June 21, 1999

To:Board of Health

From:Dr. Sheela Basrur, Medical Officer of Health

Subject:A Harmonized Environmental Tobacco Smoke (ETS) By-law for the City of Toronto-Review of Community Council Meetings and Update

Purpose:

This report responds to the motions and requests for information arising from public deputations at local Community Councils on options for a harmonized ETS by-law. It also provides final revised staff recommendations for an ETS by-law that is as health-protective as possible while taking a pragmatic approach. These revised recommendations will be the focus for city-wide public deputations to the Board of Health on June 28, 1999. The staff recommendations and input from deputants will be used by the Board to formulate its own recommendations to City Council, which will consider this issue on July 6, 7, and 8, 1999.

Financial Implications:

One-time funding will be required in each year of the multi-year education plan until the by-law is fully implemented. Funding would also be required for the promotion of smoke-free restaurants. In addition, provincial funding will be sought for an assessment of the economic impact of implementing the by-law. The estimated range of funding for the education plan is $250,000 to $400,000 per annum.

Additional resources will be required for enforcement in the early months after implementation of smoke-free provisions. This will be to compensate for the temporary internal reallocation of inspection staff combined with a one-time funding requirement for after-hours by-law enforcement. The amount required will reflect the extent of the public education that precedes the by-law implementation and the actual provisions of the by-law, i.e. the timing and degree of change experienced by proprietors and the public. The estimated range of these additional costs is $200,000 to $300,000. Full provincial funding will be sought for these initiatives.

Recommendations:

(A)Harmonization Provisions - the following recommendations pertain to the interval between enactment of a harmonized by-law and subsequent changeover to smoke-free:

(1)That the smoking by-laws of the former municipalities of Metropolitan Toronto be repealed when the harmonized ETS by-law comes into force;

(2)That the harmonized ETS by-law come into force three months after its enactment by City Council;

(3)That all workplaces in the City of Toronto be smoke-free, except in fully enclosed, designated smoking rooms (DSRs) that are separately ventilated to the outside, that make up no greater than 25% of the occupiable space, and into which no employee is required to enter;

(4)That all public places be smoke-free, except for restaurants, bars, bowling centres, billiard halls, bingo halls, casinos and racetracks which are permitted to have unenclosed smoking in 25% of occupiable public space.

(5)That restaurants, bars, bowling centres, billiard halls, bingo halls, casinos and racetracks that permit unenclosed smoking be required to post health warning signs at all entrances which clearly indicate that smoking is permitted.

(6)That employers / proprietors of workplaces and public places be required to post "no smoking" signs where smoking is prohibited;

(B) Smoke-free Provisions - the following recommendations apply to workplaces and public places that have not already become smoke-free under the harmonization provisions of the by-law:

(7)That restaurants, bars, bowling centres, billiard halls, bingo halls, casinos and racetracks become 100% smoke-free no later than April 30, 2001;

(8)That public places be permitted to have designated smoking rooms that are separately ventilated to the outside and are no greater than 25% of occupiable public space;

(9)That employers/proprietors of workplaces and public places that provide a designated smoking room be required to post health warning signs at the entrances to the designated smoking room which clearly indicate that smoking is permitted;

(C)Additional Recommendations- the following general recommendations apply to the ETS by-law:

(10)That an education campaign be initiated by Toronto Public Health, prior to enactment of the ETS by-law, that:

informs proprietors, employers and the general public of their responsibilities under the new by-law;

encourages compliance with the new by-law through community-based prevention and cessation activities;

markets the benefits and opportunities available under the new by-law;

has an ongoing, multi-year component.

(11)That the Medical Officer of Health continue to assist in the advertisement of smoke-free restaurants to the general public in collaboration with the Commissioner of Economic Development, Culture and Tourism, community-based organizations and the private sector, and thereby encourage the creation of additional smoke-free restaurants.

(12)That the Medical Officer of Health evaluate the effectiveness of the ETS by-law, including economic and other measures of impact, and report thereon to the Board of Health.

(13)That institutions such as hospitals and nursing homes continue to be covered by the provisions of the provincial Tobacco Control Act;

(14)That the Corporation of the City of Toronto develop a corporate policy to prohibit smoking in all municipal facilities, whether located in municipal or commercial buildings, except in such cases where this space is reserved for a private function such as a wedding, and that any such exemptions be time limited until April 30, 2001.

(15)That upcoming reviews of the City's licensing by-law and local zoning by-laws give consideration to the definitions and requirements of the harmonized ETS by-law as they pertain to restaurants and bars in order to achieve standard definitions.

(16)That City Council urge the provincial Minister of Health and the Premier of Ontario to:

review and strengthen the Tobacco Control Act to ensure greater protection from Environmental Tobacco Smoke across the Province and to further reduce access to tobacco products by young people.

implement immediately the recommendations of the Minister's Expert Panel to Renew the Ontario Tobacco Strategy, including adoption of provincial legislation that assures the attainment of smoke-free workplaces and public places across Ontario.

release previously announced funds for school-based tobacco prevention education and cessation as soon as possible.

(17)That City Council urge the federal Minister of Health and the Prime Minister of Canada to implement regulations pursuant to the federal Tobacco Act aimed at: preventing children from starting to smoke; improving health warning messages on tobacco packages; plain packaging of tobacco products; increasing tobacco taxes; and further restricting tobacco advertising.

Background and Comments:

As part of the community consultation plan, the Board of Health forwarded a policy options and recommendations paper to the six local Community Councils to be the subject of public deputations and for Community Councils to make recommendations back to the Board of Health. In an effort to ensure that members of the public and other stakeholders had sufficient opportunity to provide input, business operators and the public were informed about the scheduled deputation meetings through several means.

Notices were mailed to hospitality industry operators (such as restaurant, bar, billiard, bowling and bingo establishments) in the City of Toronto to inform them about the meetings and invite them to make deputations. There were also notices posted in the Toronto print media and on the City of Toronto Internet site. In addition, letters were mailed to people who had previously expressed interest in the by-law development process through contact with public health staff. The discussion paper was available for review at each of the local public health offices and on the Internet.

Discussions:

Summary of Deputations

There were one hundred and six people present at the six Community Council meetings to make deputations. Deputants included the operators of a variety of large and small hospitality establishments and representatives from related associations. Several health organisations were represented and there were a significant number of individual citizens that came out to speak on this important issue. Most of the Community Councils also received written comments from a variety of sources.

The opinions expressed by the deputants were similar in nature to public and stakeholder opinion received during the public consultation over the past year and in previous years when the by-law development process was before the Councils of the former Toronto municipalities.

Deputants in support of the by-law expressed their concern about the health effects of ETS and asked City Council to move quickly towards 100 percent smoke-free public places. Concerns included the protection of both workers and patrons, and in particular the need to protect children by setting an example. It is important to note however, that there has been a noticeable shift in the opinions presented by those opposed to further restrictions on smoking in public places; most of these deputants no longer dismiss the health effects of environmental tobacco smoke. Those in opposition do not object to restrictions on smoking; they simply believe that the proposed requirement for 100 percent smoke-free would have a negative economic impact on the hospitality industry.

There were also several deputants from the hospitality industry and from heating, ventilation and air-conditioning companies that proposed a ventilation alternative to 100 percent smoke-free. When questioned by Councillors, these deputants were unable to identify a product name or provide supporting documentation for the ventilation alternative. Towards the end of the Community Council process, the Ontario Restaurant Association (ORA) announced that a ventilation alternative would be demonstrated at a later date. The ORA's demonstration and a discussion on the appropriateness of including a ventilation option in the proposed ETS by-law are contained in a companion report on this agenda entitled, "Ventilation and ETS", June 21, 1999.

The deputations from those that supported increased in restrictions on smoking in workplaces and public places were very consistent. They were clearly in favour of a one hundred percent smoke-free by-law. While many thought such a by-law is long overdue for Toronto, some felt that an adjustment period may be necessary to ensure a smooth transition. There were also restaurateur deputants that supported increased smoking restrictions both for health reasons and to ensure a level playing field within the City of Toronto.

The opportunity for Community Council members to discuss the recommendations for a smoke-free by-law at the local level and then forward their own recommendations to City Council was also an important part of the by-law development process. This step also gave the City Councillors an opportunity to propose questions to staff prior to debate at the Board of Health and City Council and to assess public opinion in their local community. A table summarising the Community Council recommendations and questions to staff can be found in Appendix 1. Also contained in that summary is an overview of staff recommendations pertaining to each issue.

The remainder of this report contains more detailed analysis and discussion of those issues in the order that they appear in Appendix 1.

(1) Restaurants and Bars

A central point of discussion about smoking control by-laws, often involves comparing restaurants to bars and whether these establishments should be treated differently with respect to smoking restrictions.

Leading up to the Community Council meetings, public opinion indicated that a smoking control by-law should separately define restaurants and bars. Community members, including some who support smoking restrictions, have a perception that smoking is more of a fixture in bars and night clubs but should not be permitted in fine dining establishments or family restaurants. However commitment to those beliefs wavers when the discussion turns to establishments in which patronage may vary with the time of the day or the day of the week (e.g., premises which function as "restaurants" by day and "bars" by night).

Even though there is a perceived difference between restaurants and bars, many of the deputants and Councillors expressed concern about treating these establishments differently in the by-law or delaying the smoke-free requirement for bars. This reflects concerns about the potential economic advantage or disadvantage that could result from a lack of a clear-cut definition of restaurants versus bars. This concern was clearly illustrated by a restaurateur at one of the Community Council meetings. As part of his deputation, he described how a lunch time sandwich sale could be lost to a neighbouring establishment which happens to derive most of its income from evening alcohol sales, simply because that regular customer may choose to have a cigarette with his lunch.

Staff have reviewed local zoning and licensing by-laws and Provincial legislation in search of clear definitions that separate bars from restaurants. None of this legislation clearly distinguishes restaurants and bars. Without the benefit of clear definitions, municipalities throughout Ontario have struggled to come up with workable alternatives to the parameters that exist in some other provinces. If Council chooses to distinguish restaurants and bars, it is suggested that the best method would be to define bars as establishments with liquor licences that prohibit admission to persons under 19 years of age at all times. This method is being used in a draft by-law by health department staff in Peel Region. The draft by-law was recently approved in the Town of Caledon and the City of Brampton. A City of Mississauga sub-committee voted in favour of the same draft by-law on June 16, 1999 and it will go before Mississauga Council on June 23, 1999.

An alternative approach could follow the example set by the insurance industry that defines bars by the revenue derived from alcohol sales as a percentage of total sales, with 80% alcohol sales being the norm in that industry. This option is problematic, as it may be difficult for City staff to accurately determine the percentage of alcohol sales.

It was also recommended at one of the Community Council meetings that restaurants under 40 seats be exempt from the smoking by-law and, similarly, that Toronto adapt the New York City smoking by-law for use in the City of Toronto. The New York City Smoke-free Air Act prohibits smoking in all restaurants except those with fewer than 35 seats and any separate

stand-up bar areas of restaurants with more than 35 seats, provided that there are at least six feet separating the bar area from table seating. This Act became law in 1995. At the time of its passage, New York had minimal smoking restrictions and this step was considered a progressive step to 100 percent smoke-free. Since the early 'nineties however, there have been considerable advances in the knowledge of the harmful effects of ETS and of strategies to reduce exposure to ETS.

In the City of Toronto, more than 40 percent of the over six thousand restaurants with seating, have fewer than 40 seats (1998 data). If Council were to adopt similar requirements for Toronto, it would be regressive and result in a significant rollback in protection against ETS exposure for workers and the public. It would also be difficult to determine the bar areas of restaurants as many Toronto restaurants also have seating near the bar and the separation from the dining area is not always well defined.

Another Community Council recommendation would require that all new restaurants, bars, bowling centres, billiard halls, bingo halls, casinos, and racetracks that open after passage of the by-law be smoke-free. All such establishments that existed prior to passage of the by-law would be permitted to have unenclosed smoking in 25% of the establishment until May 3, 2004. The desired intent would be to gradually increase the number of smoke-free public places as new establishments open or as these types of businesses change ownership. Such an option would address the concerns that current hospitality business operators may have about possible economic loss, giving them added time to adjust. At the same time, new operators would be aware of the by-law requirements as they consider entering this business sector. A requirement that was similar to this, was part of the ETS by-law for the former Borough of East York. However, businesses that changed ownership were not required to be smoke-free. Only when a business was closed for a period greater than two months did the requirement for smoke-free take effect. The result was that over a three-year period, less than ten percent of these businesses were actually smoke-free, thereby leaving the vast majority of establishments without protection for their workers or patrons. If the smoke-free requirement were to be initiated upon change of ownership, by-law enforcement staff would have to ensure that ownership changes could be monitored and verified.

Throughout all of the discussions, the health argument remains consistent. Exposure to ETS clearly presents a health risk, whether the exposure takes place in a workplace or a public place. The concentration of ETS and duration of exposure is usually much higher in establishments that focus primarily on serving alcoholic beverages. The concentration of ETS would also be greater in smaller establishments. Some estimates indicate that non-smoking employees in bars, where exposures to ETS can be six-fold higher than in homes where there is at least one smoker, may have up to a 50 percent greater chance of contracting lung cancer as compared to the general population. The immediate health benefits of going smoke-free have also been demonstrated. A recent study showed that bartenders who work in establishments that became smoke-free saw their lung functions improve significantly. From a pure health point of view, bars and restaurants, regardless of how they are defined, should be smoke-free.

(2)Bowling Centres, Billiard and Bingo Halls

These establishments present a separate set of issues mostly surrounding exposure of young people to ETS. Billiard halls are traditionally considered adult establishments but are often part of mixed-use restaurant/bar establishments. Bowling centres and bingo halls are more difficult to address when determining ETS control measures. Bowling centres are often filled with children although some say that their facilities are frequented only by adults during evening league play and, as twenty-four hour operations, through the night.

(3)Workplaces

It is important to understand how the ETS by-laws are applied to public places and workplaces and how these types of premises are differentiated. The first efforts to control exposure to ETS began in workplaces. Recognizing that workplaces exist in various forms, the first by-laws prohibited smoking in workplaces that were frequented by employees only. This step was the first phase in the gradual increase in protection from ETS. As we learned more about the health risks of ETS and as the public became more accepting of increased smoking controls, policies restricting smoking were developed at various levels of government. Service establishments such as banks, learning institutions and government offices soon became smoke-free and this paved the way for many smoke-free entertainment facilities.

(4)Designated Smoking Rooms

Public Health initiatives combined with public expectation for smoke-free indoor air, resulted in more and more smoke-free buildings. Currently, in the City of Toronto enclosed smoking is only permitted in selected public places, specifically hospitality establishments. Even though these types of establishments are workplaces and the employees deserve the same level of protection from ETS, they have been primarily considered public places as opposed to workplaces since they cater to the general public. However, these public places must also be viewed in a different light with respect to designated smoking rooms in consideration of employee exposure to ETS when serving within these rooms.

Currently, most of the ETS by-laws across the city permit designated smoking rooms (DSRs) in workplaces although only a very small percentage of workplaces have installed them. The option to allow DSRs within the workplace is reasonable because non-smoking employees are protected if they are not required to enter these rooms as part of their work duties. The issue is not as simple in public places where employees are expected to enter the DSRs in the course of their work. Only in the former City of Toronto were DSRs permitted in public places, as a means of easing the impact of the by-law on smoking patrons, although fewer than 20 restaurants have had them installed. The requirement for full enclosure and adequate separate ventilation is essential for health protection but can result in significant installation costs. Therefore, DSRs are recommended in workplaces and public places as a reasonable alternative to a complete prohibition on smoking.

The Ontario Tobacco Control Act (TCA) currently permits DSRs in certain public places. The Act is very specific in it's requirements for DSR's and only allows then in such places as homes for the aged and hospitals where extended stays would cause significant duress to smokers that are unable to leave the premises. It is not the intention of Toronto Public Health to be any more restrictive in these locations and there is no need to duplicate the TCA in the Toronto by-law.

In public places such as restaurants, municipalities can choose to allow DSR's or be more stringent and health protective. If restaurants were to become smoke-free and allow the construction of DSRs there would be an expectation that the DSRs would be permitted indefinitely.

(5)Ventilation

Please refer to a companion report on this agenda entitled, "Ventilation and ETS", dated June 21, 1999.

(6)Public Education

Public education is an essential part of an ETS by-law. An effective communication campaign supports the implementation and enforcement of the by-law and helps everyone understand the serious health issue behind the by-law development. It is also important that the campaign be linked to other activities involving tobacco cessation and prevention.

A summary and discussion of the ETS by-law communication and implementation plan can be found in the April 6, 1999 public discussion paper entitled A Harmonized Environmental Tobacco Smoke (ETS) By-law for the City of Toronto -Policy Options and Recommendations.

One-time funding will be required in each year of the multi-year education plan until the by-law is fully implemented and for the assessment of economic impact for which provincial funding will be sought. Additional funding would be required for the promotion of smoke-free restaurants. The estimated range of funding is $250,000 to $400,000 per annum.

(7)Economic Impact of Smoke-Free By-laws

Discussions with representatives of the restaurant industry showed that restaurant operators fear a smoking ban in restaurants will have a negative impact on business. In public policy debates, informal surveys of restaurateur opinion have often been presented as "evidence" of this negative impact. It is not surprising that some operators feel this way considering the information that is provided to them from hospitality associations and through the media. It is also possible that the opinion of the operator, if based on observations within their own businesses, may be influenced by the skewed perception of the prevalence of smoking within their potential customer base. If the presence of ETS is discouraging patronage by non-smokers, then it is more likely that operators would regularly see a greater percentage of smokers.

Many operators have also said that their customers that smoke will not come back if they are not permitted to smoke. If we look at the effect that smoking restrictions had on other types of public places such as movie theatres or other entertainment facilities we see that this isn't the case. The primary attraction for customers would remain. It is more likely that smokers will continue to visit bars and restaurants and wait until they leave or step outside for a moment, as they would in other entertainment facilities.

It is important to note that the fear of negative economic impact is not shared by all restaurant and bar operators. More than 700 restaurants in Toronto have already chosen to voluntarily prohibit smoking. This would indicate public demand for smoke-free environments and suggests economic viability for such establishments.

A review of studies that have used a systematic, econometric analysis of restaurant sales based on sales revenues consistently shows no evidence of negative effects from smoke-free by-laws. This is true whether or not the restaurant serves alcohol. A 1994 study that analysed sales tax data for the first 15 cities in the U.S. to enact smoke-free ordinances affecting restaurants, showed there is no significant effect on business when comparing restaurant sales data in cities with smoke-free restaurant ordinances with those in similar cities without ordinances (Glantz et al., 1994 & 1997). In addition, longitudinal analysis showed no significant change in business following the introduction of smoking prohibitions. This study was expanded in 1997, and confirmed the earlier study's results. A more recent analysis conducted in Flagstaff, Arizona also demonstrated that prohibiting smoking in restaurants did not affect sales (Sciacca et al., 1998).

This lack of economic impact was also documented in two communities where earlier surveys claiming significant loss of business based on less objective measures had been used to persuade municipal legislators to overturn restaurant smoking by-laws. The 15 municipalities included in this study varied widely, and included several that were part of larger contiguous urban areas. No loss of business to adjacent municipalities with less restrictive smoking legislation was documented. The only other published study using objective revenue data examined 19 U.S. cities with restaurant smoking restrictions and 87 neighbouring communities without restrictions. It showed no consistent economic impact of smoking restrictions regardless of the extent of restrictions. (Maroney et al, 1994)

A report by the California State Board of Equalization compared taxable sales for 6,211 bars and bar/restaurants for the first quarters of 1997 and 1998, following the introduction of smoke-free bars Jan. 1, 1998. It found a 12% increase in taxable sales. As well, public opinion polls show that support for smoke-free bars is increasing. A 1998 statewide poll found that 85% of bar patrons go to bars as much or more than they did prior to the legislation coming into effect.

The scientific evidence of the economic impact of a restaurant smoking ban should be reassuring to concerned restaurateurs. It is consistent with data from the 1996 Angus Reid survey for Toronto, which suggests that smoke-free restaurants will be more attractive to consumers overall.

A recent study by the Ontario Tobacco Research Unit found no evidence that increased restrictions in the former city of Toronto, from 50% to 90% (the majority were 75%) designated non-smoking space, had any negative impact on taxable sales (Lothian et al, 1999).

Concerns were also raised at a Community Council meeting about the potential impact of smoke-free by-laws on small sized restaurants. A study was recently completed by researchers at the University of California School of Medicine using data from the California State Board of Equalization. The study has not yet been submitted for publication. However, a telephone conversation with one of the researchers indicated that the data shows that smoke-free legislation does not have a negative economic impact on sales revenues for small bars and restaurants. The study looked at changes in sales tax revenues for 6,211 small bars and restaurants in the State of California between the first quarter of 1997 and the first quarter of 1998. The State wide smoke-free legislation went into effect on January 1, 1998.

The effectiveness of the by-law, including economic and other measures of impact, will be monitored by the Medical Officer of Health in consultation with interested parties and reported to Council through the Board of Health following one-year of implementation. A funding application to the provincial and/or federal governments will also be sought to assist with the evaluation process.

(8)Corporate Policy

At the current time there are inconsistencies with regard to workplace corporate smoking policies across the amalgamated City. City workplace policies are consistent with the current smoking by-laws for the respective former municipality. That is, smoking is prohibited in the areas of municipal facilities considered workplaces. There are inconsistencies in areas such as workplace cafeterias and underground garages. The City should set a positive example and adopt the most restrictive policy possible to protect all City employees and the public visiting City facilities by prohibiting smoking in all municipal facilities whether located in municipal or commercial buildings. In cases where space is rented or leased for a private function such as a wedding, the City could permit smoking for the time-limited period of that function. Should the City choose to allow this exception, it should be time limited until April 30, 2001.

(9)Licensing

A Community Council also recommended that licensing requirements be changed to increase tobacco retail license fees to $10,000 and prohibit the sale of tobacco where products likely to attract young people, such as candy or potato chips, are sold. These recommendations will be put forward as part of the review of the Ontario Tobacco Control Act as these recommendations relate primarily to the sale and consumption of tobacco products. Three of the community Councils also supported a need to review licensing and zoning by-laws after enactment of a ETS by-law to eliminate conflicting or confusing definitions. A report from the Commissioner of Urban Development will address these and other issues relating to zoning and licensing by-laws.

(10)Other Issues

(a)Public Places Covered by Other Legislation

In Ontario, the Tobacco Control Act, 1994 (TCA) regulates smoking in some public places as well as the sale of tobacco to minors. The TCA also gives municipalities the authority to pass more restrictive no-smoking legislation. The TCA also states that where a more restrictive law exists, that law will prevail. The public places that will be covered under the TCA for Toronto are outlined in the following table.

(b)Other Cities

The six former municipalities of Toronto have been working on initiatives to eliminate exposure to ETS for decades now. Some of the measures taken earlier have provided motivation for many other municipalities that have embarked on similar initiatives following our successes. During this last decade, there has been significant progress made by hundreds of municipalities across North America with regard to eliminating or reducing exposure to ETS within the hospitality industry.

It is important to note that Toronto is no longer the leader in creating responsible, health protective ETS by-laws, that we once were. There has been great momentum created across North America over the last few years and we are well behind. Municipalities such as Vancouver, and the Capital Region District in British Columbia have implemented smoke-free legislation with great success. Just recently, the municipalities of Peel passed by-laws that will prohibit smoking in restaurants June 1, 2001 and in bars June 1, 2004. Several other municipalities such as Guelph, Peterborough, Waterloo, and Hamilton-Wentworth have passed by-laws making all public places smoke-free by the year 2000.-

Although the media and some deputations at Community Council meetings indicated that many existing smoke-free by-laws across North America are not working well and that changes to alter or weaken these by-laws are being considered, all evidence leads us to believe that this information is not accurate. It is expected that the implementation of any smoke-free by-law will take some time to achieve a high level of compliance. For example, in the former City of Toronto, it took several years of public education and enforcement of our smoke-free workplace by-law (which applied to over 40,000 workplaces) to achieve the high level of compliance we have today. Please see Appendices 2, 3 and 4 from Vancouver, Capital Health Region (British Columbia) and California, and for their individual comments.

Only 17 out of 859 smoking control by-laws across the US have been repealed and only 4 out of several hundred across Canada (including former Toronto and North York).

(c)Repealed By-laws in the former Cities of Toronto and North York

On January 1,1997, a by-law was enacted in North York requiring all public eating establishments to be smoke-free until 9 p.m. each day. On March 3, 1997 all public places in the former City of Toronto, including restaurants and bars became totally smoke free. Both of these by-laws were repealed shortly after implementation.

In order to successfully implement any by-law it is necessary to establish a major public education campaign directed to all persons affected by the by-law. Everyone must be made aware of the new requirements and that there will be strict enforcement of the bylaw by public health staff following the education phase. The short lead in period before enactment of the Toronto and North York by-laws and limited funds seriously inhibited the education campaign that was necessary to support the implementation of the bylaw.

Both of the by-laws were implemented in cold weather months whereas enactment in May or June would have had smokers more willing to step outside or sit in an outdoor patio in warmer weather to smoke.

Proprietors had limited responsibilities under the by-law. They realized that they were only responsible for notifying people that they weren't allowed to smoke but there was no requirement to remove ashtrays. This resulted in a mixed message to operators and customers. As a result when smoking patrons realized that proprietors weren't required to do more than notify they began to feel that they could light up with impunity. Enforcement staff found a compliance rate during daytime business hours of up to 80%. However, this rate dropped to 50% during the evening and weekend hours when there was a public perception that enforcement staff would not be on duty.

Public disobedience was also a significant barrier as some media and a minority of vocal bar and restaurant owners encouraged non-compliance. This resulted in smoking throughout some establishments making the situation worse than when there were non-smoking and smoking sections.

The absence at that time of a level playing field was also a major issue for Toronto and North York. Proprietors who initially supported the by-law expressed concern about an unfair playing field when they lost customers to restaurants in neighbouring jurisdictions, a risk that will be greatly reduced in the current environment due both to amalgamation within Toronto and the passage of smoke-free by-laws in Mississauga, Brampton and Vaughan.

Finally, it should be noted that most jurisdictions have experienced a couple of months of turbulence when smoke-free by-laws first take effect. Had the by-laws remained in place and more implementation resources been made available, far greater and more lasting levels of compliance would have been achieved.

(d)Private Clubs

The City's authority to create smoking legislation in workplaces and public places does not extend to private clubs. However, the Provincial Smoking in the Workplace Act, 1990 would have authority in this domain. Therefore, under that legislation private clubs could have up to 25% unenclosed smoking.

(e)Enforcement

As with many municipal by-laws, ETS by-laws are largely self-regulating through increased voluntary compliance by owners/operators, employers, staff, and public over an introductory period.

It is essential that Public Health first educate and raise awareness of all parties including the public, employers, owners, operators and employees. It is essential that prior to and during implementation everyone understand the reason for the by-law, their responsibilities under it, what the penalties are and whom the public can call with complaints or inquiries.

Public Health staff will be responsible for enforcing the ETS by-law, primarily through monitoring and education during routine visits to premises they regularly inspect and in response to complaints. A great deal of the work that enforcement staff do is education so that people understand the reasons for the bylaw and have an opportunity to comply with it voluntarily before measures such as ticketing or court action are initiated.

To make a new ETS by-law as understandable and as easily enforceable as possible, it must apply equally across the city and have clearly defined requirements and responsibilities.

The hospitality industry feels strongly that the public must receive clear information about where they can and cannot smoke. In general, the greater and more restrictive the change, the greater the need for education and enforcement. As with other by-laws to protect health, the owner/operator should be responsible for complying with the by-law. Removing ashtrays from non-smoking areas, posting No Smoking and Health Warning signs to ensure patrons are aware of the by-law and the health risks of ETS and providing conforming seating space or having smoke-free establishment where applicable, are all reasonable responsibilities for the proprietor. Penalties for non-compliance range from $205 for a ticket to a maximum $5,000 for a prosecution and conviction in Court.

To ensure that owners of establishments receive information and that owners and patrons are complying with the bylaw, each establishment will be visited during the three month education phase. An on-going program monitoring will be undertaken to measure the effectiveness of the implementation and enforcement by routinely collecting inspection records to determine compliance rates and the number of public complaints and enquiries.

It is expected that there will be some complaints when the by-law is harmonized and an increasing number again when premises are required to go totally smoke free. Consideration is being given to having staff work evenings and weekends to address complaints that occur during these time periods and for monitoring purposes. To that end, additional resources will be required for enforcement in the early months after implementation of smoke-free provisions, which will reflect temporary internal reallocation of inspection staff combined with a one-time funding requirement for after-hours by-law enforcement. The amount required will reflect the extent of the public education that precedes by-law implementation and the actual provisions of the by-law, i.e. the timing and degree of change experienced by proprietors and the public. The estimated range of these additional costs is $200,00 to $400,000.

(f)Role of Provincial and Federal Governments

The roles of the various levels of government with regard to tobacco issues are clearly defined. Local governments have the authority under the Municipal Act to pass legislation regarding smoking in public places. The Province also has authority to pass legislation regarding smoking in public places. However, the Provincial Tobacco Control Act (TCA) indicated that where a municipal by-law is more restrictive, that law would prevail. The TCA also deals with sale of tobacco to minors. However, the TCA was enacted in 1994 at which time it was considered progressive. Recently an Expert Panel on Renewal of the Ontario tobacco Strategy produced a report to the Ontario Minister of Health (upon request), entitled "Actions Speak Louder Than Words". This report recommends that the TCA be reviewed. The report also recommends that the Provincial government take action in nine areas: tobacco prices, public education, marketing including packaging, labelling information disclosure, and retail controls, smoke-free spaces, supports for smoking cessation, finance and infrastructure, research, monitoring and evaluation and cost recovery litigation.

The Federal Government has jurisdiction over the federal Tobacco Act, which came into effect on April 25, 1997. The Act deals with tobacco product advertisement and sponsorship; sales to minors; health warnings and other tobacco packaging labels; and regulates the display of cigarette products at the retail level. The Act also establishes powers for the government to control the way cigarettes are manufactured, and the maximum allowable levels of nicotine, tar and other toxic substances. The federal government also has jurisdiction over tobacco taxation.

(g)Woodbine Racetrack

The impact of the proposed harmonized smoking by-law on the addition of slot machines to the Woodbine Racetrack was discussed at Etobicoke Community Council.

The Woodbine Racetrack is currently regulated as a place of public assembly such as bingo halls and casinos. As such, a maximum of 25% of the area can be designated for smoking without enclosure. The proposed harmonized smoking bylaw and the addition of the slot machines will not affect the smoking and non-smoking ratio allowed.

The proposed harmonized smoking by-law initially will allow the same 25% of the occupiable space for smoking. During a meeting with the racetrack representatives, it was suggested that a 50% designated smoking room would be required to give more flexibility especially for the slot machine areas. These would not be in a separate area but rather part of the existing spectator/betting area at level two of the racetrack. With a higher designated smoking room percentage, it would be easier for the racetrack to accommodate players as there would be more smokers in casinos. (The same theory would apply for bingo halls).

The Club House for members would remain as a private club (see discussion of private clubs). The racetrack stated that requirements to become a member haven't been changed. Membership was limited and the clubhouse was not open to the public.

Conclusions:

The majority of employees in the City of Toronto are protected from ETS at work. The continued exposure to tobacco smoke of workers and the visiting public in restaurants, bars and entertainment facilities is an unacceptable health risk given the current knowledge of the effects of ETS. The Board of Health must address the significant risk to public health in these establishments. A new ETS by-law is therefore required for the city as well as the development and implementation of a communications strategy to make the transition toward the goal of smoke-free public places. For this to become a reality it is essential that City Council implement the recommendations contained in this report.

Contact Name:

Liz JanzenDr. Monir Taha

Regional Director, South RegionAssociate Medical Officer of Health,

Public Health Director of Healthy Environments

Tel: 392-7485Tel: 392-1356

Fax: 392-0713Fax: 392-0713

Dr. Sheela V. Basrur

Medical Officer of Health

Appendix 1

Summary of Community Council Resolutions and Requests for Information

References:

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