Fayetteville Bar Smoking Ban

8/7/2019 Fayetteville Bar Smoking Ban

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AGENDA REQUEST

FOR: COUNCIL MEETING OF MAy 9,2011,FROM:ALDERMAN ADELLA GRAYORDINANCE OR RESOLUTION TITLE AND SUBIECTAn Ordinance To Amend 595.05 Regulation Of Smoking In Most Public Places And placesOf Employment Of The Fayetteville Code By Removing The Exemption For BarsAPPROVED FOR AGENDA:

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,{ - f ,'l- Zot ICity Attorney(as to form) Date

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Amend 95.05 Regulatio

Smoking in Most Public P

and Places of Employme

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Departmental GorrespondenceRKANSAS

KitWilliamsCity AttorneyJason B. KelleyAs s is tant C ity Attor neyTO: Mayor JordanCity Council

CC: Don Marr, Chief of Staff ,'1,.FROM: Kit Williams, City Atto ^"y(---d-DATE: February 25r20llRE: Proposed Amendment to Smoking Ordinance to include bars

The Smoking Ordinance was passed by the City Council and was laterreferred to the voters after a petition drive by its opponents. The voters passed theordinance under provisions of Amendment 7 of the Arkansas Constitution after ahotly contested election campaign. Because of this citizens' vote, Amendment 7protects this electoral decision by requiring that:"No measure approved by the people shall be amended orrepealed by . . .any City Council, except upon ayea and nayvote on roll call of two-thirds of all members elected to . . .the City Council. . . ."

This means that any proposed amendment to the Smoking Ordinanceby the Fayetteville City Council will require the affTrmative vote of sixaldermen. The Mayor may not vote on this issue because of the abovewording of Amendment 7 as he was not .relected . . . to the City Council."I have been asked about referring any passed amendment to the voters fortheir final approval. This can be done pursuant to A.C.A. Section 14-55-301 "by amajority vote of its members." If this is not a section within the actual ordinancepassed by the City Council, a later ordinance (within 30 days) can also refer anordinance to the voters, but then a two-thirds majority of the City Council isrequired for passage.

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ORDINANCE NO.AN ORDINANCE TO AMEND $95.05 REGULATION OF SMOKING INMOST PUBLIC PLACES AND PLACES OF' EMPLOYMENT OF THEFAYETTEVILLE CODE BY REMOVING THE EXEMPTION FOR BARSWIIEREAS, second hand smoke is dangerous for employees and patrons of bars; and\ryHEREAS, bartenders have higher rates of lung cancer than firefighters, coal minersand workers in some other occupations in which air pollution is a problem.NO\il, THEREF'ORE BE IT ORDAINED BY THE CITY COUNCIL OF THECITY OT' FAYETTEVILLEN ARKANSAS:Section 1: That the City Council of the City of Fayetteville, Arkansas hereby repeals$95.05(C) Exemptions in its entirety and enacts a replacement $95.05(C) as shown below:

"(C) Exemption."Retail tobacco stores are exempted from the smoking prohibition ofthis ordinance."

Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends$95.05(A) Definitions by deleting the reference to a 3'b') within the definition of "Place ofemploymenf," so that the third sentence shall read: "A 'retail tobacco store' is not a place ofemployment for purposes of this section."PASSED and APPROVED this 3'd day of May,20ll.

APPROVED: ATTEST:

By: LIONELD JORDAN, Mayor By: SONDRA E. SMITH, City Clerk/Treasurer

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4-vtrct l*,^,FAYETTEVILLE CODE OF ORDINANCESTITLE IX GENERAL REGULATIONS

thereupon service of the publication as nowprovided for by law against nonresident defendants (A)may be had, and an attorney ad litem may beappointed to notify the defendant by registeredletter addressed to his last known place ofresidence if same can be found.(Code 1965, SS1 1-3, I 1-3.1; Ord. No. 1303,5-28-62; Ord. No.1721, 12-1 5-69: Ord. No. 2557, 9-4-79i Ord. No. 2922, S-j 7 -83; Code 1991, 595.03). State law reference(s)-Enforcement of lien for clearanceby municipality, A.C.A. 514-54-904; Notice to unknown ornonresident owners, A.C.A. S14-S4-902.95.04 Public Nusance; Abatement(A) lt shall be unlawful for the owners, occupants,tenants, or lessees of any dwelling or place ofbusiness to allow garbage, trash or other litter to

accumulate on his premises, or to place or cause tobe placed paper, cardboard or other litter in suchmanner as to cause unsightly or unsanitaryconditions in the city.(B) Code Compliance Officers or their authorizedrepresentatives shall have the duty of notifying theowner, occupant, tenant, or lessee of a dwelling orplace of business where one or more of theconditions described in subsection (A) of thissection is found to exist.(C) lt shall be the duty of the owner, occupant, tenantor lessee of such premises to correct said conditionor conditions within 30 days from date of receipt ofsuch notice.(D) lf the owner, occupant, tenant, or lessee fails toobey such notice and continues to maintain saidprohibited condition or conditions, such personshall be deemed in violation of this section andshall be subject to the penal provisions contained inthis chapter.(E) The provisions of this section are supplementary to,and do not amend or repeal the provisions ofSS95.01 through 95.03 of this Code.(Code 1965, S10-5; Ord. No. 1194,4-6-59; Ord. No. 1619,8-19-68: Code 1991, S95.04)

Cross reference(s)-Penalty, 595.99.State law reference(s)-- Municipal authority, A.C.A. S14-54-901 ; Removal or razing of buildings, A.C.A. 514-56-203.

95.05 Regulation Of Smoking ln MostPublic Places And Places Of Employment

Definitions. For the purpose of this chapter, thefollowing defnitions shall apply unless the contextclearly indicates or requires a different meaning.Bar. An establishment, whether termed a privateclub or public establishment, that is devotedprimarily to the sale and service of alcoholicbeverages for on-premises consumption and wherethe service of food, if any, is ncidental to theconsumption of such beverages.Restaurant. An eating establishment, including butnot limited to dining establishments, private clubs,coffee shops, cafeterias, sandwich shops, privateand public cafeterias, which gives or offers for salefood to the public, guests, or employees, as well asnon-residential kitchens and catering facilities inwhich food is prepared on the premises for servingelsewhere. The term "restaurant" shall include abar area within the restaurant.Enclosed area. All space partially enclosedbetween a floor and ceiling that is enclosed on allsides by solid walls or windows (exclusive ofdoorurays), which extend from the floor to theceiling.Manager. The owner, lessee, or other person incharge of a public place.Placeof employment. An enclosed area underthecontrol of a public or private employer thatemployees normally frequent during the course ofemployment, including, but not limited to, workareas, employee lounges, restrooms, conferencerooms, meeting rooms, hallways, classrooms, andemployee cafeterias. A private residence is not a

Public place.(1) Any enclosed indoor area that is used by thepublic or private club members and guests,except designated hotel and motel guest

rooms.(2) Any swimming pool owned or operated by thecity.Retail Tobacco Sfore. A retail store utilizedprimarily for the sale and use of tobacco products

g:*:i:l"mt; t["tr ::':li:ff" ffi (Lrand a "retal tobacco store" are not olaces of Iemployment for purposes of tnrs Sectrol'Fl - I encrosed private orrice tnJ'"iig'"'i'i"f"": ) Cc cor occupied by a nonsmoking employee is not a - \place of employment for purposes of this section. \..CD95:4

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C rtffc. l*-,

(B)

(c)

and accessories and in which the sale of otherproducts is merely incidental.Smoking. Holding a lighted pipe, cigar, or cigaretteof any kind, or lighting, or emitting or exhaling thesmoke of a pipe, cigar, or cigarette of any kind.Prohibition of Smoking in public places andplaces of employmentSmoking is prohibited in all public places, places ofemployment, and city vehicles unless specificallyexempted in subsection (C).Exemptions.The following types of establishments areexempted from the smoking prohibition of thisordinance:

FAYETTEVILLE CODE OF ORDINANCESTITLE IX GENERAL REGULATIONSperson who owns, manages, operates orothenise controls a public place or place ofemployment may result in the suspension orrevocation of any permit or license issued forthe premises on which the violation occurred.(F) Jurisdiction.This section is not applicable nor enforceablein federal, state or county buildings inctudingall facilities owned or operated by theUniversity of Arkansas.

(G) Effective date.This ordinance shall take effect on February 1,2004

(Ord. No.3584,12-17-91i Code 1991, g95.05; Ord. 4512,Og-o2-03)95.06-95.98 Reserved95.99 Penalty(A) Any person failing to comply with an order asdescribed by 595.01 shall, upon conviction, bepunished by a fine of not less than $10.00 nor morethan $100.00.(B) Whoever violates 595.04 shall be punished by afne of not more than $500.00 or double that sumfor each repetition of such offense, or violation;provided, no penalty shall be greater or less thanthe penalty provided for the same or a similar

offense under the laws of the state. The penalty forallowing the continuation thereof shall not exceed$250.00 for each day that the same is unlawfullycontinued.(C) There is hereby created the office of CodeCompliance Offcer. Code Compliance Officersshall be hired by the Mayor or his designatedrepresentative and shall perform the duties andexercise the powers set forth in this chapter.(D) Code Compliance Officers are hereby authorized toissue citations to any person violating theprovisions of 9995.01-95.04 or g 173.08(A) of theCode of Fayetteville, provided that their authority isexpressly limited io removing or causing the

removal of unsanitary or unsightly things, or tocorrecting or causing the correction of unsafe orunsanitary conditions on the property in question.

rt -f (1) Bars(2) Retail tobacco stores(D) Dules of Managers.

(E) Enforcement.City police shall enforce this section pursuantto their normal police power.lf a manager knowingly permits or fails tomake reasonable efforts to prevent smoking bythe establishment's customers or employeeswhere prohibited by this section, the managershall be guilty of a violation and a fine or notmore than $100.00 per occurrence.A person who smokes in an area wheresmoking is prohibited by provsions of thissection shall be guilty of a violation punishableby a fine not exceeding ffty ($50.00) dollarsper occurrence.ln addition to the fines established by thisSection, multiple violations of this Section by a

(1)

(2)

(3)

The manager of a place within which smokingis prohibited by this ordinance shall place "NoSmoking" or "Smoke Free" signage at themajor entrance and other appropriate placeswithin the establishment.The manager of a public place in whichsmokng is prohibited or restricted shall notknowingly permit or fail to make reasonableefforts to prevent smoking in any area wheresmoking is prohibited.

(1)(2)

(4)CD95:5

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Fayetteville Bar Smoking Ban

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