REPORT OF THE MAYOR’S TASK FORCE ON SMOKING IN PUBLIC & IN PLACES OF EMPLOYMENT
PREPARED BY:
SCOTT HAZELITT – VENTILATION
DAVE HIEBERT – HEALTH EFFECTS OF ENVIRONMENTAL TOBACCO SMOKE
JOHN HIEBERT – HEALTH EFFECTS OF ENVIRONMENTAL TOBACCO SMOKE
JUDY KELLER – HEALTH EFFECTS OF ENVIRONMENTAL TOBACCO SMOKE
DAVE KINGSLEY – SMOKING RELATED LEGISLATION/ORDINANCES
RITA MADL – ECONOMIC IMPACT OF SMOKING ORDINANCES
CHUCK MAGERL – ECONOMIC IMPACT OF SMOKING ORDINANCES
SUBMITTED TO THE CITY COMMISSIONERS OF LAWRENCE, KS IN PREPARATION FOR A STUDY SESSION ON MARCH 31, 2004
TABLE OF CONTENTS*
INTRODUCTION DAVE KINGSLEY
OVERVIEW DAVE KINGSLEY
CURRENT STATUS OF SMOKING
LEGISLATION/ORDINANCES DAVE KINGSLEY
VENTILATION ISSUES SCOTT HAZELITT
HEALTH EFFECTS OF ETS DAVE HIEBERT
JOHN HIEBERT
JUDY KELLER
ECONOMIC IMPACT ISSUES RITA MADL
CHUCK MAGERL
*Although members of the Task Force chose to report
on specific issues that arise in relation to smoking restrictions, some members
will disagree with the a
particular report and will choose to submit dissenting views. Each report will
consume about 10 minutes of the study session. Dissenting viewpoints will be
presented following the presentation of all reports. It is anticipated that
most of the dissenting views will be focused primarily on the economic impact
issue and secondarily on the health issue.
The mayor of Lawrence appointed a Task Force to research issues pertaining to the current city ordinance regulating smoking in public and in places of employment. The Task Force has met monthly since May of 2003.
The charges of the Task Force are: (1) review the existing city ordinance, (2) review trends in scientific knowledge concerning health effects of second hand tobacco smoke (SHS), (3) collect information about the economic impact of removing current exemptions to the restrictions on public smoking, (4) research trends in legislation throughout the United States, and, (5) prepare options and recommendations for needed changes in the current City of Lawrence Ordinance.
Since May of 2003, the Task Force has undertaken the following tasks:
1. Accumulated
and reviewed a large amount of information pertaining to the regulation of
smoking in public or workplace venue.
2. Analyzed
recent state laws and municipal ordinances designed to enhance regulation of
environmental tobacco smoke in the workplace and the public in general.
3. Accumulated
and reviewed scientific article primarily pertaining to the health effects of SHS
and the economic impact of enhanced regulation of smoking in the workplace.
4. Received
and reviewed verbal and written information from proponents and opponents of
legislation designed to enhance public and employee protection from adverse
health consequences due to SHS.
5. Contacted
individuals throughout the United States who have a stake in the regulation of SHS
in the workplace and other public spaces.
6. Conducted monthly public meetings at which proponents and opponents on the Task Force and from the public in general could express their views concerning changes to the current ordinance.
This report summarizes the work of the Task Force. There is no single point of view presented in the following Sections. Membership included individuals with strong views on both sides of the issue.
However, there are indisputable facts which are of relevance to the discussion and over which there will be no disagreement. Examples of these include: (1) municipalities and states that have enacted legislation in the past decade aimed at enhanced regulation of SHS, (2) the types of workplaces and public spaces and other provisions included or exempted in the variety of legislation enacted, (3) the stated positions of advocacy organizations on both sides of the issue, and (4) outcomes of political processes in the form of referenda and votes of legislators. A copious amount of this type of objective information is available and much of it has been reviewed by members of the Task Force. A selection of this information in the form of ordinances, state laws, and legislative activity is presented in this report.
Much of the research pertaining to SHS has been and will continue to be disputed by the proponents and opponents of enhanced regulation of side stream smoke in public spaces and workplaces. The types of information over which there is extensive disagreement include: (1) articles published in scholarly journals, (2) claims about health effects and economic impact not published in scholarly journals, and (3) the role of government in regulating businesses.
SECTION I – OVERVIEW (DAVE KINGSLEY)
The approach taken in preparation of this report includes the following:
1. The
issue of second hand tobacco smoke should not be reduced to the Hospitality
Industry, i.e. to restaurants, and bars. As is the trend across the U.S. and Western
Europe, the protection of employees in all workplaces is the domain in which
the task force has conducted research.
2. The
primary issues germane to the work of the Task Force include the health of
employees exposed to SHS and the economic impact of legislation restricting
employee exposure to second hand smoke emanating from business patrons and
fellow workers. The transitory exposure of business patrons has not been
deemed by the Task Force to be the major cause for enhancing the current
ordinance. However, many members of the public health and medical professions
have expressed concern about the effects of any a small amount of SHS exposure to
individuals with asthma and other disabilities.
3. The
report will avoid reduction of this complex, occupational safety and health
issue to “bars under siege,” “evil tobacco industry,” “nanny government,” and
other such sound bites that will characterize the political and media process.
An attempt will be made to provide credible research that informs policy making
germane to SHS.
4. The
Task Force Members have diverse and often opposing views about regulating SHS
in the workplace. Dissenting opinions and disagreement with the general
content of this report are attached as appendices. Much of the discussion
occurring in the Task Force meetings in the past year has been contentious. It
is unlikely that any consensus will be reached by the members.
5. The
Mayor directed the Task Force to present a set of options for the Commission to
consider. After reviewing the range of National, state, and municipal
legislation designed to regulate SHS, one would have to conclude that the possible
combinations and permutations are too numerous to discuss. However, the
following three options provide a framework for the current state of SHS
regulation: (1) removal of all workplace exemptions to the current ordinance,
(2) removal of some workplace exemptions, and (3) leave the current ordinance
as it is. The current city ordinance and options will be discussed in more
detail in Section II in this report.
Option 2 (removal of some workplace exemptions) opens the possibility for a
wide array of provision combinations and permutations. For instance, Salina, Kansas
restricts smoking in bars and restaurants until 9:30 9:00 in the evening. Many municipal ordinances allow smoking in a restaurant bar only if
the bar is enclosed from floor to ceiling and has a separate ventilation
system. In some ordinances, bars attached to a building that includes other
workplaces must have a separate ventilation system (see the smoking ordinance
matrix presented immediately below).
Smoking Ordinance Matrix
A. Legislation/ordinances
Background: In the past several years, a large number of states and municipalities have restricted smoking in the workplace – including bars and restaurants. Municipalities in California and other states began this trend in the 1990s. The State of California – in sync with what was happening in a large number of its municipalities – amended its labor code to include employee protection from second hand smoke. This legislation shifted the focus of ETS regulation from a general public health issue to one of occupational safety and health. Section 6404.5 of the California Labor Code states that, “It is the intent of the Legislature to create a uniform statewide standard to restrict and prohibit the smoking of tobacco products in enclosed places of employment.”
As the rationale shifted from “patron health concerns” to “worker health concerns,” municipal ordinances replaced earlier ordinances which had restricted smoking in public places such as theatres, super markets, banks, and other retail and entertainment venue. Bars, restaurants, bowling alleys and other venue related to the Hospitality Industry were generally exempted. In consideration of the safety of employees, exemptions for the hospitality industry were removed as they were for all other places of employment.
According to the Center for Disease Control, 70 municipalities and 6 states have removed exemptions in existing ordinances. In effect, smoking is not allowed in any enclosed workspace in most of these jurisdictions. Given that the States of New York, California, and Florida, along with a host of medium sized to large urban areas have removed exemptions for bars and/or restaurants, approximately 1/3 of the adult population of the United States now resides in a jurisdiction in which enhanced restrictions have been enacted.
Municipal Ordinances: Although most municipal ordinances enacted in recent years are primarily aimed at protecting workers in general, there is some variation in specific provisions such as the timetable for when an ordinance takes effect. It is common to exempt “bars” for as long as one or two years beyond the initial date an ordinance takes effect. Some examples of ordinances in communities with large universities are provided below:
Corvallis, OR: The Corvallis Municipal Code, Section 5.03.080.160.03 states that “smoking is prohibited in places of employment.” Section 5.03.080.160.05 exempted bars and restaurants along with “private residences,” some “motel rooms,” and most “private rooms rented for an occupancy that exceeds one month.” The exemption for bars and restaurants was set to expire on July 1, 1998.
The definition of “place of employment” in the Corvallis Municipal Code is, “Any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and classrooms, cafeterias and hallways.” The definition clearly states what is not a place of employment: “A private residence is not a ‘place of employment’ unless it is used as a child care, adult day care, or health care facility.”
Eugene, OR: Essentially the same as Corvallis.
Duluth, MN: Smoking is not allowed in any workplace. Bars and bar areas of restaurants are exempt. However, the bar area of a restaurant is exempt only if: (1) The bar area is separately enclosed on all sides by continuous floor-to-ceiling walls, interrupted by closeable doors, (2) The bar area is separately ventilated, with negative air pressure in relation to dining areas, (3) Revenues from the sale of food in the bar area are incidental to those from the sale of alcoholic beverages, serving only a limited food menu as defined by Minnesota Statutes, and (4) Minors are not permitted in the bar area at any time.
Section 28-67 – Employees not required to enter bar area – states: “At public places that include both a restaurant and a bar, the owner shall not require nonsmoking employees to enter the bar area as part of the employee’s duties without the employee’s consent.”
Bloomington, ID: Smoking is prohibited in all public and work spaces, including bars and restaurants. Establishments serving only individuals over 21 were exempted for 1 year from the date the ordinance was effective. The legislation was supported by the Blommington Chamber of Commerce.
NOTE: It is not uncommon to find ordinances that allow smoking in bars and/or restaurants with some very stringent ventilation standards along with physical separation through floor-to-ceiling walls and other such requirements. Furthermore, the restaurant industry is strongly opposed to removing exemptions for restaurants while leaving bar exemptions in tact. The New York Restaurant Association supported the removal of all workplace restrictions under the proviso that bar exemptions would also be eliminated.
The American Nonsmokers’ Rights Foundation monitors smoking ordinances throughout the United States. Tables 2 & 3 are summaries of ordinances as of March 9, 2004.
|
100% Smokefree Workplaces |
100% Smokefree Restaurants |
100% Smokefree Freestanding Bars |
|
217 |
163 |
118 |
Table 1 – Summary of Municipal Ordinances by Category of Restriction
|
|
|
|
Municipalities that are 100% Smokefree in Both Workplaces & Restaurants |
99 |
|
Municipalities that are 100% Smokefree in Both Restaurants and Freestanding Bars |
117 |
|
Municipalities that are 100% Smokefree Workplaces, Restaurants, and Freestanding Bars |
72 |
Table 2 – Number of Municipal Ordinances by Combination of Total Restrictions in Workplaces, Restaurants, & Bars
CURRENT LAWRENCE ORDINANCE (Article 8. Smoking in Public Places):
The current Lawrence Ordinance designed to regulate smoking was enacted in 1987 with little opposition. During the late 1970s and most of the 1980s, ordinances similar to the Lawrence ordinance were enacted in most municipalities in the United States. Although the boiler plate in these ordinances was the same in most cities, the ordinance enacted in the City of Lawrence seems to have a much more extensive section on “places of employment” than was typical of this type of local legislation.
Section 9-801 indicates that regulating smoking in places of employment is a major focus of the ordinance. Section 9-805(A)(1) states that “no person shall smoke in any work area in places of employment, except that any employer may designate as much as fifty percent (50%) of the total contiguous work area as a smoking area.”
It appears as if there is an opportunity for employees bothered by smoke in a contiguous work area to lodge a complaint with the city. Section 9-805(A)(4) states:
If an employer designates a smoking area in his or her work area pursuant to this Section and if a dispute arises concerning the designation of a smoking area, in determining the dispute, the employer shall consider the following factors:
(a) Health impact on
nonsmokers;
(b) Square footage of the
work area;
(c) Ventilation;
(d) Existing physical
barriers;
(e) Office traffic
patterns;
(f) Availability
of fully enclosed rooms by smokers; and
(g) Any other relevant factors.
The current Lawrence ordinance pertaining to smoking is attached to this report. Also, the Commissioners may address any questions to members of the Task Force or the City Legal Department during the study session on March 31, 2004.
Preliminary draft of Architectural / Ventilation section:
Another issue to consider in regards to a smoking ban is a possible exception for establishments that provide accommodation by architectural/physical and mechanical/ventilation means. Many existing ordinances provide for this exception as an alternative to a complete ban on smoking. In order to evaluate the effectiveness of this option it is necessary to establish the goal of the exception. One possible goal would be to eliminate exposure to environmental tobacco smoke for only the patrons of the establishment. Another perhaps more restrictive goal would be to eliminate exposure to E.T.S. for the employees of the business as well.
It is technically possible to prevent tobacco smoke from migrating into an area designated as non-smoking. This would require both a physical separation of the areas and a ventilation system that prevents air transfer from the smoking section to the non-smoking section. In order to establish a standard for this approach, the following is recommended:
- The smoking section shall be physically separated from the rest of the establishment by self-closing doors and floor to ceiling walls.
- The smoking section shall be arranged so that non-smoking patrons are not required to pass through the smoking section for access to required services.
- The smoking section shall be on a completely separate mechanical system and be negatively pressurized to the rest of the establishment.
- The exhaust of the mechanical system for the smoking section shall be located a sufficient distance from any other air intakes to prevent contamination of supply air to the rest of the establishment or to other adjacent establishments.
The costs associated with the above requirements could vary widely from business to business. Existing facilities would probably have the most difficult time complying. In addition to the initial cost of the walls, doors, and mechanical systems, increased utility costs should be expected. This would be due to added exhaust requirements.
As the make up air for the exhaust would come from outside, additional heating or cooling would be required. Some establishments would find it infeasible if not impossible to comply based on the physical limitations of their facility.
The elimination of health effects associated with E.T.S. for employees of an establishment is a wholly more complicated issue. Employees that would be working in a smoking section would potentially be exposed to the smoke even if the patrons in the adjacent room were not. There is in fact a great deal of debate as to whether or not mitigation of E.T.S. within a smoking environment is even possible with the most sophisticated ventilation scheme. The following are some of the issues:
- Secondhand smoke has been classified by the U.S. Environmental Protection Agency (EPA) as a known cause of lung cancer in humans (Group A carcinogen). In 2000, the National Institutes of Health formally listed secondhand smoke as a known human carcinogen in its 9th Report on Carcinogens.
- The U.S. Surgeon General has determined that the simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, the exposure of nonsmokers to secondhand smoke. (Department of Health and Human Services. The Health Consequences of Involuntary Smoking: A Report of the Surgeon General. Public Health Service, Centers for Disease Control, 1986.)
- The Environmental Protection Agency has determined that secondhand smoke cannot be reduced to safe levels in businesses by high rates of ventilation. Air cleaners, which are only capable of filtering the particulate matter and odors in smoke, do not eliminate the known toxins in secondhand smoke. (Environmental Protection Agency (EPA), "Indoor air facts no. 5: environmental tobacco smoke," Washington, D.C.: Environmental Protection Agency (EPA), June 1989.)
- The industry standard used to establish indoor air quality (ASHRAE Standard 90.1-2001) is based on a smoke free environment.
- There is currently no documented acceptable level of secondhand smoke.
- Both Phillip Morris and Honeywell (a major manufacturer of HVAC equipment) state that they make no claims as to the ability of ventilation to eliminate the health risks associated with secondhand smoke.
Despite the above, there are several studies (largely funded by the tobacco industry) that suggest the levels of secondhand smoke exposure are far less than what had been previously thought.
All in all, there is no easy way to prescribe solutions or measure the actual results of ventilation systems designed to reduce / eliminate the health effects associated with secondhand smoke. Systems typically proposed to “control” smoke within a smoking establishment require a much larger amount of outside air to be exchanged each hour. Opening windows and doors on a typical Lawrence Summer or Winter day would not be a popular idea for most people due to large utility bills. Although heat recovery systems can mitigate some of the associated energy costs, these systems are expensive and still require more energy use than a more traditional system. Installation of these systems with no guarantee of measurable success would not seem to be an appropriate solution to controlling E.T.S. within a smoking environment.
ECONOMIC IMPACT STATEMENT (CHUCK MAGERL)
During the past 20 years, over 400 local governments have approved “smoke-free” ordinances. Several states have also passed legislation on this topic. Laws include comprehensive “clean indoor air” laws, “workplace” smoking laws, “smoking in public places” laws and laws covering only “food establishments/restaurants”. These local ordinances and regulations can vary dramatically in content. They range from very stringent “bans” to laws with a large number of exemptions or waivers.
Any practical analysis of the desirability of smoking laws should consider economic effects imposed on owners, customers, workers and local government revenues from the variety of these restrictions.
The hospitality and entertainment industry is a significant part of the Lawrence economy. Food sales at Lawrence establishments total over $104,000,000 per year, which provides $1,650,000 in sales tax revenue to the City. Alcohol beverage sales at Lawrence restaurants, bars and clubs add an additional $25,000,000 each year, with the revenue to the City of $1,600,000 from the drink tax, nearly matching the sales tax collected on food sales. The hospitality segment of the Lawrence economy employs nearly 4,300 people.
Numerous studies have been undertaken in an attempt to determine economic impact after smoking ban laws are placed into effect. Most “community-wide” statistical studies appear to show little or no overall negative impact when laws are passed restricting smoking in restaurants. However, non-smoking ordinances have been found to have significant impact on the sales and profits of individual restaurants in certain cases.
It appears the proponents of restaurant smoking restrictions concentrate on the “macro” economic impact of these laws. In other words, their studies tend to show that taken as a whole, restaurant sales in a community do not decline after passage of “smoke-free” ordinances. Opponents of smoke-free restaurant laws tend to rely more on the “micro” economic impact. Their studies may report lost revenue, or have anecdotal reports of individual businesses declining or failing. On an aggregate basis, an industry category subject to a ban may show no net effect on sales even though one-half of firms showed gains and the other half exhibited losses. It is not particularly useful to conclude that nothing occurred.
The economic impact of these new laws may depend on the specifics of how they are written and what level of compliance is achieved. Some percentage of businesses would be adversely affected by full compliance, thus validating claims that smoking bans adversely affect some businesses. Noncomplying firms would also then tend to increase sales, from customers seeking options. Differences in compliance rates compound the problem of making predictions about how other communities might be impacted. It is also true that some individual businesses are negatively impacted, some have a neutral effect, and some gain business after ordinance passage. These individual impacts may not lead to an overall negative economic impact.
An examination of Wisconsin restaurants and bars reviewed the differential effect that smoking bans exert on profits rather than revenues. Bar owners are much more likely to experience profit losses than restaurant owners. While 54% of restaurant owners indicated profit reductions, 81% of bar owners indicated this event. Profits were reported as unchanged by 37% of restaurant owners and 13% of bar owners.
The differential impact of smoker vs. non-smoker patronage in various components of the hospitality sector is seen in the ratio of total annual expenditure by smokers to expenditure by non-smokers. In bars, pubs or nightclubs, the ratio of total spending is from 1.01-1.08:1. In other words, even though smokers are a minority of the population, their frequency of patronage, and their spending per visit exerts a greater economic impact at these types of businesses than that of non-smokers. In fast food, coffee shops or family restaurants, the ratio is 0.37-0.41:1, swinging dramatically toward the importance of the non-smoker customer. Bowling alleys fall in between, with a ratio of 0.72:1.
A study funded by Cornell’s Center for Hospitality Research indicated that smokers spend an estimated 13.8% more in restaurants vs. all patrons, while non-smokers spend approximately 4.8% less.
Customers patronize hospitality establishments in order to placate three distinct needs: the desire for food, the desire for social companionship and the desire to seek status. Smoking bans appear to positively impact restaurants that supply the first need, while harming those that supply the other two. The actual impact of the smoking ban on a particular restaurant will depend on how that establishment meets the three needs. This is why fast food type establishments have benefited from restricted smoking, and in part why the aggregate research shows little or no impact from bans.
Smoking bans do not impose identical economic effects on all businesses. Bars are more than twice as likely to experience revenue drops than restaurants. Similarly, losses are more likely in restaurants that are more “bar-like” (sports bars, pubs) than other restaurants. Chain restaurant franchises are also less likely to experience revenue reduction. Fast food outlets and other carryout type establishments typically see an increase in revenues as restaurant customers rearrange their purchasing patterns.
A further indicator of the impact of smoking bans at on-premise (restaurant and bar) establishments came from a brief ban in British Columbia (January 2000 – March 2000). In comparison with the same period in the previous year, draft beer sales reported by licensed wholesalers dropped 13%. This is a comparatively direct indicator of decline in patronage and purchasing at bars and restaurants.
Several of the studies from California localities indicate that although the revenues from restaurant sales continued to increase, they did not keep pace with inflation and population growth, even in the mid 1990’s boom economy. U.S. Department of Commerce data reports that in the 1993 – 1998 period spanning the enactment of the restaurant smoking ban in California, the position of the industry in the state did not keep pace with the growth in other states. Prior to the ban, 9 of the top 50 metropolitan per capita restaurant sales locations were in California. After the ban, that number had fallen to 4 of the top 50. The rate of restaurant sales growth in California cited in the most noted study (Glantz, et al.) was 29% below our rate of growth in Lawrence during the same period.
A recent newspaper article from the college community of Greeley, Colorado is indicative of the co-existence of the conflicting perspectives on the economic impact of smoking bans.
“Overall, the report shows a healthy 16.9 percent increase in December restaurant and tavern sales compared to the same month last year. But that increase reflects sales from new restaurants such as Outback Steakhouse that opened after December 2002.
The December sales picture is a lot less rosy for several bars and restaurants that used to be smoker hangouts.
The city compared December 2002 and 2003 sales at several former smoker hangouts and found that revenues were down 5 percent -15 percent this year.” (Greeley Tribune)
This article notes sales are up based on overall tax reports. However, as in many reports, it’s unclear whether these reports control for differences in tourism, weather and employment growth, all of which could influence businesses. And though the aggregate numbers are positive, the negative reports of declining sales are confirmed on an individual case basis.
A full impact, exemption free smoking ban in Lawrence, with complete compliance, would conceivably result in a 10% reduction of alcohol beverage sales ($2.5 million loss in sales) across the city at bars, clubs, restaurants, bowling alleys and country clubs. For the City to remain in a revenue neutral position in this scenario would require a $10 million increase in restaurant food sales.
Other economic factors frequently cited in smoking ban literature report on decreased operating expenses following the adoption of smoking restrictions. Common items noted are decreases in ashtray purchases, cleaning costs, filtration and “smokeater” operation costs and insurance costs. Most of these expenses are very modest and any savings would not be significant for the overall business vitality. In the case of insurance costs, for restaurant operations, the greatest insurance cost is worker compensation insurance. The rates of those policies are determined by insurance companies that make no adjustment for a smoking or a non-smoking environment, since their determination is that it has no bearing on their claims risk factor, based on their actuarial analysis. In fact, it’s worth noting that one of the highest work comp rates in the nation is charged to businesses in the State of California.