COUNCIL OF THE CITY OF PHILADELPHIA PUBLIC HEARING AND PUBLIC MEETING BEFORE COUNCIL COMMITTEE ON PUBLIC HEALTH AND HUMAN SERVICES - - - Room 400, City Hall Philadelphia, Pennsylvania Wednesday, May 31, 2000 3:20 p.m. - - - BILL 000314 - An ordinance, as amended on 5/14/00, Amending Chapter 10-600 of Philadelphia Code, entitled "Public Places - Prohibited Conduct," by prohibiting smoking in certain public places and in the workplace, with certain exceptions, and by repealing current provisions set forth in Section 10-602 regulating smoking, all under certain terms and conditions. PRESENT: COUNCILWOMAN MARIAN B. TASCO, Chair COUNCILMAN DARRELL L. CLARKE COUNCILMAN DAVID COHEN COUNCILMAN FRANK DICICCO COUNCILMAN W. WILSON GOODE, JR. COUNCILMAN RICHARD T. MARIANO COUNCILWOMAN DONNA REED MILLER COUNCILMAN MICHAEL A. NUTTER COUNCILMAN ANGEL L. ORTIZ COUNCILWOMAN BLONDELL REYNOLDS BROWN COUNCILMAN FRANK RIZZO - - - VINCENT VARALLO ASSOCIATES, INC. Registered Professional Reporters Eleven Penn Center, Suite 600 Philadelphia, PA 19103 (215) 561-2220 2 5/31/00 PUBLIC HEALTH COMMITTEE, BILL 000314 I N D E X Anita Batman, MD, Senior Advisor to. . . . . . the Surgeon General 5 * Joe Lawrence, Board Member, BOMA . . . . . . 11 Lance Silver, Owner/Operator, Katmandu . . . . 20 Rick Berman, General Counsel . . . . . . . . . 31 American Beverage Institute * Mike Driscoll. . . . . . . . . . . . . . . . 52 Philadelphia Business and Hospitality Alliance Paul Geissler, American Society of Heating, 79 Refrigeration and Air-conditioning Engineers Riyad Mirarha, Restaurant Owner. . . . . . . . 84 * Mary Tracy, Health Promotion Council . . . . 85 of Southeastern Pennsylvania Andy Simpson, TGI Friday's . . . . . . . . . . 93 Laura Payne, TGI Friday's Waitress . . . . . . 96 William Pawliczek, Cavanaugh's Restaurant. . . 98 Monica Gangolf, Finnegan's Wake Employee . . . 102 Mike Smith, American Lung Association. . . . . 103 of Pennsylvania * Fred Nichols . . . . . . . . . . . . . . . . 104 Phila. Unified Minority Beverage Association Joshua Mitteldorf, Researcher. . . . . . . . . 115 Biology Department, University of Pennsylvania Sterling Barr, TEACH . . . . . . . . . . . . . 124 * Peter Salometo, Private Citizen. . . . . . . 128 (* - Also provided attached written material.) 3 5/31/00 PUBLIC HEALTH COMMITTEE, BILL 000314 (Index, cont'd.) Edna Dirkson, Private Citizen. . . . . . . . . 132 Robert Sklaroff, MD. . . . . . . . . . . . . . 133 Michael Sklaroff, Son of Dr. Sklaroff. . . . . 134 Chris Mullins, Gillen's Old Ale House. . . . . 137 * John Jonik, Environmental Activist, Writer 139 Michael McFadden, Private Citizen. . . . . . . 142 (* - Also provided attached written material.) 4 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 P R O C E E D I N G S
Could I have your attention, please. I'd like to call this session together. This is the reconvening of the Committee of Public Health and Human Services and is a continuation of the hearing that we held on May 14th. We do have a quorum present in the persons of Councilman Rizzo, DiCicco, Vice Chair Councilman Mariano, myself, and Councilman Nutter, who's been appointed to the committee for this session. We will have the clerk read the title of the bill.
Yes. This is Bill No. 15 000314, as amended on 5/24/00, which is an ordinance amending Chapter 10-600 of the Philadelphia Code entitled "Public Places - Prohibited Conduct," by prohibiting smoking in certain public places and in the workplace, with certain exceptions repealing. Thank you.
Thank you very much. We will open this hearing and take further testimony on the amended bill distributed by Councilman Nutter. We do have a list of 5 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 witnesses, and if we don't plan to be here all night, we ask all witnesses to be please be brief in their presentations. I first call forth Anita Batman, MD, the Senior Adviser to the Surgeon General. (Witness comes forward.)
Good afternoon. Would you identify yourself for the record and proceed with your testimony.
Good afternoon. Anita Batman, MD, Senior Public health Advisor to the Surgeon General.
And I was invited to speak to the question of whether secondhand smoke was harmful. The science in the office of the Surgeon General and the data coming to us from the CDC is unmistakable that secondhand smoke is a carcinogen, number one; number two, is a respiratory irritant and a trigger for asthma and is contraindicated for anyone with any respiratory ailment. It worsens all respiratory infections and respiratory diseases. A second thing that I would amend is 6 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 that we're in an atmosphere of secondhand smoke, certain groups of people are excluded, the principal one being people who have respiratory disabilities, asthmatics, people with emphysema cannot enter places where secondhand smoke is freely around them. And people are asked not to take their children into atmospheres of smoke. We have good data that children who live in smoky atmospheres miss more days of school, we know that children who live in smoky atmospheres have more ear infections, bronchitis, and that asthmatic children absolutely must not go into places there is free smoking. And if you have any questions, I'll be glad to answer them, but that is essentially what I was asked to speak to.
Are there any questions from members of the committee? The Chair recognizes Councilman Nutter.
Good afternoon, Captain Batman. There have been questions raised from time to time about both the seriousness of the 7 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 issue of secondhand smoke as well as questions around various studies that have been made by a variety of either governmental agencies or other entities that have looked at this particular issue. Is there any question in your mind, as a trained physician and the work that you do for the United States Office of the Surgeon General, is there any question in your mind about the validity of studies either by the Surgeon General's Office, the EPA, OSHA, or any other legitimate research institution with regard to the carcinogenic level of secondhand smoke?
There is no doubt, and we have plenty of evidence that squamous cell carcinoma of the lung, the kind that's caused by smoke, occurs in people who are in smoke-filled environments who are not smokers.
Are there tests that are done from time to time to determine for a person who is a nonsmoker but who has possibly been in an environmental tobacco smoke atmosphere that can demonstrate that they have not only been subjected to it, but that some of the those 8 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 effects linger for some time?
Yes, there are. We can get urine nicotine levels, and people who have just come out of smoke-filled rooms will have nicotine levels in their urine just as if they were smokers.
What's the effect on people who either have respiratory problems or asthma problems? Whether they can actually see the smoke in the air or not, what happens to some of those individuals if they enter that environment? And what challenge does it present to someone who has a condition like that to go into that environment and possibly not know it?
Smoke is a well-known trigger for asthmatic attacks, and so any asthmatic who goes into an area where people have been smoking can have an acute asthma attack. This is a problem because asthma is becoming more prevalent and more serious than it was in previous years, and we believe that's indoor air quality that is responsible for the worsening of asthma in general.
Lastly, let me ask 9 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 -- we've been talking about this issue for some time, although the Surgeon General's Office, in numerous studies, over, I believe, at least 20-year, possibly longer, period of time has issued reports with regard to the effects of secondhand smoke or environmental tobacco smoke. Are there any warnings that you think the members of the general public need to have, similar to other warnings that the Surgeon General has issued with regard to toxic or carcinogenic substances?
There have been no 13 official position on this, but the official position on anything an adult does is informed consent, so that any adult who is taking a health risk needs to be informed of it.
Well, for example, the legend on the tobacco pack, so that no adult would unknowingly smoke cigarettes thinking that they wouldn't hurt him, the label was put on there so that the consenting adult fully informed takes that risk with their health. This is a separate situation, of course, from the people with 10 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 respiratory disabilities and from children.
Well, how would the person get notification about possible secondhand smoke exposure? There's no pack with a warning on it.
Now we're conjecturing, and this is -- this is an answer to your question from myself and not an official governmental position. Certainly, there could be a warning on the door if you're about to enter a smoke-filled environment so that people would know not to enter with their children; or if they had a respiratory disability, they would know that they were endangering themselves and they wouldn't be taken by surprise.
Any further questions of the captain? (No further questions.)
Thank you very 11 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 much for your testimony. We now recognize Grace Redden, President of BOMA. (Witness comes forward.)
Good afternoon, Chairwoman Tasco, Councilman Nutter, and members of the Committee on Public Health and Human Services and other members of City Council. My name is Joe Lawrence, and as a board member of the Building Owners and Managers Association (BOMA) of Philadelphia, I would like to present testimony on Bill 314. Founded in 1916, BOMA Philadelphia represents over 500 members who own or manage approximately 100 million square feet of commercial properties or provide services and supplies to the properties in the Tristate area. It is also one of more than 100 local associations, with 17,000 members who own or manage over 8.5 billion square feet of downtown and suburban commercial facilities in North 12 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 America and abroad. BOMA supports two provisions of Bill 4 3141: 1. There shall be a prohibition against smoking in the common areas, hallways, stairways, toilet rooms, elevators, and lobbies of commercial office buildings to which the public has access, either as employees or as business invitees; 2. There should be a prohibition against smoking within feet of an entrance to any commercial 11 building. 12 While we are sensitive to and cognizant 13 of individuals' rights to engage in any activity 14 not deemed illegal -- in other words, the 15 individual's rights of personal freedom -- we 16 believe that this freedom does not extend so far 17 as to deprive other individuals of their rights. 18 An adult should have the right to smoke as a 19 personal freedom, but should not have the right to 20 abridge the freedom of another who wishes not to smell or inhale the smoke. In its simplest terms and without going into detail about the growing body of evidence that suggests that secondhand smoke potentially harmful, this is a quality-of-life issue, and we 13 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 suggest to you that all Philadelphians are entitled to a basic, decent quality of life in their surroundings and respect from one another and for one another. With all the quality-of-life issues facing Philadelphia, this may not be a giant leap forward, but it is, we believe, a forward step in the right direction. Thank you, Madam Chair Councilman, Nutter, and members of the committee and members of the Council.
Thank you very much for your testimony. Are there questions from members of the committee? Councilman DiCicco?
I just have a question. How is one who owns an apartment building or an apartment complex made aware of -- a potential tenant made aware of the building's smoking policy? Is there any mechanism for that?
Certainly, but usually in an apartment building, everybody has the freedom to do what's legal inside their own 14 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 apartment, so if they wish to smoke in the apartment, of course, that's their right. But the owner might announce the policy to all tenants in the common areas. And the landlord's frequently in contact with the tenants with the rent bills and just makes that a policy and he sends it out to all the tenants.
In the common areas. But do you know any buildings that may have prohibitions where there's no smoking in the building at all?
Yes. Where the building is other than a leasehold, where you're not renting the space to another tenant, where it is occupied by a single company -- for example, Two Liberty Place is occupied by CIGNA or Ace USA. Those are all employees of SIGNA or Ace USA, and the company's policy is that employees of shall not smoke on the property, period. But the public doesn't really have access to that building. It's not really a public building. As you go into that building, you'll see turnstiles, and you have to present an access card to do business in that building. So it's a private building. 15 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 One Liberty, for example, the building that I manage, is a public building. So you can come in and visit your attorney or whoever you're going to visit in that building. It's a little bit different; we can't force the tenants in a public building to, you know, to not smoke in their own premises. That's really up to the tenant.
So, I mean, if you have a prohibition on smoking in a particular building, you would expect that the tenants would abide by that prohibition?
I was going to -- that's my question. How do you enforce that? If a law firm on the 40th floor -- I'm just using Liberty One as the example, Liberty One. Let's say the chairman of the board of the law firm is a smoker and understands that there's no smoking allowed in the building but he or she decides that they're going to smoke anyway, what do you do about that?
Well, if they smoke in 16 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 their premises and the company permits it, that's their right to do that, but if they come out in the hallway --
No, inside. You're saying you can't enforce it inside.
So you actually have situations where you have certain areas that are restricted for smoking, but yet another areas if the tenant decides they can smoke?
So you have both going on simultaneously, within the same structure.
That can happen. It depends really on the company's policy.
I would say the majority of policy today by most companies is nonsmoking within their premises.
So it's conceivable that if someone was going to the 41st floor, that when the elevator door opens on the 40th floor, assuming that the tenants of the 40th 17 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 floor have a smoking policy, that you would inhale or somehow be able to breathe in some of the smoke or fumes that's coming out of the 40th floor; or, for that matter, maybe the ventilation system could be a system that interacts with each floor, and there's no way of ensuring that the tenants on the 41st floor would not be breathing in any of the smoke that's coming out of the 40th floor.
Well, there is. There are certain provisions made by tenants who will allow smoking, perhaps sometimes for their clients.
I'm not speaking of hallways. Again, I'm speaking in the office or --
That's correct, inside the premises. So they will create a designated smoking area, and that area will be exhausted directly to the atmosphere. There will be extra exhaust fans to that area. So the employees there that do smoke can go into that area and smoke.
How do you retrofit a building that is existing, and how do you create these designated areas for smoking on 18 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 the 40th floor if the previous tenants -- I mean, you put up a building.
And you have ventilation systems installed. How do you then come back later date and --
One of the things you can utilize is the toilet exhaust fans.
The toilet exhaust fans. Every floor has a toilet room, a men's and women's toilet room. They're all exhausted. You can increase the ventilation rate for that floor, bring in another duct work to that duct that runs vertically through the building and exhaust the floor through that mechanism.
And who bears the expense of that? 19 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
Well, ultimately, the tenant bears the expense. It's the cost of the tenant improvements to build the space; it's just added in to that cost.
Okay, thank. You nothing further. Thank you, Madam Chair.
Thank you very much. Beverly McIntosh and Karen Kennedy. (No response.)
Mike Driscoll, Greg Berman, Beverly Swanson, and Lance Silver. (Witnesses come forward.)
Seems that I'm here for bad news all the time. 20 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 I want to say that I have built, I own, and I operate Katmandu, on Delaware Avenue.
I've been here before, numerous times, 30 years worth. And being terse, I just think this is another attempt to make it very difficult for us to operate. We'd like to have a work-study program, and I'm totally, completely against any ban on smoking in any restaurant, bar, or anywhere in the City of Philadelphia. I think adults, being adults, have the right to choose to go to a restaurant where they can smoke or they don't have to smoke. If someone wants to open up a restaurant where it's no smoking God, bless 'em, let 'em do it. But for us to sit here and have laws passed that make it very difficult to do business, as difficult as it is to do business in the City at times, and to put more hurdles in our way is 21 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 just a very bad anti-business policy, and Philadelphia doesn't need any more anti-business policies. So we're all against it, and I'm very much against it on the waterfront, and I speak for everybody there.
Mr. Silver, you're familiar with the legislation, obviously. There's been some discussion -- and I'm not preempting the sponsor of the bill, there has been some discussion about the possibility of relaxing some of the language in the legislation that would allow for smoking possibly at the bar but not in the dining room. How do you feel about that?
I think it's preposterous. As you were bringing out in your example, which I thought was wonderful, here I am on the 39th floor smoking and somebody on the 41st floor isn't smoking, all within the same confines of a building. Now, the BOMA people, I've built and operated apartments for 30 years in the City, and 22 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 I love the idea of having a segregated area to smoke and a common area, but anyone can do what they want to do in their own apartment. I mean, you talk about hypocrisy, that's the penultimate of hypocrisy. I understand Councilman Nutter's intentions and reasons to want to do things that are good for the City and for the people of the City. Maybe we should start with all the buses, all the trucks, all the cars, all the other crap that's in the air, and that would make it a lot safer for everybody. So, you know, I'm trying to answer your question. I don't know how to answer it except that I'm totally against any kind of a ban whatsoever on anything.
You probably have made it as clear and to the point as anyone that has approached that witness table, but just think 23 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 about it for a second a little bit more. You've heard all of this testimony about the effects of secondhand smoke and you said it very clearly, that people have an option to go someplace else if they don't want to come in to your place. Don't you think there's some middle ground, though, where as a businessman, you might want get some of the folks that don't smoke, too?
After ten years of doing business in one of the most popular places in the City of Philadelphia, I have over 300,000 people a season come through my place in a period of to 14 25 weeks, so I think I can speak with some 15 authority on this. 16 There are many areas and many 17 restaurants in the nation and in the world where 18 you can go to a place, smoke if you want to, smoke 19 a pipe, smoke a cigar. You know, out of the 20 United States and in Asian, if you don't smoke, it's like you know, that's sacrilegious. So the point is that I think people should be given the option, being adults that we are, unless Big Brother's going to regulate everything in our lives, but at least give us the 24 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 option of saying, "I won't go to that damn restaurant anymore because they smoke too much." And you know what? The guy that owns the restaurant will get a message. And if people want to go to a restaurant where there's smoke or there's a smoking area or a nonsmoking area, let the people make up their minds up. Everybody here is over 21, everybody pays taxes -- too much, which we all know about, from gross receipts to net receipts, to the 10 percent, to everything. Enough's enough. You do this, and I assure you, there's going to be a lot of places that are going to close and are not going to be able to, you know, to work. It's that simple. And I think that people should be given the option of going to a nonsmoking or a smoking restaurant or an area that says, Here's a nonsmoking area, as do they now, and here's a nonsmoking area, as they do now. I wonder how many restaurants does Mr. Nutter go to and how many restaurants has he gone to in his lifetime where he has the audacity 25 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 to sit here and to, you know, promulgate some kind of rule like this. Where?
Do you have an area in your facility that's for nonsmokers?
There's -- we haven't had a problem in ten years. Why would there all -- why would there all -- one of the best mayors we had, I think, Wilson Goode, said, If it ain't broke, don't fix it. And he said that to me numerous times, if ain't broke, don't fix it. So what are we doing? Aren't there other things for us to do?
But what about your employees that work there? We've heard this before, that people, they need a job, they need an income. So many times some coal miners went down in the coal mines and, because they had to bring home the bacon, subjected themselves to a very tough atmosphere. Even though they knew it was bad for them, in many cases, they went into those mines, knowing that their fathers, their brothers /00 PUB. HEALTH & HUM. SVCS. - BILL 2 before them died. They had a choice: go find something else, but in many cases, there wasn't an alternative. What about your employees that are there because they really need a job, they need the money, and they'll do whatever it takes to grab that paycheck and the gratuities associated with it?
That's a good question. I think there's two answers to that question. I think, first and foremost, any individual who has that serious of a health problem should really not work or be anywhere near a restaurant, you know, and should possibly walk around with some type of control device that would, you know, be adaptable to help them breathe. So I think someone who is in that position really is not restaurant- bar- or nightclub-oriented. And our employees -- I think most of them either smoke or don't really care about it because it, you know, doesn't bother them that much.
You've been doing 27 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 this for, you said, 30 years. And what if you had a long-term employee that worked for you for 10, 15, 17 years, and all of a sudden, developed an ailment. Would you just basically pat 'em on the butt and say, Go find something else because you can't --
Absolutely not. I have a place for 'em. I'll put 'em in the kitchen, on the line, and he can't smoke there, and he'll love it, or I'll put 'em outside in a nonsmoking area. I mean, there's places that find people who don't want to smoke, there's places that find places for them to work. It's that's simple.
Absolutely. We don't want to force anybody to do anything they don't want to do, and we don't want to be forced to do anything that we don't want to do as an industry. This is the most important industry the City has.
Good afternoon, 28 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 Mr. Silver.
You mentioned in your remarks, and I was trying to follow you, that you are interested in a work-study program. Did you not say that? Could you elaborate on that?
I think Debbie Bat (ph.) from our restaurant association has much more information, is much more familiar with that than I, but something like that would be more of a pragmatic empirical type of a study or an empirical type of a work order that would basically take into consideration all of the things that we've talked about in the industry and get input from patrons and get input from other people and put that together and then see what is what.
I'm open to whatever our association is open to. I personally am against any ban whatsoever, and I know the association is also. And we're not trying to be, you know, 29 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 bad citizens; we're just saying that in the climate of doing business in the City, it's difficult enough to get by and to do what we have to do when we have so much in the way of taxes and rules and regulations and piers falling into the water and people getting shot and all of the other garbage that goes on in a large urban environment, that more invasive types of Bit Brother policies directed at adults, directed at adults -- we are adults, all of us. I don't want to know what you do in your private life, you don't want to know what I do, but we're all adults, and we do many different strange things and wonderful things.
Now, to follow up on Councilman Rizzo's question and recognizing that nothing is 100 percent and, hopefully, everything will have movement and progress, and also acknowledging your personal view, separate from what's in front of us today, 'cause I agree with you completely; there are a lot of other pressing priorities, some might say. And, obviously, there are differences on what those priorities should be. But given what's in front of us today 30 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 and recognizing that there has been at least articulated partially a willingness by all sides to come to an amicable -- if that's possible -- agreement that everyone -- that moves us from where we are, are you open to that? Setting your personal view aside.
Personal view aside, the only caveat I would say to that, and being objective, is that let's assume for a moment you passed a law. If any one of our restaurant members or bar members or associate members or nightclub members or anyone can basically ascribe a drop in business as a direct result of that law going into effect, I would say I'd be vehemently opposed to it, as should everyone, because a law should not be an economic punishment; it should be something that would work in another way. So I would agree with what you're saying only if -- and I would believe our association would agree to that -- that only if there's no economic detriment or economic turndown in any of our businesses, who cares, that's okay. Because, again, adults are adults. We're talking about business and we're talking about staying 31 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 alive and we're talking about basically feeding the school system and everybody here and paying all the salaries, etc., with taxes. So if we have a problem and we go out of business and our volume goes down, you're going to feel it.
Yes. Members of the Council, my name is Rick Berman, and I am the general counsel of the American Beverage Institute. The Institute is a restaurant organization, it's a nationwide organization, and many of our member restaurants are either inside 32 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 the City or outside, in the suburbs. I mention that because it's -- it's probably the most unusual position for me to be in. I'm here to tell you our views on the smoking ban as it's been proposed, but I am somewhat conflicted because you'll note by the time I am through testifying that we suspect that the restaurants in the City will suffer, but some of our members who are just outside the City line will actually benefit from the smoking ban, and this is based on experience that we've had around the country. And so, again, I'm not here to advocate as much as I am to share information with you, and I hope that you'll give me the opportunity to respond to some of your questions. In short, these types of bans essentially end up giving a Council or a county government the opportunity to pick winners and losers. There is not any doubt that business drops off when these bans are put in place. We did a study in California. The study was conducted by KMPG, Peat Marwick. They took a base of 7,000 establishments that were subject to the California ban. They surveyed -- it was about 33 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 7200 locations. They surveyed -- they sampled out of that 7200. The margin of error was just over percent, plus or minus. 5 And what we found was that after the ban was put in place in California in January of 1998, actually 59 percent of the businesses surveyed indicated a decrease in business, with a percent average decrease in business. There 10 were some businesses that increased; 6 percent of 11 the businesses increased, and 30 percent indicated 12 no effect. But the great majority, 59 percent of 13 the businesses, indicated a 26 percent loss in 14 business. And I'm happy to submit the entire 15 study for members of the Council, if you would 16 like to have it. 17 There is another aspect of this that 18 I'd like to bring to your attention from the 19 standpoint of a nationwide organization, again, 20 with restaurant locations here in the City, and 21 that aspect is the view or the mentality of the 22 chain-restaurant operator. These folks are 23 basically balancing two things when they operate: 24 they're trying, like any other hospitality 25 company, to provide a good experience to their 34 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 customers; and they're also, quite frankly, in business to maximize shareholder value. Many of these companies, in fact, I daresay, all of these companies have experienced these bans. There are people who will testify that when you put these bans in place, business actually increases. And as I said, you can find some anecdotal situations where it does increase, but you can bet that if these nationwide businesses were finding that the result of the ban, perhaps even the inadvertent result of the ban, was to increase their businesses, they would not be waiting for city councils to go ahead for bans; they would be doing it themselves, and they would be doing it because they have the selfish objective to try and increase business traffic. Today, in the restaurant industry, it is nearly impossible to raise prices. Productivity gains are very difficult to come by in the service industry. And so you will find, from Allen Greenspan to less are known economists, indications that the only way to actually increase their profitability is to increase their sales. And, again, I want to stress to you that these are 35 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 smart business people, and if they thought that a ban on smokers was going to increase their sales, they would be ahead of any city council. I also would like to give you some indication as to where we believe the situation is in regard to secondhand smoke.
I am not here as an expert on secondhand smoke, and I will not cite to you studies that we have done. And to the degree that what I share with you is hearsay, then I, you know, openly admit to that. But I've been in several of these council hearings around the country, and I have found that respected witnesses, such as the captain from the Surgeon General's Office, people from the Lung Association, people from the Heart Association, will continually cite a series of studies that suggest that secondhand smoke, even in relatively small amounts, is a significant health risk. Most of these studies key off of the 1993 Environmental Protection Agency study, the so-called EPA study. Two years ago, the EPA study was thrown out by a district court. It was thrown out by a District Court judge who is no friend of the 36 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 tobacco industry, and the District Court pointed out, quite succinctly, that -- to put it in layman's terms, the EPA had cooked the books. Yet, in hearing after hearing, we continually find that the EPA's study is cited as a reason for these smoking bans. And subsequent studies that come from the EPA study, we'll call it the progeny of the EPA study, rely heavily on that study. Now, I don't want to accuse the EPA of being intellectually dishonest on this issue, but, in fact, there is enormous momentum based on what has become a politically correct movement rather scientifically correct movement, and I would like to share with you that there are subsequent studies that have suggested that the secondhand smoke issue is overstated, especially in the restaurant industry. Again, I'm not here to attest to its validity, but a study came out in the March issue of the Journal of Exposure Analysis and Environmental Epidemiology, which is a peer reviewed. The study was performed by scientists at Oak Ridge, which is the laboratory run by the Department of Energy, and they studied waiters and 37 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 bartenders in the restaurant industry. The authors indicated that the exposure level for bartenders, waiters, and waitresses was one-sixth, one-sixth of the allowable OSHA standard. So this is relatively new research. I am not here again to tell you that smoking is harmful or it is not harmful, but I did want to share with you the results of the research and some of the criticism of some of the earlier research. At the end of the day, there are a lot of reasons why people don't go to restaurant, including the restaurants that I represent. Some people don't like the level of music at Hard Rock Cafe, which is a part of our group. Some people don't like the prices in some of our pricier restaurant members. Some people don't like the fact that kids are allowed, or that kids are not allowed, and so on. And today, as you have heard before me, consumers also have choices as to whether or not to go to a restaurant that they find to be environmentally friendly, depending upon their standard, or environmentally unfriendly. And it's 38 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 that choice which I think is most at issue here. We're hopeful that you will make a decision that favors choice and one that favors the consumers and, quite frankly, doesn't prejudice the City restaurants to the benefit of the restaurants outside the City. I'd be happy to answer any questions.
Thank you. Good afternoon, Mr. Berman. I apologize, I was away from my chair when you came up.
I wouldn't necessarily count on it. Now, you represent the American Beverage Institute; is that correct?
Okay. And you were 39 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 talking about the studies out of the Oak Ridge National Laboratory? Did I hear you talk about that earlier?
Well, the studies were performed by -- I will give you the names of the authors, if you would like, If you would just give me a moment here.
These are people who are in the Chemical and Analytical Science Division and the Computer Science and Mathematics Division of the Oak Ridge Lab.
Computer science and chemistry. 40 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
At least those are the Chemical and Analytical Sciences Division and Computer Science and Mathematics Division.
Okay. Were you here when the senior advisor to the Surgeon General of the United States of America was here?
Yes, correct. The study that I was referring to -- and, again, I'm happy to give you copies of this study. All this study did -- and, again, it was a peer review study. All the study did was capture, through mechanical devices, the amount of smoke people are exposed to in normal working environments in restaurants and other areas.
You're an attorney, okay. 41 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 Now, Mr. Jenkins, the chemist at the Oak Ridge National Laboratory, do you know if he's done any work with the tobacco companies?
Okay. And didn't he attempt to testify in the flight attendants' class action lawsuit?
I -- I have seen him criticized for -- for testifying as an expert witness.
Okay. Actually, his testimony was disallowed by the judge in that case; wasn't that true?
I really don't know. I -- I don't follow these people very well. In fact, I was only made aware of this study fairly recently.
Oh, okay. Now, I mean, I assume that you know the study well since you've presented it as evidence that secondhand smoke is not a danger to people.
No, I didn't -- I didn't say that. I said I only came here to share the information that is, you know, generally available 42 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 in the public domain.
Right. MR. BERMAN; for instance, I didn't mention the World Health Organization study, which also indicated that secondhand smoke was an overstated problem.
Yeah, I think there's been a fairly good media campaign around the World Health study report, which I do have and which I've read, and I have their press release disputing the reports of the British press around their report, but we don't have to have that argument today. Let me just put on the record that Dade County Circuit Court Judge Robert P. Kay barred Mr. Jenkins and his study at Oak Ridge in the Florida flight attendants' lawsuit, which, you probably know, subsequently was settled by the tobacco companies for $300 million in favor of the flight attendants, as well as $49 million in the attorneys' fees and the establishment of a foundation by the tobacco companies to study the issue of secondhand smoke and take the responsibility in any future lawsuits to prove 43 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 that secondhand smoke had not caused injury to those people. I mean, I think it's fairly clear from all of the information that is out in the public domain that Mr. Jenkins does work for the tobacco companies, has testified for the tobacco companies, and is clearly a witness on behalf of the tobacco companies, and that was one of the reasons why his testimony was not allowed in that particular case, as it was considered irrelevant.
Well, again, I'm not here to defend Mr. Jenkins or anyone else, but --
Well, I mean you raised Mr. Jenkins; I didn't raise Mr. Jenkins.
Yes, but I was only expressing the fact that this is a peer-reviewed study that was reviewed by other scientists and published in a credible medical journal.
Sure, right, okay. Well, I know the scientists at the tobacco companies also told us that smoking wasn't bad for us, either, I think.
And I'm not here to defend that; I'm only sharing the information. 44 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
Okay. Let's talk about your report. This is the California report. Now, is it my understanding that the document was conducted or the element was conducted between March 3rd and March 6th of 1998?
All right, and that the ban in California went into effect on January 1, 1998?
Okay. And the study, was that an examination of tax receipts or revenues by the bar owners?
No. This was -- this was a study done by Peat Marwick interviewing people who were operating restaurants and asking them what the impact had been on their businesses.
Now, are you sure that this study was conducted by Peat Marwick, or isn't it true that the questions were presented to Peat Marwick for them to look at and approve the questions? 45 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
Peat Marwick took the questions, they actually -- they took what questions we wanted to have answered. Obviously, they wouldn't know what questions we wanted to know to have answered.
We told them what questions we would like to have answered. They then took the questions and put them in a form that they felt was acceptable for a survey, and then they went ahead with it.
I had absolutely nothing to do with it; I turned it all over to them.
I understand. Now, you said that this was a phone survey, or was it a review of actual revenues?
It was a telephone survey of a sample of the 7,000 restaurants, or bars and taverns. 46 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
Okay. And that was within two months of the time that the legislation went into effect?
Did they compare the same time period for the previous year in the survey?
No. They asked people what the impact had been since the ban, and these were the results that they had gotten.
Gregory Oliva is the associate health program advisor of the local 47 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 program unit of the tobacco control section for the Department of Health Services, in Sacramento, California. Part of their responsibility is to monitor sales figures from bars and restaurants. Their survey shows that in 1999, the first-quarter sales, an actual review of receipts, as compared to the same quarter in 1998, which is the time period that you were doing the survey: In eating places with no alcoholic beverages, the percentage change in the taxable sales was a positive 7.2 percent; In eating places with beer and wine, for that same time period, there was a positive net change of 9.1 percent; For eating places with all types of liquor served, there was a positive change in taxable sales, a comparison between '98 and '99, of 6.3 percent; And that overall, for all eating and drinking establishments, the percentage change was 7.4 percent. Now, how do you think that compares with your survey results?
Well, firstly, you have -- 48 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 you have to understand that they have thrown in -- some of these numbers -- we've seen this before -- you have all the fast-food companies that are in these --
You have all the fast-food companies in these eating and drinking places. Secondly --
Are there fast-food companies in the beer and wine category?
Well, actually, Denny's in California is one of the bigger bars in California, but you will find in your non-alcohol --
You think Denny's is having such a tremendous impact on the market that they are skewing it?
No, no. I'm -- I'm only suggesting to you that those are not truly -- those numbers are not crafted to look at the people who were actually impacted. Secondly, when you look at the restaurants --
Have you seen the 49 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 study?
Yes -- I mean I've seen similar. What you also have to remember is that restaurants had the ban in place two years before. And so when you lump these restaurants in there, if restaurants are having increased business because Silicon Valley is doing well and everybody's income is going up, a restaurant whose sales are going up and who is not impacted by the ban is distorting the numbers that you have. And all restaurants across the country --
So this survey came out after the second -- after the second ban, if you will.
The second stage of the ban, right, the bars and taverns. 50 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 So what he's picking up there are lots of restaurants whose sales were increasing as the economy is-- I mean, sales are up across the country with -- having no regard to anything else, and all those numbers are --
I understand what you're saying. I'm just trying to understand the difference between the two surveys done at the same exact period of time, and one is showing on the tax receipts side the numbers up, while the impressions of telephone-survey participant is saying that they're down. I'm just trying to understand the --
I don't mean to be argumentative, but if I can -- I represent a lot of companies in California where the ban went into effect. And as their sales are going up because the economy is increased, they are masking the sales that are dropping because of the smoking ban. You've got huge numbers of more restaurants -- there are more restaurants in California than there are bars and taverns, and so most of the people in the sample weren't affected by the ban when that survey was made, and so it distorts the 51 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 numbers dramatically.
All right, okay. Lastly, in this particular area, I think your own survey, though does show, though, that only 44.8 percent of the connected establishments reported a decrease in business. And that's, I'm assuming, a sheer indication that those particular establishments were nowhere near as affected by the, quote/unquote, stand-alones, and you may or may nobody aware that what you may call a stand-alone, we probably call more of a bar, which many of them are exempt from this particular provision.
I'm not certain I caught what you said. I did say earlier that we had 36, 37 percent who said either no effect or an increase in business.
Well, I think that there are lots of restaurants that are members of mine who have, because of their customer base, decided to go smoke-free because they think that's what the public in their particular area wants, and 52 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 these people probably had some similar effect, even though they didn't know they would get it.
Are there any further questions? (No further questions.)
Please allow me to extend my gratitude to this committee for allowing the Philadelphia Hospitality and Business Alliance this opportunity to relay our up-to-the-minute concerns about Council Bill 314. My name is Mike Driscoll, and I am the Chairman of the Alliance Executive Committee. The Alliance represents the largest industry in Philadelphia. That industry is the hospitality industry. With over 400 business-establishment members, the Alliance represents both large and small businesses, taverns, restaurants, hotels, 53 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 purveyors, merchants, distributors, newsstands throughout this city. The Alliance strongly opposes Bill 314, even as amended by City Council on March 24, 2000 because of its negative impact on the economic viability of the City of Philadelphia and the thousands of businesses in the hospitality industry. First, the Alliance views Council Bill 11 314 as a major piece of legislation because of its wide-range impact on Philadelphia beyond the simple issue of smoking. Because this is a major wide impact and piece of legislation, we, the business community, do not understand the urgency at which this committee is moving Council Bill 314 through the legislative process. As the impact of this legislation on the business community and the economy of Philadelphia is reaching an extreme, it is the Alliance position that a reasonable method of proceeding with this legislation is through the establishment of a public-private sector working committee on smoking. A working committee is needed because the Alliance firmly believes that Council Bill 314 54 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 is anti-freedom of choice. The bill limits the freedom of choice of both establishment owners and patrons. Council Bill 314 is anti-free market. The marketplace should dictate what the market will tolerate and not an artificial government decree. This means marketplace forces, which allows the hospitality establishment owners and operators a choice, should be the determination on which a hospitality establishment decides its environment. Council Bill 314 is discriminatory. The very fabric of the hospitality industry is the notion of accommodation. This means that all segments of the marketplace are provided for, including smoking as well as nonsmoking patrons. Discriminating directives and regulations such as Council Bill 314 contradict the policy of inclusion and accommodation, which is essential to our industry. Council Bill 314 is unnecessary and extreme. As business people, the hospital industry has long been concerned about its clients and employees. Being concerned and responsive to concerns is what the hospitality industry is all 55 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 about. As a result, the Philadelphia hospitality market has long required that establishments cater to both smoking and nonsmoking patrons. In Philadelphia, there are establishments where the dining area is smoke-free, where smoking is allowed only in the lounge or bar, or where the entire restaurant -- like Bridges in Fairmount -- is smoke-free. Again, the important point to keep in mind is that these accommodations were made not because of a government-mandated regulation but, rather, on the basis of a business choice and marketplace forces in the hospitality industry. Council Bill 314 is unworkable and will result in an economic disaster. If the ordinance 17 were to be enacted based on the experiences of those regions which have enacted smoking bans, the economy of the City will be severely impacted. Yesterday, the Alliance distributed to the Council a number of studies outlining the negative impact that such bans has had on a number of cities, including the State of California. We, the business community, encourage you to take time and review this material. The bottom line is, smoking 56 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 bans are bad economic policy.
Council Bill 314 will impact Philadelphia's fragile socioeconomic foundation. Philadelphia's vast multi-ethnic, multicultural melting pot represents all that is unique and great about our nation, its government, and our society. Tolerance of diversity, respect for others, and compromise is a method by which Philadelphia is able to maintain tranquility among such a diverse population. While the intentions of this legislation may have been good at the outset, it is, at best, intolerant and discriminatory and will have the opposite effect of its -- the opposite of its intended effect, with the result of causing more economic and social problems than it resolves. As stated in a number of conversations and communications with Council, this alliance clearly recognizes the need to work with Council to bring about reasonable solutions that safeguard the health and safety of those living in or visiting Philadelphia. Reasonableness requires that smoking 57 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 legislation be evenhanded, reasonableness requires that smoking legislation be fair to the hospitality industry, the hospital marketplace, and its customers; Reasonableness requires that smoking legislation be at least market-driven and at least market-sensitive; Reasonableness requires that smoking legislation not be arbitrary; Reasonableness requires that smoking legislation establishes solutions that make good business sense and are enforceable; Reasonableness requires that smoking legislation be tolerant and inclusive but not discriminatory. The Alliance urges this committee and Council to commit its good offices towards working together with the business community of Philadelphia to find a reasonable compromise on the smoking issue as it relates to the hospitality and restaurant industries and to the health and welfare of residents and visitors to our great city. The Alliance is confident that we can reach agreements on the issue of assigns confident that 58 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 reach on smoking in public places and that the result will be reasonable legislation that promotes a healthy, clean, environmentally-safe hospitality industry in Philadelphia. The Alliance is again asking that Council Bill 314, which is now before this committee, be withdrawn and that a public-private sector working committee on smoking be created that has as its objective the development of an indoor public smoking policy which will have broad-based support. The proposed Council Bill 314, as amended on May 24, 2000, should be the starting point of the working committee. The Alliance respectfully asks that we set at the earliest possible time a meeting whereby the logistics and details of the working committee may be established with the goals being the creation of consensus legislation that will have the support of public and private sectors and the City's health community. In closing, on behalf of the over 400 business-establishment members of this alliance, I would like to thank the Council and this committee 59 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 for accommodating our group and for reaching out over the last week to understand our position and concerns. Be assured that the Alliance is eager to work with this committee and the Council in the weeks ahead. Thank you. )
Are there any questions from members of the committee? Councilman Nutter?
Thank you, Madam Chair. Good afternoon, Mr. Driscoll. Thank you very much for your testimony and your continued relationship as the general representative of the Alliance, but certainly there are many other people involved. I thought that the meeting yesterday morning was a good meeting that we had, yourself and Miss Bat and a number of other people who participated in that. And I wanted to do a couple things. One, just ask a couple questions; and, two, get some reaction and some response to other ideas that might be helpful in this particular process. 60 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 One of the things that I have wondered for sometime is, in any of the restaurants that you are familiar with, do you -- do they normally allow any smoking in the kitchen?
I can speak to our restaurant. We do not allow that. I can't speak for the others.
We don't allow a lot of things in a kitchen. Anything that could potentially be a contaminant to food in the preparatory phase, you know, we take what I would call extreme precautions that might not ordinarily be taken in other areas of our restaurant.
Okay. And is that then different when the food is out in the -- what do we call it? -- I guess the eating phase?
Well, there's no 23 smoking. There would be -- we require the chef to wear certain clothing and we require --
No. My question 61 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 was, the food is now moved out in the kitchen -- I'm glad there's no smoking in the kitchen. You expressed that you don't allow that because you're worried that the smoke, whether it's the actual smoke or, I guess, particulates or ash might actually get into the food. I assume that that's the concern. You said it would interfere with the --
Okay. And then I said, but it's different when out in the eating phase, when it's now out of the kitchen and out where the diner's going to enjoy it?
To a certain level. For instance, we wouldn't have a waitress with a cigarette in her hand delivering the food for fear of -- first of all, not knowing what the customers at that particular table preference might be, but also, as you indicated, perhaps a cigarette butt or an ash would fall into a shepherd's pie at Finnegan's Wake.
And the problem with that is. . . ? I mean, suppose the person was a 62 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 smoker; I mean, would it make any difference?
No, the recipient of the meals, suppose they were a smoker. I mean, do you think they would be concerned about anything getting in their food as well, even if the person is a smoker?
All right. And what about cigars and pipes in the establishment; do you allow that?
Okay, all right. What about many of the other restaurants; do they allow cigars and pipes?
It's the choice by the 63 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 owner and/or operator as to what the marketplace would tolerate or accept.
Mm-hmm. So even in some places where they allow smoking, either cigar or pipe smoke, is potentially even more offensive? Is that -- do you think that's the problem?
I think it's fair to say that some view it as more offensive.
So, therefore, they may have smoking sections, but it may be -- they may have more extreme policies and procedures within certain restaurants.
Okay. Tell me a little bit about, based on your experience as the representative of the Alliance, what the view or position of the restaurant community might be toward a prohibition on smoking restricted to the dining area.
Well, I think the -- the hospitality industry is prepared to analyze all aspects of your legislation. It really is asking for time to analyze how it may impact their 64 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 individual establishments.
I understand that but, I mean, you must have some perspective just on that fairly simple, somewhat narrow question. I mean, what's the -- you represent an organization; I assume you have some level of knowledge about what many people may do or what some segments of the community may do in terms of the operation of their establishments. Do most allow smoking in the dining area? do most not allow smoking in the dining area? Is it 50/50?
Smoking in the 65 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 dining areas.
And I would say that a higher majority would have designated smoking areas within the dining area.
What would be your reaction to any proposal that said you could continue smoking at the bar, if it's kind of a classic bar -- a restaurant-bar establishment, where the place is really a restaurant but they have a bar, it's all on the same premises. What would be your reaction to any proposal that said you could have smoking still at the bar but no 14 smoking in the dining area?
We would look to our members to see how that might affect an individual member. That may be -- I think, generally speaking, that would make some sense, but in practical -- in a practical sense, whether or not that can be done would have to be looked at.
The question was, as a representative of the industry, what do you 66 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 think the general reaction would be to a proposal that there would be no smoking in the dining area, and smoking would still be allowed at the bar or in the bar area? In most places, those are generally two somewhat distinct and separate rooms.
Generally, it would be met with some acceptance. And we would have to define -- when you say "bar area," I'm assuming you're including some tables in that area, just not --
I mean, you've got a bar, you've got bar stools, there might be an aisle, there might be some tables across from that area.
But for most places, I mean, the bar is usually a relatively defined area, and then the dining area is usually another relatively defined area.
Okay. And you made 67 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 mention of the work group, which, again, I certainly believe is a good idea, and I would expect that that kind of group would be headed up probably by our Health Commissioner and other agencies or departments, boards or commissions of the government as well as representatives of restaurant and hospitality industry, and then there's the American Society of Heating and Refrigeration and Air-conditioning, engineers, and the EPA and OSHA and a number of other people who are qualified in the area of mechanical engineering and ventilation. Do you think that that would be a good combination to try to put together for this?
I think an equal number of selected members by each side would be fair.
What do you think is a reasonable amount of time for that group of people to seriously and legitimately work together to try to come up with a proposal on how to deal with this going forward?
I'm prepared to speak on the Alliance. We're prepared to go to work immediately. How long that would take is a 68 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 difficult proposition. Certainly months; I don't think years.
All right, that narrows it down to some extent. I mean, I'm glad you didn't say "forever." Three, four, five months do you think it would take for people seriously working and reading and studying and taking information?
Tomorrow's June 1st so the year is already half over, so I would say till the end of the year.
And we had some discussion. There are various proposals out -- whether it's in the ventilation area, you know the deal has been amended to deal with the creation of a smoking area or a smoking lounge, which would be a designated area specifically for smoking. I recognize that that particular proposal may help some in the industry; it may not help others. But it would seem to me that that kind of proposal, if people agree that it's helpful to some probably would need some phase-in time period or some amount of time if someone wanted to pursue that. I mean, you have to get building permits, you have 69 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 to start, you know, some work if they decide to go that particular route. So we should probably try to establish some time parameters within which you would know there could be a starting point and an ending point to some effort to respond to that particular provision?
Okay. I think in our conversation, either yesterday or in the previous conversation, I raised the issue of, given the health issues that have been raised, I think that there could be a legitimate discussion, if not argument, that if we are asking people from a public health perspective to possibly make some improvements to improve air quality and overall indoor air quality in their establishment, as we have assisted other businesses with security rebate programs and a wide variety of other programs and policies, what do you think the reaction would be to a discussion around possible assistance from the City to help people if they want to pursue those kind of improvements to their 70 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 establishment?
Councilwoman Reynolds Brown didn't hear your answer to that question.
Okay. If there were a study group -- maybe this will be the last question for you. If there were a study group, we would expect that the group, I guess, would come up with a report or a set of recommendations and, more than likely, either to the Council, full Council, or to this committee, to the Chair. Would it be your expectation that upon completion of the study group's work that some action could or should be taken by Council to further address this particular issue?
I think that would be the conclusion, a logical conclusion.
Okay. And with 71 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 regard to the smoking-at-the-bar issue --
Although, Councilman, I do think that this committee -- and I don't want to give this committee more work, but secondhand smoke within a facility is one aspect, and we ought to narrow it so we can get something accomplished, but indoor air quality is a larger issue.
For instance, the Council should know that many of our restaurants have voluntarily put in smoke-eaters, filters, different kind of air processing, and it's not simply because of smoking issues, but because -- to purify the air, get more oxygen. And there's a movement afoot in a lot of industries right now to create better work environments by increased oxygen, aromatic scents, that sort of thing. Anything that could be added to this discussion that would improve air quality in the restaurants I think would be welcomed as well.
So, lastly -- I mean, in kind of wrapping up our discussion, is it your feeling that if there were set time 72 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 parameters for the study group, any final action to be taken on this particular issue, as well as a timeframe established around when people would have to be in full compliance with what, in essence, is an effort to establish some minimal standards for indoor air quality, if that was some reasonable amount of time of a year, a year and a half, I mean, do you think that that's workable and realistic and respectful to people who are trying to work and function in a constantly changing business environment?
I think that would be a quick -- I think we'll get a better understanding real quickly with that work study of what would be reasonable there. See, one thing I just want to make the Council aware of, and maybe you already are, the reason there's a lot of sensitivity here is, you see a lot of successful restaurant owners, and my hat's off to them because I've only been in this business going on 4 years, and I understand the 24/7 effort that goes into making a successful restaurant. But we see these names that have been around in Philadelphia for a long time, but what 73 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 we don't see is that 8 out of 10 restaurants nationwide go out of business within the first 3 years. So we've all chosen a high-risk business venture, and we've all -- most of us have put a great deal of our personal capital on the line. So facing the odds when we went into this business and then looking at increased odds that changed after we're already in the business but we've already signed that loan make us very sensitive to anything that spends more money in our facilities. So I just want the Council as a whole to understand that, that each month we're writing out these mortgage checks, we're thinking about our employees. And at the same time, pre-mandated, many of us have taken provisions to already better our indoor air qualities. So having a better understanding of those sensitivities may influence your decision a bit in today's hearings. (Applause.)
Thank you, Madam Chair. 74 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 Mr. Driscoll, I think what Councilman Nutter -- at least for me anyway, what I'd like to see when we keep talking about this working committee and something I had suggested, I think, last week, is that we have to have a target date, at least initially to shoot for. Because if you don't, you wind up with a situation like I've wound up -- I have found myself in with the carriage bill. It's two years, and even though I set up a committee, we never really established some dates in which to look to bring some closure to this. I suspect that whatever the Councilman decides to do, that he'll probably not look to do it immediately. And by "immediately," I would suspect that he doesn't mean to do it over the summer months. You know, we recess June 22nd, and I think we reconvene on September 14th. End of September, beginning of October, from now to then, do you think that would be a reasonable amount of time that this working committee could work? I think it gives everybody an incentive to really sit down and say, We really got to get this done. Because if you say, Well, 75 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 you know, maybe by the end of the year -- although we're talking years, we're only talking months -- it just kind of leaves it rather open-ended. And I think if you determine that by -- and I'm just using September 30th of this year that the committee report would come back to this Council Committee for its recommendation, I think you'd get a lot more done that way. And I know everybody's going to be busy with the convention coming and the summer but, you know, hey, I'm here, we're willing to put our time in. But I'm looking for some more definitive date or dates to look at. And I think if we use the end of the September, it will give us -- July, August, September -- the better part of three months. And, again, I'm not suggesting that that's acceptable to the rest of the folks up here, but I'd like to start talking about that.
I'd like to survey our members and get back to you in short order.
Short order, see that's -- we won't be here much lung longer, and we are under a very busy time schedule right now 76 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 with all of the bills that are coming out. So, I mean, maybe we could make a suggestion then we can talk about that suggestion.
I think the end of the year is reasonable. And I say that because you've hit the nail on the head in that we hope -- and this is very fluid right now but there are --
My point is, I think that the foundation has been laid. Basically everybody understands what is being attempted to be accomplished here. I don't know if you really need six months. I mean, three months, you don't think that would be sufficient? Because then you're going to wind up, you're going to have the issue of, Well, the holidays are on us, it's Thanksgiving, and then it's the Christmas holidays. And you're really not going to get anything done November through December. So that would take us into the next year, and I'd like to close that window a little bit more somewhere between now and shortly there after the time we reconvene, in late September, early October at the latest. And if you have to go back and survey 77 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 them, fine, but I'm offering that as a suggestion. But the end of the year, I think that we run into too many other issues 'cause then we get back into the business towards the December calendar of getting bills out and all the other things we have to deal with and budget, and it really gets tight around here so --
Thank you, thank you. I'm going to hold my question because I see on the witness list that there's a -- is there a represent of the HVAC industry here? Are they here? Okay, 'cause I wanted to point out that I spoke with an HVAC contractor that tells me that you have to be real careful, and guys have tried to accommodate the smoking/nonsmoking by changing ventilation. But you have to be careful; there's some safety and fire code requirements that have to be followed. You just can't start changing the 78 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 way duct work flows without it really being carefully considered. So I'm going to hold that question since there's someone here representing that industry, just to make sure that these changes that are being made aren't jeopardizing the facility.
Paul Geissler Enron Energy Services. UNIDENTIFIED MAN: Excuse me, Councilpeople. I have a statement here from --
Could we have Paul Geissler first. UNIDENTIFIED MAN: All right. Well, this is in response to Councilman Nutter's statement about Roger Jenkins. 79 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
Are you on the list to testify? UNIDENTIFIED MAN: But not for this.
You can testify about whatever you want to testify about. We just need to get your name and information. If you could see the tall gentleman in the blue shirt there and at least get him your information, then you can come up and talk about whatever you want to talk about. UNIDENTIFIED MAN: But this is in response to your --
I understand that. I will be here, I will listen. (Witness comes forward.)
My name is Paul Geissler I'm a member of the American Society of Heating Refrigeration and Air-conditioning Engineers, the local Philadelphia chapter. Michael Nutter asked me to join this committee session today after a 80 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 brief conversation yesterday in relationship to HVAC impact for the proposed amendment and the bill at the table. My experience is years of design and 6 engineering of HVAC systems, heating, ventilation, 7 or air-conditioning systems, for institutional, 8 hospital, office buildings, and commercial 9 applications. 10 Basically, I'm just here to answer 11 questions more so than give testimony.
Are you aware -- maybe I should be, but I'm not. When a person wants to remodel or build a building and they submit their building plan to the appropriate department within government, they also have to submit the HVAC plan; is that correct?
To my knowledge, yes, 81 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 that is correct.
Now, if one of these establishments would want to make alterations using the existing HVAC system to accommodate a nonsmoking area, would they have to resubmit the plan to allow changes to that system? And I'll continue my comment, my question. Is it safe to say that an improper or a change in the system could adversely affect the safety and fire facility and also the residence? Because I've heard many times where a fire has actually used the duct work to move through a particular building. And in many cases, it was duct work that was not installed properly or with good design criteria. So could you just comment on that?
Well, I guess the best way to comment on that is, there are codes in place in the City of Philadelphia, primarily the BOCA codes, which all engineers need to adhere to in the planned specifications of their system. Now, whether they are adhered to or not in application is -- you can make a law but if nobody follows it, you're in violation of the law. 82 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 Now, yes, there is the possibility that alterations or installations that are not per code can create a hazardous situation. Do all good installations prevent fires and mishaps? No. Obviously, that's not the case. Now, I don't know if that answers your question in terms of --
Aren't there some requirements -- when you submit an HVAC plan to a municipality and they review it, aren't there requirements for fire dampers and things like that that make a building and the occupants of that building a safer place?
In my experience, the primary concern of the building officials inspecting plans is the proper application of fire dampers, smoke partitions, smoke dampers, smoke detectors to shut down air systems in the event of an incident. That's basically their primary focus.
So I think that before this conversation is over, our Licenses and Inspections people really need to be here to 83 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 explain what interaction they're going to have in the event that we go forward and more changes to existing systems occur.
Great. Thanks for coming, and I don't know if anybody else has a question.
Mr. Geissler, I'm sorry. Your basic testimony was that from an engineering standpoint, you believe that there are either existing systems or technology that can significantly improve indoor air quality by a variety of either mechanical or aerodynamic techniques?
Yes. You can improve air quality with good HVAC designs and utilizing good practice and good engineering.
Yes. It's not the only issue with indoor air quality, but it is a contributing issue.
Okay, all right. 84 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 Thank you. Thank you very much.
Thank you very much. Our next panel will be Riyad Marahra, Mary Tracy and Neil Stein. (Witness comes forward.)
Would you state your name for the record and proceed with your testimony.
My name is Riyad Marahra. I am a business owner, a restaurant owner here in Philadelphia, and I was invited to testify, to voice my opinion for the smoking ban bill. I strongly support it because the nonsmoker does not have to suffer from any secondhand smoking. We all heard what dangers of the secondhand smoking. On top of that, I don't think that will have any impact whatsoever on the gross revenue. We all go to restaurants to eat, we go to the lawyer to discuss our business, we go to lawyer -- we don't have to smoke at that time. I don't see anybody here smoking. 85 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 And this is all thank you.
Good afternoon. My name is Mary Tracy, and I am from the Health Promotion Council of Southeastern Pennsylvania. It's a nonprofit corporation organized in 1981, with the mission to promote health and prevent disease, especially among those at greatest risk, through education and outreach and advocacy. The Health Promotion Council strongly supports a public health policy aimed at protecting the rights of all workers to breathe clean air. In an effort to learn about the smoking policies in the Philadelphia community, HPC conducted an informal survey of 231 Center City Philadelphia businesses. It was during that survey that I met Riyad, who is the owner of Riyad's Restaurant. We found that 77 percent or 177 out of 231 workplaces that we visited were already smoke-free. And of the 55 workplaces that allowed smoking, 85 percent, or 47, are connected to the restaurant or hospitality industry. 86 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 Employees in these restaurants work long hours and breathe contaminated air, which contains over 4700 chemicals, 43 which we know are carcinogens. We learned from the survey that if you work in a hair salon or in a shoe repair place, for a law or accounting firm, if you work in a school, you'll breathe smoke-free air. If you sell computers or books or clothing, even women's lingerie, you breathe smoke-free air. If you work for City Hall or in any of the publicly-owned buildings, you breathe clean. Air travel agencies, employment agencies, church offices, airline offices -- I mean, you name it, every single one of them, there is no smoking. And several of them looked at me like, Well, isn't that the law isn't, that already the law? And they were pretty shocked to find out that it wasn't. I think for one reason we heard today, that a lot of business owners have established policies, and that has made it easier for the businesses to say no smoking in this workplace, because there has been a policy already set up. And we know. I mean, I've been in this 87 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 tobacco business for about four years now. I know many of you because I'm a person who's interested in the Philadelphia community. I'm an activist in my own neighborhood, and I have become very involved in issues that I think are important for the public health and safety. And we did not enter into this, I guess, campaign because we wanted to hurt the restaurants in this city. Quite the contrary. As a Philadelphian, I am very proud of the restaurants and I admire all of the entrepreneurs that are having businesses, hiring people, and serving food, because there's nothing I like more than going out to eat. And it's not even about me going out to eat and getting annoyed when I've spent my hard-earned dollars on a meal and someone ruins it with smoke. You know, I will make a mental note and not return to that restaurant, and sometimes it makes sad because it's a restaurant where the food has been great. But I can understand the choice issue there. Yet I know that I don't get deathly sick. There are people -- 8 percent of Philadelphians have asthma, and so for them, they have to 88 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 actually send somebody into the restaurant before they can even venture in there. And there's a whole world of eateries that they're deprived from enjoying. And I think what I've learned in this tobacco business, because we've studied California and we've studied Boston, we've studied New York, and the same tactics are implemented every time: the doom and gloom, that our industry will collapse, that no one will eat at these restaurants and that everyone will go over to City Line. Well, let me tell you, I live on the edge of City Line, and I always come into Center City because there is no place like the City, there is no place out in the suburbs that I would ever want to go to that would surpass what I find in my city.
And I think we'll find a lot of people from the suburbs coming into the City because they'll know that no matter where they go, it will be smoke-free. That's my personal opinion. Now, I've heard the argument of choice. I know, you guys are entrepreneurs, and 89 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 you hate anybody -- particularly the government -- telling you what to do. But already the government is there to ensure that the food is clean and safe, that everybody washes their hands, that there are smoke detectors. I mean, because it's a public place, there are certain things we already to have the government in to make sure we feel safe in there. And I think, you know, in a few years, this will be a no-brainer and people will say, I can't imagine what it was like when we were allowed smoking. " And just randomly asking people if they would sign this petition, and I have a copy for each Councilmember, because you can see they're from South Philadelphia, North Philadelphia, West Philadelphia, Northeast Philadelphia, Germany. I said to the German people, You're tourists here, and we're really worried that tourists won't come here if we have a smoke-free restaurant policy. And they said, That's not a problem for us, we 90 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 don't mind. Then I talked to someone from New York, who said, You know what, we have the smoke-free restaurants in New York, and I think it's very backwards when I come to Philadelphia. So the whole perception of Philadelphia, you know, not having a smoke-free restaurant law, a smoke-free workplace law, making the world a safer place for everybody, it's time. It's time, and maybe we did rush into it and maybe the restaurant industry got their backs up because they felt like we're trying to tell them what to do. But it really isn't about that. I think we really thought that if everybody does it, no one's going to be hurt. And that's what Mr. Riyad says. When I went and talked to him randomly, he had his pregnant wife there working and another -- it looked like another relative. He said, I would love to have smoke-free, but if I do it and nobody else does it, I will lose business. And we don't want you to lose business. This is not what this is about, believe that. One thing I would just like to hand up with the testimony. You know, we had this fellow 91 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 from Washington that came up here and sort of quoted -- let me see, what did he say, something about -- oh, yeah, Mr. Berman. I think he said, I don't want to appear -- you know, I don't want to -- what was the word? Something about the EPA being intellectually dishonest. Well, we know the EPA would never be intellectually dishonest. What they do, their studies are valid. But we do know the tobacco industry has been dishonest. And if you would just turn back to some testimony, there was a quote from an employee of Philip Morris, an executive named David Laufer, in 1994, when they were discussing their strategy to override the bills in California. And, basically -- basically -- maybe Councilman Nutter, you could help me out here, if someone could just read on the second page. It's only three lines there.
It was Mr. Laufer. What Mr. Laufer said -- I apologize. I'll have to get that to you, but he admitted that the economic impact arguments -- "dire predictions," he called 92 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 them -- used to generate oppositions to smoking bans rarely come true. And I think we'll find that here in Philadelphia, that these economic impact arguments will not come true, that we will be perceived as a progressive city that cares not only about the public health -- this is the Public Health Committee. You are the folks who have listened to hour after hour and hour of testimony by the public health experts, by the doctors who treat patients. The people who really know about secondhand smoke knows what it does, not the restaurant industry. I think it's our duty to do some action to make our Philadelphia workplaces safer, our public places safer, and our restaurant more conducive to those of us who would like to attend them. Thank you.
Thank you very much. Andy Simpson, Bruce Cooper, and Bill 23 Pawliczek. (Witnesses come forward.) The Chair recognizes Councilwoman 93 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 Brown.
I'd like to go on the record by first saying that I was very, very encouraged by Mr. Driscoll's comment. Is he still here? Mr. Driscoll? And having heard his willingness to sit down with the Chair and members of the committee, I want to go on record to support any amendments that come forward before the committee that reflect the dialogue, as well as going on record to support the bill moving out of committee, with the understanding that there will be a working group and there will be a date certain that we will get recommendations back on how to proceed from that point forward.
Thank you very much. Is Antonio Schiavone here? Okay, would you all please proceed with your testimony. Identify yourself for the record and then proceed.
Yes. My name is Andy Simpson, I'm the Area Director for TGI Friday's in the City of Philadelphia, and I -- 94 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
You testified before. Do you have a significant different testimony than you had before?
It is very similar, but the last time I spoke, there was very few here, so I think it was very late.
Well, it's all been made a part of the record, which is very important, but we can't deny you the right to speak so you can go ahead.
Well, the only real significant issues were during the course of this week, I had done some research into how some of the amendments to Councilman Nutter's bill would affect our restaurants, and in consultation with some facilities people, it would be a significant financial impact for us to adhere to some of these amendments, as far as separate rooms and separate ventilation systems. And, you know, something that wasn't in my first testimony was that over the past two years, we've built five restaurants in the suburbs of Philadelphia and South Jersey. And that's mostly because it's tough to do business in the 95 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 City, financially and otherwise. And if this bill goes through, it's going to make it even more financially difficult for us, and that trend will probably continue where, instead of building restaurants and supplying jobs to the people of Philadelphia, we will be forced to build those restaurant outside of the City. The rest of my testimony is pretty much the same. I would just urge you not to pass this bill. And in reference to one of the Councilman's comments earlier about how it will affect our employees, I have one of my employees, Laura Payne here, who would also like to testify very briefly, who wasn't here last week, but was standing listening how it would affect her as an employee of Friday's.
How many restaurants do you have in the City of Philadelphia?
City Line Avenue, Second 96 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 and South, 18th and the Parkway, and the Philadelphia Airport.
Good afternoon. My name is Laura Payne. I'm a waitress at TGI Friday's on South Street. I'm also a single mother working to raise my son and put myself through college. I am not here for a pat on the back or for you all to feel sorry for me but to give the Councilmembers an opportunity to put a face to those that this ban will have the greatest effect on. I started working in this industry five years ago. I never once considered my job to be hazardous. After hearing the testimony of last week, frankly, I still do not. Waiting tables is my choice. If I had problems with cigarette smoke, my managers would make arrangements for me to work in other stations. It is my choice, just as it is my choice what job I take or what health risks are involved in it. When a customer comes into my restaurant, they are given a choice: smoking or 97 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 nonsmoking, or first available. Oftentimes, it isn't their smoking preference that dictates where they sit; it is how close they are to the bar or how close they are to a television. From our older patrons to our families with small children, when there is a game on the television or there is a good song on the radio, it doesn't seem to matter where they sit. For those that it does matter, our restaurant offers three times more nonsmoking tables than it does smoking ones. Only six of those nonsmoking tables are located behind the smoking stations, where they would have to walk through the smoking stations to get to the restrooms. I love my job. But more importantly, I need it. I work for tips, tips that are given based on the amount of the guest bill. If this ban takes away 20 to 30 percent of the sales in our store, the only ones that would lose out here are the servers, bartenders, hosts, and busers that work depend on these tips. Even if the percentage is not so drastic, I cannot afford for sales to go down even percent. 98 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 The bottom line is that it has always been always been my customers' choice whether or not to smoke, whether or not to sit in a smoking station, or patronize a restaurant that allows people to smoke inside. The notion that someone would have to drive an hour to find a nonsmoking restaurant is simply not true. I'm fairly new to the Philadelphia area, and I've managed to find quite a few nonsmoking restaurants. And the thought that anyone would be forced to work in a hazardous environment is also unreal. Again, it is my choice. I'm asking the Council to take a real look at who the ban going is going to affect. Please let my customers continue to exercise their right of choice. If they decide to come in and dine with us, great. And if they don't, we won't be happy, but it will still be their choice. Thank you.
Madam Chair, members of the committee, I thank you for this opportunity to 99 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 testify today. My name is William Pawliczek. I am the owner of Cavanaugh's Restaurant, located at 39th and Sansom, in University City. I come before you today in strong opposition of Council Bill 314. It is often said that the devil is in the details, and such is the case with this proposed smoking ban, as outlined in Council Bill 10 314 and its amendments. First and foremost, in the time when government and organizations around the world are attempting to establish programs which reward responsible alcohol service and management, Philadelphia is moving in the opposite direction. Allow me to explain. Organizations such as MADD, SADD, NOBA, and the Department of Transportation have established programs to increase food consumption while drinking alcoholic beverages. The notion behind this program is to lower the blood alcohol content and lessen the effect of alcohol upon the consumer. By penalizing Philadelphia restaurants, Council Bill 314 is contrary to the national trends designed to control DWIs. 100 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 Then there's the question of equality. Everyone is treated differently in this bill. The ordinance essentially bans smoking in many of the City's larger, better ventilated restaurant, which currently accommodates smokers and nonsmokers, while it exempts gentlemen's club, private clubs, union halls, veteran service organizations like the VFW, small corner restaurants, and most taverns. How absurd that the result of an ordinance to allow smoking in small establishments while banning it in larger establishments like mine, who have made an effort to improve ventilation and accommodate both smokers and nonsmokers. The ordinance is elitist in its resolve to allow people who want to accommodate their smoking family and friends and afford to have their family reunion or wedding day rehearsal at a private club, then precludes those who must have their function at a more affordable restaurant from doing so. The ordinance is hypocritical. If the smoking ban is a good idea, then why isn't it applied everywhere, including bars, union halls, 101 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 private clubs, and start-up establishments. My opposition to this ordinance is almost entirely due to its --
We don't want to be rude and not listen to you. Excuse us. (Break taken.) - - - (Proceedings resume.)
Thank you. We're sorry. We didn't mean to disrespect so please continue with your testimony.
My opposition to this ordinance is almost entirely due to its unfairness to restaurants doing business side by side. How can the heavy hand of local government create such an unfair playing field among businesses who compete. As a restaurant owner and a prospective developer of new restaurants in the future, there is not a scintilla of a chance of me ever developing a mid-scale or a fine-dining restaurant in Philadelphia with more restrictive regulations 102 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 than my competition in Bucks, Delaware, or Montgomery Counties. This is a fairness issue, a property rights issue, and a individual responsibility issue. The other fundamental issue here is freedom of choice. Customers are free to choose a smoking or a nonsmoking restaurant. Virtually all of the restaurants affected by the ordinance have a separate smoking area and room. No one is ever forced to go to a smoking restaurant. People vote with their feet every day in choosing where to dine. This is how it works in America. I am a nonsmoker who believes this ordinance is way out of line for Philadelphia. As a restaurant owner, I feel I am a responsible business person who is capable of evaluating the needs and the well-being of my customers and employees and resent government placing artificial limitations on who I may serve, especially when some segments of the competition do not have to operate under the same rules. I have devoted my hospitality career to be inclusive and welcome and serve all customers. For the City of Philadelphia to prohibit my 103 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 ability to accommodate smokers is grossly unfair. Remember, the people get to choose where they eat and where they work. The message this ordinance sends is, the end justifies the means, even if it's unfair. The message this ordinance sends is tolerance and respect of the individual doesn't extend to smokers. The message the ordinance sends is, it's okay for an adult to smoke if you're able to do it in a private club or in a room in bar that serves 60 percent food or can afford to joy a join a country club. I have worked hundreds of hours to be a responsible member of my community and to build a respectable business in Philadelphia, a business that is responsive to market forces and changes, a business that embraces a policy of diversity and inclusion. I have always found willingness on the part of our community to address problems in a reasonable, caring manner. As a restaurant owner and a member of Philadelphia's business community, I implore the committee and the Council to invoke a sense of reasonableness into this debate. What is 104 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 reasonable is the establishment of a working group of Philadelphians from both the public service center and the impacted business community working together to establish a policy and a plan which is pro-health, pro-business, pro-consumer, inclusive, nondiscriminatory, reasonable, evenhanded, and enforceable, all of which Council Bill 314 is not. Thank you. (Applause.)
Excuse me. I have an employee here, Monica Gangolf (ph.), from Finnegan's Wake, that would like to testify also.
My name is Monica Gangolf. I'm not here because anybody asked me to be here; I'm here because I want to be here. I'm 66 years old, I have four children that I raised, and I have seven grandchildren. I retired from nursing a year ago. For 15 years, I worked in a nonsmoking facility. A year ago, I retired, and 105 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 guess what? I chose to work at Finnegan's Wake, full of smoke. It was my choice. When all of these things started, these hearings started, nobody came to me. Nobody said to me, "Monica, what do you think? You're an employee. How do you feel about it?" I can back to the hospital any day, I can go back to the nursing home. I don't want to do that. I'm working where I choose to work. I'm very insulted that people say that employees need to be told, they need to be protected. You don't have to protect me. I've been protecting myself for 66 years, and I certainly don't need anybody now to tell me what's good for me and what isn't good for me. (Applause.)
Thank you very much for your testimony. Michael Smith, Fred Nichols. Fred, you want to testify? Is Antonio Schiavone here? (Witnesses come forward.) 106 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
Please identify yourself for the record and proceed with your testimony.
The American Lung Association of Pennsylvania appreciates the opportunity to --
Would you wait a moment, please, so Mr. Nichols can testify. He's in that past group.
My name is Fred Nichols, and I am with the Philadelphia Unified Minority Beverage Association. And I wish to thank the Committee on Public Health and Human Services for the opportunity to testify today about the 107 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 proposed smoking ban. First, I would like to say that I am not personally a smoker. But like the vast majority of people, I support the right of those who wish to smoke. In my 45 years in the business, I've had virtually no complaints from nonsmokers about smoking in my lounge. I am not a scientist, but I do know there's disagreement between scientific studies concerning secondhand smoke and bars and restaurant around the country. The point is that the issue is most certainly not clear-cut regarding its health of effects. An example: The EPA study used to ban smoking in the State of California was deemed flawed by Federal Judge Osteen (ph.). The Court ruled that the EPA wrongly classified secondhand smoke as a group A known human carcinogens, among numerous other flaws. Nevertheless, based on this erroneous information, the law was passed and the California bars and restaurants were penalized and lost business. The federal court confirmed that it may be politically correct to attack secondhand smoke, but it is not scientifically correct; nor, 108 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 in the Federal Court's opinion, legally correct. A few Sundays ago, as I always do, I was watching the Sunday morning show, "Inside Edition," where they have six panelists who are broken down into so-called conservatives, liberals, and independents, and these guys never agree on any single one issue. This was the first time that they were unanimous. They all agreed that this bill was not good or necessary for our hospitality industry. Everyone on the panel, as we do in the industry, felt that the marketplace should determine whether or not an establishment should be smoking or nonsmoking. Also today, we'd like to point out that smoke ventilation are far more efficient than they were in the past. When you go into a restaurant, there are few smoke-filled rooms in the smoking section of these restaurants, bars, and diners. And you can make it mandatory that restaurants have high-performance smoke ventilators in the smoking sections of their lounges, restaurants, or diners. Believe me, as a businessman, if smoking was causing us to lose customers, we 109 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 ourselves would initiate a smoking ban, but such is not the case. Also, we who live in the City of Philadelphia are aware of the millions of dollars raised from the percent liquor tax for the 7 Philadelphia School Board. This legislation could 8 be hurt from -- this legislation could hurt that 9 particular source of revenue. 10 And we also must be aware that there are many fine restaurants and clubs in Delaware, Bucks, Montgomery, and Chester Counties as well as just across the bridge, in New Jersey. There are no smoking bans in those establishments. That one factor alone could determine whether the business stays in Philadelphia or goes to a non- Philadelphia eating or drinking place. I feel that we will absolutely lose business to out-of-city competitors as well as the City of Philadelphia will lose valuable tax revenue. We humbly ask you to reconsider this current proposed legislation and permit a work study group -- you've heard a lot about that in previous testimony today -- and permit a work study group with our hospitality coalition. I am 110 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 confident that together, City Council and the hospitality coalition -- I think it's officially called "the Hospitality and Business Alliance" -- that working together, we would be able to come up with a proposal to the mutual benefit of both the City of Philadelphia and our industry. I thank you for your consideration.
Could we have Josh Mitteldorf come up also. (Witness comes forward.)
And Sterling Barr. What we would like for you gentlemen to do, if you have testimony, present it, and would you summarize your testimony. I think we have documented, with this hearing and the last one, the adverse health effects from secondhand smoke. Thank you.
Good afternoon, Councilmembers. The American Lung Association of Pennsylvania appreciates the opportunity to 111 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 present comments to the City of Philadelphia. My name is Michael Smith, and I serve as the Communications Director for the five-county region Southeastern Pennsylvania. The American Lung Association is here today to support Councilman Michael Nutter's bill 8 proposing an ordinance that would further protect the public health and welfare from the dangerous, unnecessary, and involuntary health risks associated with secondhand tobacco smoke. We thank those members of City Council who have chosen to cosponsor this bill and encourage all members of this Committee on Public Health and Human Services, and, indeed, all members of Council and Mayor Street, to support it as well. The American Lung Association is dedicated to the prevention of lung disease and the promotion of lung health. I am here today not only to represent the Lung Association, but the interests of everyone who breathes indoor air, and especially the interests of the in Pennsylvanians who struggle with chronic lung disease, the people most at risk for health problems precipitated by secondhand smoke. 112 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 On April the 25th, this committee heard irrefutable testimony on the adverse health effects of secondhand smoke from the best medical authorities on the subject at area hospital and universities. In summary, these health professionals testified that: Secondhand smoke is bad for infants before and after birth; Secondhand smoke is bad for children; Secondhand smoke is bad for adolescents and adults; And secondhand smoke is bad for workers. In short, it is a major public health problem. We're not talking about a minor inconvenience that should be tolerated or accommodated; we're talking about a serious public health concern. Secondhand smoke contains a mixture of thousands of chemicals, including dozens of carcinogens, dozens of chemicals regulated as hazardous in the air or in waste, and a couple hundred poisons. S. Every year, including 113 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 lung cancer and heart disease. Right now, many workers are forced by their economic situations to choose between having their health and having a job. We ask how many of the establishments opposing Councilman Nutter's bill and arguing so strongly for freedom and choice are equally willing to uphold their employees' rights to their freedom and choice not to be exposed to the deadly carcinogens and poisons in secondhand smoke. Some witnesses may contend that better ventilation may solve the problem. This simply is not true. Better ventilation may reduce exposure, but it doesn't eliminate it, and there is no known safe exposure level to cancer-causing secondhand smoke. It is simply not enough. The Lung Association would ask Council to remember that this is not, at its heart, a public health issue, it is not a business issue; exposing people to secondhand smoke does kill and is not necessary for the accomplishment of any legitimate business purpose. Public health policy must be based on the scientific evidence and not dictated by tobacco industry-funded and -supported 114 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 fund groups. We know from experience throughout the country that the tobacco industry tries to protect its bottom line at the expense of public health. Tobacco companies are not here because they care about Philadelphia; they are here to protect their own interests, they are trying to instill in business owners by spreading misinformation. In conclusion, Councilman Nutter's bill 11 makes great strides to protect Philadelphians and those who work and visit here. This bill is reasonable and doable. It is past time to put into place common-sense measures that protect the rights of nonsmokers to be free from the assault of known irritants, toxicants, and carcinogens in public places and in the workplace.
By voting in favor of Councilman Nutter's bill, the American Lung Association of Pennsylvania is satisfied that the City of Philadelphia is acting within its rights, indeed it's duties, to protect the health of its own citizens. Thank you.
Thank you very much. 115 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 (Applause.)
Good afternoon, ladies and gentlemen of City Council. Thank you for allowing me to testify. My name is Joshua Mitteldorf, and I'm a researcher in the Biology Department of the University of Pennsylvania. As a volunteer, I also work on issues of public health and the environment. I've been a board member of the Clean Air Council for years and 12 at the Coalition for a Tobacco-Free Pennsylvania 13 for 9 years. I'm a father and a teacher and, like many of you, I'm busy with many concerns. I have to ration my time, so I come where I feel I can do the most good, and that's why I'm a tobacco activist. Compared with any other hazard that we face in our lives, compared with things that we study and obsess about, that you pass laws to address, compared to any of these things, tobacco is a scourge of proportions far beyond any of those other problems that you deal. An epidemiologist is somebody who 116 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 studies health and safety from statistical point of view, a correlating various activities, environmental hazards, with the health consequences for some percentage of the people who are at risk. Every person who studies epidemiology is struck by the enormity of the risk of smoking compared to everything else. The total numbers of people, the number of victims crippled and disabled is so huge, that every epidemiologist has to ask himself, What is the sense of working on any other public health issue? The magnitude of the devastation is such that even if we restrict our attention to nonsmokers who are exposed in their homes and workplaces to secondhand smoke, we find that secondhand smoke is far and away the biggest environmental hazard in our lives, hands down. Part of what I do as a researcher and teacher is to make numbers palpable to people who aren't used to dealing with them, who have sound and good, reliable qualitative methods of reasoning, but to whom numbers don't have the visceral sense that they have to me. Many of us are informed by TV and newspaper accounts in which 117 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 we see violence, we see murders, we see terrorism. And we assume that these are the big threats to our lives, that these are the things that we need to concern ourselves with. And so much misdirected attention is focused on how to regulate these things, how to minimize them, how to organize our society so that we can get rid of them. But how little attention do we pay to the things that are right under our noses that have a much, much, much greater impact on our health. Last week, we were privileged to have here James Repace, who's probably the foremost national expert on the epidemiology of secondhand smoke. He reported to us his calculation that 8 percent of Philadelphia nonsmoking restaurant workers will die a premature death as a result of a career-long exposure to secondhand smoke. Now, I gasped when I heard that number. I'm enured to hearing these numbers, but that just hit me in the gut. How can I make it similarly real for you? I could talk about a hundred employees at a typical Philadelphia high-end restaurant, a large restaurant. And of those hundred employees, a hundred of them will have health problems, a 118 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 hundred of them will have their health affected -- they'll have more colds, they'll have more flus, they'll have a greater risk of serious complications. And at the very tail-end, of 6 them, 8 out of 100 are going to die as a result of 7 their involuntary exposure to other people's 8 tobacco smoke. These are not subtle effects that it takes a statistician to measure. Any large employer can tell you there's more absenteeism, there's more disease in the workplace when smoking is permitted than when it is not. As an occupational risk, second hand tobacco is just off the charts. We in the United States don't permit our employers to put employees' lives at risk in this way. Compare it -- what would you like to compare it with?
You can compare it to mine workers, you can compare it to welders who walk on those high beams high above the construction site, you can compare it to the police special forces who take their lives in their hands to battle dangerous criminals or to -- people who defuse bombs every day for a living. None of these occupations would tolerate a 119 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 mortality rate of 8 percent. This is a lifetime risk that every waitress in a smoky diner is exposed to. If you want a comparable, you can't look at occupations; you have to look at war. Americans went off to die in Vietnam several decades ago, and 4 percent of those came back in body bags. This was devastating. The lifetime risk among Philadelphia's waiters and waitresses is twice as high. Another comparison with the Vietnam War. Every months, as many Americans die of 14 somebody else's tobacco smoke as died in the 15 entire Vietnam War. This is a scourge. This is something we need to fight -- not with -- not by compromise, not by taking economic issues and balancing them against health. We just need to take the action in our own hands and put tobacco regulations on the same footing as every other hazard in our lives. I've been asked, If this is such a big problem, why isn't it being addressed by the federal government? Well, after years of political interference by the cigarette companies, 120 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 the EPA was finally able to release its report in 1992 and officially concluded for the first time that cigarette smoke is a Class A carcinogen. After that, by its own rules, the Occupational Safety and Health Administration had no choice but to move toward elimination of smoking in the workplace. But then what happened? The tobacco industry came in with litigation. This is the most aggressive litigation in the history of environmental health. The tobacco industry knows well what's at stake. They've dedicated a bottomless fund to legal battles against this regulation by OSHA. And as a result, it will be years before the smoke clears and we have smoke-free workplaces in the United States as a nation. So now you know why I come before you today.
Sir, could you please kind of summarize this, summarize your statement, come to a conclusion, please. Thank you.
When the FAA proposed 121 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 to ban smoking on domestic flights, the tobacco companies were right there telling us that people wouldn't fly anymore. Before smoking was banned in retail stores, we were told that shopping was going to decline. When smoking was still permitted in theaters, tobacco companies broadcast their fear that people would just stop going to the movies. And when smoking wasn't allowed at sports event a few years ago, we heard that sports attendance would plummet the moment the tobacco was outlawed at these sites. And, of course, none of these catastrophes came to pass. And common sense tells us that it's easier for smokers to refrain in restaurants than in theaters or in sports arenas. It seems an anomaly, doesn't it, that restaurants should be the last place to fall? Why is it, why is it that restaurants are the last place left? Well, I suggest that it has something to do with the fact that the tobacco industry has been involved in trade groups representing this industry for years. Tobacco companies have generously funded these groups for decades, provided disinformation in exchange for their 122 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 economic support. When the Restaurant Owners Association's experts from out of town come to talk to you about the importance of smoking for restaurant business receipts, I suggest that you ask them if they, like me, are taking an unpaid day to come and speak out of their convictions. If they're being paid for their testimony here, perhaps you can trace their paychecks through the laundry, back to Philip Morris. By my memory, the last time a bill like the present one came before City Council was in 1986. According to the talk that was on the street, on the morning of the committee's vote, every committee member awoke to find a $1,000 check from the Tobacco Institute on his desk. Now, the cigarette companies have grown a good deal more sophisticated since then and a lot more subtle, but their role is the same, and so is their willingness to do whatever it takes to achieve their ends. Before I close, I want to say a few words about smokers. Think of a cigarette not as a pinch of dried tobacco leaf rolled in paper. A 123 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 cigarette is a high-tech product containing hundreds of ingredients, the result of decades of research. And all of this research is directed towards just one thing, and that is to make the person who smokes that cigarette want another one. Nicotine is the core addictive ingredient, but the nicotine delivery system has been optimized and enhanced in every way known to science, with the sole aim to defeat the smoker's own will. So the next time you hear smokers being described as "people who choose to smoke," think differently. Smokers are victims of the tobacco industry, seduced at a tender age into an addiction that they cannot give up. The average smoker has tried to quit every two years, since he was in high school. But for people who live and work among smokers, the decision is difficult to hold to. A smoke-free workplace is the best gift that we can give to a smoker. It offers him the support that he needs to make the choice that he's wanted to make for a long, long time. Thank you.
Thank you very much. 124 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 Mr. Barr, could you give a brief testimony, please.
My name is Sterling Barr, and I'm working with the Tobacco-Free Education and Action Coalition for Health. I'm primarily responsible for educating thousands of youths and adults around the issue of drugs and alcohol abuse. I just want to testify just to say that I'm not a smoker but I grew up in a household of pretty much all smokers, and I know how smoking has affected my family. My grandmother has a boarding home and was affected by secondhand smoke. She had gone through many tests and it showed that she had tar lungs from, you know, having this boarding home. And each year, she would lose a client to lung cancer. And as a result of that, she changed the policy in her own home, where she no longer allows smoking there. And then each year, year after year, more and more of her clients were living a lot longer. I have a eight-month-old son, and I recently just, you know, from working in the 125 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 tobacco education field over the years, I've gained a lot of knowledge. I think people who, you know, go to restaurants and go into the nonsmoking section, they look at that as a safe heaven. They think because it's nonsmoking, they -- really, many of the folks who visit the restaurants have no idea of the harmful effects of secondhand smoke and how it travels. I think, over the years, just going around and visiting restaurants and eating in restaurants, you know, I too, was one to always ask for the nonsmoking section but now knowing harmful effects of the secondhand smoke. If many of these restaurants don't have nonsmoking, I choose not to eat at them. I just visited a restaurant in the last week and it was a Chinese buffet restaurant, and the waitress asked me if I wanted smoking or nonsmoking. I said, Is there a nonsmoking section in this restaurant? But the only thing that separated the smoking from the nonsmoking was a rail, and it was all one big room. So, I mean the smoke, travels where it wants. I just think it's very, very important 126 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 that we look not only at the health of the citizens in Philadelphia but of our children. We can't go out and dine with our kids because we don't want to expose our children, you know, to secondhand smoke. So I think it's very, very important, you know, that the bill go into effect, not only for the lives of the people who are the nonsmokers but also for the people who smoke. I think people who go into restaurants and smoke, they don't have the intentions in harming other folks. Many people are just now learning of the harmful effects of tobacco, and we hear over and over again that it's the number-one preventable cause of death. Now, people have a choice to do what they want to do, I think that's true as well as people have the right to choose to breathe clean air, and I definitely don't want to expose children to secondhand smoke because, you know, they can't speak up and say, Is this nonsmoking or smoking? They have to go with what I choose for them. As adult, we need to set better examples for our youth. I work in a middle school where I run 127 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 smoking cessation programs for 5th, 6th, 7th, and 8th-grade students who currently smoke, trying to get them to quit smoking. Many of them have parents who smoke. In addition to that, some of students I work with, I had them sign a petition in reference to this bill, and over 200 students at this middle school signed it. And even the smokers who signed the petition said they'd rather eat in a nonsmoking restaurant. So I think that passing this bill is really something that would do justice for both the smokers, you know, and the nonsmokers if this bill goes into effect because it will help clean the air.
Thank you all very much. Next is the panel of views of citizens: Michael Sklaroff, Dr. Robert Sklaroff, Edna Dirkson, Michael McFadden, and Pete Salometo. (Witnesses come forward.)
The Chair recognizes Councilman Nutter for a statement.
Thank you, Madam Chair. 128 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 Madam Chair, at the appropriate time, but certainly very shortly, I would like to put forward a number of amendments to the bill, based on today's testimony and discussion, on the record with regard to a variety of provisions affecting Bill No. 314. I would only ask -- and I don't want to limit anyone's testimony, but I would only ask members of the public if they could get through their testimony, I'd like to have that opportunity to put those amendments forward. I think they're important elements to the bill. And I would greatly appreciate your cooperation. Thank you.
I'm one of the parties that's here as a citizen's voice citizen.
I'm Peter Salometo, and I'm here to testify in opposition to House Bill 22 314. The other citizen voices apparently don't want to share the table with me because they're in favor of the bill under consideration.
That's okay. 129 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
In any event, I'm one of 50 million adult smokers who choose to smoke, and I sometimes think in today's politically correct environment as regards tobacco use, my views and those of others similarly situated are not heard or given the same weight afforded of those anti-smoking zealots who have as their agenda a total ban on the use of tobacco. They skillfully use understandable concern over the use of tobacco by minors as well as questionable statistics in research on secondhand smoke to advance this total ban agenda. As an example of questionable studies, last Wednesday, both Dr.'s Walter Tsou and Robert Simmons cited a May '99 study published in the Journal of the American Medical Association, which reported absolutely no adverse economic effects on local economies as a result of smoking restrictions in six cities and three states.
Sir, could you please summarize statement. It seems that you have a long statement.
I have about a five-minute presentation. Can -- 130 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
Essentially, the study that was cited used only hotel revenues and tourist rates and not restaurant attendance, so the author's study, Mr. Glass, was mixing apples with oranges. We find with the 1998 Congressional attempt to raise a pack of cigarettes by $1.10 tax amounted to a $500 billion tax scheme that would fall on the people who could least afford it, those making $30,000 per year or less. The same would apply to a lot of these changes to one's restaurants based on ventilating them and so forth. They would, again, fall on the smaller restaurants that have the least amount of wherewithal to take care of that.
I don't want to be disrespectful to you in any way, shape, or form. 131 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 We can take your statement and add it to the record as if it was read in the record.
I assure you of that. Would you like to hand it forward?
But the previous three speakers who were speaking in support of your bill 9 were given a fairly lengthy time.
All right. I appreciate that, but I will also admit to you that we've been waiting for some amendments to come, and the Councilmembers are now prepared to try to take some action, so --
Very well. I'll read the last paragraph, sir, if that's all right.
Thank you. I'm not trying to cut off what you're trying to say.
I'm an independent businessman and investor and have no connection to the tobacco industry whatsoever. What I'm trying 132 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 to do here today is to bring all points of view to the table and to the attention of this honorable committee. I'm confident that the Council and the committee will do the right thing, bearing in mind the rights of smokers and nonsmokers alike and the needs of Philadelphia's business community who have stuck it out here through thick and thin. Thank you, sir.
Thank you very much. Miss Dirkson, we would ask you to limit your testimony to two minutes.
My name is Edna Dirkson. All I want to say is, my daughter was diagnosed that she had lung cancer in the year of 1998. And she passed last June -- I mean, June of '99. And the effect was of secondhand smoke. She had lung cancer.
Thank you very much. 133 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
I'm Bob Sklaroff, and I submitted my written testimony already. I represent a union. I'm a physician and Mrs. Dirkson's daughter, who died, was a nonsmoker and she lived in a smoking environment, and we're still working through the condolence period. And very often, when I see patients, I try to point out the fact that they should not blame themselves for having gotten addicted. This one was a little more difficult to do because she was not in any way addicted to tobacco; and yet, she suffered its side effects. One of the things that hadn't been emphasized in the prior testimony by the representative for the Surgeon General was the fact that it's not just cancer, but also heart that's disease caused by cigarette smoking. And now my son would like to make a fast comment, and then I'll summarize my critique of what you just heard from the other people, and I will be terse as well. MICHAEL SKLAROFF: I am Michael 134 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 Sklaroff. And, well, first of all, you shouldn't even be smoking in the first place. I don't know why that's even being a allowed. But few month ago months ago, we went to -- we were going to a children's concert -- or an adult concert. And, well, we were trying to eat dinner beforehand because the concert ended really late, so we went to a nearby restaurant. The restaurant was, like, totally smoke, no air, kind of, and it made my eyes hurt and it made me cough. I really don't like cig -- I just don't want cigarette smoke in public places where nonsmokers go. That's all.
A couple fast points. We listened earlier to the citation of the Jenkins study. So I called a friend of mine in Pittsburgh, who knows all this stuff, who testified last week, and he told me a couple of the arguments debunking it. The key point that I would want to make 135 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 is in the paper, in the New York Times yesterday, there was a little small letter written by Cliff Douglas, and he pointed out a distinction with a difference every time you hear people who are functioning on behalf of the tobacco industry, and they'll say they're new, they're changed, and they'll admit that there are studies out there that claim health effects, but they won't quite say whether they believe them here. Same thing here. We listened to this man Rick Berman quoting information but not quite saying whether or not he believes it, just putting it out there as testimony, which was effectively debunked by Councilman Nutter, but yet the conclusion that these people have been making, and I've been arguing with them for years in 18 various venues, is the jury is out, respectful 19 people can disagree and so forth. And I would 20 propose that sometimes it's not the case, you have to come to conclusions. And I would respond to the nurse who also spoke earlier as an employee of a restaurant by saying she has a choice to do whatever she wants by suggesting that some people don't have 136 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 that choice, and that's one of the reasons why there are certain laws to protect workers in the workplace. I would say to talk against hype, that I've been talking about this issue for years, 7 and I've often been interviewed, like, by Herb 8 Deninberg, and all my arguments would be ending up 9 on the floor of the editing room because I was not 10 strongly enough asserting with sound bites that 11 tobacco smoke is evil, even when it's inhaled, 12 fourth term involuntary smoking, and so forth. 13 There are studies showing that the 14 side-stream smoke actually has more carcinogens 15 than mainstream smoke but it's really hard to come to a conclusion that when you're breathing most of the time without a smoke-filled room that's it's going to make any difference empirically. So I've always simply argued that the right to smoke and the right to swing your fists has always ended at the tip of my nose, and that kind of, I think, common-sense argument may very well ultimately drive some of the decision-making that you may wish to pursue in this situation. And thank you for your time. 137 /00 PUB. HEALTH & HUM. SVCS. - BILL 2
Thank you very much. Is there anyone else here to testify on this bill? Would you come forward please? You have two minutes.
My name is Chris Mullins, I own the Gillen's Old Ale House in Center City Philadelphia. It is the oldest tavern and continuous operation in the City of Philadelphia and one of the oldest in the country. The only reason testifying today is that I do resent the fact that some people are indicating that my colleagues and the members of my profession are paid off by the cigarette companies. I want to ask this committee to respectfully to consider a delay on any kind of vote today. Gillen's has been around for 140 years, we'll survive another 140 years whether you make the rule or not. I have a 30-year mortgage on my home, I have a 15-year mortgage on my business, so I hope to be around for a bit. Last 138 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 year, I spent $2,000 to improve the ventilation in my kitchen for the health benefit of my employees. And this year, last year, we attempted to invest, and have invested, $35,000 in a new air-conditioning system. It took the City of Philadelphia almost five months to grant us a permit to install this ventilation and this air-conditioning. I'm asking you for time. Just like I was denied the right to put this air-conditioning in last September until February so that the City could consider the impacts of my air-conditioning system, which I did to improve the quality of air in my business at great personal expense, I'm asking you for time. Please study this a little bit more thoroughly and see what the unintended consequences of such legislation will be. Thank you.
My name is John Jonik. I'm 139 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 not a doctor or a scientist, as I'm sure I'll be asked later, but I've been a health care activist for a long time and an environmental activist for at long time. I've been sitting through these hearings and I, even though I'm just a cartoonist and a member of the National Writers Union as a writer, I notice more word irregularities than I have time to write down. The very basis of the whole entire hearings, I think, might be invalidated by the fact that there isn't one single expert who can come forward with any evidence about harms of tobacco smoke. They may have lots of evidence about pesticide-saturated cigarettes, cigarettes with chlorine elements in it, cigarettes with, you know, adhesives and plastics. And going back through the years, asbestos even, which, finally, they got rid of. So what I'm saying is that the wording of this legislation should be accurate for the sake of justice and law and for science. What's happening is, a lot of people are using cigarette industry marketing language. They're calling it "tobacco" when there are U.S. 140 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 patents from Philip Morris, you know, of ways to make cigarettes out of industrial waste of all different kinds -- municipal paper waste, agricultural waste, food processing waste, and so forth, to which they add a little bit of nicotine. This is in U.S. Documents. The United States Environmental Protection Agency has documents about the harms of dioxins, which come from the chlorine elements in cigarettes. It also points out the presence of these things in cigarettes. At the same time, it has laws outside forbidding the release of these kind of dioxins for health reasons from incinerators. They don't somehow notice that they have these records when they come to talk about indoor tobacco smoke. You have to put quotes around almost every single word here, and I think that's invalid in the case of law, medicine, and science. And I hope that this thing will be stalled enough to go back and look at the wording to make sure the right people are being targeted, not the victims. The bar owners and restaurant owners and the victims should not be responsible 141 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 for putting these in-secret chemicals in cigarettes. There's a law, the 1984 Comprehensive Smoking Education Act, which forbids educating anybody about what's in cigarettes. A public health commissioner could go to jail for revealing what's in a cigarette. Trade secrets or liability, we have to decide this. Other cities and other municipalities have started laws about the fire-starting chemicals that are still legal in cigarettes in spite of all the concerns. Children are dying, houses, firefighters, property loss. The fire- starting chemicals are still legal in cigarettes, which makes me doubt the intentions of some of the health concern people. There's a lot to go into. I've presented some documents from Health and Human Services, from the Centers for Disease Control in Atlanta. These are not whacko documents. They're from the government. The have the information. Calling this a tobacco problem is a scapegoating situation and the bar and restaurant people are being a part of the scapegoat scene, and so are 142 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 store owners who have to do I.D.'s and all that sort of things. That will be enough for now. I have a lot of it here, and there's a lot more if anybody cares to see my 8-foot pile of information at home.
My name is Michael McFadden. I was on the program right near the end, but I didn't hear my name called. I would like to apologize and explain earlier. Councilman Nutter had been making some very direct comments about a study by someone named Roger Jenkins, and I had an e-mail from Roger Jenkins this morning that would have responded directly to Councilman Nutter's comments.
I only have the one copy, which would have been good for the people who heard Dr. Jenkins' integrity questioned, if they could have heard defense as well. 143 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 I have my own testimony, which is short and will be about four minutes, not two.
Thank you for the opportunity to speak here today. My name is Michael McFadden, and I'm a long-term resident of West Philadelphia. I have no connection to any bars, restaurant, or tobacco companies, other than being a good customer. Last Wednesday, you heard from anti-smoking advocates that environmental tobacco smoke had been added to the National Toxicology Register as a carcinogen. What you didn't here was that alcohol and sunlight were also added at the same time. What the anti-smoking choose to ignore when presenting their arguments for bans like this one is the clear and simple fact that there has never been, and very likely never will be, any level of threat at all from the microscopic levels of exposure to smoke that one would get in a well designed nonsmoking section. If you refer back to the testimony that started off today's session, you'll note that the advisor to the Surgeon General referred several 144 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 times to the health effects of smoky and smoke-filled rooms. At no point did she indicate that well-ventilated smoking and nonsmoking sections could be a problem. Even a mild movement of air pushes smoke quite effectively in the direction of the air movement. Smoke does not travel where it wants. I'm going to skip the whole middle of the presentation which dealt with studies on secondhand smoke.
Yes. I'll skip to the last two paragraphs here, short ones. Councilpeople, I do not believe we are here today because of a real concern about the health of nonsmokers; we are here because smoking bans are seen as one of the most effective weapons in the arsenal of social engineering when it comes to reducing smoking and getting smokers to quit smoking. At least three of the anti-smoking advocates testifying last Wednesday mentioned such a point in their testimony, and it was mentioned again today. 145 /00 PUB. HEALTH & HUM. SVCS. - BILL 2 I am here today, Councilpeople, because this is not George Orwell's 1984. Our government should not be in the business of making laws designed to press for citizens into thinking in proper ways or conforming to a politically correct healthy lifestyle. Education about the dangers of smoking is fine; social engineering and behavioral modification is not. That's not what the government of the United States is supposed to be abdomen and by voting for (unintelligible) like this one, I believe you will actually be hurting our country and its people a lot more than you will be helping it. Thank you.
There being no 20 further testimony, this hearing is -- the Chair recognizes Councilman Nutter. We'll go into a public meeting. The Chair recognizes Councilman Nutter to present the amendments, which have been circulated to the committee. He will be brief. 146 5/31/00 PUBLIC HEALTH - PUBLIC MEETING
Thank you, Madam Chair. As instructed I will be brief. I have additional copies of additional proposed amendments to Bill No. 000314. Madam Chair, I will be making reference to the bill as currently amended primarily by number or section number, as appropriate. On of the bill -- I'm sorry, this is the first amendment. On of the bill, re-number Section 1 as Section 2; and add a new section to read as follows: Section 1. Declaration of Legislative Findings and Intent. S. Surgeon General") and nine medical professionals. That the health risks attributable to exposure to environmental tobacco smoke ("ETS") (also known as secondhand smoke, passive smoke, or involuntary smoke) are well established. S. Surgeon General have concluded exposure to ETS is a cause of lung cancer. Further, the EPA has found that ETS is 147 5/31/00 PUBLIC HEALTH - PUBLIC MEETING responsible for the lung cancer deaths of approximately 3,000 nonsmokers in the United States each year, and is a deadly carcinogens which belongs in the category of Group A (known human) carcinogens. S. Surgeon General have also concluded that exposure to ETS causes other significant health problems in adults, including reduced lung function, coughing, excessive phlegm production, and chest discomfort. In addition, the EPA testified that ETS has been linked to heart disease and the onset of chest pain. The EPA has also concluded that exposure to ETS is a substantial health risk to children, as it is causally linked with, among other things, an increase in the prevalence of childhood respiratory illnesses, an increase in the prevalence of fluid in the middle ear of children (the most common cause of hospitalization of children in need of an operation), and a significant reduction in the lung function of children. Moreover, the EPA has found that exposure to ETS increases the number of episodes and increases the severity of symptoms in 148 5/31/00 PUBLIC HEALTH - PUBLIC MEETING asthmatic children and causes non-asthmatic children to develop this condition each year. The EPA also reports that percent of 5 the United States are smokers. 6 In order to protect against the dangers 7 associated with ETS, over 800 jurisdictions in the 8 United States, including cities such as Boston, 9 Massachusetts, and New York, New York, have 10 enacted local laws which restrict smoking in 11 public places. 12 The Council of the City of Philadelphia 13 finds that many Americans, including the citizens 14 of Philadelphia, are likely to be exposed to ETS 15 due to its current widespread presence in public 16 places and in the workplace. The Council further 17 finds that exposure to ETS presents a substantial 18 health risk to nonsmokers. It is, therefore, 19 Council's intention to strengthen existing local 20 laws which limit the areas in which smoking is 21 permissible. In order to protect and promote the 22 public's health, safety, and welfare, Council is 23 enacting further restrictions on smoking in public 24 places and in the workplace to protect children 25 and nonsmoking adults from the health hazards 149 5/31/00 PUBLIC HEALTH - PUBLIC MEETING presented by exposure to ETS. The second amendment is on the bill. " A contiguous area in a restaurant containing a counter and which is primarily devoted to the selling and serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food, if served at all, is only incidental to the sale or consumption of alcoholic beverage in such restaurant bar. Amendment No. 3. 8) to read as follows.
8) Through March 31, 2001, within a Restaurant Bar, as long as either (i) the perimeter of the Restaurant Bar is located at least 10 feet from the perimeter of any indoor dining area (other than the seating area within the Restaurant Bar) of the restaurant; or (ii) the Restaurant Bar is separated by a solid floor-to-ceiling partition from any indoor dining area (other than the seating area within the 150 5/31/00 PUBLIC HEALTH - PUBLIC MEETING Restaurant Bar) of the restaurant; and provided that the Restaurant Bar is not the sole indoor patron waiting area of the restaurant. This exception permitting smoking in Restaurant Bars shall not apply after March 31, 2001. Amendment No. 4. On of the Bill, in subsection 10-602(3)(a), replace the word "section" with the phrase "this subsection 10-602(3)," so that the subsection reads in its entirety as follows: (a) Within 90 days after this subsection 10-602(3) takes effect, all employers with a workplace within the City shall adopt, implement, make known, and maintain a written policy that prohibits smoking within any workplace. This requirement shall not apply to any workplace covered by a collective bargaining agreement or similar bonding agreement between labor and management that includes provisions regarding smoking in the workplace. Amendment No. 5. 1) Post"No Smoking" signs and other signs relating to smoking on the premises in compliance with regulations to be promulgated by the Health Department. Amendment No. 6. 1) Post "No Smoking" signs and other signs relation to smoking on the premises in compliance with regulations to be promulgated by the Health Department; Amendment No. 7. On of the Bill, re-number subsection 10-602(6) as 10-602(7), and insert a new subsection 10-602(6) to read as follows: (6) Study and Report on Restaurant Bars. (a) The Health Commissioner ("Commissioner") shall form a Study Group consisting of the members of City Council's Committee on Public Health and Human Services, representatives of any other City departments, boards, commissions, or other agencies of the City government the Commissioner deems appropriate, and 153 5/31/00 PUBLIC HEALTH - PUBLIC MEETING representatives of the restaurant and hospitality industry in Philadelphia. The Study Group shall study methods of and, if deemed appropriate, develop recommendations with respect to preventing, t o the greatest extent practicable, secondhand smoke from drifting or recirculating from Restaurant Bars to indoor smoke-free areas of restaurants. (b) the study and any recommendations of the Commissioner and the Study Group shall include, but not be limited to, the advisability of requiring Restaurant Bars to construct or implement any of the following: separate smoking rooms; enclosed rooms; ventilation systems; separation of a Restaurant Bar from indoor smoke-free areas by means of a partition; and spatial separation of a Restaurant Bar from indoor smoke-free areas by a specific distance. (c) In determining the advisability of requiring that certain protections from secondhand smoke be provided in Restaurant Bars, the Commissioner and Study Group shall consider any applicable standards or recommendations of representatives of the restaurant and hospitality 154 5/31/00 PUBLIC HEALTH - PUBLIC MEETING industry in Philadelphia, the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, the United States Environmental Protection Agency and the Occupational Safety and Health Administration of the United States Department of Labor with respect to indoor air quality relating to secondhand smoke, the impact on public health of exposure to secondhand smoke, and any other factors which the Commissioner and the Study Group deem appropriate. (d) The Commissioner and the Study Group shall submit a written report to Council by November 1, 2000 as to the results of their study and any recommendations. 8) permitting smoking in Restaurant Bars under certain terms and conditions until March 31, 2001.
Amendment No. 8. On of the Bill, add a new Section 3 to read as follows: SECTION 3. Effective Dates. (a) Except as set forth in subsections 155 5/31/00 PUBLIC HEALTH - PUBLIC MEETING (b), (c), and (d) below, this ordinance shall take effect 90 days after it becomes law, provided that any City agency is authorized to promulgate any regulations and take any other actions needed to prepare for implementation of this ordinance 7 immediately after this ordinance becomes law. (b) The provisions of subsection 10-602(3) of the Philadelphia Code, as added by Section 1, shall take effect immediately. (c) The provisions of subsection 10-602(2)( a) of the Philadelphia Code shall take effect with respect to restaurants 210 days after this ordinance becomes law (the "Initial Restaurant Effective Date"). 6) shall have until 150 days after the Initial Restaurant Effective Date to apply for any permits necessary to perform such construction, and until such time, these prohibitions or subsection 10-602(2)(a) of the Philadelphia Code shall continue not to apply within such restaurant. If such owner has applied 156 5/31/00 PUBLIC HEALTH - PUBLIC MEETING for such permits during such 150-day period, then the provisions of subsection 10-602(2)(a) shall first apply to such restaurant at the earlier of (i) the date of completion of any physical alteration of premises necessary to provide the separate smoking area or lounge; or (ii) 180 days after the issuance of the final permits necessary to perform construction. (d) Notwithstanding any other provision of this section, all restaurants shall be subject to the provisions of subsection 10-602(2)(a) of the Philadelphia Code on and after December 31, 2001. Amendment No. 9. 7) Outdoors within 10 feet of any entrance to any Enclosed Area in which smoking is prohibited under this Section, except for any sidewalk cafe licensed under Section 9-208 or otherwise permitted by special ordinance, or any outdoor deck, patio, or similar outdoor service area which is part of a restaurant establishment. 157 5/31/00 PUBLIC HEALTH - PUBLIC MEETING Amendment No. 10. 6)(iv).
Thank you very much. The Chair calls on Councilman DiCicco to accept the amendments as read.
Madam Chair, just two other statement, if I can put them into the record. A concern has been raised with regard to the composition of the study group that is referenced in the appropriate section. The concern was that the study group should be balanced to represent the interests of not only the Council and any governmental agencies, whether City or federal, but also representatives of the restaurant and hospitality community. I would like to state for the record, Madam Chair, and to my colleagues that I will certainly work to ensure and make a commitment to balance on this committee. Obviously, we cannot 158 5/31/00 PUBLIC HEALTH - PUBLIC MEETING have a tremendously large committee nor a tremendously small committee, but it will certainly be a balanced committee, and I make that commitment to the members of the restaurant and hospitality community as well as my colleagues. Secondly, it is certainly my intention, Madam Chair, to have the work of the study group proceed as soon as possible, and either by way of a phone call from myself as the sponsor of bill or you as Chair of the committee, we would ask the Health Commissioner to begin putting the study committee together. Lastly, should the committee decide to not only amend the bill but vote it out of committee, I do not expect, nor anticipate, nor would I ask that any action be taken on this bill 18 prior to our legislative recess by the entire Council.
Councilman, on that same note, would you agree that, assuming that the study group continues to work through the process, that you would not anticipate calling on 159 5/31/00 PUBLIC HEALTH - PUBLIC MEETING a vote on this until -- not before November 1st of 2000?
I would not expect that, Councilman. And I would think that only under the most unique of circumstances, with consensus and the various interested parties to this, including the restaurant and hospitality community, if for some reason there was a request for a vote by agreement with the community prior to the study group's work, which, again, I think would be an extraordinary circumstance, that would be a decision to be made by the entire body.
So I hope it's clear to all the parties and the stakeholders that a study group will be convened by the Health Commissioner, that they will have until November 1st to try to get some consensus on whatever, and that nothing will take place until -- we don't know, whenever.
But no action will be taken on this bill unless the committee comes 160 5/31/00 PUBLIC HEALTH - PUBLIC MEETING back to this Council and say that we have reached some consensus or agreement.
They may possibly come back at an earlier point in time before the deadline that we've established in the bill. That certainly would be the discretion of the committee.
Is that clear? Thank you very much. All in favor will signify -- I call on Councilman DiCicco to move for the adoption of the amendments.
Thank you, Madam Chair. I move for the adoption of the amendments -- I move for the adoption of the amendments to Bill No. 314, as just read into the record by Councilman Nutter.
All in favor will signify by saying aye. The amendments have been adopted.
One opposed. 161 5/31/00 PUBLIC HEALTH - PUBLIC MEETING
Can I get a motion for the adoption of the bill as amended?
Thank you, Madam Chair. I move for the adoption of Bill 314, as amended.
I'm sorry. Is this a motion to try to report it out of committee? Is that what you're --
It has been moved and seconded that Bill No. 000314, as amended, be reported out of committee with a favorable recommendation. All those in favor will signify by saying aye. 162 5/31/00 PUBLIC HEALTH - PUBLIC MEETING Opposition?
One opposition, Mariano. Thank you very much. This ends the public meeting. We're adjourned. (Adjourned at 6:15 p.m.) - - - 163 C E R T I F I C A T E I HEREBY CERTIFY that the foregoing proceedings of the Council of the City of Philadelphia of Wednesday, May 31, 2000, were reported fully and accurately by me, and that this is a correct transcript of same. RE: COMMITTEE ON PUBLIC HEALTH AND HUMAN SERVICES BILL NO. 000314 __________________________________, JOSEPHINE CARDILLO, Registered Professional Reporter