookman doesn't know the law as well as we do," said Martha Robinson, Assistant General Counsel for the New York City Department of Health. "Concerning many laws and regulations, we have the power to revoke a license if it can be proven that there is a willful intent to commit a violation."

Bookman and about 20 other public attendees were each given a three-minute window to formally address the Department of Health panel. The panel then will take into consideration what was said before it enacts the regulation portion of the law, which goes into effect on March 30, 2003.

The speakers were split into two basic groups: those for the law and those against it.

Speaking on behalf of the law were representatives from the American Lung Association, the American Cancer Society, the American Heart Association. They called for tighter language to close possible exemption loopholes and to state specifically that it would be illegal for unwrapped ashtrays to be present anywhere inside an establishment. Furthermore, they asked that the regulations also include specifications for owners to designate outdoor boundaries where patrons may congregate to smoke.

Other representatives of minority business owners, who also supported the law, asked for the panel to provide sings in with non-English translations that they can hang explaining the law and who may be penalized.

Who may be penalized was another concern Bookman raised. He called for clarification on what to do if a patron breaks the law and smokes anyway. The current Act states it is the establishment owner's responsibility to enforce the law, but Bookman said the Act of 1995 states that the person committing the violation can be fined up to $100. Which will it be now?

Those speaking against the law, like Kramer and Lower East Side bar owner Sandee Wright who owns the Whiskey Ward, complained about the burdens unjustly put on their shoulders. They feel it is not fair for them to be in charge of policing their own clientele, which is made up of more than 80 percent smokers for each bar. For a full transcript of their speeches, click here for Kramer's and here for Wright's.

Other questions focused on how the law will actually be enforced. Sandra Mullin, associate commissioner of the New York City Department of Health said the Department is in the process of hiring and training around 12 new inspectors who will target the evening hours. She hopes the new crew will be ready by March 30.

"We want to generate revenue," Mullin said.

To achieve this goal, beside the smoking ban, the inspectors also will enforce other health code regulations, Mullin said.

How it all works out will be interesting, Bookman said. The first establishment to get its license revoked will be involved in a big lawsuit that challenges the law, he said.

"That's nice," Wright said. "But I sure don't want to be that first bar. "

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