INTERDEPARTMENTAL MEMO

Transcription

1 INTERDEPARTMENTAL MEMO TO: Mayor and City Council FROM: Jade Riley, Mayor s Office DATE: September 22, 2011 SUBJECT: Smoke-Free Air Ordinances INTRODUCTION In December 2010, the Mayor and City Council directed staff to develop ordinances that would place additional restrictions on smoking in a variety of public places and to submit them to the Council for consideration. BACKGROUND In Idaho, second-hand smoke causes approximately 220 deaths each year comparable to motor vehicle accidents and about seven times as many as homicide. The annual health care costs in Idaho directly caused by smoking are $319 million. Tobacco use costs every taxpaying household in Idaho $539 per year. Nonsmokers exposed to high levels of tobacco smoke on the job double their risk of getting lung cancer. Food service workers have a 50% greater risk of dying from lung cancer than the general population, in part because of second-hand smoke exposure in the workplace. The City of Boise 2010 Citizen Survey found that approximately 70% of Boise residents agree that the city should ban smoking in all indoor public places, including bars. Approximately 53% of Boise residents agree that the City should prohibit smoking in all public parks. Since 2008, the City has received 770 postcards, s and phone calls from citizens requesting that the Council strengthen prohibitions on smoking. A total of 29 states, along with Puerto Rico, the U.S. Virgin Islands and Washington D.C., require restaurants and bars to be 100% smoke-free. A total of 23 states prohibit smoking in all

2 indoor work spaces. There are 622 municipalities with a local law in effect requiring bars to be 100% smoke-free. In Idaho, 21 Idaho cities prohibit smoking in all or part of public parks; another nine cities are developing similar prohibitions. Research shows that smoking prohibitions do not harm the economy and have a neutral or positive effect on the bar/restaurant industry. These findings are consistent with Idaho s experience following adoption in 2004 of the Clean Indoor Air Act, which protects most of Idaho s workers, including those in restaurants. PROPOSAL Idaho state law already restricts smoking in many public areas, including publicly owned buildings, restaurants, elevators and most places of employment. Boise s proposed new requirements would be captured in two ordinances. The first (see Attachment 1) would define the citywide prohibitions; the second would define the prohibitions within designated areas in the City s parks and park facilities. Under the first ordinance, restrictions on smoking would be extended to the following areas not currently prohibited under Idaho code: Bars. Private clubs. Retail tobacco businesses. Within 20 feet of entrances or exits to buildings owned or managed by the City of Boise. Any sidewalk café, dining patio and/or outdoor seating or serving areas of a restaurant or bar that is not on private property or that is accessible to those under age 21. Public transportation vehicles, including buses and taxicabs, and waiting areas of public transportation facilities, including bus, train and airport facilities. Within 10 feet of bus stops or other public transportation benches, stations, platforms, and shelters or transit hubs. All outdoor service lines where people have queued for tickets, food or beverages, or other similar service. Within any designated Temporary Family Activity Zone, defined as any outdoor area set aside to accommodate families with children and others in a smoke-free space for such activities as concerts, movies, or other entertainment in a public space. Portion of any home-based office that is accessible to one or more employees or members of the public. Employee break rooms. 2

3 On July 21, 2011, the Parks & Recreation Commission approved a motion to recommend to the City Council three different options for smoking prohibitions (see Attachment 2), with the first option the Commission s preferred choice: 1. Prohibit smoking in all parks and on the Greenbelt (including 20 feet on either side of the pathway). 2. Prohibit smoking in all parks and the Greenbelt (including 20 feet on either side of the pathway) but exempting parking lots and roadways within parks. 3. Adopt the parks ordinance draft with the addition of the Greenbelt (20 feet on either side). The ordinance draft includes definitions of BMX facility, Park, Playground, Skate Park, Swimming Pool, Temporary Family Activity Zone, and Youth Sports Complex. At the subcommittee s request, the definition of skate park has been modified to exclude Rhodes Park, which has been placed on the list of designated smoke free parks. Designated smoke free parks are Rhodes Park, Robert Noble Park, the Idaho Anne Frank Human Rights Memorial, Zoo Boise, and the Foothills Learning Center grounds. No specific ordinance regarding smoking in parks is being presented at this time; rather, staff is seeking general direction from the Mayor and Council regarding the options recommended from the Commission; based upon that direction, an ordinance regarding smoking in parks will be drafted and returned to the Council for consideration. Enforcement of both ordinances will be done with an emphasis on compliance. If a violator complies with a request to extinguish his/her cigarette, then a citation will not be issued. However, if the violator refuses to extinguish his/her cigarette or if a violator is found to repeatedly flout the ordinance police will be notified and a citation will be issued. Penalties: Violators will be charged with an infraction punishable by a fine and court costs totaling $69. Employers or persons in charge who intentionally permit smoking in a prohibited area will be charged with an infraction punishable by a fine and court fees totaling $119. Employers who fire or discriminate against an employee who has made a complaint or given information to the state Department of Health and Welfare pursuant to this ordinance shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. The owner or manager of a place of employment or public space where smoking is prohibited shall conspicuously place No Smoking signs or No Smoking symbols at every entrance. Central District Health Department is offering free No Smoking signage for any establishment that is required to post such signage under state or city code. 3

4 PROCESS Over the next several weeks, staff proposes that the City conduct a public process to gather additional input from Boise residents. The process is as follows: COUNCIL WORK SESSION, Noon Tuesday, September 27, Bonneville Room The City Council conducts a public work session with legal counsel to review the proposed ordinances and the corresponding public process. No public comment will accepted at this time. PUBLIC INFORMATION MEETING, 6:00 p.m. Wednesday, October 5, Council Chambers City staff conducts a presentation on the proposed ordinances and receive comments from residents, bar owners and other stakeholders regarding the proposed Smoke-Free ordinances. COUNCIL WORK SESSION, 4:00 p.m. Tuesday, October 11, Bonneville Room Mayor and Council review comments from the stakeholders meeting and provide direction on any suggested changes to the proposed ordinances. PUBLIC HEARING, 6:00 p.m. Tuesday, October 18, Council Chambers Mayor and Council conduct a public hearing on the ordinances and determine how to proceed. SESSION OUTCOMES At the September 27 Council Work Session, staff is seeking the following outcomes: 1. Regarding the first ordinance, answer technical questions regarding ordinance language, education and enforcement. 2. Confirm general direction regarding any proposed adjustments to the first ordinance. 3. Answer technical questions regarding the three proposed parks-related options. 4. Confirm general direction regarding the preferred option for the second (parks-related) ordinance. 5. Confirm recommended next steps and public input process. 4

5 ORDINANCE NO. BY THE COUNCIL: CLEGG, EBERLE, JORDAN, McLEAN, SHEALY, AND THOMSON AN ORDINANCE ENACTING CHAPTER 23, UNDER TITLE 6, BOISE CITY CODE, ENTITLED BOISE CITY SMOKE-FREE AIR ORDINANCE, REGULATING SMOKING IN PUBLIC PLACES; SETTING FORTH THE STATUTORY AUTHORITY FOR LOCAL GOVERNMENT REGULATION OF SMOKING; PROVIDING LEGISLATIVE FINDINGS; PROVIDING DEFINITIONS OF KEY TERMS; PROHIBITING SMOKING IN ALL CITY OWNED FACILITIES AND ALL ENCLOSED PRIVATELY OWNED PUBLIC PLACES AND PLACES OF EMPLOYMENT AND SETTING FORTH A NONEXCLUSIVE LIST OF PLACES WHERE SMOKING IS PROHIBITED; PROHIBITING SMOKING WITHIN TWENTY FEET OF ENTRANCES TO PUBLIC AND PRIVATE SCHOOLS AND COLLEGES, CITY BUILDINGS, SIDEWALK CAFES AND OUTDOOR SERVING AREAS, WITHIN TEN FEET OF PUBLIC TRANSPORTATION FACILITIES, AND WITHIN ANY SERVICE LINE OR TEMPORARY FAMILY ACTIVITY ZONE; PROVIDING EXEMPTIONS FROM THE SMOKING PROHIBITION FOR PRIVATE OUTDOOR SPACES LEGALLY ACCESSIBLE ONLY TO THOSE TWENTY ONE AND OVER AND IN RESIDENCES EXCEPT FOR ANY PORTION THAT IS USED AS A BUSINESS WITH EMPLOYEES OR CUSTOMERS; PERMITTING BUSINESSES WHERE SMOKING IS NOT PROHIBITED TO DESIGNATE ANY OR ALL OF THE BUSINESS NONSMOKING; PROVIDING MINIMUM SIGN AND NOTICE STANDARDS; PROVIDING ENFORCEMENT BY POLICE OR A CITIZEN WITNESS; PROVIDING INFRACTION PENALTIES FOR VIOLATION; SETTING FORTH A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE; AND APPROVING THE SUMMARY OF THE ORDINANCE. WHEREAS, Public health officials have concluded that secondhand tobacco smoke causes disease, including lung cancer and heart disease, in nonsmoking adults, as well as causing serious conditions in children such as asthma, respiratory infections, middle ear infections, and sudden infant death syndrome; WHEREAS, Public health officials have concluded that secondhand smoke can exacerbate adult asthma and allergies and cause eye, throat and nasal irritation. The conclusions of public health officials concerning secondhand tobacco smoke are sufficient to warrant measures that regulate smoking in public places in order to protect the public health and the health of employees who work in public places;

6 WHEREAS, The Mayor and Council, by way of Idaho Code Sections , , and , are empowered to impose reasonable limitations and regulations upon smoking to reduce the harmful effects thereof; WHEREAS, The intent of this chapter is to protect the public health, the health of employees who work in public places, and the rights of nonsmokers to breathe clean air by prohibiting smoking in public places and in places of employment. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF BOISE CITY, IDAHO: Section 1. That Title 6, Chapter 23, Boise City Code, be, and the same is hereby enacted to read as follows: Short title. This Chapter shall be known as the Boise City Smoke-free Air Ordinance, and any other ordinances or resolutions in conflict herewith are repealed upon the effective date of the ordinance codified in this Chapter Authority. This Chapter is adopted pursuant to the authority granted by Idaho Code, Sections , , and Findings and intent. Public health officials have concluded that secondhand tobacco smoke causes disease, including lung cancer and heart disease, in nonsmoking adults, as well as causing serious conditions in children such as asthma, respiratory infections, middle ear infections, and sudden infant death syndrome. In addition, public health officials have concluded that secondhand smoke can exacerbate adult asthma and allergies and cause eye, throat and nasal irritation. The conclusions of public health officials concerning secondhand tobacco smoke are sufficient to warrant measures that regulate smoking in public places in order to protect the public health and the health of employees who work in public places. The intent of this chapter is to protect the public health, the health of employees who work in public places, and the rights of nonsmokers to breathe clean air by prohibiting smoking in public places and in places of employment Definitions. As used in this Chapter:

7 1. Bar means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of those beverages, including but not limited to, taverns, nightclubs, cocktail lounges, bikini-bars, and cabarets. 2. Business means a sole proprietorship, partnership, joint venture, corporation, or other business entity, either for-profit or not-for-profit, including retail establishments where goods or services are sold; professional corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered; and private clubs. 3. E-cigarette means any electronic oral device, such as one composed of a heating element, battery, and/or electronic circuit, which provides a vapor of nicotine or any other substances, and the use or inhalation of which simulates smoking. The term shall include any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, or under any other product name or descriptor. 4. Employee means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and a person who volunteers his or her services for an employer. 5. Employer means a person, business, association, municipal corporation, or trust that employs the services of one or more individual persons. 6. Enclosed Area means all space between a floor and a ceiling that is bounded on all sides by walls, doorways, or windows, whether open or closed. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent. 7. Health Care Facility means an office or institution providing care or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including but not limited to, hospitals, rehabilitation hospitals or other clinics, including weight control clinics, nursing homes, long-term care facilities, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, psychiatrists, dentists, and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within health care facilities. 8. Place of Employment means an area under the control of a public or private employer. 9. Public Place means an area to which the public is invited or in which the public is permitted.

8 10. Restaurant means an eating establishment, including but not limited to, coffee shops, cafeterias, and food stands, which gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term restaurant shall include a bar area within the restaurant. 11. Retail tobacco business means a business which during the normal course of business primarily distributes any tobacco product or provides any equipment or material used for the consumption of tobacco. 12. Service Line means an indoor or outdoor line in which one or more persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of money, including but not limited to, ATM lines, concert lines, food vendor lines, movie ticket lines, and sporting event lines. 13. Shopping Mall means an enclosed public walkway or hall area that serves to connect retail or professional establishments. 14. Smoking means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, pipe, or other tobacco or plant product intended for inhalation in any manner or in any form. Smoking" does not include the use of an e-cigarette which creates only a vapor without any smoke. 15. Sports Arena means places where members of the general public assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events. This term includes, but is not limited to, sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, and bowling alleys. 16. Temporary Family Activity Zone means any outdoor area set aside to accommodate families with children and others in a smokefree space for such activities as concerts, movies, or other entertainment in a public space. A Temporary Family Activity Zone shall be designated by a perimeter of No Smoking signs placed at each entrance to the zone and spaced approximately every fifty feet at a height of between three feet (measured from the top edge of the sign) and five feet (measured from the bottom edge of the sign). The signs shall be no less than 100 square inches with the words No Smoking in letters at least one inch high or displaying the international No Smoking symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it. A Temporary Family Activity Zone may be established within any public outdoor meeting space, including but not limited to the Basque Block, the Grove, Eighth Street, or and any highway area being used pursuant to a Special Event Permit/Citizen Use Permit. The duration of a temporary family activity zone may extend for up to twelve hours with any twenty-four hour period and may commence one hour before any outdoor entertainment or event begins and for one hour after any outdoor entertainment or event ends.

9 A designated smoking area may be established immediately adjacent to a Temporary Family Activity Zone Application to City-owned facilities. All vehicles and enclosed areas owned, leased, or operated by the City of Boise City shall be subject to the provisions of this Chapter Prohibition of smoking in enclosed public places. Smoking shall be prohibited in all enclosed public places within the limits of the City of Boise City, including but not limited to, the following places: A. Aquariums, galleries, libraries, and museums. B. Businesses patronized by the public, including but not limited to, banks, laundromats, professional offices, and retail service establishments. C. Bars. D. Bingo facilities. E. Child care and adult day care facilities. F. Convention facilities. G. Educational facilities, both public and private. H. Elevators. I. Gaming facilities. J. Health care facilities. K. Hotels and motels, except as provided in Idaho Code. L. Lobbies, hallways, and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities. M. Polling places. N. Private clubs. O. Public transportation vehicles, including buses and taxicabs, under the authority of the City/County/Town, and ticket, boarding, and waiting areas of public transportation facilities, including bus, train, and airport facilities. P. Restaurants. Q. Restrooms, lobbies, reception areas, hallways, and other common use areas. R. Retail Tobacco Businesses. S. Rooms, chambers, places of meeting or public assembly, including school buildings, under the control of a public agency, board, commission, committee or council of a political subdivision of the State, to the extent the place is subject to the jurisdiction of the City of Boise City. T. Shopping malls. U. Sports arenas, including enclosed places in outdoor arenas. V. Theaters and theatrical productions, except as provided in Idaho Code.

10 Prohibition of smoking in enclosed places of employment. Smoking shall be prohibited in all enclosed places of employment in the City of Boise City without exception. This includes, but is not limited to, common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, retail spaces and showrooms, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, and garages Prohibition of smoking in outdoor areas. Smoking shall be prohibited in the following outdoor places: A. Within twenty (20) feet of entrances or exits to schools including public and private elementary, secondary, vocational, and trade schools or colleges, so as to ensure that tobacco smoke does not enter those areas. B. Within twenty (20) feet of entrances or exits to buildings owned or managed by the City of Boise City, so as to ensure that tobacco smoke does not enter those areas. C. In any sidewalk café (as defined by the designated footprint area set forth in the sidewalk café map on file with the Boise City Clerks Office and/or the Idaho State Police Bureau of Alcohol Beverage Control) and in any dining patio, and/or outdoor seating or serving areas of restaurant legally accessible to persons under the age of twenty-one. D. In and within 10 feet of all bus stops, or other public transportation benches, stations, platforms, and shelters, or transit hubs. E. In all outdoor service lines. F. Within any designated Temporary Family Activity Zone Where smoking not regulated. Notwithstanding any other provision of this Chapter to the contrary, the following areas shall be exempt from the provisions of Sections , , and : A. Private residences, unless used as a childcare, adult day care, or health care facility, or as a home office that is accessible to one or more employees or members of the public. B. Privately owned outdoor spaces legally accessible only to persons age twenty-one and over, including rooftop patios and court yards of bars, but not including sidewalk cafés Declaration of establishment as nonsmoking. Notwithstanding any other provision of this Chapter, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place. Smoking shall be

11 prohibited in any place in which a sign conforming to the requirements of Section is posted Posting of signs and removal of ashtrays. The owner, operator, manager, or other person in control of a place of employment or a public place where smoking is prohibited by this Chapter shall: A. Clearly and conspicuously post in that place: 1. No Smoking signs or the international No Smoking symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it; and 2. A sign at every entrance that clearly states that smoking is prohibited. If the place of employment is a vehicle, there shall be at least one conspicuous sign, visible from the exterior of the vehicle, clearly stating that smoking is prohibited. B. Remove all ashtrays from any area where smoking is prohibited by this Chapter, except for ashtrays displayed for sale and not for use on the premises Enforcement. In addition to any law enforcement officer, any citizen who desires to complain about a violation of this Chapter for which there is probable cause may initiate enforcement by requesting to sign a Uniform Citation as the complaining party and state s witness Responsibilities, violations, and penalties. A. A person who smokes in an area where smoking is prohibited by the provisions of this Chapter shall be guilty of an infraction, punishable by a fine not exceeding fifty dollars ($50.00) as prescribed by the Idaho Infraction Rules for smoking in violation of the Idaho Indoor Clean Air Act. B. An employer, owner, manager, operator, or employee of an establishment regulated by this Chapter, who observes a person smoking in apparent violation of this chapter shall ask the person to extinguish all lighted tobacco products. If the person persists in violating this chapter, the employer, person in charge, agent or employee shall ask the person to leave the premises. Any person who refuses to either extinguish all lighted tobacco products or leave the premises is guilty of an infraction and is subject to a fine not to exceed fifty dollars ($50.00) as prescribed by the Idaho Infraction Rules for smoking in violation of the Idaho Indoor Clean Air Act. Any violation may be reported to a law enforcement officer. C. No employer or other person in charge of a public place or publicly-owned building or office shall knowingly or intentionally permit the smoking of tobacco

12 products in violation of this chapter. Any employer or other person in charge of a public place or publicly-owned building or office who knowingly violates the provisions of this section is guilty of an infraction and is subject to a fine not to exceed one hundred dollars ($100) as prescribed by the Idaho Infraction Rules for smoking in violation of the Idaho Indoor Clean Air Act. D. Any employer who discharges or in any manner discriminates against an employee because that employee has made a complaint or has given information to the Department of Health and Welfare or the Department of Labor pursuant to this section shall be subject to a civil penalty of not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) for each violation. Violation of this Chapter is hereby declared to be a public nuisance, which may be abated by the City of Boise City by restraining order, preliminary and permanent injunction, or other means provided for by law, and the City of Boise City may take action to recover attorneys fees and/or costs of the nuisance abatement. Each day on which a violation of this Chapter occurs shall be considered a separate and distinct violation Other applicable laws. This Chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws Liberal construction. This Chapter shall be liberally construed so as to further its purposes Severability. If any provision, clause, sentence, or paragraph of this Chapter or the application thereof to any person or circumstances shall be held invalid, that invalidity shall not affect the other provisions of this Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are declared to be severable. Section 2. That this Ordinance shall be in full force and effect from and after its passage, approval and publication. Section 3. That the Summary of this Ordinance, attached hereto as Exhibit B, is approved as to both form and content.

13 PASSED by the Council of the City of Boise, Idaho, this day of September, APPROVED by the Mayor of the City of Boise, Idaho, this day of September, ATTEST: APPROVED: CITY CLERK MAYOR

14

15