ALBANY - State lawmakers are close to reaching agreement on a statewide smoking ban in restaurants, similar to the ban Erie County started enforcing four years ago.

The plan to restrict smoking, except in designated bar areas or in separately enclosed rooms with a ventilation system, sprung to life in recent days at the Capitol with the support of the Legislature's top Republican. The state needs to do more to protect the health of nonsmokers while they dine out, Senate Majority Leader Joseph Bruno said in an interview this week. "Smoking kills people, and people who are exposed to smoking secondhand can be just as dead as people who inhale it themselves directly," Bruno said. "So I think it's a matter of public concern." Lobbyists on both sides of the issue say a deal could come together as soon as next week, when the Senate is scheduled to end its official session for the year. The legislation would bring the rest of the state nearly in line with the restaurant smoking restriction that Erie County put in place in 1997. The new statewide plan would not affect Erie County's indoor-air law, which restricts smoking in more places than the current and proposed state law. Thought dead in recent months, the smoking ban proposal has come back to life as word quietly spread this week among industry and health lobbyists that Bruno was looking to pass the measure. It is being sponsored in his house by Sen. Charles Fuschillo, a Long Island Republican. The Senate, though it has passed anti-tobacco measures in recent years, has historically been seen as the chamber most friendly to tobacco interests. The measure is seen as likely to have an easier time in the Assembly, where its sponsor, Assemblyman Alexander Grannis, a Manhattan Democrat, on Wednesday rewrote his bill so it is identical to the Fuschillo measure in the Senate. Bruno called it a tough issue to resolve because the Senate wants to enact a smoking ban that is not "overly punitive to restaurants and owners and people who want to smoke." But Bruno was adamant that something more needs to be done to protect nonsmokers from what he said is the danger of secondhand smoke. Though the measure is being furiously opposed at the Capitol by tobacco and restaurant industry lobbyists, several restaurant owners in Niagara Falls seemed unfazed at the prospect of living by the same indoor-air rules that exist in their colleagues' establishments in Erie County. "We have far more nonsmokers than smokers," said Wendy Colucci, whose family owns the Como Restaurant in Niagara Falls. Most Western New York counties, such as Niagara County, have no additional restrictions beyond the current state indoor air law. State law, enacted in 1989, requires a nonsmoking section in restaurants with more than 50 seats. Though restaurant groups are fighting the new proposal, various studies, including two by Roswell Park Cancer Institute, found that restaurants have seen their business improve following enactment of smoking restrictions. Niagara County health officials imposed strict anti-smoking rules for restaurants in 1998, but they were struck down following a court challenge by industry groups. These days, Colucci said, her Pine Avenue restaurant often has no tables available in its nonsmoking section on busy nights. Tables sit empty in the smoking area because there are fewer and fewer customers who want to smoke while they eat. "I think it might be easier for restaurants that are large and busy," she said of the proposed new restrictions. "It would be easier for us if everything was nonsmoking." At smaller restaurants, the proposed smoking ban could present a competitive disadvantage, some owners said. "If they totally ban smoking in all public places, I don't have a problem with that. Then I know I can compete with anybody if it's a fair playing field," said Terry Jacklin, an owner of Michael's Restaurant in Niagara Falls. But the plan under consideration would allow a restaurant to set aside one of its rooms for smokers, as long as there is a separate ventilation system that ensures smoke could not be filtered back into the nonsmoking room. Jacklin's restaurant has all 20 of its tables in one room, and it would be impossible to split up the room to create a new space just for smokers, the owner said. Nor could he afford to install a ventilation system. "The halfway stuff isn't cutting it," Jacklin said of a bill that still leaves options for smokers, at least in bigger restaurants that could cope with some of the restrictions. "It would be unfair to some of us." Other counties have gone beyond the state's indoor-air laws when it comes to restaurants. In Chautauqua County, smoking is limited to 20 percent of a restaurant's space; the pending state plan would restrict smoking further. Genesee County, following the lead of Erie County, in 1999 required smokers in restaurants to be in separate rooms or to remain in the bar area. Other counties in the region follow the state's existing restrictions. "It's just another example of government trying to tell us how to run our business," said Scott Wexler, executive director the Empire State Restaurant and Tavern Association. He said the law will be overly costly for bars and restaurants to comply with, and in some cases, will set up unfair fights between small restaurants and chains that may be able to afford to further separate smokers from nonsmokers. But one advocate said public health is a higher goal. "We think the protection deserves to be extended to everyone in the state. We see this as another incremental step towards a situation where people are never exposed to environmental tobacco smoke at work or while using any public facility," said Russell Sciandra, director of the Center for a Tobacco Free New York. Philip Morris, the world's largest cigarette company, has a team of lobbyists at the Capitol trying to quash the measure. "We think business owners are really in the best position to decide how to deal with this issue in their establishments," said Brendan McCormick, a Philip Morris spokesman.

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