Memorandum

City of Lawrence

Legal Services

TO:	Toni Ramirez Wheeler, Director of Legal Services
FROM:	Scott J. Miller, Staff Attorney
Date:	June 10, 2010
RE:	Ordinance 8534 – Amendments to the Chapter IX of the City Code to Include Provisions of the Kansas Indoor Clean Air Act

At the City Commission meeting on June 8, 2010, the City Commission was presented with a staff memo outlining a menu of options regarding the amendment or repeal of Article 8 of Chapter IX of the City Code, which regulates indoor public smoking.  Such action is necessary because of the passage of the Kansas Indoor Clean Air Act.  That act has some provisions that are more stringent than the current Lawrence ordinance, and some that are less strict. 

As a result of that discussion, staff was directed to draft an ordinance that incorporated the more stringent provisions of the Kansas law into our ordinance.  The City Commission ordered that the portions of the preexisting ordinance that are more stringent than the Kansas law be kept as well.  In addition, staff was given permission to amend the language of the current ordinance to conform to the language of the Kansas statute in instances where making such amendments did not result in a dilution of the protections of the current ordinance.

Ordinance 8534 is an attempt to comply with the Commission’s direction. 

The ordinance makes the following changes to our law to bring Lawrence’s provisions in line with the Kansas statute.

• It illegalizes smoking around access points, which are the areas within 10 feet of a doorway, open window, or air intake into a building where smoking is not allowed.

• It changes the definition of enclosed area to require that 30% of the exterior wall area be permanently open to the elements.  Our former standard was 20%.  The amended ordinance further requires that fenced areas also meet this standard, provided they are covered with a ceiling or roof.

• It limits the amount of guest rooms in a hotel that may be designated as smoking rooms to 20%.

• It eliminates the exceptions in the current Lawrence ordinance that allow for smoking in certain conference rooms, meeting rooms, and smoking break rooms.

• Where there is a difference in the language used in similar provisions of the Kansas statute and the Lawrence ordinance and that difference does not loosen the scope of the Lawrence ordinance, the Lawrence ordinance has been amended to conform to the Kansas statutory language.

• The required form and posting of “No smoking” signs is modified to conform to the Kansas standards.

• Violations are designated as ordinance tobacco infractions under the amended ordinance.  Under the existing language, violations were designated as misdemeanor offenses, but because they are only punishable by the assessment of fines the ordinance tobacco infraction designation fits better.

The proposed ordinance preserves certain parts of the Lawrence ordinance that are more stringent than or significantly different from the Kansas statue.  These provisions include:

• Defining smoking to include non-tobacco vegetation.

• Continuing to ban smoking in private residences used as adult daycares and healthcare facilities, as well as adult care homes and long-term care units.

• Prohibiting smoking in all Class A and B clubs and other private clubs, such as country clubs.

• Banning smoking from gaming floors.

• Including areas where food is prepared for off-premises consumption in the smoking regulation.

• Granting the Fire Department authority to enforce the ordinance.

Finally, pursuant to discussion the definition of “tobacco shop”, formerly “retail tobacco shop” in our ordinance, has been redrafted in an attempt to prevent that exception from being used to allow smoking to occur in situations where the ordinance’s intent was to prohibit smoking.  The definition adopts the Indoor Clean Air Act’s requirement that 65% of the gross sales of a business be from the sales of tobacco or tobacco products for the exemption to apply.  It further states that the exemption will not apply if the business:

1. Is a licensed premises or any portion of its gross sales come from the sale of alcohol or cereal malt beverage.

2. Is partially or entirely located inside a business where smoking is illegal under the law.

3. Has an entrance to the business usable by the public that is located within another business where smoking is not allowed under the law.

4. Requires the purchase of any tobacco or tobacco product for admission into the business.

Please let me know if you have any additional questions.