Upstate Bar Wins Reversal of State's Smoking Ban
January 13, 2004
By MICHELLE YORK

CICERO, N.Y., Jan. 10 - Decades ago, David A. Damon Jr.
used to come to his father's bar and banquet hall to spin
records, the vinyl kind, for the regulars.

It was a place where people stopped after fishing on Oneida
Lake. Or for banquets celebrating another year of bowling
competition. For nine years, the Elks ran the hall, about
10 miles north of Syracuse, as their private club. But in
1996, when the club could no longer afford the mortgage
payments, the son took it back as his retirement venture.

Mr. Damon never meant to make much money. His business,
Damons, was just a place where the memories were as old as
the chairs (also the vinyl kind).

But he never meant to lose money, either. And he did after
the state's smoking law went into effect last July. "I got
killed," said Mr. Damon, 69, a retired engineer. "I didn't
just lose the smokers; I lost the friends of the smokers,
the nonsmokers, who didn't want to hang out without them."

"People used to come in after golfing," he added. "I
stopped seeing fishermen, too. I used to have bowling
banquets, but people decided they'd rather shake hands at
the last game and go home. They changed their lifestyles."

When the weather began to turn last fall, even the bar's
loyalists dropped off after growing tired of tramping out
to the gravel parking lot in the cold for a smoke. Mr.
Damon said his receipts were down by $1,000 a week. He laid
off his only employee, a part-time bartender, and was using
his retirement savings and Social Security checks to keep
the bar open.

"There used to be 15 to 20 cars in the parking lot, and now
you see two," said Michael Smith, a regular who gave up
smoking years ago.

Alarmed, Mr. Damon went to Onondaga County officials to
exercise a provision in the smoking law intended for just
such a predicament. After he proved his economic hardship,
and demonstrated that the bar had a separate room suitable
for a smoking lounge, the county granted a waiver. Scott
Wexler, executive director of the Empire State Restaurant
and Tavern Association, a trade group, said he thought the
waiver for Damons was the first in the state.

Apparently it will not be the last. "There's going to be a
few more that meet the criteria," said Gary R. Sauda, the
director of environmental health for the county, which is
considering 24 other applications.

The association believes that 10 percent of the state's
16,000 restaurants and bars that are licensed to sell
alcohol will ultimately find ways around the tobacco law.
How they do so will vary.

When smoking restrictions in the state Clean Indoor Air Act
were tightened last year, the state law superseded local
smoking laws. But it allows New York City and those
counties with full-service health departments to decide
whether they will grant waivers and under what conditions.
In rural counties without full-service health departments,
the state policy for exemptions takes over, said Claire
Pospisil, a State Health Department spokeswoman.

Some places, like New York City, and Westchester and
Suffolk Counties, do not offer waivers, health officials
said. Nassau County recently decided to offer them. "It's
happening as we speak," said Cynthia Brown, a spokeswoman
for the county's Health Department.

Other counties decided to offer waivers but did not
establish guidelines for applications, a situation that has
stalled the process.

Some counties may have been waiting for direction from the
state, which issued guidelines just in December suggesting
that bars that lose 15 percent of their business may be
eligible, said Mr. Sauda, the Onondaga environmental health
director. Onondaga decided to not require a certain
percentage, only a substantiated drop.

Two "economically depressed" counties in the state may try
to give waivers to any bars that ask for them, Mr. Wexler
said, though he declined to name the counties.

The delays and different rules have led to confusion,
frustration and perhaps action, Mr. Wexler said. "News that
a bar in Cicero is getting a waiver has stimulated the
effort for a level playing field," he said. "The smoking
ban will be a major topic in the Legislature this year. I
just don't think it's going away."

Since news of the waiver broke, Mr. Wexler said, his office
has been getting about a dozen calls a day from bar owners
who feel hopeful for the first time since the law was
passed.

Even in counties that have guidelines in place, like
Onondaga, bar owners face a lengthy approval process. Mr.
Damon said the paperwork took weeks, "not including
thinking time," he said, "because I guess thinking time
doesn't count." He turned over financial records comparing
receipts from August through October over a three-year
period, and they showed a 40 percent drop in business last
year, after the ban took effect. He escorted county
inspectors through Damons, showing them a separate banquet
room and ventilation system.

His application was approved and the waiver was
hand-delivered during the holidays. "Now I have to see if I
can get customers back," he said.

As reports of the waiver have spread, he has picked up some
new patrons. "I saw it on the news," said Shawn Prell of
North Syracuse, "and I said, `Good! We're going to this
place.' " Ms. Prell stopped in for a drink on a recent
afternoon with her husband, Ed. "We even called our
friends."

The Prells confirmed what Mr. Damon believed: that smokers
cut down on the number of times they went out to bars or
restaurants, but not on their cigarettes, after the ban
took effect. "We used to go out every week, but now we go
out once a month," Ms. Prell said. "We're saving money."

Mr. Damon clearly hopes to change that. He pointed the
Prells toward the smoking lounge and poured their first
drink.

http://www.nytimes.com/2004/01/13/nyregion/13WAIV.html?ex=1075131228&ei=1&en=3211fc57ebcd4232