by Tom Farley
As a group, the deputy mayors believed that if the rule passed, New Yorkers who smoked would avoid the city’s bars and restaurants. They’d go to Long Island or Westchester County, or they’d just stay home. Restaurants and bars in lower Manhattan closed for months after 9/11, the deputies argued, and the clubs were just now barely crawling back to life. And Frieden wanted to hit them with this? Sure, his numbers on the financial impact in California were positive, but that state was a bunch of tree-huggers.
Deputy Mayor Doctoroff even worried about tourism, especially from abroad. A tourist from Germany might pass up New York City because he couldn’t smoke in a bar there. So Frieden had Chang, McCord, and others survey tour operators in each of the eight countries that sent the most visitors to New York City. The tour operators confirmed that tourists didn’t ask or care about a city’s smoking rules.
Doctoroff also wasn’t satisfied with the data on restaurant and bar sales and employment in California. He wanted to know what happened in that state’s big cities. So Frieden had his team call twenty restaurants in Los Angeles and twenty in San Francisco. More restaurants said they had seen an increase in sales after going smoke-free than a decrease.
The only person in City Hall who seemed open to the idea was Bloomberg. When Frieden finally got to him, the mayor peppered his health commissioner with questions about the data. Unlike his deputies, Bloomberg questioned the health impact, pressing on Mostashari’s 11,000-lives-saved estimate. He waved off the business impact of the law in California; that state was nothing like New York City. The aides asked Frieden for other examples, but the only other examples were small towns, and comparing New York City to a small town was offensive.
At a final decision meeting, Frieden showed Bloomberg the tourism data. After all the questions to that point, at this meeting Frieden remembers the mayor asking only one: “Are you certain that this is going to save lives?” Frieden was.
Bloomberg approved it.
A long-term antismoking advocate, Joe Cherner, had anticipated this moment and had primed Frieden to steel the mayor for the battles ahead. “You can’t just get him to agree,” Frieden remembers Cherner saying. “You’ve got to tell him that he’s going to be attacked. That friends are going to come up to him. That people are going to scream at him. At parties social friends, powerful people, will tell him you’re doing a terrible thing. They’ll tell him it’s impossible.” As soon as Frieden began warning Bloomberg, though, the mayor cut him off. The man who had made billions selling computer terminals told his health commissioner, “Let me tell you the first rule of salesmanship. After you make the sale, leave.”
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The governments of New York City and New York State are hopelessly intertwined and mutually resentful. The state is demographically lopsided: eight million of its nineteen million people live in the city, making for huge overlaps in the two governments’ authority and constituencies. The city is heavily Democratic, while the rest of the state leans Republican. City officials resent the state’s power over the city; the state controls much that city residents expect the mayor to manage, including the public transit system, income and sales tax rates, and pensions for city workers. City officials believe that the state sucks money from the city’s business engine and showers it on economically weaker cities and towns. State officials, on the other hand, chafe when the city acts as if it were its own nation.
By state law, Mayor Bloomberg’s cigarette tax increase needed approval first by the state legislature, then by the City Council. After 9/11, New York State, like neighboring Connecticut and New Jersey, had developed a deep budget hole. That helped. Legislators are always afraid of voter backlash from raising taxes, but despite the lobbying of Phillip Morris and bodega owners that sold cigarettes, they warmed up to a cigarette tax—80 percent of voters didn’t smoke. All three of the region’s state legislatures opened the cigarette tax spigot, but New York outdid its neighbors. The New York State legislature raised the state’s own tax from $1.11 to $1.50. Then it passed the law allowing the city to increase its tax from 8 cents to $1.50, but only after grabbing 46 percent of the city’s tax revenue for the state government. “Albany always screws the city, basically,” said Frieden.
In June 2002 the New York City Council voted to hike the city tax, driving the total state and city tax for a pack of cigarettes in New York City from $1.19 to $3.00—by far the highest in the nation. A pack of cigarettes would soon cost over $7.00, a big hit for people buying a pack or two every day. Despite a late plea by Frieden, none of the revenue from those taxes would go to the health department to prevent smoking.
Meanwhile at the health department, Frieden was working on a different problem. The man who measured what mattered had no way of tracking year to year how many people were smoking. In April 2002 he asked Farzad Mostashari to figure out how to count smokers. Mostashari adapted a telephone survey designed by the CDC, found a call center to do it, started the calling in May, and finished surveying 10,000 people by June 30. The survey showed that 21.6 percent of adults in the city (or 1.3 million people) smoked. For the next seven years, Frieden would pay more attention to that number than any other.
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Even though Frieden and his allies now had the city’s executive branch behind them, they approached the passing of the Smoke-Free Air Act as if it were an insurgent political campaign. They wrote lists of influential supporters and opponents and divvied up the job of contacting them, sequencing the meetings so that they could use support from some as leverage with others. They scheduled press events and lined up people to praise the bill. They wrote scripts for ads to run on the radio, with Bloomberg and Frieden making the case, and they created print ads to run in the city’s newspapers with the tagline “there’s no such thing as a nonsmoking section.” They paid for another poll. They made pitches to editorial boards at the city’s newspapers.
They scheduled lobbying visits to all the key City Council members, assigning them according to their importance to Bloomberg or Frieden. In the heat of the election campaign, an antitobacco advocate had sent questionnaires to council candidates, asking whether they supported smoke-free restaurants and bars; now, Frieden pulled out their questionnaires, hoping to pin down those council members who had answered yes.
For the visits, Frieden’s team assembled a packet with facts and numbers. A slide presentation in the packet went through twenty drafts before the commissioner was ready to show it to each of the dozen or so council members he lobbied. It was a lecture, and Frieden loved lecturing.
As they drafted the documents, the City Hall communications team choked on the phrase “Second-Hand Smoke Kills.” Wasn’t the word kills over the top? But Frieden insisted that that was just the point. They had to say it killed. If they couldn’t, they would lose the argument before it started. Just before the visits, the team prepared—just in case they needed it—a pointed touch: a big bar chart showing the number of deaths they estimated were caused by smoking within each council member’s district each year. The least was the district of Hiram Monserrate in Queens—85 dead. The most was the district of Domenic Recchia of Brooklyn—276 dead.
And there was one more chunk of data that Frieden wanted. He pushed his staff in the Environmental Health Division to find machines to measure how bad the air was in the city’s smoky bars and, in a stroke of brilliance, to measure air quality in other nasty places for comparison. The findings couldn’t have been better. Frieden was able to add a bar chart showing that “there is 50 times more air pollution in a smoky bar than in the Holland tunnel at rush hour.”
On a warm day in August 2002, the team launched the Smoke-Free Air Act campaign at a press conference in City Hall Park. Bloomberg was flanked by Frieden, the head of the city’s public hospital system, a few supportive restaurant and bar owners, representatives of “the A’s” (American Heart Association, American Lung Association, and the American Cancer Society), the president of the health care workers’ union
, the Reverend Calvin Butts, and—to add a little glamour—New York Mets pitcher Al Leiter. (Later Frieden would laugh that they had rolled out the antismoking law with “Butts and Leiter.”)
“No one should have to breathe poison to hold a job,” Mayor Bloomberg said. The proposed law was about much more than restaurants and bars. It would prohibit smoking in virtually every workplace, including office buildings, factories, warehouses, banks, stores, sports arenas, and transit facilities.
The City Hall team had wanted to create a splash, but they got more of a flop. The story had leaked to the papers three days before the launch, so the press ignored the unity show, but in the days beforehand the papers handed a megaphone to the opponents. Using arguments that would become familiar, they attacked the proposal as an interference with personal freedoms that would damage an industry and kill jobs. “If you can’t have a cigarette in a bar,” the Times quoted one bar patron, “what is the world coming to?” The Post quoted an economics professor saying that business in bars could decline 20 percent. The head of the Greater New York Restaurant and Liquor Dealers Association said, “There are going to be fights in bars and it’s going to backfire and hit Bloomberg in the puss. This is a violation of people’s rights. . . . What are they going to do next: come into your bedroom and tell you when to have sex?” The Post also went after Frieden’s numbers, calling the claim that twice as many New Yorkers died from secondhand smoke as from murder “conjured up” and “nonsense on its face.”
The team knew they would have to do better at the upcoming City Council hearings. The statistics might have convinced Bloomberg, but to convince the public, Christina Chang realized the team needed “the power of the anecdote.” The members of the tobacco team and the antismoking advocates outside the agency were about as familiar with bars as heavy smokers are with gyms; but they began prowling bars at night, looking for bartenders, waitresses, musicians, and bouncers who had emotional stories to tell.
Frieden got crucial and early support from the chair of the City Council’s health committee, Christine Quinn. The health committee had been Quinn’s reward for supporting council member Gifford Miller in his run for speaker. The thirty-five-year-old daughter of a union steward steeped in city politics, Quinn was part street activist and part old-school pol. In the 1990s she had advanced from affordable-housing rabble-rouser to City Council staffer to council member and was now rising in the chamber’s leadership. She was full of energy and ambition, with a big voice and a brassy laugh. Like others who succeed in politics, she could bring people around to her point of view either by charming them or by screaming at them.
Quinn cared deeply about health, for very personal reasons. Her mother, a social worker who had “always had this thing about doctors,” nonetheless smoked and died of breast cancer when Christine was sixteen. “Look, if you spend one minute as a girl in the Sloan Kettering smoking lounge,” she said, referring to the room where hospitalized cancer victims—in patient gowns—dragged on cigarettes, “that’s all you ever need to see.” When Bloomberg’s political aides felt her out on the smoke-free campaign, she came back strong. “If the mayor wants to do this, I’m all in.”
Before the hearings, Frieden’s team strategized with Quinn about how to get the bill through. Simple and beautiful ideas, when you try to write them into law, always turn complicated and ugly. The transformation happens when you draw the lines. What should the law say about private, members-only clubs? What about outdoor patio areas? What about restaurants that had just sunk big bucks into installing ventilation systems to keep their nonsmokers happy? What about cigar bars?
Quinn scheduled two days of hearings. The first was full of entertainment. Two hours before the hearing was to begin, a huge crowd gathered in front of City Hall, as a New York Times reporter put it, “in a display of civic theater not seen since the AIDS protests in the early days of the Giuliani administration. Hotel workers traded barbs with bar customers, bartenders interrupted the news conferences of smoking opponents, and a man dressed as a large cigarette bobbed silently among the crowd . . . holding a placard that read, ‘I secondhand smoke.’”
Inside the council chambers, Quinn had organized the speakers into panels, alternating pro and con. Leading off was a panel with Bloomberg and Frieden, Nobel Prize–winning cancer researcher Harold Varmus, and African American cocktail waitress Martinah Payne-Yehuda, whom the health team had found through their barroom carousing.
Bloomberg claimed the proposed law would “almost certainly save more lives than any other proposal that will ever come before you in this chamber. . . . The right to breathe clean air is more important than the license to pollute it.” To those who suggested that the law should cover restaurants but not bars, the mayor asked, “Which workers have lives that are worth less than yours or mine?” Frieden, playing to the strong labor sentiments on the council, called the bill “a national model for worker protection—protection from deadly secondhand smoke that disproportionately affects minority workers, underpaid and working long hours.” Varmus testified about the medical risks of secondhand smoke.
But the most persuasive member of the panel, according to Chang, was the cocktail waitress. Payne-Yehuda had quit her job when she became pregnant because she couldn’t bear the thought of exposing her baby to secondhand smoke’s chemicals.
The hearing lasted over eight hours. “There were at least twenty restaurant owners against for every one in favor,” remembered Chang. The bill was unfair not just to them, the owners said, but also to their poor immigrant employees, who would lose jobs. They portrayed Bloomberg as an uncaring billionaire. “The mayor is a brilliant businessman,” one owner testified, “but he knows absolutely nothing about the bar business.” “It was ugly,” said Frieden. “It was very ugly.”
Before and after the hearings, the bars lobbied hard, both in the press and behind the scenes. “They had spent a lot of money supporting candidates,” said Bloomberg chief of staff Madonia. “So this was their moment to call in their chits. And they did, believe me.”
“It was a huge fight on a host of different levels,” said Christine Quinn. “The restaurants and the bars, in a way that is hard to imagine now, turned out in total force.” The council members listened to them and grew nervous. “It was venturing into the unknown.”
Quinn held firm, though. Despite the pressure, Frieden’s team thought they had the votes they needed. But the bill wouldn’t come up for a vote without the blessing of Gifford Miller, the council speaker. Bloomberg had talked to him early on and told reporters that he had his support, but Miller publicly backed off from the bill and privately was cagey. “Quinn was terrific, steadfast,” recalled Frieden. But he didn’t trust Miller.
Negotiators in the City Council and the mayor’s office haggled over possible compromises to address thorny situations and to placate those who were waffling. “We had tons and tons of meetings with the restaurants, who wanted all kinds of exemptions,” Quinn said later. The mayor’s staff agreed to grandfather a handful of specialty cigar bars. They would allow smoking in the few private “owner-operated bars.” They would permit smoking in outdoor sidewalk cafés, but only in separate smoking sections with at least three feet of buffer.
But when it came to the major change that the opponents wanted—allowing separate smoking rooms in bars—Frieden dug in his heels. The tobacco companies were pushing fancy ventilation systems, saying they would protect nonsmokers in nearby rooms. Even high-powered ventilation systems, though, only got rid of the secondhand smoke smell; they didn’t clean out enough of the fine particles to protect lungs. And workers in bars with smoking rooms would have to enter these rooms to serve customers.
The biggest danger of separate smoking rooms, and the reason the tobacco companies liked them, was something the health team didn’t want to talk much about: if bars could have separate smoking rooms, then other businesses—like restaurants, movie theaters, and offices—would demand them, too. A comprehensive smoke-free la
w would help make smoking socially unacceptable, but allowing public places to have separate smoking rooms could create new “cool” places to hang out in, which could do just the opposite.
According to Frieden, Speaker Miller was demanding the separate rooms, or he would not allow the bill to come up for a vote. After all their work, the bill looked like it was dying: “Negotiations collapsed . . . we were going to give up because [Miller] wouldn’t move it.” Miller may have privately sided with bar owners. But he would need help from the mayor on many issues for the rest of his four-year term as speaker. And Bloomberg was determined; he had told Peter Madonia that the smoking ban was one of only two legislative acts he really wanted, the other being mayoral control of the school system.
In early December 2002, four months after the mayor announced the bill and two months after the hearings, Bloomberg and Miller walked into a meeting room in City Hall. They spoke for about fifteen minutes alone. Frieden and his team hovered anxiously outside. Afterward the two men walked out and passed the health team, saying nothing. Within a few days, though, Frieden got his orders: create an option in the law for bars to build separate smoking rooms, but according to your specifications.
On the surface, it looked like Frieden had lost. But “specifications” gave him leverage. He was a tuberculosis expert, after all, who had taught hospital administrators how to build “respiratory isolation” rooms for TB patients. So his specs for smoking rooms were powerful enough to protect anyone from tuberculosis. The rooms must have “negative air pressure,” so air would only flow in from other areas and then be sucked directly outdoors, vented twenty-five feet from any air intake grate. The rooms couldn’t take up more than one-fourth of the club’s floor space. They had to have their own sprinkler systems. The owners could not offer food or drinks inside, and they had to post signs saying that employees couldn’t enter the rooms. “You’re basically building a plastic phone booth in the middle of your restaurant or bar,” said Chang. To top it off, Frieden added a sunset: after three years, the smoking rooms would shut down.
