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8.2 Prohibiting Smoking in Public Places CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE 1/12/2009 TIME 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: APPROVED FOR NO: 8 AGENDA: CITY MANAGER'S OFFICE ITEM NO. 2 BY: Page 1 BY: Jason A. Gage, City Manager ITEM: Ordinance No. 09-10481 An ordinance prohibiting smoking in public places and places of employment within the City of Salina. BACKGROUND: In early 2008, the Salina Area Tobacco Use Prevention Coalition (SATUPC) provided information regarding the negative health impacts of secondhand smoke and asked the City Commission to consider a broad reaching, community-wide, clean indoor air ordinance. This issue was later discussed and identified by the City Commission for inclusion in the 2009 Strategic Plan. As a result, Staff attached is a clean indoor air ordinance for your consideration. In May of 2002, the City Commission approved Kansas' first ordinance restricting smoking in certain public places (Salina Code Chapter 30.5, "Public Health). This ordinance specifically restricts smoking in restaurants, with certain exceptions. Since that time, numerous states across the country, at least 26 Kansas communities and 2 Kansas counties have adopted broader reaching ordinances that restrict smoking both in most indoor places where the public is permitted and employment occurs. The list of Kansas cities includes, but is not limited to: Garden City, Hesston, Lawrence, Leawood, Lenexa, Manhattan, Newton and Wichita. Components of the proposed ordinance were comprised of similar sections from other Kansas cities. Attached is a matrix of these communities as provided by the SATUPC. This matrix includes those public areas included in the respective community's ordinance provisions, as well as specific exceptions. The purpose of these ordinances is to promote public health by decreasing citizens' exposure to secondhand smoke and to create a smoke free environment for workers. In the last few years, numerous health studies have concluded that secondhand smoke is harmful to those who do not smoke and can cause premature death. While the negative health impacts of secondhand smoke were once highly debated, research has now validated them as a foregone conclusion. Much of this information was provided to you by the SATUPC in early 2008. The purpose of the proposed ordinance is the same. Basic Provisions The proposed ordinance prohibits smoking in all enclosed public places. These include nearly all areas within any building in which the public or employee would be expected to occupy, except personal residences. Some other basic applications include: all common spaces in buildings including lobbies, hallways and break rooms all City-owned buildings and vehicles all buildings of other political subdivisions when public meetings are occurring public transportation facilities, including vehicles all restaurants, bars, bingo parlors, bowling alleys private clubs and fraternal organizations, when used as a public place Other proposed ordinance provisions include: CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE 1/12/2009 TIME 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: APPROVED FOR NO: 8 AGENDA: CITY MANAGER'S OFFICE ITEM NO. 2 BY: Page 2 BY: Jason A. Gage, City Manager smoking is not allowed within 20 feet outside a building's main entrance smoking is allowable in outdoor eating areas (not fully enclosed), even near an access to the building building proprietors have responsibility to restrict smoking, shall have prescribed signage, shall properly communicate requirement to employees and shall remove ashtrays and related paraphernalia Exceptions / Alternatives Staff has not recommended any exceptions to date. However, you will notice from the Kansas cities matrix that some communities have either excluded certain uses from their ordinance or specifically listed them as exceptions. Some of these exceptions include: bars, gaming facilities, retail tobacco stores, private clubs, a percentage of hotel rooms, bowling alleys and bingo parlors. If it is the intent of the City Commission to add any exceptions to the proposed ordinance, Staff can add these for second reading. Enforcement Provisions Either a smoker or building proprietor can be held responsible for not following the provisions of the proposed ordinance. Enforcement responsibility will default to the Police Department, as it does with the current restaurant non-smoking ordinance. Proposed fines for violation of the ordinance include $50 for the first violation, $100 for a second violation and no less than $200 for subsequent violations. Effective Enforcement Date The ordinance includes an enforcement date of 90 days after the date of the adoption. This timeframe is intended to provide adequate opportunity for public education and transition by building proprietors to the new requirements. Timeline for Policv Consideration The proposed timeline for policy consideration is as follows: January 12th January 15th January 20th January 26th Consider ordinance on first reading First public forum to answer questions and obtain citizen input (6:30 pm) Second forum to answer questions and obtain citizen input (6:30 pm) Consider ordinance on second and final reading This is a very, very significant public policy issue. The aggressive timeline for ordinance consideration is intended to provide an adequate opportunity for the public to respond either to an action to "approve" or "deny" the ordinance through use of those initiative and referendum rights granted by State law. With this in mind, it is also intended to afford the public with the use of the upcoming general election in April. Please note that due to this timeline, public input opportunities are limited. As a result, staff is highly recommending two public forums in order to allow the public to have an adequate opportunity to CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE 1/12/2009 TIME 4:00 P.M. AGENDA SECTION ORIGINATING DEPARTMENT: APPROVED FOR NO: 8 AGENDA: CITY MANAGER'S OFFICE ITEM NO. 2 BY: Page 3 BY: Jason A. Gage, City Manager respond to the proposed ordinance content once it is made available to them. This input will then be forwarded to the City Commission for consideration at second reading. The City of Lawrence's clean indoor air ordinance was legally challenged and eventually reviewed by the Kansas Supreme Court. They ruled that this action was within the legal authority of Lawrence and other municipalities. Our proposed ordinance has been prepared by the City's legal counsel with these legal implications in mind. FISCAL NOTE: No funding is required for this item at this time, though it is presumed that public education and enforcement may require an insignificant amount of funding in the future. RECOMMENDED ACTION: City Commission alternatives include the following: 1) Approve Ordinance No. 09-10481 on first reading as proposed; 2) Approve Ordinance No. 09-10481 on first reading, with requested amendment to be included for second reading; or 3) Do not approve Ordinance No. 09-10481 at this time Attachments: Kansas Local Clean Indoor Air Ordinances Matrix Saline Code Chapter 30.5 Ordinance No. 09-10481 - source reference version Ordinance No. 09-10481 I!llil ~uQ)B",$ ~;.lii~~l ~ '5. 15 ~ .e ~ ~ ~HPH ~~ ~ ~ 13 ~ .c ~ ~ ~ e f ~ ~~~ ~ ~ c .~ .~ III I/) i < ~ o ~~ ~~ -g g~ ; ]~ ~ ~~ ~C3 I~ 8 III III l!! 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'fi~ Ii ~ ~ ~. ~ .~5 t~ ~~ I/) 8 UH- ~ ~ ~ ~~~ :: .. lL: ti: o & M -~ ~8 2006 U.S. Census Population Kansas 2,764,075 Cities that have passed CIA ordinaces Abilene 6,444 Bel aire 6,653 Concordia 5,281 Derby 21 ,101 Fairway 3,833 Garden City 27,175 Hesston 3,656 Hutchinson 41,085 Lawrence 88,605 Dodge City 25,568 Leawood 30,702 Lenexa 44,520 Lyons 3,489 Maize 2,042 Mission Woods 159 Newton 18,093 North Newton 1 ,567 Olathe 114,662 Ottawa 12,792 Overland Park 166,722 Parsons 11 ,237 Prairie Village 21,414 Roeland Park 6,954 Salina 46,140 Shawnee 59,252 Walton 290 Westwood 1 ,478 Wichita 354,617 Total Cities wi CIA Ordinances 1 ,125,531 Percent of KS POP. w/CIA 40.720/0 -II CHAPTER 30.5. PUBLIC HEAL TH1 II - ARTICLE I. SMOKING IN RESTAURANTS Sec. 30.5-1. Public policy. It shall be the public policy of the city to promote the health and welfare of its citizens and the traveling public by increasing substantially the opportunity to enjoy public dining without ~e health hazard posed by second-hand smoke. . (Ord. No. 02-10077, ~ 2, 5-6..02) Sec. 30.5-2. Definitions. For the purpose of this article, the following words and terms as used herein are defined to mean the following: Accessory bar means a place within a restaurant for the incidental service of alcoholic beverages and associated snacks, appetizers, and other products for consumption on the premises. Full restaurant food servic~~hall not be available in an accessory bar. Bingo hall means any room, hall, building, enclosure or. outdoor area used for the management, operation. or conduct of a game of bingo by any nonprofit organization holding a license to manage, op~rate or conduct games of bingo pursuant to Kansas law and in which food service for consuInption on the premises is incidental to the primary activity of the establishment. Bowling center/alfey means a place of business open to the public. which offers the use of not less than twelve (12) full scale bowling lanes that are each equipped with operable automatic pin setting apparatus and in which food service for. consumption on the premises is incidental to' the primary activity of the establishment. Class A club means a premises so licensed by the State of Kansas which is owned or leased by a __ corporation, partnership, business trust or association and which is operated thereby as a bona fide nonprofit social, fraternal or war veterans' club, as determined by the director, for the exclusive use of the corporate .stockho1der~, partners, trust beneficiaries or associates (referred to as members) and their families and guests accompanying them. Class B club means a premises so licensed by the State of Kansas operated for profit by a corporation, partnership or individual, to which members of such club may resort for the consumption of food or alcoholic beverages and for entertaimnent. Drinking establishment means premises so licensed by the State of Kansas which may be open to the general public, where alcoholic liquor by the individual drink is sold. Hotel/motel non-retail dining area means that area in a hotel or motel designated for serving and consumption of non-retail "complementary" food or beverages served by the hotel or motel to those persons renting a hotel or motel room. Licensed club means a class A or class B club with a valid license issued by the State of Kansas. ] Charter references: Smoking areas designated, ~ K.S.A. 2]-4010; smoking in public places, ~ K.S.A. 21-4013. - 415- Other person in charge means the agent of the proprietor authorized to perform administrative direction to, and general supervision of, the activities within a restaurant at any given time. Physically separated means separated from the smoke-free restaurant area by co'ntinu9us floor-to- ceiling walls which are interrupted only by doors which are continuously closed other than when a person is actively entering or exiting the smoke-free area. Private dining or banquet room means an entire restaurant, room or hall used for a private social function and for which seating arrangements are in control of the sponsor of the function and not the' proprietor or person in charge of the room or hall. Proprietor means the "party, regardless "of' whether or not the party is owner or ,lessee of the restaurant, who ultimately controls, governs, or directs the activities within the restaurant. The term does not mean the owner of the property, unless the owner ultimately controls, governs, or directs the activities ,within the restaurant. The term proprietor may apply to a corporation, partnership or liniited liability company as well as to an individual. ' Recreational facility means a place of business open to the ',public for the primary ,purpose of offering for use game tables or other mechanical forms. of entertaimnent ,or competition and in which food service for consumption on the premises-is incidental to the primary activity ,of the establishment. Restaurant ~eans a building, structure, enclosure, or "any part of a building, structure, or enclosure with table, booth, or counter seating for eleven (11) or more persons and used as, maintained as, advertised. as; or held out to be an operation which prepares, serves or otherwise provides for sale of fc,od and beverages for consumption on the premises. Separate designated smoking area means an indoor area where smoking is allowed, physically separated from the required smoke-free restaurant areas, and which includes physical separation and appropriate ventilation so that smoke from those areas does not drift, permeate, or re--:-circulate into any smoke-free restaurant areas. Smoking means the: (1) Carrying or placing of a lighted cigarette, lighted cigar, or lighted pipe or any other lighted smoking equipment in one's mouth for the purpose of inhaling and exhaling smoke; (2) Placing of a lighted cigarette, lighted cigar, or lighted pipe or any other lighted smoking equipment in an ashtray or other receptacle and allowing smoke to diffuse in the air; or (3) Carrying or placing of a lighted cigarette, lighted cigar, or lighted pipe or any other lighted smoking' equipment in one's hands or any appendage or devices and allowing smoke to diffuse in the air. (Ord. No. 02~ 10077, ~ 2, 5-6-02) Sec. 30.5-3. Regulation of smoking. Smoking shall not be permitted in a restaurant, except as follows: (1) Outdoor or sidewalk seating. Smoking may be permitted in the outdoor or sidewalk seating portions of a restaurant if the outdoor or sidewalk seating area and the indoor smoke-free restaurant area are physically separated. - 416- 'r' i i (~"" " \"". (2) Time of day exception. The provisions of this ordinance shall not. apply to a restaurant during that time between 9:00 p.m. and 5:00 a.m. During that time, a proprietor of a restaurant may designate a smoking area in accordance with K.S.A. 21-4009 et seq. (Ord. No. 02-10077, ~ 2, 5-6-02) Sec. 30.5-4. Restaurant located in a larger facility. When a restaurant is located within. a facility larger than the area used for the restaurant, no person shall smoke in the entire facility unless the proprietor' or other person in charge of the facility has desigriated a smoking area which qualifies as a separate designated smoking area as defined by this ordinance. Restaurants located within a larger facility include, without limitation, Iestaurants in truck stops, hotels, retail establishments, and convention or meeting facilities. (Ord. No. 02..10077, ~ 2, 5-6-02) Sec. 30.5-5. Requirements relating to physical separation and ventilation. The city building official is authorized to make reasonable requirements and determinations consistent' with the building code and this ordinance with regard to physical separation and appropriate ventilation . in any case where those requirements need to be .applied to smoke-free restaurant areas adjacent or .connected to areas in which smoking is permitted. (Ord. No. 02..10077, ~ 2, 5-6-02) Sec. 30.5-6. Exemptions. The. prohibition ,,:gainst smoking in restaurants set forth in this ordinance shall not apply to a: / (_ (1) Licensed club; (2) Bowling center/alley; (3) Bingo hall; ( 4) Recreational facility; (5) Hotel/motel non-retail dining area; (6) Private dining or banquet room; or which, if located within a facility in which a restaurant is also located, must meet "the separation and ventilation requirements of a separate designated smoking area. (Ord. No. 02-10077, ~ Z, 5-6-02) Sec. 30-5.7. Waiver for certain licensed drinking establishments. (a) Licensed drinking establishments which derive from sales of food for consumption on the licensed drinking establishment premises not in excess of thirty (30) of its gross receipts from all sales of food and beverages on such premises in a twelve-month period shall be eligible for a waiver from the requirements of this. chapter. In order to obtain such a waiver, application s.hall be made by the holder of the drinking establishment license verifying by sworn affidavit that the drinking establishment falls below the maximum food sales ratio. The city may, at its discretion and from time to time, require from the drinking establishment licensee copie.s of reports filed by the licensee with the Kansas Department of Alcohol and Beverage Control in order to verify licensee's food sales ra ti o. -417- (b) Drinking establishment licensees seeking to open a drinking establishment or substantially change operation of an existing establishment so that it may operate under the waiver for qualifying licensed drinking establishments shall provide a sworn affidavit and agreement which shall.state that the licensee's business plan projections indicate sales of food for consumption on the licensed drinking. establishment premises shall not exceed thirty (30) ,percent of its gross receipts from all sales of food and beverages on such premises. (Ord. No. 02-10077, 9 2, 5..6-02) Sec. 30.5-8. Responsibility of proprietors. The proprietor or other person in charge of a place governed by this. article shall: (1) Meet all signage requirements; (2) Advise any person smoking in an area where smoking is prohibited that he or she is smoking in violation of city ordinance; . (3) Advise any person who smokes in an area where smoking is prohibited by this ordinance to refrain from smoking and, if the person does not refrain from smoking after being asked' to do so, shall ask the person to leav~. If the offending person refuses to leave, the proprietor shall handle the situation consistent with lawful methods for handling persons acting in a disorderly manner or as a trespasser; (4) Remove all ashtrays and other smoking paraphernalia from areas where smoking is prohibited; and . (5) In the case of a restaurant located within a facility larger than the area used for'the restaurant, comply with all physical separation and ventilation standards to prevent the drifting, permeation, or re-circulation of smoke from any separate designated smoking area into the adjacent or connected areas of the restaurant. (Ord. No. 02-10077,9 2, 5-6-02) l '" . Sec. 30.5~9.. Penalties. Violation of the prohibition against smoking in a restaurant set forth in this article shall be classified as an ordinance cigarette or tobacco infraction and shall be punishable by a fine in the amount established by state law as the fine for a cigarette or tobacco infraction (currently twenty-five dollars e$~~.OO)). Violation of the responsibilities of proprietors and other persons in charge of a place governed by this article shall be punish~ble under the general penalty provisions of Salina Code Section 1-10. (Ord. No. 02-10077, 9 2,5-6-02) Sec. 30.5-10. Administrative re.gulations. Rules and regulations pertaining to signage, extensions of time ~or compliance-related construction, or other matters necessary for the implementation of this article shall be adopted by resolution of the governing body. (Ord. No. 02-10077, ~ 2, 5-6-02) - 418- II Next paf:e number is 425.