Item A - Non-Smoking Ordinance - Laserfiche WebLink

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The revised ordinance language is included as Attachment A. In addition, staff provides information below in an attempt to answer questions raised by the council at the January 24 public hearing. CouM Eugene require a 25-foot no-smoking buffer for all pubhcly owned buildings? The council could legislate 25 feet for all publicly owned buildings, but it probably cannot compel all other governments to comply with the restrictions on their property. In particular, imposing restrictions on buildings owned by State and Federal agencies poses a challenge. Feedback from several local agencies is summarized in Attachment B. Does Eugene's standard for outdoor smoking areas, first adopted by administrative rule in 2001, comply with State law? In the January 24 public hearing, Dr. Grant Higginson of the Oregon Health Division testified that Eugene's standard for outdoor smoking areas violates State law. The City Attorney believes Eugene's standard is lawful, based on language in the statute and local code. City staff is not wedded to the 25/75 standard or to its application broadly across uses, but does recommend that Eugene's standard be understandable, enforceable and transparent. The council may wish to determine: 1) whether outdoor smoking areas should remain permissible; and, if so, 2) whether Eugene' s standard should be modified regarding which establishments may provide outdoor smoking areas and what measures must be in place to provide a safe environment for employees and patrons. Both the Oregon Indoor Clean Air Act and Eugene Code prohibit smoking in "public places" and "places of employment." Both of those terms are defined as an "enclosed area" that is used in certain ways. The state statute, ORS 433.835(1) defines "enclosed area" as "all space between a floor and a ceiling that is closed on all sides by solid walls or windows, exclusive of doors or passageways, that extend from thefloor to the ceiling, including all space therein screened by partitions that do not extend to the ceiling" (italics added). The definition of "enclosed area" in Eugene Code Section 6.225 is nearly identical. If the space is not an enclosed area -- i.e., if it does not have walls that run from the floor to the ceiling on all sides -- it does not appear to fall within the definition of a "public place" or "place of employment" where smoking is banned. Eugene's standard provides for outdoor smoking areas with a minimum openness in wall planes of 25 percent. The City's ordinances and administrative rules have not specified that outdoor smoking areas were to be limited to adults-only bars, taverns, cocktail lounges and bingo parlors - the establishments exempt from key provisions in the Oregon Indoor Clean Air Act adopted by the Oregon Legislature in 2001. City staff is aware of one outdoor smoking area, as defined by Eugene regulations, at an establishment other than those serving food and alcohol. Since October 25, 2000 (effective date of original City ordinance), the City has issued nearly 3,000 permits for commercial construction, including more than 2,000 for additions and alterations. About 40 identified outdoor smoking areas have been established with building permits during that time. It is possible that other formal and informal smoking areas have been established outside buildings without City oversight because no permit was required - in other words, the structural work involved, if any, did not trigger the requirement for a building permit. It is also possible that other outdoor smoking areas were installed at establishments as a building alteration before adoption of the ordinance in late 2000. On January 31, 2005, Lane County Public Health staff provided the City with a list of 10 establishments with outdoor smoking areas alleged to be in violation of City standards. Investigation and enforcement are underway. L:\CMO\2005 Council Agendas\M050223\S050223A. doc