Memorandum

City of Lawrence

Legal Services

TO:	Toni Ramirez Wheeler, Director of Legal Services
FROM:	Scott J. Miller, Staff Attorney
Date:	May 13, 2010
RE:	Comparison of Provisions of 2010 Kansas SB 2221 to Lawrence’s Smoking Ordinance

Introduction

This year, the Kansas legislature passed SB 2221, the Kansas Indoor Clean Air Act.  Much like Lawrence’s law that was enacted in 2004, this legislation prohibits smoking in most enclosed places of employment as well as areas accessible to the public.  While the two laws are similar, however, they are not identical.  For your reference, I have prepared a table that compares and contrasts each provision of the two laws.

The Kansas Indoor Clean Air Act (“the Act”) is a uniform state enactment.  It applies to all cities and unincorporated areas within the State of Kansas.  Therefore, cities such as Lawrence may pass laws that are more stringent than the Act, but may not have laws that are less stringent than that law.  In other words, Lawrence may place limits on smoking that are stricter than the Kansas law, but may not relax the limits that exist within that law.

Because some of the provisions of the Act are more stringent than those in Lawrence’s ordinance, some legislative action will be necessary prior to the law’s effective date on July 1, 2010.  One option would be to repeal the Lawrence ordinance and let all enforcement occur under the Act.  A second option would be to incorporate the provisions of the Act into a local ordinance, and perhaps include those parts of our existing ordinance that are more restrictive than the provisions of the Act.  A final option might be to repeal or amend the existing ordinance but adopt new regulations in the City Code meant to plug some potential gaps that may exist in the Act that could make enforcement problematic.  I will first compare and contrast the two laws, and then will discuss several options for action that the City Commission might consider.

General Comparison of the Kansas and Lawrence Laws

Although the Kansas statute was at least partly based on the Lawrence ordinance, the two laws are not identical.  In order to compare the two laws, I will discuss the behaviors that each law illegalizes that the other does not.  Please note that this comparison is very general in nature and a more thorough understanding of the differences between the two laws may be obtained by referring to the comparison table mentioned above.

Ways the Kansas law is more restrictive than Lawrence’s ordinance.

The State of Kansas’ statute prohibits smoking in the following areas that the City of Lawrence’s ordinance does not:

1. Near the access points of buildings where smoking is not otherwise allowed.  Access points are the areas within a 10 foot radius of a doorway, open window or air intake into a facility where indoor smoking is illegal.

2. In places with walls and either ceilings or roofs, if the places do not have openings in their walls that are permanently open to the elements and that are equal in size to at least 30% of the exterior wall area of the location.  Lawrence has a similar standard, but the openings only need to be 20% of the exterior wall area under our current ordinance.

3. No more than 20% of the guest rooms in a hotel may be designated as smoking rooms under the Kansas law.  Lawrence also restricts this percentage but allows up to 25% of rooms to be designated as smoking guest rooms.

4. The Kansas law contains no exception for private functions in hotel conference and meeting rooms, but the Lawrence ordinance does exempt some of these facilities.

5. The Lawrence ordinance has an exemption for certain smoking break rooms that preexisted the passage of the ordinance.  The Kansas law has no similar exemption.

Ways the City of Lawrence ordinance is stricter than the Kansas statute.

1. The Lawrence law covers places where food is prepared for off-premises consumption.

2. Lawrence’s ordinance makes no exception for gaming floors, although there are no facilities in Lawrence that meet that definition.

3. Both the Lawrence and Kansas laws ban smoking in private residences where day cares are operated, but the Lawrence ordinance also includes adult day cares and home health care facilities as areas where smoking is not allowed.  The Kansas law exempts these areas.

4. The Lawrence ordinance and Kansas statute both provide exceptions for tobacco shops.  The Lawrence law only allows the sale of items that are not tobacco or tobacco related accessories if those sales are merely incidental.  Under the Kansas law, anything may be sold in a tobacco shop, provided 65% of its sales are from the sale of tobacco.

5. The Lawrence ordinance includes the smoking of non-tobacco vegetation in its smoking ban.  The Kansas law is limited to tobacco smoking only.

6. The Kansas law allows for the designation of smoking areas in adult-care homes and long-term care units provided they are adequately ventilated.  The Lawrence ordinance does not allow smoking in these areas.

7. The Kansas law allows Class A or Class B clubs licensed before 2009 to allow smoking if they file an election to that effect with the Secretary of Health and Environment.  Lawrence’s law does not.

8. The Kansas statute permits smoking in outdoor recreation facilities such as country clubs or shooting clubs in areas where minors are not allowed.  The Lawrence ordinance does not exempt these facilities.

Other significant differences between the laws.

In addition to the differences involving the scope and coverage of the two laws that are listed above, there are a few other procedural differences that should be mentioned.

1. Enforcement of the law is primarily assigned to the Fire Department under the Lawrence ordinance, while under the Kansas statute that duty would fall to the Police Department or the officers of some other law enforcement agency.

2. The Director of Alcoholic Beverage Control is allowed to adopt regulations that are meant to prevent the circumvention of the Kansas law.  There is no rulemaking authority granted under the Lawrence ordinance.

3. Violations are termed tobacco infractions under the Kansas law, but are deemed misdemeanors under the Lawrence City Code.

4. Required design and posting of no smoking signs differs between the laws.

Future Action

Because some of the provisions of the Lawrence ordinance are less stringent than the provisions of the Kansas statute, our current ordinance should either be repealed or amended to eliminate these discrepancies.  Three potential courses of action are discussed below.

Repeal of the Lawrence Ordinance

The City Commission could elect to repeal the existing ordinance, thus eliminating possible conflicts with Kansas law.  If the ordinance is repealed, all enforcement would be done under the Kansas statute.  All violations would be prosecuted in Douglas County District Court instead of the Lawrence Municipal Court.  The Lawrence Police Department or other commissioned law enforcement officers would be responsible for enforcing the ordinance instead of members of the Fire Department.

As a result of this action, smoking would potentially be allowed in places where it is currently illegal in Lawrence, including adult day cares, long term care facilities, some Class A and B private clubs, and outdoor recreation facilities such as country clubs.

In addition, businesses selling a wider array of goods and services might qualify as tobacco shops under the law.  I believe that owners might try to creatively organize their businesses in an attempt to comply with the letter of the exception while negating the intent of the law, although the rulemaking authority of the Director of Alcoholic Beverage Control could result in a relatively quick response to such attempts.

Further, the Lawrence ordinance’s extension of its indoor smoking ban to vegetation that is neither tobacco nor a controlled substance would no longer be effective.  For example, if the substance itself had not been recently illegalized by the legislature, the indoor public smoking of K2, a synthetic cannabinoid, might not have been illegal under the Kansas Act.  A laboratory test would have needed to determine whether the substance had tobacco in it, and if it consisted only of other vegetation the Act would not have applied to it.

Amending the current ordinance.

The Lawrence ordinance could be amended to incorporate the provisions of the Kansas Act while preserving the current enforcement structure and those aspects of the current ordinance that are more restrictive than the provisions of that act.  Some parts of the Lawrence law would need to be rewritten or fine tuned to avoid conflicting with the Act.  Violations of the ordinance would continue to be prosecuted in Municipal Court.

Repealing or amending the current ordinance and implementing a licensing law for tobacco shops.

The City could also repeal the current law and enact a business licensing law that applies to tobacco shops that take advantage of the exemption in the smoking law.  Such a law could be written to ensure that business practices are not pursued that expand this exemption to the point that it circumvents the intent of the Kansas Act.  Because the Act does not include any particular method of verifying the 65% tobacco sale requirement, a licensing ordinance could also assist in that regard.

Conclusion

Some action must be taken by the City Commission on this matter, preferably before the Act goes into effect on July 1, 2010.  Upon receiving direction, I will prepare the appropriate ordinances.  Please let me know if you have any further questions.