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HomeMy WebLinkAboutAgenda Item - 2001-01-09 - Number 3.1 - 3. 1 01 09 00 AGENDA REPORT SUMMARY MEETING DATE: January 9, 2001 STUDY SESSION SUBJECT: PROPOSED ORDINANCE No. 2287 REGULATING TOBACCO SALES AND WORKPLACE SMOKING. RECOMMENDED MOTION: Move to instruct staff whether to schedule proposed Ordinance No. 2287 for a formal public hearing. EST. FISCAL ATTACHMENTS: NOTICED (Date): IMPACT: January 4, 2001 • Council Report. • Proposed Ordinance No. Ordinance no.: 2287 STAFF COST: $ 2287. Resolution no.: N/A Findings no.: N/A BUDGETED: Y N Previous Council consideration: October 3, 2000 FUNDING SOURCE: Council did not adopt Ord. 2270. CITY ATTORNEY ASST. CITY MANAGER CITY NAGER , Signoff/dateJ - S-a / Signoff/date Signoff/date S o l 1 Ord\rptcov00.doc OF LAKE osiv_ City Attorney's Office rvi; i Council Report OREGO$ To: Judie Hammerstad, Mayor Members of Lake Oswego City Council Doug Schmitz, City Manager From: David D. Powell, City Attorneys-p Date: January 5, 2001 Subject: Study Session—Proposed Ordinance No. 2287 Regulating Tobacco Sales and Workplace Smoking BACKGROUND In October of 2000, the City Council considered but did not adopt Ordinance No. 2270, which was similar to the Multnomah County Ordinance banning smoking in the workplace. I have been asked to prepare an ordinance for discussion that would incorporate most of the provisions of Ordinance No. 2270, would also require Tobacco Sales Licenses, and would provide for fines and possible license suspensions if tobacco is sold to minors, or if sales are not "vendor- assisted." Many of the new provisions are similar to provisions in the smoking initiative petition that was recently filed with the city. PROPOSED ORDINANCE NO. 2287 1. Workplace smoking. Attached for discussion is a working draft of proposed Ordinance 2287. For the Council's convenience I have designated in underlined red text the language that was added to proposed Ordinance 2270 (considered in October). Language deleted from Ordinance 2270 is shown by strikethrough. Like the previously considered ordinance (and like Multnomah County's ordinance) the attached proposal forbids smoking in any "place of employment," whether or not the public frequents the area. Unlike current law, it does not allow designated smoking areas. The proposed ordinance makes certain exceptions, allowing smoking in the following places of employment: private residences (unless used as child care, health care or adult care facilities), smoking-designated hotel or motel rooms, bars and taverns that are posted to prohibit minors (during those hours when minors are actually excluded), and retail tobacco stores. It also allows- 3 Council Report Study Session Proposed Ordinance No. 2287 January 5, 2001 Page 2 smoking in employee break rooms if certain ventilation standards are met and if non-smoking break rooms are also available. Unlike the previous proposal, this ordinance does not make exceptions for truck stops, racecourses and bingo parlors. The new ordinance provides the following penalties for violating the workplace smoking restrictions: 1. For a first violation, the violator is provided with a warning and educational materials. 2. For a second violation within a 12-month period, as an alternative to a $50 fine (that part is different from Ord. 2270) a violating employer is required to work with staff and the Clackamas County Tobacco Program to develop a smoke-free workplace remediation plan. If the violator is an individual smoker, service and referral information is provided. 3. For a third violation within a 12-month period: a fine of$100 4. For a fourth violation within a 12-month period: a fine of$250 5. For a fifth violation within a 12-month period: a fine of$500. Unlike Ord. 2270 and Multnomah County, there is no restriction on imposing fines for violations occurring before July 2, 2001. 2. Tobacco Sales Licenses Proposed Ordinance 2287 also establishes a Tobacco Sales License to be issued by the city without a fee. Selling tobacco products without a valid license would result in a fine of$500. Sellers would be prohibited from conducting sales that are not "vendor-assisted." In other words, self-service displays would not be allowed. Unlike earlier working drafts, machine tobacco sales are specifically exempted from the ordinance. This is because state law, as incorporated elsewhere in the city code, already regulates machine tobacco sale, and forbids cities from adopting different regulations. The state prohibits tobacco vending machines in any place legally accessible to minors other than industrial plants, hotels, motels, taverns and cocktail lounges. Any person violating the provisions of the tobacco sales ordinance is subject to the following penalties: 1. For a first violation within two years: a fine of$200 2. For a second violation within a two-year period: a fine of$350, plus suspension of the Tobacco Sales License for 45 days. 4 Council Report Study Session Proposed Ordinance No. 2287 January 5, 2001 Page 3 3. For a third or greater violation within a two-year period: a fine of$500 plus suspension of the license for 180 days. If a person sells tobacco to a minor in violation of current state law (as incorporated in the city code) the above license suspensions apply in addition to any fine imposed by the court. State law currently requires a fine of not less than $100, and not more than $600, for each offense. RECOMMENDATION At the conclusion of the study session, it is recommended that the Council instruct staff whether to schedule the attached ordinance for a formal public hearing. 5 ORDINANCE No. 2287 AN ORDINANCE OF THE CITY OF LAKE OSWEGO AMENDING CHAPTER 20 OF THE LAKE OSWEGO CODE TO ADD ARTICLE 20.07 RELATING TO TOBACCO SALES LICENSES AND AMENDING CHAPTER 34 OF THE CODE TO ADD ARTICLE 34.18 RELATING TO SMOKE-FREE WORKPLACES The City of Lake Oswego ordains as follows: The Lake Oswego Code is hereby amended by deleting the text shown by strikeout and adding the new text shown in red and underline. Section 1. Article 20.07 is hereby amended to read as follows 20.07 Tobacco Sales License. Section 2. A new Section 20.07.010 is hereby added to read as follows 20.07.010 Definitions. Licensee. The holder of a valid Tobacco Sales License. Minor. Any person under eighteen (18) years of age. Person. All natural and legal persons, including but not limited to individuals, corporations, associations. partnerships, and societies. Tobacco Product. Any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, chewing tobacco or any other form of tobacco that may be utilized for smoking, chewing, inhalation or other means of ingestion. Tobacco Sales License. The permission, privilege or approval granted by the City to engage in the retail sale of tobacco products. Vendor—assisted sale. Circumstance where only an employee of the licensee has access to the tobacco product prior to the completion of the sale. and where the employee assists the customer by physically supplying the tobacco product. Section 3. A new Section 20.07.020 is hereby added to read as follows 20.07.020 Tobacco Sales Required to be Licensed. No person shall engage in the retail sale of a tobacco product within the City without having first obtained a Tobacco Sales License pursuant to this chapter. This requirement shall be in addition to, not in lieu of, any requirement to obtain a business license under Article 02 of this chapter. Section 4. A new Section 20.07.030 is hereby added to read as follows 20.07.030 Characteristics of License. 1. A Tobacco Sales License issued pursuant to this chapter is a personal privilege and is non- Ordinance No. 2287 Page 1 of 7 7 transferable, unless the transferee has first applied with the City and meets the requirements of this article. 2. A Tobacco Sales License issued pursuant to this chapter may be suspended as provided in LOC 20.07.080. Section 5. A new Section 20.07.040 is hereby added to read as follows 20.07.040 City Manager Authority. The City Manager may adopt reasonable rules and regulations to enforce and to carry out the provisions of this article. The City Manager shall prescribe forms for Tobacco Sales License applications. Section 6. A new Section 20.07.060 is hereby added to read as follows 20.07.060 Vendor-assisted Sales Required. 1. No person shall engage in, permit, allow or offer the retail sale of a tobacco product by any means other than a vendor-assisted sale. 2. This section shall not apply to the dispensing of tobacco products by vending machines. Section 7. A new Section 20.07.070 is hereby added to read as follows 20.07.070 Retaliation Prohibited. No person shall discharge, refuse to hire, or in any manner retaliate against any employee, applicant for employment or customer because such employee, applicant or customer reports or attempts to prosecute any violation of this article. Section 8. A new Section 20.07.080 is hereby added to read as follows 20.07.080 Violations. Any person who violates any provision of this article commits a civil violation. Section 9. A new Section 20.07.090 is hereby added to read as follows 20.07.090 Penalties. I. A person who violates any provision of this article other than LOC 20.07.020 shall incur the following penalties: a. For a first violation within more than two years, a fine of$200. b. For a second violation within any two year period, a fine of $350 plus suspension of the Tobacco Sales License, or the right to apply for such a license, for 45 days. c. For a third or greater violation within any two year period, a fine of $500 plus suspension of the Tobacco Sales License, or the right to apply for such a license, for 180 days. 2. A person who is convicted of violating LOC 34.02.031(9) for distributing, selling, or causing to be sold, tobacco is any form to a person under 18 years of age shall, in addition to any Ordinance No. 2287 Page 2 of 7 8 fine imposed by the court, incur the following penalties: a. For a second violation within any two-year period, suspension of the Tobacco Sales License, or the right to apply for such a license, for 45 days. b. For a third violation with any two-year period, suspension of the Tobacco Sales License, or the right to apply for such a license, for 180 days. 3. A person who violates LOC 20.07.020 shall be subject to a fine of $500 for each day a violation occurs. Section 10. Section 34.04.101 is hereby amended to read as follows 34.04.101 Establishment and Purpose. 1. A procedure to handle violations of City Code provisions as civil violations is hereby established, pursuant to the home rule powers granted the City of Lake Oswego by Article IV, Section 1, and Article XI, Section 2 of the Oregon Constitution, and by Sections 4 and 22 of the Lake Oswego Charter. 2. The civil violation procedure is established for the purpose of decriminalizing penalties for violations of certain Code provisions and for the purpose of providing a convenient and practical forum for the civil hearing and determination of cases arising out of said violations. It is intended that violations be punishable even though the responsible party does not knowingly or intentionally violate provisions of the Code. The mere fact that a violation exists and that a person is responsible is sufficient to initiate violation proceedings and impose a fine. A culpable mental state as an element of proof is hereby expressly dispensed with. 3. Violation of LOC 34.04.101 through 34.16.95018.135 shall be known as and referred to as "civil violations". 4. A person may be found liable, responsible or guilty of an alleged civil violation by reason of ownership or possession of the property on which an event or condition exists or has existed or by reason of such person being the proximate cause of such act or condition. (Ord. No. 1856, Sec. 1; 12-28-82.) Section 11. Section 34.04.105 is hereby amended to read as follows 34.04.105 Definitions. For the purpose of LOC 34.04.101 through 34.4-6..95018.135, unless the context indicates otherwise, the following definitions apply: City Manager. As used in this chapter, City Manager means the person holding the position of City Manager or any officer or employee of the City of Lake Oswego. Civil Violation. An offense against the City in the form of a violation of a provision of the City Code constitutes a civil violation and shall be handled in accordance with the procedures established by this chapter. When a violation is of a continuing nature, a separate violation will be deemed to occur on each calendar day the violation continues to exist, and a separate citation may be filed for each such violation. Fines and Schedules. The only penalty to be imposed for a violation is a monetary penalty called a fine, in addition to any costs, assessments or restitution ordered by the court. However, this section shall not be read to prohibit in any way any other alternative remedies set out in code Ordinance No. 2287 Page 3 of 7 9 provisions covered by this violation procedure which are intended to abate or alleviate code violations or nuisances, nor shall the City be prohibited from recovering, in a manner prescribed by law, any expense incurred by it in abating or removing Code violations pursuant to said chapter. In addition, the City is not by the use of the violation procedure precluded from utilizing any other enforcement mechanism provided by the general laws of the State. (Ord. No. 1856, Sec. 1; 12-28-82. Ord. No. 1910, Sec. 3; 3-5-85.) Section 12. Article 34.18 is hereby amended to read as follows 34.18 Smoke-Free Workplaces. Section 13. A new Section 34.18.100 is hereby added to read as follows 34.18.100 Definitions. For the purpose of Article 34.18, the following definitions shall apply unless the context requires a different meaning. Business. Any sole proprietorship, p nership enture, ration other business entity, including retail establishments where goods or services are sold, as well as professional corporations and other entities where professional services are delivered. Employee. Any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services to a non- profit entity. Employer. Any person or entity who employs the services of one or more individuals. Enclosed Area. All space between a floor and a ceiling that is enclosed on all sides by solid walls or windows (exclusive of door or passageways) that extend from the floor to the ceiling, including all space therein screened by partitions that do not extend to the ceiling or are not solid, such as "office landscaping" or similar structures. Enclosed areas do not include breakrooms designated for smoking (smoking room) by employers if the following conditions are met: 1. The smoking room is not accessible to minors. 2. Air from the smoking room is exhausted directly to the outside by an exhaust fan and not recirculated to other parts of the building. 3. The smoking room is in compliance with ventilation standards established by resolution of the City Council. 4. The smoking room is located in a non-work area where no one, as part of his or her work responsibilities,is required to enter. For purposes of this paragraph, "work responsibilities"does not include custodial or maintenance work carried out in the smoking room when it is unoccupied. 5. There are sufficient nonsmoking breakrooms to accommodate nonsmokers. Place of Employment. Any enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and rest rooms, conference and class rooms, cafeterias and hallways. A private residence is not a "place of employment" unless it is used as a childcare facility as defined in ORS 657A.250, an adult day care facility as defined in ORS 410.490 or a health care facility as defined in ORS 442.015. Retail Tobacco Store. A retail store utilized primarily for the sale of tobacco products and accessories and where the sale of other products is secondary. Ordinance No. 2287 Page 4 of 7 1U Smoking. Any inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, weed, plant, OF other tobacco product, or tobacco product, or tobacco-like product or substances, in any manner or in any form. Tobacco Product. Any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco or any other form of tobacco which may be utilized for smoking, inhalation, or other means of ingestion. Truck Stop. A facility that provides all of the following: fuel service for vehicles up to ninety feet in length; off street parking for trucks and trailers; a twenty four hour restaurant; and Section 14. A new Section 34.18.105 is hereby added to read as follows 34.18.105 Smoking Prohibited in Places of Employment. Every employer shall provide a place of employment free of tobacco smoke for all employees. 1. Smoking is prohibited in all places of employment. 2. No employer shall permit smoking by any person in a place of employment. Section 15. A new Section 34.18.110 is hereby added to read as follows 34.18.110 Places Where Smoking is Not Regulated. Notwithstanding any other provision of this section to the contrary, the following areas shall not be subject to any smoking restrictions contained within this subchapter: 1. Private residences, unless the private residence is used as a child care facility as defined in ORS 657A.250, an adult day care facility as defined in ORS 410.490 or a health care facility as defined in ORS 442.015. 2. Rented motel or hotel rooms that are designated in some manner as smoking-allowed rooms by the owners of the establishment renting the rooms. 3. Private rooms rented for an occupancy that exceeds one month and that are not located in a private residence used as a childcare, adult day care or health facility. 4. Any facility or facility area licensed by the Oregon Liquor Control Commission to serve alcohol by the drink for consumption on the premises that is posted to prohibit the presence of minors. For facilities or areas with postings that allow the presence of minors at specified times, smoking may occur only during those times when minors are prohibited. 5. Bingo operations licensed pursuant to ORS '161.250 et. seq. and race courses operated by a licensee licensed under ORS chapter'162. 6. Retail tobacco stores. 7. Truck stops. Section 16. A new Section 34.18.115 is hereby added to read as follows 34.18.115 Posting "No Smoking" Signs. "No smoking" signs or the international "no smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a circle with a bar across the cigarette) shall be clearly, sufficiently, and conspicuously posted in every building or other area where smoking is Ordinance No. 2287 Page 5 of 7 11 prohibited by this subchapter article, by the owner, manager, or other person having control of such building or other area, including private residences used as a child care, adult day care or health care facility. Section 17. A new Section 34.18.120 is hereby added to read as follows 34.18.120 Violations. 1. It shall be a civil violation for every day any employer, or any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this article, fails to comply with any provisions therein. Each day shall be a separate violation. Section 18 „ Section -3 18 12c is hereby added to ad as f„l ows 3 i 8 12c Smoking in workplace Prohibit„a 2. It shall be a civil violation for any person to smoke in any area where smoking is prohibited by the provisions of this article. Section 18. A new Section 34.18.130 is hereby added to read as follows 34.18.130 Other Laws. This subchapter article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. Section 19. A new Section 34.18.135 is hereby added to read as follows 34.18.135 Penalty. Smoke-Free workplace violations: Any person who violates this article shall be subject to the following penalties: 1. For a first violation, city staff shall provide the violator with a notice and warning, together with educational materials and a referral phone number for the Clackamas County Health Division Tobacco Program. 2. For a second violation within a 12-month period, a fine of $50 shall be imposed. However, the fine shall be suspended provided that the violator cooperates with the following remedial activities: a. If the violator is an employer, the violator employer and city staff, with the assistance of the Clackamas County Tobacco Program if available, will shall jointly develop a smoke-free workplace remediation plan. b. If the violator is If a person other than the employer, commits ^ second violation, city staff, with the assistance of Clackamas County Tobacco Program if available, will shall provide additional services and referral information designed to achieve compliance by that person. 3. For a third violation within a 12-month period, a fine of$100 shall be imposed. 4. For a fourth violation within a 12-month period, a fine of$250 shall be imposed. 5. For a fifth violation within a 12-month period, a fine of$500 shall be imposed. 6. Notwithstanding subsections (3), ('I) and (5) above, no fines shall be imposed for Ordinance No. 2287 Page 6 of 7 12 violations occurring prior to July 2, 2001. Section 20. Severability. The provisions of this ordinance are severable. If any portion of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance. Read by title and enacted at the regular meeting of the City Council of the City of Lake Oswego held on day of , 2001. AYES: NOES: ABSENT: ABSTAIN: Judie Hammerstad, Mayor Dated: ATTEST: Robyn Christie, Deputy City Recorder APPROVED AS TO FORM: David D. Powell, City Attorney M:\Ord\2287A-SmokeFree.rtf Ordinance No. 2287 Page 7 of 7 13