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Waivers sending competitive smoke signals

Owners of some businesses near the Seneca Niagara Casino welcome news from the Niagara County Board of Health that board members are willing to consider granting waivers from the state smoking law to downtown bars and restaurants in Niagara Falls.

Owners of three establishments near the casino said such waivers would help even out one competitive advantage of the casino, where state laws do not apply and smoking is allowed.

So far, Niagara County has granted 22 waivers, but none near the casino.

"It should have been done a long time ago," said Steve Fournier Sr., who owns and operates Donatello's, a popular Third Street restaurant. Fournier and a group of Third Street businessmen who can see the casino from their front doors were not aware of the possibility of such a waiver until recently.

Steve Fournier Jr. runs the bar Cafe Etc. next door to his father's business and said he may apply for the waiver.

Jim Bradigan, a bartender at Cafe Etc. since 2003, hopes he does.

"It would increase business big, huge," Bradigan said. "People always have a cigarette in one hand and a drink in the other."

On Niagara Street, across from the Seneca parking garage, accommodating smokers was a main reason for a $200,000 renovation at Players, said owner Steven Masic. "They've got free parking and longer legal hours for their bar," he said of the casino's advantages.

Letting his customers light up inside would be a start, Masic said.

Erie County is expecting the Seneca Nation to open a casino in Buffalo, but the question of waivers for establishments near that casino has not yet come up, said Peter Coppola of the Erie County Health Department.

In Erie County, nine facilities have obtained waivers. "Most of them were Off-Track Betting branches that have already spent tens of thousands of dollars to construct separate smoking rooms," Coppola said.

Steven C. Lewis, a Lockport veterinarian who heads the Board of Health's Legislative Committee, said his panel was discussing in late February how to treat the renewal of waivers from the smoking ban when the topic of the casino arose.

Lewis said the panel decided that it would be open to accepting applications from Niagara Falls-area bars that are having a hard time competing with the casino.

The waiver criteria the board adopted two years ago required applicants to demonstrate that their revenue had dropped at least 10 percent from what it was before the state indoor smoking ban took effect in July 2003.

But the criteria also had a clause allowing the board to grant waivers in "other exceptional circumstances." There was no effort made to define that provision, and Assistant County Attorney J. Michael Fitzgerald said that it means whatever the board wanted it to mean.

Lewis wants it to mean "close to the casino."

"It is my recollection that at some point in the past some bars in the Falls made that argument -- that they were unfairly affected by the casino," Lewis said.

There have been very few waiver applications in the past year or so, according to Lewis. The most recent ones were granted in September 2005. There was a rash of them right after the rules were approved in January 2004. Waivers were good for two years, and the first ones granted are now expiring.

Lewis said the board decided in late February that waivers may be renewed by the Health Department staff without need for a further board vote.

County Environmental Health Director James J. Devald said the department will inspect all the bars before the renewal to make sure that the rules are still being followed.

In order to receive a waiver, a bar has to have a separate enclosed room for smokers with its own ventilation system. No employees are allowed to work steadily in the room, and no prepared food may be served there.

Public Health Director Paulette M. Kline said, "From a purely public health perspective, I'm not in favor of waivers at all. At the time, we had to be sensitive to the economic impact."

Kline said she did not want to publicly discuss the waivers further before she talks with the board. "Our mission here is to protect health and prevent chronic disease," she said. "Disease and death caused by tobacco use is costing the taxpayers a lot of money."

Lewis, who has been on the Board of Health since 1998 and twice has served as its president, said he disapproves of the way the smoking issue has been handled by Albany.

"I'm a big fan of laws. I'm not a big fan of regulation," he said. "It's always been a big concern of mine that tobacco is a legal product, and somebody's trying an end-around. If you want to make something illegal, you should make it illegal."

Lewis acknowledged that his attitude could produce complaints of special treatment for Niagara Falls bars.

"If somebody anyplace in Niagara County were to ask, I don't know if we could think of a satisfactory reason to turn them down," Lewis said. "How do you tell somebody in Niagara Falls they can [have a waiver] and somebody in Royalton that they can't?"

Cafe Etc.'s Bradigan said that such an opportunity would help out most in the summer, when Niagara Falls' bars get a lot of tourists from states where smoking is allowed. These people, he said, do not understand why they can smoke in the casino but not in elsewhere in the city.

Third Street Tap Room owner Jack Hornung said that his views have evolved with the state law and that he would not apply for a waiver. He spent $5,500 on a large outdoor tent and patio last year so his customers would have a place to smoke."It's a lot cleaner and smells better," he said. "Besides, it's nice not to have to clean up cigarette butts all the time, or paint the walls when they turn yellow."

Andrew Z. Galarneau of The News Niagara Bureau contributed to this report.

e-mail: tprohaska@buffnews.com and gnorheim@buffnews.com

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