Bad laws are the worst sort of tyranny.
- Edmund Burke

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Fighting the New York State Smoking Ban

Note: This page is rather useless, because the war is over in New York State, and the nannies have won. This is do to many factors, but the pathetic complacency of many bar owners was a huge contributing factor. This page is only here as an archive. (And please satisfy my curiosity - how did you get here? There are no links in the site to this page (that I know of). Please drop me a line and let me know.

Bars and restaurants across the state are allowing their patrons to light up to protest the New York State Smoking Ban. Here's how they do it while complying with the letter of the law.

Warning: I am not a lawyer. This is not legal advice. You are strongly urged to check with your attorney before making any changes in your business policies.

The entire law is available here. The most important portions to consider are the definition of smoking, and what owners are required to do under the law.

§ 1399-n. Definitions

8. "Smoking" means the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco.

Substances that do not contain tobacco, such as herbal cigarettes, are not covered by this law.

§ 1399-p. Posting of signs.

1. "Smoking" or "No Smoking" signs, or the international "No Smoking" symbol, which consists of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it, shall be prominently posted and properly maintained where smoking is regulated by this article, by the owner, operator, manager or other person having control of such area.

§ 1399-t. Enforcement.

4. The owner, manager, operator or other person having control of any area subject to the provisions of this article, shall inform, or shall designate an agent who shall be responsible for informing individuals smoking in an area in which smoking is not permitted that they are in violation of this article.

That's it. A proprietor has to post signs. He has to inform any smoking customers that they are in violation of the law. Once he's done that, he is in complete compliance with the law.

If his customer continues to smoke after being informed it is against the law the proprietor (or employee)

  • Does not have to insist that they stop.
  • Does not have to stop serving them.
  • Does not have to call the police.

Note: This refers to the New York State law. It does not supersede local laws and restrictions, which may be much stricter. For this reason we once again urge you to consult with your attorney before making any changes to your business policies.

For instance, the New York City law also bans ashtrays. (Some establishments have been fined for having clean, empty ashtrays locked up in back rooms.)

The law allows Health Departments to fine the smoker, but as of this writing, that has not been done anywhere in the state.

How to Fight The New York State Law

Here's how to let people smoke in your bar or restaurant and still be in 100% compliance with the law.

Don't apply for a Waiver. Waivers are being doled out infrequently. You're not likely to get one, and if you do, it is only a stay of execution. When it expires your situation will be worse than it is now. You'll be subjected to the same law, and many of your competitors will be out of business (therefore unable to join you in the fight). Waivers are bowing to the state, agreeing they had the right to deny you your property rights with the passage of this law, and begging with them to please give them back to you for a little while.

Make sure "No Smoking" Signs are clearly visible throughout the establishment.

If a patron lights up, an employee of the establishment must tell them they are in violation of the law. Ask them to sign a card that states "I have been informed by an employee of Joe's Bar and Grill that smoking in this establishment is a violation of New York State Law." Have them print their name, sign their name, and date the card. Store the cards in a safe place.

(Another alternative is to have a log in the back room, where employess can note the location of the customer and the time and date they informed them.)

The NYS law doesn't prohibit ashtrays. In the interest of fire safety, provide ashtrays. (In New York City you're not allowed to do this.)

If you have a valid Certificate of Registration to sell cigarettes or tobacco from the State Department of Taxation and Finance, sell and promote herbal cigarettes. Use clear, obvious signs to advertise them. If you don't have a certificate to sell them, consider giving them away for free to anyone who requests them.

Optional: Put up a collection jar to collect contributions for paying off fines and legal fees.

People who chose to smoke in your establishment are willfully engaging in civil disobedience, protesting an unfair and unjust law. Advertise that fact. Contact every local media outlet you can, and publicize what is happening in your place. This may have the side effect of filling your place with happy customers, but it is also sure to bring in some miserable nannies, who can be counted on to whine to the Department of Health.

When the Department of Health cites you for a violation, always fight any fine. Demand that the DOH detail the exact time and place of the violation. (Many notices don't include this information.) Your attorney can help you stretch out the proceeding as long as possible. If he can't, find a new lawyer. You will have documentation that proves you informed your customers of the law. You can also note that your patron may not have been smoking tobacco, since you sell, promote (and perhaps give away) herbal cigarettes. The burden of proof is on the DOH enforcement officer.

When (not if) you are fined, be aware of your rights to appeal any decision made by the local DOH right on up to the state level. Always take advantage of this right.

Reach out to competitors. Encourage every bar, restaurant, bingo hall, pool hall, bowling alley and private club in your area to participate. Don't think of them as competing with you for customers. Realize they are powerful partners with you in this fight. The more people who participate, the more likely this onerous law will be changed, or just ignored.

If you're not already a member of ESRTA, join it. They are active members in this fight.

If you and your fellow hospitality business insist on exercising every legal right you have, you'll overload the system. Overload it.

The Facts salutes those who encourage their patrons to engage in civil disobedience to fight unfair, unjust, and stupid laws, and encourages everyone to patronize them.


© 2000 - 2012 Dave Hitt

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