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

Home Browse Search

Mayor and Council May 17, 2005 Page 2 The apparent intent of the preemption in ORS 433.863 is to "grandfather" smoking in certain types of businesses where smoking was allowed as of July 1, 2001. The City clearly did prohibit smoking in those areas - i.e., all restaurants, bars and taverns - as of that date. The proposed ordinance would not extend the smoking prohibition to any new class of business listed in ORS 433.850(2). Admittedly, the City's current administrative rule, adopted in January 2002, allows smoking in certain spaces that comply with the ventilation standards in the rule. Under the proposed ordinance, smoking will be prohibited in newly-constructed areas meeting those same standards. For at least two reasons, we conclude that this change would not violate ORS 433.863. First, as described above, in our opinion the "outdoor" spaces where smoking is now permitted do not constitute "areas" within the meaning of the statute's "grandfather" provision. Smoking is, and has been, generally prohibited in all those areas; the proposed ordinance merely defines what spaces are included in those areas. Second, even if not-yet-built "outdoor" smoking areas could be considered new "areas" under the statute, they do not qualify for preemption of local regulation under the statutory "grandfather" provision, because smoking was not allowed in those places as of July 1, 2001. For the foregoing repons, our opinion is that proposed EC 6.232 would not be preempted by ORS 433.863. HARRANG LONG GARY RUDNICK P.C. - CITY ATTORNEYS Jer~(~e Lidz \ JL:abm