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HomeMy WebLinkAboutOrdinance 2006.04 Amending chapter 10 of the town code relating to smoking in public places F. ANN RODRIGUEZ, RECORDER RECORDED BY: M S DEPUTY RECORDER 1966 PE3 DOCKET: PAGE: NO. OF PAGES: SEQUENCE: 12758 2243 7 20060470591 03/10/2006 14:48 SMARA TOWN OF MARANA ATTN: TOWN CLERK 11555 W CIVIC CENTER DR MARANA AZ 85653 ORDIN MAIL AMOUNT PAID $ 9.00 ~ MARANA ORDINANCE NO. 2006.04 RELATING TO HEALTH AND SANITATION; PROHIBITING SMOKING IN PUBLIC PLACES WITH CERTAIN DEFINED EXCEPTIONS; AMENDING TITLE 10 OF THE MARANA TOWN CODE BY ADDING CHAPTER 10-6, RENUMBERING CURRENT CHAPTER 10-6 AS CHAPTER 10-7 AND RENUMBERING ITS SECTIONS ACCORDINGLY, AND ADDING SECTION 10-7-5; PROVIDING PENALTIES FOR THE VIOLA nON OF CHAPTER 10-6; AND DESIGNATING AN EFFECTIVE DATE. WHEREAS exposure to secondhand smoke is believed to cause about 3,000 lung cancer deaths and 35,000 coronary heart disease deaths in the United States each year; and WHEREAS secondhand smoke is classified as a Group A carcinogen by the United States Environmental Protection Agency; and WHEREAS the Town Council desires to balance the health risks associated with second- hand smoke with the potential economic burden on restaurants associated with an abrupt outright prohibition of smoking; and WHEREAS the Town Council is authorized by A.R.S. S 9-240 to adopt ordinances nec- essary or expedient for the prevention or suppression of disease and for the abatement and re- moval of nuisances; and WHEREAS the Town Council finds that the activities prohibited by this ordinance con- stitute nuisances, the prohibition of which serves to reduce, prevent and suppress disease. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, as follows: SECTION 1. Title 10 of the Marana Town Code is hereby revised by renumbering Chap- ter 10-6 as Chapter 10-7 and renumbering sections Section 10-6-1 through 10-6-4 as Sec- tion 10-7-1 through 10-7-4. Chapter 10-6 SMOKING Section 10-6-1 Definitions In this chapter: 1. "Designated smoking area" means an area within a restaurant where smoking is allowed pursuant to Section 10-6-4. t ? 7 10. :::l ~:l 1SI :2 2 4 ~~ .,.,. SECTION 2. Title 10 of the Marana Town Code is hereby revised by adding new Chap- ter 10-6, as follows: {FC0042.DOC I} - 1 - 3/3/2006 12: 13 AM FJC AL T2 { /' 2. "Environmental tobacco smoke" means smoke from the burning of a tobacco product and smoke exhaled by a smoker. 3. "Restaurant" means a business facility open for the primary purpose of serv- ing food prepared for consumption, either on or off the premises, for compen- sation where annual state sales tax from the sale of food and nonalcoholic beverages exceeds 50% of the total annual state sales tax for every consecu- tive 12-month period. 4. "Seating area" means all floor space of the restaurant except the floor space of those areas which are: a. Used exclusively for the preparation of food or beverages or both (including alcoholic beverages); b. Used exclusively for the storage of food, beverages, and supplies; c. Used exclusively for office space; and d. Rest rooms. 5. "Smoke-free" means air that does not contain any emissions from smoking. 6. "Smoking" or "smoke" means the act of burning any tobacco product, weed, filler or plant of any kind in a cigarette, cigar, pipe or in any other device. 7. "Trigger date" means the earlier of the following: a. The date the Smoke-Free Arizona Initiative fails, either because of a failure to obtain sufficient signatures, failure to win voter approval in the Novem- ber 2006 election, or invalidation by final court decree. b. March 1, 2007. Section 10-6-2 Smoking prohibited No person shall smoke within any enclosed structure or vehicle except as permit- ted by this chapter. Section 10-6-3 Exemptions A. The following places or circumstances are exempt from the provisions of this chapter: 1. Bowling alleys; 2. Pool halls; 3. Bars; 4. Restaurants for which an exemption has been granted pursuant to the terms of this chapter; 5. Retail tobacco stores; 6. Hotel and motel rooms when rented to guests; 7. Hotel and motel conference and meeting rooms when being used for pri- vate functions; 8. Assembly rooms when being used for private functions; 9. A private home; 10. A private, non-commercial vehicle; ~ ~ 8 ~ i A. {FC0042.DOC I} - 2 - 3/3/200612:13 AM FJC ALT2 11. A commercial vehicle occupied by only one person; 12. An office occupied by only one person; 13. Any area not within an enclosed structure or vehicle; 14. Smoking by performers when smoking is required by a script as an inte- gral part of a performance. 15. Nonprofit civic fraternal organizations. B. Subsection A of this section shall not exempt an area placarded as "no smok- ing" pursuant to section 10-6-8. Section 10-6-4 Exemptions for smoking in restaurants A. All restaurants shall be smoke-free. However, restaurants may allow smoking under the following conditions: 1. In an area designated as a smoking area which meets all the requirements of this section; or 2. In an area granted and in compliance with a hardship exception pursuant to Section 10-6-6. B. A designated smoking area must be: 1. Physically separated from all other areas of the restaurant; 2. Independently ventilated so that air neither vents into nor drifts into any ar- eas required to be smoke-free; 3. No greater in size than 25% of the total square footage of the seating area of the restaurant; 4. Physically located so that customers can receive all services provided by the restaurant without having to walk through the designated smoking area or be exposed to environmental tobacco smoke; 5. Clearly marked as a designated smoking area with a posted sign at least 8Y:z inches by 11 inches in size consisting of black letters on a white back- ground that reads: "NOTICE: SMOKING AREA. Smoking is known to cause cancer, heart disease and lung diseases in smokers as well as non- smokers." C. A designated smoking area may include areas immediately adjacent to and outside of the restaurant, if: 1. They are located at least 15 feet from the smoke-free area and public en- trances and exits; and, 2. Smoke cannot enter the smoke-free area of the restaurant. D. A designated smoking area may not include: 1 . An entry lobby; 2. Indoor waiting areas; 3. Rest rooms and the pathway between the rest rooms and dining area; or, 4. Areas where minors customarily congregate. 1 2 7 5 8 ~ ~ 13 {FC0042.DOC I} - 3 - 3/3/200612:13 AM FJC ALT2 E. The building official is authorized to adopt requirements consistent with the Marana building code (title 7 of the town code) to assure compliance with this section. Section 10-6-5 Phase-in to create a designated smoking area A. The owner of a restaurant where one or more designated smoking areas that meet the requirements of Section 10-6-4 will be provided shall do all of the fol- lowing: 1. Submit to the building official an application for the designated smoking ar- eas within 30 days after the effective date of this chapter. 2. Submit to the building official architectural plans for the designated smok- ing areas within 90 days after the effective date of this chapter. 3. Apply for building permits for the designated smoking areas within 30 days after the trigger date. 4. Complete construction of the designated smoking areas within one year af- ter the trigger date. B. While a restaurant is in compliance with the requirements of paragraph A of this section, the restaurant may permit smoking. C. Restaurants constructed, opened, or remodeled after the effective date of this chapter shall immediately comply with Section 10-6-4. For purposes of this paragraph, a restaurant shall not be considered remodeled based solely on modifications to create a designated smoking area. Section 10-6-6 Hardship smoking exception A. The owner of an existing restaurant may apply for a hardship smoking excep- tion to allow smoking throughout the restaurant if compliance with this chapter creates an undue financial hardship. B. For purposes of this section only, an "undue financial hardship" for the initial hardship smoking exception means at least a 15% reduction in state sales tax receipts from the sale of food and nonalcoholic beverages for two consecutive months during which the restaurant has operated smoke-free as compared to the same two consecutive months during the year prior to compliance with this chapter. For restaurants which have not been open for an entire year prior to the date of application for a hardship smoking exception, an "undue financial hardship" for the initial hardship smoking exception means at least a 15% reduction in state sales tax receipts from the sale of food and nonalco- holic beverages for two consecutive months during which the restaurant has operated smoke-free as compared to the two consecutive months immedi- ately prior to those two months of smoke-free operation. For purposes of this section only, an "undue financial hardship" for subsequent hardship smoking exceptions means at least a 15% reduction in state sales tax receipts from the sale of food and nonalcoholic beverages for two consecutive months during which the restaurant has returned to operating smoke-free as compared to the same two consecutive months of the immediately preceding year during which the restaurant operated under a hardship smoking exception. Such a showing shall constitute prima facie evidence and a rebuttable presumption of an undue financial hardship. ~ 7 ~ ~ 2 4 3 !f"'" ~~-" {FC0042.DOC I} - 4 - 3/3/200612:13 AM FJC ALT2 4f'" C. The initial application for a smoking hardship exception must be made not later than August 7, 2006. Subsequent applications for a smoking hardship exception shall be made as indicated in this section. If application for a smok- ing hardship exception is not made within the time periods set forth in this section, the restaurant must be smoke-free. D. An initial hardship smoking exception application shall be submitted to the town clerk and shall contain the following: 1. A description of all efforts made, or which reasonably could be made, to operate the restaurant successfully as a smoke-free environment; and, 2. Exact copies of state sales tax statements submitted by the restaurant to the state of Arizona, comparing state sales taxes of food and nonalcoholic beverages for the applicable periods of operation described in paragraph B of this section. 3. Evidence that the purported drop in state sales tax required in paragraph B of this section has occurred under similar circumstances and is not due to extraneous factors. Evidence must show that the business operated in substantially the same manner including, but not limited to, operating dur- ing the same number of hours, being open the same number of days, be- ing open on the same high-volume business days such as holidays, and serving from menus similar in selection and cost. E. A hardship smoking exception shall not exceed two years. F. For so long as a restaurant has a hardship smoking exception, each entrance to the restaurant shall be clearly marked with a posted sign at least 8Y:z inches by 11 inches in size consisting of black letters on a white background that reads: "NOTICE: SMOKING PERMITTED. This establishment permits smok- ing, which is known to cause cancer, heart disease and lung diseases in smokers as well as non-smokers." G. The entire restaurant shall remain smoke-free unless and until a hardship smoking exception is granted. H. Upon the expiration of a hardship smoking exception, the restaurant shall be smoke-free, but may apply for a subsequent hardship smoking exception no less than 60 days and no more than 120 days after the expiration of a hard- ship smoking exception. I. Subsequent hardship smoking exception applications shall be submitted to the town clerk and shall contain the information described in paragraph D of this section. J. Restaurants constructed, opened, or remodeled after the effective date of this ordinance must immediately be smoke-free or be in compliance with Sec- tion 10-6-4 and shall not be eligible for a hardship smoking exception. Section 10-6-7 Application process and hearing A. An application for a hardship smoking exception shall be made to the town clerk pursuant to procedures developed by the town manager. B. Within 30 days of the town clerk's receipt of an application for a hardship smoking exception, the town shall hold an administrative hearing before the town council to review the application and to consider the recommendations .1 :2 ~ a IS} :2 :2 4 3 D {FC0042.DOC I} - 5 - 3/3/200612:13 AM FJC ALT2 of appropriate town departments. The town clerk shall mail a copy of the town council's decision to the applicant within seven days after a ruling is made. Section 10-6-8 Control of property. A. Except in areas exempt from the provisions of this chapter pursuant to Sec- tions 10-6-3, 10-6-5, or 10-6-6, the owner or person in lawful control of prop- erty shall conspicuously post a "no smoking" sign at each building entrance on the property. B. Each "no smoking" sign shall consist of letters not less than one inch in height or the international "no smoking" symbol consisting of a pictorial representa- tion of a burning cigarette enclosed in a red circle not less than six inches in diameter with a red bar across it. C. Any owner or person in lawful control of property that would otherwise be ex- empt from the provisions of this chapter pursuant to Section 10-6-3 may plac- ard the property as "no smoking." D. The owner or person in lawful control of property shall keep all nonexempt areas of the property smoke-free. If a nonexempt area cannot be kept smoke- free due to smoking in an exempt area, the owner or person in lawful control of the exempt area shall placard the exempt area as "no smoking." Section 10-6-9 Applicability. A. The provisions of this chapter shall apply within the corporate limits of the town. B. The provisions of this chapter shall apply to all property owned or controlled by the town. C. The provisions of this chapter shall not apply to any place where smoking is allowed pursuant to federal or state law. D. Nothing in this chapter excuses noncompliance with any other applicable law or regulation. SECTION 3. Title 10 of the Marana Town Code is hereby revised by adding new Sec- tion 10-7-5, as follows: Section 10-7-5 Smoking Penalties. A. No person shall smoke in an area placarded with a "no smoking" sign. B. A person who owns, manages, operates, or otherwise controls a restaurant shall not: 1. Fail to placard property with "no smoking" signs as required by sec- tion 10-6-8; 2. Fail to placard a designated smoking area with warning signs as required by section 10-6-4 (B)(5); 3. Fail to comply with the terms of an order granting a hardship smoking ex- ception. 4. Allow a person to smoke in a restaurant area other than the designated smoking area; 1 , 5 8 ~ 2 2 4 3 E {FC0042.DOC I} - 6 - 3/3/200612:13 AM FJC ALT2 -- 5. Allow smoke from a designated smoking area to diffuse or drift into the smoke-free areas of the restaurant. C. A person found in violation of paragraphs A or B of this section is guilty of a class 3 misdemeanor D. Each day of a violation described in paragraphs A or B of this section shall constitute a separate offense and is punishable as such. E. For violations of this section, no judge, magistrate, or justice of the peace may suspend the imposition of a minimum fine of at least $100. Fines may be as- sessed in excess of $100 to the maximum prescribed for a class 3 misde- meanor. In addition to fines, jail time and probation may be assessed to the maximum prescribed for a class 3 misdemeanor. SECTION 4. This Ordinance shall become effective on the ih day of April, 2006. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 7th day of March, 2006. ATTEST: {FC0042.DOC I} ~~ Mayor Ed Honea w ",'\' ~n H <11", ~.,._\. 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