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CouM the City repeal the existing administrative rule and better define outdoor smoking areas? If the administrative rule is repealed without another standard in place, the City Attorney believes the effect would be to allow smoking in any space that is not fully enclosed by solid walls (allowing for doors), because the ban on smoking applies only to "enclosed areas." Staff proposes retaining the administrative rule until the City Council can consider additional options for outdoor smoking areas and adopt an appropriate standard as part of the code. What is meant by proposing that a legitimate outdoor space for smoking be separated from other interior spaces from floor to ceiling? The existing standard and the one that had been proposed require that an outdoor smoking area be separated by a full wall, excluding the door, from the interior of the establishment. Does the Oregon Liquor Control Commission restrict outdoor smoking areas? Are employees in bars and taverns required to serve patrons? The OLCC does not get involved with tobacco smoking in licensed premises. As noted during City Council discussions on the original ordinance, smoking-only areas can be created at bars and taverns. But, according to the OLCC, separate areas cannot be established for consumption of alcohol without providing for entry and monitoring by qualified servers. Depending on a bar's layout, operations and other factors, patrons might be able to carry their own drinks to separate smoking areas, but there must be adequate visibility for monitoring - and employee entry, if and when needed. Practically speaking, this means that any separate smoking area that allows for alcohol consumption must be open to employees. CouM the City ban existing smoking decks and previously approved outdoor smoking areas? Despite the investment a number of establishments have made in these structures, such a ban would be no different than when the City first adopted no-smoking regulations for the interiors of bars, taverns and other establishments. The City Attorney advises that the City should not be required to pay compensation to a business or property owner affected by a new ordinance that eliminates designated smoking areas. The "takings" provisions of the state and federal constitutions would not require compensation, because the City's regulation still would leave the owner with economically viable uses of the property. In addition, Measure 37 does not apply to regulations for the protection of public health. Although the examples listed in the measure are different in kind from a ban on smoking, a smoking ban is so clearly a public health measure that it falls squarely within the exemption. Of course, the City Attorney's opinion would not prevent someone from filing a claim. What regulations address tobacco smoke that drifts across a property line to a neighboring property ? The City currently does not regulate tobacco smoke that may drift from one property to another. Drifting smoke would not create liability for the City. The City could declare drifting smoke to be a nuisance, but setting measurable standards and enforcing the ordinance would be very difficult. The OLCC does not address drifting tobacco smoke, but can follow up on noise, illegal activity and disorderly conduct that may be associated with the use of an outdoor smoking area. RELATED CITY POLICIES The City Council has adopted goals for sustainable community development and a healthy natural and built environment. The City's internal operating principles also recognize the value of providing a safe work environment. L:\CMO\2005 Council Agendas\M050223\S050223A. doc