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HomeMy WebLinkAbout03-373.docAUGUST 12, 2003 FIRST READING AUGUST 26, 2003 SECOND READING 03-254 03-373 ORDINANCE (CARRIED LOST 3-4 LAID OVER WITHDRAWN ) AS AMENDED PROHIBIT SMOKING INSIDE RESTAURANTS COUNCIL MEMBER HARRIS PURPOSE: INITIATED BY: A GENERAL ORDINANCE OF THE CITY OF OSHKOSH CREATING SECTION 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: It is recognized and found that smoking of cigarettes 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. Numerous scientific studies have found that tobacco smoke is a major contributor to indoor air pollution. 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. Health hazards induced by breathing sidestream or secondhand smoke include lung cancer, respiratory infection, decreased respiratory function, decreased exercise tolerance, bronchoconstriction and bronchospasm. Reliable scientific studies have found that sidestream and secondhand tobacco smoke is a leading cause of premature death and disability among non-smokers. Air pollution caused by smoking is an offensive annoyance and irritant. Smoking results in serious and significant physical discomfort to nonsmokers. This ordinance is adopted for 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 AUGUST 12, 2003 FIRST READING AUGUST 26, 2003 SECOND READING 03-254 03-373 ORDINANCE CONT'D of the population; educating citizens affected by this ordinance; 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 Prohibited Inside Restaurants is created to read as follows: SECTION 14-1.2 SMOKING PROHIBITED INSIDE RESTAURANTS Definitions. For purposes of this Section, the following terms have the meaning indicated: "Enclosed Area" means all space between a floor and 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 landscaping' or similar structures. "Meal" means any ready to eat food served or sold to the general public in individual or prepackaged single portions or servings for immediate on- premises consumption, or transported off-premises in individual prepackaged carryout servings, or specifically preordered individual or multiple serving portions which are transported to an off-premises location for immediate consumption with or without further preparation. Meal does not include soft drinks, ice cream, milk, milk drinks, ices and confections or free lunches served by taverns consisting of popcorn, cheese, crackers, pretzels, cold sausage, cured fish, or bread and butter. Nor does meal include food items sold by the weight, count or piece in individual packages requiring further preparation for consumption at another location. "Restaurant" means any building, room or enclosed place where meals are prepared or served or sold to transients or the general public. a) hotels/motels/convention centers. The term "restaurant" shall include any room or enclosed place where meals and beverages are prepared or served or sold to transients or the general public, but shall not include other areas of a hotel/motel or convention establishment, including lodging rooms, private banquet rooms or halls, or taverns as defined in this section. AUGUST 12, 2003 FIRST READING AUGUST 26, 2003 SECOND READING 03-254 03-373 ORDINANCE CONT'D b) The term "restaurant" shall not include: 1) a "tavern" as defined in this section. 2) taverns that serve free lunches consisting of popcorn, cheese, crackers, pretzels, cold sausage, cured fish, or bread and butter. 3) churches, religious, fraternal, youths' or patriotic organizations, service clubs and civic organizations which occasionally prepare, serve or sell meals to transients or the general public. 4) any bed and breakfast establishment that serves breakfasts only to its lodgers. 5) the serving of food or beverage through a licensed vending machine. 6) a concession stand at a locally sponsored sporting event, such as a little league game. 7) a "temporary restaurant" operated at a fixed location in conjunction with a single event such as a fair, carnival, circus, public exhibition, anniversary sale or occasional sales promotion. 8) Entire rooms or halls used for private functions. "Separately 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 air 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 any time entering or being present in the non- smoking and smoke-free areas of the restaurant. "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. "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 70% or more of the AUGUST 12, 2003 FIRST READING AUGUST 26, 2003 SECOND READING 03-254 03-373 ORDINANCE CONT'D establishment's gross receipts for meals and beverages, including alcohol beverages for the establishment's most recent license year. Smokin,q Prohibited in Restaurants. Smoking shall be prohibited in all enclosed restaurants. 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 Health Services Division a sworn, written statement attesting that the gross sales of alcohol beverages at the establishment during the twelve (12) month period prior to the effective date of this ordinance exceeded 70% of the total gross sales for meals and beverages to be consumed on the premises of the establishment during that same period. This verification shall be provided to the Health Services Division 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. Thereafter annually provide to the Health Services Division 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 70% of the total gross sales for meals and beverages to be consumed on the premises 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. 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. Every new or remodeled establishment that requires 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 70% of the total gross sales for meals and beverages to be consumed on the premises of the restaurant during that same time period must comply with the verification and documentation provisions of this subsection for the first three months immediately following the time AUGUST 12, 2003 FIRST READING AUGUST 26, 2003 SECOND READING 03-254 03-373 ORDINANCE CONT'D the final certificate of occupancy is issued by the City, and then annually thereafter as set forth above. Upon receipt of the documentation required by this subsection, the Health Services Division shall make a determination whether the documentation satisfies the requirements of this Section. If the requirements are met, the Health Services Division shall issue an exemption to said establishment for the following year. If the Health Services Division 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 an exemption under this Section twelve (12) months after the date on which the exemption was denied. Establishments With Separately Ventilated Smokin,q Room. Establishments, which contain a "separately ventilated smoking room," may treat such room as an establishment 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 purposes of determining whether the balance of facility shall be smoke-free. Si,qns 1. Required; Prohibition. The proprietor or other person having control of the restaurant or tavern shall post, in a conspicuous place at every building entrance and in prominent 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 City Health Services Division. The signs shall be posted in 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. 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. Enforcement 1. Any owner, manager, operator, or employee of any establishment 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. AUGUST 12, 2003 FIRST READING AUGUST 26, 2003 SECOND READING 03-254 03-373 ORDINANCE CONT'D 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. Notice of the provisions set forth in this Section shall be given to all applicants for a restaurant license in the City of Oshkosh. Any citizen who desires to register a complaint under this Section may do so with the Health Services Division. The Health Services Division or the Fire Department shall, while an establishment is undergoing otherwise mandated inspections, inspect for compliance with this Section. 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 compliance with the requirements of this Section. Notwithstanding any other provision of this Section, a private citizen may bring legal action to enforce this Section. Retaliation Prohibited. No person or employer shall retaliate in any manner against any customer because such customer exercises any right to a smoke- free environment as required by this Section. Violation and Penalties 1. A person who violates any provision of this Section shall upon conviction be required to forfeit not less than fifty dollars ($50) and not more than one hundred dollars ($100) plus the costs of prosecution. A person who owns, manages, operates or otherwise controls the use of an establishment subject to this Section, who violates 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. AUGUST 12, 2003 FIRST READING AUGUST 26, 2003 SECOND READING 03-254 03-373 ORDINANCE CONT'D 3. Each day of violation shall constitute a separate violation. Other Applicable Laws or Requlations. This Section shall not be interpreted or construed to permit smoking where it is otherwise restricted by any other applicable law or regulation. Severability. The provisions of this 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 affect 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 ordinance 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. MEMORANDUM O/HKO/H Date: To: From: Subject: August 21,2003 Richard A. Wollangk, City Manager Lynn A. Lorenson, Asst. City Attorney Smoking Ordinance Council member Harris will be proposing amendments to the smoking ordinance to more specifically define those establishments which will fall under the requirements of the proposed ordinance. Pursuant to discussions with Mr. Harris, I have drafted language to accomplish the desired changes. There are five (5) changes which have been proposed. Attached to this memorandum are copies of the ordinance with the proposed changes highlighted and struck through as well as a "clean" copy of the ordinance including all proposed changes. The City Clerk has requested that the proposed amendments be made on an individual basis and voted upon individually for purposes of her record keeping. Change filing and verification requirements from Office of the City Clerk to Health Services Division The proposed amendment would be: I move to amend ordinance #03- __ to provide that all verifications and other paperwork to be filed, and all determinations to be made regarding the exception for taverns be changed from the Office of the City Clerk to the Health Services Division. The purpose of this proposed amendment is to consolidate all paperwork and information within the Health Services Division. As originally proposed, the ordinance would have required the Health Services Division to perform enforcement and inspection services related to the provisions of the ordinance, but required applicants for exceptions to file information with the City Clerk's office and the City Clerk's office to make determinations whether establishments met the requirements for the listed exemptions. The City Clerk's Office would then be required to notify the Health Division of any exemptions granted. The Health Division currently maintains files on all restaurants and food service establishments within the City of Oshkosh and has indicated that they would be able to process the paperwork and make the determinations required under the proposed ordinance. The proposed amendment would streamline the process for exceptions and consolidate all paperwork in one division. Refine definition of restaurant and meals The proposed amendment would be: I move to amend ordinance #03- to define the terms "meal" and "restaurant" as those terms are defined on the separate attachment to this motion which the council has in front of them. (See attachment to this memorandum) The purpose of this amendment is to better define which establishments will fall under the provisions of the proposed ordinance. As originally proposed, restaurant would include "any building, room or enclosed place where meals are prepared or served or sold to transients or the general public". The original proposal did not include a definition of "meal". The amendment would clarify the definition of restaurant, excepting out certain types of establishments or areas of establishments. The amendment is based on state statutory and administrative code provisions defining restaurants for purposes of licensing and regulation. Under the proposed amendment, the following would be excluded from the ordinance regulation: a) areas within hotels, motels or convention centers where meals or beverages are not prepared, served or sold. (As originally proposed the ordinance may have had the unintended effect of requiring that the entire establishment become non-smoking if sales of alcohol beverages did not exceed 50% of the total gross sales of the establishment.) b) "taverns" as defined in the section. c) "incidental food service" establishments as defined in the section. d) Taverns serving free lunches of popcorn, cheese, crackers, pretzels, cold sausage, cured fish, or bread and butter. e) churches, refigious, fraternal, youths' or patriotic organizations, service clubs and civic organizations which occasionally prepare, serve or sell meals to transients or the general public. f) any bed and breakfast establishment that serves breakfasts only to its lodgers. g) the serving of food or beverage through a licensed vending machine. h) a concession stand at a locally sponsored sporting event, such as a little league game. i) a "temporary restaurant" operated at a fixed location in conjunction with a single event such as a fair, carnival, circus, public exhibition, anniversary sale or occasional sales promotion. j) Entire rooms or halls used for private functions. The proposed amendment will make the ordinance consistent with those types of establishments currently licensed/permitted through the Health Services Division, and will recognize the exceptions for "incidental food service" establishments and taverns as defined in the section. The proposed amendment would also clarify which areas of hotels, motels and convention centers are intended to come within the ordinance requirements. Finally, the proposed amendment would define meals, currently not a defined term. The definition for "meal" is based, again, on the state statutes and administrative code sections governing restaurant licensing and regulation. Create an exception for establishments where food and beveraqe service is only incidental to the main business of the establishment The proposed amendment would be: I move to amend ordinance #03- __ to create an exception from the provisions of the ordinance for establishments where the sale of meals and beverages, including alcohol beverages, does not exceed 20% of the total gross sales of the establishment. The purpose of this amendment is to create an exception for establishments where sales of food and beverages is not a primary activity of the business establishment. As originally proposed, the ordinance would cover any business establishment serving meals to the public. The amendment would establish a threshold level of 20%, which food and beverage service would have to exceed in order for the establishment to fall within the proposed regulations. The amendment would exclude for example, a bowling alley serving hot dogs, french fries, and nachos, as well as alcohol beverages, if the sale of the food items totaled 20% or less of the total gross receipts of the establishment, including alcohol beverage sales, sales of bowling games, tournament fees, league fees, etc. If the sales of the food items exceeded 20%, the establishment may nonetheless qualify under the tavern exception if sales of alcohol beverages exceeds 50% of the total sales of food and beverages sold for consumption on premises. Include only meals and beverages when determininq whether the gross sales of alcoholic beverages exceeds 50% of the total gross sales of the establishment for purposes of determininq whether the establishment isa "tavern" The proposed amendment would be: I move to amend ordinance #03- __ to include in the computation of total gross sales only receipts for meals and beverages to be consumed on premises when determining whether the gross sales of alcohol beverages at an establishment exceeds 50% of the total gross sales of the establishment for purposes of determining whether an establishment shall be classified as a "tavern" under the terms of this ordinance. The purpose of this amendment is to clarify how the tavern exception will be calculated. As originally proposed, the tavern exception would only apply to those establishments which are able to show that the gross sales of alcohol beverages at the establishment exceeded 50% of the total gross sales of the establishment. The total gross sales ~'ay include carry-out, c~itered or delivery receipts, as well as other receipts for non-food/non-beverage items, such as lodging in hotels/motels, t-shirts or specialty clothing items the establishment may make available to patrons, fees for use of sport equipment, etc... The amendment would clarify that the comparison of sales would be only alcohol beverage sales to sales of food and non-alcohol beverages consumed on premises. Thus, an establishment that may be essentially a tavern but which maintained a significant carry-out or delivery business, may exclude those receipts for carry-out and delivery orders, when determining whether it qualifies for the "tavern" exception under the ordinance. Similarly, a bowling alley may exclude receipts for games, league fees, etc..., and compare only receipts for food and beverages in its calculation under this proposed amendment. Please feel free to contact me if either you or the Council members have any questions or concerns related to these proposed amendments. Attachment for motion to amend definitions of "meal" and "restaurant" "Meal" means any ready to eat food served or sold to the general public in individual or prepackaged single portions or servings for immediate on-premises consumption, or transported off-premises in individual prepackaged carryout servings, or specifically preordered individual or multiple serving portions which are transported to an off-premises location for immediate consumption with or without further preparation. Meal does not include soft drinks, ice cream, milk, milk drinks, ices and confections or free lunches served by taverns consisting of popcorn, cheese, crackers, pretzels, cold sausage, cured fish, or bread and butter. Nor does meal include food items sold by the weight, count or piece in individual packages requiring further preparation for consumption at another location. "Restaurant" means any building, room or enclosed place where meals are prepared or served or sold to transients or the general public, a) hotels/motels/convention centers. The term "restaurant" shall include any room or enclosed place where meals and beverages are prepared or served or sold to transients or the general public, but shall not include other areas of a hotel/motel or convention establishment, including lodging rooms, private banquet rooms or halls, or taverns as defined in this section. b) The term "restaurant" shall not include: 1) a "tavern" as defined in this section. 2) An establishment with "incidental food service" as defined in this section. 3) taverns that serve free lunches consisting of popcorn, cheese, crackers, pretzels, cold sausage, cured fish, or bread and butter. 4) churches, religious, fraternal, youths' or patriotic organizations, service clubs and civic organizations which occasionally prepare, serve or sell meals to transients or the general public. 5) any bed and breakfast establishment that serves breakfasts only to its lodgers. 6) the serving of food or beverage through a licensed vending machine. 7)~ a concession stand at a locally sponsored sporting event, such as a little league game. 8) a "temporary restaurant" operated at a fixed location in conjunction with a single event such as a fair, carnival, circus, public exhibition, anniversary sale or occasional sales promotion. 9) Entire rooms or halls used for private functions.