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HomeMy WebLinkAboutItem A - Non-Smoking OrdinanceEUGENE CITY COUNCIL AGENDA ITEM SUMMARY Action: An Ordinance Concerning Prohibited Smoking; and Amending Sections 6.225, 6.230, 6.235, 6.240 and 6.990 of the Eugene Code, 1971 Meeting Date: February 23, 2005 Agenda Item Number: A 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. Privately owned buildings would not be affected by this change. BACKGROUND The City Council on January 24 held a public hearing on proposed changes to the Tobacco Products and Smoking Ordinance. The Eugene Code restricts youth access to tobacco products and seeks to protect patrons and employees from tobacco smoke in public buildings and private buildings used by the public. The original ordinance was adopted by the council in 2000, with administrative rules regarding outdoor smoking areas adopted by the City Manager in 2001 and 2002. City of Eugene regulations prohibit smoking within 10 feet of most public building entrances, while allowing for a designated smoking entrance. The proposed ordinance change would prohibit smoking within 25 feet of entrances, outdoor air intakes and operable windows of City-owned buildings and eliminate the designated smoking entrance. The proposed ordinance also includes language addressing private establishments in City-owned buildings with existing outdoor smoking areas, specifically two businesses serving alcohol in space leased on the ground floor of City-owned parking garages. Other public agencies could elect to adopt the 25-foot standard or retain the existing 1 O-foot restriction. The other change staff proposed in January was including a standard that defines the minimum ratio of openness to enclosure required for an outdoor smoking area, such as the smoking decks permitted at Eugene bars and taverns. This standard currently is in the administrative rule, rather than in the code with other smoking restrictions, and is not referenced in the code. Based on questions and concerns identified by the City Council at the January 24 hearing, staff has withdrawn this proposal from the proposed code revisions. However, the standard remains in the administrative rule. As with other nuisance and zoning regulations, City staff primarily responds to complaints in enforcing non-smoking provisions of the Eugene Code and administrative rule - both to avoid selective enforcement and to establish grounds for the alleged violation. Where civil penalties have been appealed to the Hearings Official, the City has been upheld when evidence, including written or oral testimony, is available. However, the City would not require that an employee forego confidentiality when filing a complaint about a noncompliant outdoor smoking area, as this can be field-verified by staff. L:\CMO\2005 Council Agendas\M050223\S050223A. doc The revised ordinance language is included as Attachment A. In addition, staff provides information below in an attempt to answer questions raised by the council at the January 24 public hearing. CouM Eugene require a 25-foot no-smoking buffer for all pubhcly owned buildings? The council could legislate 25 feet for all publicly owned buildings, but it probably cannot compel all other governments to comply with the restrictions on their property. In particular, imposing restrictions on buildings owned by State and Federal agencies poses a challenge. Feedback from several local agencies is summarized in Attachment B. Does Eugene's standard for outdoor smoking areas, first adopted by administrative rule in 2001, comply with State law? In the January 24 public hearing, Dr. Grant Higginson of the Oregon Health Division testified that Eugene's standard for outdoor smoking areas violates State law. The City Attorney believes Eugene's standard is lawful, based on language in the statute and local code. City staff is not wedded to the 25/75 standard or to its application broadly across uses, but does recommend that Eugene's standard be understandable, enforceable and transparent. The council may wish to determine: 1) whether outdoor smoking areas should remain permissible; and, if so, 2) whether Eugene' s standard should be modified regarding which establishments may provide outdoor smoking areas and what measures must be in place to provide a safe environment for employees and patrons. Both the Oregon Indoor Clean Air Act and Eugene Code prohibit smoking in "public places" and "places of employment." Both of those terms are defined as an "enclosed area" that is used in certain ways. The state statute, ORS 433.835(1) defines "enclosed area" as "all space between a floor and a ceiling that is closed on all sides by solid walls or windows, exclusive of doors or passageways, that extend from thefloor to the ceiling, including all space therein screened by partitions that do not extend to the ceiling" (italics added). The definition of "enclosed area" in Eugene Code Section 6.225 is nearly identical. If the space is not an enclosed area -- i.e., if it does not have walls that run from the floor to the ceiling on all sides -- it does not appear to fall within the definition of a "public place" or "place of employment" where smoking is banned. Eugene's standard provides for outdoor smoking areas with a minimum openness in wall planes of 25 percent. The City's ordinances and administrative rules have not specified that outdoor smoking areas were to be limited to adults-only bars, taverns, cocktail lounges and bingo parlors - the establishments exempt from key provisions in the Oregon Indoor Clean Air Act adopted by the Oregon Legislature in 2001. City staff is aware of one outdoor smoking area, as defined by Eugene regulations, at an establishment other than those serving food and alcohol. Since October 25, 2000 (effective date of original City ordinance), the City has issued nearly 3,000 permits for commercial construction, including more than 2,000 for additions and alterations. About 40 identified outdoor smoking areas have been established with building permits during that time. It is possible that other formal and informal smoking areas have been established outside buildings without City oversight because no permit was required - in other words, the structural work involved, if any, did not trigger the requirement for a building permit. It is also possible that other outdoor smoking areas were installed at establishments as a building alteration before adoption of the ordinance in late 2000. On January 31, 2005, Lane County Public Health staff provided the City with a list of 10 establishments with outdoor smoking areas alleged to be in violation of City standards. Investigation and enforcement are underway. L:\CMO\2005 Council Agendas\M050223\S050223A. doc CouM the City repeal the existing administrative rule and better define outdoor smoking areas? If the administrative rule is repealed without another standard in place, the City Attorney believes the effect would be to allow smoking in any space that is not fully enclosed by solid walls (allowing for doors), because the ban on smoking applies only to "enclosed areas." Staff proposes retaining the administrative rule until the City Council can consider additional options for outdoor smoking areas and adopt an appropriate standard as part of the code. What is meant by proposing that a legitimate outdoor space for smoking be separated from other interior spaces from floor to ceiling? The existing standard and the one that had been proposed require that an outdoor smoking area be separated by a full wall, excluding the door, from the interior of the establishment. Does the Oregon Liquor Control Commission restrict outdoor smoking areas? Are employees in bars and taverns required to serve patrons? The OLCC does not get involved with tobacco smoking in licensed premises. As noted during City Council discussions on the original ordinance, smoking-only areas can be created at bars and taverns. But, according to the OLCC, separate areas cannot be established for consumption of alcohol without providing for entry and monitoring by qualified servers. Depending on a bar's layout, operations and other factors, patrons might be able to carry their own drinks to separate smoking areas, but there must be adequate visibility for monitoring - and employee entry, if and when needed. Practically speaking, this means that any separate smoking area that allows for alcohol consumption must be open to employees. CouM the City ban existing smoking decks and previously approved outdoor smoking areas? Despite the investment a number of establishments have made in these structures, such a ban would be no different than when the City first adopted no-smoking regulations for the interiors of bars, taverns and other establishments. The City Attorney advises that the City should not be required to pay compensation to a business or property owner affected by a new ordinance that eliminates designated smoking areas. The "takings" provisions of the state and federal constitutions would not require compensation, because the City's regulation still would leave the owner with economically viable uses of the property. In addition, Measure 37 does not apply to regulations for the protection of public health. Although the examples listed in the measure are different in kind from a ban on smoking, a smoking ban is so clearly a public health measure that it falls squarely within the exemption. Of course, the City Attorney's opinion would not prevent someone from filing a claim. What regulations address tobacco smoke that drifts across a property line to a neighboring property ? The City currently does not regulate tobacco smoke that may drift from one property to another. Drifting smoke would not create liability for the City. The City could declare drifting smoke to be a nuisance, but setting measurable standards and enforcing the ordinance would be very difficult. The OLCC does not address drifting tobacco smoke, but can follow up on noise, illegal activity and disorderly conduct that may be associated with the use of an outdoor smoking area. 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. L:\CMO\2005 Council Agendas\M050223\S050223A. doc 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 standards as a yardstick. LEED (Leadership in Energy and Environmental Design) standards 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 restriction does not meet LEED green building standards. 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." COUNCIL OPTIONS 1. Adopt revised ordinance with 25-foot buffer for City-owned buildings. 2. Adopt revised ordinance with 25-foot buffer for City-owned buildings. Provide additional direction on outdoor smoking areas. The council could schedule a work session to consider this item. 3. Take no action on the ordinance. 4. Adopt other ordinance revisions or direct staff to prepare other revisions to the ordinance. CITY MANAGER'S RECOMMENDATION The City Manager recommends City Council adoption of Option 2. SUGGESTED MOTION Move to adopt an ordinance concerning prohibited smoking; and amending sections 6.225, 6.230, 6.235, 6.240 and 6.990 of the Eugene Code, 1971. Move to direct the City Manager to schedule a work session for further discussion of standards for outdoor smoking areas. ATTACHMENTS A. Proposed Ordinance B. Summary of Feedback from Other Local Public Agencies FOR MORE INFORMATION Staff Contact: Keli Osborn Telephone: 682-5288 Staff E-Mail: keli.m.osborn~ci.eugene.or.us L:\CMO\2005 Council Agendas\M050223\S050223A. doc ATTACHMENT A ORDINANCE NO. AN ORDINANCE CONCERNING PROHIBITED SMOKING; AND AMENDING SECTIONS 6.225, 6.230, 6.235, 6.240 AND 6.990 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." 6.225 Definitions. For the purposes of sections 6.230 to 6.240 of this code, the following words and phrases mean: 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: (k) Within [f~+b~=~-ewRed] buildings owned by the city, [e~] and within [te~] 25 feet of any entrance or air intake to, or any operable window of, any such [3 publicly owned] 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 Ordinance intake to or operable window of another business, agency or establishment located within the same city-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. Section 6.990 of the Eugene Code, 1971, is amended by deleting Subsection (4) therefrom and renumbering Subsections (5), (6), (7), (8), (9), (10, (11), (12) and (13)to (4), (5), (6), (7), (8), (9), (10), (11) and (12) respectively. 6.990 Penalties - Specific. Ordinance - 2 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 ATTACHMENT B Summary of Feedback from Other Local Public Aqencies City of Eugene staff has contacted staff representatives from several public agencies about expanding the no-smoking buffer from 10 to 25 feet at building entrances. 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.