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State Issues Rules for Smoking Ban Waivers

By Associated Press

Albany, NY – Bars and other businesses that can prove they lost at least 15 percent of their profits to the state's new smoking ban will be able to apply for waivers in much of the state, according to rules released by the Pataki administration Friday.

The waivers could potentially lead to one in 10 bars and restaurants statewide allowing smoking despite the five-month-old ban on indoor smoking in workplaces, an advocate of the waivers said.

The state Health Department issued the rules to obtain smoking ban waivers for the 21 counties served by the state department. The other 41 counties and boroughs could adopt the waiver rules as well or establish their own rules, potentially creating different smoking rules in neighboring counties.

Hundreds of business owners have inquired about waivers since the indoor smoking ban went into effect July 24. Scott Wexler of The Empire State Restaurant & Tavern Association roughly estimated, based on applicants in one county, that as much as 10 percent of the state's thousands of bars and restaurants could allow smoking if most localities adopt the state's rules.

The rules would allow business to apply for waivers to the smoking ban if they:

-- Can show they lost 15 percent of their business since the ban was established compared to similar periods.

-- Are clubs and other membership organizations that use only volunteer workers.

-- Are a "cigar bar" in which at least 10 percent of annual gross income is from the sale of tobacco products and the rental of humidors, excluding vending machines.

The waivers will cover two years and the businesses will be subject to inspection and investigation of complaints. The waivers can't be transferred with the sale of the establishment, according to the rules. The law contains a provision to create waivers based on financial hardship.

"We worked with local governments, advocates and the business community to develop a reasonable approach and this criteria reflects that effort," said Health Department spokesman William Van Slyke.

Wexler, however, said the waivers are not enough to help what he said are the many businesses hurt by the smoking ban.

"While the waiver criteria will be helpful to the hundreds of small business owners in the 21 counties where the state Department of Health is in charge, we still need an amendment to the law," Wexler said.

Last week, state Senate Majority Leader Joseph Bruno, an increasingly vocal foe of smoking and its health effects, said the Senate will monitor the granting of waivers and whether they are hurting the smoking ban.

Russell Sciandra of the Center for a Tobacco Free New York has said the 15 percent threshold for lost income is "arbitrary." He said the waivers should rarely be issued so that the smoking ban isn't undermined.

Sciandra said on Friday the Health Department didn't consult with health advocates in developing the waivers. He said he's concerned that the waivers won't protect nonsmokers and employees from the effects of second hand smoke.

"The law requires the Department of Health to develop waiver guidelines and the department is fulfilling that legal requirement," said Todd Alhart, spokesman for Gov. George Pataki.