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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 02/17/2004 - FIRST READING OF ORDINANCE NO. 039, 2004, AMENDINGAGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL ITEM NUMBER: 37 DATE: February 17, 2004 STAFF: Steve Roy Greg Byrne SUBJECT First Reading of Ordinance No. 039, 2004, Amending Article III of Chapter 12 of the City Code Pertaining to the "Private Club" Exception to the Prohibition Against Smoking in Enclosed Public Places. RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. EXECUTIVE SUMMARY This Ordinance would amend Article III of Chapter 12 of the City Code, which generally prohibits smoking in enclosed public places, so as to clarify the private club exception to that prohibition against smoking. The change would require that private clubs be non-profit organizations owned and operated by their members for fraternal, social and similar purposes. BACKGROUND In December 2002, City Council adopted sweeping changes to Article III, Chapter 12 of the City Code which generally prohibit smoking in places of employment and in enclosed public places, including taverns and restaurants, but exclude certain public places such as retail tobacco stores and designated smoking areas in bingo facilities or bowling alleys. The definition of a "public place" is contained in Section 12-56 of the Code. That definition excludes "private clubs" except when functions are held at such clubs that are open to the public. That same section of the Code defines a private club as follows: Private club shall mean any establishment that has a defined membership and restricts admission to members of the club and their guests. Private club shall not include an establishment that is open to members of the general public upon payment of a nominal fee. A private club shall not be considered a public place except when it is the site of a meeting, event or activity that is open to the public. Questions have recently arisen as to whether the private club exception is intended to allow private clubs to be established, on a for-profit basis. If so, staff believes it may be very difficult to effectively enforce regulations which seek to restrict public admission to such clubs. (The City Manager's administrative regulations, which were enacted pursuant to Section 12-65(e) of the Code, February 17, 2004 -2- Item No. 37 attempt to address this concern by requiring private clubs to have a defined membership; limit admission to only card-bearing members and a limited number of invited guests; and charge a fee for membership that is sufficient in amount to defray the ongoing costs to providing services to members. However, these regulations may or may not be able to achieve their intended purpose). Also, staff is concerned that private, for-profit smoking clubs attached to existing taverns would, as a practical matter, serve as de facto designated smoking areas, which Council decided not to allow. Council gave direction under the Other Business segment of a recent Council meeting that the private club exception be administered so that all private clubs would be similar to those that existed at the time of the adoption of the smoking ordinance, such as the Elks Club and the Moose Lodge. Staff believes that the "common denominator" of these clubs is their non-profit status. Such an interpretation is also consistent with the state liquor laws, which use language very similar to the foregoing in defining the kinds of establishments that may be issued a “club” liquor license. Therefore, the City Manager responded to the Council direction by adding the following regulation in the administrative regulations: The establishment (private club) must be owned and operated by the members of the club solely for objects of a national, social, fraternal, patriotic, political, charitable, education or athletic nature and not for pecuniary gain. After the City Manager adopted this administrative regulation, Council heard from members of the public who were concerned that this limitation was too restrictive. Additionally, staff realized that the language in the regulation is probably inconsistent with the language of the Code itself, since the definition of private club in the Code states that any establishment may constitute a private club if it has a defined membership and restricts admission to members of the club and their guests, and the definition of "establishment" under the Code includes both for-profit and non-profit businesses. Therefore, the non-profit requirement has been eliminated from the administrative regulations pending Council’s decision whether to put that requirement into the Code. If Council believes that the appropriate course of action is for private clubs to be limited to non-profit organizations, then that should be accomplished through the proposed ordinance amendments. In addition to amending the definition of private club so as to incorporate the above-referenced limitation , the Ordinance would: • amend the definition of “place of employment” to ensure that private clubs, however they are defined, will be able to allow smoking and will not be precluded from doing so as “places of employment.” • add a requirement that all private clubs confine any smoke originating on their premises so that it does not escape into smoke free areas. (This would at least call for physical separation and independent ventilation, as required by the revised administrative regulations.) February 17, 2004 -3- Item No. 37 • add private clubs to the existing Code provision that requires the keeping of books and records and affords the City the right to inspect them, so that, if a question arises, a determination can be made as to whether an establishment qualifies as a private club. It should also be noted that the Ordinance does not "grandfather" existing private, for-profit clubs. If existing for-profit clubs could allow smoking but other ones could not, it would, in staff's view, give such existing clubs an unfair competitive advantage over proposed new clubs. It would also be inconsistent with the fact that no establishments were grandfathered when the overall smoking ban was adopted. In summary, Council has the following options in dealing with the private club issue: • Eliminate the private club exception, so that all private clubs, as well as establishments open to the public, would have to prohibit smoking. A different amendment to the smoking ordinance would be necessary to implement this alternative, since the Code presently exempts private clubs. • Limit the private club exception to non-profit establishments that are organized primarily for social, fraternal and other similar purposes. Adoption of the proposed Ordinance would accomplish this. This would permit organizations such as the Elks Club to continue to allow smoking but would prohibit private, for-profit smoking clubs. • Allow private, for-profit smoking clubs. This would not require an amendment to the ordinance. Instead, the City Manager would simply need to rescind the non- profit requirement that had been added to the administrative regulations. ORDINANCE NO. 039, 2004 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING ARTICLE III OF CHAPTER 12 OF THE CODE OF THE CITY OF FORT COLLINS PERTAINING TO THE "PRIVATE CLUB" EXCEPTION TO THE PROHIBITION AGAINST SMOKING IN ENCLOSED PUBLIC PLACES WHEREAS, on December 17, 2002, the City Council adopted Ordinance No. 181, 2002, appealing and re-enacting Article III of Chapter 12 of the City Code regarding smoking in public places and places of employment; and WHEREAS, by reason of the adoption of said ordinance, Section 12-59 of the City Code now prohibits smoking in all public places within the City, except as otherwise expressly permitted under said Article III; and WHEREAS, private clubs, as defined in Section 12-56 of the Code, do not constitute "public places" within the meaning of Section 12-59, except when such private clubs are used for meetings, events or activities that are open to the public; and WHEREAS, the definition of "place of employment" contained in Section 12-56 should be amended so that private clubs are not subject to the requirement contained in Section 12-60 which requires employers to provide a smoke-free workplace for its employees; and WHEREAS, questions have arisen with regard to the proper interpretation of the term "private club"; and WHEREAS, the City Council wishes to clarify said definition and to make other related amendments to Chapter 12, Article III to: (1) ensure that any smoke originating on the premises of private clubs does not enter any smoke-free areas in the City, and (2) allow City inspection of the books and records of private clubs, as well as the books and records of establishments that are public places. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the following definitions contained in Section 12-56 of the City Code are hereby amended so as to read in their entirety as follows: Place of employment shall mean any area under the control of a public or private employer that employees normally frequent or use during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and class rooms, employee cafeterias and hallways. Place of employment shall not include a private club or a private residence unless the residence is used as a child care, adult day care or health care facility. Private club shall mean anyan establishment that has ahaving a defined membership and restrictsrestricting admission to members of the club and their guests, which is owned and operated by the members of the club solely for objects of a national, social, fraternal, patriotic, political, charitable, education or athletic nature, and not for pecuniary gain. Private club shall not include an establishment that is open to members of the general public upon payment of a nominal fee. A private club shall not be considered a public place except when it is the site of a meeting, event or activity that is open to the public. Section 2. That Section 12-62 of the City Code is hereby amended so as to read in its entirety as follows: Sec. 12-62. Where smoking is not prohibited. (a) Notwithstanding any other provision of this Article to the contrary, the following areas shall be exempt from the smoking prohibition set forth in § 12-59: (1) Private clubs, provided that such clubs are designed, constructed and operated in such fashion as to effectively prevent smoke originating on their premises from entering any smoke-free area. Private residences, except when used as a child-care, adult day care or health care facility. (2) Up to twenty-five (25) percent of guest rooms in lodging establishments, including but not limited to bed and breakfasts, hotels, motels and inns. (3) Retail tobacco stores. (4) Those portions of an establishment used for private functions that are not open to the public, during the period of such private use. (5) Performance halls to the extent necessary to allow smoking by a performer as part of a stage production. (6) Outdoor places of employment. (7) Rooms used for psychological treatment of nicotine addiction by a licensed health care professional, and physically separate and independently ventilated rooms in a hospital, hospice or nursing home that are open to all residents as a smoking room and for no other purpose. (8) Buildings or properties under the control of the United States, the state, the county, or Poudre School District that have not been designated as smoke- free by the managing authority. (9) In a designated smoking area in a bingo facility or bowling alley operated in accordance with § 12-63; provided, however, that no such establishment shall be primarily devoted to the sale or service of alcohol beverages. (b) Notwithstanding any other provision of this Article, any owner, operator, manager or other person in control of any establishment or property not otherwise required to be smoke-free pursuant to this Article may declare such establishment or property entirely or partially smoke-free. Section 3. That Section 12-66 of the City Code is hereby amended to read as follows: Sec. 12-66. Inspection of books and records. The owner of each establishment operating as a private club or as an enclosed public place shall keep a complete set of books of account, invoices, copies of orders, shipping instructions, bills of lading, correspondence and all other records necessary to show fully the business transactions of such establishment, all of which records shall be available at all times during business hours for inspection and examination by the City Manager or his or her authorized representatives for use in determining whether an establishment constitutes a freestanding bar, attached bar, restaurant or other type of establishmenta private club, retail tobacco store, bingo facility, bowling alley or other establishment, in order to determine the applicability of the provisions of this Article to such establishment. The City Manager may require the owner of any such establishment to furnish such information as he or she considers necessary for such a determination, and may require that the owner of such establishment cause an audit to be made of such books of account and records on such occasions as he or she may consider necessary. Introduced and considered favorably on first reading and ordered published this 17th day of February, A.D. 2004, and to be presented for final passage on the 2nd day of March, A.D. 2004. Mayor ATTEST: City Clerk Passed and adopted on final reading this 2nd day of March, A.D. 2004. Mayor ATTEST: City Clerk