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.