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A. Smoking Shelter Ordinance CITY OF CHANHASSEN 7700 Market Boulevard PO Box 147 Chanhassen, MN 55317 Administration Phone: 952.227.1100 Fax: 952.227.1110 Building Inspections Phone: 952.227.1180 Fax: 952,227.1190 Engineering Phone: 952.227.1160 Fax: 952.227.1170 Finance Phone: 952.227.1140 Fax: 952.227.1110 Park & Recreation Phone: 952.227.1120 Fax: 952.227.1110 Recreation Center 2310 Coulter Boulevard Phone: 952.227.1400 Fax: 952.227.1404 Planning & Natural Resources Phone: 952,227.1130 Fax: 952.227.1110 Public Works 1591 Park Road Phone: 952.227.1300 Fax: 952.227.1310 Senior Center Phone: 952,227.1125 Fax: 952.227.1110 Web Site www.ci.chanhassen.mn.us A MEMORANDUM TO: Todd Gerhardt, City Manager FROM: Angie Auseth, Planner I ~rt/ A ~V'. October 22, 2007 ~ DATE: SUBJ: Smoking Shelter Ordinance BACKGROUND The Freedom to Breathe Provision was passed by Legislature on May 12,2007, signed into law on May 16,2007, and became effective Statewide on October 1, 2007. The purpose of the Freedom to Breathe Provision is to protect employees and the general public from the hazards of secondhand smoke by prohibiting smoking in public places, places of employment, public transportation, and at public meetings. DISCUSSION The Freedom to Breathe Provision prohibits smoking in all indoor public places and at public meetings, in all indoor places of employment/work including lunchrooms, lounges and offices, in all bars and indoor private social clubs, and on all public transportation. It is important to note that smoking on open patios is NOT prohibited. The provision only addresses/prohibits indoor spaces. Attached is a section from the Minnesota Department of Health addressing Frequently Asked Questions of the Freedom to Breathe Provision for your reference. As a result of the Freedom to Breathe Provision, local establishments that want to create outdoor smoking shelters to accommodate their patrons have contacted the City regarding our standards. Rather than respond on an ad hoc basis, staff believes it is necessary to set standards for the construction of outdoor smoking shelters. Staff's goal when drafting this ordinance was to create standards that: 1. Have minimal restrictions other than State requirements. 2. Is easy to understand and implement. 3. Is easy to enforce. Staff researched other counties and cities regarding standards for smoking shelters. Most ordinances address the distance smoking must be from the main entrance of a building. This ranges from 5 feet in Meeker County to 25 feet in The City of Chanhassen · A growing community with clean lakes, quality schools, a channing downtown, thriving businesses, winding trails, and beautiful parks. A great place to live, work, and play. Todd Gerhardt Smoking Shelter Ordinance October 22, 2007 Page 2 Beltrami County. However, staff found that only the City of Bloomington addressed standards for a permanent smoking shelter. Staff proposes that some ofthe standards in Bloomington be used to create standards that would be applicable in Chanhassen. Staff has developed the following recommendation based on the research of neighboring cities as well as the guidelines set forth by the State. Staff sent the original draft to Applebee's, Axel's Restaurant, Buffalo Wild Wings, Chanhassen Legion, Houlihan's, Rey Azteca, and Sr. Poncho's on September 26, 2007. The intent of the notification was to gather input from some of the business that this ordinance would affect. To date, the main concern or questions is whether smoking will be permitted on patio areas; smoking is only prohibited in indoor areas; therefore, open-air patios are exempt. Following this discussion and revision of the ordinance, staff will distribute the updated proposed ordinance to the above businesses for their comments. When staff presented the Smoking Shelter ordinance to the Planning Commission, there was a requirement of a 25-foot separation between the shelter and any entrances, exits, open windows and ventilation intakes of public places. After applying this restriction to some businesses/restaurants within the City, it became clear that many shelters would be located in the parking lot. This would be a direct conflict with the requirement to locate the structure in the rear or side yard, as well as occupy required parking spaces. The State does not restrict the distance smoking must be from an exit, window, etc. This requirement is being removed from the ordinance. Staff has added the stipulation that the smoking structure may not reduce or impede the primary structure's ingress or egress. The intent of this requirement is to prohibit locating a structure/canopy in an area that patrons must walk through in order to enter or exit an establishment. The question becomes; how do we differentiate a smoking structure from an entrance canopy? A proposed structure intended to be a smoking structure will not be permitted at an entrance at the time of the building or zoning permit application. Another requirement that was in the original ordinance proposal was that the structure must be detached from the principle structure. This was in conjunction with the 25-foot separation requirement addressed above. Again, the State does not regulate a separation between building "openings" and smoking structures. Staff worked with the Building Official and Fire Marshal and concluded that the requirement to meet building and fire code was sufficient in determining whether a structure could be attached to the principle structure. The Building Official and Fire Marshal also added requirements pertaining to the required ash trays, rubbish containers, fire extinguisher, and possible sprinkling. The sprinkling requirement will be determined with each structure as it comes in for a building or zoning permit; the need for sprinkling will be dependent on if the proposed structure has a roof as well as the type of flooring. For example, if the structure is built over a wood deck that is open to debris collecting underneath, this could be a possible fire hazard and may require fire sprinkling. Todd Gerhardt Smoking Shelter Ordinance October 22, 2007 Page 3 DRAFT ORDINANCE Sec. 20-904 (d) Accessory outdoor smoking facilities (public places). 1. An outdoor smoking shelter shall be located within the buildable lot area in the rear or side yard. 2. The smoking shelter must be aesthetically compatible with the overall architecture of the building or development. 3. Smoking shelters shall not be more than 50 % enclosed at anytime. 4. Smoking shelters' locations may not reduce or impede the primary structures' ingress or egress. 5. Service of food and alcoholic and non-alcoholic beverages is prohibited in and to smoking shelters. 6. Roofed and/or floor assemblies may necessitate fire sprinkling. 7. Fixed, noncombustible ashtrays are required. 8. Noncombustible rubbish containers with lids are required. 9. Fire extinguisher (min. 4A60BC) must be located within the structure. 10. Smoking shelters must comply with Building and Fire Code. 11. Smoking Shelters must receive a building and/or Zoning permit prior to installation. The following definitions are proposed additions to Chapter 1 in conjunction with the Smoking Shelter ordinance. Indoor area means all space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed. A wall, for the purpose of smoking shelters, includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent. Public transportation means public means of transportation, including light and commuter rail transit; buses; enclosed bus and transit stops; taxis, vans, limousines, and other for-hire vehicles other than those being operated by the lessee; and ticketing, boarding, and waiting areas in public transportation terminals. Smoking means inhaling or exhaling smoke from any lighted cigar, cigarette, pipe, or any other lighted tobacco or plant product. Smoking also includes carrying a lighted cigar, cigarette, pipe, or any other lighted smoking equipment tobacco or plant product intended for inhalation. g:\plan\bg\cily code\sepl revisions 2007\chapler 20 smoking sheller work session.doc Freedom to Breathe: FAQ: Clean Indoor Air Act: Environmental Health in Minnesota Page 1 of 6 Frequently Asked Questions of the Freedom to Breathe Provisions in the Minnesota Clean Indoor Air Act What is the "Freedom to Breathe" (FTB)? When were the provisions of the MCIAA changed by the Legislature? What is the intention of the most recent changes? Why is it important to protect nonsmokers from second hand smoke? What are some examples of smoking-prohibited area~l What is the definition of "indoor area"? What are the responsibilities of proprietors? Are there provisions in the I~w about smoking ou1s.id~1. Is there a difference in the way the new provisions applies to owned and leased facilities? What effect does the new MCIAA have on local qovernment's ability to adopt more stringent s_rnoking re-9ulations? Are there p_enaltif!_sJL1LPIQQIietor allows smoking irUtrea~rohibited by the law? Will the FTB have a negative effect on Charitable gambling in Minnesota? What Cqn I do if I lose my job in the hospitality indl,Lstry as a result of FTB? 8re there resources available for workplaces to gO smoke-free? What can I do if I observe a violation to the MCIAA? Will smoking still bEUlJ1Qwed in existing.1!..P-Rrove~Ldeslg_nated smoking-permitted lounges and private offices after October 1. 20077 Can smoking be allowed in a shelter that is located some distance away from the building? How do_es the new Freedom to Breath Act impact SJI10king on outdoor Ratios of bars and r~staurants? If we choose to allow outdoor smoking. can our servers wait on the patrons outside? Does the new smoking ban apply to support group meetings and meeting facilities? Will smoking be prohil>ited in the common areas of condominium and cooperative housing buildings? What abol,lt smoke drifting from a_private-Lesiden~e into CLQublic place? Is there a certain distance you must be from a door or window to be allowed to smoke? Are the casinos required to comply with the FTB? Is an employer required to provide an outdoor smoking area for employees? What is the "Freedom to Breathe" (FTB)? FTB refers to new provisions that expand the current Minnesota Clean Indoor Air Act When were the provisions of the MCIAA changed by the Legislature? The 2007 Legislature amended the MCIAA to prohibit smoking in virtually all indoor public places and indoor places of employment. What is the intention of the most recent changes? The amended MCIAA is intended to protect employees and the public from the health hazards of secondhand smoke. Why is it important to protect nonsmokers from second hand smoke? httn:/Iwww.health.state.mn .lls/di vs/eh/indoorairlmd aa/fth/fan _ htm 1 Q/?()/?007 Freedom to Breathe: FAQ: Clean Indoor Air Act: Environmental Health in Minnesota Page 2of6 Secondhand smoke is a leading cause of preventable death in the United States. In 2005, it was estimated that, each year exposure to secondhand smoke in the United States kiils more than 3,000 adult nonsmokers from lung cancer and approximately 46,000 from coronary heart disease. According to the U.S. Surgeon General, there Is no safe level of exposure to secondhand smoke. Secondhand smoke causes premature death and disease in children and in adults who do not smoke. What are some examples of smoking-prohibited areas? Smoking will be prohibited in virtually all indoor public places and indoor places of employment, including: . Bars, restaurants, and private clubs . Office and industrial workplaces . Retail stores . Common areas of rental apartment buildings and hotels . Public transportation, including taxis . Work vehicles, if more than one person is present · Home offices with one or more on-site employees, or used as a place to meet or deal with customers . Public and private educational facilities . Auditoriums, arenas and meeting rooms . Day care premises . Health care facilities and clinics Go to > !QQ What is the definition of "indoor area"? "Indoor Area" means all space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than 50 percent of the combined surface area of the vertical planes [wall space] constituting the perimeter of the area, whether temporary or permanent. A [standard] window screen or like building component is not considered a wall. . What are the responsibilities of proprietors? In general, they are required to: . Post "No Smoking" signs at or near all public entrances. · Ask persons who smoke in prohibited areas to refrain from smoking or require the person to leave the facility if they refuse to refrain from smoking . · Use lawful methods consistent with handling disorderly persons for patrons that refuse to comply · Refrain from providing ashtrays and other smoking equipment. . Withhold service for noncompliant patrons Are there provisions in the law about smoking outside? The Minnesota Clean Indoor Air Act does not regulate smoking outside of buildings. At this time there is no statewide law regulating the act of smoking outside of buildings, regardless of distance from a building or building opening. Property owners may choose to create restrictions regarding smoking areas outside of their buildings on their property. Some county and city 1 .. II Freedom to Breathe: FAQ: Clean Indoor Air Act: Environmental Health in Minnesota Page 3 of 6 governments do prohibit smoking within a certain distance outside of their buildings and at outdoor parks and recreation facilities. Check with your local government to determine if such rules apply where you live. Go to > !QQ Is there a difference in the way the new provisions applies to owned and leased facilities? No. What effect does the new MCIAA have on local government's ability to adopt more stringent smoking regulations? Local governments will retain the power to adopt more stringent measures to protect individuals from secondhand smoke. Are there penalties if a proprietor allows smoking in areas prohibited by the law? Any proprietor, person, or entity that owns, leases, manages, operates, or otherwise controls the use of the area in which smoking is prohibited, and knowingly fails to comply with the provisions of the law is guilty of a petty misdemeanor under criminal law. MDH also has the authority to take enforcement actions that may include monetary penalties up to $10,000. Local public health agencies have various enforcement tools as well under their own civil enforcement authority, including fines, potential license suspensions or revocations. Will the FTB have a negative effect on Charitable gambling in Minnesota? The state Gambling Control Board will prepare a report on the law's possible impact on charitable gambling. The act requires the board to submit a report to the Governor and the Legislature before March 31, 2008. What can I do if I lose my job in the hospitality industry as a result of FTB? The Minnesota Jobs Skills Partnership Board will provide services under the dislocated worker program to certain employees who become unemployed between October 1, 2007 and October 1, 2009, because of the provisions of the act. Go to > !QQ Are there resources for workplaces to go smoke-free? * CDC, "Smoking and Tobacco Use", Consumer Summaries and Guides: . Secondhand Smoke: What It Means to You . Save Lives, Save Money: Make Your Business Smoke-Free . Making Your Workolace Smokefree-A Decision Maker's Guide * The Tobacco Law Center's at the William Mitchell College of Law has information on the changes to the MCIAA. The Center's WorkSHIFTS project provides educational and policy resources on Minnesota workplace-related secondhand smoke and cessation coverage issues. httn://www.health.state.mn .lIs/di vs/~hlindoor:lirlmr.i :l:l/fth/f:lO htm 1 Q/')f\/')nn7 Freedom to Breathe: FAQ: Clean Indoor Air Act: Environmental Health in Minnesota Page 4 of6 What can I do if I observe an MClAA violation? If you observe a violation of the MCIAA, you should notify management of the facility and ask that corrective action be taken to comply with the MCIM. MDH has a "Compliance Assistance Letter" available for the public to use on our website at http://www.health.state.mn.us/divs/eh/indoorair/mciaa/ftb/index.html This letter can be sent anonymously if needed to protect the identity of the concerned person. The letter serves to notify management that a violation of the MCIM was observed and reminds management of the facility of their responsibility to comply with the MCIM and enforcement actions that may be taken if they do not come into compliance. Given the scope of facilities that are regulated by this new smoking law, MDH is asking for support in the area of compliance assistance. If violators are not willing to comply once given a fair opportunity to correct observed violations, MDH should be notified to pursue formal enforcement action. Go to > 1QQ. Will smoking still be allowed in existing approved designated smoking-permitted lounges and private offices after October 1, 2007? When the Freedom to Breathe (FTB) amendments to the Minnesota Clean Indoor Air Act (MCIAA) take effect on OCtober 1, 2007, smoking will be prohibited in virtually all indoor public places and places of work - with very few exceptions. Smoking lounges and private offices that meet the current MCIAA will no longer be compliant as of that date and there are no grandfathering provisions in the law that would allow the continued operations of existing designated smoking-permitted areas. Can smoking be allowed in a shelter that is located some distance away from the building? The Freedom to Breathe (FTB) amendments to the Minnesota Clean Indoor Air Act wiil effectively prohibit smoking in all indoor areas of the state, except private homes and vehicles (when not being used as a workplace) on October 1, 2007. Employee lounges are considered a place of employmentas defined in the FTB amendments: "Place of employment includes, but is not limited to...employee cafeterias, lounges..." As such, if it is your intention to provide shelter for smokers that complies with the new law, the structure must not meetthe definition of an indoor area- it must, therefore, be an outdoor space. It can have a roof and floor, but the wall space (vertical planes of the perimeter) must be greater than 50% open or consist of standard window screen material. Actual windows (open or closed) are considered walls. Go to > 1QQ. How does the new Freedom to Breath Act impact smoking on outdoor patios of bars and restaurants? The Freedom to Breathe (FTB) amendments to the Minnesota Clean Indoor Air Act prohibits smoking in indoor areas of bars and restaurants. It does not regulate any aspect of outdoor smoking. As such, the answer to the question hinges on whether the patio is considered an indoor area or outdoor area. If the patio in question has a floor and ceiling, it is considered an indoor area if 50% or more of the surface area of the wall space (vertical planes of the perimeter) is solid (including windows - open or closed). Standard window screen material does not count as a solid material. .htt....../lu.7uln.' -ho",lth ett.."f-o .......-n nCt/rl;"n/.o.h/.:_r1_...........n.:_I...-_-:nn/~........./~n_ ......_1 l"\ ,,.,it: ''''l"\l"\'7 Freedom to Breathe: FAQ: Clean Indoor Air Act: Environmental Health in Minnesota Page 5 of 6 If a proprietor chooses to allow outdoor smoking, can their servers wait on the patrons outside? Neither the existing Minnesota Clean Indoor Air Act (MCIAA) nor the Freedom to Breathe provisions (effective October 1, 2007) regulate outdoor smoking - regardless of distance from building openings like doors or windows. As such, there would be no restrictions for servers in outdoor areas. Does the new smoking ban apply to support group meetings, e.g., AA, NA, etc, and meeting facilities? If a meeting is open to the public, the facility where the meeting is being held would be considered a public place during that time. As of October 1, 2007, smoking will be prohibited in virtually all public places, with very few exceptions - the statute makes no exceptions for private clubs. Go to > !QQ Will smoking be prohibited in the common areas of condominium and cooperative housing buildings? Common areas of condominium and cooperative housing buildings are considered private residences. As such, smoking in these areas is unregulated. What about smoke drifting from a private residence into a public place? The Minnesota Clean Indoor Air Act (MCIAA) and the new Freedom to Breathe provisions of the MCIAA (effective October 1, 2007) regulate the act of smoking within indoor public places and places of employment. The statute does not regulate smoke drifting from an area where smoking is unregulated - such as a private residence. Is there a certain distance you must be from a door or window to be allowed to smoke? The Freedom to Breathe (FTB) amendments to the Minnesota Clean Indoor Air Act (MCIAA) will prohibit smoking throughout indoor areas of virtually all public places and places of employment - effective October 1, 2007. Outdoor smoking is completely unregulated by the MCIAA, regardless of distance from building openings such as windows and doorways. Some local smoking ordinances, however, do have "smoking setback" provisions.; In this case the stronger ordinance would apply and be enforced on the local level. Go to > tQ-2 Are casinos required to comply with the FTB? Facilities that are located on tribal land are considered part of sovereign nations, and therefore, are not covered by state regulations such as the Freedom to Breathe amendments to the Minnesota Clean Indoor Air Act (MCIAA). Establishments operated by tribal governments that are NOT located on tribal land are subject to state regulations. Is an employer required to provide an outdoor smoking area for employees? httD:llwww.health.state.mn.us/divs/eh/indoorair/mciaalfth/fao.htm I 912612007 Freedom to Breathe: FAQ: Clean Indoor Air Act: Environmental Health in Minnesota Page 6 of6 The Minnesota Clean Indoor Air Act does not require employers to provide areas for employees to smoke. Please contact the Minnesota Department of Health, at 651-201-4601 or 1-800-798-9050 or by email atmciaa(q)health.state.mn.us. For more information about the MCIAA please visit our website at http://www.health.state.mn.us/divs/ehlindoorair/mciaa/ftblindex.html Minnesota Department of Health P.O. Box 64975 St. Paul, MN 55164-0975 651-201''-4601 800..;.798-9050 (toll-free outside the metro area) 651-201-5797 (TIY) mciaa@)health.state.mn.us Go to > !QQ For questions about this page or indoor air quality, please contact the Indoor Air Unit at indoorair(6lhealth.state.mn.us, 651-201-4601 or 800-798-9050. Updated Friday, 21-Sep-2007 09:27:12 CDT httn-/I"",,,u ho",lth ~..ntb.............. uII"I/,.1.:...,,,/nJ.../.:_A___....:._I__:.........I.c....L/.c__ L..._l