Memorandum

Memorandum

To:              David L. Corliss, Assistant City Manager and Director of Legal Services

From:          Toni Ramirez Wheeler, Staff Attorney

Cc:               Mike Wildgen, City Manager and

Debbie Van Saun, Assistant City Manager

Re:              Ordinance Amending Smoking Regulations – Clarifying Parties’ Responsibilities to Obtain Compliance from Patrons

Date:           June 2, 2005

Attached is Ordinance No. 7890, amending the City’s smoking laws.  The ordinance adds language in the enforcement and violations/penalties sections to provide additional guidance for owners, managers, and employees of premises subject to the regulations in Chapter 9, Article 8.  A more comprehensive summary of the recommended amendments will be provided below.

History

In March 2005, the City Commission considered and adopted Ordinance No. 7868 amending the City’s smoking laws to better define “enclosed area” and to include a definition of the word “wall.”  Ordinance No. 7868 also permits smoking in break rooms in businesses that do not sell goods or services directly to the public at the business site, provided the break room meets all of the conditions set forth in the ordinance. 

At the time these amendments were recommended, ART (Appeal to Reason and Tolerance), represented by Phil Bradley, requested the Commission add language to the Ordinance setting forth a defense from prosecution for establishment owners, managers, and/or employees when a patron violates the smoking laws.  ART requested the law specify the actions an owner, operator or employee must take against smoking patrons and provide that if the owner, manager, operator, or employee takes those actions, he or she could not be cited.  At the time ART proposed these changes, City staff believed such an amendment was not necessary and would provide additional enforcement challenges.  However, since that time, prosecutions under the City’s smoking laws have occurred in Municipal Court causing staff to reconsider our earlier position on this matter.  To improve the law in response to these issues, City staff recommends amending the smoking laws as follows:

· Adding a provision to the enforcement section of the law requiring an owner, manager, operator or employee to immediately advise any person smoking in violation of the law to stop smoking, and if the patron does not stop smoking, the owner, manager, operator or employee must ask that patron to leave the enclosed area.  If the patron refuses to leave, the owner, manager, operator or employee must take all lawful actions to have the person removed from the premises.

· Language is added to the violations and penalties section clarifying that it is unlawful for an owner, manager, operator or employee of an establishment to knowingly or willfully allow smoking to occur where it is prohibited by the City’s smoking laws.  Section 9-812(B) further provides that if the owner, manager, operator, or employee takes certain actions set forth in the section, he or she will have a defense to raise upon being cited for violating the same section.  This section also provides that an owner, manager, operator, or employee’s presence when smoking occurs in a place regulated by Chapter 9, Article 8 shall be prima facie evidence that that person knowingly or willfully allowed smoking to occur there.  The owner, operator, manager or employee can still come forward and rebut this inference if he or she has evidence that he or she did not knowingly or willfully allow the smoking.   

· Subparagraph (D) of Section 9-812 is also amended to make clear that the number of violations within a year (for the purposes of calculating the fines) shall be measured from the date the violation occurs rather than the date of conviction.  This change will prevent defendants from circumventing the law by seeking continuances in their municipal court cases to avoid paying the higher fines.