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Home My WebLink AboutCOUNCIL - AGENDA ITEM - 12/05/2017 - FIRST READING OF ORDINANCE NO. 172, 2017, AMENDINGAgenda Item 13 Item # 13 Page 1 AGENDA ITEM SUMMARY December 5, 2017 City Council STAFF Tyler Marr, Policy and Project Analyst Jody Hurst, Legal SUBJECT First Reading of Ordinance No. 172, 2017, Amending Article III of Chapter 12 of the Code of the City of Fort Collins Regarding Smoking in Public Areas. EXECUTIVE SUMMARY The purpose of this item is to consider changes to the downtown smoking ordinance as consistent with the direction given by Council at the August 22 Work Session. The changes include placing a 10 p.m. to 5a.m. window in which the ordinance would not be in effect, and two options related to having designated smoking areas within the downtown zone, one of which creates up to eight areas and one which would allow smoking in all alleys within the zone. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. Staff recommends adopting provisions that lift smoking restrictions from 10 p.m. to 5 a.m. If Council wishes to proceed with designated areas, the option of a limited number of designated areas is preferable. BACKGROUND / DISCUSSION In 2016, changes to the City’s smoking ordinance that were adopted by City Council in 2015 went into effect in the downtown area, prohibiting smoking within the downtown boundaries as set by the ordinance. These restrictions were in addition to smoking prohibitions on City property and at City-approved special events. Enforcement has varied since the time of implementation, with initial efforts focused primarily on education and outreach. This included:  the creation and installation of signs  public meetings  distribution of information packets to downtown business owners  numerous newspaper articles and social media posts  outreach at various City events  visits with the school district to talk about restrictions in City parks adjacent to its properties, and  personal contacts by Code Compliance, Police, and Park staff with smokers within restricted areas to inform them of the smoke-free regulations Very limited enforcement through writing tickets was done during the first year. However, enforcement efforts were increased based on direction from City leaders. The efforts in this regard have been two-fold. First, additional signage was created and installed that was more regulatory in look and content. This replaced many of the downtown “Smoke Free in FC” signs that were initially placed that had a much less regulatory feel but still relayed the message. Second, staff from Code Compliance and Police Services teamed up to increase enforcement in the Downtown Smoke-Free Zone, including issuing tickets. Agenda Item 13 Item # 13 Page 2 Increased outreach resulted in many concerns from downtown business owners, which were subsequently presented to Council at its August 22 work session. Staff has continued to hear many of the same concerns in the interim-period, including:  The Downtown Smoke-Free Zone is too big  Designated smoking areas for residents, customers, or employees are needed  There is no way to educate everyone; over 1,000,000 visitors come to downtown  Smoking is acceptable and a large part of other cultures; Fort Collins gets a lot of international visitors  The restrictions create a competitive disadvantage for Old Town compared to other Fort Collins’ shopping areas  The penalty should not be criminal and require a court appearance; and  Enforcement has damaged relationships with Police Staff has also heard from residents, customers, and government partners that the restrictions are a positive thing, particularly helping those who have health conditions that make them susceptible to smoke. Additionally, staff has heard that these restrictions advance an important goal of reducing smoking among younger age groups in the service industry, who have some of the highest incidence of smoking rates in the country. Based on this information, Councilmembers gave input at the August 22 work session and indicated a desire to proceed with options for three changes to the ordinance: 1. Creation of a petty offense category 2. Remove restrictions from 10 p.m. to 5 a.m, as Police Services has concerns about volume and priority of calls between those hours 3. Explore options for implementing designated areas within the no-smoking zone. Staff has since worked with relevant departments to explore feasibility and operational consideration of various options, and has performed citizen outreach on the following options. The introduction of a petty offense category is being addressed separately in Ordinance No. 171, 2017. Options for Consideration 1. Creation of a 10 p.m. to 5 a.m. window where the ordinance would not be in effect Based on information provided by Police Services highlighting a significantly higher number of calls for service after 10 p.m., staff is recommending that the ordinance be lifted from 10 p.m. to 5a.m. Staff has attached call data from District 1 showing call data over a recent three month stretch 7 days of the week (Attachment 1) and a second sheet showing call data including only Thursday through Sunday. (Attachment 2) Other jurisdictions around Colorado generally do not have this provision as a part of their smoking ordinance. Glenwood Springs recently implemented a window where its ordinance is not in effect, but that change has not been in effect long enough to monitor effectiveness or behavior changes. 2. Consideration of designated smoking zones Staff initially began outreach with a similar option to what was presented to Council at the August 22 work session, which was a handful of small designated zones scattered throughout the downtown area. Initial outreach yielded feedback that this option would require complex signage, education, and enforcement, and that a simpler option should be considered in addition. Therefore, staff expects to establish one of three designated area options, which are presented for Council input. The Ordinance provides for management staff to establish designated smoking areas through posting of signs. Agenda Item 13 Item # 13 Page 3 A. No Changes This option would leave the current boundary and status quo intact, adding no designated smoking areas. Pros:  Fully preserves the intent of original version of the ordinance, making downtown a smoke free area  Limits secondhand smoke to all people in the downtown area, not just those in particular areas.  Education and outreach has been focused on this option for nearly two years now.  No other smoking restricted zone in the state that staff is aware of has designated areas as part of its design. Cons:  Does not address many of the downtown business owners’ concerns  Can require individuals to walk a considerable distance if they do want to smoke B. Several, 10-20 feet in diameter, designated areas With this option, staff would implement up to eight (8) designated areas within the downtown smoking zone as identified on the attached map. (Attachment 3) Most of these zones would form a ten-foot radius from a clearly marked, pre-identified location. Where a ten-foot radius would put the designated zone within twenty (20) feet of an operable door, window, or ventilation system, staff will utilize a five-foot radius. The Parks Department has been informed of these potential changes and is able to resource the emptying of urns and at minimum the occasional cleaning of areas around a designated zone. Zones that are in improved alleys are would be cleaned more frequently, as they are a part of the current routes services by the Parks crews. Pros:  Provides some outlets for smokers and attempts to keep activity localized to specific areas that non- smokers can choose to avoid.  Helps address business owner concerns who support providing smoking options for patrons and employees.  Potentially helps reduce violations and related enforcement.  Helps reduce pressures on properties just outside of the Smoke-Free-Zone. Cons:  Reduces health benefits of having a smoke-free zone for those who frequent Downtown and end up impacted by those who are smoking  Increases health risks for people with chronic health conditions, young children, and pregnant women  Complicates enforcement and education efforts o Important to clearly identify areas where smoking would be allowed o Important to find areas that are not within twenty feet (20’) of operable doors, windows, air vents and patios o Could result in “hang out” areas with potential increase in mischief or other negative behaviors o Sends conflicting messages about smoking Downtown since it would be allowed in some areas C. Allow smoking in alleys within the Smoke-Free-Zone This option would allow for smoking in all alleys within the Smoke-Free-Zone, including improved alleyways. Smoking would still be restricted within 20 feet of an operable door, window, or ventilation system as defined under the code. In essence, the restricted areas would become street frontages and plazas (Old Town Square and Oak Street) within the Smoke-Free-Zone. Agenda Item 13 Item # 13 Page 4 Similar considerations related to maintenance of alleys would apply to this option. The DDA staff has indicated that they do not have concerns about treating improved and unimproved alleys the same in terms of allowing smoking under this option. Pros:  Same as option b, though it is harder to avoid smoking areas if walking through alleys.  Easier to educate visitors and residents about where it is acceptable to smoke (e.g., “smoking is allowed out back”)  Does not concentrate multiple smokers in one area, as designated areas may do. Cons:  Same as option b, possible amplified in some instances.  May tarnish reputation or welcoming nature of improved alleys, of which the City and partners have spent millions of dollars improving  20-foot rule limits practicality of where you can smoke within alleys, and enforcement would be challenging within the alleys. CITY FINANCIAL IMPACTS The options involving designated zones will put additional work load on City Parks crews, who believe they are at capacity in the summer months. New urns for designated areas and new signage reflecting changes in the ordinance would result in relatively minor one-time expenses. PUBLIC OUTREACH Staff has reached out to various stakeholders, including the Downtown Development Authority (DDA), Downtown Business Association (DBA), the Larimer County Health Department, and residents. Staff presented to the DBA at a membership meeting on November 16 and members were generally receptive to the proposed changes, including the creation of designated zones. Within the designated zones, most comments pointed to the association being supportive of option c, smoking allowed within alleys. They continued to express concerns about competitiveness of attracting customers and employees from areas such as Foothills, Harmony, and Centerra; all of which do not have similar restrictions. Larimer County Department of Health and Environment provided an inforgraphic (Attachment 4) detailing public health best practices related to smoke-free areas. The following statements are taken from that document: "Lifting smoking restrictions at night is not a public health best practice. Time limitations are generally not included in tobacco policies because they do not protect health, they are difficult to enforce and to explain to the public. Designated areas still pose risk for secondhand smoke exposure, congregation of litter, and may influence social norms for youth. Over time smoke-free-zones can influence smoking rates, particularly in reducing smoking among groups like young service industry workers, who smoke at higher rates than other portions of society". The Downtown Development Authority staff indicated that they would support designated areas, and that in terms of education and outreach, option c is the easiest. They expressed frustration that the original boundaries were set larger than initially proposed back in 2015, and that adding designated zones, in essence, reverts the zone to a workable size as initially proposed. Staff is planning to hold a public meeting on November 30 to receive clicker feedback on the various options and answer clarifying questions. Staff will provide Council with the information from this meeting in the staff presentation at First Reading or in a read before memo on December 5. Agenda Item 13 Item # 13 Page 5 ATTACHMENTS 1. District 1 Average Event Count by Hour, August 2016-July 2017 (PDF) 2. District 1 Average Event Count by Hour (Thursday-Saturday), August 2016-July 2017 (PDF) 3. Potential Designated Smoking Areas Map (PDF) 4. Larimer County Health and Envrionement - FCSmokeFree - Nov 2017 (PDF) 5. August 22 Work Session Summary (PDF) 6. Powerpoint presentation (PDF) 0.00 0.50 1.00 1.50 2.00 2.50 3.00 0000-0059 0100-0159 0200-0259 0300-0359 0400-0459 0500-0559 0600-0659 0700-0759 0800-0859 0900-0959 1000-1059 1100-1159 1200-1259 1300-1359 1400-1459 1500-1559 1600-1659 1700-1759 1800-1859 1900-1959 2000-2059 2100-2159 2200-2259 2300-2359 District 1 - Average Event Count by Hour August 2016 - July 2017 Aug-Oct Nov-Jan Feb-Apr May-Jul ATTACHMENT 1 Lori Frank, Crime Analyst 9/22/17 0.00 0.50 1.00 1.50 2.00 2.50 3.00 3.50 4.00 4.50 0000-0059 0100-0159 0200-0259 0300-0359 0400-0459 0500-0559 0600-0659 0700-0759 0800-0859 0900-0959 1000-1059 1100-1159 1200-1259 1300-1359 1400-1459 1500-1559 1600-1659 1700-1759 1800-1859 1900-1959 2000-2059 2100-2159 2200-2259 2300-2359 District 1 - Average Event Count by Hour August 2016 - July 2017 Thursday - Saturday Aug-Oct Nov-Jan Feb-Apr May-Jul ATTACHMENT 2 IIII³I WWWWWWWWWWWWWWWWWWWWWWWWWWWWWWÕZYXW Oak St Plaza Park Library Park Old Fort Collins Heritage Park Old Fort Collins Heritage Park E Oak St Cherry St Mathews St W Oak St Walnut St Peterson St Chestnut St Linden St W Olive St Maple St Willow St 281 Office Building Civic Center Parking Structure Old Town Parking Structure DTC Hotel Parking Garage Oak St/Remington St Parking Lot Larimer County Justice Center 215 N Mason Building 117 N Mason Building Laporte Ave S Mason St S College Ave Remington St N Mason St N College Ave E Mountain Ave W Mounta i nAve Jefferson St / Date Created: Wednesday, November 15, 2017 Path K:\ArcMapProjects\Neighborhood_Services\Downtown Smoke-Free Areas\SmokingRegulations\SmokingRegulations.aprx Potential Designated Smoking Zones Potential Smoking Area No Smoking Sidewalks Current Downtown Smoke-Free Zone Downtown Sidewalk/Median Downtown Smoke-free Areas Exposure at 10:01 pm is just as harmful as it is at 9:59 pm and Big Tobacco knows it. Smoke-free policy time limitations are a type of “smoker accommodation,” which is a tobacco industry tactic to make alternatives to meaningful smoke-free laws.1 These laws are difficult to explain and enforce. Fort Collins was one of the first communities in Colorado to set smoke-free indoor and outdoor policies to protect all citizens and visitors. FORT COLLINS IS A LEADER IN TOBACCO CONTROL POLICIES Protect Public Health The levels of secondhand smoke exposure outdoors can reach levels attained indoors depending on direction and amount of wind, and number and proximity of smokers.2 Drifting tobacco smoke, even outdoors, can trigger asthmatic attacks and other serious health problems in nonsmokers.2 Fort Collins smoking rate is at an all-time low of 8%.3 However, based on state data, non-student young adults (18-24 years) and hospitality/food workers are still smoking at alarming rates (32% and 25%, respectively).4,5 These populations work in and visit downtown frequently. Tobacco policies like smoke-free areas encourage these smokers to quit, reduce secondhand smoke exposure, and create a norm for youth that tobacco use is unhealthy and unacceptable in public settings.6 STRONG POLICIES INFLUENCE KEY POPULATIONS DESIGNATED AREAS STILL POSE RISKS SECONDHAND SMOKE IS DANGEROUS AT ALL TIMES Department of Health and Environment ATTACHMENT 4 1. Philip Morris Records (1995). The Accommodaon Plan 1995. Industry Documents Library. Retrieved hps://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/#id=mnym0073 2. Sureda, X., Fernández, E., López, M. J., & Nebot, M. (2013). Secondhand Tobacco Smoke Exposure in Open and Semi-Open Sengs: A Systemac Review. Environmental Health Perspecves, 121(7), 766-773. doi:10.1289/ehp.1205806 3. Health District of Northern Larimer County (2017). “Community Health Assessment 2016.” [Raw Data File] James, K., Burns, E., Li, Y., & Levinson, A. (2017, March). Adult Tobacco Use and Exposure Colorado 2015 (Rep.). Retrieved hps://www.colorado.gov/paciﬁc/sites/default/ﬁles/PW_A35_Tobacco-Adult-Use -and-Exposure-report.pdf 4. James, K., Burns, E., Li, Y., & Levinson, A. (2017, March). Tobacco Use Behaviors in the Workforce Colorado 2015 (Rep.). Retrieved hps://www.colorado.gov/paciﬁc/sites/default/ﬁles/PW_A35_Tobacco-Use-Behaviors-in-the- Workforce.pdf 5. Campaign for Tobacco Free Kids. (2010, December). SMOKE-FREE LAWS ENCOURAGE SMOKERS TO QUIT AND DISCOURAGE YOUTH FROM STARTING. Retrieved from hps://www.heart.org/idc/groups/heart- public/@wcm/@swa/documents/downloadable/ucm_459526.pdf 6. Farelly, M.C. et. al. (2014) Are Tobacco Control Policies Eﬀecve in Reducing Young Adult Smoking? Jour- nal of Adolescent Health. 54(4): 481-6. Sources Department of Health and Environment ATTACHMENT 5 December 5, 2017 Smoking Ordinance Modifications Tyler Marr, Policy and Project Analyst ATTACHMENT 6 Existing Smoking Ordinance • Went into effect in 2016 • Prohibits smoking downtown Council Review in August • Explore a non-criminal offense • Explore lifting restrictions between 10p.m. and 5a.m. • Explore designated areas 2 Background and History Concerns With Current Ordinance • Downtown Smoke-Free Zone is too big • Designated smoking areas are needed • No way to educate everyone – especially visitors • Restrictions create a competitive disadvantage for Old Town compared to other Fort Collins’ shopping areas • Penalty should not be criminal • Enforcement has damaged relationships with Police and City 3 Proposed Changes Petty Offense Category • Create new offense category within municipal code • Maximum fine of $500 and no jail time • Would not appear on a criminal record Time Restrictions • Lift smoking restrictions from 10 p.m. to 5 a.m. • Police data shows higher level of calls during these hours 4 Proposed Changes Designated Smoking Areas Options 1. Several small zones scattered throughout downtown • Would provide relief for smokers • Concentrated areas that non-smokers could choose to avoid • Education, signage, and enforcement challenges 5 Proposed Designated Areas 6 Proposed Changes Designated Smoking Areas Options 2. Allow smoking in all alleys, beyond 20 feet of doors, windows, and ventilation systems • Simplifies education to residents and visitors • Harder for non-smokers to avoid 3. Leave Smoke-Free-Zone as is • Maintains integrity of original ordinance • Established and well-educated • Best option for those with breathing issues 7 Public Outreach • Stakeholder groups • DBA, DDA • Larimer County • Public meeting on 11/30 8 Summary of Options 1. Creation of Petty Offense Category 2. Lifting smoking restrictions from 10p.m. to 5a.m. 3. Designated Areas a) Several small, scattered zones throughout Smoke-Free-Zone b) Allow smoking in alleys (20 ft. rule still applies) c) Keep Smoke-Free-Zone as is 9 -1- ORDINANCE NO. 172, 2017 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING ARTICLE III OF CHAPTER 12 OF THE CODE OF THE CITY OF FORT COLLINS REGARDING SMOKING IN PUBLIC AREAS WHEREAS, on February 17, 2015, the City Council adopted Ordinance No. 015, 2015, establishing a Downtown Smoke-free Zone (the “Zone”); and WHEREAS, the Zone was created to prohibit smoking in outdoor areas in the downtown area; and WHEREAS, in March of this year, enforcement of the Zone began in full force; and WHEREAS, since enforcement began, many visitors and employees in the downtown area have complained that a misdemeanor offense results in a penalty that is too severe for smoking violations; and WHEREAS, City staff does not recommend reclassifying smoking violations as civil infractions, as the Municipal Court cannot issue a warrant for failure to appear in court on a civil infraction, making such offenses harder to enforce; and WHEREAS, City staff believes a petty offense, which carriers a lower fine than a misdemeanor and no possibility of jail time, is an appropriate classification for a smoking offense; and WHEREAS, the City Council is also considering on first reading Ordinance No. 171, 2017 which, if approved, would create a petty offense category of violations within the City Code; and WHEREAS, employers and employees in the downtown area have raised concerns about the hardships created by the Zone; and WHEREAS, designating areas to allow for smoking within the Zone away from the main pedestrian traffic areas would permit employees in the Zone to smoke on break without committing a crime; and WHEREAS, the City Council has determined that the proposed amendments are in the best interests of the City and are necessary for the health, safety, and welfare of the City’s citizens. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. -2- Section 2. That Section 12-56 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 12-56. Definitions. Alleyway shall mean a street or highway intended to provide access to the rear or side of lots or buildings in urban areas and not intended for the purpose of through vehicular traffic. … Designated smoking area shall mean any area that the City, by use of officially-designated signs or markings, has dedicated as an area in which people may lawfully smoke. … Lawfully smoke shall mean to abide by all provisions of this Code and any state or federal statute regarding smoking. … Section 3. That Section 12-59.5 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 12-59.5. Smoking prohibited in the Downtown Smoke-Free Zone. Smoking shall be prohibited in the Downtown Smoke-Free Zone. Unless otherwise prohibited by City Code, this Section shall not apply to any persons lawfully smoking in a privately owned residence, entirely within an enclosed privately owned motor vehicle, or in a retail tobacco business. Smoking shall be prohibited in the Downtown Smoke-Free Zone. Unless otherwise prohibited by City Code, this Section shall not apply to any person smoking: (a) in a privately-owned residence; (b) entirely within an enclosed privately-owned motor vehicle; (c) in a retail tobacco business; (d) between the hours of 10:00 p.m. and 5:00 a.m.; (e) within a designated smoking area; or (f) within an alleyway. Section 4. That Section 12-67 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 12-67. Violations and penalties. -3- (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 petty offense, punishable by a fine or imprisonment in accordance with § 1-15(h). (d) Each day of continuing violation shall be deemed to be a separate violation. Section 5. That the amendments made by Sections 2 and 3 of this Ordinance shall not take effect until February 1, 2018. Introduced, considered favorably on first reading, and ordered published this 5th day of December, A.D. 2017, and to be presented for final passage on the 19th day of December, A.D. 2017. __________________________________ Mayor Pro Tem ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 19th day of December, A.D. 2017. __________________________________ Mayor ATTEST: _______________________________ City Clerk Patio City-Owned Property ATTACHMENT 3