Where an ashtray is a crime

Clyde Haberman/NYT
  NEW YORK
Here is a story about Casey Stengel and a smoking pipe, from the days when he was a ballplayer, some 90 years ago.
He was on a train one day. Clenched in his teeth was a pipe - unlighted. The conductor came along and told him that smoking was not permitted. Stengel protested that he wasn't smoking.
"You've got a pipe in your mouth," the conductor said.
Stengel replied, "I've got shoes on my feet, but I'm not walking."
The reason for dredging up this yarn is what it says about a latter-day New York City law. If it is possible to wear shoes yet not be walking, can you have an ashtray but not be smoking? The answer, obviously, is yes. But under the city's antismoking law, that means nothing.
As some New Yorkers have learned the hard way, the mere existence of an ashtray in a place where smoking is prohibited can lead to a summons. It doesn't matter if the ashtray is stored well away from public areas. It doesn't matter if it is used as a decoration, or to hold paper clips or M&M's. No ashtrays are allowed, period.
The reason is simple, said Sandra Mullin, a spokeswoman for the city's Department of Health and Mental Hygiene. An ashtray might be taken by some people as an invitation to light up. "Not having ashtrays and putting up no-smoking signs are two of the strongest ways to discourage smoking and to let people know what the current law is," Mullin said.
Since May 1, when the health department began to enforce the law in earnest, about 2,300 summonses have been issued, she said. A little more than 200 were for ashtray violations. These are hardly huge numbers. Still, some of the summonses are enough to make one scratch his head.
In Brooklyn Heights, a video-store owner got a ticket for having an ashtray that he says he used only to help a customer who had walked in with a lighted cigarette. She had to put it out in something, no?
Graydon Carter, the editor of Vanity Fair, received a summons because of ashtrays in his Times Square office. Inspectors, who had gone there on a complaint about smoking, found no one puffing away. But they did spot the ashtrays. That was enough.
"I keep them around to remind me of my youth," Carter said. "They had not been used and did not have cigarette butts in them when we were fined."
One more thing: "Any city that allows you to keep a loaded gun in your office but not an ashtray," he said, "is one with its priorities seriously out of whack."
Many feel the same way at the Players, the theater-themed club on Gramercy Park South. As first reported in The New York Post the other day, health officials, acting on an anonymous tip, insisted last week on inspecting the office of the club's executive director, John Martello.
They found no one smoking. But - shades of Eliot Ness on the trail of rum runners from Canada - they came upon three ashtrays on a shelf behind a desk.
"They were there just to get them out of the way," Martello said. "We had to get them out of the public eye. They were collected. Who thinks about throwing them out?"
"I think what I was most appalled about," he said, "was the constitutionality of them being able to come in and search my office. Unlike the police, they don't need a search warrant. They just walked in on an anonymous tip."
Mullin admitted that "there is some discretion offered to our inspectors."
"If we do see stacks of ashtrays," she said, "it is tantamount to the potential that people are permitting smoking."
But to Richard Farley, a lawyer who is advising the Players, the real issue is "Where does this end?" Can these people show up," Farley said, "and disrupt your law firm, your psychiatrist's office, your religious meeting, on the pretext that you're violating this provision of the smoking law?"
It is possible, in the opinion of those challenging this strict application of the no-ashtray rule, to be overzealous in pursuing virtue. One doesn't always get the desired results. Another Caseyism comes to mind, this one from the 1950's, when Stengel was the manager nonpareil of the Yankees.
"Look at him," he said of a ballplayer. "He doesn't drink, he doesn't smoke, he doesn't chew and he doesn't stay out late.
"And he still can't hit."