Loading...
HomeMy WebLinkAboutPacket, Smoking Ordinance TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: March 7, 2006 AGENDA ITEM: J. 6 TO: MAYOR AND COUNCIL FROM: Frank Cassidy, Town Attorney SUBJECT: 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 violation of Chapter 10-6; and designating an effective date. DISCUSSION At its February 28, 2006 meeting, Council requested staff to prepare for Council consideration at tonight's meeting a smoking ordinance based generally on the Pima County Smoking Ordinance (Pima County Code Chapter 8.50). Attached are two alternative smoking ordinances for your consideration. Both drafts provide exemptions nearly identical to those in the Pima County Smoking Ordinance, but they provide significantly different designated smoking area phase-in provisions. The Pima County Smoking Ordinance requires restaurants that allow smoking to provide a physically separated and ventilated designated smoking area, typically created by making expensive building modifications. To soften the financial impact of this remodeling, the Pima County Smoking Ordinance created a "hardship phase-in to create a designated smoking area," allowing a restaurant owner to extend the time to comply with the ordinance. A restaurant owner wanting to install a designated smoking area could apply for the hardship phase-in within 90 days after the ordinance's effective date, which if granted allowed the owner up to a year to provide the designated smoking area. Even with a hardship phase-in, the Pima County Smoking Ordinance did not allow smoking until the designated smoking area was completed. The currently circulating statewide Smoke-Free Arizona Initiative will prohibit all smoking in restaurants and bars if it qualifies for the ballot and is approved by the voters at the November 2006 general election. If approved, the Initiative will not allow smoking even in restaurants with designated smoking areas. The two draft Marana smoking ordinances recognize that any investment in a designated smoking area will be lost if the Initiative is approved by "triggering" the obligation to provide a {00001841.DOC I} -1- 3131200612:13 AM FJC designated smoking area to the failure of the Initiative. To avoid indefinite delay, the obligation is triggered on March 1,2007 ifthe outcome ofthe Initiative remains uncertain. The two staff ordinance drafts are identical in all respects except for Section 10-6-5 ("Phase-in to create a designated smoking area"). The first staff ordinance draft, bearing the notation "AL Tl" in the lower right-hand corner, allows restaurants 90 days after the trigger date to obtain building permits for a designated smoking area, and allows one year after the trigger date for the designated smoking area to be completed. In the AL Tl draft, no smoking is permitted in a restaurant unless and until the designated smoking area is completed. If the AL Tl draft is adopted, a restaurant owner desiring to allow smoking before the outcome of the Initiative will need to construct a designated smoking area at the risk of losing the investment if the Initiative passes. The second staff ordinance draft, bearing the notation "AL T2" in the lower right-hand corner, requires the owner of a restaurant where one or more designated smoking areas will be provided to (a) submit an application for the designated smoking areas within 30 days after the ordinance effective date, (b) submit architectural plans for the designated smoking areas within 90 days after the ordinance effective date, (c) obtain building permits for the designated smoking areas within 30 days after the trigger date, and (d) complete construction of the designated smoking areas within one year after the trigger date. In the AL T2 draft, smoking is permitted in a restaurant as long as the owner is in compliance with these application and submission requirements, even before the designated smoking area is completed. Like the Pima County Smoking Ordinance, both Marana drafts authorize a "hardship smoking exemption" for a restaurant that suffers a 15% or greater drop in sales as a result of the smoking prohibition. To qualify for the exemption, a restaurant must first comply with the smoking ordinance for at least two months by prohibiting smoking. Sales information from the two-month no smoking period is then compared with a comparable two-month period without the smoking prohibition. If a 15% or greater sales drop has occurred, the Town Council may grant the hardship smoking exemption, allowing smoking in the restaurant for a period of up to two years. When the exemption period ends, the restaurant must again completely prohibit smoking for at least two months before it can re-apply for the exemption based on the same 15% sales drop criteria. If a restaurant owner fails to apply for the initial hardship smoking exemption within 120 days after the ordinance effective date or within 120 days after the end of an exemption period, the restaurant forever loses its right to seek an exemption. ATTACHMENTS ALTl and ALT2 draft Marana smoking ordinances. RECOMMENDATION Council's pleasure. SUGGESTED MOTION I move to adopt the ALTl [or ALT2] version of Ordinance No. 2006.04. {00001841.DOC I} -2- 3131200612:13 AM FJC ALT I 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 VIOLATION 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. SECTION 2. Title 10 of the Marana Town Code is hereby revised by adding new Chap- ter 10-6, as follows: 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. {00001847.00C I} - 1 - 3/3/200612:14 AM FJC ALTl 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; {00001847.00C I} - 2 - 3/31200612:14 AM FJC ALTl 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 8~ 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. {00001847,OOC I} - 3 - 3/3/200612:14 AM F1C ALTl 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. An application for building permits to construct the necessary modifications to create a designated smoking area which meets the requirements of Sec- tion 10-6-4 must be submitted not later than 90 days after the trigger date. B. An existing restaurant must complete the necessary modifications to create a designated smoking area which meets the requirements of Section 10-6-4 not later than the first anniversary of the trigger date. C. From the effective date of this chapter until the completion of the necessary modifications to create a designated smoking area which meets the require- ments of Section 10-6-4, the restaurant must be smoke-free. D. 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. 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. {00001847.00C I} - 4 - 3/31200612:14 AM FJC ALTl 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 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- {00001847.00C I} - 5 - 3/3/200612:14 AM FJC ALTl 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; 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. {00001847,DOC /} - 6 - 3/3/200612:14 AM FJC ALTl E. For violations described 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 assessed in excess of $100 to the maximum prescribed for a class 3 misdemeanor. 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. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney {00001847.00C /} - 7 - 3/3/200612:14 AM FJC ALTl ALT2 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 VIOLATION 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 I. 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. SECTION 2. Title 10 of the Marana Town Code is hereby revised by adding new Chap- ter 10-6, as follows: 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. {FC0042.00C /} - 1 - 3/3/200612:13 AM FJC ALT2 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; {FC0042.00C /} - 2 - 3/31200612:13 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 8~ 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. {FC0042.00C /} - 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. Obtain building permits for the designated smoking areas within 30 days af- ter 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. {FC0042,OOC /} - 4 - 3/3/200612:13 AM FJC ALT2 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 8~ 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 {FC0042,OOC /} - 5 - 3/31200612:13 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; {FC0042.00C /} - 6 - 3/31200612:13 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 described 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 assessed in excess of $100 to the maximum prescribed for a class 3 misdemeanor. 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 7th day of April, 2006. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 7th day of March, 2006. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney {FC0042.00C /} - 7 - 3/3/200612:13 AM FJC ALT2 ~--~ MARANA ~/! " TOWN OF MARANA COMMUNITY INFORMATION SERVICES March 10, 2006 Dear Marana Business Owner: On March 7, 2006, the Marana Town Council adopted the Marana Smoking Ordinance (Ordinance No. 2006.04), a copy of which is enclosed. It goes into effect on April 7, 2006. Like Pima County's smoking ordinance, the Marana Smoking Ordinance prohibits smoking in enclosed buildings and vehicles, except private homes, private vehicles, private functions, bowling alleys, pool halls, bars, retail tobacco stores, and certain other specified places or circumstances. Physically separated and ventilated designated smoking areas in restaurants are also exempted as long as they do not exceed 25% of the total restaurant seating area. Both ordinances also allow a restaurant to seek a "hardship smoking exception" after an initial sixty- day no-smoking period if the smoking prohibition causes a 15% or more loss in business. Under the Marana Smoking Ordinance (Section 10-6-6), the owner of a restaurant wishing to apply for a hardship smoking exception must prohibit smoking in the restaurant beginning on April 7, 2006, and must apply for the exception not later than August 7, 2006. If the restaurant owner proves a 15% or more loss in business and the Marana Town Council grants the exception, the restaurant may allow smoking to resume in the restaurant for up to two years, after which the same process may be repeated. The phase-in period to create a designated smoking area is handled differently under the Marana Smoking Ordinance than under the Pima County ordinance. The Marana Smoking Ordinance was adopted knowing that the statewide "Smoke-Free Arizona Initiative" is being circulated in anticipation of appearing on the November 2006 general election ballot. If approved by the voters and found valid in any post-election litigation, it will be more restrictive than the Marana Smoking Ordinance by eliminating smoking in any public location throughout the state. The Marana Smoking Ordinance (section 10-6-5) only requires restaurants that permit smoking to construct designated smoking areas based on a "target date" of when the initiative fails (or March 1, 2007 if the fate of the initiative remains unknown at that time). For smoking to be allowed in the meantime, the Town must receive from the restaurant owner an application for designated smoking areas not later than May 8, 2006, and architectural plans for the designated smoking areas not later than July 6, 2006. From the "target date," an owner will have 30 days to submit a building permit application for the designated smoking area and a year to complete its construction. From and after April 7, 2006, section 10-6-5 will not permit smoking in a restaurant unless and until its owner has submitted an application for a designated smoking area. Thereafter, the right to allow smoking will automatically terminate if any other requirement described in this paragraph is not timely completed. 11555 W. CIVIC CENTER DRIVE, BLDG. A 1 - MARANA. ARIZONA 85653-7007 _ TELEPHONE: (520) 382-1999 _ FAX: 382-1998 If you are a business affected by the Marana Smoking Ordinance, I recommend that you confer with your legal counsel prior to its April 7, 2006 effective date, to ensure that you understand and meet its requirements. Violations are punishable as a class 3 misdemeanor. If you or your attorney need clarification of any portion of the ordinance, please feel free to contact the Marana Town Attorney, Frank Cassidy, at (520) 382-1900. Sincerely, 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 VIOLATION OF CHAPTER 10-6; AND DESIGNATING AN EFFECTNE 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. ~ 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. SECTION 2. Title 10 of the Marana Town Code is hereby revised by adding new Chap- ter 10-6, as follows: 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. {FC0042.DOC I} - 1 - 3/3/200612:13 AM FJC ALT2 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; {FCOO42.DOC /} - 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 8% 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. {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 atter the effective date of this chapter. 2. Submit to the building official architectural plans for the designated smok- ing areas within 90 days atter the effective date of this chapter. 3. Apply for building permits for the designated smoking areas within 30 days atter 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 atter 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. {FC0042.DOC I} - 4 - 3/31200612:13 AM FJC ALT2 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 8% 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 {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; {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 8 of this section is guilty of a class 3 misdemeanor D. Each day of a violation described in paragraphs A or 8 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 7th day of April, 2006. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 7th day of March, 2006. iJ~ Mayor Ed Honea hU ATTEST: ...,\\1\11 * II~ ~...._\. OF ~ ~~~\\"n""'A ~ ~1r.ORPORAT:\ ~ _ == ooc::> .. _ - .SEALE - S\ -,s ~ 'f';"'U"\\~ ~ ~/"'1lZ. '\9,-,,\~ .,~'U,\.. {FC0042.DOC I} - 7 - 3/3/2006 12:13 AM FJC ALTl