00-009-O REPLACEMENT 3, AS AMENDED

ORDINANCE NO. __________

AN ORDINANCE PERTAINING TO THE REGULATION OF SMOKING IN PUBLIC PLACES; ADDING A NEW ARTICLE VII TO CHAPTER 28, DULUTH CITY CODE, 1959, AS AMENDED.
BY COUNCILORS GILBERT, ECKENBERG, AND NESS:

The city of Duluth does ordain:

Section 1. That a new Article VII be added to Chapter 28 of the Duluth City Code, 1959, as amended, to read as follows:

ARTICLE VII. Smoking in Public Places.

Section 28-62. Findings of fact and statement of purpose.

(a) The Duluth City Council finds the following facts to exist:

(1) Tobacco smoke is a major contributor to indoor air pollution, and breathing second hand smoke is a cause of disease, including lung cancer, in nonsmokers. At special risk are children, elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. Many of these individuals cannot go into public places with second-hand smoke due to their respiratory or allergenic handicap; and

(2) Health hazards induced by breathing second-hand smoke include, but are not limited to, lung cancer, heart disease, respiratory infection and decreased respiratory function; and

(3) The simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, the exposure of nonsmokers to environmental tobacco smoke for which there is no known safe level of exposure;

(4) Consideration should be given to businesses who will experience undue economic hardship as a result of legislation prohibiting smoking in public places.

Section 28-63. Definitions.

For the purpose of this Article, the following words and phrases shall have the meanings given them in this Section.

(a) Bar. Bar means any establishment or portion of an establishment where one can purchase and consume alcoholic beverages;

(b) Office. Office means any building, structure, or area used by the general public or serving as a place of work at which the principal activities consist of professional, clerical, or administrative services. An office includes professional offices, offices in financial institutions, business offices, telemarketing offices, and government offices;

(c) Public conveyance. Public conveyance means any air, land, or water vehicle used for the transportation of persons for compensation, including but not limited to airplanes, trains, buses, boats, and taxis;

(d) Public place. Public place means any enclosed, indoor area used by the general public, including, but not limited to, restaurants, retail stores, offices and other commercial establishments, public conveyances, bars, hospitals, auditoriums, arenas, meeting rooms, and common areas of hotels and motels, but excluding bowling alleys, pool halls, and private, enclosed offices occupied exclusively by smokers even though such offices may be visited by nonsmokers;

(e) Restaurant. Restaurant means any building, structure, or area used as, maintained as, or advertised as, or held out to the public for food service as defined in Minnesota Rules Part 4625.2401, subpart 15, which requires licensure under Minnesota Statutes, Chapter 157, in consideration of payment other than a bar as defined in (a) above;

(f) Retail store. Retail store means that portion of a commercial occupancy used for the transaction of business or the rendering of a service directly to the public, including shops, retail food stores, laundries or laundromats, and department stores;

(g) Room. Room means any indoor area bordered on all sides by a floor to ceiling wall. The sides must be continuous and solid except for closeable doors for entry and exit, except an air curtain may be substituted for one wall and for doors if the owner can prove the air curtain provides the same health benefits as a floor to ceiling wall and or door except no closeable door shall be required to be installed on entries and exits that have historical significance as recognized by the Duluth heritage commission, and except that at such time as the council deems, by amendment of this ordinance, that sufficient scientific evidence supports the effectiveness of air barriers or other technologies, said barriers or technologies may be substituted for walls;

(h) Smoking. Smoking includes possessing or carrying a lighted cigar, cigarette, pipe, or any other lighted smoking equipment.

Section 28-64. Smoking prohibited in public places; exception.

No person shall smoke in any public place except those rooms constituting bars where persons under the age of 18 are not permitted to enter or remain, and except restaurants that have a designated smoking area in a separate room, separately ventilated to the outside and constituting not more than 30% of the seating floor space, and persons under the age of 18 are not permitted to enter or remain.

Section 28-65. Signage.

Signs shall be posted in all public places informing the public of the smoking restrictions contained in this ordinance. The form and placement of the signs shall conform to Minnesota Rules part 4620.0500.

Section 28-66. Loss of revenues; exemption.

A restaurant which realizes a loss of sales, based upon sales tax receipts as compared to the same months the previous year, greater than 15 percent as a result of complying with the provision of this ordinance for one month or greater than ten percent for two consecutive months may make a request to the city council for an exception from this ordinance, except restaurants with seating for fewer than 100 people may make a request to the city council for an exception based on an expected 15% or more loss of business. A request for an exception shall be automatically approved if it is not denied by the council within 30 days after its receipt by the city clerk.

Section 28-67. Employees not required to enter bar area.

At public places that include both a restaurant and a bar, the owner shall not require non-smoking employees to enter the bar area as part of the employee's duties without the employee's consent.

Section 28-68. Religious use of tobacco.

This ordinance shall not apply to the use of tobacco as part of recognized religious rituals or activities.

Section 28-69. Owners not obligated to enforce.

Nothing in this ordinance shall be construed to impose any requirements to enforce this ordinance upon owners of public places.

Section 28-70. Private clubs.

No private club shall be established for the purpose of avoiding compliance with this ordinance.

Section 28-71. Hours of application.

Subject to the provisions of the Minnesota Clean Indoor Air Act, smoking may be allowed by the management at restaurants holding alcoholic beverage licenses or beer and wine licenses after 8:00 p.m. until 1:00 a.m.

Section 28-72. Penalty.

Any person who violates this ordinance shall be subject to the penalty set out in Section 1-7 of the Duluth City Code, as amended, or its successor.


Section 2. That this ordinance shall take effect and be in force on January 1, 2001.


STATEMENT OF PURPOSE:  This ordinance prohibits smoking in all public places except bars where persons under 18 are not allowed to be on the premises. The definitions and signage provisions of the ordinance are as much as possible consistent with the provisions of the Minnesota Clean Indoor Air Act.