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NOV-3©-?4 1•IED 16:53 C S. 8 P.02 November 30, 1994 THE SMOKE-FREE AIR ACT WOULD HARM NEW YORK CITY RESTAURANTS In its rnost recent form, the Smoke-Free Air Act pretends to allow smoking in restaurants to some extent, but the bill by its terms absolutely prohibits smoking in restaurant dining areas except in the smallest restaurants, and allows smoking in non- dining areas of larger restaurants only under the most limited -- and highly discriminatory -- conditions. As discussed below, in restaurants that seat more than 35 patrons indoors, the bill allows smoking gnly in those restaurants that either (1) have a "restaurant bar" or (2) aro able to set aside a separate enclosed room as a "smoking lounge." The bill can be interpreted, moreover, to require these "smoking lounges" to be separately ventilated. Further, although the bill purports to allow food service in a "restaurant bar" area, an area can qualify as a "restaurant bar" area onlv if the food service is purely "incidental" to the sale and service of drinks --a test that would seem Impossible to satisfy when any meal is likely to cost at least as much as two or three drinks. The bill also would limit severely the percentage of seats in "restaurant bars" where smoking may be allowed. The bill's treatment of restaurants is discrirnirtatory in the extreme. It would steer smokers to those restaurants that can satisfy its Draconian limitations, and away from those restaurants that cannot -- and it certainly would encourage many smokers, tourists and residents alike, to abandon restaurants altogether in favor of bars (including hotel bars) and cabarets, where smoking would not be restricted under the bill. • The bill unjustifiably would reduce the exemption for small restaurants, Currently, restaurants with an indoor seating capacity of 50 petrons or few¢r are exempt. Under the Smoke-Free Air Act, only restaurants with an indoor seating capacity of 35 or fewer patrons would be exempt. Restaurants serving 60 patrons, however, are scarcely bottor able to meet the Draconian conditions imposed by the bill than those serving 35. The bill would discriminate against restaurants that do not have "restaurant bars." Under the Smoke•Free Air Act, restaurants that have "restaurant bars" may permit smoking in the "restaurant bar' areas, where some tood may be servod; but restaurants that do not have "restaurant bars" could permit smoking only in separate enclosed "smoking lounges," where no food may be served. This is patently unfair. • The bill would discriminate against restaurants that cannot provide separate enclosed "smoking lounges." Under the Smoke-Free Air Act, restaurants that do not have "restaurant bars" may permit smoking aniv if they are able to set aside separate enclosed rooms for that purpose as "smoking lounges." This also

NOL'-30-oq I.IED 16 :56 C 8. B -2- P _ 0 3 is unfair. The bill can be interpreted, moreover, to require these "smoking lounges" to be separately ventilated - a prohibitlve condition, The bill would discriminate against restaurants that cannot offer outdoor dining. Under the Smoke-Free Air Act, smoking may be permitted in up to 25 percent of an outdoor dining area. Obvlously, this will steer smokers - whether tourists or local residents-- to restaurants with outdoor dining areas when weather permits. • The bill would limit smoking unreasonably even in restaurants with "restau- rant bars." Although 25 percent of New Yorkers (and an even higher proportion of foreign tourists) are smokers, the Smoke-Free Air Act would limit smoking at tables in "restaurant bar" areas to no more than 15 oercent of the indoor soating capacity In non-exempt restaurants that seat 100 or fewer patrons, and to no more than 10 percent of the indoor seating capacity in larger restaurants. • The bill effectively would prevent dining in "restaurant bar" areas where smoking Is allowed, The Smoke-Free Air Act purports to allow food service -- .nd smoking -- in a "restaurant bar" area, but the area can qualify as a "restaurant bar" on_.ly if the serving of food is purely "incidental" to the sale or consumption of drinks. That test would appear to preclude meal service, To qualify as a "restaurant bar," moreover, there must be a counter served by a bartender, and not simply a seeting arca where drinks are served. • The bill would requires an ownor to establish a costly buffer between a"res- taurant bar" and the dining arca if the owner wishes to permit smoking in the "restaurant bar" area. Under the Smoke-Free Air Act, an owner could not allow smoking in a "restaurant bar" area unless the bar area was separated from the dining area either by a costly six-foot zone of "dead space" or a solid floor-to- ceiling partition. Both conditions would discourage owners trom allowing smoking in "restaurant bar" areas. Banning smoking in restaurants would hurt core sectors of the City's economy. Forei,, , tourists will steer clear of a city that is so harshly Intolerant of smoking that even smoking while dining is prohibited. ee "Last Bastion for Foreign Smokers: Appalled by Rostrictions, Visitors Take Refuge in 8istros," New York Times April 23, 1993, at 61. And local residents who smoke will be less Ilkely to go out to eat ff smoking is bannod. In particular, smokers are likely to spend more time (and money) in bars, where smoking Is not restricted under the Smoke-Free Air Act -- including bars in hotels and cabarets - - and less time (and money) in restaurants. For all of these reasons, the Smoke-Free Air Act would harm restaurants in New York City and should be rejected.