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LAWSUIT TAKING SHAPE AGAINST SMOKING BAN

As the county prepares to send out red, yellow and green window stickers for bars and restaurants to use to show their smoking policies, a lawsuit to block the Niagara County Board of Health's near-total ban on public smoking is near.

The suit will probably be filed well before the regulations take effect next spring, said Judi Justiana, owner of Judi's Lounge on Military Road and a prime mover in Niagara County Citizens for Choice. Previously, there was discussion of waiting until the ban actually began to be enforced.

"Timing is important," Ms. Justiana said. "I think it's important that something happen (in court) before people start investing in changing their property."

The Board of Health passed a regulation July 23 banning smoking in all public places except bars. The measure allows smoking in the bar area of a restaurant, provided that area is separated from the dining space by a floor-to-ceiling wall. It allows separate smoking rooms in the dining area, but they must be fully enclosed and are limited to 50 percent of the eatery's total seating capacity.

The rules, passed in reaction to a County Legislature-approved law the board viewed as far too weak, are not expected to take effect until approximately March 1999. The exact date is unknown because the measure must be reviewed by state health bureaucrats. However, county health officials have said that review is a formality that does not include a veto over the measure.

Nor does the County Legislature have the ability to block the regulations, which were an amendment to the county's sanitary code. Since 1964, the Board of Health has had power to write and enforce the sanitary code. A proposal has been introduced to require Legislature approval of changes in the code, but it would not be retroactive.

Ms. Justiana said her group, composed primarily of restaurant and bar owners, has retained John M. Curran, a Buffalo attorney, to represent it in any legal action. Curran could not be reached to comment. County officials have anticipated that any suit will be filed in federal court, but Ms. Justiana said that is not certain.

Ms. Justiana said some bar and restaurant owners are wondering whether it would be worthwhile to renew their liquor licenses if the Board of Health smoking ban takes effect.

Legislator Lee Simonson, R-Lewiston, chairman of the Health Services Committee, said he expects County Attorney Edward P. Perlman and his in-house legal staff to defend the Board of Health in any suit, rather than hiring outside counsel. "I don't want to spend $50,000 to $100,000 (on legal fees)," Simonson said.

He admitted that most legislators will be hoping the county loses the suit over the smoking ban. The Legislature passed a pair of its own smoking laws May 19, one which basically re-enacted the current state law except for a couple of minor changes, and another which called for color-coded signs to be posted at eateries announcing their smoking preference.

There were only three votes against the main smoking law, from legislators who thought it was still too tough on business. The "red-yellow-green" law passed unanimously.

That law is scheduled to take effect Oct. 15. County Legislature Clerk Jeffrey D. Williams was given the assignment to get the window stickers printed. He said the county hired Summit Graphics of Lockport for about $800 to produce 2,500 of the diamond-shaped 3-inch decals -- 1,500 yellow, 500 red, and 500 green.

The red stickers will read, "Smoking permitted," which means everywhere in the building. State law allows that only in bars and in restaurants of less than 50 seats. The May 19 county law, which is already in effect, cut that limit to 45 seats.

The yellow stickers will say, "Smoking regulated," which means the establishment has both smoking and non-smoking seating, in compliance with state law.

The green stickers will say, "No smoking."

Williams said there are roughly 1,328 bars and restaurants in the county. Each will receive a letter announcing the program. Williams will be in charge sending out the stickers. The first one for each business will be free; others will cost $1 each.

Ms. Justiana said of the color code, "I think it's great. I hope everybody realizes they have a choice."

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