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HomeMy WebLinkAbout02/28/2006 Blue Sheet Smoking Ordinance Options TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: February 28, 2006 AGENDA ITEM: F.2 TO: MAYOR AND COUNCIL FROM: James R. DeGrood, P.E. Assistant Town Manager SUBJECT Discussion and Direction: Smoking ordinance options DISCUSSION At its February 7, 2006 meeting, Council requested that staff bring forward a smoking ordinance for consideration. Pima County recently adopted an ordinance banning smoking in public areas that has exclusions for bars and restaurants having smoking areas that meet certain criteria for ventilation and separation from other dining areas. This ordinance is enforced by the Pima County Health Department. The Smoke Free Arizona Act initiative drive launched last year is currently gathering signatures. This initiative will be placed on the ballot for the November General Election if the required 122,612 signatures are submitted to the Arizona Secretary of State by July 6, 2006. If approved by the voters, this law would be more far-reaching in its scope than the current Pima County smoking ordinance. The exclusions for bars and restaurants would be eliminated, and the ordinance would be enforced by the Arizona Department of Health Services. This law would supersede the County ordinance. Should the Town wish to adopt an ordinance at this time, it may do one ofthe following: 1. Adopt the County ordinance and request that the Pima County Health Department carry out its enforcement. 2. Adopt the Smoke Free Arizona Act language, but have Marana enforce the ordinance until a statewide law, which would be enforced by the Arizona Department of Health Services, is adopted. 3. Adopt ordinance language unique to the Town. If the Town adopts the County ordinance and the Smoke Free Arizona Act becomes law, the Town's ordinance would become moot. However, any restaurant modified for conformance with the County ordinance would be unable to benefit from its modification investment. If the Town adopts the Smoke Free Arizona Act language and the initiative fails, the Town would be responsible for the ongoing administrative and enforcement costs associated with the ordinance. The Town could adopt an ordinance which is unique in its provisions and is enforced by the Town. This would allow the Town to establish its own exemptions. However, this could be confusing both to the public and to businesses in the Town. Further, if the language is less stringent than the Smoke Free Arizona Act, the Town's ordinance would become moot if the initiative passes. On February 14,2006, the Business Advisory Committee met and considered the adoption of the County's smoking ordinance and recommended that the Town Council approve the ordinance, so long as the Council retains the ability to consider hardship cases. On a final note, another initiative drive is underway statewide entitled "Keep Arizona Free," which proposes to limit the rights of local governments to restrict smoking in public places. The status of this initiative drive and its language are unknown. This initiative drive was filed with the Secretary of State on December 20, 2005, and also requires the gathering of 122,612 signatures by July 6, 2006. ATTACHMENTS Power point presentation handout, Pima County smoking ordinance, and Pima County summary of ordinance relating to smoking. RECOMMENDATION Staff recommends that the County smoking ordinance, modified to provide for Town consideration of hardships, be brought forward for consideration at the second regular Council meeting of July, 2006 (July 18, 2006) if the Smoke Free Arizona Act initiative drive fails to secure the required number of signatures to appear on the November 2006 General Election ballot, or on the first regular council meeting of December, 2006 (December 5, 2006) if the Smoke Free Arizona Act is not approved by the voters at the November 2006 General Election. SUGGESTED MOTION(S) (1) I move we accept the staff recommendation; or, (2) I move to direct staff to bring forward the County smoking ordinance for consideration, with provisions for automatic revocation should a stronger statewide law be enacted, and for the Council to retain the ability to review hardship cases; or, (3) I move to direct staff to bring forward an ordinance containing the Smoke Free Arizona Act language for consideration. -2- . SUMMARY OF PIMA COUNlY ORDINANCE PROHIBmNG SMOKING Pima County Code Chapter 8.50 r No person shall smoke within any enclosed I structure or vehicle, except as permitted by this chapter I . RESTAURANT Vs. BAR "Restaurant" means a business where annual state sales tax from the sale of food and non -alcohol beverages exceeds 50% of the total annual state sales tax. A "bar" would have over 50% of the annual state sales tax paid by the establishment generated by the sale of alcohol. a \WI EXEMPTIONS . Bowling alleys and pool halls; .. Bars; . Restaurants for which an exemption has been granted pursuant to the terms of this chapter; .. Retail tobacco stores; .. Hotel and motel rooms and conference rooms when rented to guests or being used for private functions; .. Assembly rooms when being used for private functions; .. A private home or private, non-commercial vehicle; .. A commercial vehicle oceu pied by only one person; . An office occupied by only one person; .. Any area not within an enclosed shucture or vehicle; . Smoking by performers when smoking is required by a script as an integral palt of a perfOl'mance; and .. Nonpmfit civic fraternal organizations . EXEMPTIONS FOR SMOKING IN RESTAURANTS A restaurant may allow smoking in a designated smoking area that is: .Physically separated from all other areas of the restaurant; .Independently ventilated; .No greater in size than 25% of the total square footage of the restaurant's seating area; .Located so that customers do not have to walk through the designated smoking area; and .Clearly marked with warning signs at all entrances. 1 . DESIGNATED SMOKING AREAS A restaurant's designated smoking area must be at least 15 feet from the smoke-free area and public entrances and exits. Smoke from the outdoor designated smoking area cannot enter the smoke-free area of the restaurant. A designated smoking area may not include an entry lobby, waiting areas, rest rooms and the pathway between the rest rooms and dining area, and areas where minors customarily congregate. & . PHASING A restaurant owner has 90 days after the effective date of the ordinance (6 months after adoption, in the case of Pima County) to complete construction on a designated smoking area. If they need more time to complete constmction, they can apply for a hardship phase-in which will give them up to an additional year to modify their stmclure. The entire restaurant has to stay smoke-free until the modifications for the designated smoking area are completed. If they fail to apply for the hardship phase-in within 90 days or fail to complete constmction within the stated time, the restaurant must remain smoke-free. . HARDSHIP EXCEPTIONS The owner of an existing restaurant may apply for a hardship exception to allow smoking throughout the restaurant if compliance creates an undue financial hardship. "Undue financial hardship" means at least a 15% reduction in state sales tax receipts from the sale of food and non -alcohol beverages for 2 consecutive months while operating under the ordinance compared to the same 2 consecutive months during the year prior to compliance. A hardship exception shall not exceed 2 years. . PENALTIES & ENFORCFMENT Any person who smokes in an area placarded with a "No Smoking" sign is guilty of a Class 3 misdemeanor. Any person who owns, manages, operates, or otherwise controls a restaurant who fails to comply with this ordinance is guilty of a Class 3 misdemeanor. This ordinance is administered and enforced by the Pima County Health Department 2 Chapter 8.50 SMOKING Sections: 8.50.010 Definitions. 8.50.020 Smokin2 prohibited. 8.50.030 Exemptions. 8.50.031 Exemptions for Smokin2 in Restaurants 8.50.032 Hardship Phase-In to Create a Desi2nated Smokin2 Area 8.50.033 Hardship Smokin2 Exception 8.50.034 Application Process and Hearin2 8.50.040 Control of property. 8.50.050 Applicability. 8.50.060 Penalties. 8.50.010 Definitions. In this chapter: 1. "Designated Smoking Area" means an area within a restaurant where smoking is allowed pursuant to Section 8.50.031. 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 serving food prepared for consumption, either on or off the premises, for compensation where annual state sales tax from the sale of food and nonalcohol beverages exceeds fifty percent (50%) of the total annual state sales tax for every consecutive twelve (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 offood, 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. (Ord. 2001-137 S 1 (part), 2001; Ord. 1992-9 S 2 (part), 1992) 8.50.020 Smoking prohibited. No person shall smoke within any enclosed structure or vehicle except as permitted by this chapter. (Ord. 2001-137 S 1 (part), 2001; Ord. 1992-9 S 2 (part), 1992) 8.50.030 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 private functions; 8. Assembly rooms when being used for private functions; 9. A private home; 10. A private, non-commercial vehicle; 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 integral part of a performance. 15. Nonprofit civic fraternal organizations, such as the Veterans of Foreign Wars or the Benevolent and Protective Order of Elks. B. No exemption set forth in subsection A of this section shall exist if an area is placarded as "No Smoking" pursuant to Section 8.50.040. (Ord. 2001-137 ~ 1 (part), 2001; Ord. 1992-9 ~ 2 (part), 1992) 8.50.031 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. If granted, and in compliance with, a hardship exception pursuant to Section 8.50.033. B. A designated smoking area must be: 1. Physically separated from all other areas of the restaurant; 2. Independently ventilated so that air is not vented into or does not drift into any areas required to be smoke-free; 3. No greater in size than twenty-five percent (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 by the posting of legible warning sign(s) at all entrances to the designated smoking area which read(s) "NOTICE: SMOKING AREA. Smoking is known to cause cancer, heart disease, and lung diseases in smokers as well as nonsmokers." The sign(s) shall be black letters on a white background and at least 8.5 inches by 11 inches in size. C. A designated smoking area may include areas immediately adjacent to and outside ofthe restaurant, if: 1. At least fifteen (15) feet from the smoke-free area and public entrances and exits; and, 2. Smoke from the outdoor designated smoking area cannot enter the smoke-free area ofthe restaurant. D. A designated smoking area may not include: 1. An entry lobby; 2. Waiting areas; 3. Rest rooms and the pathway between the rest rooms and dining area; or, 4. Areas where minors customarily congregate. E. The department of development services is authorized to make requirements consistent with the Pima County Building Code, to assure compliance with this section. (Ord. 2001-137 ~ 1 (part), 2001) 8.50.032 Hardship Phase-In to Create a Designated Smoking Area A. The owner of an existing restaurant may apply for a hardship phase-in to allow a period beyond the date prescribed to make the necessary modifications to create a designated smoking area which meets the requirements of Section 8.50.031, if completing those modifications within the date prescribed would create an undue financial hardship. B. For purposes of this section only, an "undue financial hardship" means that the applicant does not have current funds, or the current ability to borrow and repay funds, necessary and sufficient to remodel the restaurant to create a designated smoking area which complies with Section 8.50.031. The owner bears the burden of showing that compliance would create an undue financial hardship. C. The time allotted for a hardship phase-in to create a designated smoking area shall not exceed one (1) year. D. A hardship phase-in to create a designated smoking area application shall be submitted to the health department and shall contain the following: 1. An estimate from appropriately licensed contractor(s) of the costs of modifying the seating area of the restaurant to be a designated smoking area which meets the requirements of Section 8.50.031; 2. Financial statements prepared by a licensed certified public accountant for the twelve (12) months immediately prior to the month in which a hardship phase-in application is filed purporting to show an undue financial hardship; 3. A time and task schedule for complying with all requirements of Section 8.50.031 if a hardship phase-in is granted; and, 4. A sworn statement that, if a phase-in is granted, the applicant shall complete the structural, HV AC, signage, and all other modifications necessary to meet the requirements of Section 8.50.031 (B) and (C) in accordance with the time and task schedule. E. A restaurant owner must apply for a hardship phase-in to create a designated smoking area within ninety (90) days of the effective date of this ordinance. If application for hardship phase-in to create a designated smoking area is not made within this time period, the restaurant must be smoke-free. F. The entire restaurant shall remain smoke-free until the modifications for the designated smoking area are completed. G. Restaurants constructed, opened, or remodeled after the effective date of this ordinance, must immediately comply with Section 8.50.031 and shall not be eligible for a hardship phase-in. (Ord. 2001-137 ~ 1 (part), 2001) 8.50.033 Hardship Smoking Exception A. The owner of an existing restaurant may apply for a hardship smoking exception to allow smoking throughout the restaurant, if compliance 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 fifteen percent (15%) reduction in state sales tax receipts from the sale of food and nonalcohol beverages for two (2) consecutive months wherein the restaurant has operated smoke-free as compared to the same two (2) 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 fifteen percent (15%) reduction in state sales tax receipts from the sale of food and nonalcohol beverages for two (2) consecutive months wherein the restaurant has operated smoke-free as compared to the two (2) consecutive months immediately prior to those two (2) months of smoke-free operation. For purposes of this section only, an "undue financial hardship" for subsequent hardship smoking exceptions means at least a fifteen percent (15%) reduction in state sales tax receipts from the sale of food and nonalcohol beverages for two (2) consecutive months wherein the restaurant has returned to operating smoke-free as compared to the same two (2) 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. C. The initial application for a smoking hardship exception must be made within one hundred twenty (120) days from the effective date of this ordinance. Subsequent applications for a smoking hardship exception shall be made as indicated in this section. If application for a smoking 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 health department 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, which can serve to compare state sales taxes of food and nonalcohol beverages for a two (2) consecutive month period of smoke-free operation and the same two (2) consecutive month period in the year immediately prior to smoke-free operation. 3. Evidence which demonstrates that the purported drop in state sales tax between the year in which the exemption is sought and the prior comparison year 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 during the same number of hours, being open the same number of days, being open on the same high business days, such as holidays; and, serving from a menus similar in selection and cost. E. A hardship smoking exception, if granted, shall not exceed two (2) years. F. All entries to the restaurant must be clearly marked by the posting of a legible warning sign(s) which read(s): "NOTICE: SMOKING PERMITTED. This establishment permits smoking which is known to cause cancer, heart disease, and lung diseases in smokers as well as non-smokers." The sign(s) shall be black letters on a white background and at least 8.5 inches by 11 inches in size. 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 must be smoke-free, but may apply for a subsequent hardship smoking exception no less than sixty (60) days and no more than one hundred twenty (120) days after the expiration of a hardship smoking exception. I. Subsequent hardship smoking exception applications shall be submitted to the health department 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. State sales tax statements prepared by a licensed certified public accountant, which compare state sales tax receipts for food and nonalcohol beverages for a two (2) consecutive month period of smoke-free operation in the year the application is made and the same two (2) consecutive month period in the year immediately prior where the restaurant operated under a hardship smoking exception. J. Restaurants constructed, opened, or remodeled after the effective date of this ordinance must immediately be smoke-free or in compliance with Section 8.50.031 and shall not be eligible for a hardship smoking exception. (Ord. 2001-137 S 1 (part), 2001) 8.50.034 Application process and hearing A. Applications for either a hardship phase-in to create a designated smoking area or a hardship smoking exception shall be made to the health department pursuant to procedures developed by the department director. B. The county shall hold an administrative hearing, before a hearing officer, to review the application for a hardship phase-in to create a designated smoking area or a hardship smoking exception and to consider the recommendations of appropriate county departments within thirty (30) days of the health department's receipt of an application for hardship phase-in to create a designated smoking area or a hardship smoking exception. The hearing officer shall issue a ruling within seven (7) days after the hearing and to mail a copy of his decision to the applicant and to the health department within seven (7) days after the ruling is made. (Ord. 2001-137 S 1 (part), 2001) 8.50.040 Control of property. A. Unless an area is exempt from the provisions of this chapter pursuant to Sections 8.50.030, 8.50.032, or 8.50.033, the owner or person in lawful control of property shall conspicuously post "No Smoking" signs at all entrances to said property. B. "No Smoking" signs shall depict letters of not less than one inch in height or the international "No Smoking" symbol consisting of a pictorial representation of a burning cigarette enclosed in a red circle of not less than six inches in diameter and with a red bar across it. C. Any owner or person in lawful control of property that would otherwise be exempt from the provisions of this chapter pursuant to Section 8.50.030 may placard the property as "No Smoking." D. The owner or person in lawful control of property shall keep all nonexempt areas ofthe property smoke- free. If a nonexempt area cannot be kept smoke-free due to smoking in an exempt area, the owner or person m lawful control of the exempt area shall placard the exempt area as "No Smoking." (Ord. 2001-137 S 3 (part), 2001; Ord. 1992-9 S 2 (part), 1992) 8.50.050 Applicability. A. The provisions of this chapter shall apply to the unincorporated areas of Pima County. B. The provisions of this chapter shall apply to all property owned or controlled by Pima County. C. The provisions of this chapter may apply to the incorporated areas of Pima County pursuant to the provisions of Arizona Revised Statutes Section 11-251.05, subsection C. D. The provisions of this chapter shall not apply to any place where smoking is allowed pursuant to federal or state law. E. Nothing in this chapter excuses noncompliance with any other Pima County Code, state or federal law, or any rule or regulation adopted pursuant thereto. (Ord. 2001-137 S 3(part), 2001; Ord. 1992-9 S 2 (part), 1992) 8.50.060 Penalties. A. Any person who smokes in an area placarded with a "No Smoking" sign is guilty of a Class 3 misdemeanor. B. Any person who owns, manages, operates, or otherwise controls a restaurant who commits any of the following is guilty of a Class 3 misdemeanor: 1. Failing to placard property with "No Smoking" signs as required by Section 8.50.040; 2. Failing to placard a designated smoking area with warning signs as required by Section 8.50.03l(B)(5); 3. Failing to comply with the terms of an order granting a hardship phase-in to create a designated smoking area or hardship smoking exception. 4. Allowing a person to smoke in a restaurant area other than the designated smoking area; 5. Allowing smoke from a designated smoking area to diffuse or drift into the smoke-free areas of the restaurant. C. Each day of a violation described in paragraphs A or B of this section shall constitute a separate offense and is punishable as such. D. For violations described in paragraphs Band C of this section, no judge, magistrate, or justice of the peace may suspend the imposition of a minimum fine of at least one-hundred dollars ($100). Fines may be assessed in excess of one-hundred dollars ($100) to the maximum prescribed for a Class 3 misdemeanor. (Ord. 2001-137 S 3 (part), 2001; Ord. 1992-9 S 2 (part), 1992) rna}' b(: Clerk of the Board of Supervisors Administration Building 130 West Congress, 5th Floor Tucson, Arizona 85701 Telephone (520) 740-8449 .\11 Pima County Non-smokin2 Ordinance Summary of Chapter 8.50 . Smoking prohibited: No person shall smoke within any enclosed structure or vehicle except as permitted by this chapter. . Exemptions: The following places or circumstances are exempt: . Bowling alleys; . Pool halls; . Bars; . Restaurants for which an exemption has been granted pursuant to the terms of this chapter; . Retail tobacco stores; . Hotel and motel rooms when rented to guests; . Hotel and motel conference and meeting rooms when being used for private functions; . Assembly rooms when being used for private functions; . A private home; . A private, non-commercial vehicle; . A commercial vehicle occupied by only one person; . An office occupied by only one person; . Any area not within an enclosed structure or vehicle; . Smoking by performers when smoking is required by a script as an integral part of a performance. . Nonprofit civic fraternal organizations, such as the Veterans of Foreign Wars or the Benevolent and Protective Order of Elks. . A Restaurant vs. a bar: "Restaurant" means a business where annual state sales tax from the sale offood and non-alcohol beverages exceeds fifty percent (50%) ofthe total annual state sales tax. . Exemptions for Smoking in Restaurants: Restaurants may allow smoking under the following conditions: . In a designated smoking area that is: o Physically separated from all other areas of the restaurant; o Independently ventilated so that air is not vented into or does not drift into any areas required to be smoke-free; o No greater in size than twenty-five percent (25%) of the total square footage of the restaurant's seating area; o 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; o Clearly marked as a designated smoking area by the posting of warning signs at all entrances to the designated smoking area . A designated smoking area may include areas immediately adjacent to and outside of the restaurant, if: o At least fifteen (15) feet from the smoke-free area and public entrances and exits; o Smoke from the outdoor designated smoking area cannot enter the smoke-free area of the restaurant. . A designated smoking area may not include an entry lobby, waiting areas, rest rooms and the pathway between the rest rooms and dining area, and areas where minors customarily congregate. . Hardship Smoking Exceptions . The owner of an existing restaurant may apply for a hardship smoking exception to allow smoking throughout the restaurant, if compliance creates an undue financial hardship; o "undue financial hardship" for the initial hardship smoking exception means at least a fifteen percent (15%) reduction in state sales tax receipts from the sale of food and non-alcohol beverages for two (2) consecutive months wherein the restaurant has operated smoke-free as compared to the same two (2) consecutive months during the year prior to compliance o A hardship smoking exception shall not exceed two (2) years. o The entire restaurant shall remain smoke-free unless and until a hardship smoking exception is granted. o Restaurants constructed, opened, or remodeled after the effective date of this ordinance must immediately be smoke-free or in compliance with Section 8.50.031 and shall not be eligible for a hardship smoking exception. . The owner of an existing restaurant can apply for a hardship phase-in to allow time to make the necessary adjustments if the adjustments would create undue financial hardship; o The hardship phase-in cannot exceed one (1) year; o The entire restaurant has to stay smoke-free until the modifications for the designated smoking area are completed; o Restaurants constructed, opened, or remodeled after the effective date of this ordinance shall not be eligible for a hardship phase-in. . Penalties . Any person who smokes in an area placarded with a "No Smoking" sign is guilty of a Class 3 misdemeanor. . Any person who owns, manages, operates, or otherwise controls a restaurant who fails to post "No Smoking" or designated smoking area signs, allows a person to smoke in a restaurant area other than the designated smoking area or allows smoke from a designated smoking area to diffuse or drift into the smoke-free areas of the restaurant is guilty of a Class 3 misdemeanor. . This ordinance is administered and enforced by the Pima County Health Department SMOKE-FREE ARIZONA 8/301200511:08 AM OFFICIAL TITLE An Initiative Measure REPEALING SECTIONS 36-601.01 and 36-601.02, AMENDING BY ADDING NEW SECTION 36-601.01 and AMENDING SECTION 42-3251.02 ARIZONA REVISED STATUTES; RELATING TO THE SMOKE-FREE ARIZONA ACT Be it enacted by the People of the State of Arizona: Section 1. Title This measure shall be known as the "Smoke-Free Arizona Act." Section 2. Findings and Declaration of Purpose WHEREAS, an estimated 3,000 lung cancer deaths and more than 35,000 coronary heart disease deaths occur annually among adult nonsmokers in the United States as a result of exposure to secondhand smoke. CDC. Annual smoking-attributable mortality, years of potential life lost, and economic costs. (United States, 1995-1999 Morbidity and Mortality Weekly Report 2002;51 (l4):300-303.) WHEREAS, secondhand smoke has been classified by the Environmental Protection Agency (EPA) as a Group A carcinogen. This classification is reserved for chemicals or compounds which have been shown to cause cancer in humans such as asbestos and benzene. (United States Environmental Protection Agency, January 1993. Respiratory Effects of Passive Smoking.) WHEREAS, secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. Children exposed to secondhand smoke have an increased risk of asthma, respiratory infections, sudden infant death syndrome, developmental abnormalities, and cancer. (California Environmental Protection Agency (CAL EPA), "Health effects of exposure to environmental tobacco smoke," Tobacco Control 6(4): 346-353, Winter, 1997.) WHEREAS, numerous economic analyses examining restaurant and hotel receipts and controlling for economic variables have shown either no difference or a positive economic impact after enactment of laws requiring workplaces to be smoke-free. Creation of smoke-free workplaces is sound economic policy and provides the maximum level of employee health and safety. (Glantz, S.A. & Smith, L. ''The effect of ordinances requiring smoke-free restaurants on restaurant sales in the United States." American Journal (~lPublic Health 87:1687-1693,1997); Colman, R; Urbonas, C.M, "The economic impact of smoke-free \vorkplaces: an assessment for Nova Scotia, prepared for Tobacco Control Unit, Nova Scotia Department of Health," GPI Atlantic, September 200 1. ) THEREFORE, The people of Arizona declare that everyone has the right to breathe clean indoor air in public places and at work, and that the health of Arizonans will be improved by prohibiting smoking in enclosed public places and places of employment. It is the intent of this Proposition to protect patrons, employees and people who may be particularly vulnerable to the health risks of breathing secondhand tobacco smoke including children, seniors and people with existing health problems. Section 3. Sections 36-601.01 AND 36-601.02 Arizona Revised Statutes are repealed. Section 4. Title 36, Article 6, Chapter 6 Article I is amended by adding a new 36-601.0 I to read: 36-601.0 I SMOKE-FREE ARIZONA ACT A. DEFINITIONS. THE FOLLOWING WORDS AND PHRASES, WHENEVER USED IN THIS SECTION. SHALL BE CONSTRUED AS DEFINED IN THIS SECTION: 1. "EMPLOYEE" MEANS ANY PERSON WHO PERFORMS ANY SERVICE ON A FULL-TIME, PART-TIME OR CONTRACTED BASIS WHETHER OR NOT THE PERSON IS DENOMINATED AN EMPLOYEE. INDEPENDENT CONTRACTOR OR OTHERWISE AND WHETHER OR NOT THE PERSON IS COMPENSATED OR IS A VOLUNTEER. 2. "EMPLOYER" MEANS A PERSON, BUSINESS, PARTNERSHIP, ASSOCIATION, THE STATE OF ARIZONA AND ITS POLITICAL SUBDIVISIONS, CORPORA TIONS, INCLUDING A MUNICIPAL CORPORATIONS, TRUST, OR NON-PROFIT ENTITY THAT EMPLOYS THE SERVICES OF ONE OR MORE INDIVIDUAL PERSONS. 3. "ENCLOSED AREA" MEANS ALL SPACE BETWEEN A FLOOR AND CEILING THAT IS ENCLOSED ON ALL SIDES BY PERMANENT OR TEMPORARY WALLS OR WINDOWS (EXCLUSIVE OF DOORWAYS), WHICH EXTEND FROM THE FLOOR TO THE CEILING. ENCLOSED AREA INCLUDES A REASONABLE DISTANCE FROM ANY ENTRANCES, WINDOWS AND VENTILATION SYSTEMS SO THAT PERSONS ENTERING OR LEAVING THE BUILDING OR FACILITY SHALL NOT BE SUBJECTED TO BREATHING TOBACCO SMOKE AND SO THAT TOBACCO SMOKE DOES NOT ENTER THE BUILDING OR FACILITY THROUGH ENTRANCES, WINDOWS. VENTILATION SYSTEMS OR ANY OTHER MEANS. 4. "HEALTH CARE FACILITY" MEANS ANY ENCLOSED AREA UTILIZED BY ANY HEALTH CARE INSTITUTION LICENSED ACCORDING TO TITLE 36 2 CHAPTER 4, CHAPTER 6 ARTICLE 7, OR CHAPTER 17, OR ANY HEALTH CARE PROFESSIONAL LICENSED ACCORDING TO TITLE 32 CHAPTERS 7, 8,11,13. 14,15,15.1,16,17,18, 19,19.1. 21, 25, 28, 29,33,34,35,39,41, OR 42. 5. "PERSON" MEANS AN INDIVIDUAL, PARTNERSHIP, CORPORATION, LIMITED LIABILITY COMPANY, ENTITY, ASSOCIATION, GOVERNMENTAL SUBDIVISION OR UNIT OF A GOVERNMENTAL SUBDIVISION, OR A PUBLIC OR PRIVATE ORGANIZATION OF ANY CHARACTER. 6. "PHYSICALL Y SEPARATED" MEANS ALL SPACE BETWEEN A FLOOR AND CEILING WHICH IS ENCLOSED ON ALL SIDES BY SOLID WALLS OR WINDOWS (EXCLUSIVE OF DOOR OR P ASSAGEW A Y) AND INDEPENDENTLY VENTI LA TED FROM SMOKE-FREE AREAS, SO THAT AIR WITHIN PERMITTED SMOKING AREAS DOES NOT DRIFT OR GET VENTED INTO SMOKE-FREE AREAS. 7. "PLACES OF EMPLOYMENT"MEANS AN ENCLOSED AREA UNDER THE CONTROL OF A PUBLIC OR PRIV ATE EMPLOYER THAT EMPLOYEES NORMALL Y FREQUENT DURING THE COURSE OF EMPLOYMENT, INCLUDING OFFICE BUILDINGS, WORK AREAS, AUDITORIUMS. EMPLOYEE LOUNGES, RESTROOMS, CONFERENCE ROOMS, MEETING ROOMS, CLASSROOMS, CAFETERIAS, HALL WAYS, STAIRS. ELEVATORS, HEALTH CARE FACILITIES. PRIVATE OFFICES AND VEHICLES OWNED AND OPERATED BY THE EMPLOYER DURING WORKING HOURS WHEN THE VEHICLE IS OCCUPIED BY MORE THAN ONE PERSON. A PRIVATE RESIDENCE IS NOT A "PLACE OF EMPLOYMENT" UNLESS IT IS USED AS A CHILD CARE, ADULT DAY CARE, OR HEALTH CARE FACILITY. 8. "VETERAN AND FRATERNAL CLUBS" MEANS A CLUB AS DEFINED IN A.R.S. 4-1 OJ (7)(A)(B) OR (C). 9. "PUBLIC PLACE" MEANS ANY ENCLOSED AREA TO WHICH THE PUBLIC IS INVITED OR IN WHICH THE PUBLIC IS PERMITTED. INCLUDING AIRPORTS. BANKS, BARS, COMMON AREAS OF APARTMENT BUILDINGS, CONDOMINIUMS OR OTHER MULTIFAMILY HOUSING FACILITIES, EDUCATIONAL FACILITIES, ENTERTAINMENT FACILITIES OR VENUES. HEALTH CARE FACILITIES, HOTEL AND MOTEL COMMON AREAS, LAUNDROMATS. PUBLIC TRANSPORTATION FACILITIES, RECEPTION AREAS. RESTAURANTS, RETAIL FOOD PRODUCTION AND MARKETING ESTABLISHMENTS, RETAIL SERVICE ESTABLISHMENTS. RETAIL STORES, SHOPPING MALLS. SPORTS FACILITIES, THEATERS, AND WAITING ROOMS. A PRIVATE RESIDENCE IS NOT A "PUBLIC PLACE" UNLESS IT IS USED AS A CHILD CARE. ADULT DAY CARE, OR HEALTH CARE FACILITY. 3 10. "RETAIL TOBACCO STORE" MEANS A RETAIL STORE THAT DERIVES THE MAJORITY OF ITS SALES FROM TOBACCO PRODUCTS AND ACCESSORIES. 11. "SMOKING" MEANS INHALING, EXHALING, BURNING, OR CARRYING OR POSSESSING ANY LIGHTED TOBACCO PRODUCT, INCLUDING CIGARS, CIGARETTES. PIPE TOBACCO AND ANY OTHER LIGHTED TOBACCO PRODUCT. 12. "SPORTS FACILITIES" MEANS ENCLOSED AREAS OF SPORTS PAVILIONS, STADIUMS, GYMNASIUMS, HEALTH SPAS, BOXING ARENAS, SWIMMING POOLS, ROLLER AND ICE RINKS, BILLIARD HALLS, BOWLING ALLEYS, AND OTHER SIMILAR PLACES WHERE MEMBERS OF THE GENERAL PUBLIC ASSEMBLE TO ENGAGE IN PHYSICAL EXERCISE P ARTICIP A TE IN ATHLETIC COMPETITION, OR WITNESS SPORTING EVENTS. B. SMOKING IS PROHIBITED IN ALL PUBLIC PLACES AND PLACES OF EMPLOYMENT WITHIN THE STATE OF ARIZONA. EXCEPT THE FOLLOWING: 1. PRIV ATE RESIDENCES. EXCEPT WHEN USED AS A LICENSED CHILD CARE, ADULT DAY CARE, OR HEALTH CARE FACILITY. 2. HOTEL AND MOTEL ROOMS THAT ARE RENTED TO GUESTS AND ARE DESIGNATED AS SMOKING ROOMS: PROVIDED, HOWEVER. THAT NOT MORE THAN FIFTY PERCENT OF ROOMS RENTED TO GUESTS IN A HOTEL OR MOTEL ARE SO DESIGNATED. 3. RETAIL TOBACCO STORES THAT ARE PHYSICALLY SEPARATED SO THAT SMOKE FROM RETAIL TOBACCO STORES DOES NOT INFILTRATE INTO AREAS WHERE SMOKING IS PROHIBITED UNDER THE PROVISIONS OF THIS SECTION. 4. VETERANS AND FRATERNAL CLUBS WHEN THEY ARE NOT OPEN TO THE GENERAL PUBLIC. 5. SMOKING WHEN ASSOCIATED WITH A RELIGIOUS CEREMONY PRACTICED PURSUANT TO THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978. 6. OUTDOOR PATIOS SO LONG AS TOBACCO SMOKE DOES NOT ENTER AREAS WHERE SMOKING IS PROHIBITED THROUGH ENTRANCES. WINDOWS. VENTILATION SYSTEMS, OR OTHER MEANS. 7. A THEATRICAL PERFORMANCE UPON A STAGE OR IN THE COURSE OF A FILM OR TELEVISION PRODUCTION IF THE SMOKING IS PART OF THE PERFORMANCE OR PRODUCTION. 4 C. THE PROHIBITION ON SMOKING IN PLACES OF EMPLOYMENT SHALL BE COMMUNICATED TO ALL EXISTING EMPLOYEES BY THE EFFECTIVE DATE OF THIS SECTION AND TO ALL PROSPECTIVE EMPLOYEES UPON THEIR APPLICATION FOR EMPLOYMENT. D. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, AN OWNER, OPERATOR, MANAGER, OR OTHER PERSON OR ENTITY IN CONTROL OF AN ESTABLISHMENT, FACILITY, OR OUTDOOR AREA MAY DECLARE THAT ENTIRE ESTABLISHMENT, FACILITY, OR OUTDOOR AREA AS A NONSMOKING PLACE. E. POSTING OF SIGNS AND ASHTRAY REMOVAL. 1. "NO SMOKING" SIGNS OR THE INTERNATIONAL "NO SMOKING" SYMBOL (CONSISTING OF A PICTORIAL REPRESENT A TION OF A BURNING CIGARETTE ENCLOSED IN A RED CIRCLE WITH A RED BAR ACROSS IT) SHALL BE CLEARLY AND CONSPICUOUSLY POSTED BY THE OWNER, OPERATOR, MANAGER, OR OTHER PERSON IN CONTROL OF THAT PLACE IDENTIFYING WHERE SMOKING IS PROHIBITED BY THIS SECTION AND WHERE COMPLAINTS REGARDING VIOLATIONS MAYBE REGISTERED. 2. EVERY PUBLIC PLACE AND PLACE OF EMPLOYMENT WHERE SMOKING IS PROHIBITED BY THIS SECTION SHALL HAVE POSTED AT EVERY ENTRANCE A CONSPICUOUS SIGN CLEARLY STATING THAT SMOKING IS PROHIBITED. 3. ALL ASHTRAYS SHALL BE REMOVED FROM l\NY AREA WHERE SMOKING IS PROHIBITED BY THIS SECTION BY THE OWNER, OPERATOR, MANAGER, OR OTHER PERSON HAVING CONTROL OF THE AREA. F. NO EMPLOYER MAY DISCHARGE OR RETALIATE AGAINST AN EMPLOYEE BECAUSE THAT EMPLOYEE EXERCISES ANY RIGHTS AFFORDED BY THIS SECTION OR REPORTS OR ATTEMPTS TO PROSECUTE A VIOLATION OF THIS SECTION. G. THE LAW SHALL BE IMPLEMENTED AND ENFORCED BY THE DEPARTMENT OF HEALTH SERVICES AS FOLLOWS: 1. THE DEPARTMENT SHALL DESIGN AND IMPLEMENT A PROGRAM, INCLUDING THE ESTABLISHMENT OF AN INTERNET WEBSITE, TO EDUCATE THE PUBLIC REGARDING THE PROVISIONS OF THIS LAW. 2. THE DEPARTMENT SHALL INFORM PERSONS WHO OWN, MANAGE, OPERATE OR OTHERWISE CONTROL A PUBLIC PLACE OR PLACE OF EMPLOYMENT OF THE REQUIREMENTS OF THIS LAW AND HOW TO COMPL Y WITH ITS PROVISIONS INCLUDING MAKING INFORMATION A V AILt\BLE AND PROVIDING A TOLL-FREE TELEPHONE NUMBER AND E- MAIL ADDRESS TO BE USED EXCLUSIVELY FOR THIS PURPOSE. 5 3. ANY MEMBER OF THE PUBLIC MAY REPORT A VIOLATION OF THIS LAW TO THE DEPARTMENT. THE DEPARTMENT SHALL ACCEPT ORAL AND WRITTEN REPORTS OF VIOLATION AND ESTABLISH AN E-MAIL ADDRESS(ES) AND TOLL-FREE TELEPHONE NUMBER(S) TO BE USED EXCLUSIVELY FOR THE PURPOSE OF REPORTING VIOLATIONS. A PERSON SHALL NOT BE REQUIRED TO DISCLOSE THE PERSON'S IDENTITY WHEN REPORTING A VIOLATION. 4. IF THE DEPARTMENT HAS REASON TO BELIEVE A VIOLATION OF THIS LA W EXISTS, THE DEPARTMENT MAY ENTER UPON AND INTO ANY PUBLIC PLACE OR PLACE OF EMPLOYMENT FOR PURPOSES OF DETERMINING COMPLIANCE WITH THIS LAW. HOWEVER, THE DEPARTMENT MAY INSPECT PUBLIC PLACES WHERE FOOD OR ALCOHOL IS SERVED AT ANY TIME TO DETERMINE COMPLIANCE WITH THIS LAW. 5. IF THE DEPARTMENT DETERMINES THAT A VIOLATION OF THIS LAW EXISTS AT A PUBLIC PLACE OR PLACE OF EMPLOYMENT. THE DEPARTMENT SHALL ISSUE A NOTICE OF VIOLATION TO THE PERSON WHO OWNS. MANAGES. OPERATES OR OTHERWISE CONTROLS THE PUBLIC PLACE OR PLACE OF EMPLOYMENT. THE NOTICE SHALL INCLUDE THE NATURE OF EACH VIOLATION, DATE AND TIME EACH VIOLATION OCCURRED. AND DEPARTMENT CONTACT PERSON. 6. THE DEPARTMENT SHALL IMPOSE A CIVIL PENALTY ON THE PERSON IN AN AMOUNT OF NOT LESS THAN $100, BUT NOT MORE THAN $500 FOR EACH VIOLATION. IN CONSIDERING WHETHER TO IMPOSE A FINE AND THE AMOUNT OF THE FINE, THE DEPARTMENT MAY CONSIDER WHETHER THE PERSON HAS BEEN CITED PREVIOUSLY AND WHA l' EFFORTS THE PERSON HAS TAKEN TO PREVENT OR CURE THE VIOLATION INCLUDING REPORTING THE VIOLATION OR TAKING ACTION UNDER SUBSECTION J. EACH DA Y THAT A VIOLATION OCCURS CONSTITUTES A SEPARATE VIOLATION. THE DIRECTOR MAY ISSUE A NOTICE THAT INCLUDES THE PROPOSED AMOUNT OF THE CIVIL PENALTY ASSESSMENT. A PERSON MAY APPEAL THE ASSESSMENT OF A CIVIL PENALTY BY REQUESTING A HEARING. IF A PERSON REQUESTS A HEARING TO APPEAL AN ASSESSMENT, THE DIRECTOR SHALL NOT TAKE FURTHER ACTION TO ENFORCE AND COLLECT THE ASSESSMENT UNTIL THE HEARING PROCESS IS COMPLETE. THE DIRECTOR SHALL IMPOSE A CIVIL PENALTY ONLY FOR THOSE DAYS ON \\'RICH THE VIOLATION HAS BEEN DOCUMENTED BY THE DEPARTMENT. 7. IF A CIVIL PENALTY IMPOSED BY THIS SECTION IS NOT PAID, THE ATTORNEY GENERAL OR A COUNTY ATTORNEY SHALL FILE AN ACTION TO COLLECT THE CIVIL PENALTY IN A JUSTICE COURT OR THE SUPERIOR COURT IN THE COUNTY IN WI-IICH THE VIOLATION OCCURRED. 8. THE DEPARTMENT MAY APPLY FOR INJUNCTIVE RELIEF TO ENFORCE THESE PROVISIONS IN THE SUPERIOR COURT IN THE COUNTY IN WHICH THE VIOLATION OCCURRED. 'lTlE COURT MAY IMPOSE APPROPRIATE INJUNCTIVE RELIEF AND IMPOSE A PENALTY OF NOT LESS THAN $100 BUT NOT MORE THAN $500 FOR EACH VIOLATION. EACH DAY THAT A 6 VIOLATION OCCURS CONSTITUTES A SEPARATE VIOLATION. IF THE SUPERIOR COURT FINDS THE VIOLATIONS ARE WILLFUL OR EVIDENCE A I' A TTERi"J" OF NONCOMPLIANCE. THE COURT MAY IMPOSE A FINE UP TO $5000 PER VIOLATION. 9. THE DEPARTMENT MAY CONTRACT WITH A THIRD PARTY TO DETERMINE COMPLIANCE WITH THIS LAW. 10. THE DEPARTMENT MA Y DELEGATE TO A ST ATE AGENCY OR POLITICAL SUBDIVISION OF THIS STATE ANY FUNCTIONS, POWERS OR DUTIES UNDER THIS LAW. 11. THE DIRECTOR OF THE DEPARTMENT MAY PROMULGATE RULES FOR THE IMPLEMENTATION AND ENFORCEMENT OF THIS LAW. THE DEPARTMENT IS EXEMPT FROM THE RULEMAKING PROCEDURES IN A.R.S. S TITLE 41, CHAPTER 6 EXCEPT THE DEPARTMENT SHALL PUBLISH DRAFT RULES AND THEREAFTER TAKE PUBLIC INPUT INCLUDING HOLD AT LEAST TWO PUBLIC HEARINGS PRIOR TO IMPLEMENTING THE RULES. THIS EXEMPTION EXPIRES MAY 1, 2007. H. BEGINNING ON JUNE L 2008 AND EVERY OTHER JUNE I THEREAFTER, THE DIRECTOR OF THE ARIZONA DEPARTMENT OF HEALTH SERVICES SHALL ISSUE A REPORT ANALYZING ITS ACTIVITIES TO ENFORCE THIS LAW, INCLUDING THE ACTIVITIES OF ALL OF THE ST ATE AGENCIES OR POLITICAL SUBDIVISIONS TO WHOM THE DEPARTMENT HAS DELEGATED RESPONSIBILITY UNDER THIS LAW. I. AN OWNER, MANAGER. OPERATOR OR EMPLOYEE OF PLACE REGULATED BY THIS LAW SHALL INFORM ANY PERSON WHO IS SMOKING IN VIOLATION OF THIS LA W THAT SMOKING IS ILLEGAL AND REQUEST THA T THE ILLEGAL SMOKING STOP IMMEDIA TEL Y. J. THIS LAW DOES NOT CREATE ANY NEW PRIVATE RIGHT OF ACTION NOR DOES IT EXTINGUISH ANY EXISTING COMMON LAW CAUSES OF ACTION. K. A PERSON WHO SMOKES WHERE SMOKING IS PROHIBITED IS GUILTY OF A PETTY OFFENSE WITH A I:;INE OF NOT LESS THAN FIFTY DOLLARS AND NOT MORE THAN THREE HUNDRED DOLLARS. L. SMOKE-FREE ARIZONA FUND I. THE SMOKE-FREE ARIZONA FUND IS ESTABLISHED CONSISTING OF ALL REVENUES DEPOSITED IN THE FUND PURSUANT TO S42-3251.02 AND INTEREST EARNED ON THOSE MONIES. THE ARIZONA DEPARTMENT OF HEALTH SERVICES SHALL ADMINISTER THE FUND. ON NOTICE FROM THE DEPARTMENT, THE STATE TREASURER SHALL INVEST AND DIVEST MONIES IN THE FUND AS PROVIDED BY *35-313 AND MONIES EARNED FROM INVESTMENT SHALL BE CREDITED TO THE FUND. 7 2. ALL MONEY IN THE SMOKE-FREE ARIZONA FUND SHALL BE USED TO ENFORCE THE PROVISIONS OF THIS SECTION PROVIDED HOWEVER THAT IF THERE IS MONEY REMAINING AFTER THE DEPARTMENT HAS MET ITS ENFORCEMENT OBLIGA TIONS, THAT REMAL~ING MONEY SHALL BE DEPOSITED IN THE TOBACCO PRODUCTS TAX FUND AND USED FOR EDUCATION PROGRAMS TO REDUCE AND ELIMINATE TOBACCO USE AND FOR NO OTHER PURPOSE. 3. MONIES IN THIS FUND ARE CONTINUOUSL Y APPROPRIATED, ARE NOT SUBJECT TO FURTHER APPROV AL, DO NOT REVERT TO THE GENERAL FUND AND ARE EXEMPT FROM THE PROVISIONS OF 936-190 RELATING TO THE LAPSING OF APPROPRIATIONS. M. THIS SECTION DOES NOT PREVENT A POLITICAL SUBDIVISION OF THE STATE FROM ADOPTING ORDINANCES OR REGULATIONS THAT ARE MORE RESTRICTIVE THAN THIS SECTION NOR DOES THIS SECTION REPEAL ANY EXISTING ORDINANCE OR REGULATION THAT IS MORE RESTRICTIVE THAN THIS SECTION. N. TRIBAL SOVEREIGNTY - THIS SECTION HAS NO APPLICATION ON INDIAN RESERVATIONS AS DEFINED IN ARS 42-3301(2). Section 5. Title 42, Chapter 3, Article 6, Arizona Revised Statutes is amended by adding section 42-3251.02 to read: 42-3251.02. LEVY AND COLLECTION OF TOBACCO TAX FOR SMOKE-FREE ARIZONA FUND. A. IN ADDITION TO THE TAXES IMPOSED BY 42-3251(1), THERE IS LEVIED AND SHALL BE COLLECTED AN ADDITIONAL TAX OF ONE TENTH OF ONE CENT ON EACH CIGARETTE. B. MONIES COLLECTED PURSUANT TO THIS SECTION SHALL BE DEPOSITED, PURSUANT TO SS 35-146 AND 35-147, IN THE SMOKE-FREE ARIZONA FUND ESTABLISHED BY S36-601.01. Section 6. 1. If any provision, clause, sentence, or paragraph of this Act or the application thereof to any person or circumstances shall be held invalid, that invalidity shall not affect the other provisions of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable. 2. S36-601.01(M) and S42-3251.02 becomes effective on the date of enactment. The remaining provisions of this Act become effective on May 1, 2007. 8