Memorandum

City of Lawrence

Legal Services

 

TO:

David L. Corliss, Assistant City Manager & Director of Legal Services

 

FROM:

Scott J. Miller, Staff Attorney

 

Date:

June 29, 2005

 

RE:

Comparison of Staff and A.R.T. Smoking Ban Amendments

 

On June 23rd, 2005, in accordance with the wishes of the City Commission, members of the City staff met with Phil Bradley and other concerned individuals to discuss the proposed changes to the City’s smoking ban ordinance.  After discussion, alternative ordinance language was presented in an effort to address some of the concerns that had been expressed regarding the amended language.  Mr. Bradley agreed to study the new language and to respond with any comments or proposed modifications to the ordinance.  On June 28th, as agreed, Mr. Bradley emailed ordinance language that he would find acceptable.  A comparison of the two proposals shows that both sides are close on some areas of disagreement, but that a difference of opinion exists on a fundamental level regarding appropriate owner liability. 

 

The purpose of this document is to compare the two proposals, and to point out the differences between those proposals in terms of their scope of coverage and the efforts that would need to be taken to practically enforce them. 

 

Based upon the previous discussions of this ordinance and perceived direction by the Commission, City staff approached drafting the amendment with three primary goals:

 

1.      Provide meaningful owner liability for allowing smoking in violation of the smoking ban by placing part of the burden of ensuring compliance with the ban on the people who control property subject to the ban.

 

2.      Establish a clear defense to that liability for owners or employees of establishments affected by the ban who follow a series of understandable, common sense steps to stop illegal smoking on their premises.

 

3.      Ensure that the owner liability provisions of the ordinance are practically enforceable.

 

After a review of the language proposed by Mr. Bradley, it is clear that the imposition of meaningful owner liability that is practically enforceable remains a subject of disagreement.  The differences between the “safe harbor” provisions in the two proposals are relatively minor in comparison.  Each of the subjects of contention will be discussed below.  All of the disputed language is found in Section 9-812(B) of the proposed ordinance, and the competing versions will be set forth for ease of reference.

 

City Staff’s Proposal:

 

(B)       It shall be unlawful for an owner, manager, operator or employee of any premises subject to regulation under this Article to allow smoking to occur where prohibited by this Article.  It shall be an affirmative defense to a violation of this section if the owner, manager, operator, or employee with reasonable diligence:

 

1.       advises the person acting in violation of this article to refrain from smoking; and

2.       asks the violator to leave the enclosed area, if the smoking person continues or reinitiates a violation of this Article; and

3.       exerts all reasonable efforts to remove the person from the premises, including calling the police, if the smoking person refuses to leave the enclosed area.

 

Bradley Proposal:

 

(B)       It shall be unlawful for an owner, manager, operator or employee of any premises subject to regulation under this Article to allow smoking to occur where prohibited by this Article: except that no violation of this article can be found without proof of the affirmative acceptance of said violation by the owner, manager, operator or employee of the premises.  It shall be an affirmative defense to a violation of this section if the owner, manager, operator, or employee acts with reasonable diligence to:

 

1.       advise the person acting in violation of this article to refrain from smoking; and

2.       ask the violator to leave the enclosed area, if the smoking person continues or reinitiates a violation of this Article; and

exert all reasonable efforts to enforce the article which may include contacting the police .

3.   It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this Article.

 

 

I.                   Owner and Employee Liability

 

Both proposals start with the same basic language that makes it unlawful for an owner or employee of premises subject to the article to allow smoking to occur where prohibited by the article.  The Bradley proposal, however, limits owner liability by including a requirement that precludes finding of a violation unless there is evidence of “affirmative acceptance” of the violation by the owner or occupant.  “Affirmative acceptance” might be interpreted to mean that an owner must actually expressly allow a person to smoke before any liability attaches.

 

An owner might avoid liability entirely under this section with a “head in the sand” approach where he or she merely ignores the smoking that goes on in the premises, but never affirmatively accepts the behavior.  The term “affirmative acceptance” is not a term regularly used by the appellate courts, but “affirmative act” is often employed by the judiciary to exclude from liability a person’s failure to act.  If a court subscribed to this interpretation, then an owner of a business could avoid all liability for smoking occurring in his or her business merely by failing to acknowledge its occurrence.

 

If the City Commission wants to place part of the compliance obligation on individual property owners and punish those owners for their failure to meet that compliance obligation, then the amendment offered by Mr. Bradley is inadequate for that purpose.  It imposes liability on one hand, and then immediately provides an easy way for a property owner to avoid taking steps to require customers to comply with the ordinance.  The result is an illusion – the ordinance appears to impose ownership liability for allowing smoking to occur, but absent expressed permission or active encouragement to smoke no liability actually exists and as a result there is no incentive to ensure compliance.

 

Therefore, if the governing body wishes to impose owner liability, it is our opinion that the less restricted language in staff’s proposal is more appropriate.  The net effect of Bradley’s proposal would be to have no real owner liability.  If that is consistent with the will of the governing body, it would make more sense to eliminate the owner liability provision from the ordinance, but such a decision would appear to be an abrupt shift in policy on behalf of the City.

 

 

II.                 “Safe Harbor” or Affirmative Defense

 

One issue that all parties seem to agree on concerning owner or employee liability is that there should be a clearly defined course of conduct that provides a defense to the property owner or business employee who is making a sincere effort to comply with the law.  In both versions of the proposed ordinance, this “safe harbor” provision is provided as an affirmative defense.  Affirmative defenses are utilized in the law to excuse responsibility for an act that would otherwise be illegal.  For example, a proper claim of self defense is an affirmative defense to a charge of battery.

 

The competing versions of the ordinance language are reasonably close when it comes to defining the affirmative defense to owner liability.  Each requires that a person violating the article first be asked to stop smoking.  If the person fails to stop smoking or starts smoking again later, the owner or employee is required to ask the person to leave the enclosed area.  The only differences between the two versions are the proper actions that an employee or owner must take if the person refuses to leave the enclosed area.  The Bradley proposal requires the owner to “exert all reasonable efforts to enforce the article, which may include contacting the police.”  Staff’s proposed language exempts an owner who “exerts all reasonable efforts to remove the person from the premises, including calling the police, if the smoking person refuses to leave the enclosed area.” 

 

Two differences exist between the versions.  Staff’s version explicitly includes calling the police to remove the subject or take other appropriate action within the measures that the owner or employee must take for the defense to apply.  This recommendation was not included in the previous draft amendment presented to the Commission for discussion, but because one of the complaints against the language in the prior proposal was that it was too general, this requirement is included in staff’s current to provide more specific direction to property owners.  Bradley’s version does not require that the police be called in all circumstances when an individual refuses to leave.  Resolution of this matter is largely one of legislative preference.  The presence of this requirement will increase the number opportunities for enforcement action.  Ultimately, however, both versions require that an owner exhaust all reasonable methods, and calling the police to force compliance is clearly a reasonable method in most circumstances.

 

The second difference involves what the owner or employee must exert all reasonable efforts to accomplish.  In staff’s version, the objective is to remove the person from the premises once the person has smoked there and refuses to cease smoking or leave.  The Bradley proposal, on the other hand, requires that all reasonable efforts be taken to enforce the article.  The Bradley proposal appears to give the individual business owner a more diverse range of tactics to combat violations of the ordinance.  A bar owner might argue, for example, that he or she was using the reasonable effort of refusing to serve an individual who continued smoking in the bar, and that the City enforcement activity occurred during the time that he or she was waiting to see if that tactic would be effective.  It is our belief that after a person has started illegally smoking where it is prohibited and refuses to voluntarily leave the area the most effective means of meeting the article’s goal of providing a smoke-free environment is to remove the smoker from the smoke-free environment.  While this limits other options to address the problem it also provides a more definite standard by which an owner or employee establishing a defense under this section can be judged, and thus minimizes possible confusion under the ordinance.

 

 

III.               Practical Enforcement

 

An enactment that prohibits a course of action but that is difficult or impossible to enforce is of little value.  On the other hand, ease of enforcement is necessarily trumped when the will of the governing body would not be accurately expressed in an easy to enforce enactment.  Staff believes that its version of the ordinance in question imposes meaningful owner and employee liability for violations of the smoking ban that occur on their property, while providing an easy to understand, common sense approach for appropriately handling recalcitrant violators of the article.

 

The use of the word “allow”, without further qualification, permits weighing all the things that an owner actively does to permit or prohibit smoking where smoking would be a violation of the law.  Equally important, however, is the fact that it permits a trial court to consider what an owner or employee fails to do when confronted by illegal smoking.  The court’s ultimate decision will be based upon whether, beyond any reasonable doubt, the facts and circumstances shows that a person who has an element of control over a regulated area is allowing smoking to occur in that area.  If three straightforward steps are taken with reasonable diligence to gain compliance with the law when someone begins or continues smoking in an establishment regulated by the article, then the business owner or employee has a solid defense to a violation of this article.  An owner or employee who is aware of a violation must:

 

1.      Ask the violator to stop violating the law.

2.      If the violator does not stop violating the law, ask the person to leave.

3.      If the person will not voluntarily leave, call the police and take other reasonable efforts to make the person leave.

           

These requirements appear to be simple to apply and should be easily understood by owner and enforcement officer alike.

 

For these reasons, staff recommends adoption of its proposed language as a supplement to the currently existing smoking ban.