The Supreme Court, Appellate Division, Second Department rendered decisions recently in the case of Patricia Ann Cottage Pub, Inc., et al. v. Mermelstein. This was the smoking ban case that was previously litigated in Suffolk County Supreme Court. This is the case that many bar owners were relying upon relative to the implementation of the smoking ban in their establishments. The Lower Court said that it was not up to the licensee to be a policeman and that merely putting signs up and verbally reminding patrons that it was illegal to smoke indoors was sufficient.

The Appellate Court had a whole different view of the case. First, the Appellate Court ruled that Suffolk Supreme Court had no jurisdiction to review the findings of the Department of Health and basically threw out the entire case from the original court on a jurisdictional basis. It is my understanding of the law that the Appellate Court was absolutely right in this finding. For various procedural reasons the original decision of Patricia Ann Cottage Pub is now totally meaningless.

The Appellate Court went on to decide that merely posting signs and merely advising customers verbally that it is illegal to smoke is not in full compliance with the law. The Appellate Court did not give a detailed explanation as to what the licensee’s obligations are under the law, but rather took the position that hearing officer at the Health Department did not properly consider the evidence and that the evidence was insufficient to determine if a violation had or had not occurred.

The net result of this decision is that a licensee would be putting themselves in great peril if they merely post signs and give verbal warnings to their customers but tacitly approve smoking.

I do not believe the guidelines adopted by the State Health Department or that any of the guidelines or positions taken by local health departments are of much help. I believe the statute is very vague as to what the licensee’s obligation is. Unfortunately, the Courts have not determined that the law is too vague so as to be illegal. This leaves us all in the position of having to err on the side of caution, and strictly enforce the law if we do not wish to risk a prosecution by the Health Department.