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1992-10-27_Minutes 83-809 COMMON COUNCIL OCTOBER 27, 1992 At a meeting of the Common Council, held at the City Hall in the City of Saint John, on Tuesday, the twenty-seventh day of October, 1992, at 7:00 o'clock p.m. present Elsie E. Wayne, Mayor Councillors Chase, Coughlan, Gould, Knibb, Landers, McAlary and Trites - and - Messrs. J. Brown, City Manager; F. Rodgers, City Solicitor; J. C. MacKinnon, Commissioner of Environment and Infrastructure Services; J. Johnson, Building Inspector; Mrs. M. Munford, Common Clerk; and Ms. C. Joyce, Assistant Common Clerk. The Mayor called the meeting to order and noted that its purpose is to hear presentations with respect to the City's proposed Smoking By-Law, which was given first reading on May 4, 1992, at which time a motion was adopted that Council would hear briefs by interested citizens or groups concerning the proposed By-Law. The Mayor referred to the order of the agenda of this meeting, and also noted that Council at its regular meeting on October 26 changed the October 29 hearing to November 5. Dr. Evan Pugh of the City of Saint John Environment Committee appeared before Council and, having noted the Committee's work on this project since 1984 when he first presented a by-law to Council, expressed the opinion that the time is long overdue for the proposed By-Law in that the majority of cities in North America have some by-law in effect controlling smoking, urged Council to pass the proposed By-Law. Dr. Pugh made the observation that, in proposing this By-Law, the Committee had to make choices between doing nothing and maintaining the status quo, or banning smoking absolutely in all public places, and that the Committee chose the middle ground by proposing a By-Law that prohibits smoking in all public places and allows smoking in controlled designated smoking areas with special dispensation for smaller restaurants and smaller areas, knowing that this would create some difficulties for businesses and individuals; however, for the greater good of society, the By-Law should be passed. Dr. Scott Giffin, District Medical Health Officer for the Saint John Region, addressed Council in support of a smoking by-law and, referring to a prepared brief (a copy of which he subsequently filed with the Common Clerk), on the detrimental effect of smoking to the health of not only those who smoke but on its adverse effects on the health of non-smoking spouses and children of smokers, and the fact that cigarette smoking is highly addictive and is the most intense form of personal pollution. Dr. Giffin addressed three general reasons why, in his experience, Councillors show reluctance in not having an anti-smoking by-law as follows:- (1) the concern for the impact on the economic health of businesses serving the public and the municipal tax base thus derived; (2) the ethical qualms over enacting legislation to regulate personal behaviours; and (3) concerns regarding the enforceability of such regulations; and concluded by expressing his support, as Medical Officer of Health for Health Region II in New Brunswick, of which the largest segment of the population lives in the City of Saint John, of the efforts of Council towards a reasonable and effective anti-smoking by-law, and suggesting that this "good government" has the responsibility to go beyond the strict province of the by-law in that consideration should be given to sponsoring smoking cessation programs for municipal employees and the general public, and undertake individually and collectively promotion of the positive effects of not smoking, as well as to consider serious measures to eliminate the access of underage youth to cigarettes. Mr. Barry Morrison, Saint John Unit Representative of The New Brunswick Division of the Canadian Cancer Society, appeared before Council and, reading from a previously-submitted brief, commented on the proposed By-Law from the point of view that, if tobacco were not used, many millions of lives would be saved in view of the connection between tobacco use and cancer, and due to there being no level of exposure to tobacco smoke which is considered safe, either to the smoker or 83-810 COMMON COUNCIL OCTOBER 27, 1992 the non-smoker who is subjected to environmental tobacco smoke (ETS). Mr. Morrison also commented on the role of governments and the Saint John Common Council in enacting legislation to control tobacco use in that it is very clear that this is a public health issue; and expressed the opinion that this is not a smoker versus non-smoker or "rights" issue in that tobacco is addictive, and there cannot be "freedom of choice" in addiction. From the point of view of control of environmental tobacco smoke being an occupational health issue, Mr. Morrison noted that there are Federal, Provincial and Municipal regulations on tobacco use in various public and work places thereby protecting workers from ETS and indirectly possibly helping smokers quit; and suggested that governments should also move to protect those who work in other establishments who are exposed to tobacco; and, with respect to economics, stated that no objective studies support claims that such legislation would have a negative impact on business, citing the conclusions of a 1992 report by the Institute of Health Policy Studies (University of California) which analyzed the effects of legislation requiring smoke-free restaurants. Mr. Morrison also suggested that Council can ensure an equitable, economic and effective smoking by-law with one, and only one, approach - the complete ban of tobacco use, implemented with a phase-in schedule over a year to assist groups and businesses in the transition; noted the community support for smoke-free environments based on surveys carried out; and urged Council to adopt a by-law to save lives. Councillor Trites suggested that, if the Cancer Society could make available the list of the over twenty U.S. cities which have passed by-laws as referenced under Section III Economics in the Society's brief, the City could access copies of the by-laws for Council's review in considering its approach to the situation. The Mayor asked if other by-laws were reviewed during preparation of the proposed By-Law, to which Mr. Johnson replied that, while the City had a number of other draft by-laws, the proposed By-Law was not modelled on most of the others because enabling legislation was either different or the approach was not considered to be workable due to the fact that the City of Saint John does not have hundreds of persons who could enforce the by-law. (Councillor Knibb withdrew from the meeting.) Dr. John C. Acker, Past President of the Saint John Medical Society, was present at the meeting and approached the issue of the proposed Smoking By- Law from the position that tobacco or nicotine, if introduced onto the market today, would be declared illegal by the Federal Drug administration as, not only is it physically addictive, it is the only legal product which when taken as directed will cause death; and the argument that, while persons will say that smokers have rights, tobacco smoking is not one of these rights in that the side stream smoke, i.e. smoke from the burning end of a cigarette, has higher concentrations of cancer causing and other noxious compounds than the main stream smoke which is inhaled by the smoker. In response to the argument against the proposed By-Law that it will be expensive for businesses to install the required ventilation systems and separate areas for smokers, Dr. Acker suggested that there are other public health issues that are legislated, such as requirements for fire exits, sprinkler systems, smoke alarms, etc. which are legislated mandatory in all public places, and that the By-Law does not legislate that every public place must install ventilated smoking rooms, but rather simply states that, if the proprietor wishes to cater to smokers, then ventilated closed space must be provided for the protection of those who do not wish to be submitted to the poisonous effects of tobacco smoke. Dr. Acker requested Council to proceed with implementation of the proposed legislation as swiftly as possible to protect the health of the citizens of Saint John. Mr. Andrew C. Leonard, President and Owner of the Water Works Lounge at 30 Water Street, appeared before Council to express his views on the proposed Smoking By-Law on the basis that, if adopted, the Water Works Lounge would be forced to close; and explained that the damage goes beyond the fact that investment would be lost and its twelve employees' jobs would be gone because part of the livelihood of members of live bands is dependent on playing in a few clubs like the Water Works and also suppliers would be greatly affected if the proposed By-Law were to come into effect. Mr. Leonard commented on the historical and physical characteristics of the building which houses the Lounge, as well as on expenditures to date required in order to meet various Building Codes, including the installation of a 83-811 COMMON COUNCIL OCTOBER 27, 1992 ventilation system; and expressed the opinion that, as the Water Works Lounge is a privately-owned business not funded by public funds and therefore not a public place, it should be under his jurisdiction to make decisions of what is best for his own business, and that an alternative to the By-Law could be to post a "Smoking Establishment" sign on the entrance to the lounge leaving it to the customers to decide to enter or not; and concluded that it is his consensus that nobody in his type of business can comply with this By-Law, and asked that it not be passed as written. Mr. Leonard, responding to Council queries, advised that, with regard to the suggestion that his establishment could be a non-smoking bar, his clientele consists of persons who smoke; and also that he would be opposed to being required to designate smoking and non-smoking areas in his establishment in that he does not have funding to install additional ventilation systems, extra walls with extra fire exits, exit signs and fire alarms, nor does he think that the clientele would come to his establishment if unable to smoke. Diane McConnell, President, and Debra Bathgate, co-owner/operator, of Incredible Edibles Cafe & Catering at 49 Princess Street, spoke in turn in opposition to the proposed Smoking By-Law in that, as written, it would be too costly for the small business person in the hospitality industry to implement, with loss of jobs and customers to be the disastrous effects of the By-Law, with many small businesses forced to close. Referring to their previously-submitted letters, Ms. McConnell and Ms. Bathgate's objections to the By-Law were based on the loss of jobs to the hospitality industry, small business would suffer, economic development would be hampered, and the hospitality industry would die, an industry which very importantly does not need university-trained employees; and requested that the proposed By-Law not be passed as written. Following her presentation, Ms. McConnell, in response to Council queries, explained that the lay-out of Incredible Edibles which currently accommodates both smokers and non-smokers at a ratio of 45 per cent to 55 per cent respectively in the 47-seat establishment; and, with regard to the indication that the proposed By-Law will exclude restaurants with 41 seats or less, noted that her restaurant is not in a free- standing building, and that she would not be able to comply with the requirement in the By-Law for a ventilation system with sealed-air pressure in an environment where doors are opening and closing all the time, nor could she afford to install such a system when there is already a hallway separating the smoking and non-smoking areas. Marlene Alchorn, General Manager of the House of Chan Restaurant on Rothesay Avenue, appeared in opposition to the proposed By-Law on the basis that the House of Chan's smoking section is forty percent of the restaurant and, as its customers enter the establishment, they are offered the right to be seated in a smoking or non-smoking section and appreciate the fact that they have a choice, but would not respect a by-law that takes away that choice; therefore, if the proposed Smoking By- Law is passed, the House of Chan Restaurant is not financially equipped to comply to the renovations, and the loss of forty percent of its customers would result in loss of employment, not only by the House of Chan but would affect all jobs in the hospitality industry and the suppliers with whom they deal; and asked that the City not pass the By-Law as written. Heather Campbell, Manager of Callahan's Sports Bar on Prince William Street, spoke as a representative of a business which would be adversely affected by the implementation of the proposed Smoking By-Law currently being considered by Council based on her concern that, while such a By-Law would force businesses to endure the financial hardship of compliance, such businesses were never at any time asked to consult on the workability of the By-Law; and addressed her concerns relative to defining a public place, the exemption given to restaurants with less than forty seats in that she cannot understand why it would be assumed that a smaller-sized operation would not have a supposed smoke problem, the structural and ventilation requirements being forced upon businesses in order to be able to continue to operate in a similar fashion as they now do; as well as with regard to the drawbacks to the seating requirement in the proposed By-Law. Ms. Campbell questioned the proposal that the City's understaffed Police Department would be required to answer calls in their capacity as enforcers of the By-Law when there are much more serious matters to be attended to; expressed the opinion that the By-Law is not one of smoking versus non- 83-812 COMMON COUNCIL OCTOBER 27, 1992 smoking, but rather that the By-Law is intruding upon the rights of the business person to conduct business in the way he wishes; and requested Council to reconsider passing the proposed By-Law as it is written. During discussion, Ms. Campbell advised that the specific part of the proposed By-Law with which she has a problem is the intrusion in privately-owned businesses, and that 90 per cent of the time 90 per cent of her clientele are persons who smoke; suggested that, if owners of businesses do not want people to smoke, they can post a sign on the doors to that effect, or visa versa if smoking is permitted, thereby giving potential patrons a choice; and also advised that she would be out of business if smoking is prohibited in licensed established. The Mayor thanked the above persons for their presentations. On motion of Councillor Trites Seconded by Councillor Landers RESOLVED that this meeting be adjourned. Question being taken, the motion was carried. Common Clerk