New York City - moving closer to closing a nighclub that flouted smoking ban..

March 15, 2010 - Back on January 27, 2010 we reported that the New York City Health Department may close A-list clubs which flout the city's smoking ban. It may be closing time for some of Manhattan's hottest nightclubs, where the young and hip are arrogantly flouting the city's smoking ban. The most egregious offender was M2 Ultra Lounge, the health department said. Undercover inspectors found dozens of smokers in plain sight during five recent visits - and even bathroom attendants selling loose cigarettes for $2. (NY City - gets tough with clubs that do not enforce the smoking ban..)

The Bloomberg administration is now moving closer to shutting one of the largest and busiest nightclubs in the city, as part of an aggressive new strategy to revoke the operating licenses of clubs that health officials believe promote smoking.

The nightclub, the M2 UltraLounge on West 28th Street in Manhattan, went on trial last week at a special administrative court that the city uses when it seeks to take away property. If the case against the club succeeds, it would be the first time the city had closed a business solely for flouting a ban on smoking.

City officials have also moved to take several other clubs before the court, seeking to revoke their food and beverage licenses. It has been an open secret for years among the late-night set that there is a network of so-called smoke-easies throughout the city, from little neighborhood dives to glossy, exclusive boîtes, that let patrons smoke illegally.

Health department officials say that the vast majority of businesses comply with the 2002 law forbidding smoking in clubs and bars, but that inspectors have struggled to enforce it at a handful of high-end places that seem to market themselves as smoker-friendly, some even offering loose cigarettes for sale.

Generally, health officials have looked for signs of active tobacco use as part of their inspections concerning other rules, like those for food safety, and have cited clubs for violations that often result in fines of $200 to $2,000.

The M2 case has gone the furthest. The administrative law judge hearing the case, Alessandra F. Zorgniotti, will make a ruling that will serve as a recommendation to the health commissioner, Dr. Thomas A. Farley. In the trial, which could end as early as Thursday, March 18th the city has introduced photos of people with cigarette packs on their tables or with burning cigarettes held aloft on the dance floor.

But lawyers for the club say the city’s case is flawed, arguing that the undercover inspectors could not know whether the staff had tried to get patrons to stop smoking. The club, which has been under new management since July, submitted reports showing that bouncers had ejected at least two patrons for smoking, and Robert Bookman, a lawyer representing M2, said it had fired the two employees who had been selling loose cigarettes in the bathroom. Mr. Bookman also criticized the city for not going after the smokers themselves, saying that officials were accusing employees of doing what the inspectors do when they see smoking, “which is not doing anything.”

Health officials contend that their obligation is to ensure that the clubs they license follow the law, and that cracking down on the clubs is a more effective deterrent. “The entity is the repeat offender,” Mr. Kass said. “On any given night there might be one person, or 2 people or 10 people or even way more than that, who on their own are welcomed to smoke or allowed to smoke, but they’re not necessarily back the next night.”

Reference: City Tries to Shut Club It Says Flouts Smoking Ban by DIANE CARDWELL, The New York Times, 3/14/2010.

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