Item 5: Ord.Proh.Smoking/Strct. - Laserfiche WebLink

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CITY OF EUGENE INTER-DEPARTMENTAL MEMORANDUM CITY ATTORNEY - CIVIL DEPARTMENT To: Mayor and Council Date: May 17, 2005 Subject: Scope of Statutory Preemption of Cities' Prohibition of Smoking in New Areas BACKGRO'UND On May 9, 2005, the Council held a public hearing on the proposed ordinance to prohibit smoking in all structures except those where smoking was lawful as of March 1, 2005, and the structure existed or construction had begun as of that date. At the public hearing, a citizen expressed his opinion that the ordinance is preempted by a state statute that limits local governments' authority to add new areas of prohibition after July 1, 2001. By ordinances adopted in September and November of 2000, the City generally prohibited smoking in all restaurants, bars and taverns - pri. or to July 1, 2001. However, the ordinances also provided that the City would not enforce the ordinances against persons who had commenced construction of an outdoor seating area by July 1, 2001 (with certain conditions). In addition, by administrative rule, the City clarified what areas would be considered to be "outdoors" even though they were attached in some way to a restaurant, bar or tavem. Council has recently questioned whether the administrative rule provides the level of protection of public health that Council had intended when it adopted the ordinance. ISSUE: Does the Oregon Indoor Clean Air Act preempt the proposed ordinance on the basis that the ordinance would prohibit smoking in places where smoking was allowed as of July l, 20017 ANSWER: No. DISCUSSION ORS 433.863, which is part of the Oregon Indoor Clean Air Act, provides in pertinent part: "A local government may not prohibit smoking in any areas listed in ORS 433.850(2) unless the local government prohibition was passed before July 1, 2001 ." The "areas" listed in ORS 433.850(2) include (among others) restaurants, bars and taverns posted as off-limits to minors.