Legislature Institutes Smoking Ban

By Daniel J. McCue

After years of review, revision, and turf battles, the Nassau County Legislature this week unanimously passed a smoking ordinance that will require many restaurants to construct smoking rooms and others to set aside at least 75 percent of their seats for non-smokers.

But if Monday's vote by the 18-member body (until January, one legislative seat, the one originally held by Judge Michael Fiechter, is empty) was expected to resolve a thorny issue, it did little to please either anti-smoking advocates or those whose oppose the measure.

Under the provisions of the new law, restaurants with 50 or more seats, not counting bar stools, will have to have a separate smoking room or ban smoking altogether. A restaurant with fewer than 50 seats would not have to go so far as to set up a separate smoking room, but would have to set aside 75 percent of its total seating area for non-smokers.

"I think it's a fair and reasonable law," said County Legislator Edward H. Ward, a Republican from Wantagh and himself a smoker. "In formulating the legislation, we recognized the fact that nobody's smoke free today, not completely anyway, and that it would be unreasonable to ask for that.

"In my view, this law is a smoking ban, but it is a ban with reasonable exceptions," he continued. "In my district, for instance, we have a number of small, storefront, Italian restaurants, the kind of places where a large percentage of the clientele feel that smoking a cigarette is part of the meal. A total ban would have put restaurants like these out of business... and the last thing we want to do is hurt Main Street businesses."

John Ciotti, the Republican Legislator from Elmont, agreed. "I think that [the legislation] is broad enough that it shouldn't have an adverse effect or hurt the small businessman, but at the same time, it's the beginning of phasing in a smoke-free environment.

"I myself quit smoking in January, 1995, not because of social pressures or because I had become some kind of crusader, but because I realized that I just wasn't feeling as well as I should.

"Even as a smoker though, I realized that second-hand smoke was just as unhealthy as smoking oneself. That's why I never smoked around my kids in my own home. If I smoked at all at home, it was in the ventilated front bathroom of my house.

"The bottom line as it concerns this law, I think, is that it strikes a balance between the concerns of smokers and non-smokers, while at the same time helps to create a happier environment."

"Overall, I'm very pleased and satisfied with the bill we adopted on Monday," said Legislator Vincent Muscarella, a Republican from Garden City.

"It's been a long and involved process, during which we heard from organizations and businesses that wanted to maintain the status quo, and from others, who wanted to see significant change in this area.

"I think in the long run, we fashioned a tough bill, but a bill that's fair for all concerned. It protects people from second-hand smoke, while at the same time recognizing the concerns of business."

In addition to its restaurant-related provisions, the ordinance will allow smoking in bowling alleys after 6 p.m. - a change in the original wording of the bill which was seen by many as being too restrictive. The measure will also allow the Nassau County Department of Health to grant 24-month discretionary waivers to help some restaurants to come into compliance.

The bill must now be signed into law by County Executive Thomas S. Gulotta, who since the installation of the first county legislature two years ago, has consistently maintained that he will not comment on pending legislative action.

After Monday's vote, he said he would refrain from making any statement about the bill until it actually winds up on his desk. If he does sign it, the new law will take effect on July 1, 1998.

"We've all heard that people on both sides of the issue are unhappy about certain aspects of the law, but that's the nature of negotiation. In a negotiation, everybody gives up something, and if you're doing the right thing, everybody leaves the table a little unhappy."

James L. Green, an attorney representing 50 diner owners, said his clients are now deciding whether they should challenge the measure in court. Diner owners, particularly those with small establishments, still believe that the law, as voted on Monday, will have a significant adverse effect on their business.

After the vote, Patricia Bishop-Kelly, of the American Cancer Society, thanked the legislators for their action, but said "there still remains some significant concerns" about the legislation.

Claire Millman, of the Alliance for Smoke-Free Air and the Nassau-Suffolk Tobacco Control Task Force, however, was far less pleased.

"In ratifying this law," she said, "you have come up with a law that falls far short of its stated intent.

"Some of you have said that this is a good bill for now, and you'll do more at a later date. At the cost of how many more cases of respiratory disease, fatal and non-fatal heart attacks, and cancer among non-smokers?"

Asked about such comments, Legislator Muscarella said one has to be careful and realistic when considering a change in the rule of law. "When you look to ban something through legislation and move government from one point to another, it has to be recognized that you're not always going to see things proceed in a straight line.

"It's like when you go on vacation," Muscarella continued. "You don't always go straight from your home to your destination, you take detours and sightsee.

"To my mind, this ordinance will move the process along, and eventually we will become a society that restricts smoking in areas where non-smokers will be affected."

Legislator Roger Corbin, a Democrat from Westbury, also expressed unhappiness about the law before voting in favor of it, saying that it failed to go far enough in protecting children. He had sought a provision barring parents or guardians from taking young children into areas where smoking is permitted.

But John Ciotti, for one, believes that kind of provision would have just gone too far. "Parents should be able to use their own discretion," he said. "For us to make that kind of decision... well, you don't want to become Big Brother, after all."

"I don't know whether there will be a legal challenge," Legislator Muscarella said. "I do believe, however, that our bill is certainly legal and has been scrutinized by a number of attorneys for its enforceability and constitutionality. Any legal challenge would be unfortunate."