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CITY OF VANCOUVER
M E M O R A N D U M
From: CITY CLERK'S OFFICE Date: February 27, 1996
Refer File:
4105-3
To: VANCOUVER CITY COUNCIL
Subject: SMOKE FREE INDOOR AIR BY-LAW - REGIONAL PROPOSAL
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Three Special Meetings of Vancouver City Council were held on September 18, October
24 and November 7, 1995, for the purpose of hearing delegations on a proposed smoking
ban. During those three meetings, Council heard a total of ninety speakers, then
deferred its decision to a future meeting.
Subsequently, on December 5, 1995, Council agreed to participate in a regional
consultation process initiated by the G.V.R.D. The resulting proposal is set out in
the attached February 16, 1996, Policy Report.
CITY CLERK
NLargent:as
Attachment.
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REPORT ATTACHMENT
POLICY REPORT
HEALTH
Date: February 16, 1996
File #: CC0196
TO: Vancouver City Council
FROM: Medical Health Officer
SUBJECT: Smoke-free Indoor Air By-law - Regional Proposal
RECOMMENDATIONS
A. THAT the Vancouver Health By-law #6580 be amended, to
generally incorporate the principles reflected in the
draft wording of Appendix 1 of this report,
effectively prohibiting smoking in all indoor public
places as of May 31, 1996, with smoking permitted
only in those commercial establishments where entry
by minors is restricted by law.
B. THAT the Director of Legal Services be instructed to
bring forward the necessary by-law amendments.
C. THAT the Medical Health Officer be directed to not
carry out active enforcement of the by-law until
December 1, 1996 to allow for public education and
the communication of its provisions to those
affected.
D. THAT the G.V.R.D. Task Group on a regional smoking
by-law strategy be advised of the actions taken by
City Council in this matter.
MANAGER'S COMMENTS
The General Manager of Community Services notes the
recommended resolution of this issue is largely consistent
with the joint proposal put forward by the Industry Group
and the Medical Health Officer, through the Metropolitan
Board of Health. However, the suggested "grandfathering"
provision in the joint proposal to exempt buildings which
upgrade to present air quality standards from further
upgrading for ten years has been excluded, on the advice
of the Director of Legal Services.
In view of this change, and the limitations of the ASHRAE
standard, the General Manager supports an alternative
recommendation to A, as follows:
A1. THAT the Vancouver Health By-law #6580 be amended to
incorporate the principles reflected in the draft
wording of Appendix 1 of this report, excepting the
requirements for the installation of ventilation and
air cleaning equipment and related monitoring and
reporting, effectively prohibiting smoking in all
indoor public places as of May 31, 1996, with smoking
permitted only in those commercial establishments
where entry by minors is restricted by law.
The General Manager of Community Services, RECOMMENDS
approval of A1 and B through D.
COUNCIL POLICY
Health By-law #6580, as amended from time to time, sets
controls and limits on where individuals can smoke in indoor
public places and the workplace.
On December 8, 1994, Council passed the following motions:
"A. THAT Council endorse, in principle, strategies to achieve
smoke-free indoor environments, subject to a report back
on public consultation.
B. THAT the Medical Health Officer carry out a public
consultation process through the spring of 1995 toward the
establishment of an implementation schedule for smoke-free
indoor environments."
PURPOSE
This report brings back to Council for consideration a proposed
regional strategy for achieving smoke-free indoor air in public
establishments. It recommends that Council adopt an approach
put forward jointly by the Industry Group and the Medical
Health Officers, endorsed by the Metropolitan Board of Health
and the voluntary health agencies.
BACKGROUND
On December 8, 1994, Council considered a report from the
Medical Health Officer on moving towards an objective of 100%
Smoke-free Public Indoor environments. Council endorsed, in
principle, the objective of smoke-free indoor environments
while leaving the effective date open for further discussion.
In addition Council directed the Medical Health Officer to
carry out a public consultation process "toward the
establishment of an implementation schedule for smoke-free
indoor environments."In the spring of 1995, staff commissioned
a public opinion survey which indicated strong support for a
smoke-free indoor air by-law. During the summer public and
stakeholder consultations were conducted which indicated a high
level of industry concerns, especially with respect to economic
impacts and enforcement issues.
Staff prepared a report to Council based on the public health
objectives and in response to the stakeholder comments and
concerns. In response to this report, Council heard from more
than 100 delegations over three nights in September, October
and November of 1995. The Lower Mainland Hospitality Industry
Group's submissions consistently opposed a prohibition on
smoking indoors and proposed a "clean indoor air" alternative
based on a ventilation standard (ASHRAE 62-1989). At the
conclusion of the three Special Council meetings, Council took
no action, awaiting a regional initiative from the Council of
Councils.
A Council of Councils meeting in early December, 1995 resulted
in a general consensus that a regionally consistent approach to
the indoor smoking issue needed to be found. As a result,
individual Councils were asked to endorse a regional
coordinating approach and submit candidates from their Council
to sit on a regional Task Force. The Task Force was to explore
the possibility of a regional by-law and recommend such a model
by-law, through the Regional Administrators back to the
respective Councils.
Subsequent to the Council of Councils meeting a series of
meetings were convened, with the assistance of Dr. Frederic
Bass, between Dr. Blatherwick and Bruce Clarke of the Lower
Mainland Hospitality Industry Group. The intention was to
explore the possibility of a joint solution to the indoor
smoking issue. These meetings concluded in mid-January with a
draft approach to a by-law which both parties were willing to
put forward to the G.V.R.D. process through the Metropolitan
Board of Health. The Metropolitan Board of Health endorsed the
proposal on January 24, 1996 and communicated this to the Chair
of the G.V.R.D. The proposal was introduced and discussed at a
meeting of the G.V.R.D. Task Force on February 7, 1996. The
general consensus at that meeting was that the proposal
provided a good framework for a regionally consistent approach
and should be taken back to the respective Councils for an
indication of support, in principle. It was also clear that
some councillors felt that their Councils would view the
proposal as a baseline but would likely entertain more
restrictive by-laws.
DISCUSSION
The joint proposal drafted by the Industry Group and the
Medical Health Officer enshrines the following key principles:
1. Recognition that Environmental Tobacco Smoke (ETS)
has a detrimental effect on public and employee
health;
2. The need for a prioritized, practical regulatory and
educational approach to address these health risks;
3. The elimination of the involuntary risk of exposure
to ETS in our young people is recognized as an
effective priority measure; and
4. The reduction of "voluntary" exposure to ETS by
adults in adult-oriented establishments is an
objective that can be achieved through the
appropriate application of best available control
technology and administrative controls.
It was with these principles in mind that the joint proposal
was crafted and eventually presented to the Metropolitan Board
of Health on January 24 for discussion and endorsation.
The key features of the joint proposal are contained in the
draft by-law wording attached as Appendix 1. This draft is
provided to Council as an example of some common provisions
that could be incorporated into a regionally-consistent set of
municipal smoking by-laws. It has not been thoroughly reviewed
by the Director of Legal Services and will likely not resemble
the final wording of the by-law.
In summary the key features are:
1. The by-law would start from the premise that all
indoor public places would be smoke-free. This would
include all places of employment, common public areas
(lobbies, stairways, reception areas), places of
public assembly (e.g. arenas, convention centres,
halls), malls (including food fairs), commercial
establishments (including retail and service
establishments) and restaurants. In addition smoking
would be prohibited in taxis, limousines and vehicles
for hire.
This is a significant expansion, from the current by-
law, of the types of facilities where smoking would
be prohibited. In addition the exemption for
"private social functions" has been removed, implying
that irrespective of the nature of the function, all
places of public assembly are non-smoking.
2. Smoking would be permitted in commercial
establishments where entry by minors is prohibited
(by law or provincial policy - e.g. liquor outlets,
casinos, bingo halls), provided such establishments
install, operate and maintain ventilation/air
cleaning equipment meeting standards and conditions
contained in an appendix to the by-law (at a minimum
the ASHRAE 62-1989 standard). Establishments wishing
to be exempted under this provision would have to
submit to the Medical Health Officer, within 60 days
of enactment of the by-law, a Letter of Undertaking
committing to have the ventilation/air cleaning
upgrade completed by December 31, 1997. New
establishments approved after the enactment date
would have to meet the ventilation/air cleaning
provisions upon opening. Requirements for regular
maintenance/service contracts, annual ventilation/air
quality testing and reporting and the installation of
warning signs would accompany an exemption under this
section.
The Industry Group has requested that the by-law
include a "grandfathering" provision which would
protect for ten years facilities that upgrade from
having to further upgrade should standards or
regulations become more stringent. The Director of
Legal Services advises that such a provision would
not be permitted under the Charter.
3. Smoking would be permitted in "smoking rooms" of a
commercial establishment or workplace. A smoking
room is defined as a room, designated by the
proprietor, in which smoking is permitted and which
is physically separated and air tight, with four
walls, a ceiling and a tight-fitting door. The room
would be heated, cooled and ventilated separate from
the rest of the establishment and would be exhausted
to the outside so as to provide a negative pressure
within the room. Finally, there would be a
requirement that no minor nor any employee would need
to enter the room while it was occupied by smokers.
Staff have had discussions with representatives of the
voluntary health agencies (Canadian Cancer Society, Heart &
Stroke Foundation, B.C. Lung Association and the B.C. Medical
Association) who have been very active in supporting the Smoke-
free Indoor By-law Initiative from its inception. They are
reasonably comfortable with the joint position put forward and
view it as a significant step in the right direction.
OTHER ISSUES
In formulating this joint recommendation a number of related
issues were raised and are discussed below:
1. Enforcement:
Although enforcement was a key concern to industry under the
previous proposal, the issue has become less significant under
this joint proposal. Much of the monitoring and compliance
checking of the air quality option would be carried out by
industry or industry associations, in cooperation with the
Medical Health Officer. Environmental Health Officers would
likely perform spot checks to ensure compliance with the
ventilation standards. Enforcement of the smoke-free
provisions in restaurants and other establishments should not
become a serious issue, provided time is spent in educating
both the public and the operators of the bylaw requirements and
the social norm of non-smoking.
2. Outdoor Patios:
Although this is primarily an indoor smoke-free bylaw, for
clarity and consistency the Medical Health Officer recommends
that patios of smoke-free establishments also remain smoke-
free. This is consistent with how current City by-laws
interpret the outdoor (patio or sidewalk) seating as being a
contiguous part of the establishment. It would also ensure a
level playing field within the foodservices sector in that
establishments without patios would not be placed at a
disadvantage. It would also prevent a proliferation of large
outdoor patios to "get around" the smoking restriction.
Finally, it would not have the effect of reserving the "best"
seats (during the summer) for only smokers. This
recommendation is put forward more as an equity issue than a
public health issue, which it is not.
3. Air Quality/Ventilation standard:
Some in the health sector have questioned why the Medical
Health Officer would agree to including ASHRAE 62-1989 as a
ventilation standard, given the arguments he put forward
previously that the ASHRAE standard is a comfort standard not a
health standard. The minimum standard proposed under the air
quality/ventilation approach is one put forward by the Industry
Group as a way of improving on the indoor air quality currently
found in their establishments. It is not presented by the
Medical Health Officer as a standard that is protective of
public health. Nevertheless, it has the potential of reducing
adult exposure to ETS, especially given the predicted decrease
in number of smokers in the general population.
4. Industry request for grandfathering of facilities that
improve air quality from more stringent standards?
In order for this joint proposal to work the Industry Group
made it quite clear that they needed some assurance that they
could recover their capital investments in ventilation/air
cleaning equipment (in some cases exceeding $50,000) and wanted
some certainty that they would not be subjected to new
regulations/standards if they did upgrade. They sought a 10
year "moratorium" from the date of enactment of the by-law.
Staff were quick to point out that we could not, in any way,
bind future Councils from adopting and applying more stringent
regulations. Neither can staff predict what other agencies
(e.g. W.C.B) or senior levels of government might do with the
ETS issue.
The Director of Legal Services has advised that such an
"existing non-conforming" designation is not permitted under
the Charter. Staff have discussed this turn of events with the
Industry Group and have opted to put forward the air
quality/ventilation approach without an accompanying
"grandfathering" provision at this time. Staff will continue
to work with the Industry Group to address any remaining
concerns.
5. Why bother with including the "ventilation requirement" at
all?
Some have argued that the by-law should exempt "adult-oriented"
facilities outright from this round of restrictions, leaving
the door open to revisit the issue 3 to 5 years down the road.
This approach would allow staff to research the experiences of
jurisdictions such as California where prohibitions on smoking
in liquor outlets are scheduled to take effect January 1, 1997.
However, in order for this proposal to remain a joint solution
with the Industry Group, staff have recommended it to Council
complete with the ventilation option.
The Medical Health Officer recommends that the by-law come into
effect on May 31, 1996 (appropriately, World No Tobacco Day)
and that active enforcement not take place until December 1,
1996. The reasons for this phased implementation are discussed
in the following section.
IMPLEMENTATION/COMMUNICATION PLAN
Staff are recommending a phased implementation approach whereby
the by-law is approved in principle at this meeting (and the
results communicated back to the G.V.R.D. process) but does not
become effective until May 31, 1996. The intervening period
will be used to communicate the new requirements to the
business community as well as to the general public and to
carry out further education about the effects of ETS. Once the
by-law comes into effect, phase 2 of the implementation plan
commences with environmental health officers and industry
representatives educating the affected businesses on compliance
with the by-law. Staff propose that a "moratorium" period of 6
months (to November 30,1996) be provided during which no active
enforcement (i.e. tickets, by-law charges) takes place, but
where violations are brought to the operators attention. Staff
would work closely with the business community to address
implementation problems that might arise.
ENVIRONMENTAL IMPACTS
The most obvious environmental impact will be evident inside
public buildings where the air will be significantly cleaner.
One potential problem exists with the disposal of cigarette
butts outside of buildings. The provision of ashtrays may be
necessitated at major entrances but a decision on this should
await implementation of the by-law.
SOCIAL IMPACTS/IMPACTS ON CHILDREN AND YOUTH
Clearly the emphasis on eliminating the exposure of our youth
to ETS in public venues is one that should have a major
positive impact on the long term health of our youth. One
"side-effect" of a 100% smoke-free requirement experienced in
other jurisdictions is a slight reduction in smoking
prevalence. Any reduction in smoking prevalence amongst youth
would be welcomed. In the long term, any reduced expenditures
in health care for individuals affected by ETS, may free up
resources for other social programs.
FINANCIAL IMPACTS
Staff have previously addressed the issue of economic impacts
(or lack thereof) from a smoking prohibition. The results from
California, New York and other jurisdictions with respect to no
negative impacts on the foodservices sector revenues are
irrefutable. Experience in other jurisdictions also indicate
cost savings for operators from lower maintenance, cleaning and
health insurance costs as well as the avoidance of lawsuits.
The ventilation option will increase costs for operators of
adult-oriented facilities, not only from the original capital
outlay but from maintenance/service costs, air quality testing
costs and increased heating/cooling costs.
Financial impacts on the City should be minor; initial efforts
at education and enforcement may require a minor
reprioritization of environmental health officer resources, but
no additional staff resources will be required. Over time, the
need for enforcement is expected to decrease, reducing the
drain on health board resources. In Vancouver,
enforcement/monitoring would be carried out by the
Environmental Health Division of the Vancouver Health Board.
CONCLUSION
This report recommends an historic shift in public policy for
the City of Vancouver, one that ultimately provides the
citizens, visitors and workers in the City with an appropriate
level of protection from exposure to environmental tobacco
smoke. The adoption of the recommendations contained in this
report will establish the norm for indoor public places as
being non-smoking, with a few exceptions for adult-oriented
establishments. The arrival at a joint proposal has been a
positive step in the process of arriving at a clean indoor air
by-law. Although there still remain some strong feelings and
concerns, especially on the part of the restaurant association,
staff have concluded that what is presented in this report
forms a reasonable approach, based firmly on the protection of
our children's health. The Medical Health Officer recommends
that Council endorse the proposed by-law and send a strong
signal to the rest of the G.V.R.D. municipalities to enact
similar legislation.
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