COUNCILMEMBER CAROL SCHWARTZ, AT-LARGE
CONTACT: John Abbot
Councilmember Carol Schwartz at Today's Smoke-Free Hearing
June 14, 2005
D.C. Councilmember Carol Schwartz, chair of the Councils
Committee on Public Works and the Environment, delivered the following statement this
morning at a Committee hearing on legislation regarding smoke-free workplaces.
The hearing on Bill 16-187, the Smokefree Workplaces Act of
2005, Bill 16-193, the Occupational Safety and Health Amendment Act of
2005, and Bill 16-294, the Smoke-Free Restaurant, Tavern, and Nightclub
Incentive Amendment Act of 2005, is being held in the Council Chamber (Room 500) of
the John A. Wilson Building, 1350 Pennsylvania Avenue, N.W. A total of 137 people are
scheduled to testify.
The statement appears below in text.
Statement for June 14, 2005 Smoke-Free Hearing
Carol Schwartz, Councilmember At-Large
Good morning. I am Carol Schwartz, Chair of the Councils
Committee on Public Works and the Environment. The time is 10 a.m. and the Committee is
holding a hearing today on three bills that have been referred to it. Two of those bills
would mandate that smoking be prohibited in all restaurants, bars and nightclubs.
The third one - my legislation - would encourage but would not
mandate that establishments be smoke-free.
Bill 16-187, the Smokefree Workplaces Act of 2005,
introduced by Councilmembers Fenty, Mendelson, Brown, Gray and Patterson, would amend the
D.C. Code to create smoke-free work environments in all enclosed public and private
workplaces in the District and to establish penalties for the violation of smoke-free
Bill 16-193, the Occupational Safety and Health Amendment
Act of 2005, introduced by Councilmembers Brown, Gray, Patterson, Ambrose and
Mendelson, would amend the District of Columbia Occupational Safety and Health Act of 1988
to require workplaces to be free from recognized hazards that may cause death or serious
physical harm or illness to the employee. It does include a few exemptions, such as
tobacco stores, nude dancing clubs established before March 1, 2005, and cigar bars
established before March 1, 2005.
The aim of both of these bills is to essentially outlaw smoking
in District restaurants, bars and nightclubs.
The third piece of legislation is Bill 16-294, the
Smoke-Free Restaurant, Tavern, and Nightclub Incentive Amendment Act of 2005,
which I introduced as a compromise. As you know, I oppose an out-and-out ban, but I do
want to see more smoke-free establishments - more choices. I believe my bill, which uses a
carrot-and-stick approach, will give us the desired result of bringing about more
restaurants and bars that are smoke-free.
My legislation provides for a two-year tax credit equaling 25% of
annual sales taxes to encourage eating and drinking establishments to adopt smoke-free
policies. That would be the carrot. Businesses that take advantage of the tax credit would
have to be maintained in perpetuity as completely smoke-free or else pay back the entire
credit they received.
Since my tax credit idea may prove to be overly cumbersome from
an administrative standpoint, I may propose instead that a fund be created from the
increased license fees that will, under my bill, be collected from businesses that
continue to allow smoking. Half of this new fund could be set aside to pay for rebates
that will encourage restaurants and bars to open as, or convert to, smoke-free. That could
be the new carrot. As before, businesses that take advantage of the rebates would have to
be maintained as completely smoke-free, or else pay back the entire amount of the rebates
And now heres the stick. The legislation requires the
installation of high-performance ventilation systems, the standards for which are
described in the legislation, in any restaurant, bar or nightclub where smoking is
permitted, and quadruples annual business license fees for establishments that choose to
Penalties for businesses that fail to enforce their smoke-free
designations would be set at $200 for a first violation, $500 for a second offense, and
$1,000 for a third and any subsequent violation. Violators also face having their business
licenses revoked. Individuals who light up in establishments where smoking is prohibited
would be subject to a fine of $100 - a substantial increase from the current minimum fine
My legislation further directs that, after administrative costs,
a portion of the funds collected through increased license fees and penalties be used for
smoking cessation and health education programs.
Now, you might well have heard before some of what I am going to
say today. A good many of you may not agree with me. But since my views on this topic
differ from those of the smoking ban proponents, and since they have made me their
villainous poster girl, I am going to take advantage of this opportunity to express in
detail my opposition to a total ban. I do expect to have an honest and civil exchange of
views, just as we did at the 12-hour hearing I held on this same topic in December 2003.
First of all, I have been criticized for not bringing the total
smoking ban legislation out of committee. Chairmen of committees - not just here, but
everywhere - have the prerogative to set the agenda. Why would anybody want to be a
committee chair, with all that extra work, if they just were a funnel for every piece of
legislation? What comes in must go out - where does that happen?
It does appears this time around that the votes may be there for
a total ban, regardless of what I do. And I can be circumvented. But just because you have
the votes doesnt mean you cant compromise. It is beyond me why we, here in the
District of Columbia, would go to the extreme of a total ban. Why not try a compromise -
especially one that heads us in the right direction? I think I offered a good one when I
introduced my bill on May 17. But another idea may be a partial ban, with exemptions in
certain categories, and still use a carrot-and-stick approach to encourage exempted
establishments to go smoke-free. I remain open to other suggestions for compromise so long
as the opportunity for choice is preserved.
In addition to my strong belief that government should not be in
the business of removing peoples legal choices, I am also concerned about the impact
that extreme measures would have on our hospitality industry. The fact of the matter is
that the District of Columbia is far more reliant on revenue from its hospitality industry
than any other state I know to fund its local budget for schools, public
safety, public services - everything. Hospitality is our biggest industry; indeed, it is
essentially our only industry. Without room for agriculture or manufacturing, what would
our revenue options be?
We also already have enough obstacles to revenue production that
have been imposed upon us. Roughly half of the land in the District is, for one reason or
another, tax-exempt. Congress wont let us have a true residency requirement for our
own government employees, nor will Congress allow us to even tax the incomes of city
workers who reside outside of our borders, as other jurisdictions do. There is no doubt in
my mind that business at bars and restaurants in our city would suffer - hence, the
citys revenues would suffer - if we were to enact an outright ban. A lot of our
business could - and would - go to Virginia or to Prince Georges County, Maryland, or to
illegal and untaxed clubs. Make no mistake, we have benefited from Montgomery
Based on figures I obtained from our own Office of the Chief
Financial Officer, the sales taxes collected from D.C. restaurants increased 9% between
2003, the year the smoking ban went into effect in Montgomery County, and 2004. Moreover,
according to these same figures, there was a nearly 18% increase in the collection of
sales taxes from D.C. restaurants in the 4th Quarter of 2003, after the Montgomery County
ban took effect, over the same Quarter in 2002. This is more than double the increase in
restaurant sales taxes that was collected by Montgomery County in the 4th Quarter of 2003
when compared to the 4th Quarter in 2002, based on figures from the Maryland
Similarly, D.C. had a larger increase in restaurant sales taxes
collected than Montgomery County in every Quarter of 2004 when compared to the same
quarter in 2003. In fact, D.C.s increase was double that of Montgomery County in the
4th Quarter of 2004 compared to the 4th Quarter in 2003 and almost double Montgomery
Countys in the 3rd Quarter of 2004 as compared to the 3rd Quarter in 2003.
We are also now attracting many suburbanites - especially young
people from Virginia. We are getting their entertainment dollars, and parking revenue as
well. And many of them smoke. Why would we send their dollars back to Virginia?
I often see reports in the paper or on the news about
well-planned efforts in surrounding jurisdictions - in Crystal City, Ballston, Rosslyn,
Clarendon, and Prince Georges County, especially its huge National Harbor project - aimed
at making their nightlife livelier. Dont forget that there are beautiful views this
way from across the river in Virginia. Our ban could increase the success of these
organized efforts. How foolhardy would that be!
We have to understand the District is not California, where
temperate weather enables many establishments to maintain outside patios, decks or
terraces - where smoking is allowed - 365 days a year. And, if outside choices arent
an option for smokers - well, too bad, because smoking establishments are five, six, seven
hours away. Los Angeles is 270 miles from Las Vegas, Nevada, and San Francisco is 230
miles from Reno, Nevada, where smoking is allowed. It is pretty obvious that diners and
bar-goers in Los Angeles or San Francisco who wish to smoke cant choose to just
cross a river or hop on a subway to find establishments that welcome them, as is the case
We will hear ban supporters say today that business at bars and
restaurants in New York City increased after the smoking ban was instituted there on March
30, 2003. However, the truth is that New York Citys economy declined substantially
after the terrorist attacks of September 11, 2001. Therefore, to attribute increased
business in New York City bars and restaurants to the citys smoking ban is not
necessarily accurate - much of this increased business may simply be a by-product of the
gradually improving economy in New York City since the 2001 terrorist attacks.
Now, I know a lot of figures and studies are going to be thrown
around today to support one side or the other in this debate - figures that will be used
to dispute figures that have already been used to dispute figures. There is conflicting
data on the consequences of smoking prohibitions that have already been enacted in other
jurisdictions. But it is a fact that most of the sales tax analysis used in pro-ban
studies of New York City includes fast food restaurants, carry-out establishments,
delivery locations and other industry segments that never allowed smoking prior to the ban
anyway. And, it is a fact that, in June 2003, shortly after New Yorks citywide
smoking ban went into effect, New York City increased its sale tax rate from 4.0% to
4.125% and New York State raised its sales tax rate from 4.0% to 4.25%. Increasing the
sales tax rate, of course, increases sales tax collections - thereby also calling into
question the numbers disputing any negative impact of that citys smoking ban.
I also want to point out that, as I mentioned at our hearing on
the first smoke-free legislation, I was told by someone who should know, that, as a result
of the smoking ban in New York, the city lost conventions, and that international visitors
have not returned to pre-9/11 numbers, in part because of the smoking ban. Washington,
home to embassies as well as many international organizations, certainly has its share of
foreign visitors, many of whom smoke. Where would they go if we were to ban smoking?
Probably not to our hotels and restaurants, particularly with the many fine alternatives
that are so close by. Embassy personnel, with their full-time staffs, could also just stay
in, instead of spending their money in our businesses - and I fear many will.
Here in Washington, we also took an economic hit after September
11, 2001. Even before that, though, the District was - with a few exceptions, like
Georgetown - certainly not widely known for a vibrant nightlife. But that has changed and
our nightlife is thriving - Seventh Street Northwest, Adams Morgan, Eighth Street
Southeast and other areas are all booming, and our revenue from restaurants and bars is
topping $200 million a year. And according to a recent Washington Post story, citing
figures from the Washington Convention Center Authority, the conventions booked in DC for
2005 are almost double what they were in 2004. Those conventions are expected to bring in
Why would we choose to shoot ourselves in the foot and jeopardize
this revival when people can choose non-smoking establishments? There are, according to
Smokefree DC, already close to 200 smoke-free restaurants - nearly 300 if family style
eateries are included - and we have an opportunity through compromise to provide even more
- many more.
There has been a law on the books in our city for more than a
decade clearly stating that smoking is prohibited in public and private workplaces, and I
fully support that. Exceptions are made for bars, nightclubs and restaurants, but the law
says restaurants of a certain size must include designated non-smoking areas. There is no
law that says a restaurant or a bar must allow smoking, and many dont.
If a complete smoking ban is implemented, rather than the
carrot-and-stick approach I am offering, I have little doubt that some well-established
businesses wont survive, that jobs will be lost, and that revenues will suffer.
According to the Restaurant Association of Maryland, citing figures it said were provided
by the Maryland Comptroller, the number of liquor-licensed businesses in Montgomery County
dropped from 507 before that countys smoking ban went into effect to 402 such
establishments a little more than a year later. Again, I know that everyone has their
statistics, but if this one is even close to true, it is alarming. And we already have the
highest unemployment in the area. Do we want more?
In a city such as ours that not so long ago was crippled by debt
and poor bond ratings, the newfound prosperity we are experiencing is, indeed, welcome.
But can downtowns revival continue? And can it spread to neighborhoods that were
neglected for too many years? Not if we insist on becoming unfriendly to business, and
thats exactly how a smoking ban will be perceived. In the past, we killed off
businesses or sent them packing to the suburbs with high taxes and counterproductive
policies. When will we ever learn?
Even the Superior Court of the District of Columbia has weighed
in with an opinion on this, and the conclusion was that a total ban would be bad for
business. It said that the D.C. Smokefree Workplaces Initiative of 2004, which
the smoking ban lobby pursued after its efforts during the last Council period were not
successful, would affect restaurant tax revenues since it was undisputed that
prospective patrons would more than likely elect to patronize restaurants in Maryland and
Virginia, thus causing a negative fiscal impact on restaurant tax revenue assumptions
relied on by the [D.C] Council.
The smoking ban lobby is, indeed, well-funded and well-organized,
and there is nothing wrong with that. It has done its job and has made a big impression on
some folks around here - people who have not said a peep about banning smoking until the
foundation money flowed into this effort and the hired lobbyists started lobbying.
The group is also cleverly recruiting allies by touting worker
safety as its goal. But lets be honest. For a great many ban supporters, the true
motivator is simply their preference not to be around people who are smoking.
I can understand preferring not to be around smokers. Even though
I smoked for nearly four decades until quitting four years ago, today I dont like
being around smoke. But I find government taking away legal choices - mine as well as
those of others - a far more unpleasant, and even unhealthy, prospect. And I have heard
from a lot of restaurant and bar employees, as well, who resent having it decided for them
whether or not they should work in places that allow smoking. And they worry that people
going outside for a smoke may not reappear to pay their checks.
I am concerned about the health of these workers. I also am
concerned about them keeping their jobs and their opportunity to choose where they work.
By passing my legislation we will provide hospitality workers with even more job
opportunities in smoke-free environments.
Listen, in our democratic society, people are free to choose
where they spend their money. The marketplace is ordinarily pretty quick to respond to the
demands of consumers, and I bet you that if those who support the ban and their friends
decide to avoid those businesses that allow smoking and frequent those establishments that
dont, such action would yield results - and fast. And I would feel far more
comfortable with that course of action to bring about change than I do with banning
smoking in every establishment because a wealthy out-of-state foundation with a national
agenda brings pressure to bear on our citizens and local legislators to outlaw a legal
choice. Why shouldnt we write our own local agenda by putting together a
common-sense approach, which a compromise could accomplish.
And we all know, as well, that a complete ban will negatively
impact residential areas near restaurants and bars. What will smokers do when they want a
cigarette? They will gather outside, creating litter and noise and leading to more
annoyance for nearby residents and increased ill will between the establishment and its
neighbors. The solution? I am sure that the Robert Wood Johnson Foundation has something
in mind, and I have no doubt that it includes banning smoking on city sidewalks. And what
would be next?
There are, thankfully, fewer and fewer smokers out there, and I
certainly applaud - and seek to encourage - this positive trend. In fact, as an ex-smoker
myself, I feel qualified to try to cajole my friends who still smoke into quitting - and,
some might say, I am relentless and annoying about it at times.
I have no doubt that smoke-free establishments will be the norm
someday, and through compromise we can hasten that day. As I noted earlier, there are
already some 200 restaurants - or 300, depending on how you count - that do not allow
smoking, and I am confident that there will be more.
But because of my strong belief in allowing freedom of legal
choices for consenting adults, and because of my fear of harming our revitalization, and
because I feel that banning smoking in all restaurants and bars is too extreme of a
measure to impose, I oppose the two bills before us that would accomplish such a blanket
prohibition. But I do seek to compromise in a way that will bring about more smoke-free
choices, and I hope to convince others to do the same. Why, I ask, must we go - overnight
- to an extreme, when effective alternatives exist?
Now, lets remember, we live in a democracy and the freedom
to disagree is part of it. Lets respect each other, and our individual opinions as
we debate this issue.