01-017-O REPLACEMENT 3

ORDINANCE NO. __________

AN ORDINANCE AMENDING ARTICLE VII OF CHAPTER 28 OF THE DULUTH CITY CODE, 1959, AS AMENDED.
BY COUNCILOR ECKENBERG:

        The city of Duluth does ordain:

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

Article VII. Smoking in Public Places.

Sec. 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.

Sec. 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; Bar means an establishment that has an on-sale 3.2 percent malt liquor license issued pursuant to Minnesota Statutes Sec. 340A.403, as amended from time to time, or an on-sale intoxicating liquor license issued pursuant to Minnesota Statutes Sec. 340A.404, as amended from time to time, which does not serve food or which has a limited food menu selection as defined by Minnesota Statutes Sec 157.16, subd. 3(d)(1), as amended from time to time;
        (b)     Bar/restaurant. Bar/restaurant means an establishment that has an on-sale 3.2 percent malt liquor license issued pursuant to Minnesota Statutes Sec. 340A.403, as amended from time to time, or an on-sale intoxicating liquor license issued pursuant to Minnesota Statutes Sec. 340A.404, as amended from time to time, and that holds a small, medium, or large establishment food license as defined by Minnesota Statutes Sec. 157.16, subd. 3(d)(2)-(4), as amended from time to time;
        (b) (c)     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;
        (d)     Other person in charge. Other person in charge has the meaning specified in the Minnesota Clean Indoor Air Act Rules, Minnesota Rules Part 4620.0100, Subpart 10, as amended from time to time;
        (e)     Proprietor. Proprietor has the meaning specified by the Minnesota Clean Indoor Air Act Rules, Minnesota Rules Part 4620.0100, Subpart 13, as amended from time to time;
        (c) (f)     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) (g)     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, and pool halls until April 1, 2003 and excluding private, enclosed offices occupied exclusively by smokers even though such offices may be visited by nonsmokers;
        (e) (h)     Restaurant. Restaurant means any building, structure or area used as, maintained as, 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) (i)      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) (j)      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 no closeable door shall be required to be installed on entries and exits that have historical significance as recognized by the Duluth heritage [preservation] commission, and except that at such time as the council deems, by amendment of this ordinance [Article], that sufficient scientific evidence supports the effectiveness of air barriers or other technologies, said barriers or technologies may be substituted for walls;
        (h) (k)     Smoking. Smoking includes possessing or carrying a lighted cigar, cigarette, pipe or any other lighted smoking equipment.

Sec. 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
        (a)     rRestaurants that have a currently existing designated smoking area in a separate room, separately ventilated to the outside and constituting not more than 30 percent of the seating floor space and persons under the age of 18 are not permitted to enter or remain. , provided that this exception shall cease to be in effect after April 1, 2003;
        (a) (b)     Bars;

        (b) (c)     The bar area of a bar/restaurant, if:
                (1)     The bar area is separately enclosed on all sides by continuous floor-to-ceiling walls, interrupted only by closeable doors; and
                (2)     The bar area is separately ventilated, with negative air pressure in relation to dining areas; and
                (3)     Revenues from the sale of food in the bar area are incidental to those from the sale of alcoholic beverages, serving only a limited food menu as defined by Minnesota Statutes Sec. 157.16, subd. 3(d)(1); and
                (4)     Minors are not permitted in the bar area at any time;
                (c) (d)     A civic organization, service club, fraternal or patriotic organization, or similar private membership organization, when admission to the organization is limited to members and members' guests, provided that this exception shall not apply to any organization established to avoid compliance with this ordinance;
                (d) (e)     The use of tobacco as part of a recognized religious ritual or activity.

Sec. 28-65. Signage.

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

Sec. 28-65. Responsibilities of proprietors.

        The proprietor or other person in charge of a restaurant subject to Chapter 28, Article VII, shall:
        (a)     Post "no smoking" signs that comply with the Minnesota Clean Indoor Air Act Rules, Minnesota Rules Part 4620.0500, as amended from time to time;
        (b)     Ensure that ashtrays, lighters, and matchbooks are not provided in areas where smoking is prohibited; and
        (c)     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 asked to do so, ask the person to leave.

Sec. 28-66. Previous exemptions.

        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 [Article] 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 [Article]. 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.All previous exemptions are withdrawn effective April 1, 2003.

Sec. 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 nonsmoking employees to enter the bar area as part of the employee's duties without the employee's consent.

Sec. 28-68. Religious use of tobacco.

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

Sec. 28-68. Retaliation prohibited.

        No person or employer shall discharge, refuse to hire, penalize, discriminate against, or in any manner retaliate against, any employee, applicant for employment, or customer because the employee, applicant, or customer exercises any right to a smoke-free environment afforded by this ordinance or other law.

Sec. 28-69. Owners not obligated to enforce.

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

Sec. 28-69. Other applicable laws.

        This ordinance is intended to complement the Minnesota Clean Indoor Air Act, Minnesota Statute Sec. 144.411 to 144.417, as amended from time to time. Nothing in this ordinance authorizes smoking in any location where smoking is restricted by other applicable laws.

Sec. 28-70. Private clubs.

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

Sec. 28.70. Violation and penalties.

        (a)     Smoking where prohibited. It is a violation of this ordinance for any person to smoke in an area where smoking is prohibited by this ordinance;
        (b)     Proprietors. It is a violation of this ordinance for the proprietor or other person in charge of any premises subject to this ordinance to fail to comply with the requirements of Chapter 28, Article VII, or to retaliate against an employee, applicant for employment, or customer, as prohibited by Section 28-68;
        (c)     Penalties. A person who violates any provision of this ordinance shall, upon conviction for a first violation, be subject to a penalty of up to $700 as set forth in Section 1-7 of the Duluth City Code, 1959, as amended, or its successor;
        (d)     Private right of action. In addition to the penalties provided in Section 28-70(c), any person injured by a repeated or continuing violation of the ordinance may bring a civil action against the proprietor or other person in charge of a public place to enjoin further violations.

Sec. 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.

Sec. 28-71. Severability.

        If any portion of this ordinance, or its application to any circumstances, is held invalid, the remaining provisions shall be considered severable, and shall be given effect to the maximum extent possible.

Sec. 28-72. Penalty.

        Any person who violates this ordinance [Article] 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 30 days after its passage and publication.


STATEMENT OF PURPOSE:  This ordinance amends the existing regulation of smoking in public places and removes exemptions from enforcement.