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HomeMy WebLinkAboutORDINANCE 1998-2003Suggested by: Council CITY OF KENAI ORDINANCE N0. 1998-2003 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AN ORDINANCE AMENDING KENAI MUNICIPAL CODE BY ADOPTION OF A NEW CHAPTER 12.40 TO REGULATE SMOKING IN EATING ESTABLISHMENTS. WHEREAS, the smoking of tobacco is a proven danger to health; and, WHEREAS, health hazards induced by breathing secondhand smoke includes, but is not limited to, lung cancer, respiratory infection, decreased respiratory function, broncho-constriction, and broncho-spasm; and, WHEREAS, numerous studies have found that tobacco smoke is a major contributor to indoor alr pollution and that breathing secondhand smoke is a cause of disease, including lung cancer, in nonsmokers and restaurant staff; and, WHEREAS, persons eating outside their homes for meals, including children, are often involuntarily exposed to indoor tobacco smoke which is not only harmful to their health, but which may also diminish their enjoyment of the experience; and, WHEREAS, the City Council hereby finds that it is in the public health, safety and welfare to supplement State regulation of the use of tobacco and tobacco products by regulating their use in eating establishments within the City of Kenai. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA that KMC 12.40 is hereby added to read as follows on Attachrr~ent A. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this second day of April, 2003. ~--, ATTEST: Carol L. Freas, City Clerk Williams, Mayor Introduced: March 19, 2003 Adopted: April 2, 2003 Effective: October 2, 2003 Section 1 Chapter 12.40 REGULATION OF SMOKING IN EATING ESTABLISHMENTS SP~ti nn c 12.40.010 Definitions 12.40.020 Regulation of Smoking in Eating Establishments 12.40,030 Where Smoking Not Regulated 12,40.040 Sign Posting Requirements 12.40.050 No Retaliation 12.40.060 Violations and Penalties 12.40.070 Enforcement 12.40.080 Other Applicable Laws 12.40.010. Definitions. "Bar" means a premises licensed under As 04.11.090 which does not employ any person under the age of twenty-one (21) and which does not serve any person under the age of twenty-one (21) unless accompanied by a parent or guardian, and where tobacco smoke cannot filter into any other area where smoking is prohibited through a passageway, ventilation system or other means. A "bar" does not include areas in an eating establishment where alcoholic beverages may be served. "Eating Establishment" means any restaurant, coffee shop, cafeteria, luncheonette, sandwich stand, soda fountain, private or public school cafeteria, fast food service and other establishments, including any bar area of any such establishment which is not an enclosed area, the primary purpose of which is to give or offer for sale food to the public and where cooked or otherwise prepared food is sold to the public for consumption on the premises, as well as kitchens in which food is prepared. "Enclosed Area" means a ventilated area so that air from a smoking area is not drawn into or across the nonsmoking area where all space between a floor and ceiling is enclosed on all sides by solid walls or windows, exclusive of doors or passage ways, which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend between the floor and ceiling or are not solid. The doors of an enclosed area should remain closed whenever practicable. "Operator" means and includes the owner, proprietor, manager, lessee, lessor, licensee or any other person exercising control over any eating establishment or bar, "Smoking" means the burning, inhaling or exhaling of a tobacco or carrying any lighted pipe, cigar, cigarette or other combustible substance in any manner or in any form. Attachment A Ordinance 1998-2003 Page 1 of 3 12.40.020. ~egula~ tion of Smoking in Eating Establishments. Smoking is prohibited and is unlawful within all indoor eating establishments. Section 12.40,030. Where Smokin Not Regulated. Notwithstanding any other provision of this Chapter, the following areas shall not be subject to the smoking restrictions of this Chapter: (a) Baxs; and (b) Eating establishments while in use in their entirety for private functions; and (c) Any patio or other area of an eating establishment which is entirely open to the sky. Section 12.40,040, Sign Posting Requirement. (a) The operator of a bar or eating establishment controlled by this Chapter shall post signs stating "No Smoking", with letters of not less than two inches in height or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it), and with letters of not less than one inch in height, citing City of Kenai Municipal Code Chapter 12,40. Signs shall be clearly, sufficiently and conspicuously posted in every location where smoking is controlled by this Chapter. (b) Every operator of an eating establishment regulated by this Chapter shall have posted at the entrance of the eating establishment, a sign clearly stating, "No Smoking" which meets the above described requirements. Section 12.40,Q50. No Retaliation. No person may retaliate or discriminate against any customer or employee because such person exercises any right to a smoke-free environment afforded by this Chapter, Section 12.40,00, Violations and Penalties. (a) It ~s unlawful for any person who operates any pre~.ises subject to regulation under this Chapter to fail to comply with any provisions of this Cha ter. p It is unlawful for any person to smoke in any area where smoking is prohibited by this Chapter. (c) Any person who violates any provision of this Chapter shall be guilty of an infraction, punishable by: Attachment A Ordinance 1998-2003 Page 2 of 3 1, A fine not exceeding one hundred dollars (~ 100), plus any surcharge required to be imposed by AS 12.55.039, for a first violation within a 24 month period; 2, A fine not exceeding two hundred dollars 0200), plus any surcharge required to be imposed by AS 12.55.039, for a second violation within a 24 month period as measured from the date of first violation; or 3, A fine not exceeding five hundred dollars 0500), plus any surcharge required to be imposed by AS 12.55.039, for a third or additional violations within a 24-month period as measured from the date of first violation. (d) Each and every day that such violation continues shall be deemed a separate and distinct violation. (e) Any person aggrieved by a violation or threatened violation of this Chapter or the City may bring a civil action against a person who violates this Chapter and may recover a civil penalty not to exceed X300 per violation. An action to enjoin a violation maybe brought notwithstanding the availability of any other remedy. Section 12.40,070. Enforcement. (a) Administration of this Chapter shall be by the City Manager or his or her designee(s). Any person who desires to register a complaint hereunder may initiate enforcement consideration with the City Manager or his or her designee(s). (b) Prior to citing an owner for violation of this Chapter, the City shall provide the operator with a written warning for any such violation. Thereafter, in the case of the first violation of this Chapter in any two-year period, the operator shall be subject to the penalties set forth in Section 12.40.060. Section 12.40,080, Other Applicable Laws. This Chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws or regulation. Where Mate law and the provisions of this Chapter apply to the same area or activities, the more stringent provision creating a smoking prohibition shall apply. Section 2 Effective Date, This ordinance shall be effective on October 2, 2003. Attachment A Ordinance 199$-2003 Page 3 of 3 Carol Freas 'tom: Kattaryna Stiles [kstiles@anhb.orgJ ant: Tuesday, March 18, 2003 4:00 PM To: Carol Freas Subject: Testimony for proposed Ordinance No. 1998-2003 :z Testimony for -roposed Ordinan., Dear Ms. Freas, I am attaching a letter concerning proposed Ordinance No. 1998-2003 . Please distribute hard copy to each council member prior to tomorrow evening's meeting. If possible, I would also like this letter read into the public record as testimony. Thank you for your consideration. Regards, «Testimony for proposed Ordinance No. 1998-2003.doc» Kattaryna Stiles A laskans f or Tobacco-Free Kids 'eating the air and saving lives -one community at a time. 907-743-6125 direct 800-478-2426 toll free 907-536-2001 fax Alaska Native s AMERICAN Health Board ~uN~ American Heart ~;~ :. ~ , .,,~~ . ~; ~° ` ASSOCIATIONm ASSOCIahon~ ~ ,~ ~,~, ~.~~, v.,... n f Alaska Fighting Haart Disease and Stroka ~''• Alaskan, fox° 'T'obacco-free Kids March 18, 2003 Kenai City Council 210 Fidalgo Ave. Suite 200 Kenai, Alaska 99611 ~~~~. ~' - ~... _ r .- -~.~ i.,~~+ ! ; i:b ..~~ ~~~`~~~~~ CTS C~. Dear Council Members, Alaskans for Tobacco-Free Kids would like to commend you for considering an ordinance to regulate smoking in eating establishments. Passage of this ordinance would be a good first step toward protecting the public health of workers in Kenai businesses. We are concerned, however, that while the proposed ordinance may create a more pleasant dining experience for nonsmokers, it does not go far enough to the protect public health of Kenai workers. A nonsmoker working an 8-hour shift in a smoking establishment inhales deadly toxins equivalent to smoking full pack of cigarettes. For every eight smokers who die of tobacco-related illnesses, one nonsmoker dies from secondhand smoke. We are concerned specifically about some dangerous loopholes that may be included in the current ordinance language and would like you to consider some amendments to the ordinance prior to its passage. We urge you to consider removing from the ordinance the exemption for bars that are attached to restaurants . This change would allow smoking only in free- standing bars, thus protecting more workers and more of the public from the deadly effects of secondhand smoke. It is also much easierto enforce an ordinance that includes the bar area of restaurants. Recommended language to replace Section 12.040.030(x) is as follows: Bars, other than bars attached to restaurants, provided that smoke from these places does not infiltrate into areas where smoking is prohibited under the provisions of this chapter. Along these lines, we also suggest avoiding exemptions for bar areas of restaurants that are in "enclosed areas" under the definition of "eating establishment." As currently written, the definition of "enclosed area" still allows for passage of secondhand smoke into restaurant areas through doors and passageways. Our proposed revision would include deleting the phrase, which is not in an enclosed area, in the definition of "eating establishment" under section 12.40.010 and eliminating the definition of "enclosed area" entirely. The definition of a "bar", as currently written in the ordinance, is identical to the language in the Anchorage clean indoor air ordinance. With over two years experience operating under this ordinance, we have found that this language creates a loophole by allowing restaurants with attached bars to declare themselves to be entirely a bar. We strongly encourage you to consider strengthening the current language to close the loophole and protect all patrons and workers that work in restaurants with attached bars. Recommended language reads: "Bar" means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of those beverages, including but not limited to, taverns, nightclubs, cocktail lounges, and cabarets. Thank you for considering passage of a clean indoor air ordinance in Kenai, If we can be of further assistance to you in this matter, please feel free to contact Kattaryna Stiles, Tobacco Policy Coordinator at 907-743-6125. Sincerely, Annette A. Marley, MPH Trampling Tobacco Project Manager Alaska Native Health Board Michelle Toohey Director of Public Advocacy American Lung Association of Alaska r,...~ Emily Nenon Alaska Advocacy Manager American Cancer Society Jenna App Alaska Advocacy Director American Heart Association