HomeMy WebLinkAboutItem C: Standards for Outdoor Smoking Areas
ECC
UGENE ITY OUNCIL
AIS
GENDA TEM UMMARY
Work Session: Standards for Outdoor Smoking Areas
Meeting Date: September 12, 2005 Agenda Item Number: C
Department: Planning and Development Staff Contact: Keli Osborn
www.ci.eugene.or.us Contact Telephone Number: 682-5288
ISSUE STATEMENT
Existing standards for designated outdoor smoking areas may thwart the intent of Eugene’s no-smoking
ordinance by allowing for too much enclosure. The Mayor and Council have discussed different options,
and have scheduled this work session before a public hearing later this month. Among the key issues are
which types of businesses may establish smoking areas, how enclosed these smoking areas might be,
and whether existing smoking areas should be granted legal, nonconforming status.
BACKGROUND
The City Council took action in February 2005 to adopt an ordinance extending the no-smoking area
around entrances and openings to publicly owned buildings from 10 to 25 feet.
On May 23, 2005, the council held a work session on standards for outdoor smoking areas. The council
that same day also adopted a “moratorium” on newly permitted outdoor smoking areas; this prohibition
on smoking in new outdoor smoking areas expires at the end of October 2005.
In the May work session, the Mayor and City Council asked that a public hearing and action be
scheduled ahead of the October 30 expiration for the prohibition on new smoking areas. These sessions
would focus on a proposed ordinance with new standards. The public hearing is set for September 26;
the action item is on the September 28 agenda.
At this time, the City has two pending building permit applications for new outdoor smoking areas. Both
of the proposed areas would be subject to the “moratorium.” If these or others are issued before October
30, they will include a condition that no smoking may occur in a newly constructed area until the
prohibition is lifted and the establishment shows compliance with standards.
To meet public notice deadlines for the September 26 public hearing, the proposed ordinance has been
posted to the City’s website. It also is included in this packet. Its provisions reflect the discussion and
direction previously provided by the council. However, the council did not reach consensus on all issues
in the May 2005 work session. The council may wish to revise this proposed ordinance before the
public hearing -- or wait for public input and make changes before adopting standards later this month.
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RELATED CITY POLICIES
The council has adopted goals for sustainable community development and a healthy natural and built
environment. Allowing outdoor smoking areas at public places and places of employment raises several
policy questions:
Where may outdoor smoking areas be located?
The City Code and administrative rule do not specify which businesses may establish outdoor smoking
areas. In the May work session, several councilors expressed support for restricting smoking areas to
food- and beverage-service establishments, with additional suggestions that cigarette retailers and bingo
parlors also be allowed to set up outdoor smoking areas. The Oregon Indoor Clean Air Act adopted by
the Oregon Legislature in 2001, exempts bars, taverns, cocktail lounges and bingo parlors from the
smoking ban.
The draft ordinance proposes that outdoor smoking areas only be allowed at bars, taverns and
restaurants. The draft ordinance also proposes that smoking in outdoor smoking areas not be allowed
within 10 feet of building entrances, windows and other openings.
What types of walls, coverings, screens and enclosures are acceptable?
The City’s administrative rule allows outdoor smoking areas in which at least 25 percent of the wall
surfaces are open to outside ventilation and which are at least 10 feet from building entrances. The result
is a variety of settings including open patios, covered outdoor areas and partially enclosed smoking
rooms that are separate from other portions of the business.
During the council’s May work session, some expressed support for more restrictive standards –
requiring a range of 50 to 100 percent of wall surfaces to be open to the outside air. Regulations in some
central Ohio jurisdictions, including Upper Arlington, allow smoking in public places only on outdoor
patios. These are defined as areas at least 10 feet from building openings that, if covered by a roof, have
no more than two walls or side coverings. Such patios without a roof may have all sides enclosed.
The draft ordinance proposes that outdoor smoking areas be enclosed by no more than 50 percent of
walls or side coverings, if a roof is provided, and does not restrict the side enclosures if there is no roof.
The ordinance includes a percentage, rather than number of walls, because of the wide variety of
outdoor smoking areas that have been and may yet be established.
Should new standards apply to existing outdoor smoking areas or should they be granted legal,
nonconforming status?
Whether to allow existing outdoor smoking areas to stay the same or force them to comply with new
standards is a tough issue. Nonconforming uses and structures pose challenges to orderly development,
and to code administration and enforcement. An argument favoring legal, nonconforming status for
existing outdoor smoking areas is that owners “played by the rules” and should not be penalized because
standards change. Arguments against are that existing outdoor smoking areas would possess a perceived
advantage that would not be available to new outdoor smoking areas, and that their employees and
patrons could not enjoy the health benefits of new, stricter standards. During the May 23 work session,
the Mayor and City Council did not reach consensus on whether to grant legal, nonconforming status to
existing outdoor smoking areas.
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The draft ordinance proposes that existing outdoor smoking areas that comply with the 25/75 rule in
place since 2001 be required to comply with stricter openness standards within 12 months from the
effective date of a new ordinance. This period will provide owners and managers time to prepare plans,
obtain necessary permits and undertake the construction needed to meet the new standards. This
component is likely to generate controversy because of the potential impacts on existing establishments;
not all may be able to comply with stricter standards, depending on their layout and the space available.
The council ultimately may choose to modify this provision and instead provide for some kind of legal,
nonconforming status to existing outdoor smoking areas. If the council chooses to “grandfather in”
existing outdoor smoking areas, one option would be to borrow concepts from Eugene Code Chapter 9-
Land Use (EC 9.1200-1240). For instance, an outdoor smoking area could not be structurally altered in
a way that increases its nonconformity with openness and other standards and extended discontinuation
of use as a smoking area could result in loss of the legal, nonconforming status.
Should standards address ventilation, air circulation or indoor air quality?
During the May work session, there was some discussion about looking at standards that consider air
circulation. As noted in materials previously provided to the Mayor and City Council, British Columbia
and other jurisdictions across the continent have allowed installation of separately ventilated,
structurally separated rooms for smoking as a compromise on a total smoking ban. But, according to an
August 9, 2005, article in the Vancouver Sun, the Vancouver Coastal Health Authority is preparing a
report for the City of Vancouver on whether these rooms should be removed. They are looking at the
impact of eliminating not only indoor smoking rooms, but also restricting or banning smoking on bar
and restaurant patios and near the entrances of buildings.
Aside from the mechanical systems some jurisdictions allow, City staff has been unable to find other air
circulation standards that are clear, objective, and relatively easy to administer. According to the
research assembled by Multnomah County, localized ventilation/exhaust systems can be effective in
removing significant amounts of tobacco smoke, but removing smoke itself does not eliminate all of its
potentially harmful byproducts. Such localized systems also require consistent smoker cooperation,
such as placing cigarettes in and exhaling smoke toward special ashtrays. State regulations provide
restrictive guidelines for ventilated employee lounges, but employees cannot be required to enter such
areas. As this could not be guaranteed for outdoor smoking areas at Eugene’s bars and taverns, these
guidelines do not appear to meet the council’s objectives.
Installing a ventilation or circulation system may suggest that health risks have been reduced. While a
well-ventilated area might be more comfortable for some, there aren’t agreed-upon standards for safe
levels of tobacco smoke exposure. The American Society of Heating, Refrigeration and Air
Conditioning Engineers (ASHRAE) has revised its standards for tobacco smoke and ventilation to
reflect its position that there is no effective ventilation system that will entirely mitigate the health risks
of tobacco smoke exposure.
Based on these findings, the draft ordinance does not propose air circulation standards. It also does not
provide a method for bars and taverns to erect enclosed and ventilated smoking rooms, or suggest that
employees wear special equipment or have an opportunity to exempt their employer from compliance.
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COUNCIL OPTIONS
The council has the following options:
1. Proceed with the September 26 public hearing on the proposed ordinance as drafted.
2. Proceed with the September 26 public hearing and direct revisions to the proposed ordinance.
3. Direct revisions to the proposed ordinance and set a different hearing date.
4. Leave the existing no-smoking ordinance as is, and direct the City Manager to consider revisions to
the administrative rule for outdoor smoking area standards.
5. Let current code and administrative rule provisions continue to guide City policy for outdoor
smoking areas.
CITY MANAGER’S RECOMMENDATION
The City Manager recommends that the council proceed with the September 26 hearing and invite
testimony on the proposed ordinance in this packet (Option 1). Following the hearing, the council could
then provide direction on revisions to the proposed ordinance, with its return at the September 28
meeting for adoption.
SUGGESTED MOTION
Not applicable.
ATTACHMENTS
A. Existing Tobacco Products and Smoking Ordinance
B. Existing Smoking Prohibited Administrative Rule
C. Draft Ordinance Concerning Smoking Areas
D. Alternate Language for Legal Nonconforming Situations
E. “Environmental Tobacco Smoke,” Executive Summary, Position Document, Approved by ASHRAE
Board of Directors, June 30, 2005 (Full report available in Council Office)
F. Excerpts related to ventilation from Oregon Administrative Rules
FOR MORE INFORMATION
Staff Contact: Keli Osborn
Telephone: 682-5288
Staff E-Mail: keli.m.osborn@ci.eugene.or.us
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ATTACHMENT A
ATTACHMENT A
ATTACHMENT A
ATTACHMENT A
ATTACHMENT A
ATTACHMENT B
ATTACHMENT C
ORDINANCE NO. ________
AN ORDINANCE CONCERNING SMOKING AREAS; AMENDING
SECTIONS 6.225, 6.230, 6.235, AND 6.240 OF THE EUGENE CODE,
1971; REPEALING SECTION 6.232 OF THAT CODE; AND ADDING
SECTION 6.245 TO THAT CODE.
The City of Eugene does ordain as follows:
Section 1
. Section 6.225 of the Eugene Code, 1971, is amended by amending
the introductory clause, and the definition for “Bar;” and adding a definition for “Outdoor
smoking area,” to provide:
6.225 Definitions
. For the purposes of sections 6.230 to [6.240] 6.245 of this
code, the following words and phrases mean:
Bar
or tavern. 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.
Outdoor Smoking Area. Any portion of a bar, tavern, or restaurant,
open to outside air at all times, that either:
(a) Has no roof or other overhead covering at all, regardless of the
percentage of walls or sides that may be closed; or
(b) Is enclosed by no more than 50 percent by walls or other side
coverings if it is also enclosed by a roof or other overhead
covering. Walls and side coverings within ten feet of any portion
of an outdoor smoking area shall be considered as walls or side
coverings enclosing the space.
Section 2
. Subsection (2)(o) of Section 6.230 of the Eugene Code, 1971, is
amended to provide:
6.230 Smoking 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:
(o) Within a reasonable distance, of not less than ten feet, of any
entrance, operable window, or other opening to any enclosed
area where smoking is prohibited.
Section 3
. Section 6.232 of the Eugene Code, 1971, is repealed.
[6.232 Smoking 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 4
. Subsection (1) of Section 6.235 of the Eugene Code, 1971, is
amended to provide:
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. In an
outdoor smoking area, a sign shall be posted to inform patrons that smoking
is prohibited within 10 feet of the door between the outdoor smoking area
and the interior portion of the bar, tavern, or restaurant. 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 5
. Subsection (e) of Section 6.240 of the Eugene Code, 1971, is
amended to provide:
6.240 Smoking Prohibited - Exceptions
. The restrictions set forth in sections
6.230 and 6.235 of this code do not apply to:
(e)
[Designated smoking entrances.] Outdoor smoking areas.
Section 6
. Section 6.245 of the Eugene Code, 1971, is added to provide:
6.245 Legal Nonconforming Situations. An outdoor smoking area that was
legally established but that no longer complies with the standards in
sections 6.230 to 6.240 of this code shall be considered a legal
nonconforming use for a period of one year from the effective date of
this ordinance. During this period, no nonconforming outdoor smoking
area may be expanded, intensified or moved, nor may it be altered in a
manner which increases its nonconformity. No later than one year from
the effective date of this ordinance, all outdoor smoking areas must
comply with the standards in sections 6.230 to 6.240 of this code.
Section 7.
The City Recorder, at the request of, or with the concurrence of the
City Attorney, is authorized to administratively correct any reference errors contained
Ordinance - 2
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herein or in other provisions of the Eugene Code, 1971, 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 D
Alternative Language for Legal Nonconforming Situations
Legal Nonconforming Situations
6.245 . An outdoor smoking area that was legally established
but that no longer complies with the standards in this code is considered a legal nonconforming
use. Change of ownership or management of an outdoor smoking area shall not affect its legal
nonconforming status. The continuation of an outdoor smoking area is allowed, subject to the
following:
(1) If use of the outdoor smoking area is discontinued for a period of 365 days, it
shall lose its legal nonconforming status and shall thereafter comply with the
provisions of this code.
(2) No outdoor smoking area may be may be expanded or intensified.
(3) An outdoor smoking area that was legally established may be altered to bring the
structure or area closer to compliance with existing regulations, but shall not be
altered in a manner that increases its nonconformity.
(4) An outdoor smoking area that is moved loses its legal nonconforming status and
must conform to existing regulations.
(5) An outdoor smoking area that did not comply with all applicable standards at
the time of establishment shall not have legal nonconforming status.
(6) An outdoor smoking area associated with a public place or place of employment
for which enforcement is sustained under Section 6.235 of this code shall not
have legal nonconforming status.
ATTACHMENT E
Executive Summary
This position document has been written to provide the membership of the American
Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and other
interested persons with information on the health consequences of exposure of
nonsmokers to tobacco smoke in indoor environments, and on the implications of this
knowledge for the design, installation and operation of heating, ventilating, and air-
conditioning (HVAC) systems. ASHRAE’s sole objective is to advance the arts and
sciences of heating, refrigeration, air conditioning and ventilation, and their allied arts
and sciences and related human factors, for the benefit of the public. Therefore, the health
effects of indoor exposure to emissions from cigarettes, cigars, pipes, and other tobacco
products have long been relevant to ASHRAE.
For more than three decades, researchers have investigated the health and irritant effects
among non-smokers exposed to tobacco smoke in indoor environments. The
preponderance of credible evidence links passive smoking to specific diseases and other
adverse health effects in people. A number of national and global review groups and
agencies have concluded that exposure of nonsmokers to tobacco smoke causes adverse
effects to human health. No cognizant authorities have identified an acceptable level of
environmental tobacco smoke (ETS) exposure, nor is there any expectation that further
research will identify such a level.
International experience has been gained over several decades with using various
strategies to reduce ETS exposure, including separation of smokers from nonsmokers,
ventilation, air cleaning and filtration, and smoking bans. Only the last provides the
lowest achievable exposures for nonsmokers and is the only effective control method
recognized by cognizant authorities (see Findings of Cognizant Authorities). At the time
of this writing, several nations, eleven states in the U.S. and hundreds of municipalities
and other jurisdictions have banned tobacco smoking completely in all public buildings
and workspaces. The U.S. government has banned smoking in its workplaces. Experience
with such bans documents that they can be effective, practically eliminating ETS
exposure of non-smokers. While exposure is decreasing internationally because of these
smoking bans in public and private buildings, and a decrease in the prevalence of
smoking, substantial portions of the population are still regularly exposed in workplaces,
homes and public places, such as entertainment venues.
ASHRAE concludes that:
?
It is the consensus of the medical community and its cognizant authorities that
ETS is a health risk, causing lung cancer and heart disease in adults, and
exacerbation of asthma, lower respiratory illnesses and other adverse effects on
the respiratory health of children.
?
At present, the only means of effectively eliminating health risk associated with
indoor exposure is to ban smoking activity.
?
Although complete separation and isolation of smoking rooms can control ETS
exposure in non-smoking spaces in the same building, adverse health effects for
the occupants of the smoking room cannot be controlled by ventilation.
?
No other engineering approaches, including current and advanced dilution
ventilation or air cleaning technologies, have been demonstrated or should be
relied upon to control health risks from ETS exposure in spaces where smoking
occurs. Some engineering measures may reduce that exposure and the
corresponding risk to some degree while also addressing to some extent the
comfort issues of odor and some forms of irritation.
?
An increasing number of local and national governments, as well as many private
building owners, are adopting and implementing bans on indoor smoking.
?
At a minimum, ASHRAE members must abide by local regulations and building
codes and stay aware of changes in areas where they practice, and should educate
and inform their clients of the substantial limitations and the available benefits of
engineering controls.
?
Because of ASHRAE’s mission to act for the benefit of the public, it encourages
elimination of smoking in the indoor environment as the optimal way to minimize
ETS exposure.
“Environmental Tobacco Smoke,” Executive Summary, Position Document, Approved by ASHRAE Board
of Directors, June 30, 2005
ATTACHMENT F
Excerpts related to ventilation from Oregon Administrative Rules filed through August 15, 2005
DEPARTMENT OF HUMAN SERVICES, PUBLIC HEALTH -- DIVISION 15
IMPLEMENTATION OF THE OREGON CLEAN AIR ACT -- PROHIBITION OF TOBACCO
SMOKING IN PUBLIC PLACES AND WORKPLACES
333-015-0025
Authority and Purpose
(1) These rules are adopted pursuant to the authority granted the Oregon Department of Human
Services, Health Services (formerly the Oregon Health Division) in 433.835 through 433.875
and 433.990(4) concerning smoke-free places of employment and public places.
(2) The purpose of the Oregon Indoor Clean Air Act is to reduce the health hazard of persons in
confined places caused by inhaling smoke from tobacco products.
(Stat. Auth.: ORS 433
Stats. Implemented: ORS 433
Hist.: HD 10-1983, f. & ef. 7-1-83; OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02;
OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH
27-2004, f. & cert. ef. 8-19-04)
333-015-0035
General Provision
(1) No person shall smoke or carry any lighted smoking instrument in a public place except in
those areas that are not required to be smokefree pursuant to ORS 433.850(2) and 333-015-
0035(3)(a) through (f) of these rules.
(2) Employers shall provide a place of employment that is free of tobacco smoke for all
employees, except in those areas listed in ORS 433.850(2) and in 333-015-0035(3).
(3) The following areas are not required to be smokefree:
(g) Employee lounges designated by an employer for smoking if:
(A) The lounge is not accessible to minors;
(B) The air in the lounge is exhausted directly to the outside by an exhaust fan and not
recirculated to other parts of the building;
(C) The lounge is in compliance with ventilation standards and conditions set forth in OAR 333-
015-0050.
(D) The lounge is located in a nonwork area where no employee is required to enter as part of the
employee's work responsibilities. For purposes of this paragraph, "work responsibilities" does
not include custodial or maintenance work carried out in a lounge when it is unoccupied; and
(E) There are sufficient nonsmoking lounges to accommodate nonsmokers.
(4) Nothing in these rules shall prevent an employer in charge of a place of employment (PIC) or
a person in charge of a public place listed in OAR 333-015-0035(3) from designating the entire
place of employment or public place as smokefree.
(5) Nothing in ORS 433.835 through 433.875 or in these rules requires an employer to provide
an employee smoking lounge.
(Stat. Auth.: ORS 433
Stats. Implemented: ORS 433
Hist.: HD 10-1983, f. & ef. 7-1-83; OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02;
OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH
27-2004, f. & cert. ef. 8-19-04)
333-015-0050
Ventilation Standards
(1) Any employee smoking lounge provided by an employer as permitted under OAR 333-015-
0035(3)(g) must be enclosed and shall meet the following ventilation standards and conditions:
(a) Smoking lounge must have a negatively pressurized ventilation system that exhausts air to the
exterior of the building with smoke-tight ducts. Termination of ducts shall be more than 30 feet
from any air intake to any building; from any doors to any building; and from any window
capable of being opened in any building.
(b) Doors between the smoking lounge and other parts of the building must be solid and self-
closing.
(c) Building heating, ventilation and air conditioning (HVAC) system must be balanced to
prohibit any migration of smoke from the smoking room to other parts of the building.
(d) Smoking lounge ventilation system must operate at all times that the room is occupied.
(e) Smoking lounge must be clearly identified with signs as described in OAR 333-015-0040(3).
(2) Prior to permitting smoking in an employee lounge, an employer must obtain written
certification by an actively registered professional engineer (PE) that the design, installation and
performance of the ventilation system meet the standards described in these rules; and that all
conditions and standards described in OAR 333-015-0050(1)(a) through (e) are met. The
employer must keep the certification on the premises and must produce it for inspection at the
request of DHS-HS or the Local Public Health Authority (LPHA).
(Stat. Auth.: ORS 433
Stats. Implemented: ORS 433
Hist.: HD 10-1983, f. & ef. 7-1-83; OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02;
OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH
27-2004, f. & cert. ef. 8-19-04)