The smoky bar scene in Connecticut should be a thing of the past. A statewide smoking ban means customers aren't allowed to light up.
 But a News Channel 8 went undercover to spot check the Friday night scene and in some places we found cigarette smoke still fills the air.
Open the door to some Connecticut bars and you still see smoke curling up from ashtrays, cigarettes dangling from customers' fingertips.

 Undercover video reveals it. People are still lighting up in smaller bars across the state despite a ban on smoking that went into effect in early April.

"You should be able to smoke no matter what bar you go to," says Marjorie Baylor.

Most smokers know it's smoke at your own risk. They can be fined up to $99 if caught.

"I'll pay it, and then the next time I come in if they catch me again I'll pay another ninety dollars.

In some cases we found bartenders smoking, even bar owners, and bars that still put out ashtrays draw loyal customers.

"I've always come here," says Nicholas Boucher. "This bar has pretty much disregarded the whole smoking ban."

We spoke with a Connecticut bar owner about the risks of providing an oasis for smokers. He could be fined or have his liquor license suspended. The bar owner did not want to be identified, but this Vietnam vet spoke candidly about why he's taking a stand against the ban.
"Of course I worry. I don't like breaking the law, but I also believe the law is wrong," he said.

"I own this building which I worked real hard for. Put 30 years of my life into it and if I can't smoke in my own building then something's wrong."

So who's responsible for enforcing the state's smoking ban? It really comes down to the clientele. People can complain about smoking in bars to local and state police. We checked around and found local police departments have only received a handful of complaints.

"It could fly under the radar if no official complaint is made," says Capt. Stephan Verrelli, New Haven Police. "That's really what we would respond to. As we said we're not doing any type of inspections nor do I think the state is doing any type of inspections."

And that's just fine with bar patrons like Marjorie Baylor, who says health hazard or not, a smoky barroom is what she wants on a Friday night.

"Maybe sooner or later they'll realize that a lot of people aren't going to worry about paying ninety dollars to have the freedom to smoke in a bar," she said.

The smoking ban was put in effect to protect employees from the dangers of second-hand smoke.

In a victory for health advocates, a Superior Court judge in Hartford has thrown out a lawsuit that sought to overturn the state's new smoking ban in bars and restaurants.

After the ban took effect in bars in April, four bar owners in southeastern Connecticut filed the suit because they said they were losing massive amounts of business to the Indian-run casinos and private clubs, which allow smoking. The owners said the state's new law was unconstitutional because it exempts private clubs and the casinos - putting the bar owners at a competitive disadvantage.

But Judge Douglas S. Lavine rejected their arguments, saying that the legislature had a rational basis to create the exemptions. The judge granted deference to the legislature, which passed the smoking ban by a wide margin before the law was signed last year by then-Gov. John G. Rowland.

"It is a fundamental proposition that proper respect for the legislature requires the courts to tread lightly when considering the constitutionality of a validly enacted statute," Lavine wrote in a 16-page decision. "It may indeed be that Public Act 03-45 has put the plaintiffs, and others like them, at a distinct competitive disadvantage when compared to certain private clubs and casinos. Under governing legal principles, however, if the law is unfair, it is the legislature, not this court, which must set things right."

Jan Trendowski, the attorney who represents the bar owners, said he intends to appeal to the state Appellate Court, saying he hopes for a different interpretation of the law. He concedes the odds were difficult in a battle against the legislature, which enacted the law at a time when the majority of adults are nonsmokers.

"Overturning a statute is not easy," said Trendowski, who is paid by a coalition of more than 50 bar owners. "From a practical perspective, it was an unpopular fight. ... We weren't looking for damages. We just want to do business. All we want is a level playing field."

Trendowski said the smoking ban has pushed the smokers into the casinos and 440 private clubs statewide - from VFW halls to country clubs.

"The bars that are closest to the private clubs are getting killed," Trendowski said. "What happened here is the smokers simply joined the private clubs. If you look at private clubs, their membership has exploded."

But Blumenthal and health advocates said that the state has the right to improve the health of the workers in bars and restaurants by eliminating secondhand smoke that can cause health problems.

"The key point is that the legislature has the constitutional authority to ban smoking where it does the most health damage to our citizens and workers,'" said Blumenthal, who personally fought for the ban in court. "The decision is a powerful signal to anti-smoking advocates across the nation: The fight against secondhand smoke can succeed."

The judge several times cited the comments of state Rep. Art Feltman, D-Hartford, co-chairman of the legislature's health committee and leader of the House floor debate when the bill was enacted.

When a person is smoking, Feltman said, only half of the smoke enters the lungs, and the other half enters the air - where fellow workers breathe it in. Waiters and waitresses "face twice the risk of developing lung cancer" than other workers, he said.

"Nonsmoking workers in smoking workplaces ingest the equivalent of three-quarters of a pack a day," Feltman said. "More people die from secondhand smoke each year than die from accidents, AIDS, homicides or narcotics. In fact, it's the No. 1 environmental cause of cancer."

The casinos were exempted, lawmakers said, because they believed there would be difficulty in enforcing the ban on Indian land that is deemed a sovereign nation.

But Trendowski charged that the legislature simply lacked the stomach to battle against the political and economic power of the nation's two largest Indian-run casinos, which generate thousands of jobs and billions of dollars in economic activity. He noted that state troopers and liquor-control agents already work at the casinos to enforce the state's laws.

"You can enforce the tax laws and the liquor laws, but they can't tell someone to put a cigarette out?" Trendowski asked. "I'll tell you now - they won't pass a ban on the casinos."

Despite any complaints or an expected appeal, Blumenthal said the judge clearly rejected the arguments of the bar owners.

"This decision is very clear and unequivocal, and the message to the restaurants and bar owners essentially is they will have to live with the ban," Blumenthal said. "There's no question now. This law is constitutional."

Restaurateurs and bar keepers have been asking the state to butt out.

On Friday, four of them took action.

The owner of the Old Corner Cafe in Naugatuck and three other bar owners from southeastern Connecticut filed a lawsuit seeking an injunction to overturn the state's smoking ban.

And, at least two restaurants in Waterbury are considering being a part of it.
 
Owners say business is down some 20-30 percent. They'd like the state to give them the option to chose between being smoke-free, or smoker-friendly. They say it is unfair that smoking is allowed in casinos and private clubs, such as the Elks, Veterans of Foreign Wars or American Legion halls.
 
John Woermer, who owns the Old Corner Cafe on North Main Street, said he and the other bar owners began planning the lawsuit about two months ago.

"I got involved because it's my livelihood," he said, adding a smoking ban should be a "matter of choice" for bar owners. He noted his business has dropped at least 20 percent since the ban took effect in April. Before the ban, patrons filled the bar on Friday nights, Woermer said. About 8 p.m. Friday, the bar was only half full.

Woermer has owned and operated the Old Corner Cafe for 32 years, but a bar has occupied the building continuously since 1911.
Every Saturday since Woermer has owned the bar a group of as many as 20 professional men have occupied a corner table, smoked cigars and talked sports. The group was known as the "board of directors," he said.
 
"The board of directors is down to four or six," he said.
 
Sitting on a bench outside the bar and smoking a Marlboro Light, Joe Brown, 67, said he's been coming to Old Corner for 32 years. He won't stop coming, but feels the smoking ban infringes on his rights.

"Why didn't this thing go to referendum?" he asked. "Why did they (the legislature) take it in their hands to decide for the state of Connecticut?"

Brown suggested putting the names of the legislators who voted for the ban on the Internet so those against it "can vote them out of office."

"I definitely would consider it (joining the suit)," said Phil Nargi, owner of the Circa Bistro on Bank Street in Waterbury. The upscale restaurant offers fine dining and music, but smokers must go outside to light up.
 
Nargi, a smoker himself, said business dropped 20-30 percent since the ban began nine months ago.

"Why should casinos have it?," he asked. "I don't believe they are protected by this tribal baloney. I don't have people coming in like they used to because they like to smoke. No one can sit at the bar and smoke. It is unfair and I don't think the government should tell you what to do if they don't compensate for the loss of business. Who makes up these idiot laws? They don't have my bills."

Mary Croke, the bartender at the Turf Restaurant on Grand Street in Waterbury, used to light up her Marlboro Lights while serving customers. Now she has to join them out front for a smoke.

"I respect not smoking around people who are eating," Croke said, adding that smoking should be allowed inside after dining hours.
Croke's boss, Marty DiVito Jr., said he's had a 25-30 percent drop in business since smokers were forced outside.
 
"I've lost business," DiVito said, whose father, Marty Sr., opened the bar in 1966. "The lunch business picked up, but the bar business dropped."

He said if his loyal customers left, business would have dropped even more.
 
"People are starting to come back now because they can't smoke in cafes now, either," said DiVito while making loaves of homemade meatloaf for the lunch crowd.

Connecticut's smoking ban went into effect Oct. 1 and ordered restaurants and workplaces with five or more employees to be smokeless. Six months later, bars, including bowling alley lounges and off-track betting parlors, followed suit.
 
Lawmakers have exempted private clubs and 25 percent of the rooms in hotels.Outdoor seating areas in restaurants and so-called "cigar bars" are also exempt.

"To be honest, when restaurants had to stop before cafes, that hurt, and people said they would go where they could smoke," said DiVito, who is a non-smoker.
 
He said the state should give restaurant owners the option of being smoking or non-smoking.
"If the ship is going to sink, that should be our decision."

At T-Pic's on West Main Street in Waterbury, Anthony Piccochi called the smoking law ridiculous. His son, Anthony Jr., owns the bar and restaurant.

Piccochi said "It is killing business. We're down 25 to 30 percent since it started."

Piccochi, a Democratic alderman in Waterbury, said he spoke to state Sen. Chris Murphy, D-16th District, last week asking him to do something about the ban.

"If it is not appealed, instead of (forcing) no smoking, leave it up to the individual owners to have a smoking or non-smoking bar," Piccochi said.

He would even consider paying for a state smoking license.

"That is the fairest way. To say they did it for employees ... the Elks has more employees than we have here. Private clubs have more employees. Yet, they are allowed."

Piccochi said he'd bet 95 percent of the legislators who passed the law belong to private clubs and that's the real reason those establishments are exempt.

"Go to the Capitol. They have a smoke room in the building with no ventilation. But you can't smoke in a bar that has windows and doors," said Piccochi, who'd join others in the lawsuit.

Mark DeSanti, owner of The Place on Water Street in Torrington, said he supports the lawsuit. "I absolutely lost business, probably a good 40 percent, easy," he said.

DeSanti said many of his friends are now going to clubs.

"No one in the club has to make a living. I got to make a living to survive, but they don't. If they close, no skin off their noses if no one comes back. They (clubs) sell drinks for half the price and can smoke in there."

DeSanti also thinks the state should give bars and restaurants the option of being smoke-free.
 
"What happened to freedom of choice? If you know it is a smoking bar, no one is pushing you through the door," he said.
 
Attorney General Richard Blumenthal defended the ban and said the lawsuit "is completely unfounded, even frivolous. This lawsuit offers a very false hope to any establishment owner who may think that a court will strike down this clearly valid public health measure. The legislature acted properly to ban smoking in establishments that serve the vast majority of the public."

Owners of the Nowhere Cafe and the Sundowner Restaurant, both in New London, and the Plan B Cafe in Uncasville are also listed as plaintiffs in the lawsuit.
 
The two sides are scheduled to be in Hartford Superior Court on July 26.

The Associated Press contributed to this report.

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