Memorandum

City of Lawrence

Legal Services

 

TO:

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

 

FROM:

Scott J. Miller, Staff Attorney

 

Date:

September 7, 2005

 

RE:

Smoking Ban Language Changes

 

Pursuant to your direction, you will find enclosed with this memorandum an ordinance amending certain portions of Article 8 of Chapter 9 of the City Code, the City’s smoking ban ordinance.  Our twin goals in redrafting portions of the ordinance were to improve the enforceability of the ordinance while also defining the liability of business owners for violations that occur on their premises in a way that would allow them to better assess their potential exposure.  We met with Dan Owen, an attorney who represents the Kansas Licensed Beverage Association, and drafted the owner liability language as a result of discussions at that meeting.  It is our understanding that he has no objection to the proposed owner liability language, and that the group he represents no longer wishes any specific “safe harbor” language to be included in the ordinance.

 

The proposed ordinance amends the existing law in five primary ways.  First, it clarifies that the Lawrence Police Department may take appropriate enforcement actions for violations of the ordinance even though the Fire Chief is primarily responsible for enforcement of the smoking ban under both the existing law and the proposed changes.  The purpose of this amendment is to avoid any suggestion that the power of the Police Department to enforce any of the ordinances of the City of Lawrence is somehow limited by operation of the existing code section.

 

The second significant change is to the language defining liability for a person in control of a business or other place subject to the prohibitions of the article.  This section, as proposed, makes it unlawful for any person who owns, manages, operates, or otherwise controls regulated premises to allow illegal smoking to occur on the premises.  A person “allows smoking” under the ordinance if he or she has knowledge that smoking is occurring and, under the totality of the circumstances, he or she acquiesces to the smoking.  A court, then, is entitled to look at what a person does and what he or she fails to do to help decide whether the person is liable under the ordinance.  A person in control of property does not have to explicitly give permission for someone to illegally smoke in an area in order for the person in control of the area to violate the law.  On the other hand, the mere fact that someone is smoking in an owner’s business does not subject that owner to liability without some direct or circumstantial evidence that the owner knew a person was illegally smoking and he or she tacitly, passively or explicitly permitted the smoking to occur.

 

Third, the proposed ordinance improves the current definition of smoking by focusing the definition on one aspect of the smoking process that is necessarily present in every circumstance when smoking is illegal – the possession of a lit cigar, cigarette or other smoking device.  The new language preempts some arguments that could be used to avoid liability in a prosecution under this part of the code by including other vegetation within the definition of smoking, but it avoids conflict with other provisions in Kansas law by excluding controlled substances from its scope.  The net effect is better enforceability and fewer nebulous areas or loopholes that would defeat the intended purpose of the article such as tobacco analogs or newly designed smoking devices that do not meet the standard definition of cigar, cigarette, or pipe.

 

The next change involves the deletion of vehicles from the “places of employment” definition found in Section 9-804.  Smoking in taxis or buses is explicitly illegalized by Section 9-803(B), so this modification would apply to other vehicles that are places of employment.  There are several reasons that this provision is selected for elimination.  First, the vehicle prohibition is very difficult to enforce because Fire Department personnel have no legal authority to perform traffic stops on motor vehicles and the nature of a motor vehicle often makes it difficult or impossible to determine whether it is a “place of employment” just by looking at the vehicle, necessitating a more detailed investigation.  Also, there is some concern about notice and fairness for individuals from out of town who may merely be traveling through the City who might run afoul of the ordinance.  Although this ordinance might be enforceable exclusively on a complaint basis we believe that the more prudent course is to delete the requirement from the ordinance

 

Lastly, several minor language amendments, deletions and additions were made in the ordinance to ensure consistent use of words and to better clarify the legislative intent behind the ordinance.  For example, in section 9-810 the word premises is utilized instead of establishment and the reference to a general business license is deleted as the City has no such license.  Section 9-804 substitutes “enclosed areas”, which we do define, for “enclosed facilities” which is not defined in the ordinance.  The penalty language is also partially rewritten, clarifying how past convictions are weighed for sentencing enhancement,

 

I believe the new language significantly improves the ordinance.  If you have any questions about the new draft ordinance, please feel free to let me know.