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EXEMPTIONS SOUGHT FROM WIDER BAN ON SMOKING

State lawmakers, bar owners and the tobacco industry have stepped up efforts to weaken the state's new ban on smoking in most public places before it takes effect in July.

Legislation was proposed Thursday in the Assembly and the Senate, including by a couple of dozen lawmakers who two months ago voted for the crackdown on smoking, to provide a series of exemptions from the law for bars and restaurants that say the measure will gut their businesses. The bill emerged several days after bar owners across New York temporarily shut down their lottery machines to protest the impending law -- an act that cost the cash-starved state more than $500,000 in lottery revenues this week alone.

"I think they're realizing by the phone calls and the public rage that they did it too easily and that they first needed to get public opinion," said Renee Lembke, owner of the Middleport Inn in Middleport, Niagara County. "The public outcry has definitely worked to our benefit."

Proponents of the ban say the efforts to relax provisions in the fledgling law will be an uphill battle, considering that it was approved overwhelmingly by the State Legislature and signed quickly into law by Gov. George E. Pataki.

The law, banning smoking everywhere from bars to offices to company-owned cars, takes effect July 24.

"We look at this as a tobacco industry effort to gut this law," said Russell Sciandra, director of the Center for a Tobacco Free New York.

"We really think the bar owners would be better off putting their energies into figuring out how to comply with the new law and make all their customers feel welcome instead of working with the tobacco industry to undermine it."

The smoking ban, the strictest anti-smoking law in the state in two decades, was approved by the Legislature and Pataki on March 26. It would end smoking in virtually all indoor public places, from small coffee shops and nightclubs to offices, racetracks and bowling alleys. A $1,000 fine can be imposed for each smoking violation.

In places such as Erie County, it replaces existing no-smoking ordinances with tougher state provisions. Only existing cigar bars, Native-American casinos, hotel rooms, some private clubs, residences and personal cars would be exempt.

The legislation introduced Thursday would exempt from the law those bars where the owners work the bar without any employees. Critics say the measure includes a gaping loophole that would, as tried in California, permit owners of larger bars to sell small ownership shares to employees as a way to get around the "owner-operated" provision.

Restaurants and bars that have separate smoking rooms with their own ventilation systems would also be exempt.

But health groups say the measure also permits bars to get around the more expensive, and they say healthier, systems that vent smoke outside a building by installing machines that run the smoke through a filter but then discharge the air back into the bar or restaurant. Additionally, the new bill would permit bars to join restaurants in letting patrons smoke on patios.

The changes are proposed by 26 members of the Assembly and 11 senators. From Western New York, they include Assembly members Richard A. Smith, D-Hamburg; Francine DelMonte, D-Niagara Falls; Brian M. Higgins, D-Buffalo; and Robin L. Schimminger, D-Kenmore; along with Sens. Dale M. Volker, R-Depew; and Mary Lou Rath, R-Williamsville. Schimminger and Smith voted against the smoking ban in March.

DelMonte said she has heard from numerous angry bar and restaurant owners. "This is a natural step in the process to making appropriate modifications" to the smoking ban, she said.

Timothy Nichols, a lobbyist with the American Lung Association, said, "There is no way they should vote for a smoke-free bill in March and then co-sponsor a bill now to completely unravel the provisions in the initial bill."

The lead sponsor of the smoking ban measure in the Assembly, Alexander B. Grannis, D-Manhattan, said he is open to some modifications, but not those proposed by his colleagues Thursday. "I think it makes no sense to start to carve out exemptions," Grannis said.

Instead, he said, there are discussions under way with the Senate sponsor, Charles J. Fuschillo Jr., a Nassau County Republican, to possibly offer tax credits to those businesses that had installed smoking rooms with expensive ventilation systems before the new ban was approved. The idea has no costs estimates, and could prove difficult this year considering the state's fiscal crisis.

Grannis said the law, besides ending exposure to secondhand smoke for employees and customers, will end up helping, not harming, businesses by attracting more customers now turned off by places with smoking.

"The owners wanted a level playing field," he said of the law that ends the hodgepodge of current anti-smoking laws that change across county lines.

But some business groups, surprised by the swiftness with which the ban was pushed through, have mounted a fierce campaign to try to turn it back. Throughout much of the week, bars across the state have turned off Quick Draw, the keno-like electronic game operated by the state Lottery Division.

Since the protest began Monday, the state has lost $538,000 in Quick Draw revenues, though sales started to pick up again Wednesday, according to the Lottery Division.

Bar owners also lost since Quick Draw pays a 6-cent commission to vendors for every dollar bet.

Lembke, the Niagara County bar owner, said the changes proposed Thursday are welcomed. "It's a step closer. But this is a baby step, and we want a big step," she said, adding that her allies want the entire law rescinded.

Her group, the New York State Bar and Restaurant Freedom Fighters, are using the Internet to publicize a petition and the names of legislators who backed the ban and rally support for a June 3 protest in Albany. Lembke called her opponents "narrow-minded" for thinking that businesses should cater only to non-smokers.

"This is not about the rights of smokers, or health. It's a business rights issue. . . . Businesses should have a choice," she said. "Everybody's business has a right to have a fair shot at making it. When government does something that jeopardizes whether that business can succeed, then it becomes fascist."

e-mail: tprecious@buffnews.com

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