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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/17/2006 - SECOND READING OF ORDINANCE NO. 122, 2006, AMENDIN ITEM NUMBER: 33 AGENDA ITEM SUMMARY DATE: October 17, 2006 FORT COLLINS CITY COUNCIL STAFF: Beth Sowder Carrie Daggett SUBJECT Second Reading of Ordinance No. 122, 2006, Amending Article III of Chapter 12 of the Code of the City of Fort Collins to Conform to the Colorado Clean Indoor Act, and to Clarify Certain Provisions. RECOMMENDATION Staff recommends adoption of Option A of the Ordinance on Second Reading. EXECUTIVE SUMMARY The Ordinance was previously presented to Council for Second Reading on September 5th and September 19th. Staff has developed three versions of the Ordinance, which are being presented for Council consideration, based on input from the Council. Option A deals primarily with public health and is the most restrictive of the options. It would "grandfather" current tobacco businesses including their smoking lounges, but would limit future retail tobacco establishments to those that are primarily engaged in the sale of tobacco products. Lounge areas in those new establishments would be limited to a size that would be suitable for sampling of the products for sale, but not for use as lounge areas. Option B proposes a 'level playing field" for all tobacco businesses including existing and future businesses. Option B 1 also offers a"level playing field"but adds size limitations on smoking establishments and on smoking areas within those establishments. BACKGROUND Certain exceptions to the smoking restrictions found in the City Code are inconsistent with the requirements of the Colorado Clean Indoor Act, which was enacted in 2006. All versions of the Ordinance presented eliminate those exceptions. In addition,all versions of the Ordinance presented amend the restriction on placement of ashtrays in nonsmoking areas to allow ashtrays in the 20-foot exterior perimeter of a nonsmoking area where physical constraints make placement of ashtrays difficult. All versions of the Ordinance presented also add to the City Code additional provisions regarding private nursing home rooms. Finally, all versions of the Ordinance require that a"retail tobacco business" have on-site revenues of non-tobacco-related items of no more than 8% of total revenues, not operate under a liquor or other license for sale of non-tobacco products, obtain a certificate of occupancy for operation as a retail tobacco business,prevent minors from entering the premises of the business, and post required signs. October 17, 2006 -2- Item No. 33 In response to Council discussion at the Council meeting on September 19,2006, three versions of the Ordinance are being brought to Council for consideration: • Option A This option is essentially the version that Council considered on second reading at its last meeting, with some modifications to clarify that the retail tobacco business exception provides for smoking as a means of sampling tobacco products for sale. Given this more restrictive approach, this option would in essence prohibit future tobacco lounges. The policy justification for this restriction is that, because tobacco lounges encourage people (especially young people) to take up smoking, they are disfavored, while retail tobacco stores primarily provide a product to existing smokers. Under this option, future retail tobacco establishments would be able to have only a relatively small smoking area for sampling of the tobacco products. This option would: a. "grandfather" existing smoking lounges b. limit future "retail tobacco businesses" to retail tobacco stores that primarily sell tobacco products for off-site consumption C. limit the total maximum size of future retail tobacco establishments to 2,500 square feet (rather than the previously proposed 5,000 square feet) d. limit the amount of the total floor area allowed for a smoking lounge to a maximum of one-third e. clarify that smoking is allowed primarily for sampling of tobacco products that are offered for sale f. only prohibit the existing smoking lounges from expanding their smoking areas (other parts of the establishment could be enlarged without losing"grandfathering") • Option B This option would allow both existing and future tobacco lounges. This is based on the premise that the intent of the smoking ordinance is not to protect people who smoke nor to discourage people from smoking. With that premise in mind, Option B exempts from the smoking prohibition retail establishments that are primarily utilized for the promotion of tobacco products and accessories (i.e., tobacco lounges as lounges) if they meet the requirements regarding revenues, licensing,certificates of occupancy,exclusion of minors, and signage. Option B: a. does not limit the size of the business b. does not limit the amount of floor space allowed for smoking • Option B1 This is the same as option B but it also imposes two size limitations on future smoking establishments. Option B1: a. limits the total maximum size of future retail tobacco establishments to 2,500 square feet b. limits the amount of area that could be devoted to smoking to 700 square feet (as October 17, 2006 -3- Item No. 33 opposed to a percentage of floor area — this could leave open the possibility of a small business being able to allow smoking in the entire establishment) The following requirements apply to any "retail tobacco business" under all versions of the Ordinance presented: 1. No more than eight percent (8%) of the total on-site revenues can be from the sale of non- tobacco related products. 2. The business shall not operate under a liquor license or other license. 3. The business must be constructed and operated in order to prevent smoke from entering any smoke-free area, including physically separated with independent ventilation. 4. The business must obtain a"Certificate of Occupancy"from the Building Official allowing such smoking on the premises. 5. A violation of any of the conditions is the responsibility of the business owner and shall be grounds for revocation of the certificate of occupancy. 6. Persons under eighteen (18) shall not be permitted on the premises. 7. Signs stating that "persons under the age of 18 are not permitted" as well as "Surgeon General's Warning:Smoking Can Cause Lung Cancer,Heart Disease,Emphysema,and May Complicate Pregnancy"must be posted in a conspicuous position clearly visible upon entry. ATTACHMENTS 1. "Hookah Bar&Retail Tobacco Store Comparison Chart, September 25, 2006". Hookah Bar & Retail Tobacco Store Comparison September 25, 2006 Total Square Square Feet Percentage of Percentage of Feet for Smoking business from sales for off- non-tobacco site sales consumption Al¢iers 266 77 (29%) 0—but would 75% (at least) (some of the like to be able sales for off- space is used to have some site for renting the non-tobacco consumption Hookah pipe sales (8% while people would be try it out—then plenty) purchase it after they try it)— consider it a "showroom" not a lour e Narghile Nights 1,540 600-675 (39- Very little— Unknown— 44%) definitely moving toward *would need to within 8% (see more sales for reduce to 509 in tea, pepsi, off-site order to be at water) consumption 33% the longer they're in business Edwards Pine Approx. 2,200 500 (23%) Very little— 75% (approx) & Tobacco some bottled sales for off- pop—definitely site within 8% consumption OPTION A ORDINANCE NO. 1229 2006 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING ARTICLE III OF CHAPTER 12 OF THE CODE OF THE CITY OF FORT COLLINS TO CONFORM THE CODE TO THE COLORADO CLEAN INDOOR AIR ACT AND TO CLARIFY CERTAIN PROVISIONS WHEREAS , on December 17 , 2002, the City Council adopted Ordinance No . 181 , 2002, appealing and re-enacting Article III of Chapter 12 of the Code of the City of Fort Collins 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 , in its 2006 regular legislative session, the Colorado General Assembly enacted House Bill 06- 1175 , known as the Colorado Clean Indoor Air Act (the "Act"), to impose statewide restrictions on smoking, and the Act has been signed into law and became effective on July 1 , 2006 ; and WHEREAS , the Act specifically allows local restrictions on smoking to be more, but not less, restrictive than provided in the Act; and WHEREAS, the provisions of Article III of Chapter 12 of the Code of the City Code, while generally consistent with the Act, include certain specific exceptions that are not included in the Act, making those provisions less strict than the Act; and WHEREAS , included among the exceptions in the City Code but not exempted from compliance from the Act, are 1 ) private clubs, 2) designated smoking areas of bingo parlors and bowling alleys, 3 ) private functions, 4) smoking in theatrical performances, 5 ) rooms for psychological treatment of nicotine addiction, and 6) buildings under the control of other governmental entities ; and WHEREAS , this Ordinance eliminates these exceptions from the City Code so as to conform to the Act; and WHEREAS , the City Code currently prohibits smoking receptacles in areas where smoking is prohibited; and 1 OPTION A WHEREAS , because this prohibition includes the twenty-foot smoke-free perimeter around public establishments, there are locations in which close proximity of a number of businesses has made the location of ashtrays difficult, in particular in Old Town; and WHEREAS , in order to allow more flexibility for addressing problems of cigarette disposal in areas such as Old Town, City staff has recommended the City Code be amended to allow for a limited exception for ashtrays in physically constrained areas ; and WHEREAS , the City Code does not currently specify the status of private nursing home rooms for the purpose of determining applicability of the prohibition on smoking, and it has previously been determined administratively that private nursing home rooms should be deemed to be private residences, rather than public places, for the purposes of Article III, which determination would be codified by this Ordinance ; and WHEREAS , the Act exempts "retail tobacco businesses" from the prohibition on smoking in enclosed places ; and WHEREAS , the Council has determined that it is appropriate to also allow smoking in retail tobacco businesses within the City for the purpose of allowing the sampling of tobacco products that are offered for sale, subject to certain requirements and restrictions, and that a definition of that ter should be added to the eode, as well as a definition of the term "tobacco," consistent With tile definition of those terins in the Act; and WHEREAS , in order to reduce the impacts to existing retail tobacco businesses of the new requirements to be imposed upon retail tobacco businesses, the Council has determined that it is necessary and appropriate to enact a limited exception allowing sales for on-site consumption to continue in those existing businesses ; and WHEREAS , the City Council wishes to conform the City Code to the Colorado Clean Indoor Air Act and to make other amendments to Chapter 12 , Article III to : ( 1 ) allow placement of ashtrays in outdoor smoke-free perimeters where conditions require, (2) clarify that private nursing home rooms are not "public places"; and (3 ) detail the requirements related to smoking in retail tobacco businesses . NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows : Section 1 . That Section 12-56 of the Code of the City of Fort Collins is hereby amended so as to delete the definitions of the terms bingo facility, designated smoking area,performance hall, private club, private function, restaurant, retail tobacco store and service line, and to modify the definition of public place to read in its entirety as follows : 2 OPTION A Public place shall mean any enclosed area to which the public is invited or in which the public is permitted, including but not limited to, attached and freestanding bars, banks, commercial bingo facilities, convention halls, educational facilities, child-care, adult day care or medical or health care facilities, guest rooms in any lodging establishment, Laundromats, performance halls, polling places, professional offices, public transportation facilities and vehicles, reception areas, restaurants, retail food production and marketing/grocery establishments, retail service establishments, retail stores, service lines, and sports arenas . Every room, chamber, place of meeting or public assembly shall be considered a public place during the period of time that a public meeting is in progress . All areas of an establishment that are open to, or customarily used by, the general public, including but not limited to elevators, rest rooms, lobbies, reception areas, hallways, waiting rooms, and other common areas, are public places . A private residence shall be considered a public place only when in use as a child-care, adult day care, or health care facility. Common areas in apartment buildings , condominiums, trailer parks, retirement facilities, nursing homes and other multiple-unit residential facilities are public places. A private nursing home room shall be considered to be the equivalent of a private residence, but a nonprivate nursing home room shall be considered to be a public place. Section 2 . That Section 12-56 of the Code of the City of Fort Collins is hereby amended to add definitions of retail tobacco business and tobacco to read in their entirety as follows : Retail tobacco business shall mean an establishment utilized primarily for the retail sale of tobacco products and accessories for offsite use and consumption, and in which the sale of other products and non-sales activities are is merely incidental. In order for an establishment to be considered a "retail tobacco business " for purposes of this definition: I . The revenues of the business must be generated primarily from the on-site sale of tobacco products, and from the sale of tobacco consumption accessories. The sale of incidental goods other than tobacco products or tobacco consumption accessories may generate limited revenues of no more than eight percent (8%) of the total on-site revenues of the retail tobacco business. 2 . The business shall not operate under a liquor license or other license associated with sale or consumption of other than tobacco products. 3 . The business shall not exceed 2 ,500 5,000 square feet of gross floor area in size, and no more than one-third , 1 /3 - of the business may be utilized as a seating area, lounge, or other area intended to 3 OPTION A accommodate smoking for the purpose of sampling tobacco products that are offered for sale. 4. An establishment in operation as of July 1 , 2006, that as of that date was an establishment utilized primarily for the retail sale or promotion of tobacco products and accessories and that met the requirements in subsections I and 2 , above, shall be deemed to constitute a retail tobacco business for so long as the establishment: a. Continues to meet the requirements in subsections I and 2, above; and b . Does not expand its size the size of the area in which smoking is allowed from the size of said area as it existed on July 1 , 2006 , or change its location froin the size of said area and location in which it existed as of July 1 , 2006 ; and C . At all times after December 31 , 2006, operates in compliance with the requirements of § 12-62(a)(2) . Tobacco shall mean cigarettes, cigars, cheroots, stogies, and periques ; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco ; snuff and snuff flour, cavendish, plug and twist tobacco, fine-cut and other chewing tobacco, shorts, refuse scraps, clippings, cuttings , and seepings of tobacco, and other kinds and forms of tobacco, prepared in such manner as to be suitable for chewing or for smoking in a cigarette, pipe, or otherwise, or both for chewing and smoking. Tobacco also includes cloves and any other plant matter or product that is packaged for smoking. Section 3 . That Section 12-62 of the Code of the City of Fort Collins 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 ) Up to twenty-five (25) percent of guest rooms in lodging establishments, including but not limited to bed and breakfasts, hotels, motels and inns ; and (2) Retail tobacco businesses, provided that the following conditions shall apply: 4 OPTION A a. The business must be designed, constructed and operated in such fashion as to prevent smoke originating on its premises from entering any smoke-free area. It must be also physically separated from other establishments and independently ventilated as prescribed by the most current building and mechanical codes adopted by the city and as administered by the Building Official. b . The business must, prior to allowing smoking on the premises, first obtain a certificate of occupancy from the Building Official allowing such smoking in or on the premises of the store depicting floor space used for retail sales and floor space used for other purposes . Any certificate of occupancy allowing smoking shall be conditioned upon compliance with these regulations and conformance to the floor plan approved by the Building Official as the basis for issuance of the certificate of occupancy. Failure to comply with these regulations and any other laws applicable to the sales and consumption of tobacco products shall be cause for revocation of the certificate of occupancy. c . A violation of any of the conditions or limitations of a certificate of occupancy for a retail tobacco business, whether by the store owner, proprietor, manager, employee, agent or otherwise, or violation of the requirements for operation of a retail tobacco business set forth in this Article, shall be the responsibility of the business owner and shall be grounds for revocation of the certificate of occupancy, in addition to any other penalties imposed by the provisions of § 12-68 . d. Persons under eighteen ( 18) years of age shall not be permitted on the premises of the business, and proof of age shall be required for all persons entering the business . The retail tobacco business shall be responsible for providing adequate staffing and training so as to ensure an effective system for preventing persons under eighteen ( 18) years of age from entering the business . e. In addition to other signs required to be posted pursuant to this Article, any retail tobacco business shall post and maintain a sign at all public entrances thereto, in a conspicuous position clearly visible upon entry, stating the phrase "Persons under the age of 18 not permitted" . In addition, the sign, or another similarly posted sign, shall state the phrase "Surgeon General ' s Warning : Smoking Can Cause Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy." 5 OPTION A Any sign required hereunder shall meet the size and location requirements of § 12-64(b) . Section 4. That Section 12-63 of the Code of the City of Fort Collins is hereby deleted in its entirety. Section 5 . - amended to read in its entirety as follows . Section 6 . That Section 12-64(c) of the Code of the City of Fort Collins is hereby amended to read in its entirety as follows : (c) All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited under this Article by the owner, operator, manager or other person in control of the establishment, except that, where the provisions of § 12-61 dealing with smoke-free perimeters would otherwise preclude the installation of an ashtray for disposal of cigarettes, cigars, or other tobacco products in the general vicinity of the establishment, such an ashtray shall be allowed provided that any such ashtray is : ( 1 ) placed as far as practicable from the entrance, passageway, operable window or ventilation system of any smoke-free establishment; and (2) . prominently marked with a sign declaring as follows : "Smoking Not Permitted Within 20 Feet of Any Smoke Free Establishment" . Section 6-7. That Section 12-66 of the Code of the City of Fort Collins is hereby amended to read in its entirety as follows : Sec. 12-66. Inspection of books and records. The owner of each establishment operating 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 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. 6 OPTION A Section 7$. That Section 12-67 of the Code of the City of Fort Collins is hereby deleted in its entirety and the remaining Sections in Article III are renumbered accordingly. Introduced, considered favorably on first reading, and ordered published this 15th day of August, A.D . 2006, and to be presented for final passage on the 17th day of October, A.D. 2006 . Mayor ATTEST : City Clerk Passed and adopted on final reading on the 17th day of October, A.D. 2006. Mayor ATTEST : City Clerk 7 OPTION B (w/Version B1) ORDINANCE NO. 122, 2006 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING ARTICLE III OF CHAPTER 12 OF THE CODE OF THE CITY OF FORT COLLINS TO CONFORM THE CODE TO THE COLORADO CLEAN INDOOR AIR ACT AND TO CLARIFY CERTAIN PROVISIONS WHEREAS , on December 17 , 2002, the City Council adopted Ordinance No . 181 , 2002, appealing and re-enacting Article III of Chapter 12 of the Code of the City of Fort Collins 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 , in its 2006 regular legislative session, the Colorado General Assembly enacted House Bill 06- 1175 , known as the Colorado Clean Indoor Air Act (the "Act"), to impose statewide restrictions on smoking, and the Act has been signed into law and became effective on July 1 , 2006 ; and WHEREAS , the Act specifically allows local restrictions on smoking to be more , but not less, restrictive than provided in the Act; and WHEREAS , the provisions of Article III of Chapter 12 of the Code of the City Code, while generally consistent with the Act, include certain specific exceptions that are not included in the Act, making those provisions less strict than the Act; and WHEREAS , included among the exceptions in the City Code but not exempted from compliance from the Act, are 1 ) private clubs, 2) designated smoking areas of bingo parlors and bowling alleys, 3 ) private functions, 4) smoking in theatrical performances, 5 ) rooms for psychological treatment of nicotine addiction, and 6) buildings under the control of other governmental entities ; and WHEREAS , this Ordinance eliminates these exceptions from the City Code so as to conform to the Act; and WHEREAS , the City Code currently prohibits smoking receptacles in areas where smoking is prohibited; and 1 OPTION B (wNersion 111) WHEREAS , because this prohibition includes the twenty-foot smoke-free perimeter around public establishments, there are locations in which close proximity of a number of businesses has made the location of ashtrays difficult, in particular in Old Town; and WHEREAS , in order to allow more flexibility for addressing problems of cigarette disposal in areas such as Old Town, City staff has recommended the City Code be amended to allow for a limited exception for ashtrays in physically constrained areas ; and WHEREAS , the City Code does not currently specify the status of private nursing home rooms for the purpose of determining applicability of the prohibition on smoking, and it has previously been determined administratively that private nursing home rooms should be deemed to be private residences, rather than public places, for the purposes of Article III, which determination would be codified by this Ordinance; and WHEREAS , the Act exempts "retail tobacco businesses" from the prohibition on smoking in enclosed places ; and WHEREAS , the Council has determined that it is appropriate to also allow smoking in retail tobacco businesses within the City subject to certain requirements and restrictions and thatdefinition of that term should be added to the eode, as well as a definition of the term "tobacco , " consistent with the definition of those terms in the Ac ; and VVIHEREAS5 in order to reduce the impacts to existing retail tobacco businesses of the neivv 11ts to be imposed upon retail tobacco businesses, the eouncii has determined that i necessary and appropriation to enact a limited exception allowing sales for on-site constnnption contitme in those existing businesses ; an WHEREAS , the City Council wishes to conform the City Code to the Colorado Clean Indoor Air Act and to make other amendments to Chapter 12 , Article III to : ( 1 ) allow placement of ashtrays in outdoor smoke-free perimeters where conditions require, (2) clarify that private nursing home rooms are not "public places"; and (3) detail the requirements related to smoking in retail tobacco businesses . NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows : Section 1 . That Section 12-56 of the Code of the City of Fort Collins is hereby amended so as to delete the definitions of the terms bingo facility, designated smoking area,performance hall, private club, private function, restaurant, retail tobacco store and service line, and to modify the definition of public place to read in its entirety as follows : 2 OPTION B (wNersion B1) Public place shall mean any enclosed area to which the public is invited or in which the public is permitted, including but not limited to, attached and freestanding bars, banks, commercial bingo facilities, convention halls, educational facilities, child-care, adult day care or medical or health care facilities, guest rooms in any lodging establishment, Laundromats, performance halls, polling places, professional offices, public transportation facilities and vehicles, reception areas, restaurants, retail food production and marketing/grocery establishments, retail service establishments, retail stores, service lines, and sports arenas . Every room, chamber, place of meeting or public assembly shall be considered a public place during the period of time that a public meeting is in progress . All areas of an establishment that are open to, or customarily used by, the general public, including but not limited to elevators, rest rooms, lobbies, reception areas, hallways, waiting rooms, and other common areas, are public places . A private residence shall be considered a public place only when in use as a child-care, adult day care, or health care facility. Common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes and other multiple-unit residential facilities are public places. A private nursing home room shall be considered to be the equivalent of a private residence, but a nonprivate nursing home room shall be considered to be a public place. Section 2 . That Section 12-56 of the Code of the City of Fort Collins is hereby amended to add definitions of retail tobacco business and tobacco to read in their entirety as follows : Retail tobacco business shall mean an establishment utilized primarily for the retail sale or promotion of tobacco products and accessories for offsite use an consumption, and in which the sale of other products is merely incidental. In order for an establishment to be considered a "retail tobacco business" for purposes of this definition: 1 . The revenues of the business must be generated primarily from the on-site sale of tobacco products, and from the sale of tobacco consumption accessories . The sale of incidental goods other than tobacco products or tobacco consumption accessories may generate limited revenues of no more than eight percent (8%) of the total on-site revenues of the retail tobacco business . 2 . The business shall not operate under a liquor license or other license associated with sale or consumption of other than tobacco products . 0C.' " I L1118 area, lornge , ot other area intended tv accommodate smoking . 3 . The business shall riot exceed 5000 square feet of gross floor area in MIZC, OPTION B (w/Version B1 ) tobacco products and accessorics and that mct the M- 4--unim-1-1-M-1111ts in subsections 1 and -2 , above, shall be deemed to constitute a retail tobacco hminrss for so fong as the establishment . a . eontinues to meet the requirements in subsections f and -2 ,4 . An establishment in operation as of july 1 , 2006, that as of that date was b . Does not cxpmid its size or changc its location from the size of sai area and location in which it existed as of fuly 1 , 20061 and At all times after December 3 > 2006, operates in compf iance wit VERSION B1 : 3 . The business shall not exceed two thousand five hundred (2,500) square feet of gross floor area in size, and no more than seven hundred (700) square feet of the business may be utilized as a seating area, lounge, or other area intended to accommodate smoking. ] Tobacco shall mean cigarettes, cigars, cheroots, stogies, and periques ; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco ; snuff and snuff flour, cavendish, plug and twist tobacco, fine-cut and other chewing tobacco, shorts, refuse scraps, clippings, cuttings, and seepings of tobacco, and other kinds and forms of tobacco, prepared in such manner as to be suitable for chewing or for smoking in a cigarette, pipe, or otherwise, or both for chewing and smoking. Tobacco also includes cloves and any other plant matter or product that is packaged for smoking. Section 3 . That Section 12-62 of the Code of the City of Fort Collins 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 ) Up to twenty-five (25 ) percent of guest rooms in lodging establishments, including but not limited to bed and breakfasts, hotels, motels and inns ; and 4 OPTION B (w/Version B1) (2) Retail tobacco businesses, provided that the following conditions shall apply: a. The business must be designed, constructed and operated in such fashion as to prevent smoke originating on its premises from entering any smoke-free area. It must be also physically separated from other establishments and independently ventilated as prescribed by the most current building and mechanical codes adopted by the city and as administered by the Building Official. b . The business must, prior to allowing smoking on the premises, first obtain a certificate of occupancy from the Building Official allowing such smoking in or on the premises of the store depicting flour space used for retail sales and floor space used for other purposes [THIS CLAUSE RETAINED IN VERSION 111 ] . Any certificate of occupancy allowing smoking shall be conditioned upon compliance with these regulations and conformance to the floor plan approved by the Building Official as the basis for issuance of the certificate of occupancy. Failure to comply with these regulations and any other laws applicable to the sales and consumption of tobacco products shall be cause for revocation of the certificate of occupancy. c . A violation of any of the conditions or limitations of a certificate of occupancy for a retail tobacco business, whether by the store owner, proprietor, manager, employee, agent or otherwise, or violation of the requirements for operation of a retail tobacco business set forth in this Article, shall be the responsibility of the business owner and shall be grounds for revocation of the certificate of occupancy, in addition to any other penalties imposed by the provisions of § 12-68 . d. Persons under eighteen ( 18) years of age shall not be permitted on the premises of the business, and proof of age shall be required for all persons entering the business . The retail tobacco business shall be responsible for providing adequate staffing and training so as to ensure an effective system for preventing persons under eighteen ( 18) years of age from entering the business . e. In addition to other signs required to be posted pursuant to this Article, any retail tobacco business shall post and maintain a sign at all public entrances thereto, in a conspicuous position clearly visible 5 OPTION B (wNersion B1) upon entry, stating the phrase "Persons under the age of 18 not permitted". In addition, the sign, or another similarly posted sign, shall state the phrase "Surgeon General ' s Warning : Smoking Can Cause Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy." Any sign required hereunder shall meet the size and location requirements of § 12-64(b) . Section 4 . That Section 12-63 of the Code of the City of Fort Collins is hereby deleted in its entirety. Section 5 . - amended to read in its entirety as follows . Section 6 . That Section 12-64(c) of the Code of the City of Fort Collins is hereby amended to read in its entirety as follows : (c) All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited under this Article by the owner, operator, manager or other person in control of the establishment, except that, where the provisions of § 12-61 dealing with smoke-free perimeters would otherwise preclude the installation of an ashtray for disposal of cigarettes, cigars, or other tobacco products in the general vicinity of the establishment, such an ashtray shall be allowed provided that any such ashtray is : ( 1 ) placed as far as practicable from the entrance, passageway, operable window or ventilation system of any smoke-free establishment; and (2) . prominently marked with a sign declaring as follows : "Smoking Not Permitted Within 20 Feet of Any Smoke Free Establishment" . Section 6-7. That Section 12-66 of the Code of the City of Fort Collins is hereby amended to read in its entirety as follows : Sec. 12-66. Inspection of books and records. The owner of each establishment operating 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 the applicability of the provisions of this Article to such establishment. The City 6 OPTION B (wNersion B1) 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. Section 7$. That Section 12-67 of the Code of the City of Fort Collins is hereby deleted in its entirety and the remaining Sections in Article III are renumbered accordingly. Section 8 . That Subsections 12-62(a)(2)a and b shall be effective as of January 1 , 2007, notwithstanding that all other provisions of this Ordinance shall be effective upon the tenth day after adoption on second reading Introduced, considered favorably on first reading, and ordered published this 15th day of August, A.D . 2006, and to be presented for final passage on the 17th day of October, A.D . 2006 . Mayor ATTEST : City Clerk Passed and adopted on final reading on the 17th day of October, A. D . 2006 . Mayor ATTEST : City Clerk 7