The D.C. City Council today passed a measure which provides an economic incentive for bars and restaurants in the nation's capital to enter the tobacco business.
If I understand the law correctly, bars and restaurants that enter the tobacco business and are able to generate at least 10% of their total revenues through cigarette sales will be rewarded by being allowed to permit smoking in their establishments, and therefore to retain their smoking customers and a substantial economic base.
Establishments which fail to enter the tobacco business, or which fail in their efforts to promote tobacco enough so that 10% of their revenue comes from tobacco sales will be punished by being forced to prohibit smoking in their facilities, therefore risking the loss of smoking customers to bars and restaurants which are successful in entering the tobacco business.
In addition, the law encourages new tobacco-food businesses by allowing entrepreneurs to compete for smoking patrons by opening new bars and restaurants whose business plans are carefully titrated to include at least 10% revenue from tobacco products. It may actually be easier for new bars and restaurants to meet this requirement since they can be designed specifically with this in mind, and will be better able to compete for the Capital Area's smoking clientele.
The Rest of the Story
I have to say that on this one, I believe Carole Schwartz is the only one who seems to have any consistency or integrity in their position. She simply feels that a smoking ban is an unjustified intrusion on business owners, and she voted where her mouth is. Her vote is consistent with her position and she was not trying to pull the wool over anyone's eyes with that vote.
However, I have no idea what the other 11 Council members, who voted for this measure, were thinking.
There is certainly no public health reasoning behind the law. If secondhand smoke is a health hazard for bar and restaurant workers, then it is certainly no less of a hazard for those who work in establishments that derive 10% of their revenues from tobacco than those which do not.
Frankly, there is no rationale at all, public health or otherwise, that I can think of for a law intended to protect restaurant and bar workers from secondhand smoke that exempts establishments that sell tobacco products to any significant extent.
And there is a term we use to describe a law that has no rational basis behind it: unconstitutional.
As liberal as the courts are with allowing broad discretion of legislators to legislate, there needs to be at least some rational basis for the application of a public health law in a particular way. Unless I'm missing something, I don't see any rational basis here.
Now I can see the rationale behind an exemption for establishments that derive the overwhelming and predominant proportion of their sales from tobacco products - in other words, true cigar bars. These facilities can be viewed as being smoking establishments. In other words, they exist and function only insofar as a tobacco product is smoked in them. I can see a rational basis for not applying a smoking ban to such establishments.
Usually, these facilities are defined as deriving 90% or more of their income from tobacco sales. But to set the application of this public health law at 10% income from tobacco sales is ludicrous. It makes no sense.
This is why I say that the 11 Council members who voted for the law had no consistency in their position on this issue. Look - make up your mind one way or the other. If you think that secondhand smoke is a severe health hazard for restaurant and bar workers, then get rid of it. If not, then leave these poor businesses alone!
Creating a crazy system of food and drink business in a city where the rules that govern the public health protection in those businesses are directly tied to whether or not those businesses sell tobacco products to any small, but significant, extent, is a completely unwarranted intrusion on the free market system.
Had I been on the D.C. City Council, I would have joined Councilmember Schwartz and been the 2nd dissenting vote on this measure. Then I would have offered to buy her a beer for at least having the integrity to take a position, a consistent one, and stick with it.
Interestingly, the original Washington Post article about the passage of the smoking ban did not seem to mention the exemption for establishments that derive 10% of their revenues from tobacco sales, although the more complete version of the article that is online now does. This is a case where I think "the rest of the story" is actually far more important than the original story as reported.
And the rest of the story suggests that with one exception (and perhaps a 2nd - one councilmember was wise enough to be absent from this attempt at responsible policy making disguised as a circus), the D.C. City Council today failed to display the fortitude, courage, and integrity that one would like to see from public policy makers, regardless of which side of this issue one is on.