Memorandum

Memorandum

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 issues     

Date: March 2, 2005

City staff provided a copy of a draft memorandum dated February 11, 2005, on smoking issues to Phil Bradley, members of the ART coalition, and a Hallmark representative.  (See Attachment 1)  The February 11, 2005, memorandum addressed issues raised by ART and Hallmark at the December 14, 2004, City Commission meeting. 

On February 22, 2005, City staff met with Phil Bradley, Rick Renfro, Jerry Neverve from ART, and Don McGlinn from Hallmark.  At that time, the ART members presented their comments to the City staff memorandum (See Attachment 2).

City staff provides the following additional comments:

Prosecution/Enforcement Issues

ART requests the law provide an “absolute defense” to the prosecution of the establishment’s owner, if the owner or person in charge takes the measures to prevent patron smoking outlined in the City’s February 11, 2005 memorandum. 

Response:  City staff is concerned that an affirmative defense would pose additional enforcement challenges.  An affirmative defense is a matter asserted by a defendant, which assuming the complaint to be true, constitutes a defense to it.  An affirmative defense attacks the plaintiff (City’s) legal right to bring the action, as opposed to attacking the truth of the complaint.  As it applies to the City’s smoking restrictions, proving or disproving that the owner or manager took the recommended course of action will be difficult.  City staff also has a concern that an owner or manager may only take the measures outlined in the City’s memorandum when an inspector arrives on the scene and observes smoking patrons. 

ART asks whether credible evidence (an eyewitness willing to testify in court) is required when charging an establishment owner or manager with a violation of the law. 

Response:  Yes, the same standard applies to cases in which the owner is charged with violation of the law:  an eyewitness (either a city inspector or a private citizen) must be willing to provide a statement and be willing to testify in court.

ART asks whether the City has prosecuted anyone for smoking in a business or company owned vehicle. 

Response:  The City has not prosecuted anyone for smoking in a business vehicle.  If the City had credible evidence of a violation it would prosecute. 

The City Commission may decide to repeal this provision of the ordinance.

ART expresses concern that the City’s practice of having fire/medical personnel file a report with the prosecutor’s office rather than issuing a citation on the scene, hinders the bar owner’s ability to gather evidence and secure witnesses.

Response:  When the Fire and Medical Department receives a complaint from a private citizen, an inspector goes to the business generally the next business day to inform them that the department received a complaint.  This usually occurs within 24 hours of the incident, unless the incident occurs on a Friday or Saturday night in which case an inspector visits the business on Monday.  Therefore, the business owner is made aware of a complaint soon after the incident occurs and may begin gathering evidence and securing witnesses at that time.

Definition of Outside and Enclosed Places

ART asks whether the word “walls” that appears in the recommended amendment to the definition of “enclosed area” includes fabric walls. 

Response: City staff interprets walls to include fabric walls of any kind.  Staff recommends the following definition of the word “wall” be added to the definitions section of the law:

Wall means a side of a room, building or structure connecting the floor and ceiling or foundation and roof, including temporary, moveable, and retractable sides.

 ART asked whether a gate made of bars (rod iron) or chain link makes a space enclosed.

Response:  City staff considers an iron or chain link gate to be an opening.  Gates made of other materials would have to be reviewed on a case by case basis.

Sidewalk Dining

ART made several comments on a proposed change to the City’s sidewalk dining laws.

City staff agrees that the sidewalk dining license is site specific rather than specific to a particular drinking establishment license.  Staff believes that an exception to the food sales requirement should be focused on establishments that were in existence at the time of the effectiveness of the ban and can not feasibly provide an outside smoking area.  Attached is a listing of current downtown area drinking establishments which do not have a sidewalk dining license (Note:  Jefferson’s is completing required license paperwork, Teller’s has a pending site plan request for sidewalk dining, and Free State has submitted a request for sidewalk dining.)   

Employee Smoking Break Room Exception

ART requests a broadening of the exception drafted to address the smoking break rooms in certain facilities when the break room has a negative air pressure and the room’s contaminated air is exhausted directly outdoors to permit establishments to construct smoking rooms for patrons and employees.

Response:  Staff believes broadening the proposed exception would be contrary to the intent of the ordinance.

City staff requests the City Commission provide staff with direction on any amendments to the law.