The Cigar Bar
A smoker's quixotic quest for justice.

The Wall Street Journal, Thursday, March 27, 1997

NEW YORK--To hear Russel Beatie tell it, this city's two-year-old antismoking ordinance is hazardous to his health. The 59-year-old lawyer, whose avocations include big-game hunting and Civil War history, puffs on his Montecristo No. 2 at the Club Macanudo cigar bar as he explains that he's on a restricted diet because of a heart condition. Mr. Beatie's one or two cigars a day have the imprimatur of his cardiologist, himself a cigar smoker with heart trouble. But the club's menu is filled with fried food. "The only thing I can eat in this place," Mr. Beatie laments, "is the grilled chicken sandwich."

Until April 10, 1995, when the Smoke-Free Air Act took effect, Mr. Beatie could have dined at any of the city's 100 or so "cigar-friendly" restaurants catalogued by Cigar Aficionado magazine. Now any restaurant in New York that seats more than 35 is required by law to prohibit smoking, with a few tightly constrained exceptions. If Club Macanudo were to go beyond inexpensive fare and offer a full menu, it would risk exceeding the threshold--40% of gross revenue from food--that distinguishes a bar, which is free to permit smoking, from a restaurant, which is not.

Mr. Beatie has gone to court to challenge the constitutionality of the Smoke-Free Air Act. He bases his lawsuit on a novel argument: that the scientific case for the dangers of secondhand smoke is based almost entirely on studies of cigarette smoke. The smoke from cigars, which burn cooler and don't contain the same artificial additives as cigarettes, is less dangerous, Mr. Beatie hypothesizes; several studies back him up. But when he asked a federal district judge to strike down the law as it applies to cigar smoking, she turned him down, granting summary judgment in the city's favor. He has appealed to the Second U.S. Circuit Court of Appeals, where a three-judge panel heard oral arguments two weeks ago.

To justify its law, the city need only prove that it has a "rational basis"--a very easy legal test to meet. It's enough if the city can demonstrate that its position commands some scientific support, even if substantial evidence argues against it. Mr. Beatie points out that there have been no studies that directly address the hazards of secondhand cigar smoke in public places. But in its written brief, the city lays out fairly strong circumstantial evidence, including chemical analyses of cigar smoke and an epidemiological study of cigar smokers' wives. Though far from an airtight case--certainly not enough to persuade this reporter to consider giving up cigars--it may be sufficient to meet the rational-basis test.

Oddly, though, when the city's attorney, Cheryl Payer, went before the Second Circuit panel, she had little to say about the scientific questions at the heart of the case. She opened her oral argument not by defending the law but by complaining that she, "as a nonsmoker," feels excluded from the smallest restaurants, which are exempt from the ordinance.

Later, Judge Dennis Jacobs asked Ms. Payer if the city could justify its law without recourse to science, on the grounds that many people are offended by cigar smoke. "I would be much happier to conduct the case on that basis," she replied. This was a revealing exchange. The crusade to stamp out smoking in public often seems a matter less of health than of taste--after all, smoking does the vast bulk of its damage to smokers themselves.

The real point of ordinances like the Smoke-Free Air Act is that smoke stinks, and nonsmokers should never have to put up with it. Sometimes the sentiment is undisguised and its expression utterly boorish, as in a San Francisco Health Department ad campaign whose posters and TV spots compare cigars to dog excrement: "Cigars--they look like what they smell like. Don't put them in your mouth."

But to those of us for whom cigar smoking is one of life's great pleasures, a comparison Judge Jacobs made is closer to the mark. He asked Ms. Payer if her line of argument would justify a ban on perfume. Without irony, she answered, "I think that's coming." One begins to detect the stench of intolerance.

Nonsmokers are anything but a put-upon minority. A 1995 Zagat survey of 18,000 restaurant-goers in New York, Los Angeles and San Francisco found that a whopping 76% favored a total ban on smoking in restaurants. We don't need legislators to impose the laws of economics, which dictate that restaurateurs accommodate their customers. Even before the Smoke-Free Air Act, some New York restaurants, including the drolly named (though now defunct) Nosmo King, banned smoking altogether.

It would hardly tyrannize nonsmokers if someone catered to a niche market by opening a Cohiba Cafe, serving T-bone steaks and tofu salads to cigar smokers, so that, as Mr. Beatie wryly puts it, "those few of us who wish to commit ritual suicide can do so together." Yet in New York such an enterprise would be shut down by the health police.

Whatever the legal merits of Mr. Beatie's case, the issue he raises is ultimately one of civility. People shouldn't be forced to breathe smoke, but a little consideration on both sides wouldn't kill anyone--and surely a city as big as New York has room for smokers to dine. As for his courtroom battle, perhaps Mr. Beatie should have taken a leaf from Clarence Darrow's book. The renowned defense lawyer is said to have stuck an unbent paper clip into his cigar before a prosecutor began his closing statement. As Darrow smoked, the ever-growing ash distracted the jury, to the prosecutor's disadvantage.

Alas, these days you're not even allowed to smoke before the bar.

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