Memorandum

Memorandum

To:    Mike Wildgen, City Manager

From: David L. Corliss, Assistant City Manager and Toni Wheeler, Staff Attorney

Re:     Ordinance Concerning Smoking In Public Places   

Date: April 23, 2004

Attached is a revised version of Ordinance No. 7782, banning smoking in public places and places of employment.  The changes include:

1.  In the sixth recital the word “carcinogens” is replaced with “ETS.”

2.  The definition of “smoking” in Section 9-802(L) has been changed to delete the phrase “plant or combustible substance in any manner or in any form.”  The definition, as amended, is the definition in the City’s current smoking regulations.  We have received no indication that the current definition of “smoking” is insufficient.

3.  In Section 9-808, subparagraph (C) is deleted based upon a recent Kentucky Supreme Court decision entered April 22, 2004 (Lexington Fayette County Food and Beverage Association v. Lexington-Fayette Urban County Government, et al., Case No. 2003-SC-0978-TG) which held similar language concerning “smoking paraphernalia” unconstitutionally vague.

4.  The provisions concerning the sale to and purchase of tobacco products by persons under age 18 will be moved to another article in Chapter 9.  In the event this Ordinance No. 7782 is repealed pursuant to the initiative and referendum statute, we want the provisions concerning the sale of tobacco products to minors to remain in the City Code.  Also, state statutes provide different penalties for violation of these provisions.

5.  Section 9-812(A) concerning penalties is revised to clarify that a property owner whose property is subject to the regulations may be held responsible for permitting a person to smoke.  Under the City’s existing smoking regulations, the City enforces the regulations by addressing violations with the property owner.  This revision will allow the Fire and Medical Department to continue to enforce the new regulations in this manner.