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HomeMy WebLinkAbout03-254.docAUGUST 12, 2003 03 - 254 ORDINANCE FIRST READING (CARRIED______ LOST_______ LAID OVER_______ WITHDRAWN_______) PURPOSE: PROHIBIT SMOKING INSIDE RESTAURANTS INITIATED BY: COUNCIL MEMBER HARRIS A GENERAL ORDINANCE OF THE CITY OF OSHKOSH CREATING SECT ION 14 - 1.2 OF THE OSHKOSH MUNICIPAL CODE PERTAINING TO THE PROHIBITION OF SMOKING INSIDE RESTAURANTS WHEREAS, the Common Council of the City of Oshkosh makes the following findings and determinations: A. It is recognized and found that smoking of cigarett es and tobacco products is hazardous to an individual’s health and may affect the health of nonsmokers when they are involuntarily in the presence of smoking. B. Numerous scientific studies have found that tobacco smoke is a major contributor to indoor air p ollution. C. Reliable scientific studies, including studies conducted by the Surgeon General of the United States, have shown that breathing sidestream or secondhand smoke is a significant health hazard to nonsmokers; particularly to children, elderly people , individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. D. Health hazards induced by breathing sidestream or secondhand smoke include lung cancer, respirat ory infection, decreased respiratory function, decreased exercise tolerance, bronchoconstriction and bronchospasm. E. Reliable scientific studies have found that sidestream and secondhand tobacco smoke is a leading cause of premature death and disability amo ng non - smokers. F. Air pollution caused by smoking is an offensive annoyance and irritant. Smoking results in serious and significant physical discomfort to nonsmokers. AUGUST 12, 2003 03 - 254 ORDINANCE FIRST READING CONT’D G. This ordinance is adopted f or the purpose of protecting the public health, safety, comfort and general welfare of the people of the City of Oshkosh, especially recognizing the rights of nonsmokers who constitute a majority of the population; educating citizens affected by this ordin ance; and assisting owners, operators; and managers in maintaining compliance; NOW, THEREFORE, the Common Council of the City of Oshkosh does ordain as follows: SECTION 1. That Section 14 - 1.2 of the Oshkosh Municipal Code pertaining to Smoking Prohib ited Inside Restaurants is created to read as follows: SECTION 14 - 1.2 SMOKING PROHIBITED INSIDE RESTAURANTS A. Definitions . For purposes of this Section, the following terms have the meaning indicated: 1. “Enclosed Area” means all space between a floor an d ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) which extend from floor to ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid, ‘other landsc aping’ or similar structures. 2. “Restaurant” means any building, room or enclosed place where meals are prepared or served or sold to transients or the general public. The term “restaurant” shall not include a “tavern” as defined in this section. 3. “Separa tely ventilated smoking room” (also known as “smoking room”) means an enclosed area that is completely separated from the rest of the restaurant by solid walls of rigid construction that run from floor to ceiling with a separate entrance that has a solid self - closing, self - sealing door with gaskets. This door is to remain closed at all times except when patrons or employees enter or leave the room. The smoking room must be ventilated to a standard specified in the state building code, Wis. Admin. Code Sec . Comm. 64.05, as from time to time amended or renumbered. The ventilation system for the smoking room shall be separate and distinct from the ventilation system for the nonsmoking area or areas. The separately ventilated smoking room must have negative ai r pressure to ensure that there is no mixing of air from the smoking and nonsmoking areas. Particulate air cleaners or filtration systems are not considered a ventilation system. The separate ventilation must be effective so as to prevent smoke from at a ny time entering or being present in the non - smoking and smoke - free areas of the restaurant. AUGUST 12, 2003 03 - 254 ORDINANCE FIRST READING CONT’D 4. “Smoking” means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, weed, plant, or other combustible substance in any manner or in any form. 5. “Tavern” means any establishment licensed pursuant to Chapter 4 of this Code with a full service bar in which fermented malt beverages and/or intoxicating liquors are sold for consumption upon said premises and whose sale of alcohol beverages accounts for 50% or more of the establishment’s gross receipts for the establishment’s most recent license year. B. Smoking Prohibited in Restaurants . Smoking shall be prohibited in all enclosed restaurants. C. Exception for Taverns . Taverns, as defined in this section, shall be exempt from the provisions of this Section, provided that every premises that claims to be a tavern shall: 1. Provide to the City Clerk a sworn, written statement attesting that the gro ss sales of alcohol beverages at the establishment during the twelve (12) month period prior to the effective date of this ordinance exceeded 50% of the total gross sales of the establishment during that same period. This verification shall be provided to the City Clerk not later than sixty (60) days after the enactment of this ordinance. No smoking shall be permitted in any establishment failing to timely file said documentation. a. Filing a false statement shall be deemed a violation of this Section and upon conviction be required to forfeit not less than five hundred dollars ($500) and not more than one thousand dollars ($1,000) plus the costs of prosecution. 2. Thereafter annually provide to the City Clerk an additional sworn, written statement attesting that the gross sales of alcohol beverages during the preceding 12 months after the effective date of this ordinance exceeded 50% of the total gross sales of the restaurant during that same time period. This verification shall be provided annually and not later than thirty (30) days after the end of the applicable 12 - month period. No smoking shall be permitted in any establishment failing to timely file said documentation. AUGUST 12, 2003 03 - 254 ORDINANCE FIRST READING CONT’D a. Filing a false stateme nt shall be deemed a violation of this Section and upon conviction be required to forfeit not less than five hundred dollars ($500) and not more than one thousand dollars ($1,000) plus the costs of prosecution. 3. Every new or remodeled establishment that r equires a new occupancy permit for any reason or any business changing the nature of the business such that the gross sales of alcohol beverages during the preceding 3 months exceeded 50% of the total gross sales of the restaurant during that same time per iod must comply with the verification and documentation provisions of this subsection for the first three months immediately following the time the final certificate of occupancy is issued by the City, and then annually thereafter as set forth above. 4. Upon receipt of the documentation required by this subsection, the City Clerk shall make a determination whether the documentation satisfies the requirements of this Section. If the requirements are met, the City Clerk shall issue an exemption to said establi shment for the following year. If the City Clerk determines the documentation does not satisfy the requirements of this Section, then no exemption shall be issued, and smoking shall be prohibited in said establishment. The establishment may reapply for a n exemption under this Section twelve (12) months after the date on which the exemption was denied. D. Establishments With Separately Ventilated Smoking Room . Establishments, which contain a “separately ventilated smoking room,” may treat such room as an est ablishment separate from the rest of the business establishment for purposes of determining whether the separately ventilated smoking room is a tavern or restaurant; provided that the gross sales of alcohol beverages from such room shall be excluded for pu rposes of determining whether the balance of facility shall be smoke - free. E. Signs Required; Prohibition . 1. The proprietor or other person having control of the restaurant or tavern shall post, in a conspicuous place at every building entrance and in promi nent locations throughout the establishment, a sign not smaller than eleven by eight and one - half inches (11" x 8 ½”) indicating whether the building permits smoking or whether it is totally smoke free. Each sign shall contain the phone number for the Cit y Health Services Division. The signs shall be posted in AUGUST 12, 2003 03 - 254 ORDINANCE FIRST READING CONT’D such a manner that the public has reasonable notice of the establishment’s smoking policy and must be present at any time that establishment is open for business. 2. It shall be unlawful for any person to remove, deface, or destroy any sign required by this Section, or to smoke in any place where any such sign prohibits smoking. F. Enforcement 1. Any owner, manager, operator, or employee of any es tablishment regulated by this Section shall inform persons violating this Section of the appropriate provisions therein. Such person should ask any person who smokes in areas where smoking is prohibited to refrain from smoking, and if the person does not refrain from smoking after being requested to do so, ask the person to leave. 2. The owner, operator, manager, or other person having control of a restaurant shall remove all ashtrays, cigarette vending machines, and other smoking paraphernalia from any area where this Section prohibits smoking. 3. The Health Services Division shall enforce this Section. 4. Notice of the provisions set forth in this Section shall be given to all applicants for a restaurant license in the City of Oshkosh. 5. Any citizen who desires to register a complaint under this Section may do so with the Health Services Division. 6. The Health Services Division or the Fire Department shall, while an establishment is undergoing otherwise mandated inspections, inspect for compliance with this Sectio n. 7. The City Code Inspectors, City Health Services Division, and affiliated agencies and officials shall have the power, whenever deemed necessary, to enter upon the premises of the establishments regulated by this Section to inspect and ascertain complian ce with the requirements of this Section. 8. Notwithstanding any other provision of this Section, a private citizen may bring legal action to enforce this Section. F. Retaliation Prohibited . No person or employer shall retaliate in any manner against any cus tomer because such customer exercises any right to a smoke - free environment as required by this Section. AUGUST 12, 2003 03 - 254 ORDINANCE FIRST READING CONT’D G. Violation and Penalties 1. A person who violates any provision of this Section shall upon convic tion be required to forfeit not less than fifty dollars ($50) and not more than one hundred dollars ($100) plus the costs of prosecution. 2. A person who owns, manages, operates or otherwise controls the use of an establishment subject to this Section, who v iolates any provision of this Section upon conviction shall be required to forfeit not more than two hundred dollars ($200) plus the costs of prosecution for the first violation; not more than three hundred dollars ($300) plus the costs of prosecution for the second violation within one year of the first conviction; and, not more than five hundred dollars ($500) plus the costs of prosecution for the second and all subsequent violations within one year of the first conviction. 3. Each day of violation shall constitute a separate violation. H. Other Applicable Laws or Regulations . This Section shall not be interpreted or construed to permit smoking where it is otherwise restricted by any other applicable law or regulation. I. Severability . The provisions of t his Section are severable. If any provision of this Section is held to be invalid or unconstitutional or if any application of any provision of this Section to any person or circumstance is held to be invalid or unconstitutional, such holding shall not af fect the other provisions or applications. It is hereby declared to be the intent of this council that this ordinance would have been adopted had any invalid or unconstitutional provisions or applications not been included herein. Section 2. This or dinance shall be effective from and after its passage, after the date of publication of this ordinance and after 12:01 A.M. March 1, 2004.