Smokers stand up for their rights

USA/ diners forgo seats for a cigarette

OPEN the menu at Drake's Drum restaurant in New York City and the first page contains not a list of hors-d'oeuvres but a manifesto for revolution.

Under a call to arms - "We're mad as hell and we're not going to take it any more" - the message reads: "As the rest of New York City's restaurants have abolished smoking sections, we're providing two of them: smoking and chain smoking . . . feel free to smoke before, during and after dinner."

New York's restaurants have become the latest battleground in America's cigarette wars. On 10 April the country's mostindividualistic city succumbed to national trends and introduced a law forbidding smoking in restaurants seating more than 35 people. The Smoke-Free Air Act, which rests on US government statistics showing that passive smoking kills 3,000 Americans a year, affects 11,000 of New York's 15,000 eating establishments.

Restaurant owners are outraged. Citing evidence from California, where restaurant sales purportedly dropped off dramatically after a similar ban was introduced two years ago, many say the new legislation threatens to put them out of business. Surveys by the National Smokers Alliance and the New York Tavern and Restaurant Association found that 51 per cent of restaurateurs thought the ban was bad for business, and 41 per cent reported a fall in takings. At a rowdy meeting of 300 restaurant owners last week a decision was taken to fight back, beginning with a demonstration this Tuesday outside the Health Commissioner's office.

Jimmy Duke, the owner of Drake's Drum on Manhattan's Upper East Side, has a more subversive plan of action. "The law as it is written states that if you sit fewer than 35 people all bets are off," he said. "We've always sat about 75. So now we've removed more than 50 per cent of the chairs, down to 34, and we've created an environment where you can smoke anywhere."

Mr Duke, a pugnacious, rugby-playing 52-year-old, was born in Liverpool. He went to New York in 1964 to complete a graduate degree in science, stayed on, and opened his restaurant in 1968. Drake's Drum, recently renamed Drake's Drum - the Smoke Inn, is a down-to-earth pub-restaurant on Second Avenue with a noisy, unpretentious clientele who drink beer, eat shepherd's pie and watch basketball and ice hockey on two giant video screens. A Union Jack and a Stars and Stripes hang from the ceiling. Pulp Fiction and American Gigolo posters adorn the walls. A sign in the lavatory reads: "Nine out of ten doctors discourage smoking . . . the tenth is cool!"

Mr Duke is driven only in part by the fear that he will lose revenue. He suspects, for example, that once word gets around the world, New York's tourism industry will be severely hit. But, being a non-smoker himself, he is driven also by a disinterested sense of mission. "I know I'm skating on pretty thin ice. I know the Board of Health people could come around at any moment, fine me, close me down. But this is the point. When I came over 30 years ago I found England very restrictive. That's why I decided to live here. New York was big, expansive, the capital of the world. I don't know what's happened to this country in the last 25 years but today Liverpool and London are a lot less restrictive than New York. And I've reached the point where I've had enough. I'm fed up. It's ludicrous. It's time to make a stand." Particularly ludicrous, in Mr Duke's view, is a section of the new law that places a limit of 25 per cent on the number of people allowed to smoke at outdoor tables. "Imagine! You've got six people out of 25 smoking at your tables on the pavement and a seventh guy lights up. What do I say? 'Please stand up because it's legal to smoke out on the streets if you're standing up but not if you're sitting down?' Or do I say, 'Please could you wait till that guy over there has finished his cigarette and then you can light yours'? I mean, I'm not a policeman. And if no one's paying me to be a policeman I'm not going to be one. If passive smoking really does kill 3,000 people a year, which I think is a very dubious statistic, then make smoking illegal. Fine. But it's not against the law to smoke yet and as far as I'm concerned at my pub you can drink and smoke, eat and smoke, smoke and smoke. I refuse to bow down to these crazy zealots."

The prime mover behind the Smoke-Free Air Act is Joseph Cherner, "policy chair", in his own words, of the Coalition for a Smoke-Free City, a body comprising 60 organisations united in their resolve to stamp out smoking in public places.

Mr Cherner said he was not satisfied with the provisions of the new law. Earnest and quivering with indignation, he said he would not rest until smoking was banned in all restaurants and bars. "People can smoke in their homes, in their cars, on the streets. But not anywhere else. No one should be forced to breathe smoke if they don't want to. No one."

Mr Cherner, who is 37, gave up a lucrative career on Wall Street in 1988 to dedicate himself full time to the anti-smoking crusade. "I'm tired. I sleep four hours a day. I would like to rest and sit back and watch the world go by. But I can't. I cannot watch the evil of the tobacco cartel and just sit by and do nothing. It offends me. It's so evil! It's so obviously wrong!" Few are more evil, in Mr Cherner's eyes, than Tom Humber, the president of the National Smokers Alliance, an organisation that was founded in August 1993 and already claims a membership of 3 million. "I don't think any grass-roots organisation in this country has ever registered such phenomenal growth," he said. "What it shows is that smokers were docile but now they are on the march. A principle's at stake here. One premise of this country was the pursuit of happiness, but we've become a dour society, a society of nannies. 'If you don't drink and don't smoke you'll live in perfect health,' the zealots say. Come on! This society has become the most risk-averse society on the face of the earth. American people are obsessed with the denial of death. It's getting in the way of our basic rights as individuals. Look at the restaurant owners: they should be free to open non-smoking restaurants if they want to, or all-smoking, or whatever they want. It should be their choice. It's a question of individual rights."

Brian McNally owns 44, one of New York's swankiest restaurants, a severely elegant art-deco establishment which serves sashimi salads and goat's cheese profiteroles. A Londoner who has lived in New York for 18 years and has become one of the city's most celebrated restaurateurs, Mr McNally - a non-smoker - agrees with Mr Humber that more than profit is at stake.

"Bloody ridiculous, isn't it? This law, it's a victory of the pious, a victory of the sanctimonious. I mean, who'd want to eat in a doctor's waiting room, for Christ's sake? The system worked perfectly well before, with smoking and no-smoking sections. Just great. This is a crusade of people who want to interfere in other people's business. Where are these people going to stop? How risk-free do you want your life to be? I mean, life by definition is risky.

"What do you come to New York for? To dodge smoke? I get up in the morning, look out of my window on Fifth Avenue and what I see is shimmering filth! A great yellow cloud and we're worried about second-hand smoking! With all the muggers around, all the crack they sell on every street corner, just leaving your home is a death-defying experience. Nobody comes to New York for the quality of life. You come here because you're ambitious, or cut-throat or want some edge in your life. To these sanctimonious meddlers, I say, get a life! Look at the smokers - look, for God's sake - they're having more fun than the rest of us!"

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