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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 11/19/2002 - FIRST READING OF ORDINANCE NO. 181, 2002, REPEALI 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: EXECUTIVE SUMMARY: Over the course of the past few years, the City Council has been considering potential changes to the existing City Code language restricting smoking in public places and public meetings. After reviewing information regarding the issue of smoking in public places at its June 4, 2002, and September 24 2002, study sessions, Council directed staff to present for consideration at a regular Counc 1 meeting the model ordinance developed and supported 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 resented to the Council for consideration along with that ordinance. Ordinance No 181, 2002, is an adapted version of the CTEPA model ordinance. The Ordinance: • prohib is smoking in all enclosed public places, in all places of employment, and in unencl sed areas of sports arenas, convention halls and performance halls; • prohib is 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; • prohibits retaliation against persons on account of the exercise of rights under the Ordinance. DATE: ITEM NUMBER: 30 BACKGROUND: 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.' The 1999 Council Policy Agenda and Air Quality Action Plan gave the Natural Resources Department Clean Air Team the assignment to revisit the Smoking in Public Places provisions. In 2000, the Air Ouality Action Plan gave staff further guidance 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 Larimer County Department of Health and Environment, and the Poudre Health Services District. Together, representatives from the three organizations visited 10 civic groups, to gather public opinions about second hand smoke exposure, the populations most affected and effective solutions to reduce exposure. A number of other outreach methods were also implemented. In March 2001, staff presented the results 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 encourage better ventilation in smoking areas. During the March 2001 Health and Safety Committee meeting, staff recommended that the Larimer County Department of Health and Environment and Poudre 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 Othe) Disorders. Washington DC:USEPA Office of Research and Development. DATE: ovem er 19, 2OU2 3 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 methods: • Completing an online questionnaire; • Calling the Smoking Input Line • 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 September 24, 2002, the City Council reviewed the results of this public outreach effort. The survey, which was conducted through phone interviews of a randomly selected sample of 400 adult citizens residing in Fort Collins, indicated 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 to the following options: prohibition of smoking in outdoor lines. prohibition of smoking within 20 feet of a building 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; ovem er DATE: 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 seating 30 or fewer are exempt; 2. Beer/liquor licensed premises (excluding Arts licensees and areas used primarily for restaurant purposes) are exempt; 3. Fully enclosed rooms occupied only by smokers are exempt; 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 not more than 50% of total public area; - DSA may not be in public restroom; and - DSA may not be in lobby, hallway or other shared area (unless the area is greater than 5,000 sq. ft.). 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 smoking in all enclosed public places, in 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 DATE: ITEM NUMBER: 30 • 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 "smoking"; 2. Modified the definition of "attached bar" to cover bars that are associated with, and attached to, other types of establishments (such as hotels, bowling alleys); 3. Modified the definition of"restaurant" to specify that 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 which smoking is prohibited is measured from entryways, windows, and ventilation systems; 6. Deleted the requirement that Health or Fire Department inspections include smoking compliance inspections; 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 definition of the term"performance hall"; 2. Modified the definition of the term "public place" to consolidate all of the types of establishments identified as "public places" in 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 ovem ec 30 DATE: ITEM NUMBER: 7. Modified the requirement for notification of new businesses such that all new 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 certain types of establishments under the Ordinance. The types of establishments that have been identified as the subject of possible modifications from CTEPA include: 1. Outdoor establishments (outdoor patios, sports arenas, performance areas); 2. "Freestanding bars" (bars that are not attached to another type of establishment); 3. "Attached bars" (bars that are attached to another type of establishment, like a restaurant bar or hotel bar); 4. Bowling alleys (particularly bar areas of bowling alleys); and 5. Bingo facilities. The prepared amendments are as follows: ❑ AMENDMENT NO. I (To Allow Smoking in Unenclosed Areas) This amendment would modify the CTEPA-based provisions to eliminate prohibitions on smoking in unenclosed (outside) areas, and would allow smoking in sports arenas, convention halls and performance halls. It also offers two choices for how to deal with the "smoke free 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 smoking should be permitted. ❑ AMENDMENT NO. 3 (To Allow Designated Smoking Areas in Certain Types of Establishments) 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. 7DATE: ovem er ITEM NUMBER: 30 El 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. 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 has found and declared 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 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 See. 12-56. Definitions. The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in this Section: (a) Attached bar shall mean the bar area of an establishment that is ancillary to another, principal, use of that establishment, such as a bar attached to a restaurant, hotel, bowling alley, or commercial bingo facility. For the purpose of this Article, an attached bar shall include only the immediate bar area that is used primarily for the serving of alcoholic beverages, notwithstanding that the licensed premises for the purpose of the liquor license pursuant to which an attached bar operates may extend beyond that area. An "attached bar" for the purposes of this shall not include any area that constitutes a restaurant, as defined in this Section, but may include the service of appetizers and snacks. Although an establishment may contain an attached bar, the term "attached bar" shall not include the portions of the establishment that are not used primarily for the service and consumption of alcoholic beverages. (b) Business shall mean any sole proprietorship, partnership,joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental,engineering, architectural or other professional services are delivered. (c ) Commercial bingo facility shall mean premises used for the purpose of conducting games of chance. (d) 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. (e) 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. (f) 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 2 ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid, office landscaping or similar structures. • (g) 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", "restaurant', or "sports arena", as defined in this Section, including, but not limited to taverns, nightclubs, cocktail lounges, and cabarets. (h) 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. (1) Place of employment shall mean any area under the control of a public or private employer that employees normally frequent or use during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and class rooms, employee cafeterias and hallways. Place of employment shall not include a private residence unless is the residence is used as a child care, adult day care or health care facility. 0) 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. . (k) Private function shall mean any activity that is restricted to invited guests in a nonpublic setting. (1) 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, 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". (m) 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 derives not less than twenty-five percent (25%) of its gross income from the sale of food and non-alcoholic drinks, such 3 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. (n) 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. (o) 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. (p) 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. (q) 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. (r) Sports arena shall mean sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events. Sec. 12-57. Title; findings; purpose. (a) This Article shall be known and may be cited as the Fort Collins Smoke-Free Air Act of 2002. (b) 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 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. (c) 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 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 and certain outdoor establishments. (a) Smoking shall be prohibited in all enclosed public places within the city, except as otherwise expressly permitted under this Article. (b) Smoking shall be prohibited in all sports arenas, convention halls, and performance halls, whether enclosed or unenclosed. 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. (b) Within ninety (90) days of the effective date of this Article, each employer having an enclosed place of employment located within the city shall adopt, implement, make known and maintain a written smoking policy which shall prohibit smoking in all enclosed facilities within such place of employment, without exception. This prohibition shall include 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. (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. (d) The requirements of this Section shall not apply to an employer if and to the extent such employer's place of employment is an establishment in which smoking is permitted under this Article. 5 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, operable window or ventilation system of any smoke-free establishment or area. 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 Section 12-59: (1) Private residences, except when used as a child-care, adult day care or health care facility. (2) Up to twenty-five percent (25%) of guest rooms in lodging establishments, including but not limited to bed and breakfasts, hotels, motels and inns. (3) Retail tobacco stores. (4) Those portions of an establishment used for private functions that are not open to the public, during the period of such private use. (5) Performance halls to the extent necessary to allow smoking by a performer as part of a stage production. (6) Outdoor places of employment, except sports arenas, convention halls and performance halls. (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 in use by the State of Colorado, the United States government, Latimer County, or the Poudre School District that have not been designated as smoke-free by the managing authority. (b) Notwithstanding any other provision of this Article, any owner, operator, manager or other person who controls any establishment described in this Section may declare such establishment, and/or grounds entirely or partially smoke-free. Sec. 12-63. Posting of signs. (a) "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 building entrance or other areas where smoking is prohibited under this Article, by the owner, operator, manager or other person having control of such building or other area. 6 (b) Every public place where smoking is prohibited by this Article shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited. • (c) 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. (d) 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 having control of such area. See. 12-64. 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. 12-65. 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. Sec. 12-66. 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 Section 1-15. (d) Each day of continuing violation shall be deemed to be a separate violation. Sec. 12-68. 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 7 in their compliance with it. Such program may include publication of a brochure for affected businesses and individuals explaining the provisions of this Article. Sec. 12-69. Other applicable laws. This Article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. Sec. 12-70. 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. Section 2. The provisions of Section 1 of this Ordinance shall take effect as of midnight, July 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 Passed and adopted on final reading this 17th day of December, A.D. 2002. Mayor ATTEST: City Clerk 8 i IT M 4. W., SMOKING ORDINANCE AMENDMENT NO. I (To Allow Smoking in Unenclosed Areas) This amendment would modify the CTEPA-based provisions to eliminate prohibitions on smoking in unenclosed (outside) areas and would allow smoking in sports arenas, convention halls and performance halls. It also offers two choices for how to deal with the "smoke free perimeter" issue. Option A would eliminate all smoke-free perimeters. Option B would reduce the smoke-free perimeters from 20 feet to 5 feet. 1 The phrase "except sports arenas, convention halls and performance halls" would be deleted from Code Section 12-62(a)(6). 2. OPTION A: Code Section 12-61 would be deleted. ]OR[ OPTION B: Code Section 12-61 would be modified to delete "twenty (20)" from Code Section 12-61 and replace it with "five (5)", and to clarify that the restriction applies only within that distance from entryways, open windows, or ventilation intakes. • SMOKING ORDINANCE AMENDMENT NO. 2 (To Allow Smoking in Certain Types of Establishments) This amendment would modify the CTEPA-based provisions to allow smoking in specified types of establishments. Council will need to specify each kind of establishment in which smoking should be permitted. 1. Code Section 12-62(a) would be revised to add the types of additional establishments in which smoking will be permitted. 2. A new subsection would be added to the "Posting of Signs" Code section requiring the posting of a sign stating "Smoking Permitted". 3. A new section would be added to require that financial accounts and related records must be maintained and available for inspection and examination by the City to allow the City to determine whether an establishment constitutes a freestanding bar, attached bar, or other type of establishment under this Article. • SMOKING ORDINANCE AMENDMENT NO. 3 (To Allow Designated Smoking Areas in Certain Types of Establishments) Instead of allowing smoking anywhere in a particular establishment, this amendment would modify the CTEPA-based provisions to allow 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. 1. A definition of the term "designated smoking area" would be added to Code Section 12-56, "Definitions". 2. Code Section 12-62(a) would be revised to add a new subsection listing designated smoking areas as not subject to regulation. 3. A new Code Section describing the requirements associated with designated smoking areas would be added. These requirements would include: • Designated smoking area can be up to 50% of floor area (excluding areas for waiting areas, lobbies, hallways, elevators, restrooms, or service lines); • Designated smoking area must be independently ventilated and physically separate from smoke-free areas; • Any service or amenity must be equally available in smoking and smoke-free areas; • Patrons must be advised that there is a choice of smoking or smoke- free area. 4. A new subsection would be added to the "Posting of Signs" section (previously Section 12-63), requiring the posting of "No Smoking Except in Designated Smoking Areas" signs. 5. A new section would be added to require that financial accounts and related records must be maintained and available for inspection and examination by the City to allow the City to determine whether an establishment constitutes a freestanding bar, attached bar, or other type of establishment under this Article. SMOKING ORDINANCE 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. 1. The effective date of Section 1 of the Ordinance (the new Code language) would be changed to January 1, 2004, rather than July 1, 2003. 2. A new section would be added to the Ordinance providing for a 50% reduction in the permitted size of any designated smoking area under the current City Code for the period from July 1, 2003, through December 31, 2003. This means that up to 25% of an establishment could be designated as a smoking area during that six-month period. • SMOKING ORDINANCE 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. 1. The effective date of Section 1 of the Ordinance would be changed to January 1, 2004, rather than July 1, 2003. 2. A new section would be added to the Ordinance providing for a 50% reduction in the permitted size of any designated smoking area under the current City Code for the period from July 1, 2003, through December 31, 2003. This means that up to 25% of an establishment could be designated as a smoking area during that six-month period. 3. A definition of the term "hardship compliance phase-in" would be added to Code Section 12-56, "Definitions". 4. A new Code section would be added to describe eligibility, process and requirements associated with a hardship compliance phase-in application and schedule. These would include: • New establishments approved for construction or remodeling after June 30, 2003, would not be eligible to delay compliance after December 31, 2003; • Applications would be due no later than December 5, 2003; • A business would need to show a reduction in gross revenue between July through October 2002 and the same months in 2003 to have additional time to comply; • The maximum additional time for compliance would be through June 30, 2004 (6 months); • Applicants would be required to submit sales tax and other financial statements to verify the revenue reduction; • Applicants would be required to protect the health of employees during the phase-in period; • The City Manager could request additional information or conduct a hearing, and would need to issue a decision within 10 days after receiving all the needed information. 5. A new subsection would be added to the "Posting of Signs" section requiring the posting of "Smoking Regulated Pursuant to Hardship Compliance Phase-In Schedule" signs.