Memorandum

Memorandum

DRAFT              

To:    Mike Wildgen, City Manager

From: David L. Corliss, Assistant City Manager and

Toni Ramirez Wheeler, Staff Attorney

Cc:     Debbie Van Saun, Assistant City Manager

Re:     Smoking Ordinance Issues       

Date: February 11, 2005

At the December 14, 2004 City Commission meeting Philip Bradley, representing the ART Coalition (Appeal to Reason and Tolerance), asked the Commission to consider amending the Lawrence Public and Workplace Smoking Restriction Ordinance No. 7782.  Mr. Bradley identified five issues of interest to his members:

“Establish a safe harbor – What diligent efforts can the owner/operator and employees do that will insure that if an individual violates this Ordinance, that they (the owner, operator, and employees) are protected from prosecution because of that (the individual customer’s) act.

“Establish consequences for the perpetrator and not just the business owner.

“Address enforcement, including equality, the definition of ‘outside,’ real time citations, evidence/proof and other problems.

“Allow sidewalk areas that can be used as outdoor sections of the business where options are not available.

“Allow for separate, non-staffed facilities with separate HVAC and negative air pressure.”

The Commission directed staff to review the five points raised by ART, with input from businesses, and provide a report to the Commission on each item. 

City staff Mike Wildgen, David Corliss, Rich Barr, Supervising City Prosecutor Jerry Little, and Toni Wheeler met on January 19, 2005, with Phil Bradley, Chuck Magerl, Rick Renfro, Jerry Neverve, and Don McGlinn, Hallmark Cards, Inc.’s Plant Engineering Manager. 

City staff’s response to each of the issues raised by ART follows:

What effort can a business make to ensure the owner/employees of the business are protected from prosecution because an individual patron violates the no-smoking ordinance within the business?

Any business making a concerted effort to enforce the no-smoking ordinance in their business should be free from worry about prosecution.  Concerted effort would include placing no-smoking signs in appropriate areas, not providing ash trays or receptacles on the bar or on tables for smokers inside the business and advising any patron who does smoke to extinguish the cigarette, cigar, etc., or go outside or to an approved area to smoke.  If the patron refuses or continues to smoke, the patron should be asked to leave the business and if they refuse to leave they should be advised the police will be called and the patron charged with criminal trespass as well as violation of the no-smoking ordinance.  If the patron still refuses to leave, the police should be called.  If these procedures are followed in every case, then owners should not worry about being prosecuted because a patron is smoking.

It is when inspectors see several patrons smoking in an establishment and employees or owners doing nothing that leads inspectors to believe diligent efforts are not being made to ensure a smoke-free environment.

Staff does not believe that an amendment to the ordinance is necessary in regard to this issue.

Establish consequences for the perpetrator and not just the business owner.

The law as written authorizes the prosecution of individuals violating the law restricting smoking.  (See Section 9-812(B)).  An individual found guilty of violating this provision will be guilty of a misdemeanor and will be fined $100 for the first violation, $200 for a second violation in a one year period, and up to $500 for a third violation within a year of the first violation. 

Two complaints in Municipal Court have been filed against individuals for violation of the law. (Seven others have been issued to businesses.)  The two individuals are also the business owners where the violation is alleged to have occurred.  In these two instances, the City had credible evidence (an eyewitness willing to make a statement and testify in court) of the individuals’ actions.  Equally important, in these two instances, the City was able to ascertain the identity and address of the individuals to charge them with violating the law.

The Fire and Medical night consultants are not trained or equipped to approach patrons in bars and restaurants, who may be intoxicated and/or belligerent.  Unlike law enforcement officers, night consultants do not have legal authority to place a person under arrest if the person refuses to cooperate. Fire/Medical personnel may seek law enforcement assistance for enforcement of the ordinance, including the issuance of a citation, by a police officer, to a smoker violating the law.

 At this time, staff does not believe a change in the law is warranted.

Other Enforcement Issues

Mr. Bradley identified his third item as, “Address enforcement, including equality, the definition of ‘outside,’ real time citations, evidence/proof and other problems.” 

Equality

Staff believes Mr. Bradley’s reference to “equality” is the issue of charging patrons for violating the ordinance rather than the business owner.  Please see above.

Definition of “Outside”

The Lawrence Public and Workplace Smoking Restriction Ordinance No. 7782 does not contain a definition of “outside” but rather defines what is an “enclosed area.”  It states:

Enclosed area means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) which 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.

Since July 1, 2005, Rich Barr has been called upon to interpret whether an area is enclosed.  For example, some businesses have installed awnings over patios that had walls or partial walls.  It then became necessary to evaluate whether the patio had been transformed into an “enclosed area.”  He has relied upon a provision in the 1997 Uniform Building Code setting forth the minimum standards for openings in parking garages requiring the openings in exterior walls on a tier of a garage to be “at least 20 percent of the total perimeter wall area of each tier.”  Reliance on a national standard addressing the ventilation of carbon monoxide and other pollutants from garage structures seemed reasonable.  Staff recommends considering amending the definition of “enclosed area” to incorporate Fire/Medical personnel’s interpretation.  Staff suggests the following language:

Enclosed area means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) which 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.

For the purposes of this Article, the following shall not be considered an enclosed area:

1. Rooms or areas enclosed by walls or windows having neither a ceiling nor a roof and which are completely open to the elements and weather at all times.

2. Rooms or areas, enclosed by walls or windows and a roof or ceiling, having an opening at least twenty percent (20%) of the total perimeter wall area completely and permanently open to the elements and weather.

Real Time Citations

This item concerns the City’s enforcement practice of having night consultants file a report with the prosecutor’s office.  The prosecutors then issue the notices to appear in court, rather than having the inspectors issue citations at the scene to the smoker.  Please see earlier discussion on Fire/Medical department citations.

Allow sidewalk areas that can be used as outdoor sections of the business where options are not available

The City’s sidewalk dining laws (Section 6-1201 et seq.)  allows the City to lease City-owned right-of-way to a food service establishment.  The City currently has 19 licenses with establishments in the downtown area. This law includes a 70% food sales requirement for all sales from the sidewalk licensee.  Site planning and payment of an annual rental fee is required.

An option to consider in responding to the ART proposal:

Allow any drinking establishment in the downtown area in existence on July 1, 2004, which otherwise qualifies for a sidewalk dining license, to obtain a license without a food sales requirement (or a food sales requirement reduced from the current 70%) if the construction of an outdoor patio/smoking area is not feasible.  Feasibility could be determined by the Commission based on cost or architectural/historic preservation concerns. Under the sidewalk dining law the City is acting as property owner (of the public right-of-way) and can establish reasonable criteria for distinguishing between businesses that seek the use of the right-of-way.  The City can also revoke the license if it determines that such revocation is appropriate. The justification for the 7/1/2004 date is that businesses obtaining licenses after the smoking ban effectiveness could plan and determine the best method, if any, of allowing smoking in an outdoor environment prior to business commencement.   Obviously this proposal can be modified in a number of ways.  Staff does recommend the outdoor smoking be tied to either a drinking establishment license and/or food sales license to continue the prohibition of use of the right-of-way for retail, office, etc. uses.

Allow for separate, non-staffed facilities for with separate HVAC and negative air pressure

Staff interprets Commission discussion about this possible exemption as only applying to smoking break areas for employees similar to the Hallmark situation, and not for the general public or patrons because the public or patrons will be served by employees who would be subject to second-hand smoke.   If the smoking area is to be expanded beyond this understanding, then certain criteria established below would need to be removed or modified.

At the December 12, 2005 City Commission meeting Hallmark Cards, Inc.’s Plant Manager, Don McGlinn, described the design of Hallmark’s separate smoking break rooms in use prior to July 1, 2004, for its employees and vendors.  In 1997, Hallmark constructed break rooms for smoking employees that were fully enclosed and accessible to employees and vendors only.  The room maintained a negative air pressure and the exhaust from the room was discharged to the outdoors and not returned to the heating, ventilation, and air conditioning system.  Hallmark’s non-smoking employees had separate non-smoking break rooms and were never required to enter the smoking break rooms when they were occupied by smokers.  Mr. McGlinn stated that he believed Hallmark met the stated goals of the ordinance.  He asked the Commission to consider amending the ordinance to provide an exception for the separate break areas within manufacturing plants.  He described the unique security issues Hallmark’s plant location poses that make outdoor smoking areas a concern.  The Commission directed staff to review Hallmark’s proposed idea.

Mr. McGlinn attended and participated in the January 19, 2004 meeting with City Staff and ART members.  City staff also toured the Hallmark plant break room areas on February 2, 2005. Staff recommends that the exemption apply to smoking break areas that were in existence at the time of the effective date of the new ordinance.  We believe that new businesses have the opportunity to plan for necessary architectural features to allow for smoking employees to  have appropriate outside break access.  Staff proposes the following language to address separate, non-public employee break room areas:

Non-public Break Room Exception:

9-807           WHERE SMOKING IS NOT REGULATED: PRIVATE AND PUBLIC PLACES.

Notwithstanding any other provision of this Article to the contrary, the following areas shall not be subject to the smoking restrictions of this Article:

(A)     Private residences, except when used as a childcare, adult day care or health care facility;

(B)     No more than twenty-five percent (25%) of hotel and motel rooms rented to guests.

(C)       Retail tobacco stores.

(D)    Restaurants, hotel and motel conference or meeting rooms and public and private assembly rooms while such places are being used for private functions except while contracted food or beverage service functions are taking place (including set-up, service and clean-up activities or when the room is used for exhibit activities).

(E)     Outdoor places of employment except those covered in Section 9-805 of this article.

(F) Private places.

(G) Smoking break rooms in businesses that do not sell good or services directly to the general public at the business site and which meet all of the following requirements:

1. The smoking break room is enclosed on all sides by solid, impermeable walls or windows extending from the floor to ceiling with self-closing doors; and

2. Access to the smoking break room is restricted to the employees and vendors of the facility; and

3. The smoking break room maintains a negative air pressure (meaning more air is exhausted from the room than is directly supplied by the heating, ventilation, and air conditioning (HVAC) system); and

4. The smoking break room’s smoke-contaminated air is exhausted directly to the outdoors and is not returned to the HVAC system; and

5. The smoking break room and any equipment contained therein are maintained and serviced when the room is not occupied by smokers; and

6. The employer does not require employees or vendors to enter the smoking break room when it is occupied by smokers; and

7. The owner, manager or other person having control of such building or areas shall have a conspicuously posted sign clearly stating that the room is a smoking break room; and

8. A single smoking break room shall not be larger than 1500 square feet; and

9. Non-smoking employees and vendors of the business have access to a separate, enclosed, non-smoking break room accessible only to the employees and vendors of the business which is of equal or larger size and has amenities comparable to the smoking break room.

10. The indoor smoking area was in existence on June 30, 2004.

11. The business has registered the indoor smoking area  with the Fire Prevention Division of the Lawrence-Fire Medical Department on registration forms provided by the Department and the Department has verified compliance with the provisions of this ordinance.

************************************************************************

Staff recommends that a meeting with Mr. Bradley’s group, Mr. McGlinn, and proponents of the current law be scheduled before an ordinance amending the Lawrence Public and Workplace Smoking Restriction Ordinance No. 7782 is placed on a City Commission agenda.