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HomeMy WebLinkAboutItem 5: Ord.Proh.Smoking/Strct.EUGENE CITY COUNCIL AGENDA ITEM SUMMARY Action: An Ordinance Concerning Prohibiting Smoking in Public Structures; Adding Section 6.232 to the Eugene Code, 1971; Amending Section 6.990 of that Code; Establishing a Sunset Date; and Providing an Immediate Effective Date Meeting Date: May 23, 2005 Agenda Item Number: 5 Department: Planning and Development Staff Contact: Keli Osborn www. cl. eugene, or. us Contact Telephone Number: 682-5288 ISSUE STATEMENT Action is scheduled on an ordinance proposing a moratorium on new outdoor smoking areas. A moratorium would not halt construction of certain outdoor areas, if they conform to other applicable requirements, but with a moratorium the City Council could ban smoking in such structures. This has been requested as an interim measure while the council considers standards for outdoor smoking areas. Please note: An immediate effective date is requested with this ordinance in order to minimize the health risks associated with smoking in publicplaces and places of employment by prohibiting smoking in places where smoking is not currently both permitted and occurring or where the City did not authorize construction of such a structure prior to March 1, 2005. An immediate effective date requires a 2/3 majority or 6 affirmative votes from the council to enact. Ordinances without an immediate effective date do not take effect for 30 days. BACKGROUND On May 9, the council held a public hearing on the proposed moratorium. The draft ordinance has been amended to include a "sunset provision" at the council's request. RELATED CITY POLICIES The City Council has adopted goals for sustainable community development and a healthy natural and built environment. COUNCIL OPTIONS 1. Adopt the ordinance as proposed. 2. Modify the ordinance with a different effective date or other changes. 3. Do not adopt the moratorium. The council retains the ability to adopt different standards for outdoor smoking areas and enact them retroactively, as occurred with prohibitions on indoor smoking. L:\CMO\2005 Council Agendas\M050523\S0505235.doc CITY MANAGER'S RECOMMENDATION The City Manager recommends adoption of the first option. SUGGESTED MOTION Move to adopt an ordinance concerning prohibiting smoking in public structures; adding Section 6.232 to the Eugene Code, 1971; amending Section 6.990 of that Code; establishing a sunset date; and providing an immediate effective date. ATTACHMENTS A. Proposed Ordinance 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\M050523\S0505235.doc ATTACHMENT A ORDINANCE NO. AN ORDINANCE CONCERNING PROHIBITING SMOKING IN PUBLIC STRUCTURES; ADDING SECTION 6.232 TO THE EUGENE CODE, 1971; AMENDING SECTION 6.990 OF THAT CODE; ESTABLISHING A SUNSET DATE; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE. The City Council of the City of Eugene finds that: A. In 2000, the Council adopted Ordinance Nos. 20212 and 20215, codified at Sections 6.225 through 6.240 of the Eugene Code, 1971. Those ordinances generally prohibited smoking in all public places and places of employment, as defined in the Ordinances. B. The Council intended to allow smoking in certain outdoor areas so long as the ventilation of those areas was sufficient to assure that employees of the businesses would not be subjected to substantial amounts of second-hand smoke. By administrative rule, the city manager attempted to implement that intent. C. The Council finds that some areas designated as outdoor smoking areas, while complying with the literal terms of Ordinances Nos. 20212 and 20215 and the administrative rule, nonetheless may lack adequate ventilation to protect employees from the dangers of second-hand smoke. The Council finds that requiring employees to be exposed to second-hand smoke is dangerous to their health and detrimental to the public welfare. D. On February 23, 2005, the Council held a work session on expanding protections against second-hand smoke, and announced its intent to consider additional regulation of smoking in public places and places of employment, including standards addressing ventilation and location. Council intends to study the issue further before taking final action. E. The Council is aware that owners of some businesses have constructed outdoor areas for smoking and that they have relied on Ordinances Nos. 20212 and 20215 and the administrative rule in designing and constructing those spaces. At this time, Council does not intend to prohibit smoking in places where it lawfully occurred as of March 1, 2005. F. The Council wishes to minimize the health risks associated with smoking in public places and places of employment by prohibiting smoking in places where smoking is not currently both permitted and occurring or where the City did not authorize construction of such a structure prior to March 1,2005. Ordinance- 1 L:\CMO\2005 Council Agendas\M050523\S0505235-attA.doc NOW, THEREFORE, THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS: Section 1. Section 6.232 is added to the Eugene Code, 1971, to provide: 6.232 Smokinq Prohibited in Public Structures. In addition to the prohibitions in section 6.230 of this code, smoking is prohibited in all structures to which the public is invited or permitted and in all structures under the control of a public or private employer, except in structures that, as of March 1, 2005, met both of the following requirements: (a) The structure was authorized by a building permit, if required, and construction had actually begun; and (b) Smoking was lawful in the structure or space covered by the structure. Section 2. Subsection (12) of Section 6.990 of the Eugene Code, 1971, is amended as follows: 6.990 Penalties - Specific. (12) Any person who violates a provision of section 6.230, 6.232 or 6.235, or a business, owner, or employer who permits a violation of sections 6.230, 6.232 or 6.235 of this code to occur, shall, upon conviction, be punished by a fine of: (a) Not less than $50, nor more than $100 for the first violation; (b) Not less than $100, nor more than $200 for the second violation occurring within a period of 12 months from the first violation; (c) Not less than $250, nor more than $500 each for the third and subsequent violations occurring within a period of 12 months from the first violation. The above penalties are in addition to, and not in lieu of, any administrative civil penalties that may be imposed or other remedies the city may have under this code or other laws or regulations. Section 3. The City Recorder, at the request of, or with the concurrence of the City Attorney, is authorized to administratively correct any reference errors contained herein or in other provisions of the Eugene Code, 1971, to the provisions added, amended or repealed herein. Ordinance - 2 L:\CMO\2005 Council Agendas\M050523\S0505235-attA.doc Section 4. Unless otherwise extended by the City Council, the amendments to the Eugene Code, 1971, effected by this ordinance, which consist of the addition of Section 6.232, and an amendment to Section 6.990, are repealed effective 12:01 AM on September 30, 2005, or on the effective date of new provisions for outdoor smoking areas, whichever comes first. Notwithstanding the prior sentence, the City may continue to pursue any enforcement actions commenced to enforce those provisions prior to September 30, 2005, and the provisions related to such enforcement actions shall remain in effect with respect to those actions. In addition, any fees owned to the City under the provisions of this Ordinance remain due and owing, and all provisions related to those fees and their collection shall remain in effect with respect to those fees. Section 5. An immediate effective date is necessary and serves the important public purposes of minimizing the health risks associated with smoking in public places and places of employment and preventing property owners from investing resources to construct facilities for smokers whose use of the facility may be prohibited by subsequent regulations. This Ordinance shall become effective immediately upon its passage by the City Council and approval by the Mayor, retention by the Mayor for more than ten days, or readoption over a Mayoral veto by two-thirds of all members of the City Council. Passed by the City Council this Approved by the Mayor this ~ day of ., 2005. ~ day of ,2005. City Recorder Mayor Ordinance - 3 L:\CMO\2005 Council Agendas\M050523\S0505235-attA.doc CITY OF EUGENE INTER-DEPARTMENTAL MEMORANDUM CITY ATTORNEY - CIVIL DEPARTMENT To: Mayor and Council Date: May 17, 2005 Subject: Scope of Statutory Preemption of Cities' Prohibition of Smoking in New Areas BACKGRO'UND On May 9, 2005, the Council held a public hearing on the proposed ordinance to prohibit smoking in all structures except those where smoking was lawful as of March 1, 2005, and the structure existed or construction had begun as of that date. At the public hearing, a citizen expressed his opinion that the ordinance is preempted by a state statute that limits local governments' authority to add new areas of prohibition after July 1, 2001. By ordinances adopted in September and November of 2000, the City generally prohibited smoking in all restaurants, bars and taverns - pri. or to July 1, 2001. However, the ordinances also provided that the City would not enforce the ordinances against persons who had commenced construction of an outdoor seating area by July 1, 2001 (with certain conditions). In addition, by administrative rule, the City clarified what areas would be considered to be "outdoors" even though they were attached in some way to a restaurant, bar or tavem. Council has recently questioned whether the administrative rule provides the level of protection of public health that Council had intended when it adopted the ordinance. ISSUE: Does the Oregon Indoor Clean Air Act preempt the proposed ordinance on the basis that the ordinance would prohibit smoking in places where smoking was allowed as of July l, 20017 ANSWER: No. DISCUSSION ORS 433.863, which is part of the Oregon Indoor Clean Air Act, provides in pertinent part: "A local government may not prohibit smoking in any areas listed in ORS 433.850(2) unless the local government prohibition was passed before July 1, 2001 ." The "areas" listed in ORS 433.850(2) include (among others) restaurants, bars and taverns posted as off-limits to minors. Mayor and Council May 17, 2005 Page 2 The apparent intent of the preemption in ORS 433.863 is to "grandfather" smoking in certain types of businesses where smoking was allowed as of July 1, 2001. The City clearly did prohibit smoking in those areas - i.e., all restaurants, bars and taverns - as of that date. The proposed ordinance would not extend the smoking prohibition to any new class of business listed in ORS 433.850(2). Admittedly, the City's current administrative rule, adopted in January 2002, allows smoking in certain spaces that comply with the ventilation standards in the rule. Under the proposed ordinance, smoking will be prohibited in newly-constructed areas meeting those same standards. For at least two reasons, we conclude that this change would not violate ORS 433.863. First, as described above, in our opinion the "outdoor" spaces where smoking is now permitted do not constitute "areas" within the meaning of the statute's "grandfather" provision. Smoking is, and has been, generally prohibited in all those areas; the proposed ordinance merely defines what spaces are included in those areas. Second, even if not-yet-built "outdoor" smoking areas could be considered new "areas" under the statute, they do not qualify for preemption of local regulation under the statutory "grandfather" provision, because smoking was not allowed in those places as of July 1, 2001. For the foregoing repons, our opinion is that proposed EC 6.232 would not be preempted by ORS 433.863. HARRANG LONG GARY RUDNICK P.C. - CITY ATTORNEYS Jer~(~e Lidz \ JL:abm