How a Popular State Bill to Restrict Smoking in Restaurants Faltered
Among the many pieces of unfinished business at the end of the legislative session this year, a bill that would have restricted smoking in restaurants seemed among the most likely to succeed.
The measure is popular with voters. More than 70 percent of New York's residents already live under similar local laws. For the first time, the state's largest restaurant association said it was satisfied. The State Assembly had approved it. In late May, a spokesman for the Senate Republican majority said it would come up for a vote, and public health advocates provided a list indicating they had the votes to win if the bill came to the Senate floor.
But the session has pretty much ended, and the bill was not brought up for a vote.
Its apparent demise demonstrates how in Albany, it is much easier to stop a bill than to shepherd it into law. And the various interested parties will almost always tell different stories about who applied the brakes.
Joseph L. Bruno, the Senate Republican majority leader, expressed concerns that the measure would hurt small businesses. Senate Republicans are traditionally opposed to saddling businesses with more regulation.
Several lawmakers have said that Gov. George E. Pataki also did not want the bill to come to a vote. Blair Horner, the chief lobbyist for the New York Public Interest Research Group, suggested that Governor Pataki might not have wanted to antagonize the tobacco industry any further, since the governor had approved major tax increases on cigarettes this year.
Joseph Conway, a spokesman for the governor, disputed that, saying: "That's just plain wrong. We have an open mind on the legislation. The governor has led the effort to combat the dangers of smoking, and New York now has one of the most aggressive antismoking campaigns in the nation."
The bill also lost steam at the end when the advocates and the sponsors of the legislation refused to compromise further, saying changes had already weakened the bill.
For a while, things seemed to be working in favor of the bill, known as the Clean Indoor Air Act. Once considered a sheer political impossibility, the bill gained momentum when, for the second year in a row, a zealous Republican sponsor took on the cause in the Senate. The sponsor, Charles J. Fuschillo Jr., brokered an agreement with Assemblyman Alexander B. Grannis, a Democrat and longtime carrier of the antismoking banner in the Assembly.
Senator Fuschillo then shopped the agreement to Senator Bruno, who controls which bills come to the floor for a vote. Mr. Fuschillo, a junior member from Long Island serving his second term, was optimistic.
The new deal, which the sponsors intended primarily to protect restaurant workers, would have banned smoking in all restaurants, except in separately ventilated smoking rooms and, in a concession to political realities, the bar area. The bar could only have 15 percent of the restaurants' seats and would have to be separated by a floor-to-ceiling partition or â€” in another compromise â€” six feet of empty space.
Restaurants that found the rules too onerous, Mr. Grannis said, were more than welcome to forbid smoking altogether.
The bill has a long list of supporters, including the American Cancer Society, the American Heart Association, the American Lung Association, the League of Women Voters and doctor and consumer groups. Its list of opponents is far shorter: the Empire State Restaurant and Tavern Association and the tobacco industry, whose lobbyists say they have taken an interest only in support of the restaurants it considers customers.
And not all restaurants oppose the proposed law. The New York State Restaurant Association reversed its long-standing opposition after a survey showed, to the surprise of its president and chief executive, Rick Sampson, that 76 percent of its 7,000 members favored the law.
"Our argument has always been uniformity," Mr. Sampson said. "As long as one county is doing one thing, and something different is going on somewhere else, it creates a problem for our members." He continued, "Why the bill hasn't moved, I got to tell you I'm kind of surprised."
Still, the bill was altered to meet some restaurant demands: the bar-seating limit was removed, and smaller establishments were given more time to comply. On a Thursday in June, with the legislature not reconvening until the following week, some supporters agreed to the changes. Assemblyman Grannis told reporters that there was a deal.
That amounted to two tactical errors, said some of those rooting for the bill: Mr. Grannis angered the Senate by breaking protocol with a unilateral announcement, and advocates had played their hand too soon, giving opponents time for rebuttal.
The rebuttals came, and the momentum flagged. The next week, Scott Wexler, the executive director of the Empire State Restaurant and Tavern Association, which has 5,000 members, floated the idea that the bill would apply to private clubs like American Legion halls and Veterans of Foreign Wars posts, mainstays in the communities of upstate senators. The bill does not affect such clubs.
John McArdle, a Senate Republican spokesman, said that hundreds of restaurants were calling. "Most of the concern has been coming from those who believe the proposed bill would put them out of business," he said.
Frustrated, public health advocates including the American Lung Association and the New York Public Interest Research Group released a list noting that 42 of the 61 senators favored the measure. Asked why the bill was not put to a vote, Mr. McArdle said, "We don't go by advocates' roll calls. We don't run our lives that way. And they're very suspect."
Then a complaint surfaced that was based on one of the bill's more permissive measures: allowing smoking in the bar. That would be unfair to restaurants without bars, wrote Larry Forth, the chief lobbyist for Cracker Barrel Old Country Store, a national chain of family restaurants. And if a bar could be separated by a partition, he asked, why not a smoking dining room?
Mr. Wexler is the bill's most public opponent, insisting that the law would drive smaller restaurants out of business, as he said had happened with local laws.
But he could not provide the name of any restaurant forced to close by a smoking curb. "What we do know is that places open, places close and some have closed because of the law, but I could not identify individual businesses that have closed because of the law," he said.
One of the association's members, Andrew Harris, the owner of the Better Days Pub & Eatery in Allegany County, said that along with a depressed economy, his county had one of the state's highest percentages of smokers. "Every business here is in a pretty fragile position," Mr. Harris said. "Eighty percent of my clientele smoke. Half of those people that smoke wouldn't come in because they couldn't smoke in here."
In theory, the bill would have allowed restaurants threatened by the law to apply for hardship waivers.
Mr. Wexler asked for exemptions for restaurants under 35 seats, and for smoking in the main dining room, but at tables with "separate ventilation systems," an idea laid out on a Philip Morris Web site. The bill's sponsors would agree to neither proposal, saying they would weaken what was already a compromise.
"What they're doing is carrying the argument for the tobacco industry, obviously," Senator Fuschillo said of the tavern lobby, adding concessions had been made for business owners. "This is about health, and the focus should remain on health."
There is no evidence that Mr. Wexler is shilling for the tobacco industry. But since a loss of credibility after lawsuits of the 1990's and the disclosure of unreported gifts to New York lawmakers in 1999, tobacco companies have often partnered with, or created, hospitality industry groups to further their agenda. Internal tobacco documents released in court showed that Mr. Wexler's group had received more than $400,000 from the Tobacco Institute in 1995. Mr. Wexler says his group no longer receives such funding.
Still, tobacco lobbyists who list the Clean Indoor Air Act on their lobbying reports referred questions to Mr. Wexler. And while they would offer no memos of opposition from their tobacco clients, one tobacco lobbyist, Dan Adams, sent one from the state craft brewers association. Brew pubs may not be affected by the law, and the association is not listed as one of Mr. Adams' clients on the state lobbying commission database.
But if the tobacco industry keeps a low public profile, it is a big political spender. Philip Morris is among the state's top 10 lobbying clients. In 2001, the company gave $117,500 to Republican committees and $11,000 to Democratic committees.