Section 20-2106. ECONOMIC HARDSHIP WAIVER

 

2106.1The Director may, after May 1, 2007, grant a place of employment or a public place an economic hardship waiver from the requirements of this chapter provided that:

 

(a)The place of employment or public place was in existence on or before January 1, 2007;

 

(b)The place of employment or public place has not been found liable for two (2) or more notices of violation for violations of the Acts or this chapter during the previous one (1) year;

 

(c)The place of employment or public place demonstrates undue financial hardship by one of the following:

 

(1)By showing a reduction in sales tax for food and beverages of fifteen percent (15%) or more for three (3) consecutive months after January 1, 2007, as compared to the same three (3) month period during the previous two (2) years before January 1, 2007;

 

(2)If the place of employment or public place has not operated for a period of two (2) years before January 1, 2007, by showing a reduction in sales tax for food and beverages of fifteen percent (15 %) or more for a period of three (3) consecutive months during which the place of employment or public place has operated smoke-free, as compared to the three (3) month period immediately preceding January 1, 2007; and

 

(d)The place of employment or public place demonstrates one or more of the following:

 

(1)Sales revenues that fail to reach reasonably expected or anticipated levels for three (3) consecutive months after January 1, 2007 as compared to the same three (3) month period during the previous two (2) years before January 1, 2007;

 

(2)Significantly reduced staffing levels for three (3) consecutive months after January 1, 2007, as compared to the same three (3) month period during the previous two (2) years before January 1, 2007;

 

(3)Significantly reduced food and materials purchases for three (3) consecutive months after January 1, 2007, as compared to the same three (3) month period during the previous two (2) years before January 1, 2007; or

 

(4)Significantly reduced alcohol sales for three (3) consecutive months after January 1, 2007, as compared to the same three (3) month period during the previous two (2) years before January 1, 2007.

 

2106.2To receive an economic hardship waiver a place of employment or a public place shall submit an economic hardship waiver application to the Director. In not more than ten (10) business days the Director shall return an incomplete application and inform the applicant of the information necessary to complete the application.

 

2106.3The Director shall make a final determination regarding the application, in writing, not later than sixty (60) days after receiving an application. The decision shall state the reasons for granting or denying the application.

 

2106.4An application for an economic hardship waiver shall include the following information:

 

(a)The specific provision from which a place of employment or public place is seeking a waiver;

 

(b)A description of the efforts the place of employment or public place has made to operate profitably while smoke-free;

 

(c)Exact copies of District sales tax statements for each three (3) month period used to demonstrate a reduction in sales tax receipts;

 

(d)Evidence that demonstrates that the place of employment or public place incurred a reduction in revenue because of eliminating smoking instead of other factors including evidence that the place of employment or public place:

 

(1)Operated during the same number of hours;

 

(2)Was open the same number of days;

 

(3)Was open on the same high business days;

 

(4)Sold food and beverages from a menu similar in selection and cost;

 

(5)Maintained the same management and staffing strategy;

 

(6)Did not fail to respond to new competitors who entered the market; and

 

(7)Maintained a similar or enhanced marketing strategy; and

 

(e)A description of the actions the place of employment or public place plans to take to minimize the effects of smoking on non-smoking patrons or visitors as a result of a waiver.

 

2106.5If the Director grants a waiver under this section the Director shall require that the area where smoking is permitted shall not exceed twenty-five percent (25 %) of the total area if the place of employment or public place is a restaurant. The Director may require additional conditions or restrictions that may be necessary to minimize the adverse effects of smoking consistent with the general purpose of D.C. Official Code § 7-741 et seq. including the following:

 

(a)Prohibiting smoking near restrooms or commonly used pathways and entrances;

 

(b)Requiring physical barriers or ventilation systems, or both, between smoking and non-smoking areas;

 

(c)Requiring additional or differently sized signs to designate smoking and non-smoking areas; and

 

(d)Taking additional measures to minimize employee exposure to secondhand smoke.

 

2106.6The Director may grant a waiver for a period not to exceed three (3) years. The waiver shall be:

 

(a)For a specific location and not transferable;

 

(b)For a specific applicant and not transferable to a new owner; and

 

(c)Nonrenewable.

 

2106.7Each tobacco bar and retail store that holds an economic hardship waiver shall provide to the Director every twelve (12) months from the date of the waiver documentation that it continues to satisfy the minimum revenue requirements to maintain the waiver. The Director may revoke the waiver if the tobacco bar or retail store fails to provide documentation to show that it continues to satisfy the revenue requirements for the waiver.

 

2106.8The Director shall conduct periodic inspections to ensure that the holder of a waiver complies with the requirements of this section or any conditions or restrictions contained in the waiver.

 

2106.9The Director may suspend or revoke a waiver upon finding that the holder of a waiver has violated a condition or restriction or has failed to comply with the requirements of this chapter or the Acts that have not been waived.

 

2106.10The Director may also grant an event-specific waiver based on economic hardship to a hotel, motel, or convention hall for an event that was scheduled before April 4, 2006. To qualify for an event-specific waiver a hotel, motel, or convention hall shall provide proof to the Director that it entered into a contract or other binding agreement on or before April 4, 2006, for an event scheduled to take place after January 1, 2007. An event shall not be eligible for an event-specific waiver unless it takes place in enclosed area that is separate from other areas accessible to the general public. The Director shall require additional conditions or restrictions that may be necessary to minimize the adverse effects of smoking.

 

source

As amended by Final Rulemaking published at 54 DCR 10623 (November 2, 2007).