After their effort to derail the enactment of Nassau County's workplace smoking ban failed last month, a group of bar and restaurant owners has filed a federal lawsuit seeking to throw out the law as unconstitutional.

The half-dozen plaintiffs, including the luxury Garden City Hotel, also asked U.S. District Judge Denis R. Hurley to issue an injunction to halt enforcement of the law until the suit is settled. A hearing on that request could occur as early as Thursday in U.S. District Court in Central Islip. The businesses argue that when Nassau's legislative Democrats approved new prohibitions to strengthen a smoking ban the county first approved in 1998, they did not repeal conflicting portions of the original law that limited smoking only to restaurant bar areas and ventilated smoking rooms. The ban went into effect March 1. "The statute is impossible to enforce," said Arthur J. Kremer, a Uniondale attorney representing the business owners. "They didn't rescind the old law." The law's authors vigorously defended it as a monumental step toward improved public health. Presiding Officer Judy Jacobs (D-Westbury) said she was confident the law would withstand a challenge, though she cited no reasons. "We passed this for all the right reasons of health, safety and welfare," she said. Jacobs also attacked Kremer, who until five years ago worked as a lobbyist for tobacco giant Philip Morris. "It's now big tobacco versus the legislature," she said. "The general fallback when you're hit with a suit like this is that he must be with the bad guys," Kremer said in response. The suit also contends the county failed to study the economic impact of the ban under the requirements of the State Environmental Quality Review Act, the law that calls for localities to study the economic, environmental and social effects of their actions. Since the workplace smoking ban took effect, some business owners, especially those on the border with Suffolk County, say they have lost patrons to businesses in Suffolk, where a ban will not take effect until 2006. Legislative Minority Leader Peter Schmitt (R-Massapequa) said the county should have examined the economic impact before passing a new law. "That is a fatal flaw," Schmitt said. "It is just another indication that this law was a rush to judgment." Before the ban's enactment, business owners aggressively pressed Jacobs to allow a vote on delaying the law's implementation date to match Suffolk's. But while a majority of lawmakers approved a postponement, Jacobs refused to place a measure on the legislative calendar. In their lawsuit, the businesses also contend the smoking ban dealt with zoning regulations, which fall under the oversight of villages and towns, not counties. They also argue that Nassau should compensate them for the tens of thousands of dollars they each spent in re- novation costs for constructing separate smoking rooms under the 1998 law. The Garden City Hotel, for instance, poured $200,000 into renovations to accommodate that law, only to see a full ban approved five years later. Brian Rosenberg, a vice president of the hotel, said his staff has struggled with enforcement of the new law, sometimes clashing with belligerent customers who refused to put out cigarettes. "There have been arguments between smokers and nonsmokers," Rosenberg said. One man flipped a cigarette into a security guard's face at the hotel, Rosenberg recalled. The man was thrown out.

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