Earlier this month, US District Court Judge Denis Hurley issued a preliminary injunction on Nassau County's three-month-old smoking ban, halting its enforcement to allow for additional review of the ordinance. Nassau County Presiding Officer Judy Jacobs, however, said the injunction does not overturn the law, which went into effect on March 1 of this year, and the ban is still in effect. State law will take effect July 24.

A group of local bar, restaurant and diner owners, including Brian Rosenberg, vice president of The Garden City Hotel, challenged the ban, claiming hundreds of thousands of dollars in monetary damage since patrons were taking their business elsewhere, particularly to Suffolk County where the law hasn't yet taken effect.

Hurley, in his decision, said the county's law was in direct conflict with other sections of the existing law passed back in 1998. "A statute is unconstitutionally vague if persons of common intelligence must necessarily guess at its meaning and differ as to its application, or if it fails to give a person of ordinary intelligence fair notice of the conduct proscribed," Judge Hurley wrote.

Arthur "Jerry" Kramer, partner and chair of the Municipality & Regulatory Affairs Group at the Uniondale law firm of Ruskin Moscou Faltischek, P.C., said, "There was such a rush to get it done, so much that the press release came out faster than the actual ordinance. We had a chance to look at that ordinance on behalf of 50 bar, restaurant and diner owners in Nassau County and said, 'No ordinary citizen of ordinary intelligence could figure out how to read this law.'"

To prove it, Kremer, who represents numerous Nassau bar, restaurant and diner owners, told the courts that the legislature made a prohibition against smoking in bars and taverns but left in the law the following section: Smoking restrictions in this law will not apply to bars and taverns if prominent notice is posted at the doors or entrances that smoking is permitted throughout the facility.

Kremer, who went on to describe several other sections of the law as "sloppy draftsmanship," added, "The net effect of what the county legislature did was to create confusion and uncertainty on the part of the average bar/restaurant owner as to what their rights were."

He argued several points before Judge Hurley, claiming that "the loss of business in Nassau County was staggering, with average losses ranging between 30-45 percent of people who took the time to drive into Suffolk to take their business elsewhere," he said.

"Unfortunately, it was a rush to judgment that's cost these 8,500 Nassau business owners millions of dollars in lost business to Suffolk County that they will never get back," he said.

Roger Corbin, Nassau County Deputy Presiding Officer and chairman of the Health Committee, who sponsored the bill, said he doesn't buy it. "Eighteen percent of the American people smoke and eighty-two percent don't. Why are we here? For eighteen percent, we're going to put the lives of women and children and young adults at risk because some bar says that they lost money? I beg to differ. I don't believe any bar or restaurant lost any money."

Corbin added that a bar owner from Suffolk County approached him a day after Nassau's smoking ban went into place, saying Nassau's law was having negative effects on Suffolk. "He said, 'You enacted a non-smoking bill that affected my bar.' I said, 'Our law doesn't affect Suffolk County. He said, 'No, listen to me. When your law went into effect, I lost 15 patrons from my bar that went to Nassau County because they don't smoke,'" Corbin explained. "No one is talking about that. You're just listening to one side and there's a lot of people who go to bars and go to restaurants because there's no smoking."

Rosenberg argued the law provided no transition time whatsoever. "It was a black and white issue. We have guests that pay $350 a room and we have to ask them to go into the street and smoke," he said. "All we were asking for was a way to figure out how to make everybody happy - we were not trying to promote smoking. That's not what this is about. It's all about the rights of our customers. A lot of our clients didn't even know about this law so it turned us, the proprietor, into the bad guy. It did nothing but turn The Garden City Hotel into a giant ash tray."

The plaintiffs' representation said they did appeal to the legislature in hopes they'd make changes to the law to create a more level playing field. "We asked them to have Nassau's [law] the same as Suffolk's or allow people to smoke in a separate room but they didn't want to do it," Kremer said.

Democrats, however, find it "regrettable" that a law, passed with the singular goal of saving lives, has now been waylaid. "We remain very proud of our leadership on this issue and proud that the state modeled its bill after Nassau's. Regardless of what the final outcome is regarding our law, the Nassau law is forever embodied in the state law," they said in a prepared statement.

"We have bought seven weeks for all of these Nassau businesses so they don't have to lose customers to Suffolk County. It's a good victory for the little guy," Kremer said. "State law is the next target."

Rosenberg, who realizes that in approximately seven weeks, when the state's smoking ban takes effect, he'll be in the same boat, said, "If you've ever been in the bar or nightclub business, seven weeks is eternity to us. There are a lot of bills to be paid in seven weeks ... We'll live to fight another day..."

Donald Distasio, American Cancer Society's CEO, Eastern Division, said the injunction is just a "small bump in the road" to protecting the lives of New Yorkers. "We are confident that when Hon. Denis Hurley listens to arguments on the merits of the legislation, he'll rule on the side of public health," he said.

Distasio, who said the plaintiffs' argument of "irreparable harm" is based on anecdotal evidence, not solid economic facts, added, "The intent of the law is clear: to ban smoking in all bars, restaurants and other indoor places where people socialize to protect restaurant and bar workers and patrons. It has been well documented that secondhand smoke kills ... claiming the lives of dozens of non-smokers and hundreds of smokers a year in Nassau. Bartenders and wait staff subjected to smoke are at increased risk for cancer, heart disease, asthma and other maladies."

Rosenberg, however, said he hasn't had any employees worried about their health. "Police officers know that their well-being is in danger when they enter the force, so do firefighters. Our bartenders and waitresses know there's secondhand smoke in the establishment," he said. "It's their choice to work here or not."

Jacobs said an appeal, which will take several months to process, has been sent to the United States District Court for the Eastern District of New York. If the appeal takes longer than seven weeks, state law would supercede the county's law. According to Jacobs' office, the presiding officer intends on making the county's law the same as the state's law to provide a level playing field. That was the intention from the start but things changed when Suffolk County pushed their law back three years.