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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 12/17/2002 - SECOND READING OF ORDINANCE NO. 181, 2002, REPEALI AGENDA ITEM SUMMARY ITEM NUMBER: 32 DATE: December 17, 2002 FORT COLLINS CITY COUNCIL FROM: Michelle Pawar/ Carrie Daggett SUBJECT : Second Reading of Ordinance No. 181, 2002, Repealing and Re-enacting Article 1H of Chapter 12 of the City Code, Regarding Smoking in Public Places and Places of Employment. RECOMMENDATION: EXECUTIVE SUMMARY: Ordinance No. 181, 2002, which was adopted 7-0 on First Reading was an adapted version of the Colorado Tobacco Education and Prevention Association ("CTEPA") model ordinance. This Ordinance: • prohibits smoking in all enclosed public places, except for designated smoking areas in bars, bingo parlors and bar areas of bowling alleys; • prohibits smoking in a smoke-free perimeter 20 feet outside of entrances, operable windows, passageways and ventilation systems of smoke-free areas, except by those passing by on their way to another destination who do not stop; • prohibits smoking in all places of employment except those specifically excluded from the smoke-free requirements; • exempts private residences not in use as day care or health care facilities, up to 25% of lodging guest rooms, retail tobacco stores, establishments when in use for private functions, smoking in stage performances, most outdoor places of employment, rooms in use for smoking cessation therapy, and properties in use by other governmental jurisdictions; and • prohibits retaliation against persons on account of the exercise of rights under the Ordinance. The differences between this version of the Ordinance, and the Ordinance as it was presented for consideration on first reading include the following: ecem er 2 DATE: ITEM NUMBER: - Section 12-63 has been added, to provide for designated smoking areas, together with corresponding changes to accommodate the addition of this Section (including the employer requirements described in Section 12-60); - Section 12-56, the definitions section, has been modified to: - delete unnecessary definitions (terms no longer needed in the Ordinance), including the definitions for"attached bar", "business", and "sports arena"; - add a definition of "establishment" to clarify the meaning of that term throughout the Ordinance as the building(s) or facilities in which a business or undertaking is operated; - modify the definition of "performance hall" to make clear that incidental live entertainment is not sufficient to cause an establishment to be a "performance hall"; and - modify the definition of "restaurant" to include establishments that operate a kitchen for the preparation of meals or provide regular service of meals within the definition, in addition to any establishments that meet the 25% food revenue test. - Subsection 12-59(b) has been deleted in order to eliminate the prohibition on smoking in outdoor sports arenas, convention halls and performance halls; and - Section 12-61 has been modified to exclude passersby who do not stop from the smoke- free perimeter requirement. Editorial changes have also been made to improve consistency and form. Staff has researched the following specific questions noted by the City Council during the meeting on November 19th, and the questions and responsive information are provided below. 1. How will the City enforce the Ordinance? Staff's recommendation regarding the best way to accomplish the new duties associated with Ordinance No. 181 is to hire a dedicated, full-time code enforcement person for a minimum of one year. The job responsibilities for this position would include both education regarding the new Code provisions and on-site inspections for compliance, with support (back up) from the Police Department. Because these on-site visits might occur during evening hours when bars and taverns are open to the public, the code enforcement officer should also be available for shift work. The estimated cost for a code enforcement employee whose job, for one year, would be to carry out education and on-site compliance inspections, is estimated to total $83,000. (This amount includes the standard start-up costs of hiring new employees, such as office installation.) However, we recognize that due to resource limitations in the 2003 General Fund, there are unlikely to be funds available to hire a new, full-time employee. Therefore, we will have to absorb the costs by reprioritizing and re-assigning responsibilities throughout the City for ecem er DATE: ITEM NUMBER: 32 enforcement and education. Upon adoption of amendments to the Ordinance, staff will develop a more detailed proposal for implementation and enforcement. At the end of the first year, we will evaluate the effectiveness of the new ordinance, including the rate of compliance and establish what level of financial resources, if any, needs to be continued. Although not included in the budget, it is important to note that the Building and Zoning Department will be responsible for review and inspection associated with the installation of designated smoking areas in eligible establishments, and would experience a corresponding increase in workload. 2. How do other communities with smoke free ordinances enforce their smoking regulations? The majority of communities in Colorado handle enforcement of smoking ordinances through environmental health officers, police officers, or building officials. The following is a summary of the enforcement process used by Colorado communities that City staff has contacted. Telluride: In Telluride, a building official responds to complaints by providing a written notice of the complaint to the business owner handles enforcement. Snowmass Village: In Snowmass Village, a public safety police officer responds to the initial complaint with a site visit. Officers also "spot check" restaurants and bars during routine evening checks. Boulder: In Boulder, Environmental Enforcement Officers handle enforcement. In 1995 when the Boulder's current ordinance was first passed, two full-time enforcement officers and one '/4 time clerk worked exclusively on the smoking ordinance. Currently, one environmental enforcement officer does enforcement. Montrose: In Montrose, a code enforcement officer provided extensive education to all establishments. Currently, the code enforcement officer responds to complaint calls and the Clerk's office handles general inquiries. Alamosa: A code enforcement officer and the Police Department enforce the ordinance. The code enforcement officer went to all affected businesses and provided "no smoking" signs, the new code provisions, and a "frequently asked questions" document. Currently, enforcement has been done mostly on a complaint basis. 3. What were the experiences of Boulder restaurants and bars after the Boulder smoke free ordinance was passed?How many Boulder establishments installed designated smoking areas? There are 4 businesses in Boulder that have designated smoking areas. Staff was not able to reach the newest of those businesses, but information regarding the three who were contacted is DATE: December ITEM NUMBER: 32 outlined below. None of the businesses was able and/or willing to provide the actual dollar amount that was spent in order provide a designated smoking area. 1. Tulagi. Tulagi has a separate room off the bar that was closed off and has an added separate ventilation system - making a smoking lounge. Patrons have to go into the non smoking section to buy drinks as well as enter and exit the bar. Although Tulagi representatives did not provide an estimate of the initial cost - they did indicate that it was a significant expense. They indicated that the investment was expected to pay off because Tulagi would be the only bar on the "hill" that allows smoking. They believe their business is good because they offer the smoking room. 2. Rocky's (formerly "Rich's"). The smoking "fish bowl" (as Rocky's representatives call Rocky's designated smoking area) was in place when the establishment changed hands, so current owners do not know the cost of installing the necessary improvements. Rocky's has a pool table and TV in the smoking room which is in the corner of the bar and is surrounded by glass. Patrons have to enter and exit and order drinks in the no smoking section. Rocky's representatives indicated that they have kept the room for marketing reasons - it is always full and they think of it as a bonus. 3. Sundown Saloon. A representative of the Sundown Saloon indicated that when the Boulder ordinance was passed his business suffered. He believes that most of his previous patrons (an estimated 80%) were smokers and that the ordinance drove those patrons to surrounding towns. He put in the smoking room in an effort to retain some of his patrons. He reported that the cost was extensive - especially the cost of the ventilation system. He said he paid an "arm and leg" to install the system. He indicated that he also worked hard to make sure the designated smoking area did not detract from the atmosphere of the bar and that he didn't want the smokers to feel like they were in a "fish bowl". The representative of the Sundown Saloon indicated that he does not believe that business has recovered to a level comparable to what it was before the ordinance, and indicated he does not believe his business is doing well. 4. Using the current tavern license list, how many bars/taverns in Fort Collins are currently smoke free? How many establishments derive less than 25% of their revenue from food sales? There are 32 businesses on the City Clerk's current list of "tavern" liquor licensees. Natural Resources Department staff conducted an informal survey by calling all of the tavern license owners and asking for a response on these two questions. Based on the information received from these contacts, 8 of the tavern licensees described themselves as smoke-free, 24 of the establishments stated that they derive less than 25% of their revenue from food sales, and 1 licensee indicated that it is strictly a beverage service (and does not operate an establishment). 5. What specific types of requirements would the City be imposing to result in "physically separate and independently ventilated" designated smoking areas? The City's Director of Building and Zoning has indicated that "physically separate and independently ventilated" means a fully enclosed interior room, except for the required 36-inch ecem er 32 DATE: ITEM NUMBER: wide entrance/exit door and the heating, ventilation, cooling system (HVC) openings into such space, that provides the Code-required outdoor air independent of the building spaces outside that room. 6. What are the size constraints associated with these requirements, i.e., is there a minimum size of establishment that would have the capability of creating a designated smoking area that meets these requirements? The building code sets the occupant capacity at 1 person per 15 sq. ft. with outdoor air supplied at the rate of 30 cubic ft./min./person, or 2 CFM per sq. ft. of floor space. A designated smoking area's HVC system would be required to operate without adversely affecting other fuel-burning equipment in the establishment, although it might make sense in some cases to provide the outside ("make-up") air via the establishment's ventilation equipment with dampered (one-way) intake openings into the designated smoking area and exhausted to the outside. Although there is no minimum floor area or ceiling height specified for a designated smoking area, it would need to be wheelchair-accessible with a 60-in. square or circular maneuvering space. Practically speaking, it is difficult to imagine a designated smoking area less than about 50 sq. ft. (adequate for 3 people) being very functional. Example Designated Smoking Area and Assumptions: This example is intended to illustrate the estimated costs likely to be associated with providing complying designated smoking areas in existing eligible establishments. Actual costs would be highly variable based on existing conditions, including size, desired finishes, interior location, availability to outside air and ventilation equipment, existing electric service capacity, and other characteristics. This hypothetical prototype would require minimum building alterations other than the designated smoking area ("DSA") itself and its HVC system. Except for entrance/exit doorway and ventilation/relief "make-up" air openings, the DSA is an entirely enclosed space of 120 sq. ft. with a 10-11. ceiling and walls are finished with "typical" materials including a large amount of glazing (similar to the downtown Perkins). The building code sets the occupant capacity of the DSA at 8 occupants with required outdoor air supplied at the rate of 30 cubic ft./min./person for a total of —240 CFM or 5 air changes/hr. The DSA is heated and cooled to the same extent the non-smoking space is. The DSA has a new dedicated exhaust system and a conditioned relief ("tempered make-up") air system is installed in the establishment. The estimated contract price range for the work described is $5,000 - $8,000. This estimate is based on our standard building permit valuation tables. As noted above, these costs could rise significantly with conditions in specific premises, and with the choices of finish and furnishings chosen by the business operator. ENFORCEMENT RECOMMENDATION 1 FTE for one year Code Enforcement Officer - Education - Enforcement Total cost: $82,720 Smoking Code Enforcement 5% 0 Enforcement 20% 50% ■ Education 25% 50% o Building Inspection 20% 25% O Policy/Legal 5% Staff's recommendation regarding the best way to accomplish the new duties associated with Ordinance No. 181 is to hire a dedicated, full-time code enforcement person for a minimum of one year. The job description for this position would include both education regarding the new Code provisions and on-site inspections for compliance, with support (back up) from the Police Department. Because these on-site visits might occur during evening hours when bars and taverns are open to the public, the code enforcement officer should also be available for shift work. The estimated cost for a code enforcement employee whose job, for one year, would be to carry out education and on-site compliance inspections, is estimated to total $83,000. (This amount includes the standard start-up costs of hiring new employees, such as office installation.) At the end of the first year, staff would evaluate the effectiveness of the new ordinance, including the rate of compliance and establish what level of financial resources, if any, needs to be continued. Although not included in the budget, it is important to note that the Building and Zoning Department will be responsible for review and inspection associated with the installation of designated smoking areas in eligible establishments, and would experience a corresponding increase in workload. ORDINANCE NO. 181, 2002 OF THE COUNCIL OF THE CITY OF FORT COLLINS REPEALING AND RE-ENACTING ARTICLE III OF CHAPTER 12 OF THE CITY CODE, REGARDING SMOKING IN PUBLIC PLACES AND PLACES OF EMPLOYMENT WHEREAS, numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke is a cause of disease, including lung cancer, in nonsmokers; and WHEREAS, at special risk are children, elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and WHEREAS, secondhand smoke has been classified as a Class A carcinogen, along with other known hazards such as asbestos, by the Environmental Protection Agency; and WHEREAS, secondhand smoke contains almost 5,000 chemicals, 60 which are known toxins and carcinogens, including arsenic, formaldehyde, hydrogen cyanide and radioactive elements; and . WHEREAS, there is no safe level of exposure to secondhand smoke; and WHEREAS, health hazards induced by breathing secondhand smoke include lung cancer, heart disease, respiratory infection, and decreased respiratory function, including bronchoconstriction and broncho-spasm; and WHEREAS, at its study sessions on June 4, 2002, and on September 24, 2002, staff presented to the City Council for its consideration various information and materials regarding the impacts and hazards of secondhand smoke; and WHEREAS, among the materials that have been presented for Council consideration are: 1. "Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders", by U.S. Environmental Protection Agency, Office of Research and Development, 1992; 2. "Acute Effects of Passive Smoking on the Coronary Circulation in Healthy Young Adults",from the Journal of the American Medical Association,Vol. 286, No. 4,July 25, 2001; and 3. "Multicenter Case-Control Study of Exposure to Environmental Tobacco Smoke and Lung Cancer in Europe", from Journal of the National Cancer Institute, Vol. 90, No. 19, October 7, 1998; and WHEREAS, in enacting this Ordinance, it is the intent of the City Council to prescribe requirements concerning smoking in certain public places and places of employment, thereby providing a clean and healthful environment,protecting the health,safety and welfare of the citizens of Fort Collins, and preventing unreasonable interference with the comfortable enjoyment of those public places and places of employment; and WHEREAS,based on its review and consideration of the foregoing,the City Council hereby finds and declares that it is appropriate and desirable to enact the following provisions in order to: (1) to protect the public health and welfare by prohibiting smoking in public places and places of employment; (2) to advance the right of all persons to breathe smoke-free air; and(3) to recognize that the need to breathe smoke-free air shall have priority in public places and work places over the desire to smoke. NOW,THEREFORE,BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Article III of the Code of the City of Fort Collins is hereby repealed and re-enacted to read as follows: ARTICLE III. SMOKING IN PUBLIC AREAS Sec. 12-56. Definitions. The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in this Section: Bingo facility shall mean premises used primarily for the purpose of conducting games of chance. Designated smoking area shall mean any area designated and operated in accordance with the requirements of§ 12-63, Designated Smoking Areas". Employee shall mean any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services without wages or other compensation. Employer shall mean any person, organization, or entity employing the services of any person, whether or not such employed person is compensated for those services. Enclosed area shall mean all space between a floor and ceiling that is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) that extend from the floor to the ceiling,including all space therein screened by partitions which do not extend to the ceiling or are not solid, office landscaping or similar structures. -2- Esi!atblis4mente,shajl!�meanzithe building(s) or facthttesan- vvtiizh a business, enterprise or unde along whether or not for profit cond�uoted the event that a single business or undertaking is-conducted'mftwo�(2)'or m' ore.adjaeent;buildings, those buildings together shall comprise,the "establishment"for, the.purpose of this Article. Freestanding bar shall mean an establishment that is primarily devoted to the serving of alcoholic beverages for consumption by guests on.the premises and that does not constitute a "performance hall" or "restaurant"as defined in this Section, including, but not limited to taverns, nightclubs, cocktail lounges, and cabarets. Performance hall shall mean any area or facility that is primarily used for the exhibition of any motion picture, stage, drama, lecture, musical recital or other similar performance, including, but not limited to, concert halls and theaters. An establishment thatU used for another,.primary purpose,and thathas,musical or other perfoances-on ap occasionah asis as incidental or complimer tary to that different and primary µSe,shall'not be considered to beL a "performance ball" For example, afreeatgnding�oait is ecast4nallj-provides,oral e, sthe.perfp ttatteezof;livemusic is not'a"perfoimaitce;tiall": 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 ofemployment shall not include a private residence unless the residence is used as a child care,adult day care or health care facility. 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. Private function shall mean any activity that is restricted to invited guests in a nonpublic setting. 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 -3- elevators, restrooms, lobbies, reception areas, hallways, waiting rooms, and other common areas, are "public places". A private club shall be considered a "public place" when functions are held at the club that are open to the public. 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". Restaurant shall mean any coffee shop, cafeteria, sandwich stand, private or public school cafeteria, and any other eating establishment that gives or offers for sale food to the public, guests, or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities. If an establishment serves malt vinous and/or spirituous liquors and actually and regularly serves meals,and either*. k has (0i Gy t I gGBp re.q her thaggackagntd forer�rl }�ptoik„ . let �(4 actually and regularly serves meals, ,y�(p),—artd-derives not less than twenty-five (25) percent of its gross income from the sale of food and non-alcoholic drinks, such establishment shall conclusively be considered to be a"restaurant"for the purposes of this Article, regardless of the category of liquor license under which that facility operates. Retail tobacco store shall mean a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental. Service line shall mean any indoor line at which one (1) or more persons are waiting for or receiving service of any kind,whether or not such service involves the exchange of money. Smoke free shall mean that an establishment or the premises controlled by that establishment has been declared to be a place in which smoking is prohibited, whether by the terms of this Article or by the owner or operator of said establishment. Smoke or smoking shall mean: (1) carrying or placing of a lighted cigarette or lighted cigar or lighted pipe or any other lighted smoking equipment in one's mouth for the purpose of inhaling or exhaling smoke or blowing smoke rings; (2) placing of a lighted cigarette, or 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; (3) carrying or placing of a lighted cigarette, or lighted cigar or lighted pipe or any other lighted smoking equipment in one's hands or any appendage or device and allowing smoke to diffuse in the air; or (4) inhaling or exhaling smoke from a lighted cigarette, or lighted cigar or lighted pipe or any other lighted smoking equipment. -4- Sec. 12-57. Findings; purpose. (a) The City Council has found and determined as follows: (1) Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke is a cause of disease, including lung cancer, in nonsmokers. At special risk are children, elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and (2) Secondhand smoke has been classified as a Class A carcinogen like asbestos by the Environmental Protection Agency; and (3) Secondhand smoke contains almost 5,000 chemicals, 60 which are known toxins and carcinogens, including arsenic, formaldehyde, hydrogen cyanide and radioactive elements; and (4) There is no safe level of exposure to secondhand smoke; and (5) Health hazards induced by breathing secondhand smoke include lung cancer,heart disease,respiratory infection,and decreased respiratory . function, including bronchoconstriction and broncho-spasm. (b) Based on the foregoing, the City Council finds and declares that the purposes of this Article are(1)to protect the public health and welfare by prohibiting smoking in public places and places of employment; (2) to advance the right of all persons to breathe smoke-free air; and (3) to recognize that the need to breathe smoke-free air shall have priority rn,pWjc-.,places,#pd work place$over the desire to smoke. Sec.12-58. Smoking prohibited in city buildings and vehicles. All enclosed facilities of the city, including but not limited to all city-owned buildings and vehicles owned by the city shall be subject to the provisions of this Article. Sec. 12-59. Smoking prohibited in public places. Smoking shall be prohibited in all public places within the city, except as otherwise expressly permitted under this Article. • -5- Sec. 12-60. Smoking prohibited in places of employment. (a) It shall be the responsibility of employers to provide a smoke-free workplace for all employees, but employers may comply with this requirement through the implementation of policies and practices and are not required to incur any expense to make structural or other physical modifications, unless such modifications are otherwise required under § 12-63. (b) Each employer having a place of employment located within the city shall adopt, implement, make known and maintain a written smoking policy which shall prohibit smoking in all smoke-free areas within such place of employment—,Vaithottt exception. All common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges stairs restrooms, vehicles, and all other enclosed facilities tl}af r�otar � , tti g � ce ornoeaas, ffreeaX sa llq ee A'!e '{ x ' , a 37 ro ej =x t dx rx: iwY" c v r �kz [oerhn�rngPlaceae� n ; � �b4ttls, o�ee a x »r �. , akea ap"d ai 1W icl stntpi g is al#bWed trid�. �ar tfFtimo to Any employ �v cr requests a smoke-free Work area 7?y assigning the employ t© such an area:, i 2-63. (c) This smoking policy shall be communicated by each such employer to all employees within three (3) weeks of its adoption, and all employers shall supply a written copy of the same upon request, to any existing or prospective employee. Sec. 12-61. Smoke-free perimeter. In order to prevent smoke from entering any smoke-free area, no person shall smoke within a distance of twenty(20)feet from any entrance,passageway,operable window or ventilation system of any smoke-free establishment or area, unless such person is passing through such area, without stopping, en route to another destination. 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 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. -6- (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 Eoioradothe United States goacrrtment, the state, the Earirncr6 county, or flit-Poudre School District that have not been designated as smoke-free by the managing authority. (9) In a designated smoking area in a freestanding bar, bingo facility or bowling alley operated in accordance with § 12-63, ` areas". (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 the Article, may declare such establishment or property entirely or partially smoke-free. Sec. 12-63. Designated smoking areas. (a) The owner, lessee, principal manager, or other person in control of a freestanding bar, bingo parlor, or bowling alley may designate one smoking area in such establishment so long as said designated smoking area meets the following requirements: (1) The size of the area shall not exceed: a. fifty (50) percent of the square footage of the floor area of the establishment that is open to the public, excluding any waiting area, lobby, hallway,elevator, restroom,or area adjacent to a food service line or service line, or cash register area; or b. for bowling-alley-designated smoking areas iqt ho, itly. ittg alleys, fifty (50) percent of the square footage of the floor area of the physically separated bar area; and (2) The area shall be independently ventilated from the smoke-free areas; -7- 1 (3) The area shall be physically separated from the smoke-free areas; (4) The area shall not include any waiting area, lobby, hallway, elevator, restroom, or area adjacent to a service line or cash register; (b) Any service or amenity which the establishment chooses to provide to patrons, other than smoking, shall at all times be at least as available in the smoke- free portion of the establishment as in the designated smoking area.This requirement shall include, but not be limited to, live entertainment and games. (c) The City Manager may make reasonable rules interpreting the terms "independently ventilated"and"physically separated"and specifying ventilating and construction measures that will accomplish these goals. (d) No owner, lessee, principal manager, or person in control of an establishment that designates a smoking area shall fail to maintain,post signage for, and otherwise operate such designated smoking area in accordance with the requirements of this Article. (e) If the seating or admission of patrons at an establishment with a designated smoking area is directed by an employee, no owner, lessee, principal manager, or other person in control of the establishment shall fail to ensure that such employee asks each patron for the patron's preference for seating in or use of a no-smoking or a smoking area. If the seating or admission of patrons at an establishment with a designated smoking area is not directed by an employee, no owner, lessee, principal manager, or other person in control of the establishment shall fail to post a conspicuous sign on all public entrances or in a position clearly visible on entry into the establishment advising patrons that such a no-smoking area is available and where it is located. Sec. 12-64. Posting of signs. (a) The owner, operator, manager, and other persons in control of an establishment shall be responsible for posting and maintaining the following signs in said establishment, as applicable: (1) "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it) shall be clearly and conspicuously posted in every entrance of every establishment required or declared to be smoke- free under this Article. (2) Emy pubfic pine 011CIC Mnoking is prohibited by tlris Article shat! have posted at eye,y er, Es Si6il �ilaLly stating that smoking -8- (32) In an establishment in which certain areas are designated as smoking areas pursuant to this Article, a sign using the words "No Smoking Except in Designated Areas" shall be posted conspicuously on all public entrances and in a position clearly visible upon entry into the establishment. (b) All signs referred to in this Section shall be a minimum size of twenty(20) square inches and shall be placed at a height of between four (4) and six (6) feet above the floor. (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. (d} The=ovmer or person in control: of any�gehicle ii!which smoking is prohibited under&s Article shall clearly and conspicuously post imthe interior of the vehicle decals or signs stating or indicating that no smoking is permitted in the vehicle. Sec. 12-65. Enforcement. (a) Enforcement of this Article shall be implemented by the City Manager or his or her designee. • (b) Notice of the provisions set forth in this Article shall be given to all applicants for a sales/use tax license in the city pursuant to Chapter 25 of this Code. (c) Any citizen may register a complaint of alleged violation of this Article by filing a sworn complaint with the City Manager or his or her designee. (d) Any owner,manager,operator or agent of any establishment regulated by this Article shall inform persons violating this Article in such establishment of the appropriate provisions thereof and request their compliance. 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 whether an establishment constitutes a freestanding bar, attached bar, restaurant, or other type of establishment, as defined in § 12-56. 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.. -9- See. 12-67. Nonretaliation. No person or employer shall discharge,refuse to hire or serve, or retaliate in any manner against any employee, applicant for employment, or customer because such employee, applicant, or customer exercises any right to a smoke-free environment afforded by this Article. See. 12-68. Violations and penalties. (a) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this Article to fail to comply with any of its provisions. (b) It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this Article. (c) Any person who violates any provision of this Article shall be guilty of a misdemeanor, punishable by a fine or imprisonment in accordance with § 1-15. (d) Each day of continuing violation shall be deemed to be a separate violation. Sec. 12-69. Public education. The City Manager shall engage in a continuing program to explain and clarify the purposes and requirements of this Article to citizens affected by it, and to guide owners, operators and managers in their compliance with it. Such program may include publication of a brochure for affected businesses and individuals explaining the provisions of this Article. See. 12-70. Other applicable laws. This Article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. Sec. 12-71. Severability. If any provision, clause, sentence or paragraph of this Article or the application thereof to any person or circumstances shall be held invalid,such invalidity shall not affect the other provisions of this Article which can be given effect without the invalid provision or application, and to this end the provisions of this Article are declared to be severable. -10- Section 2. Effective July 1, 2003, Section 12-60 of the Code of the City of Fort Collins shall be amended so as:to read in its entirety as follows: Sec. 12-60. Designation of specific smoking areas. The proprietor or person in charge may designate no more than twenty-five (25) percent of a public place or public meeting as a smoking area, except as follows: (1) In places of work in which smokers and non-smokers work in the same office or room, it shall be the responsibility of employers to provide smoke-free work areas to accommodate employees who request the same; (2) In no event shall lobbies, hallways, or other common areas typically shared by smokers and nonsmokers be designated as smoking areas, except that lobbies, hallways or other common areas which exceed five thousand feet(5,000)square feet in area may have within them designated smoking areas, provided that no more than thirteen (13) percent of the total area of such lobby, hallway or common area is so designated and that such designated smoking areas are located such that it is not necessary for nonsmokers to pass through such areas to reach other no-smoking areas; (3) In restaurants with a seating capacity of over thirty (30) persons, the proprietor or person in charge shall provide a no-smoking area of sufficient size to accommodate patrons who request to be seated in such an area. Patrons must be advised orally and through signs that no-smoking areas are available; (4) In no event shall public rest rooms be designated as smoking areas. Section 3. The provisions of Section 1 of this Ordinance shall take effect as of midnight, October 1, 2003. Introduced and considered favorably on first reading and ordered published this 19th day of November, A.D. 2002, and to be presented for final passage on the 17th day of December, A.D. 2002. Mayor ATTEST: City Clerk -ll- i Passed and adopted on final reading this 17th day of December, A.D. 2002. , Mayor ATTEST: City Clerk -12- AGENDA ITEM SUMMARY ITEM NUMBER: 30 DATE: November 19, 2002 FORT COLLINS CITY COUNCIL FROM: Michelle Pawar/ Carrie Daggett SUBJECT: First Reading of Ordinance No. 181, 2002, Repealing and Re-enacting Article III of Chapter 12 of the City Code, Regarding Smoking in Public Places and Places of Employment. RECOMMENDATION: CODY EXECUTIVE SUMMARY: Over the course of the past few years, the City Council has been considering potential changes to the existing City Code languCgthe ctm . s ok' c pl s and public meetings. After reviewing information regards e of o ng p li places at its June 4, 2002, and September 24, 2002, study until i staf o present for consideration at a regular Council meeting theii ev ed and_ pported by the Colorado Tobacco Education and Prevention Association ("CTEPA"), adapted as appropriate for the Fort Collins City Code and organizational structure. The Council also requested that ordinance language reflecting various possible modifications to the CTEPA model of interest to the Council be prepared and presented to the Council for consideration along with that ordinance. Ordinance No. 181, 2002, is an adapted version of the CTEPA model ordinance. The Ordinance: • prohibits smoking in all enclo0on c laces,Vallaces of employment, and in unenclosed areas of sp s ar ti h srmance halls; prohibits smoking in oke 20 feet "' [side of entrances, windows and • ventilation systems of smo a-free areas; • exempts private residences not in use as day care or health care facilities, up to 25% of lodging guest rooms, retail tobacco stores, establishments when in use for private functions, smoking in stage performances, most outdoor places of employment, rooms in use for smoking cessation therapy, and properties in use by other governmental jurisdictions; • prohibits retaliation against persons on account of the exercise of rights under the Ordinance. DATE: November ITEM NUMBER: 30 , BACKGROUND: 4 The City's current Smoking in Public Places City Code provisions were developed in 1984. Council initially adopted an ordinance enacting those provisions which was then challenged by petition and brought to the voters in a referendum. The voters approved the measure by a large margin in 1984. Those provisions were the first of their kind adopted in Colorado. Many communities have since adopted smoking ordinances that are more stringent. Since that time, the US Environmental Protection Agency ("EPA") has classified second-hand tobacco smoke as a Class A carcinogen (a known cause of human cancer) with no safe level of exposure.' I The 1999 Council Policv Aglt d t ual' ct P gave the Natural Resources Department Clean Air Team a asst ent t e it a ng in Public Places provisions. In 200Q the Air ualit Act n Plan ve st ter gui nce and direction to continue its work in that regard. In November 2000, staff presented to the Council Health and Safety Committee a public involvement plan for addressing the tobacco smoking project renamed the Second Hand Smoke Reduction Project. This project, which was carried out from November 2000 through April 2001, was designed to thoroughly define second hand smoke issues in the community and to determine what the City's role and responsibility might be for taking action. Staff worked closely with health educators from the Latimer County Department of Health and Environment, and the Poudre Health Services District. ether ere [ativ�Y e three organizations visited 10 civic groups, to gather pu c opt i s ab t o ke exposure, the populations most affected and effective s utions t reduc ®s e. er of other outreach methods were also implemented. In h 0 sta pr ented ts of its project work to the Council Health and Safety Committee. In summarizing the results of its outreach efforts at that time, staff reported that while many people spoke strongly about the need for increased regulation, a number of people were either unsure or not ready for the City to adopt new regulations. Many people felt strongly that the City needed to enforce current smoking restrictions before adding a new regulation. Staff further reported that it had met with representatives from the local restaurant association, who had demonstrated the use of ventilation systems. Members of that group also suggested that the City consider tax credits to encoura e rOanvirPeet ar s. During the March 2001 He and me 'ng, staff recommended that the Larimer County Department o than dre Health Services District be encouraged to continue their tobacco education campaign for another year before revisiting the question of whether to increase local smoking regulations. Staff continued to meet with and seek input from members of the local business community. citizens, and interested organizations. In May 2002, a virtual town hall was developed on the City's website in an effort to garner additional public input. 'US Environmental Protection Agency(1992).Respiratory Health Effects of Passive Smoking:Lung Cancer and Other / Disorders. Washington DC: USEPA Office of Research and Development. Novem5 i DATE: er 19, 2002 ITEM NUMBER: 30 June 4, 2002, Study Session At its June 4, 2002, study session, the City Council considered the input that had been received at that point, the information that had been gathered and collected by staff, and the range of issues to be decided in proceeding with a possible revision of the City's existing Smoking in Public Places provisions. At that time, the Council directed staff to carry out a statistically valid survey and to develop more specific recommendations to be presented to the City Council at an additional study session. The public outreach campaign in response to this request began on July 19, 2002, and continued until September 9, 2002. In addition to the survey that was conducted by an outside survey consultant, citizens interested in sharing their suggestions submitted their ideas through one of many met • Completing an line quOtpyCalling the Smo t{p • Picking up/dropping off questionnaires from a long list of public facilities; • Mailing questionnaires to the Natural Resources Department; • Attending community outreach meetings; and • Watching a "Smoking Dialogue" to learn about the various viewpoints on the issue. September 24, 2002, Study Session At its study session on SepteCe2Gn Id) un mewed the results of this public outreach effort. The surveyroug }phoneinterviews of a randomly selected sample of 400 adulteollins, dicated that: 1. 61% of survey respondents supported the prohibition of smoking entirely in all restaurants, without designated smoking areas. 2. 56% of survey respondents supported the prohibition of smoking in all bars, except in designated smoking areas. 3. 57% of survey respondents supported the prohibition of smoking at outdoor performance areas. 4. Survey respondents were evenly divided between support of and opposition totGnofis op s: prohibi ing i iYprohibi ing h 20 feilding perimeter. The Council also reviewed information regarding various approaches to the regulation of smoking in public places, including the model ordinance that had been developed and promoted by CTEPA. The Council also considered a "cap and trade" approach that was proposed by staff as a means of allowing establishments to buy and sell smoking seats within establishments. The Council directed staff to adapt the CTEPA model ordinance to the Fort Collins Code and organization, and to present it, together with additional optional language representing certain alternative approaches of interest to various Council members. Among the modifications suggested by members of the Council as being of interest were the following: 1. Allow smoking in outside locations, including exterior perimeter areas; 2. Exempt taverns and bowling establishments from the restrictions; Nove DATE: m er IT 2002 4 ITEM NUMBER: 30 3. Allow a phase-in or delayed effective date for the restrictions; and 4. Exempt establishments in a manner similar to the Boulder City Code (which allows designated smoking areas in bars and restaurants). Current City Code: The Smoking in Public Places provisions currently in the City Code generally require that all public places and public meetings be smoke-free, but also allow a number of exceptions to this general prohibition. The exceptions to the prohibition in the current Code are as follows: 1. Restaurants seat' r r t, 2. Beer/liquor lic sed p e; ses ( cl in Ar )ifnsees and areas used primarily for restaurant ores) ate exe r, ."'' 3. Fully enclosed r ms tScied nl- y smokerbxempt; 4. Rooms/halls used for social/business events are exempt if the seating is controlled by the sponsor of the event; 5. Tobacco retail establishments are exempt; 6. Private residences are exempt; 7. Private places of employment not used by the public are exempt; and 8. Smoking is allowed in Designated Smoking Areas ("DSAs") in any public place or at any public meeting, except that: DSA may be n r tha 0% t tal c - DSA may noLkib res o an- DSA may n bby, 11 r oth shared area (unless the area is greater than 5, .). Outline of the Ordinance: The restrictions in the Ordinance are different from the current City Code in that they would prohibit smoking in liquor licensed premises, restaurants seating not more than 30, outside perimeter areas, and there would no longer be any designated smoking areas. In addition, the Ordinance includes requirements for employer policies and non-retaliation provisions not in the current City Code. As presented, the Ordinance: • prohibits smokin all en I ed Plicpl�a"cl all places of employment, and in unenclosed areas of sports arenas, convention halls, and performance halls; • prohibits smoking in a smoke-free perimeter 20 feet outside of entrances, windows, and ventilation systems of smoke-free areas; • exempts private residences not in use as day care or health care facilities, up to 25% of lodging guest rooms, retail tobacco stores, establishments when in use for private functions, smoking in stage performances., most outdoor places of employment, rooms in use for smoking cessation therapy, and properties in use by other governmental jurisdictions; • requires employers to develop a smoking policy and provide it to all employees; • prohibits retaliation against persons on account of the exercise of rights under the Ordinance; ovem er 30 DATE: ITEM NUMBER: • requires the City Manager to engage in a continuing public education program to increase awareness and understanding of the smoking restrictions; and • makes the new restrictions effective July 1, 2003. In the preparation of the Ordinance, certain adjustments were made to the CTEPA model in order to address local form, editorial and procedural concerns. The most significant of these changes are listed below: 1. Modified the definition of "smoking" to make clear that the burning of candles, incense, and other items not commonly associated with the term smoking are not considered "smo 2. Modified thetinio "atta e b to r bars that are associated with, and attached tortyp of es 1 ments (s h as hotels, bowling alleys); 3. Modified the derl'o ra ' to spe ' hat any establishment receiving 25% or more of its gross revenue from food and non-alcoholic drink sales would be a "restaurant" (based on the standard for eligibility for a "restaurant" liquor license) regardless of the type of liquor license actually held by the establishment; 4. Added an exception for smoking cessation therapy, health care and hospice facilities to allow a physically separate, independently ventilated room for smoking (from Boulder's Code); 5. Reworded the "outdoor perimeter" language to make clear that the 20-foot perimeter in whit kin ' robited ea tad from entryways, windows. and ventilation stem ,6. Deleted the r firemen that Fir Department inspections include smoking complt e i sp io 7. Deleted the private cause of action provision; 8. Deleted the maximum penalty provision, and instead referenced City Code Section 1-15, which provides the general penalties for violation of the City Code; and 9. Changed the effective date of the restrictions to be July 1, 2003, instead of 60 days after the adoption. Additional, less substantive, changes from the CTEPA model ordinance are generally as follows: 1. Added a definiti o O!p e 1";2. Modified the d ninon u pla ' to consolidate all of the types of establishments entifigi places" i various sections of the CTEPA model;3. Modified the section prohibiting smoking in enclosed public places to eliminate the list of "public places" - -which now is part of the definition of a "public place"; 4. Added a provision clarifying that employers whose establishments are otherwise exempt from the smoke-free requirements are not required to provide a smoke- free workplace in those establishments; 5. Added a provision clarifying that buildings or property in use by governmental entities over which the City does not have regulatory control are not subject to the smoke-free requirements; 6. Added references to the City Manager as being responsible for implementation of the Ordinance; and November 30 DATE: ITEM NUMBER: 7. Modified the requirement for notification of new businesses such that all new t i sales/use tax license applicants (rather than "business license" applicants) will receive notice of the smoking provisions. Prepared Amendments: In response to Council's requests for optional language related to areas the Council has identified as possible exceptions to the complete prohibition of smoking, staff has prepared five amendments. These amendments provide a structure for deciding how to treat outdoor areas and I certain types of establishments under the Ordinance. The types of establishments that have been 1 identified as the subject of possible modifications from CTEPA include: i 1. Outdoor establish is (ou r pat o Y rformance areas); 2. "Freestanding bars' bars tha re no tt ed ttype of establishment); 3. "Attached bars" (b a ch to pe of establishment, like a restaurant bar or hotel bar); 4. Bowling alleys (particularly bar areas of bowling alleys); and 5. Bingo facilities. i i The prepared amendments are as follows: i ❑ AMENDMENT NO. I (To Allow Smoking in Unenclosed Areas) This amendment would more) ar,.sl EP a d o o to eliminate prohibitions on smoking in unenclosed (outs nd w 1 11 s ing in sports arenas, convention halls and performance halls. : s `o ices for; ow to deal with the "smokeffree perimeter" issue. Option A would eliminate all smoke-free perimeters. Option B would reduce the smoke-free perimeters from 20 feet to 5 feet. ❑ AMENDMENT NO. 2 (To Allow Smoking in Certain Types of Establishments) This amendment would modify the CTEPA-based provisions by allowing smoking in specified types of establishments. Council will need to specify each kind of establishment in which i smoking should be permitted. ❑ AMENDME O. 3 ((All Jignatejd �moking Areas in Certain Types of Establishmen i Instead of allowing smoking anywhere in a particular establishment, this amendment would modify the CTEPA-based provisions by allowing designated smoking areas in certain specified types of establishments. Again, Council will need to specify each kind of establishment that should be allowed to have a designated smoking area. ❑ AMENDMENT NO. 4 (To Phase-In the Requirements) This amendment would modify the CTEPA-based provisions to phase-in the new requirements for one year after the adoption of the new smoking restrictions. November 30 DATE: ITEM NUMBER: ❑ AMENDMENT NO. 5 (To Allow Additional Time for Compliance After the Effective Date of the Requirements, Based on Business Hardship) This amendment would modify the CTEPA-based provisions to not only phase-in compliance for one year after the adoption of the new smoking restrictions, but also to allow the granting of six additional months, based on business hardship, before full compliance would be required. " P Y Je" OpW7- COPY