Regular Session - March 26, 2003
1395
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 26, 2003
11:13 a.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we bow our heads in a moment of
silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Tuesday, March 25, the Senate met pursuant to
adjournment. The Journal of Monday, March 24,
was read and approved. On motion, Senate
adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
1397
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Bruno.
SENATOR BRUNO: Are there any
substitutions at the desk, Madam President?
THE PRESIDENT: Yes, there are,
Senator.
SENATOR BRUNO: Can we make them
at this time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 6,
Senator Robach moves to discharge, from the
Committee on Civil Service and Pensions,
Assembly Bill Number 4971 and substitute it
for the identical Senate Bill Number 2316,
First Report Calendar 322.
And on page 23, Senator Marchi
moves to discharge, from the Committee on
Environmental Conservation, Assembly Bill
Number 5282 and substitute it for the
1398
identical Senate Bill Number 2036, Third
Reading Calendar 317.
THE PRESIDENT: Substitutions
ordered.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we ask for an immediate meeting of the
Finance Committee in the Majority Conference
Room.
THE PRESIDENT: There will be an
immediate meeting of the Finance Committee in
the Majority Conference Room.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time have the noncontroversial
reading of the calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
157, by Senator Kuhl, Senate Print 597, an act
to confirm, ratify, validate and legalize.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 6. This
act shall take effect immediately.
1399
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 33.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
158, by Senator Volker, Senate Print 834, an
act to authorize approval of certain
transportation contracts.
THE PRESIDENT: There's a local
fiscal impact note at the desk.
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 33.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
159, by Senator Seward, Senate Print 1136, an
act in relation to legalizing, validating,
ratifying and confirming certain acts and
proceedings.
THE PRESIDENT: Read the last
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section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 33.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
171, by Senator Johnson, Senate Print 529, an
act to amend Chapter 250 of the Laws of 1999
relating to authorizing.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 35.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
176, by Senator Wright, Senate Print 2758A, an
act to amend the Public Service Law, in
relation to references to the St. Lawrence
1401
Eastern Ontario Commission.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 6. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 36.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
196, by Senator Skelos, Senate Print 1019, an
act to amend the Correction Law, in relation
to petitions for relief.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
299, by Senator Fuschillo, Senate Print 3292,
an act to amend the Public Health Law and the
Education Law, in relation to the regulation
of smoking in certain public areas.
SENATOR SCHNEIDERMAN: Lay it
aside.
1402
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
307, by Senator Johnson, Senate Print 3218, an
act to amend Chapter 303 of the Laws of 1988
relating to the extension of the state
commission.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 40.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
317, substituted earlier today by Member of
the Assembly Lavelle, Assembly Print Number
5282, an act to amend Chapter 395 of the Laws
of 1978.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
1403
THE SECRETARY: Calendar Number
329, by Senator Hannon, Senate Print 3252, an
act to amend Chapter 629 of the Laws of 1986
amending the Social Services Law.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 40.
THE PRESIDENT: The bill is
passed.
Senator Bruno, that completes the
reading of the noncontroversial calendar.
SENATOR BRUNO: Madam President,
can we at this time take up Calendar 196.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
196, by Senator Skelos, Senate Print 1019, an
act to amend the Correction Law, in relation
to petitions for relief.
THE PRESIDENT: Read the last
section.
1404
THE SECRETARY: Section 4. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 41. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time take up Calendar Number
317.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
317, substituted earlier today by Member of
the Assembly Lavelle, Assembly Print Number
5282, an act to amend Chapter 395 of the Laws
of 1978.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Yes, Madam
President, briefly on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
1405
SENATOR SCHNEIDERMAN: Thank you.
This is a renewal of a piece of
legislation originally passed in 1973 in
response to an explosion on Staten Island
which killed 40 people. The explosion was at
a liquid natural gas tank.
However, it has since been
determined that there was a defect in the
Mylar lining, and cleaning solvents entered
into the lining. And it was actually a defect
in that particular tank and nothing to do with
the safety of liquid natural gas.
The difficulty is that in a
reaction to that accident we've been renewing
a ban on the siting of facilities for
transporting and storing of liquid natural gas
in New York City for a very long time. Every
other state and every other part of the state
has repealed any such limitations.
There are serious environmental
problems all over the city of New York,
particularly in low-income communities. And
asthma problems in my district and in many
other districts are really at epidemic
proportions. Partially, these are caused by
1406
diesel pollution.
There is an effort all over the
United States to replace diesel-burning
engines with liquid natural gas. We are
unable to implement that program in New York
City.
I think this is an example of a
strong reaction to tragic circumstances
controlling our rational decision-making for
many decades after the need for any sort of
ban and any sort of inquiry has passed.
I personally am going to vote
against this bill. I think it's very
important that we develop the facilities for
bringing liquid natural gas into the city of
New York.
I sympathize with anyone still
bearing the scars of the tragedy in 1973. But
this is a safe product. There are plants all
around New York City -- Holtsville, Long
Island; there are plants in Westchester. And
if it was not safe, I'm sure we would not
allow the storage and transportation elsewhere
in the state.
It's time to move along. I'm going
1407
to be voting no. I think it's time to bring
liquid natural gas into the city so we can
begin to address these environmental problems.
Thank you, Madam President.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 317 are
Senators Breslin, Diaz, Duane, L. Krueger,
Montgomery, Onorato, Parker, and Schneiderman.
Ayes, 35. Nays, 8.
THE PRESIDENT: The bill is
passed.
Senator Duane.
SENATOR DUANE: Thank you, Madam
President. I'd like unanimous consent to be
recorded in the negative on Calendar Number
307.
THE PRESIDENT: Hearing no
1408
objection, Senator, you will be so recorded as
voting in the negative.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we at this time return to reports of
standing committees. I believe there's a
report from the Finance Committee at the desk.
I would ask that it be read at this time.
THE PRESIDENT: Reports of
standing committees.
The Secretary will read.
THE SECRETARY: Senator Johnson,
from the Committee on Finance, reports the
following bill direct to third reading:
Senate Print 3377, Senate Budget
Bill, an act to amend Chapters 50, 53, 54 and
55 of the Laws of 2002.
THE PRESIDENT: The bill is
ordered direct to third reading.
Senator Bruno.
SENATOR BRUNO: Madam President,
can we take up at this time Calendar 334.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
1409
334, Senate Budget Bill, Senate Print 3377, an
act to amend Chapters 50, 53, 54 and 55 of the
Laws of 2002, making appropriations and
reappropriations for the support of
government.
SENATOR BRUNO: Madam President,
is there a message of necessity from the
Governor?
THE PRESIDENT: Yes, there is,
Senator Bruno.
SENATOR BRUNO: I would move that
we accept the message.
THE PRESIDENT: All in favor of
accepting the message of necessity please
indicate by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The message is
accepted.
Senator Bruno.
SENATOR BRUNO: Lay it aside
temporarily.
THE PRESIDENT: The bill is laid
aside temporarily.
1410
SENATOR BRUNO: Thank you.
THE PRESIDENT: Senator Bruno.
SENATOR BRUNO: Madam President,
can we request a short conference, in the
neighborhood of 15 minutes, in the Majority
Conference Room for the Majority, and --
SENATOR SCHNEIDERMAN: -- in the
Minority Conference Room for the Minority.
SENATOR BRUNO: The Senate will
stand at ease, Madam President.
THE PRESIDENT: The Senate stands
at ease.
SENATOR BRUNO: Thank you.
(Whereupon, the Senate stood at
ease at 11:30 a.m.)
(Whereupon, the Senate reconvened
at 12:19 p.m.)
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Skelos.
SENATOR SKELOS: Mr. President,
at this time would you please call up Calendar
Number 334.
ACTING PRESIDENT MORAHAN: The
Secretary will read.
1411
THE SECRETARY: Calendar Number
334, Senate Budget Bill, Senate Print 3377, an
act to amend Chapters 50, 53, 54 and 55 of the
Laws of 2002.
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT MORAHAN:
Senator Johnson, an explanation has been
requested.
SENATOR JOHNSON: Yes, Mr.
President.
This bill is essentially an
appropriation to pay the bills for operation
of the government for the next week, until the
31st of March.
You want a further explanation than
that?
SENATOR SCHNEIDERMAN: The
explanation is satisfactory.
SENATOR JOHNSON: Thank you.
ACTING PRESIDENT MORAHAN: Any
other Senators wishing to be heard on the
bill?
The debate is closed.
Read the last section.
1412
THE SECRETARY: Section 5. This
act shall take effect immediately.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 61.
ACTING PRESIDENT MORAHAN: The
bill is passed.
SENATOR DUANE: Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Duane.
SENATOR DUANE: Thank you, Mr.
President. If I could have unanimous consent
to be recorded in the negative on S3377. I'm
not sure what the calendar number is.
ACTING PRESIDENT MORAHAN:
Without objection, you will be recorded in the
negative, Senator Duane, on 334.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time take up Calendar Number
299.
ACTING PRESIDENT MORAHAN: The
Secretary will read.
THE SECRETARY: Calendar Number
1413
299, by Senator Fuschillo, Senate Print 3292,
an act to amend the Public Health Law and the
Education Law, in relation to the regulation
of smoking in certain public areas.
SENATOR SCHNEIDERMAN:
Explanation.
ACTING PRESIDENT MORAHAN:
Senator Bruno.
SENATOR BRUNO: On the bill,
Mr. President and my colleagues.
Senator Fuschillo is going to go
into the detail of the legislation that is
before us on the floor. And he has done an
outstanding job of negotiating this
legislation that, when passed and it becomes
law, will accrue to the benefit of every
single person in the state of New York.
We have since '89 been, in this
Legislature -- and the Governor -- passing
no-smoking-in-certain-places legislation. We
have been passing bills since '89 of great
consequence to the people here in this state.
This bill is said to be one of the
toughest in the whole country. It can be said
to be one of the very best antismoking pieces
1414
of legislation that's ever been contemplated
by a municipality in New York State or
anywhere else.
Now, all of the arguments -- and
Senator Fuschillo will go into the detail of
the bill. But all of the arguments that can
be made have been made over these last several
years as we have debated people's rights,
people's individual rights: This is a free
country. If I want to smoke, I ought to be
able to smoke. Who are you in the Legislature
to tell me I can't?
Well, it is a free country. But
it's not that free that you can inflict harm
on other people. No, that's against the law.
It's against the law everywhere you turn.
That's why we have police enforcing laws. You
cannot do whatever it is you'd like to do.
Now, does that take your civil
liberties? I don't think so. This relates to
healthcare. Healthcare. That's what the
issue is.
The issue doesn't relate to
business, because you can argue with me on the
business aspects of this legislation. And I
1415
respect each and every individual in this
chamber that has a strong opinion on this
issue.
You can tell me that you've got
taverns and you've got bars and people want to
smoke in those bars. I respect that. And you
can tell me that people have a right to do
whatever they want to do. I respect that; I
won't debate it with you. And you can tell me
that the politics are such that you're better
off voting against this legislation. I
respect that.
But I'm going to ask you to think
about the public good and the public health.
And as the leader here in the Senate, I don't
relish getting up a lot of times on very
sensitive issues. But this is an issue that I
feel very strongly about, very personal about,
and very almost emotional about.
Because like everyone in this
chamber, you have known people and you know
people right now who are dying from the
effects of smoke. There isn't a person in
this chamber that doesn't know someone that
has died or is now dying because they smoked
1416
or they inhaled secondhand smoke. Not a
person.
And if you don't know anyone, I'll
share some stories with you about people in my
family and my closest friend, who I was out
with on a Saturday night. And on Sunday
night, living next door to me, in a place that
we now own, who died in his middle 60s.
And after we were out, and he's
smoking like a smokestack, I saw red lights at
2:00 in the morning and went over. And his
wife's standing next to him, and he's leaning
against the station wagon in the garage not
being able to breathe.
And I watched that man -- they
couldn't put him on a stretcher because he
couldn't breathe. And that man was dead in
ten minutes. And I was talking to him,
standing there next to him, trying to console
his wife, and he was dead within ten minutes
because he couldn't breathe. They put oxygen
on him and they did everything they could. He
suffocated.
Many of you knew Senator
Schermerhorn, in this chamber. Senator
1417
Schermerhorn was a big, 6'2", 6'3," 220-pound
individual. Macho. Smoked. And he said,
"You gotta die sometime. Gonna die sometime."
Well, Senator Schermerhorn got
throat cancer. For those of you that knew
him -- and many of you did -- and you watched
Senator Schermerhorn, over two years, die from
the effects of smoking. And I was at his
funeral and at his eulogy and watched his wife
and small child.
And nobody can debate the health
effects of smoking. Nobody. They kill
people. Four hundred and thirty some thousand
people a year die in the United States from
the effects of smoking. Cancer and Lung
Society has statistics. 65,000-plus die from
secondhand smoke. Now, think about that. A
half a million people a year die from the
effects of smoke.
Now, if that isn't compelling
enough, many of those people, before they die,
spend billions of dollars in healthcare. The
latest numbers are $6.3 billion spent on
healthcare -- 8 percent of the total costs --
as relates to smoking illnesses,
1418
smoking-related illnesses.
There are over 4,000 chemicals in a
cigarette. Many of them on that pack tell
you, "You smoke, and it can kill you." It's
an addiction. We know it's an addiction, or
people wouldn't be harming themselves.
So we want to talk about civil
rights, we'll talk about civil rights. And
you know, we pass laws here every week
infringing on people's rights to make their
own decisions. Think about it.
Every time I go on a double solid
line coming into work, it disturbs me. I can
see a mile up the road, no cars coming. I'd
like to pass and go around that double solid
line. I can't. Why can't I? It ought to be
my right. But I can't. It's against the law.
Why is it against the law? Studies were made
that that double solid line protects the
public good.
We used to use asbestos in
buildings. Why don't we use it now? Because
asbestos kills people. We found that out. So
now it's against the law. We used to use lead
paint. Now it's against the law.
1419
Guess what? You are infringing on
people's civil rights, you in this chamber, in
the Assembly, the governors that sign this
legislation. Every time you stop at a stop
light, stop light or stop sign, somebody is
infringing on your rights to go ahead right
through that intersection. Why? Because it's
for the public good. That's why. And anybody
can get up here and mention hundreds and
hundreds of other places where we have passed
laws.
So I respect your opinion about
civil rights, each and every one of you, about
civil rights. But nobody has a right to
injure or make sick an innocent person working
in an establishment, standing there or working
there, nobody has that right.
And you know what? People don't
have a right to hurt themselves. They don't
have a right to do that. That's against the
law. You can't hurt yourself. It's against
the law. Some people can't help themselves.
But when you take a look at the
billions of dollars in healthcare -- and we
are wrestling now with a budget that is out of
1420
control. The greatest number in that budget
is healthcare. And the best thing we can do
in this chamber and the other chamber and the
Governor is to do something about smoking if
you want to do something about the escalating
costs of healthcare.
Over $5 billion is estimated in
lost time for people who can't work because
they have smoke-related illnesses,
$5.3 billion. Now think about that.
Almost $12 billion. People have a
right? Sure, they have a right. But I don't
think people have a right to drive our
healthcare costs out of control. I don't
think so. You're paying the bills, employers
are paying the bills, your families are paying
the bills.
Now, if somebody wanted to take
themselves out in isolation and move to an
island, surround themselves with cartons of
cigarettes and have a great time for their
short life, it ought to be their prerogative.
It's legal. But that's not the case. Nobody
does that.
So I am sharing with you my
1421
personal feelings. And I am asking my
colleagues here to support this legislation,
as difficult as it may be.
And I want to commend the
leadership in the Minority for your stance and
for your position. And I've talked to Leader
Paterson, Senator Paterson, and he has
indicated his support. And I thank you for
that.
I thank my colleagues in my
conference, those that can support this. And
I respect those, if they can't, that can't.
That's a decision everyone has to make in
their own hearts with their own emotions and
with their own minds. And I will respect the
judgment that anyone makes.
I am giving you my judgment and my
feelings. And in deference to your time, I am
not going to go on, Mr. President, because
this is breakaway day and getaway day. But if
anyone would like to have a further discussion
and you have a few hours, I'd be happy to
spend them with you.
Thank you, Mr. President.
ACTING PRESIDENT MORAHAN: Thank
1422
you, Senator Bruno, for that introduction.
Senator Fuschillo, an explanation
has been requested.
SENATOR FUSCHILLO: Thank you
very much, Mr. President.
This bill is an amendment to the
Public Health Law and the Education Law here
in the State of New York. As Senator Bruno so
eloquently stated, its intent is to limit the
exposure of secondhand smoke to individuals.
I look at the children that are up
here today, the young adults in the gallery.
By coincidence, they're from my district and
Senator Johnson's district. But this is about
the future. Because if you're smoking today
and you've been smoking for many years and you
stop, it's not going to prolong your life.
But as Senator Bruno had stated, it's about
protecting individuals. It's about protecting
the citizenry of this great state of ours.
And you're witnessing the passage,
the soon passage of probably the strongest
public health policy in the state of New York.
And that's what it is, a public health policy.
And when we're out on the circuit,
1423
we use words like "we pass bills to protect
and preserve your quality of life." You could
throw in the word "enhanced," because that's
what we're doing.
And this legislation specifically
expands the restrictions on smoking in bars,
restaurants, and all public places of
employment, with exceptions -- private homes,
private residences and private automobiles, a
hotel or motel room, a retail tobacco
business, outdoor areas of restaurants with no
permanent roof, separate enclosed rooms of
residential healthcare facilities, adult care
facilities, community residences' areas and
day treatments, membership associations where
all services are provided by volunteers,
preexisting cigar bars, and tobacco sampling
events limited to two per facility during the
year.
If the waiver is continued, the
effective date would be 120 days following the
enactment.
Under current state law, which as
Senator Bruno stated was enacted in 1989,
restaurants are required to meet customer
1424
demand for a nonsmoking area by setting aside
seats in a contiguous nonsmoking area.
The practical effect of this law is
that nonsmokers are being contaminated by
harmful secondhand tobacco. Numerous studies
have documented that secondhand smoke harms
nonsmokers, including children, and causes
lung cancer, heart disease, and respiratory
problems in exposed nonsmokers.
Studies have shown that the
separation of smokers and nonsmokers within
the same room does not protect them against
the health dangers associated with secondhand
smoke.
The EPA in 1992 classified
secondhand smoke as a Group A carcinogen, a
class of chemicals known to cause cancer in
humans. There is no safe level of exposure of
a Group A toxin.
They concluded that secondhand
smoke causes 3,000 lung cancer deaths each
year in nonsmokers and that in infants and
children there are approximately 150,000 to
300,000 cases of lower respiratory tract
infections found annually.
1425
The Department of Human and Health
Services has declared that secondhand smoke is
known to be a human carcinogen, based on
studies in humans that indicate the
relationship between passive exposure to
tobacco smoke and human lung cancer.
The American Heart Association has
declared secondhand smoke to be the third
leading cause of preventable deaths in this
country.
Restaurant employees are at least
30 percent to 50 percent more likely to get
lung cancer than the general public.
And the National Institute of
Occupational Safety and Health recommends that
in order to protect a nonsmoker in enclosed
areas, smoking must be eliminated.
Senator Bruno, let me thank you for
your convictions, your belief, and your
compassion with this issue and your courage
for bringing it to the floor.
Today is truly an historic day in
New York State to ensure greater protection
for the residents of our great state. I ask
for all your support on this important public
1426
health policy.
Thank you, Mr. President.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Fuschillo.
Any other Senator wish to be heard
on the bill?
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. On the bill.
I support this legislation. I
realize that there are people who are
conflicted about it. There are a lot of
businesses that feel concerned about the
impact of elimination of smoking on their
economic well-being.
But I think that what Senator Bruno
and Senator Fuschillo have pointed out is a
fundamental point about our government and the
evolution of our government: Secondhand smoke
kills people. There is no such thing as a
free choice of an employee to say: I'm not
going to work in this place, I'm going to hold
out for a location where there's no smoking.
And this is a major public health
step, to move beyond the awareness that
1427
smoking kills smokers to the awareness that
smoking also kills innocent bystanders.
The economic arguments that have
been made and I believe hyped by the tobacco
industry to many of us over the last few days
in my view are wholly without merit. And I
would call everyone's attention to a study by
the American Lung Association which reviewed
97 separate studies of the economic impact of
prohibitions on smoking.
This is an extraordinarily detailed
work. It was done in October 2002. It
concluded that all of the studies that had
controls and peer review and met the highest
standards concluded there was no economic
impact, and went on to conclude that the only
studies that found an economic impact were
those studies funded by the tobacco industry.
In fact, not one of the studies
with independent funding found a significant
economic impact, and 94 percent of the studies
funded by the tobacco industry found there was
a significant economic impact.
So if you want to talk about spin
and you want to talk about distortion of the
1428
evidence before us, I think that study says it
all.
I think this is an important step
forward for our state. I think people will
learn to adjust to this. And this is another
step forward in a long line of legislation
that, Senator Bruno has pointed out, may
provide some restrictions but provides freedom
for a larger group of people.
And the State of New York in fact
has led the way historically on such
legislation. Child-labor laws restricted
people's ability to do business. New York
State led the way. Regulation of the quality
of food, drugs, restricts people's ability to
do business. New York State led the way.
I am happy to support this
legislation. I'm proud of the work that
Senator Bruno and our leader, Senator
Paterson, have done to bring this to the floor
and bring it to what I believe will be a
successful vote.
And I urge all of those concerned
about its impact to withhold judgment, and I
think at the end of the day we'll see, as
1429
people in other jurisdictions have seen, that
we improve people's health, we improve
people's quality of life, and that the harms
that people fear, the damage that people
suggest is really not going to come to very
much at all when you compare it to the
benefits.
I'm voting yes, commend the
sponsor, and I urge everyone to vote yes for
this bill.
ACTING PRESIDENT MORAHAN: Read
the last section.
Senator Lachman.
SENATOR LACHMAN: Yes, I'd like
to speak on this bill as well.
It's almost inconceivable that it
was less than ten years ago that major
corporations in America, tobacco corporations,
stood before the U.S. Congress and said
tobacco is does not impact negatively upon
America's population, it has no impact upon
addiction.
These major corporations, tobacco
corporations, are now admitting that they were
wrong. Or they're having their public
1430
relations people say, well, they did not say
what everyone heard them say.
I look upon this as a major
advancement, a major advancement in the area
of medical addiction, which inflicts its
negative results upon those who are most
vulnerable -- children, teenagers, high school
students, the poor.
This bill is long overdue. And I
commend both the leaders of the Majority and
Minority parties for working in cooperation to
pass this nonpartisan, pro-health,
anti-addiction bill.
Thank you.
ACTING PRESIDENT MORAHAN: Read
the last section.
Senator Duane.
SENATOR DUANE: Thank you, Mr.
President.
I am going to vote in favor of this
bill. And I was very interested to listen to
the Majority Leader's comment, particularly
where he said that he respected the --
respects your opinions about civil rights, but
no one has the right to injure an innocent
1431
person.
And I think that that's a
philosophy which we would be well served to
follow in this body on other issues in
addition to the secondhand smoke issue. For
instance, those who have been victimized by
clergy abuse or those children in schools who
are victimized at the hands of other children
or administration, in some cases.
So I'm pleased to hear of this
philosophy. I think that it certainly applies
in this case. But I am hopeful that we will
apply that same standard as it applies to
other people who are being victimized in our
society as well.
Thank you, Mr. President.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Duane.
Read the last section.
THE SECRETARY: Section 16 --
SENATOR CONNOR: Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Connor.
SENATOR CONNOR: Yes, on the
bill, please.
1432
I find this a very, very difficult
vote to contemplate. No one can quarrel with
the statistics on the health effects of
smoking. I look down here and there's this
little hole [indicating desk]; this is the old
America.
If you look at the history of
smoking as I viewed it, you know, my
grandparents' generation, not that many people
smoked. My parents' generation, they all
smoked. It was glamorous in the thirties and
forties. And when you were in the service,
they gave you cartons of cigarettes. If you
didn't smoke when you went in, you certainly
smoked before you got out.
When I first joined this chamber,
not only did people sit here and smoke, people
would light up -- members would light up big
cigars and smoke pipes. And it was somehow
viewed as a civil right. Then, of course, the
statistics on secondhand smoke were not known.
But by then certainly the effects on the
smokers were well known.
I just have a particular concern
with where we're going on policy. I have no
1433
quarrel with the policy that says let's
protect the health of employees. They
shouldn't be forced to be exposed to
secondhand smoke.
And I have no quarrel, for example,
with the law the city has adopted, which
allows an establishment to have a separately
sealed, ventilated room where the employees
don't serve drinks, don't have to go in. Many
people have invested in that.
So you now have establishments that
have contracted for two and three hundred
thousand dollar renovations that this law
would say kiss that money goodbye, you can't
have a separately enclosed, ventilated
whatever.
The problem with that is there
there's no one unwillingly being exposed to
secondhand smoke.
Cigar bars, I have a real
constitutional problem with that. That got
into the city law, that exemption for the five
or six cigar bars existing in Manhattan,
because Rudy Giuliani called Mayor Bloomberg
and said, "Hey, I go to these cigar bars, cut
1434
them some slack." So the law grandfathered
them in.
Now, either a cigar bar is a
harmful environment for the people who work
there -- although I suppose if you've got a
real problem with being near smoke, the last
thing you're going to do is apply for work at
a place that calls itself a cigar bar. I know
if I were allergic to peanuts, the last place
I would want to go work is a place where I had
to handle peanuts, where they roasted peanuts.
I don't know constitutionally,
though, why, if I can qualify for a liquor
license, et cetera, et cetera, et cetera, and
get a space four blocks away from Club
Macanudo and open up the identical operation,
why am I being told I can't compete with Club
Macanudo?
Either we ought to close the cigar
bars or let everyone that qualifies and meets
whatever the standards are for those cigar
bars compete with them. If the public doesn't
want to go to cigar bars, they won't compete
successfully and they'll go out of business.
If we're giving to certain cigar
1435
bars that existed in this legislation in the
year 2002 an exclusive monopoly, then I think
we're missing the boat. We ought to have a
franchise fee for that. We have a budget
problem. Why should they just pay for their
liquor license and be able to be a cigar bar
and have the only game in town, free from all
competition?
Either cigar bars are bad, they're
a bad environment, we want to make a public
policy statement, we don't want cigar bars, we
don't want those kind of venues to exist and
close them all -- or say, here are the
standards to be a cigar bar, anyone can
compete.
Again, if the market won't stand
for tripling the number of cigar bars, then
the people who invest in that will go out of
business. That's called the free market,
Mr. President.
I don't know why we're giving an
exclusive franchise to certain cigar bars.
You can be for the strictest antismoking
legislation and find that provision totally
objectionable, or you can be for no
1436
restrictions on smoking and find that
particular provision reprehensible. I just
don't understand, as a matter of policy, why
are we doing this.
Is it because Rudy Giuliani did a
contract in New York City to let the five
cigar bars existing stay open? I thought that
was wrong then. You should have fifty cigar
bars if the market will support it. Or, if
you don't think cigar bars are a good thing,
then close them all down.
So I don't understand where the
policy of protecting people from secondhand
smoke or employees from secondhand smoke fits
that. And I do see where that offends all
notions. You know? Why are we giving an
exclusive to these cigar bars? Makes no sense
whatsoever, Mr. President.
I find some other faults with this
bill, because I understand people want to
discourage smoking. We, the same Legislature
that balances our books on the backs of
smokers, that increases tobacco taxes or
authorizes New York City to increase tobacco
taxes so we get more revenue, don't really
1437
want anybody to buy tobacco products. Then
ban them. Prohibit them. Come up with a
comprehensive program to provide support for
nonsmoking programs, for even more intensive
education.
And I have to say the educational
efforts in the past, some of which were
assisted by this state government, many were
the work, the fine work of the many, many
organizations who have been fighting the curse
of smoking all these many years -- they have
an effect. We now have a generation coming up
by and large that understands the tremendous
adverse health consequences of smoking and is
generally antismoking.
That's a good thing. We should do
more of that. We should do more of that
leading to a prohibition of tobacco. Why need
it be a legal product?
I warn my colleagues, though, these
same health statistics, many of them were
available about the consequences of alcohol in
the early part of the last century. And they
led to Prohibition. And that was a failed
experiment. And I can give you terrible
1438
health statistics about the effects of alcohol
even today, and nobody says ban it. So I mean
it's a dilemma, as legislators, we face.
Mr. President, I offer a modest
proposal. I intended to do an amendment, but
I think I'll do a separate bill. It's a
modest proposal in the real sense of that. I
hope my colleagues are literate enough to know
from whence I speak.
The modest proposal is I can show
you statistics from virtually every agency
that Senator Fuschillo mentioned that show
probably the number-two cause of heart disease
and death in America is obesity and poor
diet -- fat, cholesterol, et cetera. Yet we
sit here in this Legislature and do nothing
about that.
Now, I'm not proposing, Mr.
President, that we tell people what they
should prepare and eat in their own homes.
That's still a man or a woman's castle, as it
is under this bill.
But did you ever go to a
restaurant, Mr. President, and they bring out
enormous portions -- and for those who are
1439
prone to obesity, they just can't help digging
in. Why don't we legislate that the meals
offered in restaurants have to include no more
than 4 ounces of lean meat, legumes, a grain,
two servings of fruit? We could do that.
These restaurants are licensed. We
could tie it to the liquor license, we could
tie it to their consumer affairs license. And
we could save a lot of lives, Mr. President, a
lot of lives if we did that.
Mr. President, unfortunately, the
answer to a lot of these self-inflicted health
problems, be it obesity, be it consequences of
smoking for smokers -- and I'm not talking
about subjecting nonsmokers to secondhand
smoke -- really can't be legislated against.
They require education. They require some
healthcare expenditures for that education,
prevention, et cetera. But you just can't
legislate it.
And there are elements of this bill
that I think go a little too far because they
are not expressing a directly related
rationale to protecting the health of
nonsmokers, employees, workers, the public in
1440
public gatherings.
They express -- and I warn my
colleagues against it. And on balance, I'll
probably vote for this. But I warn my
colleagues that to embrace certain elements
that really do no more than express the shared
moral outrage at the consequences of smoking,
at people who don't recognize the
consequences, at the decades-long -- many of
which have been put to a stop -- abuse in
advertising, misadvertising, misrepresentation
and marketing by Big Tobacco, as it's called,
takes us into dangerous waters.
Impossible to enforce. I mean,
this bill, I can't figure out what's the
penalty. How do you enforce it? Localities
can? What if some locality says, okay, it's a
dime, ten-cent fine every time somebody smokes
in a bar. Just put the can up on the bar with
the little slot in it, drop your dime in.
I don't know. I'm not suggesting
loopholes to people. But I don't see where
this bill would stop that.
So I just warn my colleagues, we
tread down these paths of political
1441
correctness. They have a lot of basis in real
need and fact. There's a real case to be
made. There's certainly a case to be made for
protecting people from secondhand smoke.
There's no doubt that the case is made about
the consequences, the bad consequences of
smoking both for smokers and for nonsmokers
exposed to secondhand smoke.
But some of these things just don't
make any sense. Either a cigar bar is a bad
thing or it's a legal thing and people ought
to be able to compete if they meet the same
qualifications. Because -- and, Mr.
President, because the existing -- let's face
it, existing cigar bars are not for Joe
Sixpack. They're not a good place to get, as
one vice president talked about, a nickel
cigar. I guess a nickel cigar would be a $2
cigar today. They're a place for $25 cigars.
So what are we saying here? If
it's been in a privileged venue of those who
can afford $25 cigars and expensive brandy,
where the elite meet and smoke, it's okay, but
you can't open up any more? I don't
understand the policy behind that.
1442
I suggest, Mr. President, that the
sponsors have just gone too far in their
righteous zeal. And, I mean, I appreciate
Senator Fuschillo's efforts in this area. I
think fashioning an appropriate bill is a good
thing, and bringing it to the floor and
overcoming political obstacles.
I just think we've gone a bit too
far here. And I don't know that it tips the
balance for me, but I do have these very, very
sincere concerns, Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Sabini.
SENATOR SABINI: Thank you, Mr.
President. On the bill.
I admire the sponsor, Senator
Fuschillo, and the work he has done on behalf
of the people of the State of New York and the
zeal with which people have supported this
bill. It's a good thing for public health to
cut down on smoking.
But there are so many
inconsistencies in our state's policy if we
enact this bill and, indeed, I feel so much
unfairness to many New York City business
1443
owners who are trying right now to comply, as
we speak, with the upcoming implementation of
the New York City law, that I don't think this
is a particularly good idea at this time.
There are people who have carefully
studied the New York City law and have found
that the opportunity to have separate
ventilation systems was there, so they started
installing them.
There are people who have invested
in bars in New York City who felt that they
could now have an exclusive franchise to have
a smoking bar because of the four-partner
worker rule. Which says, in the recently
passed legislation at the New York City level,
that if a bar, a tavern had four partners and
they were the only employees in the bar, that
that bar would be exempted.
And there are people who have
actually invested substantial amounts of money
in trying to buy those establishments so they
could have four-partner bars. And now this
legislation undoes it.
The entire state revenue stream
right now is sort of dependent on, in some
1444
ways -- or at least a portion of it is -- a
healthy tobacco industry, because we're
depending on a settlement. And yet we try to
make it harder for people to smoke.
And it's probably a good thing we
do that, but maybe we should think of the
broader picture. Maybe cigarettes should be
banned in New York State. Maybe their sales
should be banned. What we would do with our
budget then, I'm not sure of. But it's sort
of a little inconsistent to collect tax on it
and yet encourage people not to use it, I
feel.
I noted in the sponsor's memorandum
for support it talked about the California
Health Department study. And it said in that
study that after California banned smoking in
bars, people spent more time in bars.
Well, is that a particularly good
thing? Do we want people going home with more
in them than they should? I'm not sure. But
that's an unintended consequence.
I noticed we got a memorandum in
opposition from Western OTB, where smoking
will be banned in teletheaters and OTB
1445
parlors. Now, I hope none of us are
Pollyannish enough to think that there aren't
alternatives for people who want to bet on
horses in this state to then go elsewhere
besides OTB, which generates revenue for this
state. And I'm afraid in some cases they
will.
In fact, in many places in this
state they can watch TV from the comforts of
their own home. They can choose to bet with
OTB or with someone else. And I'm afraid that
many of them may wind up with someone else.
Our Native American casinos will be
exempt from this, because they'll be
allowed -- under the federal law, they'll be
allowed to ignore this law.
And what does that say to some of
the restaurants and bars nearby those casinos
that are -- now we're trying to get ancillary
businesses in places like Niagara Falls and
places like Oneida and hopefully in the
Catskills? What does that say to them, that
people will be able to smoke and stay and
spend their money in the bars and restaurants
in those casinos and not in the surrounding
1446
community?
I worry about the inconsistencies
here. Perhaps the most ironic inconsistency
is in Section 4 of the bill. And I quote from
the bill, that it talks about "exempting
certain events whose primary purpose is the
promoting or sampling of tobacco products."
Well, I ask you, my colleagues, why
are we encouraging the promotion and sampling
of tobacco products in one case if we're
banning their usage in public in another? I
find this really inconsistent.
I know what that language is about,
and it harkens to what Senator Connor
mentioned about sort of allowing the elite to
meet, eat and smoke. But again, I just find
it ironic that in a bill that's designed to
keep people from smoking, we're encouraging
the promotion of their products.
So I don't plan to support this
bill, although I don't -- certainly don't
impinge on the intentions of those -- I think
there are good public health intentions of
people that want to cut down on smoking and
preserve our state's budget by cutting down on
1447
healthcare costs. But I think in many ways
we're sort of working both sides of the
street, as they say in some neighborhoods of
the city of New York. And so therefore I
intend to vote no.
Thank you.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Sabini.
Senator Duane.
SENATOR DUANE: Thank you, Mr.
President.
Generally I don't stand up and
speak twice on a piece of legislation. But
this is really my only opportunity to speak on
this bill, and there are some other issues
which I think need to be addressed.
I am still voting for this
legislation, although I think that there are
some flaws in it. I don't think there should
be exemptions for the cigar bars. And I don't
think there should be exemptions for, you
know, cigar conventions or whatever those
things are.
And I'm okay with the exemption for
residential treatment facilities, that there
1448
will be a place to smoke, but I have some
concerns about how that will be implemented.
Because I think mental health patients and
those in substance abuse treatment facilities,
that special attention needs to be paid to how
their success will be. And I think that is
not something which can be treated lightly and
needs to be left up to the individual
health-care providers on those -- in those
facilities.
I do think, though, in general that
while this bill is generally a good bill, in
the sense that it will protect people from
secondhand smoke, I also think it's a pathetic
bill. And the reason I think it's a pathetic
bill is because I look at the sponsors and all
of the sponsors in both houses are, I believe,
Majority party members. As I look at the
Assembly members, I think they all are,
although I can't swear to that. So let me
just talk about the Senate.
They're all Majority members. So
even those of us who have supported
legislation in the past which restricts
people's exposure and workers' exposure to
1449
secondhand smoke were not allowed to be on
this bill. And I think that's despicable,
frankly.
And I also think that the reason --
another reason why I'm speaking twice on this
is because I don't recall us having any
hearings on this bill. Now, I know when the
New York City Council passed legislation on
smoking laws, they had three or four days of
hearings, 12-hour days, everyone had their
say -- the public, healthcare professionals,
restaurant workers, restaurant owners.
Everybody had their say.
And yet somehow here in the
Legislature we believe that we don't have to
listen to the people about these things.
Oh -- oh, yes, I did get memos. I got memos.
But what I didn't get was hearings.
And I would have liked to have
heard in person from the regional OTB
personnel. I would have liked to have heard
both from the management and from the people
who work there. I would have liked to have
heard from the tavern owners. I would have
liked to have heard from the unions
1450
representing the restaurant workers.
I would have liked to have heard
from average citizens, those who smoke and
supported this kind of legislation and those
who smoke who oppose this kind of legislation,
those who don't smoke who supported this
legislation and those who don't smoke who
oppose this legislation.
But we didn't hear from any of
those people. Maybe we did individually,
people came into our offices and said what
they thought about it. And we got memos. Oh,
boy, did we get memos. Memos, memos, memos.
But what we didn't get was any testimony from
real people.
And I so know that we think we know
better than everybody. I still think that it
can't hurt for us every once in a while to
hear a few little tidbits of wisdom from just
regular people before we pass this kind of
sweeping legislation.
So again, I'm going to vote for
this bill, but I think some of my colleagues
raised some very important issues that they
had with the bill. But there was no forum for
1451
people who agree with my colleagues on those
issues to come forward and express their
views.
So I'll vote for it, but I am
hoping that maybe someday, someday my
colleagues here in the Legislature,
particularly in the Senate, will understand
the wisdom of actually hearing from the people
of the state of New York.
Thank you, Mr. President.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Duane.
Read the last section.
THE SECRETARY: Section 16. This
act shall take effect on the 120th day.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT MORAHAN:
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 299 are
Senators Connor, Gonzalez, Sabini, and
M. Smith. Ayes, 57. Nays, 4.
ACTING PRESIDENT MORAHAN: The
1452
bill is passed.
Senator Bruno.
SENATOR BRUNO: Is there any
housekeeping at the desk, Mr. President?
ACTING PRESIDENT MORAHAN: There
is no housekeeping, Senator Bruno.
SENATOR BRUNO: Mr. President, at
this time if you could recognize Senator
Breslin.
ACTING PRESIDENT MORAHAN: The
chamber will come to order, please.
Senator Breslin.
SENATOR BRESLIN: Mr. President,
I believe I have a motion at the desk. I ask
that it be read.
ACTING PRESIDENT MORAHAN: Are
you waiving the reading, Senator?
SENATOR BRESLIN: No, I ask that
it be read.
ACTING PRESIDENT MORAHAN: The
Secretary will read.
A little courtesy, please.
The Secretary will read the title.
THE SECRETARY: By Senator
Breslin, Senate Print 214, an act to amend the
1453
General Obligations Law and others.
SENATOR BRESLIN: Mr. President,
I ask that I be heard on --
ACTING PRESIDENT MORAHAN:
Senator Breslin.
SENATOR BRESLIN: Mr. President,
since 1997, on an annual basis, I have
introduced legislation called an HMO liability
bill.
Simply put, it's a bill to place
health maintenance organizations into the same
category if they commit negligent acts as a
doctor would be in, or an accountant would be
in, or a lawyer.
HMOs are constantly making
decisions of a medical nature, much like
physicians make those kinds of decisions. But
we have a law in New York State, 4410 of the
Health Law, which restricts any recovery from
a decision made by an HMO to a breach of
contract.
That's wrong. HMOs are making
decisions about treatment, about the types of
care that they give patients in their
organizations, and some of those decisions and
1454
recommendations are based on a bottom line, a
profit motive.
We have to make sure that we bring
HMOs into a liability sphere so that if they
make medical decisions, medical decisions that
affect patients and those decisions are
negligent, that they're liable for those
decisions.
We're blessed with many fine HMOs.
I happen to be a member of CDPHP, which I
think is the best in the state. But there are
others that do not have the same kinds of
performance levels. And this bill will change
that.
And I urge all of my Democrat and
Republican friends in this house to vote for
this motion.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Breslin.
Those Senators who are in agreement
with the petition of the bill out of committee
will please signify by raising your hands.
THE SECRETARY: Those recorded in
agreement are Senators Andrews, Breslin,
Brown, Diaz, Dilán, Duane, Gonzalez,
1455
Hassell-Thompson, L. Krueger, Lachman,
Montgomery, Onorato, Oppenheimer, Parker,
Paterson, Sabini, Schneiderman, A. Smith, and
M. Smith.
ACTING PRESIDENT MORAHAN: The
petition out of committee is lost.
Senator Bruno.
SENATOR BRUNO: Mr. President,
there being no further business to come before
the Senate, I would move that we stand
adjourned until Monday, March 31st, at
3:00 p.m., intervening days to be legislative
days.
Travel well and travel safely.
ACTING PRESIDENT MORAHAN: On
motion by Senator Bruno, the Senate stands
adjourned until Monday, March 31st, at
3:00 p.m., intervening days being legislative
days.
(Whereupon, at 1:18 p.m., the
Senate adjourned.)