HomeMy WebLinkAboutItem A: Outdoor Smoking Ordinance
ECC
UGENE ITY OUNCIL
AIS
GENDA TEM UMMARY
Work Session: Outdoor Smoking Areas
Meeting Date: February 27, 2008 Agenda Item Number: A
Department: Planning and Development Staff Contact: Mike McKerrow
www.eugene-or.gov Contact Telephone Number: 682-5251
ISSUE STATEMENT
The objective of this work session is to provide an update on standards and compliance efforts related to
Eugene’s tobacco products and smoking regulations, focusing on impacts associated with outdoor
smoking areas. The work session is the result of a council poll taken in summer 2007.
BACKGROUND
In an effort to protect the health and well-being of patrons and employees, the City of Eugene prohibits
smoking inside places of employment and public places, while allowing smoking in outdoor smoking
areas that meet standards related to location and degree of openness to the outside air. The State of
Oregon also restricts indoor smoking. A snapshot of Eugene’s recent regulatory history and other
background information follow.
Eugene regulations
On September 25, 2000, the council adopted two ordinances. The first addressed retail licenses for
tobacco sellers. The second prohibited smoking in public places and places of employment. The council
deferred a vote on banning smoking in adults-only establishments until November 2000 to give the
public more time to weigh in on the issue. Additionally, the council suspended enforcement of
requirements until July 1, 2001, so that the City would have time to disseminate educational materials
and signage to businesses. No fines were to be imposed for violations before July 1, 2001. (Ordinance
20211 adopted September 25, 2000; Ordinance 20212 adopted September 25, 2000.)
On November 13, 2000, the council adopted an ordinance that further prohibited smoking in restaurants,
bars, taverns, cocktail lounges and bingo parlors. Businesses applying by June 30, 2001, for a building
permit to build an outdoor seating area for smokers were given a six-month exemption from
enforcement – so long as construction proceeded at a reasonable pace. (Ordinance 20215 adopted
November 13, 2000.)
On July 18, 2001, the council discussed ordinance implementation and City staff identified the use of a
temporary administrative rule to promote compliance. Later that month, the City Manager adopted a
temporary rule for outdoor smoking areas which included what was called the 25/75 standard, requiring
that no more than 75 percent of wall planes prevent the free flow of outside air. In January 2002, the
City Manager adopted a permanent rule for outdoor smoking areas.
F:\CMO\2008 Council Agendas\M080227\S080227A.doc
The City Council in February 2005 adopted a green building standard for smoking near openings to
publicly owned buildings, setting the “no-smoking buffer” at 25 feet from building openings.
Following consideration of public testimony and extensive discussion during 2005, the Mayor and
council asked that the City Manager revise the administrative rule for outdoor smoking areas. The new
standards were adopted in late December 2005 and required that all establishments achieve compliance
by December 31, 2006. The changes reversed the old rule by setting a 75/25 standard by which 75
percent of the sides or walls must be open to the outside air. This revised standard also restricts the use
of fencing and other siding – whether for decorative or security purposes.
Oregon law
The 2007 Oregon Legislature adopted bills that broaden the definition of places of employment to
include bars, taverns, restaurant areas posted as off-limits to minors, bowling centers, and bingo parlors.
These provisions become effective January 1, 2009, which will result in greater consistency across the
state. The bills and existing statutes do not appear to prohibit the establishment of outdoor smoking
areas, as allowed by Eugene’s regulations, because these do not meet the State threshold for an enclosed
area. However, staff anticipates clarification on implementation of the new regulations as the January
2009 date draws near and State administrative rules are developed.
Local enforcement
The City, through the Land Use Management team in the Planning & Development Department, is lead
for administering local smoking regulations. The availability of Lane County Public Health staff for
proactive enforcement has been affected by funding reductions, though the Tobacco Free Lane County
Coalition periodically conducts compliance checks of local establishments and files complaints with the
City. City staff responds to complaints about prohibited smoking, providing written notices and levying
fines as warranted. Staff has followed up on 41 complaints in calendar years 2004-2007, with 27 of
those relating to outdoor smoking areas.
Feedback about City of Eugene efforts
The Oregon Air Monitoring Project, conducted by the American Cancer Society in 2006, tested indoor
air quality in bars and restaurants of 12 Oregon cities. It found that Eugene had the second-lowest level
of air pollution measured. Corvallis ranked lowest. The healthy indoor air quality was the result of the
smoke-free environment established with Eugene’s adoption of regulations in 2000, according to Lane
County Public Health officials.
Some tavern and bar owners have indicated that local standards challenge their ability to secure
furnishings and equipment in outdoor smoking areas, because Eugene’s rule prohibits more than one
side/wall for a roofed area. This particular standard prevents the use of screens and fencing, as well. For
some establishments, the openness of their outdoor smoking areas also may hamper their ability to meet
Oregon Liquor Control Commission guidelines for limiting access to minors.
For some bars and taverns, an outdoor smoking area is considered essential for patron satisfaction and
the business’s financial viability. But there have been reported side-effects at some locations. These
have included litter, drifting smoke and noise. The impacts may be more noticeable where businesses
are located near residences.
F:\CMO\2008 Council Agendas\M080227\S080227A.doc
Currently, smoking is not allowed within 10 feet of doors to privately-owned buildings. Noise, lighting
and other regulations may come into play, but may not always provide the level of restrictions some
neighbors want. Bars and taverns are allowed outright in most commercial zones.
Staff from the Planning & Development Department and the Eugene Police Department, as well as from
the Oregon Liquor Control Commission, have in the past met with neighbors dealing with compatibility
issues related to taverns located near homes. In one such meeting last year, participants shared several
suggestions:
?
Establish a special distance requirement and other compatibility standards to guide outdoor smoking
areas in relation to residential properties (buildings and yards).
?
Limit the hours of operation or restrict activities in the outside smoking areas. Some businesses offer
televised programming, amplified music and fixed equipment on their “decks.”
RELATED CITY POLICIES
Smoking regulations support the City Council vision of a safe community. Requirements are captured in
Eugene City Code, Chapter 6, and related administrative rule.
COUNCIL OPTIONS
1.Request additional information related to specific issues.
2.Direct the City Manager to reconsider specific provisions in the administrative rule.
3.Direct the City Manager to prepare specific amendments for the Eugene City Code.
4.Retain existing standards.
In the event the council directs the City Manager to consider rule changes, staff would consult with the
State of Oregon to assure conformance with State requirements – and would review existing land use,
nuisance and other local regulations.
CITY MANAGER’S RECOMMENDATION
No recommendation at this time. This work session was scheduled at the request of the council.
SUGGESTED MOTION
There is none at this time.
ATTACHMENTS
A.Eugene City Code, Tobacco Products and Smoking
B.Smoking Prohibited Administrative Rule
FOR MORE INFORMATION
Staff Contact: Mike McKerrow, Land Use Management Supervisor, Planning & Development
Telephone: 682-5251
Staff E-Mail: mike.j.mckerrow@ci.eugene.or.us
F:\CMO\2008 Council Agendas\M080227\S080227A.doc
ATTACHMENT B
Tobacco Products and Smoking
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.
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; amended
by Ordinance No. 20212, enacted September 25, 2000, effective October 26, 2000; and
Ordinance No. 20338, enacted March 4, 2005, effective April 3, 2005.)
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 and within 25 feet of any
entrance or air intake to, or any operable window of, any
such building. However, notwithstanding the foregoing
prohibition, a private establishment that is located in a city-
owned building and that has a separate entrance may have
an outdoor smoking area if it complies with other provisions
of this code and any rules adopted by the city manager to
implement this section, and no smoking occurs within 25
feet of an entrance, air intake to or operable window of
another business, agency or establishment located within
the same city-owned building.
(l) 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;
Ordinance No. 20215, enacted November 13, 2000, effective December 13, 2000; and
Ordinance No. 20338, enacted March 4, 2005, effective April 3, 2005.)
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. 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; amended
by Ordinance No. 20212, enacted September 25, 2000, effective October 26, 2000; and
Ordinance No. 20338, enacted March 4, 2005, effective April 3, 2005.)
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.)