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who smoke cigarettes, a legal activity, and an employee could safely enter those areas with such a mask. He noted that the reason he did not construct a smoking area for his establishment was that he did not have the money to build a nice area compatible with the rest of the building. In closing, Mr. Jensen asked if the intent was to limit smoking altogether or if the intent was truly to provide safety for the employee. Stewart Stephens, 21 West 6~ Avenue, stated that he was a bartender. He remarked that the bar had been dealing with the smoking issue for quite some time. He related that he sometimes walked into the bar to find it completely empty and the smoking area completely full. He said customers wanted a comfortable place to smoke but the City forced the bar to expose its customers to the elements. He noted that the Hilton Hotel had a floor dedicated to smoking rooms and employees worked on that floor. He did not understand why the bars were being targeted. He alleged that the restrictions were in violation of the Oregon Smoke-Free Workplace laws, specifically Oregon Revised Statute 433.850. Joel Pomerantz, 1171 Risden Place, representing the Oregon Restaurant Association (ORA), requested that the record be kept open until the end of the week in order for the council to seek a legal opinion on Mr. Stephens' testimony. He related that it had been brought to his attention that the ordinance could potentially be in violation of Ballot Measure 37. He felt it was clear from testimony and discussions he had with local bar operators that business people in Eugene had sought to cooperate with the City and did not disagree with the general intent of the council. He thanked the council for its consideration. Anthony DeSiena, 1940 Parliament Street, physician, stated that 53,000 people die annually from second- hand smoke. He said it was now known that second-hand smoke was the leading cause of breast cancer, diagnosed in 273,000 women annually. He averred that in areas where smoking laws had been put into effect, such as New York City and areas of California where business could be monitored through sales tax receipts, a ten-percent increase in business had been observed. He underscored that 80 percent of the population did not smoke. Regarding the use of a breathing mask, Dr. DeSiena did not believe such a requirement would work. He averred there was no viable scientific evidence that smoking rooms with 25 percent open space, as per current construction standards, provided protection. He asserted that when winterized, the smoking rooms became more closed and the purpose of the City Council's ordinance was defeated. Mayor Piercy closed the public hearing. Councilor Solomon, seconded by Councilor Pap6, moved to keep the record open until 5 p.m. on May 13. Roll call vote; the motion passed, 5:3; councilors Bettman, Taylor, and Kelly voting in opposition. Councilor Pap6 asked Mr. Klein to respond to allegations of potential conflicts with the Oregon Revised Statute or Ballot Measure 37. Mr. Klein replied that the ballot measure dealt with land use regulations and this was not one of those. He added that even if it was a land use, Ballot Measure 37 exempted public health and safety. Regarding ORS 433.850, he said he would check with City Attorney Jerry Lidz, who worked on the ordinance, and provide the council with a memorandum in response to that concern. Councilor Kelly supported the inclusion of a sunset date in the ordinance. MINUTES--Eugene City Council May 9, 2005 Page 13 Regular Session