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Council Communication November 2, 2015, Study Session

Discussion of downtown smoking ban

Dave Kanner, city administrator, dave.kanner@ashland.or.us FROM:

Councilor Seffinger has requested a study session discussion of adopting a complete or partial ban on smoking in downtown Ashland.

SUMMARY:

Councilor Seffinger has requested a discussion of a complete or partial ban on smoking in downtown Ashland. State law already prohibits smoking within ten feet of a business entrance, exit or operable window, but that is public health code and is enforced by the property owner or lessee. It is not a violation or criminal offense.

BACKGROUND AND POLICY IMPLICATIONS:

Site-specific smoking bans are not uncommon. There are at least 1,155 cities throughout the U.S. that have adopted smoke-free parks ordinances, including Ashland, and more than 250 with smoke-free beach ordinances (again, including Ashland). There are many cities that have adopted smoking bans in specific public areas of their downtowns, usually related to public plazas and sidewalks, but bans on smoking anywhere in a downtown are rare. The cities of Concord, CA, Livermore, CA, South San Francisco, CA, and Fort Collins, CO, ban smoking in their downtowns. Boulder, Colorado, comes close with a ban on smoking in its Business Improvement District. Arcata, CA, had such a ban at one point, but appears to have repealed it. The City of Eugene has been discussing a downtown smoking ban and may soon move in that direction, but has nothing on the books as of now and has not drafted any ordinances or policies. Salem has an ordinance in place that allows a property owner to prohibit smoking on sidewalks and landscape strips that are adjacent to properties where smoking is prohibited by the property owner.

N/A COUNCIL GOALS SUPPORTED

N/A FISCAL IMPLICATIONS:

N/A STAFF RECOMMENDATION AND REQUESTED ACTION:

N/A. SUGGESTED MOTIONS:

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Draft “Ordinance Prohibiting Smoking in Designated Outdoor Areas,” prepared by Councilor Seffinger

ATTACHMENTS:

Salem, Oregon, Ordinance 27-14 Boulder, Colorado, Ordinance 8015, “Smoking Prohibited in Public Places.” Palm Desert, California, Ordinance 1200

AN ORDINANCE PROHIBITING SMOKING IN DESIGNATED OUTDOOR AREAS Whereas: the State of Oregon through the Clean Air Act prohibits smoking in designated outdoor areas in accordance with Oregon Law S433.845. This law designates : A person may not smoke or carry any lighted smoking instrument within ten feet of the following parts of public places or places of employment: Entrances Exits; Windows that open;and Ventilation intakes that serve an enclosed area. Whereas: Oregon law S433.865 further allows enforcement of violations of this law by the local board of health to institute an action in the circuit court of the county where the violation occurs. Whereas: In January of 2009, Oregon law restored local control and cities are allowed to enact local smoke fee laws. In addition to the following state prohibitions a number of cities in Oregon have prohibited smoking in other outdoor spaces to protect people from second hand smoke . These cities include Portland, Eugene, and Salem. These Ordinances include prohibiting smoking in public spaces where people gather . Cities have included a variety of public spaces in their ordinances. These have included 1. lines at theaters of other public venues 2. City parks 3. Sidewalks in downtown areas 4. City Airports 5. Bus shelters 6. Bicycle parking areas 7. Public Plazas 8. bridges, trails, and walking paths 9. outdoor eating areas. Whereas: Cities in Oregon are further allowed to enforce and impose penalties for smoking in designated non smoking areas assign fines and determine who can enforce no smoking laws. Whereas: Smoking is recognized as one of the major preventable causes of disease:

It is proposed that the city council institute a no smoking Ordinance in specified public spaces in Ashland, Oregon. A. Smoking shall be prohibited in the following outdoor areas within the city limits: 1. within ten feet of the following parts of public places or places of employment: Including sidewalks abuting these buildings. Entrances Exits Windows that open Ventilation intakes that serve an enclosed area. 2. Public Parks ( already prohibited) 3. Public plazas 4. within ten feet of outdoor eating areas. 5. Within ten feet of of bus shelters . B. Public Notice of prohibition: Signs will be posted with areas where no smoking is allowed. It will be designated that fines for non compliance will be enforced by the local law enforcement. C. Proposed penalty The first infraction shall result in a warning. The second infraction shall result in a penalty of $50 . The third infraction shall result in a penalty of $150. The penalty for each subsequent infraction shall result in a penalty of $250. D.Enforcement: The no smoking ordinance will be enforced by officers of the Ashland Police Department. E. If passed by the City Council the proposed Ordinance shall become effective sixty days after adoption of the ordinance.

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ORDINANCE BILL NO. 27-14

AN ORDINANCE RELATING TO CREATING A NEW CHAPTER, SRC CHAPTER 45,

SMOKING; AND DECLARING AN EFFECTIVE DATE.

The City of Salem ordains as follows:

Section 1.

45.010. Purpose.

Sections 45.010 through 45.990 are added to and made a part of the Salem Revised

Code, Chapter 45, as:

(a) Secondhand smoke from tobacco, cannabis, and other plants, has been recognized

as a health hazard and as a cause of annoyance, inconvenience and discomfort to

other persons in proximity to the smoking activity. Secondhand smoke has been

identified as being particularly harmful to persons with certain respiratory conditions,

and has also been determined to cause cancer to nonsmokers exposed to secondhand

smoke on a frequent basis.

(b) Many businesses, organizations, commercial property owners, and other owners

and managers of property where the general public is invited or generally permitted,

would like to eliminate smoking from occurring on their property. The City of Salem

recognizes that its sidewalks and landscape strips are a potential impediment to these

private property smoking bans. To aid in the effectuation of private property smoking

bans, this Chapter creates a method to prohibit smoking on public sidewalks and

landscape strips adjacent to public service properties where smoking is otherwise

banned.

(c) This Chapter of the Salem Revised Code is intended to protect public health,

safety and welfare, by reducing unwanted and unwelcome exposure to secondhand

smoke. This Chapter is also intended to strike a reasonable balance between the

needs of persons who smoke and the needs of nonsmokers, including children and

persons with existing respiratory conditions.

45.015. Definitions. For the purposes of this Chapter the following words and phrases shall

have the following meanings:

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(a) “Director” Director means the City Manager, or the department head charged by

the City Manager with the implementation and enforcement of this Chapter, or that

department head’s designee.

(b) “Eligible Premises" as used in this Chapter, shall mean real property meeting the

“Public Services” use classification as described in SRC 400.005, Table 400-1.

(c) “Landscape strip” means that part of any public street right of way lying between

the sidewalk and the curb or pavement, also known as the parking strip, planting area,

or planting strip.

(d) “No Smoking Policy” means a formal written policy adopted by the person or

persons having the authority to make decisions for the owner of an identified area of

real property, which states the rules and regulations applicable to smoking on

property owned or managed by the organization.

(e) “Sidewalk” means all paved surface, except walkways and driveways, lying

between the curbline and the right-of-way line of a street or in a public easement;

(f) “Smoke-Free Area” means all or a portion of an eligible premises covered by a

No Smoking Policy where smoking is prohibited, which shall include designated

City-owned sidewalks and landscape strips adjacent to a private smoke-free area;

(g) “Smoking” as defined in this Chapter, shall mean the possession of any lighted

pipe, lighted cigar, the use of an electronic cigarette or a similar device intended to

emulate smoking, which permits a person to inhale vapors or mists that may or may

not include nicotine, or lighted cigarette of any kind, or the lighting of a pipe, cigar,

or cigarette of any kind, including, but not limited to, any tobacco or cannabis

product, or any other weed or plant capable of being smoked.

45.020. Administration. The Director shall administer and enforce the provisions of this

Chapter, have the authority to render written and oral interpretations, and have authority to

adopt administrative rules that are consistent with, and otherwise implement, the terms of this

Chapter.

45.025. Regulation of Smoking at City Buildings and Offices. The Director shall have the

authority to issue rules and regulations concerning smoking at City buildings and offices. In

the event the Director issues smoking regulations at City buildings and offices, the Director

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shall cause the appropriate signs to be installed notifying the public of the status of the building

or office as being smoke-free or containing a smoke-free area or areas.

45.030. Establishment of Smoke-Free Zones on public sidewalks and landscape strips

adjacent to smoke-free premises. Smoking may be prohibited on public sidewalks and

landscape strips adjacent to an eligible property that has been declared to be smoke-free, if

requested by the owner, operator, manager, or other person in control of the eligible property,

and the eligible property has been registered with the City as set forth in this Chapter.

Notwithstanding any other provision of this Chapter, the Director has discretion to determine

whether to designate a public sidewalk and landscape strip to be a smoke free zone, and what

sections may be designated.

45.035. Procedures to Register No Smoking Policy with the City. Eligible premises that

are adjacent to at least 100 feet of City-owned sidewalk may request that the City designate the

City-owned sidewalk and landscape strip abutting the eligible premises as a non-smoking area.

In order for the City to designate a City-owned sidewalk and landscape strip to be a smoke-free

area, the owner, operator, manager, or other person in control of the eligible premises must:

(a) File the organization’s No Smoking Policy with the Director. The No Smoking

Policy must, at a minimum, reasonably describe the area covered by the Policy, and

state that the organization will enforce the terms of the No Smoking Policy on its

employees, including any employees smoking on City-owned sidewalks and

landscape strips adjacent to the eligible premises that is designated as a smoke-free

area;

(b) Identify the City-owned sidewalks and landscape strips, or portions thereof,

where the organization’s employees are prohibited from smoking by the

organization’s No Smoking Policy; and

(c) Request that the City install signs along the City-owned sidewalks and landscape

strips identified in subsection (b) of this section notifying the public that the sidewalk

is a smoke-free area. The Director shall have the sole discretion to determine the

number and location of such signs, and to determine what text or graphics appear on

the signs, but such signs shall, at a minimum, include reference to this Chapter.

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45.040. Costs. The costs associated with the preparation and installation of the signs required

for public sidewalks and landscape strips shall be the responsibility of the requesting party.

The Director may make rules governing the recovery of costs for the preparation and

installation of the required signs, which may include a requirement that the requesting party

pay a deposit at the time of registration.

45.045. Responsibility for Enforcement.

(a) The owner, operator, manager, or other person in control of an eligible premises

declared to be smoke-free pursuant to this Chapter shall maintain responsibility for

enforcing the terms of its No Smoking Policy; including the enforcement of the terms

of the Policy on the organization’s employees who are smoking on City-owned

sidewalks or landscape strips identified in the organizations No Smoking Policy;

(b) The City shall be responsible for enforcing the terms of this Chapter on

designated City-owned sidewalks and landscape strips covered by a No Smoking

Policy that is properly registered with the City and contains the signs required by this

Chapter. The City shall not be responsible for enforcing any provision of an

organization’s No Smoking Policy.

45.990. Violations and Penalties.

(a) Any person who smokes on a City-owned sidewalk or landscape strips included

within a smoke-free area properly registered with the City under this chapter shall be

guilty of an infraction, punishable pursuant to SRC 1.070.

(b) The penalty for the first infraction under this Chapter shall be no more than $50.

The penalty for the second infraction under this Chapter shall be no more than $150.

The penalty for the third or subsequent infractions under this Chapter shall be no

more than $250.

(c) Each violation of this Chapter shall constitute a separate offense.

Section 2.

(a) Renumber sections and parts of sections of the ordinance;

Codification. In preparing this ordinance for publication and distribution, the City

Recorder shall not alter the sense, meaning, effect or substance of this ordinance, but within such

limitations, may:

(b) Rearrange sections;

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(c) Change reference numbers to agree with renumbered chapters, sections or other parts;

(d) Delete references to repealed sections;

(e) Substitute the proper subsection, section or chapter, or other division numbers;

(f) Change capitalization and spelling for the purpose of uniformity;

(g) Add headings for purposes of grouping like sections together for ease of reference; and

(h) Correct manifest clerical, grammatical or typographical errors.

Section 3. Severability. Each section of this ordinance, and any part thereof, is severable, and

if any part of this ordinance is held invalid by a court of competent jurisdiction, the remainder of

this ordinance shall remain in full force and effect.

Section 4.

Effective Date. The effective date of this ordinance shall be January 1, 2015.

PASSED by the Council this day of , 2014.

ATTEST:

City Recorder

Approved by City Attorney: _____________________

Checked by: Mark Becktel