HomeMy WebLinkAboutItem 4 - PH on Smoking Ordin.EUGENE CITY COUNCIL
AGENDA ITEM SUMMARY
Public Hearing: An Ordinance Concerning Prohibited Smoking; and Amending Sections
6.225, 6.230, 6.235, and 6.240 of the Eugene Code, 1971
Meeting Date: January 24, 2005 Agenda Item Number: 4
Department: Planning and Development Staff Contact: Keli Osborn
www. cl. eugene, or. us Contact Telephone Number: 682-5288
ISSUE STATEMENT
To support "green building" standards for indoor air quality, staff is asking the City Council to expand
the restriction on smoking near entrances, outdoor air intakes and operable windows of City-owned
buildings from the current 10 feet to 25 feet. This change in the Eugene Code would further prevent and
minimize exposure to tobacco smoke in City buildings. Privately owned buildings would not be
affected by the change. Other public agencies would have the option to apply or not apply the increased
setbacks to buildings they own. In addition, staff recommends ordinance language to clarify provisions
for outdoor smoking areas.
BACKGROUND
The proposed code changes are meant to strengthen the Tobacco Products and Smoking Ordinance
adopted by the council in November 2000, largely by pushing smoking areas further from public
building entrances. The Eugene Code restricts youth access to tobacco products and seeks to improve
indoor air quality for employees and patrons in publicly owned buildings and private buildings used by
the public. Ordinance adoption in 2000 followed testimony at public forums by Tobacco-Free Lane
County and others representing differing views and interests related to tobacco smoking and sales,
significant discussion by the City Council and in the community over several months, and a public
hearing. Similar ordinances already were in effect in Corvallis and Multnomah County, and smoking
restrictions since have been adopted at the state level.
More than 1,700 U.S. municipalities have local clean indoor air laws. Some communities are beginning
to adopt restrictions on smoking in public parks, on beaches and in similar venues. The American
Nonsmokers' Rights Foundation estimates that more than 270 counties, cities and states restrict smoking
near building entrances in some manner (October 7, 2004, figures).
Following City Council adoption of the ordinance in 2000, administrative rules were adopted, first by
emergency order in 2001, and later in January 2002 through a regular process that included public
notice. The rule addresses outdoor smoking areas, such as smoking decks at bars, which are not covered
in existing code language. It allows for outdoor areas that are partially enclosed and sets a minimum
standard for openness to outside air circulation. Staff is unaware of scientific or medical data supporting
specific percentages of enclosure versus openness. However, Eugene's rule provides guidance on what
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might be considered an outside smoking area, in contrast to an indoor area in which smoking is
prohibited.
In the first year after ordinance adoption, Lane County and City staff collaborated in visiting
establishments to determine compliance. County resources for education and enforcement efforts
subsequently were reduced. City staff has taken a reactive approach to enforcement, responding to
complaints about indoor smoking and outdoor smoking area violations through public information
notices, enforcement letters, onsite visits, and additional monitoring by patrons and employees.
Lane County Public Health staff and Health and Human Services administrators, including the County
Public Health Officer, oppose codifying the administrative rule provision for outdoor smoking areas by
adding it to the Eugene Code. They have recommended that the 25/75 rule be deleted. This is the
guideline that at least 25 percent of the outdoor smoking area's wall planes be open to air circulation. In
preparing for this public hearing, they also have raised several issues, contending the administrative rule
was adopted without adequate public discussion and debate, is arbitrary and not based in fact, can be
extended to workplaces other than bars, which was not intended, and facilitates violation of the City's
ordinance by allowing enclosure of a space that exposes workers to proven environmental hazards.
Additionally, they contend the rule violates Oregon clean air laws.
The City Attorney has concluded the administrative rule and proposed ordinance changes meet legal
standards. During the rulemaking process in December 2001 and January 2002, the City Manager gave
notice to the Mayor and City Council and provided an opportunity for public comment. This public
hearing provides an opportunity to revisit standards and the City's enforcement protocol.
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.
Clean indoor air is considered an indicator of sustainable design, construction, and building operations
and maintenance. In supporting the council's resolution on sustainability, adopted in February 2000,
staff uses LEED (Leadership in Energy and Environmental Design) standards as a yardstick. These are
nationally recognized guidelines administered by the U.S. Green Building Council. LEED standards for
existing buildings recognize control of tobacco smoke, with options for assuring that building occupants,
indoor surfaces and systems have reduced exposure. The proposed 25-foot no-smoking buffer outside
building openings is one such option. The City's current 1 O-foot buffer and lack of restriction near
operable windows and outdoor air intakes do not meet LEED standards for indoor air quality.
A draft green building policy adopted within the Facility Management Division notes, "The City of
Eugene shall incorporate principles of sustainability in the planning, financing, design, and construction
of City buildings and facilities .... In addition, all City of Eugene buildings and facilities shall be operated
and maintained in a sustainable manner using the LEEDTM Green Building Rating System for Existing
Buildings as a guide."
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COUNCIL OPTIONS
1. Adopt the proposed ordinance before the council.
The council is scheduled to take action on February 14. Adopting the proposed ordinance would
prohibit smoking within 25 feet of entrances, outdoor air intakes and operable windows of City-
owned buildings within the Eugene city limits. It would provide other public agencies the option to
extend smoke-free areas from 10 to 25 feet outside entrances, operable windows and intakes.
The proposed ordinance also includes standards for outdoor smoking areas, such as smoking decks
at bars, which now are allowed through administrative rule. The current ordinance prohibits
smoking in an "enclosed area" open to the public and defines that term, but it does not clearly define
when an area no longer is considered "enclosed." The administrative rule adopted in 2002 provides
some guidance, but is not as clear as it could be. Language proposed for the ordinance would
achieve the same outcome as the rule (minimum 25 percent opening in walls), but through clearer
language. For public information and compliance purposes, it also is helpful to locate the provision
with other applicable requirements in the code itself. On a separate matter, the proposed ordinance
would restrict the ability of public agencies to establish designated smoking areas adjacent to
entrances.
The changes would aid indoor air quality by better controlling tobacco smoke's entry to buildings,
and reduce contact with tobacco smoke for those entering, exiting and congregating near City
building entrances. The ordinance would help the City meet LEED (green building) standards for
existing buildings. New signs at City-owned buildings would be needed. The estimated cost for
signage is $2,000.
2. Leave the ordinance as is.
If the council prefers this option, no action is required. With this approach, the City and other public
agencies would have greater difficulty meeting LEED (green building) standards for existing
buildings. Tobacco smoke could more easily enter buildings. For information and compliance
purposes, staff would continue to rely on the administrative rule to address outdoor smoking areas.
3. Direct staff to prepare different revisions to the ordinance.
CITY MANAGER'S RECOMMENDATION
The City Manager recommends that the council adopt Option 1, the proposed ordinance.
SUGGESTED MOTION
Move to set action for February 14, 2005, for adoption of the proposed ordinance revising Tobacco
Products and Smoking regulations.
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ATTACHMENTS
A. Proposed Ordinance
B. Summary of Feedback from Other Local Public Agencies.
C. Current Tobacco Products and Smoking Ordinance from Eugene City Code.
D. Administrative Order No. 21-01-10-F.
FOR MORE INFORMATION
Staff Contact: Keli Osborn, Planning and Development Department
Telephone: 682-5288
Staff E-Mail: keli.m.osborn~ci.eugene.or.us
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ATTACHMENT A
ORDINANCE NO.
AN ORDINANCE CONCERNING PROHIBITED SMOKING; AND
AMENDING SECTIONS 6.225, 6.230, 6.235, AND 6.240 OF THE
EUGENE CODE, 1971.
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1. Section 6.225 of the Eugene Code, 1971, is amended by deleting the
definition of "Designated smoking entrance" and adding a definition of "Designated
smoking area" in alphabetical order therein, to provide:
6.225 Definitions. For the purposes of sections 6.230 to 6.240 of this code, the
following words and phrases mean:
Designated smoking area. An outdoor space or an area:
(a) That is separated from other interior spaces from floor to
ceiling; and
(b) Where at least 25% of the total area of the wall planes is open
to the outside so that fresh air may freely circulate in and
ventilate the space.
Section 2. Subsection (2)(k) of Section 6.230 of the Eugene Code, 1971, is
amended, a new Subsection (I) is added thereto, and the existing Subsections (I), (m),
(n) and (o) are relettered (m), (n), (o), and (p) respectively, to provide:
6.230 Smokinq Prohibited in Public Places and Places of Employment.
(2) Smoking is prohibited in all public places and all places of employment
within the city, including, but not limited to the following:
Ordinance- ]
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(k) Within [t~4~,¢~-e,ca~] buildings owned by the city, [e~] and
within [tect] 25 feet of any entrance or air intake to, or any
operable window of, any such [a publicly owned] building.
(I) Within buildings owned by any governmental entity other
than the city, and within ten feet of any entrance to such
building. The entity owning the building may elect to prohibit
smoking within 25 feet of any entrance or air intake to, or any
operable window of, the building if it posts appropriate signs
in accordance with rules adopted by the city manager.
(Im) Waiting rooms, hallways, wards, and semi-private rooms of health
care facilities, including, but not limited to, hospitals, clinics,
physical therapy facilities, and doctor's and dentist's offices.
(mn) Lobbies, hallways, and other enclosed common areas in
apartment buildings, condominiums, trailer parks, retirement
facilities, nursing homes, and other multiple-unit residential
facilities.
(~o) Polling places.
(ep) Within a reasonable distance of not less than ten feet, of any
entrance to any enclosed area where smoking is prohibited.
Section 3. Subsection (2) of Section 6.235 of the Eugene Code, 1971, is
amended to provide:
6.235 Smokinq Prohibited - Enforcement.
(2) At primary entrances to public places or publicly owned buildings in
which smoking is prohibited by section 6.230 of this code, the owner or
manager of such place or building shall post a "No Smoking" sign so
that the sign is plainly visible from the outside of the entrance[,-exc-ept
~.~...~.....~...~ ~ ~ ~.~..~.~ ~...~.....~ ~....~..~ ~..~.. ~
The signs shall be of a form and size approved by the city manager and
contain a reference that regulation is by sections 6.225 to 6.240 of this
code.
Section 4. Subparagraph (e) of Section 6.240 of the Eugene Code, 1971, is
amended to provide:
6.240 Smokinq Prohibited - Exceptions. The restrictions set forth in sections
6.230 and 6.235 of this code do not apply to:
(e) Designated smoking [~] areas meeting applicable land use,
building, specialty and other codes and approved for such use
through applicable permits.
Ordinance - 2
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Section 5. The City Recorder, at the request of, or with the concurrence of the
City Attorney, may administratively correct any reference errors contained herein or in
other provisions of the Eugene Code, '197'1 to the provisions added, amended or
repealed herein.
Passed by the City Council this Approved by the Mayor this
~ day of ,, 2005 ~ day of ,, 2005
City Recorder Mayor
Ordinance - 3
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ATTACHMENT B
Summary of Feedback from Other Local Public Aqencies
City of Eugene staff has contacted staff representatives from several public agencies with
buildings in Eugene. Comments are summarized below:
· Eugene 4J School District - Supports the extension and currently prohibits smoking near
building openings. May consider further restrictions on school district property.
· Bethel School District - Already prohibits smoking on school district property.
(The Oregon Board of Education has enacted a rule requiring all school districts to put
tobacco-free policies in place no later than January 2006. The rule bans the use of
tobacco products on all school district property by all students, staff and visitors --
including people who use athletic fields outside of school-sanctioned events.)
· Lane Community College - Supports extension for LCC Downtown Center; has posted
signs there asking for smokers to stay at least 15 feet away from main building entrance.
On main campus outside Eugene city limits, LCC staff has found it effective to tell
people where they can smoke rather than where they cannot, providing smoking shelters
some distance from building entrances.
· Lane Transit District - Supports the extension for Eugene Downtown Bus Station
building entrances
· EWEB - No position on City ordinance. Noted possible challenge in providing outside,
covered smoking areas for employees, if no-smoking buffer extends to 25 feet.
· University of Oregon - No position on City ordinance. Practices on campus vary and
extensive discussion continues among building managers, public health advocates and
other campus staff on this and related issues. There are concerns about ensuring indoor
air quality for residents and others on campus, as well as compliance challenges with
increased restrictions.
· Lane County - Supports the extension for Lane County buildings. Staff with Tobacco
Prevention program available to provide limited assistance to City in implementation of
extending no-smoking buffers.
County staff in tobacco prevention efforts support the building entrance change, but
oppose the code change that incorporates the administrative rule provision relating to
smoking decks (25/75 openness standard).
ATTACHMENT C
Tobacco Products and Smokinq - Existinq Ordinance
6.225 Definitions. For the purposes of sections 6.230 to 6.240 of this code, the following words
and phrases mean:
Bar. An area that is devoted to the serving of alcoholic beverages for consumption by guests on
premises and in which the serving of food is only incidental to the consumption of such
beverages.
Business. Any sole proprietorship, partnership, joint venture, corporation, or other business
entity, including retail establishments where goods or services are sold as well as professional
corporations and other entities where professional services are delivered.
Designated smoking entrance. An area outside an entrance to a publicly owned building that is
neither the main public entrance nor the primary employee entrance and which has been
designated by the building manager as a smoking area.
Employee. Any person who is employed by an employer in consideration for direct or indirect
monetary wages or profit, and any person who volunteers his or her services to a non-profit
entity. This definition includes independent contractors.
Employer. Any person or entity who employs the services of one or more individuals.
Enclosed area. All space between a floor and a ceiling that is enclosed on all sides by solid walls
or windows (exclusive of door or passageways) which extend from the floor to the ceiling,
including all space therein screened by partitions which do not extend to the ceiling or are not
solid, "office landscaping" or similar structure.
Place of employment. Any enclosed area under the control of a public or private employer which
employees normally access during the course of employment, including, but not limited to, work
areas, employee lounges and rest rooms, conference and class rooms, cafeterias and hallways. A
private residence is not a "place of employment" unless it is used as a child care, adult day care,
or health care facility.
Public place. Any enclosed area to which the public is invited or in which the public is permitted
including, but not limited to, banks, education facilities, health facilities, laundromats, public
transportation, reception areas, restaurants, retail food production and marketing establishments,
retail service establishments, retail stores, theaters, and waiting rooms. A private residence is not
a "public place" unless it is used as a child care, adult day care, or health care facility.
Public transportation. Any motorized vehicle used to transport people which is held out for hire
by the public or used by a public or private elementary or secondary school to transport students.
Restaurant. Any coffee shop, cafeteria, sandwich stand, private or public school cafeteria, and
any other eating establishment that gives or offers food for sale to the public, guests or
employees, as well as kitchens in which food is prepared on the premises for serving elsewhere,
including catering facilities.
Retail tobacco store. A retail store utilized primarily for the sale of tobacco products and
accessories and in which the sale of other products is merely incidental.
Service line. Any indoor line or any portion of an indoor line that extends out of doors, at which
one or more persons is waiting for or receiving services of any kind, whether or not such services
involves the exchange of money.
Smoking. Any inhaling, exhaling, burning, or carrying of any lighted pipe, cigar, cigarette, or
other tobacco-like product or substance in any manner or in any form.
Sports facility. Any sports pavilion, gymnasium, health spa, swimming pool, roller rink, bowling
alley, or other enclosed places where members of the general public assemble either to engage in
physical exercise, participate in athletic competition, or witness sports events.
Tobacco product. Any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, chewing
tobacco, or any other form of tobacco that may be utilized for smoking, chewing, inhalation, or
other means of ingestion.
(Section 6.225 added by Ordinance No. 18721, enacted November 12, 1980; and amended by
Ordinance No. 20212, enacted September 25, 2000, effective October 26, 2000.)
6.230 Smoking Prohibited in Public Places and Places of Employment.
(1) Nothing in sections 6.225 to 6.240 shall be construed to in any way affect smoking
prohibitions imposed by the fire marshal or other laws, ordinances, or regulations.
(2) Smoking is prohibited in all public places and all places of employment within the city,
including, but not limited to the following:
(a) All elevators.
(b) Rest rooms, lobbies, reception areas, hallways, and any other areas of common use.
(c) Buses, taxicabs, and any other means of public transportation.
(d) Service lines, or within ten feet of a service line that extends out of doors.
(e) Retail stores.
(f) All areas available and customarily used by the general public located in a business
patronized by the public, including non-profit and public businesses. Affected businesses
include, but are not limited to, professional offices, banks, laundromats, hotels and motels.
(g) All restaurants, taverns, bars, cocktail lounges and bingo parlors.
(h) Any enclosed facility that is primarily used for exhibiting any motion picture, stage or drama
production, lecture, music recital or other similar performance, except for performers when
smoking is part of a stage or drama production.
(i) Sports facilities.
(j) Every room, chamber, place of meeting or public assembly, including school buildings under
the control of any board, council, commission, or committee, including joint committees or
agencies of the city, during the time a public meeting is in progress.
(k) Within publicly owned buildings, or within ten feet of any entrance to a publicly owned
building.
(1) Waiting rooms, hallways, wards, and semi-private rooms of health care facilities, including,
but not limited to, hospitals, clinics, physical therapy facilities, and doctor's and dentist's offices.
(m) Lobbies, hallways, and other enclosed common areas in apartment buildings, condominiums,
trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities.
(n) Polling places.
(o) Within a reasonable distance, of not less than ten feet, of any entrance to any enclosed area
where smoking is prohibited.
(3) Employers are required to provide for all employees a place of employment in which
employees are not exposed to the smoking of others.
(Section 6.230 added by Ordinance No. 18721, enacted November 12, 1980; amended by
Ordinance No. 20212, enacted September 25, 2000, effective October 26, 2000; and Ordinance
20215, enacted November 13, 2000, effective December 13, 2000.)
6.235 Smoking Prohibited - Enforcement.
(1) In every building or enclosed area in which smoking is prohibited by section 6.230 of this
code, a "No Smoking" sign shall be conspicuously posted by the owner, manager, or other
person having control of the building or area. The signs shall be of a form and size approved by
the city manager and contain a reference that regulation is by sections 6.225 to 6.240 of this
code.
(2) At primary entrances to public places or publicly owned buildings in which smoking is
prohibited by section 6.230 of this code, the owner or manager of such place or building shall
post a "No Smoking" sign so that the sign is plainly visible from the outside of the entrance,
except that for designated smoking entrances to publicly owned buildings, a sign identifying it as
a designated smoking entrance shall be posted. The signs shall be of a form and size approved by
the city manager and contain a reference that regulation is by sections 6.225 to 6.240 of this
code.
(3) It shall be unlawful for any person to remove, deface, or destroy any sign required by this
section.
(4) No person or employer shall discharge, refuse to hire, or in any manner retaliate against an
employee, applicant for employment, or customer because the employee, applicant, or customer
reports or attempts to prosecute a violation of section 6.230 of this code.
(5) Any person who violates a provision of section 6.230 or 6.235, or any business, owner, or
employer who permits a violation to occur, shall be subject to the penalties provided in section
6.990(13 ), an administrative civil penalty pursuant to section 6.995 of this code, or both such
fine and penalty.
(Section 6.235 added by Ordinance No. 18721, enacted November 12, 1980; and amended by
Ordinance No. 20212, enacted September 25, 2000, effective October 26, 2000.)
6.240 Smoking Prohibited - Exceptions. The restrictions set forth in sections 6.230 and 6.235 of
this code do not apply to:
(a) Private residences, unless the private residence is used as a child care, adult day care, or
health care facility;
(b) Rented motel/hotel rooms that are designated in some manner as smoking rooms by the
owner of the establishment renting the room;
(c) Private rooms rented for an occupancy that exceeds one month and not located in a private
residence used as a child care, adult day care, or health care facility;
(d) Retail tobacco stores; or
(e) Designated smoking entrances.
(Section 6.240 added by Ordinance No. 20212, enacted September 25, 2000, effective October
26, 2000; and amended by Ordinance No. 20215, enacted November 13, 2000, effective
December 13, 2000.)
ATTACHMENT D
ADMINISTRATIVE ORDER NO. 21-01-10-F
of the
City Manager of the City of Eugene
AMENDMENT AND ADOPTION OF SMOKING
PROHIBITED TEMPORARY ADMINISTRATIVE RULE R-
6.230 AS A PERMANENT RULE, AND REPEAL OF
ADMINISTRATIVE ORDER NO. 21-01-03.
The City Manager of the City of Eugene finds that:
A. Section 2.019 of the Eugene Code, 1971, authorizes the City Manager to adopt rules
£or implementation of any provisions of that Code. Sections 6.225 through 6.240 establish policies,
prohibitions, and procedures related to smoking prohibited in public places and places of
employment within the City. Those sections were added to, or amended the Eugene Code, 1971 by
Ordinance Nos. 18721,20212, and 20215, and the current Code provisions have been in effect since
December 13, 2000.
B. Pursuant to that authority, Smoking Prohibited Temporary Administrative Rule R-
6.230 was adopted on July 25, 2001, by Administrative Order No. 21-01-03.
C. On December 21, 2001, ! issued Administrative Order No. 21-01-10 proposing that
the Temporary Rule be amended by deleting requirements relating to construction activity, amending
the "Smoking Prohibited - Enclosed Area" section, and adding a new section defining the manner
in which "enclosed area" and "solid wall" are to be interpreted for enforcement purposes, and
adopting Temporary Rule R-6.230 as amended as a permanent rule.
D. Notice of the proposed rule amendment and adoption was published in the Register-
Guard, a newspaper of general circulation within the City, for five consecutive days, to-wit, on
December 28, 29, 30 and 31, 2001, and January 1, 2002. The Notice was also made available to
persons who had requested such notice, and provided that written comments would be received
thereon for a period of 15 days from the first date of publication. No written comments were
received within the time or in the manner provided in the Notice. However, during the comment
period, staff recommended revisions to the second sentence of Rule R-6.230-A(b) to clarify the
definition of an "enclosed area." I concur with the recommendation which has been incorporated
herein.
Now, therefore, based on the above findings, which are hereby adopted, and the findings in
Administrative Order No. 21-01-10, and pursuant to the authority of Section 2.019 of the Eugene
Code, 1971, Administrative Order No. 21-01-03 is repealed as of the effective date of this order, and
Smoking Prohibited Temporary Administrative Rule R-6.230 is hereby amended and adopted as a
permanent rule, to provide:
Administrative Order - 1
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SMOKING PROHIBITED
ADMINISTRATIVE RULE R-6.230
R-6.230-A Smoking Prohibited - Enclosed Area?
Section 6.225 of the Eugene Code, 1971 defines what constitutes an "enclosed area" for
purposes of administering and enforcing Sections 6.225 to 6.240 of that Code. As used in that
definition, "solid wall" means:
(a) For existing structures, a wall built according to generally accepted standards
for structures intended for human occupancy. An existing solid wall may be altered to a non-
solid condition only by means of approved construction techniques upon issuance of a
building permit by the City. The removal of doors or windows from their frames does not
convert an existing solid wall to a non-solid wall.
(b) For construction begun after January 1, 2002, a wall built according to
standards for occupied structures imposed by the building code under which the building
permit was obtained, including a foundation and roof support. In addition, an exterior wall
shall meet the definition of a solid wall only if 50 percent or more of the total area bounded
by the floor, roof line and adjacent walls is impervious to the outside air. Notwithstanding
this definition of "solid wall" for new construction, a newly constructed area meets the
definition of an "enclosed area" if more than 75 percent of the total area of all wall space or
vertical planes defining the area consists of walls or other materials that prevent the free
flow of outside air to the area, and if any portion of the defined area is covered by a roof.
R-6.230-B Interpretation for Enforcement Purposes.
In enforcing the provisions of Sections 6.225 through 6.240 of the Eugene Code, 1971, the
City Manager or designee shall interpret the terms "enclosed area" and "solid wall" consistent with
the definitions provided in the applicable Code section, ordinance, and rule, and in such a way as to
ensure that, in those areas where smoking is allowed, that sufficient natural ventilation exists to
minimize the exposure of employees or members of the public to tobacco smoke.
Dated this ~. ~ day of January, 2002.
James R. Johnson
City Manager
Administrative Order - 2
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