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28 Days of Rehab
by: Diana Nikkah and Joseph Van Harken

Okay, it has finally happened. New York City has been living smoke free for almost a whole month. Well, kind of anyway. After Bloomberg's anti-smoking ban took effect March 30, 2003, most bars and restaurants have asked their smoking patronage to kindly step outside. We say most, because right before the ban began, the City's department of health put a 30-day stay into place. The purpose of the stay was to have a period of adjustment, whereby bar owners and bartenders could become familiar with the new laws and educate their patrons as well. Bars were safe because only warnings, not fines, were handed out for violations.

"The 30-days didn't matter to me," said Harold Kramer, owner of the Raven Café, a neighborhood bar on the corner of 12th Street and Avenue A in the East Village of New York City. "The ban is still going into place, and as much as I hate it, I figured I may as well get my customers used to it sooner rather than later."

The motivation behind the smoking ban was to protect employees from breathing in dangerous second-hand smoke. In our "Waiting to Exhale" coverage, we showed how studies cited in the documents on which the medical risks are based were inconclusive.

"This goes way beyond a violation of civil liberties," said Patrick Carroll, president and chief executive of Freedom Tobacco Company. "It's become oppression of the majority. There must be some level of pollutants allowed in any air situation, otherwise all cars and industrial smoke stacks would be illegal too."

Carroll's company sponsors an advocacy group called the Right to Smoke Coalition. He spends about five percent of his annual budget on promoting the organization's web site, which is a simple form page that serves to collect signatures for a petition. The goal is to collect 60,000 names, Carroll said, which will allow the coalition to include a referendum on the ballot next election calling to repeal the current smoking ban.

Right now, Carroll said he's collected about 5,000 names. And, once he hits the 10,000 mark, he will organize a telecommunications protest modeled after the group Moveon.org, who protested the war and was able to cause a cyber gridlock in Washington D.C. for a few hours.

"Smokers are a hard group to motivate physically," Carroll said. "The night the ban went into effect, only about 30 people showed up outside Bloomberg's house. That's not too many. Most smokers feel kind of guilty protesting because there are bigger issues in the world today or because they know it's bad for them. But they don't realize it's about much more than smoking, it's about their rights being taken away from them too. Before you know it, beer and alcohol will be next."

Evolution of a Movement

But Carroll and groups like his are a minority. Now that the ban is in place, the movement that once stood to fight the law is transforming into a movement that defines a subculture, one based on a new way of behaving. Even C.L.A.S.H., who once rallied against the ban, has turned its attention to encouraging people to go to New Jersey pubs. Smoking hasn't been snuffed out of society. Rather, it's just being done in a different way.

In the East Village, when you walk through the streets on a warm spring evening, mixed with the smell of cherry blossoms blooming and weeping willows budding is the smell of cigarette smoke wafting through air. You hear loud bellows of drunk patrons and dodge their staggering stumbles as you try to pass. But some bars suspiciously have clear sidewalks. In the inner smoker rings, these bars have become known as "smokeeasies." They are taking a risk, but as during Prohibition, keeping citizens from doing what they feel is a right naturally leads to underground activity. These establishments have different reasons and strategies for allowing smokers to continue puffing indoors.

Reporters' note: Because the stay ends on May 1, 2003, for fear being targeted for their comments, those bars that will continue to allow smoking in defiance of the law have requested to be kept anonymous.

"I figure the amount of cash I'd lose offsets how much the fine would cost me if I ever got one," one owner said. "Plus, I could even get more business if I can attract the crowds who don't want to go to a bar where they can't smoke."

Another owner said that she has taken up a collection from her patrons. She puts the money into a fund that will be used to pay any fine she may receive.

Some feel this process is normal in a capitalistic society and that a shakeout is what was meant to happen. The majority of people in the city are non-smokers, one owner noted. If the city doesn't require businesses to ban smoking, then of course, none of them would for fear of losing business. But, because the City ban the act, a majority of business will comply and many will see that their bottom lines are not affected. But, an unspoken few will still allow smoking and all populations will eventually be happy: the majority of people who don't smoke, then the subculture that still does.

"It will be like marijuana in Amsterdam," one smokeasy bartender said. "It's illegal, but there are still special cafes that everyone knows about."

Enforcement?

But, beside the smokeasy concept, there are some bars and restaurants in the city where you can puff away without the guilt that you may be putting the owner in financial jeopardy. Cigar and hookah, or water pipe, establishments that can prove they receive at least 10 percent of their gross annual revenue from tobacco sales are exempt from the smoking ban. This also applies to businesses that were already in existence as such before December 31, 2001, according to one lucky bar owner.

"We have to apply for exemption from the ban and we can continue to operate assuming we're exempt while our request is being processed," said Mark Osborne, owner of Kush, a bar that offers hookahs and flavored tobacco in the Lower East Side. Osborne even suggested that bars not eligible for exemption could file for it anyway to buy themselves more smoking time. However, he fears his fortunate status could soon be undermined. The recently passed New York State smoking ban legislation, which is more stringent than the City's, will go into effect July 24, 2003.

"What usually happens is that wherever the City and State laws differ, the stricter one will be the rule," said an official of the New York City Department of Health and Mental Hygiene.

It seems that once the State legislation comes to town, bar owners that think they're exempt might have a shock in store for them. Bar owners and managers have already received rude awakenings during the month-long stay. Visits from health inspectors have noted the ban goes far beyond what's anticipated and beyond what's rational for the ban itself.

"I can't believe this! I understand no smoking in the bar, but this guy said people couldn't smoke in the back garden or in the seating area in front of the bar. I said, 'People aren't allowed to smoke outside?' and he said yeah," exclaimed one East Village bar manager who wishes to remain anonymous. She was visited by a health inspector who told her the bar could not appear to condone smoking in any way, even smoking outside by placing ashtrays or buckets for butts on the sidewalk in front of the bar. This was news to her because she thought if separate smoking rooms were permitted, then surely an open-air garden of sidewalk seating area would be safe. But the law initially passed by the City Council seemingly has morphed and is turning New York City into even more of a police state than it was under former mayor Rudolf Giuliani, she said.

"Bloomberg's reason for the ban was to protect the health of bar and restaurant workers, but he's trying to close the city's budget deficit by fining the hell out of us," said the same bar manager as above. Her bar already has been given one warning, and the inspector told her he'd give her a fine the next time: $500 for each person caught smoking, even if the incident were to happen before the end of the stay.

She also mentioned that many businesses are renewing or applying for sidewalk café licenses specifically because of the smoking ban, but that has become a ridiculous process. What used to cost $2000 is now upwards of $10,000, she said of the sidewalk permits.

"How are we supposed to stay in business?" She said. "And for each bar that closes at least 25 people are left jobless. And in this economy? Forget it."

Bars like hers that are trying to stay in compliance with the law are upset by other bar owners who aren't because they feel it creates an unfair playing field. The Raven's customer base consists of about 80 percent smokers, said owner Harold Kramer. But early on, he decided to comply with the law. To accommodate his smoker base and to not lose their business, he put a brand new bench outside and an ashtray to keep the litter off the sidewalk for which, under the City's Quality of Life Act, he can be fined. That act states that smokers must be at least six feet away from the establishments doors and that the owner is responsible for keeping the sidewalk free of litter.

Police officials have not updated aggregate numbers for noise violations through March and April, 2003 yet. Their numbers stop at March 3, 2003, a week before the new 311 program was launched. The 311 program is a new non-emergency hotline for people to report "quality of life" complaints like potholes and noise. It's meant to lighten the load and make the response time for 911 calls much faster.

"Even if I could get you the numbers you wouldn't be able to draw any parallels between any increase in noise violations and the smoking ban because of the 311 system," said a police official from the office of the deputy commissioner of public information.

The coordination of launching this system with the smoking ban does not surprise Carroll.

"This whole thing has been carefully planned. Bloomberg may not care about our personal freedoms, but he's definitely a smart guy," Carroll said. "Why do you think he waited until it was nice out too? It will be easier for people to change their lifestyles if it's not freezing or raining outside."

Tragedy Strikes

But, with change always comes conflict. And one thing that April has shown us is that stay or no stay, it's not always easy to enforce a law that drastically changes a norm or expectation.

"Drinking and smoking go hand in hand," said Eric Pagan, a bouncer at the Raven Café. "I'm sure there will be some confrontations."

Dana Blake, also known as "Shazam," bouncer at Guernica, a popular lounge in Alphabet city found out the drastic possibilities of a confrontation on April 13, 2003 when he was stabbed in the femoral artery and died hours after asking a patron who refused to put out his cigarette to leave.

As the story goes, Guernica was entertaining a large Asian party in the basement. After repeatedly asking a pair of brother's, Jonathan and Chin Chan, to put out their cigarettes, Shazam began to "bounce" them. He allegedly picked up Jonathan by the neck and started to carry him up the stairs. Jonathan's sister, Ngan Ling, jumped on Shazam's back and a scuffle ensued. At one point, Shazam collapsed in a pool of his own blood. The Chan brothers and their sister fell out onto the street.

Travis Keyes, a part owner and waiter at B3s, a restaurant/bar next door to Guernica saw the action unfold.

"There was a large bald Asian man outside my door on the corner of Avenue B and Third Street," Keyes said. "He had blood on him and he was surrounded by a group of his friends who were holding him back. He seemed like he was trying to fight his way back to Guernica. He was yelling down the street to another bouncer saying, 'See that, see that, this could happen to you.'"

Keyes then went outside and heard that Shazam had been stabbed. He said the bigger brother started running down Third Street toward Avenue D. He and a detective from the 9th Precinct chased him down and "controlled him."

Keyes said "the Chans were probably trying to inflict pain, but I don't think they were trying to kill Shazam. It's not like they ran off right away. The big bald one was even trying to go back. Plus, we didn't have to track them, we just got them."

Shortly after the Chan's were brought in, they were released from custody due to lack of evidence. After hearing about it, Keyes said he felt "defeated," especially after chasing down the guy.

"I'm not surprised the men were released," Keyes said, "Bloomberg will probably sweep this one under the rug."

But later it was found that the Chans hadn't stabbed Dana Blake, and that another man at the party, who was trained in the martial arts, inflicted the fatal wound. Isaias Umali of Jamaica, Queens confessed to police after they received a tip. Umali was in the hospital, apparently recovering from self-inflicted wounds stemming from guilt over the incident.

At a fundraiser for Blake's funeral held at Guernica on April 17th, thousands of dollars were raised and friends and colleagues remembered the bouncer fondly. Some were also angry.

"I think it's bullshit what happened to him, over something so stupid," said another bouncer at the club who wished to remain anonymous. A bouncer for three years, he said danger goes with his job, but after Blake's murder, he needs to more aware. Enforcing the ban is what ultimately led to Blake's death, and it's this new aspect of club control that has bar owners nervous about future scuffles.

Outraged by Blake's murder, Kramer sent an email right away with an I-told-you-so tone to City Hall. Kramer has been critical of the burden the ban places on the bar staff to enforce the law, and for him, this fatal confrontation is the manifest of his worst fears.

Keyes called a staff meeting and told his workers "from now on, if any refuses to put out a cigarette, walk away and call the police," Keyes said. "At least then there will be a record that we tried to enforce it. If they still want to give us a fine after that, well, that's the best we can do. But no amount of money is worth a human life."

In Sum

The trickiest thing about the ban, aside from looming hefty fines, is how those tickets will be given. Bloomberg has hired 25 inspectors to police the city's bars an restaurants, but it seems hardly possible for 25 workers to enforce a ban affecting thousands of establishments. In California, smokeasies cropped up and people who wanted to smoke and drink simultaneously knew where to go; those who didn't had their smoke-free spots as well, according to Felicia Williams, who used to live on the west coast.

Though few inspectors may pose little threat, bar owners still fear those fines, which could do more than inflict financial calamity on their businesses. Various permits they operate under could also be revoked for repeat offenders, said Consumer Affairs documents, literally putting them out of business. And Bloomberg's new 311 hotline makes it easier for citizens who wholeheartedly support the ban to bust bars and restaurants in violation.

Now that the month-long stay on fines is ending, and businesses as well as patrons have been "reeducated," April will give way to a hot and hot-tempered May, where the ban's enforcement and affect on businesses will really be tested. Bartenders are wary of policing patrons, cops say it's not their job either, and those 25 health inspectors must be saints to stay clear of what is sure to be attempts at palm-greasing. Reflecting on history, not only did Prohibition not work, it gave rise to crime and corruption.

And if it's a budget gap Bloomberg wants to fill, Kramer said, "putting the businesses that bring people into the city out of business is not the way to do it."

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