CC Minutes - 09/12/05 WS - Laserfiche WebLink

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Ms. Osborn noted the council's adoption of a moratorium on new outdoor smoking facilities that expired on October 31. She said in order to avoid having the moratorium expire without standards in place, the council must adopt a new ordinance with new standards by September 30 or enact an ordinance in October with an immediate effective date. She said if the moratorium expired, the City would not be inhibited from enacting tighter standards and requiring businesses with outdoor smoking facilities to make additional modifications. Ms. Osborn noted that some councilors expressed interest in whether some of the changes being contem- plated could be accomplished through administrative rule rather than through ordinance. Background information on that issue was included in the council meeting packet. City Attorney Jerry Lidz was present to answer questions about that issue. Mayor Piercy called for council questions and comments. Ms. Taylor was not interested in grandfathering any establishments' outdoor smoking facilities. She did not understand why a councilor would prefer using administrative rules as opposed to an ordinance as administrative rules were easier to relax. Mr. Lidz clarified that approach was suggested by a councilor rather than staff. From a legal perspective, he recommended an ordinance that set a standard while allowing the City Manager to act administratively to implement the ordinance as there were some elements probably better addressed by administrative rules, such as modifications to the 25 percent rule made necessary by physical circumstances. Other than that, he had no reason to believe it was better to act administratively rather than through an ordinance. Mr. Kelly said another legal opinion that existed suggested it would be more straightforward and defensible to make the changes being contemplated through the City's administrative rules. He proposed that rather than discuss the ordinance's potential legal vulnerabilities in open session, the council discuss them in an executive session. He suggested that the council also be given an opportunity to extend the moratorium to the end of the year. Mr. Kelly was comfortable with the overall direction staff was taking. He did not want indoor areas that happened to fall outdoors under the current definition to be grandfathered forever. He thought a year was a reasonable amount of time. Mr. Kelly thanked staff for responding to questions and for seeking clarification from the council about its previous comments. Mr. Kelly suggested that somehow the implementation of the original ordinance failed to capture the council's original intent that in general, smoking was prohibited in work places but one could smoke in outdoor areas, and he hoped whatever was proposed would return to and clarify that original intent. Mr. Pape recalled that the council's goal in adopting the ordinance had been to protect the public, particularly youth, and employees from second-hand smoke, rather than to stop people from smoking. He reminded the council that people had the right to smoke. Mr. Pape was concerned that the council's focus was on physical structures, and suggested the City remind employers that employees were not required to go into areas where smoking was allowed. He understood that a window in a wall or door that allowed physical viewing of the area in question complied with OLCC regulations. Ms. Osborn said the City had experienced some enforcement issues related to situations where managers had instructed employers to sign waivers about being in a smoking environment when that was not the choice of the employee, but they felt compelled to do so. Mr. Pape thought the City needed to deal with that issue and require the employer to inform the MINUTES-Eugene City Council Work Session September 12, 2005 Page 11