Swan song coming for smokers on Pearl St.

By Elizabeth O’Brien

Downtown Express file photo by Ramin Talaie

Smokers at Swan’s Bar enjoyed legal puffs last May — after the city’s ban went into effect. On Thursday, a more restrictive state law is expected to go into effect and the owner-operated bar will have to ban smoking.

With the owner exemption to the city’s workplace smoking ban set to expire on July 24, the puffing days are numbered at Swan’s Bar on Pearl St.

New York State’s smoke-free workplace law is scheduled to take effect on Thursday, closing the city’s owner-operated loophole that allowed a handful of bars and restaurants without employees to allow tobacco use even after the city snuffed it out on March 30.

The Empire State Restaurant and Tavern Association, a statewide trade organization, plans to file a lawsuit next week to challenge the state law, said Scott Wexler, the executive director of the association. Among other claims, the organization will argue that the law is vague and that it can only be implemented on the federal level, he added.

Shay Leavy, co-owner of Swan’s, hopes that the association wins at least a brief stay of the law.

“We really need to be allowed to smoke here,” Leavy said. “We’re smoking now, we’re surviving.”

Leavy and his two partners applied for the owner exemption as part of their plan to shift their focus from lunchtime to evening. Lunch business had fallen 40 percent over the last two years, Leavy said, the worst since the partners opened Swan’s in 1998.

So in early April, they closed their kitchen and took the difficult step of laying off their eight cooks and servers in order to be eligible for the owner-operated exemption to the smoking law. They replaced the food tables in the back with two pool tables.

Leavy had hoped that he could lure in enough new customers during the almost four months between the inception of the city and the state smoking bans that some would return even when they could no longer light up. Now, he’s not so sure.

“Some people have told me straight out they wouldn’t come but for the smoking,” Leavy said.

Before the New York State legislature disbanded for the summer, there had been some discussion of amending the state law to allow the exemptions that the city offered, including waivers for owner-operated bars and certain tobacco bars. But the term expired without action on the measure.

“Every legislature goes through this,” said Joe Cherner, an anti-smoking activist who has tracked smoking laws across the country.

Cherner said he did not expect the amendments would pass if the legislature revives them in the fall.

He also accused the city’s restaurant and bar owners of crying wolf when they complain of lowered profits in the wake of the smoking ban. In California, sales tax data revealed that bar and restaurant profits actually went up after the smoking ban went into effect in 1995, Cherner said.

But Leavy says his concerns are real. He estimates that his bar business has risen up to 25 percent since the word got out that Swan’s was a smoking bar. The gamble he and his partners took when they shut down their kitchen has paid off in the short term, but the long-term effects of their strategy remain to be seen.

Said Leavy, “What’ll happen after next week, we don’t know.”


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