COUNCIL OF THE CITY OF PHILADELPHIA COMMITTEE ON PUBLIC HEALTH AND HUMAN SERVICES - - - Room 400, City Hall Philadelphia, Pennsylvania Wednesday, September 27, 2006 10:25 a.m. - - - PRESENT: COUNCILWOMAN MARIAN B. TASCO, CHAIR COUNCILMAN W. WILSON GOODE, JR. COUNCILMAN BRIAN J. O'NEILL COUNCILMAN JUAN RAMOS COUNCILWOMAN BLONDELL REYNOLDS BROWN COUNCILMAN FRANK DiCICCO BILL 060583 - An ordinance amending Chapter 10-600 of The Philadelphia Code, entitled "Public Places - Prohibited Conduct," by prohibiting smoking in public places and in the workplace, and providing for penalties, all under certain terms and conditions. - - - V A R A L L O Incorporated Litigation Support Services Eleven Penn Center 1835 Market Street, Suite 600 Philadelphia, Pennsylvania 19103 215.561.2220 215.567.2670 2
Good morning. I'd like to call the Committee on Public Health and Human Services to order and state that we have a quorum and the presence of Councilman O'Neill, Councilwoman Blondell Reynolds Brown, Councilman Goode and yours truly, Councilwoman Tasco. Seated at the table will be Councilman Frank DiCicco. We'd now like to announce, anyone who wants to testify for this bill 13 should come over to this table and leave your name so we can add you to the witness list. If you want to testify on this piece of legislation, go over to this table and sign up. We'll now have the reading of the bill.
Bill 060583, an ordinance amending Chapter 10-600 of The Philadelphia Code, entitled "Public Places - Prohibited Conduct," by prohibiting smoking in public places and in the workplace, and providing for 3 9/27/06 - PUBLIC HEALTH - BILL 060583 penalties, all under certain terms and conditions.
Before we begin the testimony, Councilman DiCicco has a statement he'd like to make. COUNCILMAN DiCICCO: Good morning, and thank you, Madam Chair, for the opportunity to speak. For the benefit of the press and those who are in the audience, I want to explain why we're here today. Last June when the smoking ban passed, Councilman Nutter made two additional concessions, one being to delay the implementation of the bill 17 until January '07, the second being to delete the waive expiration date or, as some call it, the phase-in for small drinking establishments. We are not here today to debate whether or not we should have a smoking ban. Council passed the bill and the Mayor has signed it into law. Like many, I am a bit confused and disagree with the 4 9/27/06 - PUBLIC HEALTH - BILL 060583 Mayor's decision to begin enforcement as he has done earlier this week, but I recognize that what he has done is within his discretion, and I hope that, assuming that this bill is voted out of Committee, he'll delay further enforcement action until June. In addition, I want to offer an amendment to the bill on the floor. The amendments differ slightly from what was distributed yesterday, but all members of your committee, Madam Chair, have copies of it and have been distributed this morning. The amendments are as follows: Changing the definition of "drinking establishment" by altering the gross food sales percentage from 10 to percent. 19 When Councilman Nutter and I 20 first began compromising on this bill, we both agreed to the 20 percent, and this was about several months ago, maybe December or January. I don't recall exactly what the date. There were members of City Council who were not in 5 9/27/06 - PUBLIC HEALTH - BILL 060583 agreement with the 20 percent. I had then reluctantly agreed to the 10 just to get the bill moving. Subsequent to that, those members who had wanted originally percent had changed their mind and 7 decided to vote against the compromise. 8 In addition, there has been a 9 good deal of confusion about this 10 provision. The State Liquor Code requires that an establishment's gross sales of food and non-alcoholic drinks must be 30 percent to qualify for a Sunday sales license. This provision requires percent sales of food only. 16 Therefore, an establishment could qualify 17 for a Sunday sales license and a smoking 18 ban waiver if 20 percent of their sales 19 result from food and 10 percent sales 20 result in non-alcoholic beverages. Also, I have stated publicly and I've spoken to some of our legislators that the Sunday sales requirement, in my opinion, in Philadelphia should be amended to make 6 9/27/06 - PUBLIC HEALTH - BILL 060583 the City's requirements match the rest of the State's. Changing the definition of "private club" is another amendment by deleting the not-for-profit condition. Several private clubs in the City are not not-for-profit corporations. An example is the Pyramid Club. The members of these clubs should still be able to make their own decisions regarding the smoking ban. Inclusion of sidewalk cafes in the smoking ban. This was included at the request of the Administration and had been agreed to over the past several months during Council's break. Deletion of the audit provision allowing the City to explore any establishment's books. In my opinion, it is an unfair requirement and not necessary for enforcement. Additionally and finally, deletion of the grandfather clause for specialty tobacco establishments. Under 7 9/27/06 - PUBLIC HEALTH - BILL 060583 the current version, no new cigar bar would be permitted to open up in the City of Philadelphia. I believe this establishes a monopoly for existing establishments and I believe it to be unfair. Thank you, Madam Chair, for the opportunity.
Thank you very much. Any other comments from members of the Committee before we go to the testimony by the public? Councilman O'Neill.
Without going through each of the amendments, is it fair to say that what the Mayor signed last week has exemptions for bars at the 10 percent and private clubs, but it's a temporary exemption? Even if they get it, it has an expiration date? COUNCILMAN DiCICCO: That's correct.
And this 8 9/27/06 - PUBLIC HEALTH - BILL 060583 would, with some changes in definitions, make those exemptions permanent? COUNCILMAN DiCICCO: Would make it permanent.
Thank you. COUNCILMAN DiCICCO: The original bill, which was introduced two years ago, the clock began ticking. And that bill, the effective date I believe would have been '08. We've exhausted one calendar year, which means it would be only one year left on that exemption, but we're asking it to be permanently removed.
So there would be a phase-in under the current law? COUNCILMAN DiCICCO: Correct.
Then there would be no phase-in; it would be a permanent exemption? COUNCILMAN DiCICCO: Correct.
Thank you very much. Any other questions? 9 9/27/06 - PUBLIC HEALTH - BILL 060583 (No response.)
There being no further questions, we now call on the Health Commissioner, Ms. Carmen Paris, or her representative to come forth to testify. Good morning. Would you state your name for the record, please. COMMISSIONER PARIS: Good morning, Chairwoman Tasco, members of the Committee of Public Health and Human Services. I am Carmen Paris, Interim Public Health Commissioner for the City of Philadelphia.
Proceed. COMMISSIONER PARIS: I appreciate the opportunity to present testimony today on Bill 060583, which would amend Chapter 10-600 of The Philadelphia Code, The Clean Indoor Air Worker Protection Law. This bill would eliminate a one-year limit on exclusionary waivers for certain classes of drinking establishments and revise the 10 9/27/06 - PUBLIC HEALTH - BILL 060583 effective date of the law. Exposure to tobacco smoke is clearly a public health issue, the harmful effects of which are well known and documented. My predecessors and I have spoken about the issue before Council in the past and I will not go into the statistics at this time. The Department of Public Health through its Tobacco Control Unit has in place initiatives to increase awareness of the harmful effects of tobacco smoke, reduce the number of individuals who smoke and reduce exposure to secondhand smoke. Passage of The Clean Indoor Air Worker Protection Law was a monumental step in controlling exposure to secondhand smoke, protecting persons who are customers of eating and drinking establishments, other businesses and the employees who breathed dangerous secondhand smoke in their workplaces every day. The more we can do to prevent 11 9/27/06 - PUBLIC HEALTH - BILL 060583 smoking in the first instance and to encourage smokers to quit, the better the health of individuals and the health of the community in general will be. Passage of The Clean Indoor Air Worker Protection Law was a significant action that will clearly assist the Department of Public Health in increasing awareness of the harmful effects of smoking, reducing tobacco use and lessening exposure to secondhand smoke for Philadelphians. Thank you for the opportunity to present testimony on this important issue. I will now answer any questions.
I just didn't quite hear whether you support the bill as it was passed and signed by the Mayor or whether you support these amendments which make the exemptions in certain clubs and bars permanent. 12 9/27/06 - PUBLIC HEALTH - BILL 060583 COMMISSIONER PARIS: We will support any amendment that is more inclusive.
What does that mean? COMMISSIONER PARIS: It means that, for example, currently sidewalks are exempt. We support any amendments that will include rather than exclude the different establishments.
Okay. Maybe we can do this by example. Would you support a permanent exemption for private clubs even though right now it's only a phase-in before the ban would occur in private clubs? Which do you support, the non-smoking in private clubs or smoking in private clubs? COMMISSIONER PARIS: As it stands and as it was signed by the Mayor, it gives private clubs a year on which they will be waived of such action, and we are in support of that.
So you're 13 9/27/06 - PUBLIC HEALTH - BILL 060583 not in support of the amendment that would give them a permanent exemption and allow smoking in private clubs entirely? COMMISSIONER PARIS: That's correct.
And with the percent or percent bars in 9 terms of the food percentage, right now 10 it's a phase-in, just as you said, with 11 the private clubs but would become a 12 permanent exemption. Are you against the 13 amendment today that would give them a 14 permanent exemption? 15 COMMISSIONER PARIS: It will 16 not be -- it really will not make such a 17 significant difference, the percentage in 18 terms of the number of establishments. 19
I'm not 20 talking about the percentage. I'm talking about the permanent exemption versus the one-year phase-in of the prohibition. COMMISSIONER PARIS: We wouldn't have a problem with that. 14 9/27/06 - PUBLIC HEALTH - BILL 060583
I don't understand you. When you say you don't have a problem, you're in favor of a permanent -- COMMISSIONER PARIS: We will support that.
-- a permanent exemption? So all the workers and all the people that go into the bars would have an exemption forever from our non-smoking. COMMISSIONER PARIS: No. No. 14 I apologize.
That's what I'm trying to get at. COMMISSIONER PARIS: I apologize, sir. I apologize. We will not support a permanent waiver.
Permanent exemption for establishments. So you're against that amendment also? COMMISSIONER PARIS: That's correct.
The 15 9/27/06 - PUBLIC HEALTH - BILL 060583 amendment you're for is expanding the sidewalk cafe exemption? COMMISSIONER PARIS: For a permanent exemption.
Is that the only amendment you're in favor of today? COMMISSIONER PARIS: We are not going to be supportive of permanent exemptions.
But is the only amendment that you're in favor of the expansion of the prohibition on sidewalk cafes making them non-smoking entirely? Is that fair to say? Is that the only thing you're here to testify in favor of today? I don't understand the puzzle. What are you supporting that's before us today? I just found two areas that you're opposed to. I'm just trying to find out --
Let me just say this. 16 9/27/06 - PUBLIC HEALTH - BILL 060583
Have you seen the amendments that have been proposed by Councilman DiCicco? COMMISSIONER PARIS: Prior to --
All of them. He just had some this morning. COMMISSIONER PARIS: No. We have not been privy to them.
So you shouldn't answer questions if you haven't seen the amendments. Have you talked to the Mayor about the proposed amendments? COMMISSIONER PARIS: What we have --
Have you talked to the Mayor about the proposed amendments? If you haven't seen them, have you talked to the Mayor about them? If you haven't, I think you should just limit your testimony to what you have there and not answer questions about the 17 9/27/06 - PUBLIC HEALTH - BILL 060583 amendments if you haven't seen them or discussed them with the Mayor. COMMISSIONER PARIS: Yes, ma'am.
Without being specific to any amendments today, the bill that's in front of us, you addressed both issues on the permanent exemption versus the phase-in, that you're against those. Without looking at the amendments, what did you come here today in favor of or in support of? COMMISSIONER PARIS: We are in favor of the bill as it was signed on September 14th where we are giving the opportunity to establishments of signing in a waiver that would allow them to operate as smoking facilities for a year.
Is it fair to say you're against changing the bill 22 that was passed by the Mayor unless it was more restrictive? COMMISSIONER PARIS: That's correct. 18 9/27/06 - PUBLIC HEALTH - BILL 060583
Thank you very much. The Chair now calls Michael Berardi of Morrell Tavern. (No response.)
Philadelphia Hospitality and Business Alliance? (No response.)
Philadelphia Hospitality and Business Alliance, Ken Sweeney, Joe Dempsey, Ray Flaville and Tom Coney? UNIDENTIFIED SPEAKER: Excuse me, Councilwoman. The bottom five are supposed to be announced first.
All right. 19 9/27/06 - PUBLIC HEALTH - BILL 060583 We'll go to the next group. John Stanton, Ray Swerdlow, Dennis O'Connor, John Wagenmann and Emery Dawes. Good morning.
You'll identify yourself, please, for the record and spell your name, please.
It's Johna, J-O-H-N-A. Last name is W-A-G-E-N-M-A-N-N. I'm the owner of McNally's Tavern.
Would you speak into the microphone. Pull it forward to you. Thank you. We can't hear you. Okay. Would you proceed.
You're 20 9/27/06 - PUBLIC HEALTH - BILL 060583 from where? I couldn't hear you.
I know that we're not here to actually talk about the smoking ban. If there's any way that we can stop it, I'm in a small tavern. I have less than 50 seats in my tavern. Eighty-five percent of my people smoke. I need to be open on Sundays to actually make my own business. I would like to try and find out more information about the waiver, which is one of the reasons why I'm here. I would like to be at least informed exactly what this bill is. I know yesterday I've read in the paper that I should be getting my information from the media. I watched the news two days ago and Mayor Street said that he was going to be sending us information out. I think that small businesses 21 9/27/06 - PUBLIC HEALTH - BILL 060583 in the Philadelphia area need to make their own decision as to what they want to do. In our society if people want to smoke, they will go to an establishment where they can smoke. If people don't want to smoke, they can go to an establishment where they don't want to smoke. (Applause.)
Are there any questions from members of the Committee? Councilman DiCicco. COUNCILMAN DiCICCO: Thank you. Good morning. You have a small tavern, you said.
Neighborhood bar. I'm concerned about my neighbors. COUNCILMAN DiCICCO: I understand. Do you have a Sunday sales license? 22 9/27/06 - PUBLIC HEALTH - BILL 060583
Yes, I do. COUNCILMAN DiCICCO: Without getting into your personal business, do your food sales exceed percent? 6
I would have to 7 look exactly how my accountant has put 8 some of our things and where we do our 9 beverages and that type of thing. 10 COUNCILMAN DiCICCO: Let me 11 explain what we're attempting to do with 12 these amendments, because a number of us, 13 including myself, for a number of years 14 have been holding out as best we could on 15 any kind of a ban, but things have 16 changed obviously, and one of the things 17 that was on most of our minds was 18 protecting or giving the opportunity, if 19 you will, for local neighborhood, I refer 20 to them as shop and beer joints -- that's where I hung out and still hang out in whatever few are left in my neighborhood -- the opportunity to continue to make certain decisions, including the smoking, but also allow for 23 9/27/06 - PUBLIC HEALTH - BILL 060583 them to be open on Sundays. So what the amendment would do if it's voted out of this Committee favorably, and hopefully there's nine votes to get it passed, would allow for your establishment to have food sales up to percent. The other 10 percent that 9 gets you to the 30 that you need to 10 comply with the State Sunday sales 11 license could be made up with 12 non-alcoholic beverages. I don't know if 13 you sell T-shirts and things that 14 advertise your establishment. You'll get 15 to the 30 percent. 16 Assuming you get to the 30 17 percent, which I think you will be able 18 to -- I think I understand the type of 19 business you have -- you'll be able to 20 stay open on Sundays and you can make your decision whether or not you want to permit smoking in your establishment.
That's what I would love to see. COUNCILMAN DiCICCO: There will 24 9/27/06 - PUBLIC HEALTH - BILL 060583 be a waiver form that I haven't seen yet that's obviously being worked on by the Law Department and the Health Department, I would assume. Then there would be proper notification. We all admit this is very confusing. I didn't even know about it. But sometimes things happen that way, and we're here to try to hopefully eliminate that confusion and set the record straight, and hopefully, again, if these amendments come out of this Committee favorably and we get the nine votes, I believe, without knowing what your books like look and how your accountant handles it, in your case -- and it may be a leap of faith that I'm taking -- I believe that you would qualify for the waiver and you'd be able to operate on Sundays and if you choose to let your patrons smoke, they would be able to continue to smoke.
Thank you 25 9/27/06 - PUBLIC HEALTH - BILL 060583 very much for your time and testimony. Yes, sir. Would you identify yourself for the record.
Yes, ma'am. My name is Emery Dawes. I own Dakota's Saloon up in the Port Richmond area. I'm probably going to be repetitive of all these people up here, but I want to just bring this Council aware. I didn't know that this other amendment was coming through that the Councilman had said, but just to give you a little idea of what happened to me yesterday. Now, I own a little bar, just like this young lady. My biggest day is Sunday. I mean, I could close all week. My biggest day is Sunday. The Philadelphia Eagles are on, everybody comes to the bar. We run a little promotion. We do things like that. The bar across the street -- because we all know, Philadelphia is a very unique situation here. We have bars on every corner. They have little 9/27/06 - PUBLIC HEALTH - BILL 060583 smoking in New York, California. I've been near Delaware. They're not set up like Philadelphia with bars on every corner. But I talked to the man across the street. Naturally he wanted to see if I took the ashtrays off the bar, which we did. He did also. He said to me, You know what I'm going to do? He says, Because they're talking about an amendment where -- or not amendment. What do you call it? Waiver for people that if you only sell 10 percent of food -- he says, I sell a little food -- he says, I'm going to close up on Sunday. I don't care. Now, I have to keep -- and he'll be allowed to let people smoke. Now, if I want to stay open Sunday for the Eagles for my biggest day, I got to tell my customers they can't smoke. So all week they're going to go over there and smoke all week and they're not going to come to my place anymore. 27 9/27/06 - PUBLIC HEALTH - BILL 060583 It's not fair -- it's got to be a permanent waiver, like this gentleman had said, this Councilman has said. You got to help us, I mean, the percent and 6 the 10 percent or you're going to put 7 everybody out of business, because the 8 waivers that you're going to give out to 9 these bars, a lot of guys don't want to 10 open on Sunday. It's their day off. And 11 you're going to kill us. You're going to 12 put me out of business, and I've been in 13 business for 30 years. 14 But like I said, my customers, 15 99 percent of my people -- I could have 16 them sign for, they're smokers. I don't 17 smoke. I would like -- but unfortunately 18 you could put me out of business. 19 If it went through like 20 California or New York and everybody couldn't smoke, that's fine, but you can't do this. You got to -- these people got to -- there was actually Monday, there was actually almost a fight in my bar when my bartender told a man he 28 9/27/06 - PUBLIC HEALTH - BILL 060583 couldn't -- and he was a take-out customer. He wasn't sitting at the bar. He came in smoking a cigarette and said, Can I have a six-pack to go? We said, You can't come in here with a cigarette. He got real nasty. I mean, there's this type of people in our neighborhoods, you know. So, I mean, you got to go with this Councilman's recommendations that the rest of the people, they got to get on board and help us out. I mean, we do pay a tremendous amount of taxes.
Thank you. Would you identify yourself for the record, please.
Yes. Good morning. My name is John Stanton. I'm President of the License and Beverage Association for the City of Philadelphia and I'm owner of Whiskey Tango. 29 9/27/06 - PUBLIC HEALTH - BILL 060583
I'd like to start off by saying that this whole issue started off as a health issue when Councilman Nutter first put in for this bill and it seems that it's evolved into a non-health issue anymore. We were always in support that there was going to be a smoking ban to have a total ban. We've always agreed with Councilman Nutter and Councilman O'Neill that wanted to have a total ban, which makes it a fair, level playing field for everybody. But, of course, initially we were against any ban at all, but if there is going to be a ban, the 90 percent/10 percent ratio is just really not going to work out for any of us, and I'm glad that this morning we acknowledged that with Councilman DiCicco's offer of a 20/80 percent. And I understand your point about doing the food sales as compared to soda and water and non-alcoholic 30 9/27/06 - PUBLIC HEALTH - BILL 060583 beverages, T-shirts and things like that. With a quick thought, I might actually be able to qualify under a stipulation like that, but I'm not too sure that most bars will. Not many places sell a lot of non-alcoholic beer. I do. I sell T-shirts. I sell other things like that that could help me qualify for that, but it may not be able to cover enough establishments. So if there is going to be a ban, which apparently there is, we just want to try to look at the big picture and make it what's best for the entire city and all the people here. The 70 percent/30 percent would match up with the State law with the requirements for the Sunday sales license, which, again, with Councilman DiCicco, that would be great if we can make that fair, because I'd just like to remind Council of some of the other laws that are in effect that affect our businesses only in the City of Philadelphia. 31 9/27/06 - PUBLIC HEALTH - BILL 060583 Only bar owners in the City have to pay a percent liquor tax for 4 every drink that we sell. Only the City 5 of Philadelphia, I believe, pays 7 6 percent sales tax instead of 6. Act 39, 7 which is a State law and a State-enforced 8 law by the Liquor Control Enforcement 9 Agency, only affects the licensees of the 10 City of Philadelphia, which is an enhanced point system with strict penalties, stricter penalties than anybody else in the State for violations. We have take-out restrictions and extra permits that need to be applied for and paid for by only the City of Philadelphia and relieve the rest of the State of that 30 percent requirement for Sunday sales license, which, again, just doesn't seem fair to me. These are all obstacles that we as Philadelphia bar owners have to deal with and overcome, especially particularly me. I'm on the very end of Northeast Philadelphia. I corner Montgomery and Bucks Counties and 32 9/27/06 - PUBLIC HEALTH - BILL 060583 I get a lot of business from those counties. People come into the City and spend their money, and obviously the City benefits from those tax revenues from those people coming from out of the City limits. That may stop after this, because there are many bars within just a few miles of mine that they can now frequent to and not have to worry about the smoking ban. I just hope that we can only compromise and be able to meet somewhere in the middle, maybe the 80/20 or the 70/30, because larger bars like mine -- my occupancy right now is currently 900 people, and I frequently on Fridays and Saturday nights have 600 to 800 people on average. My biggest fear is that at any given time, you could have 100 to 200 people outside catching a cigarette when there's 600 total inside. It's not too far to imagine. I've known bar owners now that only hold 30 or 40 people and there's 10 or 15 people outside. 33 9/27/06 - PUBLIC HEALTH - BILL 060583 A large portion of my clientele do smoke, and I need to appeal to a large array of people. So a smoking ban will kill larger places like mine, and there's a lot of them in the City that all have these same issues.
And the nuisance issues nobody seems to have an answer for what am I going to do when I have this issue of people smoking out in the parking lot. I'm not really sure what it is I'm going to do. It's going to be a problem. I know we don't hear about it in other cities and states where they passed laws like this, and I don't know why, because I'll guarantee you -- Councilman O'Neill is very familiar with my situation and my neighbors -- there's going to be problems, and I'll deal with them as best I can, like I always have, but I just hope Council can take into consideration these nuisance issues that are going to be issues. We would also like to see -- I know City Council maybe has no influence 34 9/27/06 - PUBLIC HEALTH - BILL 060583 on this, but we'd like to see a state-wide total ban, something that's a little more fair for everybody. And I'm not sure where that stands right now. I know we've been lobbying up there and attending meetings, and we'll see how that goes. But to sum it all up, I'd just like to say hopefully we would like to come to the 70/30 ratio instead of the 90/10. Even the separate room idea with separate ventilation, I'm not even sure if that's still alive, but I know some places were even in support of that. And let's try to work together on getting the state-wide ban, if at all possible, and please give us three to four months of a transition time so we can implement this law to create any other unforeseen situations that may come up from it. Thank you.
Thank you very much. (Applause.) 35 9/27/06 - PUBLIC HEALTH - BILL 060583
Madam Chair, I have to leave the Chamber. I may not be back before the end of the hearing. I'd like to leave a no vote on both the bill and the amendments. Thank you.
Okay. Thank you very much. Thank you very much for taking your time to come down and testify.
Thank you, Councilwoman Tasco, for allowing us, we the people, to express some opinions about this bill. I'm from McGillin's Olde Ale House, which is the oldest tavern in the City of Philadelphia, and we will have -- the smoking ban according to the law will apply to our 36 9/27/06 - PUBLIC HEALTH - BILL 060583 establishment. I don't mean to be flippant, but as one of my waitresses said to me last night as she puffed a cigarette 6 feet from the entrance, We've survived 7 prohibition, two world wars and the 8 Depression and our industry survived. 9 She said, We did without men during the 10 wars, we did without money during the 11 Depression and we did without liquor 12 during prohibition. 13 My objection to this bill in 14 any way is a lack of clarity and a lack 15 of parity. The clarity is quite obvious. 16 We were not notified specifically what we 17 should do, how we should do it, when we 18 should do it. I heard through the news 19 media. And I would just like to thank 20 you all, and Councilman DiCicco in particular because he represents our district, for considering amendments to this bill. Councilman O'Neill had asked for specifics. The problem I have with 37 9/27/06 - PUBLIC HEALTH - BILL 060583 this is, everybody focuses on the size of the bar. You keep saying the neighborhood bar, and my colleagues who were in front of me from Port Richmond that might have one or two employees or my colleague from the Northeast who has 60 or 100, the size isn't what's included in this bill. Let me be specific. If I have a big bar in or near a sports stadium and I'm doing $100,000 in business a week and I do 9 percent food, that's $9,000, I get an exemption presently. People keep using the term "neighborhood bar," and I really feel for neighborhood bars, my colleagues in those bars, but it's not the size. Where if I have a large club that has a rock and roll band on a Friday night and I'm a club and it benefits Iraqi veterans or something, I can do $100,000 of business there and get an exemption. I think whenever we start to craft bills and laws, we have to be sure 38 9/27/06 - PUBLIC HEALTH - BILL 060583 that they affect everybody equally and there's parity and enforceability. If you were a school board and you say to a principal, There's no smoking in schools, except seniors who are right-handed or seniors who wear glasses, they may smoke in a certain designated area. Finally, I want to know who enforces this 20-foot rule in front of my bar. For example, I just walked through a cloud of smoke getting into City Hall right in front of the office. I can go into an office building, a bank building, and who says anything? And yet am I supposed to send my men out and, as the other fellow said, get involved in an altercation or a fight because someone is smoking five feet from my entrance or 19 feet or 17 feet? My bar is a little larger. I'm not here representing any organization. I'm just telling you and sharing with you the difficulties. In the bathrooms, if I go to my 39 9/27/06 - PUBLIC HEALTH - BILL 060583 bathroom -- and I was in a casino last week, and they're all smoking. They're not allowed to smoke one place. They can smoke in other places, but even in the bars, they were in the bathrooms. Now, am I supposed to go in and send doormen in or call the police? We have a problem with guns in the street and we have a problem with homeless. My son was confronted twice last night with situations taking a train by aggressive homeless people. We have so many difficulties, and I think when you go down these areas of exemptions and who is not, who can -- casinos, are you going to allow people who work in casinos to be exposed to secondhand smoke but yet my bar where we're serving food, my employees are entitled to this protection? So, again, I thank you for taking time to consider some exemptions. We all realize smoking is bad for us.
It's the level of smoke, the secondhand 40 9/27/06 - PUBLIC HEALTH - BILL 060583 and the enforcement and how we're going to do it and whose job it is, and we share this responsibility with the Board of Health and with the police ultimately. We just want some clarity, moral clarity and legal clarity in terms of what is expected of us as business operators. It's hard enough as it is. One final thing, I want to point out to you that the liquor tax does benefit the School District of Philadelphia. So if a man or woman legally adjusts the sales of their business from -- let's say they're doing $10,000 a week in business and they say you're doing $3,000 in food -- you're doing $1,000 in food sales and $9,000, the School District gets 10 percent of that $9,000, which is $900. You're only getting one percent of the $1,000. Now how do you adjust it? Well, just like that big bar at the stadium, you just limit your operations where you serve food. You can serve more food, you can 41 9/27/06 - PUBLIC HEALTH - BILL 060583 serve less food, you can raise your prices, you can make it inaccessible. So all these exemptions -- and the School District is the one that will suffer if bars sell more food to get the exception, and then the big bars might get all the business because they're going to be allowing smoking. I mean, it's just -- I wouldn't even tell you the complexity of this issue from an operator's point of view. And my competitor, my so-called little competitor around the corner is doing 50,000, he's allowing smoking and all my people are going there to smoke. It's something that -- it happened so quickly, and I know everybody focused on the issue of is smoking healthy instead of how are we going to do it, and that's the problem I have with the bill. Thank you for hearing my testimony.
Thank you 42 9/27/06 - PUBLIC HEALTH - BILL 060583 very much. (Applause.)
Yes. My name is Dennis O'Connor from Kelliann's Bar and Grill. I have a small bar. It seats 50 people, and I do about 30 percent in food and so, therefore, under the current law, I can't allow smoking. It's really killing my business so far. I mean, my business --
I'm sorry. My business so far this week is down 18 percent and it's only been two days. And 19 I'm also concerned about my neighbors 20 being upset about people outside smoking, littering. You have to be 20 feet from the bar, stand in front of someone else's home, make a noise, littering. And it's very difficult to police people outside of your own establishment. 43 9/27/06 - PUBLIC HEALTH - BILL 060583 We pay a lot of taxes, percent liquor tax, and it's hard enough to make ends meet right now, but with this as the law weighs, with percent 6 to allow smoking and you have to close 7 Sunday, which is not an option for me. 8 That's about it. Thank you. 9
Thank you. 10 Councilman DiCicco. COUNCILMAN DiCICCO: Thank you. And thank all of you for your testimony. You say you do about 30 percent food sales?
Yes. COUNCILMAN DiCICCO: People's habits change. I mean, it's very likely that you may not be selling as much food next month as you are this month because, for whatever reason, people aren't eating as much. We're all health conscious and people are on diets. You may be selling 20 percent in food. And then do you sell T-shirts and other souvenir stuff?
Yes. 44 9/27/06 - PUBLIC HEALTH - BILL 060583 COUNCILMAN DiCICCO: Which could conceivably add up to percent? 4
I'm confused 5 about this waiver about -- 6 COUNCILMAN DiCICCO: We're 7 going to do our best to clarify that, as 8 the previous speaker mentioned, and we'll 9 do our best. I think once this package 10 is finally complete, and we're all hoping that it's soon, trust me, we're hoping it's as soon as you guys do and ladies do as well, and I think once that package is put together, I think it will be less confusing. The confusing thing is that it happened unexpectedly over the past week, and I think we'll be able to work that out as well. I think the Mayor will realize, hopefully recognize if this bill 20 comes out with the appropriate amendments and meets with the Administration's satisfaction, that we can adjust the enforcement or non-enforcement, if you will, until such date that we have the final passage of the bill as amended 45 9/27/06 - PUBLIC HEALTH - BILL 060583 voted on by the full City Council. I think we're going to be able to work that out, at least that's my hope. So I think you're going to also be able as an individual to meet that 80/20 percent requirement, if that's what this Committee decides to vote out favorably today. And that's why we looked at it that way. One of the members of this Committee who recently left was the one who was insisting on 10 percent a year ago, and then when the vote was taken, he decided not to support it. So we went back to the drawing table and we recognized that we had to make some adjustments. And it's not a perfect world. Even if there was a total ban in the City of Philadelphia, if this Council voted to ban smoking in every public place with no exemptions, there will be an exemption because the State has made the decision to exempt casinos. And I think the argument could be made and was one of the reasons I decided to talk a 46 9/27/06 - PUBLIC HEALTH - BILL 060583 little bit more about the neighborhood bar aspect of this, I represent the river wards. There's going to be one casino in my district. Mathematically I wind up with one. I think I'm going to wind up with two. That's just my guess. And any of the four casinos are literally within walking distance of the rowhouse neighborhoods, whether they're big bars or small bars, from where any of those two casino sites will be, and I was concerned that the guys who hang out at Joe's Tavern at 2nd and whatever will now be able to walk over to one of those casinos and smoke and enjoy a cigarette there and further harm the businesses of the local neighborhood bars. So we're trying to find some balance, at least that's what was in my head because of the situation I have to deal with with the rowhouse communities all down the river, from 2nd Street all the way up through Kensington. So I had that concern, and that's why we came up 47 9/27/06 - PUBLIC HEALTH - BILL 060583 with the percent. If we did the 30 percent, you might as well not do a ban anywhere, because it's going to really open up the flood gates. But that train has left the station. There's going to be a ban in some way, shape or form, whether we like it or not, and I think at some point -- and I'll eat my own words, as I said a few weeks ago. I think the State is probably moving in that direction, and maybe they will, maybe they don't, but who knows. So the arguments about New Jersey and people not coming into the City of Philadelphia because people from Jersey were coming to Philly and they're not going to come, that's off the table. You can't smoke anywhere in New Jersey but a casino. So we're trying to find common ground, a compromise, and this is -- it may not be the best, but it's the best we can do to date. 48 9/27/06 - PUBLIC HEALTH - BILL 060583 Thank you.
If you want to testify, you have to come over and sign up.
You don't ask a question. If you want to ask the question, you have to come over and sign up. COUNCILMAN DiCICCO: Did you sign up, sir?
Did you sign up? Come over here and sign up and then you can come up and ask the question. Thank you, gentlemen, very much. We appreciate your testimony.
That's fine. 49 9/27/06 - PUBLIC HEALTH - BILL 060583 Thank you. Good morning, Madam Chairman and members of the Public Health Committee. My name is Ray Swerdlow, and I'd like to piggyback on what Councilman DiCicco had said. He knows that I'm a member of the Riverfront Communities United, and we are concerned about the small bars along the Delaware River, and I appreciate your sensitivity. And one of the things that you had mentioned is that there will be smoking in the casinos. There's also an issue about the liquor licenses that are going to be issued to the casinos and possibly they may get a 24-hour liquor license. As the liquor licenses stand now, and the people here that have liquor licenses, all are issued a liquor license from the State of Pennsylvania's state agency, and we feel that the criteria for the liquor licenses as far as food versus liquor should all be the same throughout the Commonwealth. I represent Philadelphia for 50 9/27/06 - PUBLIC HEALTH - BILL 060583 the Pennsylvania Tavern Association. We're not going to discuss anything about health issues. A lot of the folks here discussed the issues about the percent 6 drink tax and all the other taxes and 7 business privilege taxes that we're all 8 subject to. 9 When you had originally had 10 hearings several years ago, I was up here with Garth Weldon and I was up here with Pete Ciarrocchi, the well dressed and very handsome elephant that's not in the room. Back then I had said and pointed to Pete and I said, What happens to a guy like Pete Ciarrocchi? And Chris had mentioned it and someone else had mentioned the fact that there's a big bar down by the stadium -- and we can all say that that's Pete's. What happens when you're at the Roosevelt Boulevard and you're near the Bucks County border or you're down at the border of Delaware County in Philadelphia where Pete's bar is on Packer Avenue or his bar on Adams 51 9/27/06 - PUBLIC HEALTH - BILL 060583 Avenue, which is right near the Jersey border, what's going to happen to Pete's customers when there is a Philadelphia ban? Well, Pete can answer that for you. And I know that he's spoken to Councilman DiCicco and he's also spoken to Council President Verna. I won't go into the numbers, but I know that Pete had presented some numbers to Councilman DiCicco and to Councilwoman Verna which will make your hair stand on end. Pete lost probably in the neighborhood of 14 percent of his business in his bar in New 15 Jersey and it's the same type of 16 operation of Chickie's and Pete's that 17 he's got on the Roosevelt Boulevard and 18 in South Philly. He's got the same thing 19 in New Jersey. When the ban went into 20 effect, he effectively lost 20 percent of his business the day after the smoking ban, and it has not come back, and he is scared to death. Pete said that he was going to be here about 11:00. I guess he couldn't 52 9/27/06 - PUBLIC HEALTH - BILL 060583 make it, so I'd like to speak for him. The same thing will happen if the smoking ban stays in Philadelphia. You've got some people who have 50 people in a bar. Chris has a bar that's known around the world. Unless there's a state-wide ban and unless it's equal for everyone in every county of this state, you're going to have an issue where people in Philadelphia are going to lose a ton of business, and I'd like everyone to consider that. I don't know, Councilman DiCicco, whether Pete actually went into the numbers with you. I know he did it with Councilwoman Verna. There's also a ton of money that will be lost to the School District of Philadelphia. My child goes to a Philadelphia public school and I'd hate to see that money gone. I also pay the 10 percent drink tax to the school. I'd hate to see that money gone. And I think that there should be an exemption for 53 9/27/06 - PUBLIC HEALTH - BILL 060583 bars and I think that this should be done at the state level and I think it should be equal for all bar owners in the state.
May I add one thing? Philadelphia, as far as I'm aware, is the only city in the country that has the tax by the drink. So we're being guinea pigs, and you're going to see the results of this at the end of the fiscal year -- or at the end of next month if it has an effect. I hope that all of us are wrong and that our businesses do not suffer, but you folks will know when you get the remittances from the bars if business has fallen off this month. You just compare it to last year. Every other city in the country used tax receipts to justify the fact that businesses didn't suffer. Well, it is true, as Councilman DiCicco said, some sales may increase. For example, if you go -- my lunch sales will probably increase. Maybe instead of 54 9/27/06 - PUBLIC HEALTH - BILL 060583 doing 85, I might do 95 lunches a day. So I might do another 10. So my sales tax remitted to the State will increase, but if I lose percent, even 10 people 6 at night who are drinking, my sales tax 7 remittance to the City for liquor will 8 decrease, and that's 10 percent versus 7 9 percent. The City only gets 1 percent on 10 food sales, just keep that in mind. The General Fund gets 1 percent. The School District gets 10 percent on liquor. I just want to make sure everybody is aware of that. We're the guinea pigs right now. You will know next month if the nay sayers are correct or not, whether there's a decrease in tax revenues because of these bills. And I agree, why not do a state-wide ban rather than a city ban. My customers can go to Narberth or Rydal and drink, get on a train.
A long way to go to get a drink. 55 9/27/06 - PUBLIC HEALTH - BILL 060583
We had had our meeting for the Pennsylvania Tavern Association yesterday in Harrisburg, and our lobbyists told an interesting story, and that was, that you have a guy who -- he was a Steelers fan obviously and he wants to go see a Monday night football game. So what he would normally do is, his wife would know that he's going to go down to the bar and have a drink and watch Monday night football and smoke and have fun with his buddies. Well, now he can't smoke. So what's he going to do? He's going to go to a place and buy a six-pack or a 12-pack or he's going to go to a beer distributor and buy a case of beer and he's going to go home. And there's his family and there's his little kid, and he's going to watch the game with his little kid, smoking, and, quite 56 9/27/06 - PUBLIC HEALTH - BILL 060583 frankly, we're not real sure if that's a great example for your kids. Tobacco is a legal product sold in Pennsylvania, in the State. If the bars will not allow smoking, I would think that people may smoke less if they have to go home. They're not smoking in the bars, so maybe they're not smoking as many cigarettes, so Pennsylvania will suffer because they won't get as much tax revenue. And, of course, there's the 10 percent drink tax and the business privilege tax and all those other taxes that Chris had mentioned. But that's something else that you may want to consider too, is that that -- I will now call it an adult behavior. That adult behavior of going to a bar and enjoying your friends and enjoying comradery and having a cigarette and a drink in a bar will now be done at home, where you may not want to have your children exposed to that. So that's something else you may want to consider. 57 9/27/06 - PUBLIC HEALTH - BILL 060583 It's a little abstract, but it's something you may want to think about.
Thank you very much. As Councilman DiCicco says, we do have a ban, and certainly some of us have been talking to the state legislators about a state-wide ban. But I cross the border from Cheltenham, Montgomery County and I'm amazed at the number of restaurants over there that do not have smoking.
Right, and you'll find that people will make a business decision and say, You know what, it just doesn't make sense.
You want to say something? COUNCILMAN DiCICCO: Yes. Thank you, Madam Chair. Just three observations. One is that some of the folks who spoke this morning said, well, if we're going to have a ban, maybe we make it permanent or across the board and have a total ban. 58 9/27/06 - PUBLIC HEALTH - BILL 060583 That's a little bit confusing for me because if on one hand you're saying that the ban in New Jersey has caused Pete from Chickie and Pete's to lose 6 percent of his business, wouldn't the 7 total ban have the same effect on 8 everybody? 9 I think what we're doing, 10 although it's not perfect, is allowing 11 for some exemptions so that we don't have 12 that total negative effect on every 13 establishment. You can make exemptions 14 here, you can make exemptions there. You 15 just reach a point where there's just so 16 many exemptions you can do. Before then, 17 you have no bill. So I think we're 18 probably ahead of the curve. 19 I've independently asked -- and 20 I take Pete at his word, by the way, but I've independently asked bar owners and restauranteurs in New Jersey, because in the summer I spend a lot of my time and the weekends at the seashore, and not one owner of a restaurant or bar indicated to 59 9/27/06 - PUBLIC HEALTH - BILL 060583 me that they've seen any decrease in business. The nay sayers might be right, they may be wrong. I don't know. I'm not here to suggest that I can predict the future, but, again, as opposed to New Jersey, which has a total ban with the exception of casinos, we're trying to do something in Philadelphia that is a ban but not a total ban, we're allowing for some exceptions, and I think that that may balance things out eventually.
It may, but -- COUNCILMAN DiCICCO: And the guy that goes home as opposed to smoking at the bar was one of, again, the considerations we had for the neighborhood bars, because we recognize it's part of the fabric of the Philadelphia landscape. Neighborhood bars is a part of the community, and we're trying to figure out a way in which those bars, whether they're small bars or in square footage large bars, have an 60 9/27/06 - PUBLIC HEALTH - BILL 060583 opportunity to be able to remain open and still permit smoking. Not a perfect situation here. I will admit that. But I think it's better than what it could be. Because, again, my opening statement was we weren't here to debate the smoking ban. That train left the station. We're just trying to tweak it a little bit to hopefully give some relief to, I think, a large constituency of folks who are out there in business today in Philadelphia.
And when you were at the shore drinking and when they said that they had no effect on their business, it was the summertime and it was a resort and they were getting plenty of business and they were charging a lot of money for beer. Last weekend was Irish weekend -- COUNCILMAN DiCICCO: You assume it was the summer. I said I spend a lot of time, and maybe because of that, I 61 9/27/06 - PUBLIC HEALTH - BILL 060583 just made that statement.
You're my Councilman. I've seen you around, so I know you weren't at the shore. COUNCILMAN DiCICCO: I know, but also it was off season as well. I mean, whenever I get down to Atlantic City, I stop in and there's a place on Tilton Road in Northfield. I watch the cars, and when the ban first went into effect, I didn't see as many cars out there, to be honest with you, as I did before there was a ban. And then within a matter of a month or two, all of the sudden, the place just started looking as business as usual. And this place was -- I mean, this was a smoker's paradise. And I walked in, the guy says, Yeah, initially I took a hit, but everybody got used to it now. They smoke outside.
Sir, we don't want to cut off your testimony, but 62 9/27/06 - PUBLIC HEALTH - BILL 060583 would you please comment on the amendments that are before here. We do have a ban. It's not going to be repealed.
So we'd like you to kind of wrap it up. We have other people to testify.
Okay. There was just one more thing that I wanted to say. There was someone in Councilwoman Verna's district that had already contacted her even before the ban went into effect and asked her what's going to happen when hundreds of people stand outside of Chickie's and Pete's on Packer Avenue and they smoke? And this is before the ban went into effect. So there's a lot of concern from the communities as well. Thank you for allowing me to testify.
Thank you very much. Thank you. 63 9/27/06 - PUBLIC HEALTH - BILL 060583 Mr. Cordero, would you please address the amendments.
My question was enforcement. Is Council now saying this morning that they're not going to enforce this law until it's totally tweaked out and put in place?
No, we're not saying that. That's not what this Committee said.
Okay. Councilman DiCicco was talking about tweaking it and everything nailed down so we all know what we're doing, we all know what the law is. That's the other problem, we don't know the law. Nobody has contacted our businesses. No one has sent us any letters. I sent every member of Council, the Mayor, the Governor my packages, which you people felt no need or obligation to respond to me. I got no 64 9/27/06 - PUBLIC HEALTH - BILL 060583 response from anyone on the ten packages I've sent out. My next question is, if you are going to start enforcing the law immediately, if I get a traffic ticket, I can go to Traffic Court and fight it. If we're going to enforce this law now, where's the courts, what's the court system set up for the fines, who is going to give me the tickets and where do I go to fight this? We'll just have to back up the court system with these fines from the smoking ban.
We have the Mayor's Chief of Staff here, who might want to come forward and make some clarification. We had agreed in the spring when we passed the initial bill 20 that the bill would not be enforced until January 2007, and we will come back and amend the bill to indicate that. However, the Mayor chose to enforce it immediately. So we are pretty much at a loss like you are. 65 9/27/06 - PUBLIC HEALTH - BILL 060583
If you had read any of my letters I mailed to you, in the one paragraph, I had asked for training. I have to go to food cooking school to learn how to cook a hamburger when my grill, Hamilton Beach grill, tells me the hamburger heats 350 degrees. But I have to go to school for the City to learn how to cook these hamburgers and the hot dogs and what-have-you. I had asked for training, if you had my letters. I asked for compensation for my time outside policing the pavements, because I'm the enforcer, and I asked for medical coverage for the ass beating I'm going to take on that pavement when I'm standing out there. (Applause.)
And I got no 21 response and no answers to any of this. With that, I'll end my testimony. Thank you.
Excuse me a 66 9/27/06 - PUBLIC HEALTH - BILL 060583 minute, Councilwoman. I put my name on the list way ahead of that man and I haven't been called yet.
I'm sorry. Would you, Joyce, let me ask this gentleman to testify. I apologize for that. What is your name, please.
Yes. We did call you, Mr. Dershowitz. Please accept my apology. Go ahead.
Okay. Committee people, Madam Chairman, I'm a practicing accountant in the City of Philadelphia and our firm's specialty is in what we like to call the food and liquor industry. We do a lot of corner bars. And I think one of the things that has not been considered in dealing with an exemption is doing it on a square footage basis. Listening to Councilman DiCicco's recommendations, if you take 67 9/27/06 - PUBLIC HEALTH - BILL 060583 the corner bars where people have testified 95 percent of the people smoke, the employees smoke, these people are there because they want to be there, and they go there a lot of times to get out of their house to go to a place to meet people and have a comfortable place to smoke. By the way, I'm a non-smoker. Most of the corner bars that are really affected by this are under 2,000 square feet. Now, is there a possibility that you could maybe make a two-tier exemption, one for the corner bars, exempting 2,000 square feet, and the second one, as you've proposed for the larger places, where they would need to meet the percentage requirements in order to have smoking in places like these gentlemen own where they're not corner bars? Also, has anyone taken into consideration the cost of enforcing these, how they're going to enforce them, what's going to happen when someone calls 68 9/27/06 - PUBLIC HEALTH - BILL 060583 up and makes a complaint? Are the police going, the Health Department going? None of this, as has been said before, has been addressed or dealt with in any way, shape or form. I happen to have a large client in New Jersey and he did lose percent 9 of his business immediately, but he had 10 enough facility to build an outside 11 seating area. And in the smoking ban 12 that's currently in existence, I do 13 believe that they're not going to allow 14 sidewalk cafes to have smoking; is that 15 correct? 16
So one of the ways to get around it for the smaller places if they had a place to allow people to go sit outside is going to be eliminated? 69 9/27/06 - PUBLIC HEALTH - BILL 060583
Within feet of the entrance. COUNCILMAN DiCICCO: It's within a distance of --
Oh, 20 feet of 7 the entrance, not completely ban it? 8 COUNCILMAN DiCICCO: Let me 9 explain something, if I can, and I was a 10 holdout on this for a very long time. 11 Because I believe if you tell people they 12 can't smoke inside, you got to smoke 13 outside, they should be able to smoke at 14 outdoor cafes. But many of the 15 establishments where you have outdoor 16 cafes are typically restaurants, for the 17 most part, that have windows that, in 18 good weather, during good weather 19 periods, have windows that are open out 20 to the sidewalk. So conceivably I can be at an outdoor table right where I am now and my colleague, Councilwoman Tasco, is indoors, but the window is open, and I'm sitting there -- and I know a lot of people, because I'm not a smoker per se. 70 9/27/06 - PUBLIC HEALTH - BILL 060583 I bum cigarettes every now and then. I don't like them, but I bum them. I know where places when people are having dinner across from someone, the smoker has a tendency to put their hand behind them so they're not blowing smoke on the person that they're having dinner with, and here it is, the cigarette is basically in Councilwoman Tasco's face. So my point is, you're inside but you're outside at the same time, and I think that's what the Mayor's concern was. And you go around Rittenhouse Square as an example, everything is opened out to the sidewalk. So you're outside, but it's really no distinction between the two. Smoke is going indoors anyway.
I know. At the Rouge, they have seating on both sides of the sidewalk, so you got to walk through there anyway, and people are smoking. But good smoke detector systems 71 9/27/06 - PUBLIC HEALTH - BILL 060583 will absorb the smoke and eliminate the smoke in the building in the bar and certainly would deal with the situation that you just mentioned outside the bar. I have clients that have really good, expensive smoke heaters and there's not a problem. Also, the monitoring and auditing of the individual establishments to apply for the exemption, as I read it in the current law, would be time consuming, exorbitant, and who is going to conduct these audits? Is it going to be the Revenue Department, the Health Department? Has that been determined who is going administer and determine how the exemptions are going to be applied? COUNCILMAN DiCICCO: One of the amendments that we're offering is to delete that provision on the auditing. I said that earlier. I'll quote, deletion of the audit provision allowing the City to explore any establishment's books, in my opinion, is an unfair requirement and 72 9/27/06 - PUBLIC HEALTH - BILL 060583 not necessary for enforcement. Whether that's acceptable to the Committee and the Administration, I don't know, but that's being offered.
Okay. But if it's part of your amendment and it's passed, that would be good, but if it's not, that's going to be an additional burden on the City, and I don't think they have the staff to deal with it. I think it's going to cause a lot of additional expense. By dealing with a square footage exemption for the smaller establishments -- you already have a system in place to determine the square footage of each establishment in the Zoning Code and the City capacity regulations, I believe. And this to me would be more feasible to deal with the corner bars. COUNCILMAN DiCICCO: We actually had that discussion several years ago when Councilman Nutter first 73 9/27/06 - PUBLIC HEALTH - BILL 060583 introduced the smoking ban. We had many, many hearings and months literally of discussions with advocates, the anti-smoking ban advocates, with health officials, and we were never able to get to that point where we could come to an agreement, but it was part of that discussion. Again, the train has left the station. Could that be tweaked later on? Could we talk about it later on? Probably, but for the benefit of today's hearing, we have amendments in front of this Committee. We're asking for this Committee to support those amendments, and let's see how this thing plays out. If there are changes that the industry would like to present to City Council, you have every right to do that, and we can negotiate and debate that further on, but I think to avoid some of this confusion that's out there and to get this thing moving to put some clarification behind what we need to do, 74 9/27/06 - PUBLIC HEALTH - BILL 060583 I'm suggesting that we move on these amendments and deal with some of those other issues going forward.
All right. Would you please offer your testimony of clarification regarding the amendments, please.
My name is Joyce Wilkerson. I'm Chief of Staff to the Mayor. I want to apologize for the confusion. We were busy working through a number of proposed amendments and testimony. The Administration supports the 75 9/27/06 - PUBLIC HEALTH - BILL 060583 proposed amendments to Bill 060583. The overall position of the Health Department of the City is that smoking presents a particularly critical issue for public health, and we're sensitive to that. However, we think the proposed amendments retain intact the essence of the smoking bill and, on that basis, support it. We think that removing the exception for outdoor sidewalk cafes is warranted. The Mayor has indicated on any number of occasions that they should be treated the same as other establishments. We further think that it's appropriate to adopt the amended definition of "drinking establishments." We think that it does not erode substantially the intent of the smoking bill and strikes an appropriate balance. The same is true of the "private club" amendment. We have gotten information from the Liquor Control Board and other sources and don't think that 76 9/27/06 - PUBLIC HEALTH - BILL 060583 this creates a huge exception that you can run a Mack truck through, particularly the modifying language in that provision I think gives us a way of ferreting out the establishments that are true private clubs from those that are not. And, finally, although I think there might be some confusion as a result of changing the implementation date, we will work with the change in date and use the interim time period to, if this is enacted, to further refine the implementation and enforcement procedures and communicate them to the general public.
Councilman DiCicco. COUNCILMAN DiCICCO: Thank you. Thank you, Ms. Wilkerson, for your testimony and clarifying some of those issues that were posed by Councilman O'Neill earlier. You say that if these bills are 77 9/27/06 - PUBLIC HEALTH - BILL 060583 enacted. As you know, I assume that we have at least eight votes today. Unless we can get the ninth vote from any of the currently sitting Councilmembers, the likelihood of enacting this and passing it out of Council will probably not be until the middle of November. Without trying to put you on the spot, if this bill were voted out favorably today and there's as much assurances as we can give that we will have the ninth vote after the November special election, could you speak to what the Administration's position would be in regards to enforcing the current bill as it stands today? Because it's all about confusing issues with the establishments. I understand the Mayor is legally obliged or obligated to do it and I understand why he did it, but as you probably heard earlier in the testimony or maybe from some other constituents, there is a lot of confusion out there.
I think the 78 9/27/06 - PUBLIC HEALTH - BILL 060583 confusion does concern the Administration and we would look to work with Council and figure out if it's likely that this is going to pass, then I think that we can benefit from having a reasonable enforcement date. If it does not appear that this is going to pass, we will continue with enforcement. The law said immediately. We'll double back, do additional communication, get letters out. But I think that we'll make the calls, too, and if it appears that this is going to pass, the recommendation would be to hold up on -- COUNCILMAN DiCICCO: Enforcement.
Some of the questions raised by some of the individuals who have testified regarding enforcement, was there any -- and I know you're not the Mayor, but in terms of communicating with the business community 79 9/27/06 - PUBLIC HEALTH - BILL 060583 and the enforcement process, was there given any thought?
I think that we're preparing letters to go out. It's hard when the legislation says immediately. This is a conflict we run into all the time, immediately, but a lot of these things do take substantial periods of time. It did not appear at first blush that there was much subtlety to the requirement. It says no smoking. The intent of the law is no smoking. The number of establishments that really fall within the exception are fairly minimal, but it's become clear as a result of a lot of what we're hearing that it's not that you're not allowed to smoke that's challenging; it's what the responsibilities are on bar owners who have an obligation to in fact be the front line of enforcement, and that we probably do need to do a better job communicating with them, giving them advice on how to handle situations as 80 9/27/06 - PUBLIC HEALTH - BILL 060583 they do arise.
Any other questions or comments from members of the Committee? (No response.)
Would you sit down, please, and identify yourself for the record?
My name is Richard Dobrowski. I own Tritone, a small bar at 15th and South. I don't know if there's been thought through or not, but I'm a little confused on legally we're not allowed to 81 9/27/06 - PUBLIC HEALTH - BILL 060583 have crowds gather outside the establishments, but now they will be gathering for the smoking. Is that just still a gray area or is that --
They can't gather within feet of your 8 establishment. 9 COUNCILMAN DiCICCO: Could I 10 interrupt, if I may, Madam Chair? 11
Sure. 12 COUNCILMAN DiCICCO: The 13 smoking prohibition within, I think it's, 14 20 feet does not only apply to liquor 15 establishments, it applies to any public 16 building, which in many cases policy in a 17 number of office buildings in Center City 18 has been that there's no smoking allowed 19 in those buildings. So you see that 20 today already.
But that's sober workers as opposed to people -- COUNCILMAN DiCICCO: Well, we expect that as a responsible bar owner you're not serving one who is not sober. 82 9/27/06 - PUBLIC HEALTH - BILL 060583 Be careful. Be careful. This is all a matter of record now.
Like I said, I'm hoping to look forward to more clarification on the issue, but I've got many questions answered. COUNCILMAN DiCICCO: I want everyone to understand that all of this, whether it's these amendments, the entire ban, whatever, are all enforcement driven. I don't know -- and I could be wrong. I can't speak for the Administration and/or the Health Department -- if we're going to have the smoke cops going around the City checking to see if somebody is smoking in your establishment. And I have to eat my words if that's the case. I don't know if that's what's going to happen. I think that unless you get a disgruntled employee or a customer who is in one of your establishments, assuming that that establishment is a smoke-free establishment, I don't know if the City 83 9/27/06 - PUBLIC HEALTH - BILL 060583 is going to take any action. And I'm not the Mayor and I don't pretend to know all the answers to what the Administration will do, but I firmly believe that in a majority of these cases, it's just going to be complaint driven, and enforcement will follow, and someone will come out and write a violation to say that you have -- it's a warning. The first one I believe is the warning. Prior offenses would be subject to fines. That's my understanding of how this will all work.
Thank you very much. Is there anyone else here to testify? Would you come forward, please?
My name is Emery Dawes. I was up here before. Just a quick question came up to my mind. Councilman, you said you had eight people that were going to vote for 84 9/27/06 - PUBLIC HEALTH - BILL 060583 your amendment, the one you're proposing? COUNCILMAN DiCICCO: We had nine in June, but when Councilman Nutter resigned to run for Mayor, we lost that ninth vote. One of the three persons who are running for the special election in November has indicated to my colleague, Councilman Darrell Clarke, and was quoted in Sunday's Inquirer as being in full support of the amendments.
That's the exception amendments we've been talking about? COUNCILMAN DiCICCO: Yes. And I believe the Council President was quoted in the South Philadelphia Review last Thursday as also being in favor of the amendments, but I have not spoken to her directly. Sometimes the media don't always get things right. I did not speak to her directly, but I did have a conversation with Councilman Clarke yesterday or Monday, who indicated to me that he did have a conversation with we 85 9/27/06 - PUBLIC HEALTH - BILL 060583 expect to be soon-to-be-elected Councilman Bill Greenlee, who is in support, and, again, he was quoted in Sunday's paper as being supportive of the amendments. That will give us the ninth vote.
But you're not sure, though? My point was two quick questions. When is this vote going to come up, and, secondly, would you tell everybody here that's very concerned who the eight Councilmen are so maybe -- if we're talking about the same thing, maybe as a body, everybody could go home and our voters could put a little pressure on the other Councilmembers to pay it a little more attention what's going on here.
We don't count the votes until the votes are counted.
You never know how people are going to vote until 86 9/27/06 - PUBLIC HEALTH - BILL 060583 the votes are counted.
But the Councilman said that he knows of eight people that were on the line, and maybe we could put some pressure on the -- how many Councilmembers are there? I was on the Council in Elk Township. We only had five. COUNCILMAN DiCICCO: There are Councilmembers currently. We will 12 have 17 after the November election. We 13 need nine votes to pass a bill and 14 amendments, and if the Mayor decides to veto, which I don't think he will do, then we would need 12 to override his veto. I can't speak for the other folks, as the Chairwoman said, the Council Chair said.
They can change their mind. COUNCILMAN DiCICCO: People can, and we had that situation happen about a year ago with one of the 87 9/27/06 - PUBLIC HEALTH - BILL 060583 Councilmembers who left who was on this panel earlier who wanted the percent. 4 We gave him the 10 percent and he decided 5 to vote against it at the last minute. 6 Look, I'm never shocked about 7 the way things happen here, but I think 8 that the majority of folks have given 9 their pledge to the amendments and I 10 believe that they'll stay with that pledge.
Just one quick question. This Committee, is everybody here on this Committee that was supposed to address us today? Is everybody here that should be here as far as Councilmembers? COUNCILMAN DiCICCO: I'm sorry?
Is this the full committee that was designated to hear our complaints? Because we'd also like to know who wasn't here. I mean, this is important to us. Is everybody here on your committee, Madam Chairman?
No, but 88 9/27/06 - PUBLIC HEALTH - BILL 060583 there are Councilmembers who could not be here for personal reasons. So they do have a right to not be present if something else personal interferes with that.
I understand. And how many members are missing, if you don't mind me asking? You don't have to name them. I just want to know.
One quick point of information, Councilman. The sale of cigarettes is included in the non-alcoholic provision of the State Liquor Code. COUNCILMAN DiCICCO: Yes. Ironic, isn't it?
I'm glad Mr. DiCicco is here to -- COUNCILMAN DiCICCO: So if we ban the sale of cigarettes, then we wouldn't have to worry about any of this stuff. 89 9/27/06 - PUBLIC HEALTH - BILL 060583
Maybe that's what we should do. COUNCILMAN DiCICCO: Which is the root of all the problems and concerns. Go figure.
Thank you. Sorry. There was one thing that I did mean to ask that wasn't brought up earlier. In regards to enforcement on the penalty, I know it's $25 to $300, but bar owners are concerned about -- I know the penalty will go to the individual smoking as well as the establishment owner, but is the establishment owner going to be fined on a per person basis? Like basically if they come in and there's five people smoking, will that be a $1,500 fine to the establishment? A lot of people are asking me that. 90 9/27/06 - PUBLIC HEALTH - BILL 060583
And I think what the gentleman was saying earlier that owns a bar on 15th Street in the Old City area -- a lot of people asked me about this, too -- the foot law, with the 14 locations of all those bars down there, 15 there's basically nowhere for them to 16 smoke in the entire street. 17
Just tell 18 them they will be healthy if they don't 19 smoke. They'll live longer anyway. 20
I go back to the health issue. COUNCILMAN DiCICCO: Drink more, smoke less. 91 9/27/06 - PUBLIC HEALTH - BILL 060583
Smokers are good drinkers. Drinkers are -- how did I say this before? I forget how I said it. But smokers are better drinkers. The non-smokers don't drink as much. That's why we want to try to keep them all happy.
Can I just ask a question? I'm sorry. I'm a little confused on this amendment. The amendments, if they're signed, how am I going to know?
How am I going 92 9/27/06 - PUBLIC HEALTH - BILL 060583 to know if these amendments are signed?
What we're going to do today, we will vote the amendments out of the Committee and then they will go to the full Council, and when we call the bill up for final passage, you will probably know because the media is going to let you know.
Probably sometime in November. COUNCILMAN DiCICCO: It will be publicized.
So what do I do between now and November? If one of the amendments to this bill is to not enforce it until January and we don't sign it until the end of November, that doesn't really do me too much good. COUNCILMAN DiCICCO: I think the Mayor's Chief of Staff explained that 93 9/27/06 - PUBLIC HEALTH - BILL 060583 if the Administration gets a signal that the votes will be there, they will more or less not look to do enforcement until the effective date.
Okay. And that will be on the news tonight, please? Please, so I know what to tell my people in my bar. (Applause.) COUNCILMAN DiCICCO: I can't speak for the Mayor other than what the Chief of Staff indicated, and I have every reason to believe that that's what the Administration will do.
Is there a website where we're going to where these things are put that I can go and read that on the Internet or something to that effect?
The City Council has a website where you can check bills -- and you have the number -- when the bill will come up for final passage. You can check that. You can certainly 94 9/27/06 - PUBLIC HEALTH - BILL 060583 call us. It will be in November probably after the election, which is November the 7th. Then they have to have maybe ten or days, days to certify the election. 6 They may do it faster. And then those 7 Councilmembers will come on. 8 So towards probably the end of 9 November, maybe before Thanksgiving or 10 right after Thanksgiving. Before the end 11 of the year. So you have that time, and 12 hopefully the Administration will 13 communicate with you regarding what is 14 going on. 15 We pass the bills. They are in 16 charge of enforcement and developing the 17 regulations. So if Ms. Wilkerson said 18 that she would communicate with the bar 19 owners and restaurant owners about what 20 they are doing, it would be most fair to you. So we don't have those answers for you, but it probably will not take place until after the first of the year.
Thank you. Is there anyone else here to testify? (No response.)
This ends our public hearing. We will go into our public meeting. The Chair calls on Councilwoman Blondell Reynolds Brown to report out the proposed amendments.
Madam Chair, I make a motion that amendments to Bill No. 060583 be moved out of Committee with a favorable recommendation. (Duly seconded.)
It has been moved and seconded that the proposed amendments to Bill 060583 be reported out of Committee with a favorable recommendation. All in favor will say aye. (Aye.)
Those 96 9/27/06 - PUBLIC HEALTH - BILL 060583 casting a vote will say no. 3 (No response.)
Let the record reflect that Councilman O'Neill left a no vote. There being no further business, this Council -- let us approve the amended bill. Could I get a motion on the bill as amended. Councilman Goode.
Thank you, Madam Chair. I move that Bill No. 060583 as amended be reported out of Committee with a favorable recommendation. (Duly seconded.)
It has been moved that Bill 060583 be reported out of Committee as amended. All in favor will say aye. (Aye.)
Those opposed? (No response.) 97 9/27/06 - PUBLIC HEALTH - BILL 060583
The record will reflect that Councilman O'Neill left his vote of no. 5 Now there being no further business, this Committee is adjourned. Thank you all for coming down. (Committee on Public Health and Human Services adjourned at 11:50 a.m.) - - - 98 CERTIFICATE I HEREBY CERTIFY that the proceedings, evidence and objections are contained fully and accurately in the stenographic notes taken by me upon the foregoing matter on September 27, 2006, and that this is a true and correct transcript of same. ______________________________ MICHELE L. MURPHY RPR-Notary Public (The foregoing certification of this transcript does not apply to any reproduction of the same by any means, unless under the direct control and/or supervision of the certifying reporter.)