No preview available
HomeMy WebLinkAboutOrdinance 4512 ORDINANCE NO. 4512 AN ORDINANCE TO AMEND §95 .05 REGULATION OF SMOKING IN CERTAIN PUBLIC PLACES OF THE CODE OF FAYETTEVILLE AND TO ENACT A REPLACEMENT §95 .05 REGULATION OF SMOKING IN MOST PUBLIC PLACES AND PLACES OF EMPLOYMENT WHEREAS, the Fayetteville City Council has determined that further restrictions of smoking in enclosed public places and work places are needed to protect the health and safety of citizens and to ensure the right of nonsmokers to breathe smoke free air; and WHEREAS, numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory disease, and lung cancer. The National Cancer Institute determined in 1999 that secondhand smoke is responsible for the early deaths of up to 65 ,000 Americans annually; and WHEREAS, secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. Children exposed to secondhand smoke have an increased risk of asthma, respiratory infections, sudden infant death syndrome, developmental abnormalities, and cancer. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS : Section 1 . That the City Council of the City of Fayetteville, hereby repeals §95.05 Regulation of smoking in certain public places of the Fayetteville Code in its entirety and enacts the following new §95.05 Regulation of smoking in most public places and places of employment of the Fayetteville Code to replace it: "Sec. 95.05. Regulation of smoking in most context clearly indicates or requires a different public places and places of employment. meaning. (A) Definitions. For the purpose of this chapter, the Bar. An establishment, whether termed a following definitions shall apply unless the private club or public establishment, that is devoted primarily to the sale and service of alcoholic beverages for on-premises (B) Prohibition of Smoking in public places and consumption and where the service of food, if places of employment any, is incidental to the consumption of such beverages. Smoking is prohibited in all public places, places of employment, and city vehicles Restaurant. An eating establishment, unless specifically exempted in subsection (C). including but not limited to dining establishments, private clubs, coffee shops, cafeterias, sandwich (C) Exemptions. shops, private and public cafeterias, which gives or offers for sale food to the public, guests, or The following types of establishments employees, as well as non-residential kitchens are exempted from the smoking prohibition of this and catering facilities in which food is prepared ordinance: on the premises for serving elsewhere. The term "restaurant" shall include a bar area within the (1 ) Bars restaurant. (2) Retail tobacco stores Enclosed area. All space partially enclosed (D) Duties of Managers. between a floor and ceiling that is enclosed on all sides by solid walls or windows (exclusive of (1 ) The manager of a place within which doorways), which extend from the floor to the smoking is prohibited by this ordinance ceiling. shall place "No Smoking" or "Smoke Free" signage at the major entrance and Manager. The owner, lessee, or other other appropriate places within the person in charge of a public place. establishment. Place of employment. An enclosed area (2) The manager of a public place in which under the control of a public or private employer smoking is prohibited or restricted shall that employees normally frequent during the not knowingly permit or fail to make course of employment, including, but not limited reasonable efforts to prevent smoking to, work areas, employee lounges, restrooms, in any area where smoking is prohibited. conference rooms, meeting rooms, hallways, classrooms, and employee cafeterias. A private (E) Enforcement. residence is not a "place of employment" unless it is used as a child care, adult day care, or health (1 ) City police shall enforce this care facility. A "bar" and a "retail tobacco store" section pursuant to their normal are not places of employment for purposes of this police power. Section. An enclosed private office that is not regularly entered or occupied by a nonsmoking (2) If a manager knowingly permits or fails employee is not a place of employment for to make reasonable efforts to prevent purposes of this section. smoking by the establishment's customers or employees where Public place. prohibited by this section, the manager shall be guilty of a violation and a fine or (1 ) Any enclosed indoor area that is used not more than $100.00 per occurrence. by the public or private club members and guests, except designated hotel and (3) A person who smokes in an area where motel guest rooms. smoking is prohibited by provisions of this section shall be guilty of a violation (2) Any swimming pool owned or operated punishable by a fine not exceeding fifty by the city. ($50.00) dollars per occurrence. Retail Tobacco Store. A retail store utilized (4) In addition to the fines established by primarily for the sale and use of tobacco this Section, multiple violations of this products and accessories and in which the Section by a person who owns, sale of other products is merely incidental. manages, operates or otherwise controls a public place or place of Smoking. Holding a lighted pipe, cigar, or employment may result in the cigarette of any kind, or lighting, or emitting suspension or revocation of any permit or exhaling the smoke of, a pipe, cigar, or or license issued for the premises on cigarette of any kind. which the violation occurred. 2 (F) Jurisdiction. (G) Effective date. This section is not applicable nor enforceable This ordinance shall take effect on February in federal, state or county buildings 1 , 2004. including all facilities owned or operated by the University of Arkansas. PASSED and APPROVED this the 2"d day of September, 2003 . APPROVED : By: L4— �V DAN COODY, Mayor ATTEST: By: SOGNURA SMIT , City Clerk !�+ 3 PUBLIC NOTICE A1ICROFILMED CITY OF FAYETTEVILLE, ARKANSAS PROCLAMATION OFFICE OF THE MAYOR OF THE CITY OF FAYETTEVILLE, ARKANSAS. TO THE PEOPLE OF THE CITY OF FAYETTEVILLE, ARKANSAS, GREETINGS: WHEREAS, a special election was held on February 10, 2004, which submitted the referendum on Ordinance No. 4512 to the qualified voters of the City of Fayetteville. NOW, THEREFORE, I, Dan Coody, Mayor of the City of Fayetteville, by virtue of the authority vested in me by law, do hereby proclaim the following to be the results of the February 10, 2004 special election as to the referendum on Ordinance No. 4512 (Smoking Ordinance). For Referred Ordinance No. 4512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51972 Against Referred Ordinance No. 4512. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,563 IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of my office to be affixed this 26th day of February, 2004. DAN COODY, M r CERTIFICATE OF WASHINGTON COUNTY BOARD OF ELECTION COMMISSIONERS ASCE ( G AND DECLARING RESULTS OF SPECIAL ELECTION IN AYETTEVH.LE, WASHINGTON CO~, 3 10 FEBRUARY 10, 2004 KAREN COMBS PRITCHARD CO. & PROBATE CLERK WA'S' ! GTON CO . ARK . STATE OF ARKANSAS ) COUNTY OF WASHINGTON ) We, the undersigned members of the Board of Election Commissioners of Washington County, Arkansas, do hereby certify that: Returns of the votes of the Special Election in Fayetteville, Washington County, Arkansas have been delivered to us by the County Clerk; We ascertain and declare the results of the election to be: On the question of the smoking ordinance in Fayetteville. FOR 5972 AGAINST 5563 We further certify that the polls were open from 7:30 A_ M until 7:30 P.M, that only the duly appointed Election officials made due returns of the votes cast, and that we have canvassed the votes as required by law. IN TESTIMONY WHEREOF, we have hereinto set our hands this 113thday of February, 2004 SWGT CTION CO NERS N OUNTY, S CERTIFICATEI CERTIFY THAT THIS NSTRUMENT ISATRUECOPYOFTHE l�u � w, an FIL! N,1SGMe r K n mtu Pr hard - County Clerk O.C. Peter Loris; Mem r PUBLIC NOTICE CITY OF FAYETTEVILLE, ARKANSAS PROCLAMATION OFFICE OF THE MAYOR OF THE CITY OF FAYETTEVILLE, ARKANSAS. TO THE PEOPLE OF THE CITY OF FAYETTEVILLE, ARKANSAS, GREETINGS: WHEREAS, a special election was held on February 10, 2004, which submitted the referendum on Ordinance No. 4512 to the qualified voters of the City of Fayetteville. NOW, THEREFORE, I, Dan Coody, Mayor of the City of Fayetteville, by virtue of the authority vested in me by law, do hereby proclaim the following to be the results of the February 10, 2004 special election as to the referendum on Ordinance No. 4512 (Smoking Ordinance). For Referred Ordinance No. 4512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,972 Against Referred Ordinance No. 4512. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,563 IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of my office to be affixed this 26th day of February, 2004. 11 DAN COODY, M r FAYETTEVILLE 111E CRY OF FAYMEVIUE ARKANSAS Ka wuiiAMs, CnY ATTORNEY DAVID WmTAIGM Assr. ary ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: Dan Coody, Mayor City Council FROM: Kit Williams, City Attorney DATE: November 25, 2003 !!!!!! RE: Referendum Election requires ordinance to be held in abeyance until citizens' vote Amendment 7 states: "Any measure referred to the people by referendum petition shall remain in abeyance until such vote is taken." Although this section of Amendment 7 refers to statewide referendums, there is no direct reference in Amendment 7 to municipal referendums on this subject. Thus, I conclude this language should also control municipal ordinances such that Ordinance No. 4512 shall not go into effect on February 1 , 2004, as stated therein, but must "remain in abeyance" until the special election. Amendment 7 states the following concerning the effective date of a measure submittedt0 a vote of the people: "Majority — Any measure submitted to the people as herein provided shall take effect and become a law when approved by a majority of the votes cast upon such measure, and not otherwise, and shall not be required to receive a majority of the elector; voting at such elections. Such measures shall be operative on and after the 3e day after the election at which it is approved, unless otherwise specified in the act." Since Ordinance No. 4512 specified it would be operative on February 1 , 2004, the thirty day period after an election quoted above is not controlling. If the special election is held after February 1 , 2004, and the ordinance is not rejected, it will be in effect as soon as the election results are certified and published. City of Fayetteville, Arkansas Memo To: Dan Coody, Mayor City Council From: Sondra Smith, City Clerk Date: November 24, 2003 Re: Petition for Referendum on Smoking Ordinance My office has spent innumerable hours reviewing thousands of signatures on the petitions presented by Free Choice Fayetteville requesting a referendum on the recently passed smoking ordinance. We had to reject signatures on petitions that were not properly notarized just as we had to reject the first batch of petitions which had no ordinance attached as required by Amendment 7 and state law. In my analysis of these petitions, I have been guided by Arkansas Supreme Court decisions which require a liberal evaluation of the petitions so that the goals of citizen review of government action is promoted. Amendment Ts requirements "must be construed with liberality in order that its purposes may be well effectuated." Yarbrough v. Witty, 336 Ark. 479, 987 S.W. 2d 2571 260 ( 1990). Strict or technical construction of Amendment 7 and its implementing statutes has been rejected by the Arkansas Supreme Court. Leigh v. Hall, 232 Ark. 5583 339 S.W. 2d 104, 109 ( 1960). I divided the petitions submitted to my office and filed on October 30, 2003 into two groups. The first group of new, original petitions with properly attached ordinances contained about 2,448 apparently properly signed names of registered voters of Fayetteville. This was 484 signatures short of the necessary 2,932 valid signatures needed. The second group of petitions filed on October 30, 2003, contained about 1 ,938 signatures. These were photocopies of the petitions filed earlier without attaching the ordinance as required by state law. These photocopied petitions now had the ordinance and an affidavit by the Canvasser attached which stated that the ordinance had been "attached to or provided to the petitioner when each person signed the petition. . . ." Although state law requires that the ordinance be attached (not just provided to the petitioner), I believe the action of providing the ordinance to each person when the voter signed the petition as swom to in each affidavit is substantial compliance with the state law. Providing the ordinance to each person when the voter signed accomplishes the same goals of voter information and prevention of confusion that our 90 year old state law was designed to ensure. Therefore, I believe these newly attached affidavits by the canvassers constitute a proper "amendment and correction" of the initially invalid petitions because they evidence a "substantial compliance with this requirement (attachment of the ordinance) of the statute." Townsend v. McDonald, 184 Ark. 273 ( 1931 ). My office then attempted to validate the signatures as we had on the originals filed on October 30, 2003 . We eliminated duplications (many voters signed both petitions). We eliminated registered voters who became registered after they signed the petition or who failed to date the petition so that we could not determine whether their recent voter registration occurred before or after they signed the petition. In all of our evaluations of the petitions, we accepted the affidavit of the canvasser as true. Every affidavit is a swom statement that the canvasser personally witnessed each voter sign the petition. Thus, we did not question the accurateness of any signature on a properly sworn to petition. My office is only supposed to examine what is presented and filed in my office to see if the referendum petition is sufficient. Information or allegations about questionable signatures or questions of canvassers is a subject for litigation before a Judge, and not within my power or responsibility as Fayetteville City Clerk. CONCLUSION Combining all of the petitions, both originals and photocopies of the earlier petitions with the ordinance and new affidavits attached yielded slightly more than the 2,932 signatures required to call a special referendum election. Therefore, as Fayetteville City Clerk, I certify that the Referendum Petition concerning Ordinance #4512 passed on September 2, 2003 is SUFFICIENT pursuant to the requirements of Amendment 7 and Arkansas law. 0 Page 2 Bernard Sulliban III 2857 Peg Lane Fayetteville, AR. 72703 November 17, 2003 Mayor's office 113 W. Mountain St. Fayetteville, AR. 72703 cc: Kit Williams, Sondra Smith, Don Marr, Shirley Jones Dear Mayor Coody: I write to you today to speak on the matter of the recently passed city ordinance on smoking. First, I would like to say, "thank you" for your implicit support for the revised ordinance. I would also like to thank Alderman Marr and Alderwoman Jones for having brought this resolution to the council for its considered deliberation. Furthermore, I would like to thank Alderman Marr for his responsiveness to the opposition to the original version by amending the resolution to exclude "bars". Having attended the first two city council meetings on July 15 and Aug 5 (in their entirety), I heard many opinions, several case examples, and both sides of the major arguments of 'public health' VS. 'property rights' just as you have. I even spoke at the end of the August meeting when a fellow student stated he represented 15,000 people who weren't there but wanted to be able to smoke. I fell compelled to refute his characterization based upon my years of experience among my peers on campus. On August 26, ASG Resolution 5, "A Resolution to O000se Unfair Restrictions Being Placed on Fayetteville Businesses", was introduced to the full Senate of the Associated Student Government (the legislative body of student government at the of U of A). It was subsequently passed that same night by a margin of only 2 votes: 15 for, 13 opposed. However, what you are probably not aware of is that this is the second roll call vote tally. The first roll call vote indicated it failed: 13 for, 14 opposed. But for a procedural error that should not have allowed for senators to change their vote, this resolution should have failed. It is this resolution that Stoney Rawlins, ASG President, spoke on behalf of at the September 2 council meeting. On November 3, Sondra Smith, Fayetteville city clerk, was kind enough to receive me for an interview about her decision to tum away the recently turned in signatures for the first attempted petition to compel a referendum. She stated that it felt like the right thing to do to split the difference between the minimum allotment of 10 days and the maximum of 30 days. She also pointed out the section of state code regarding petition filings. In keeping with the equitable decisions that Miss Smith made on the lack of compliance with the statute on filing methods, as well as her compromise to allow for 20 — the median of the 10 to 30 day range allotted, ft seems inconsistent — irresponsible even — to receive and accept signatures upon a petition that a canvasser herself admitted were not signed in her presence. When asked to, she also could not explain the apparent similar handwriting for members of the same households on some of the petitions, nor would she comment on the fact that there were apparent inconsistencies regarding the date(s) upon which some of the signings occurred. Even more troubling, she was patently unhelpful with regard to the locations she purportedly visited to attain the signatures she turned in. but claims to know one site where she left a petition. It is important if interest in having a referendum is genuine, that it be substantively supported by a legitimately proffered petition that has met all requirements of the state statutes governing it. Anything less makes most everything else appear subjective, arbitrary, and moot. I am available for further communication and have enclosed a business card for your convenience so that you may reach me at a later date, via e-mail, if preferable. Sincerely, Bernard Sulliban III Off-campus Senator, ASG Legislative Clerk Senior Ticketing Representative, Walton Arts Center MICROFILMED City of Fayetteville, Arkansas 113 W. Mountain Fayetteville, AR 72701 NEWS RELEASE October 9, 2003 Contact Person: Sondra Smith, City Clerk p1n�Ga� 575-8323 Petitions for Referendum Ordinance No. 4512 Smoking in Certain Public Places After reviewing state law, Supreme Court decisions and prior practice of the Fayetteville City Clerk's office, I must exclude all signatures on petitions which did not have a copy of the amended smoking ordinance attached when the petitions were filed in my office. This excludes all signatures so that the prima facie sufficient petitions submitted are not sufficient under the law. Amendment 9 states that if a city clerk decides any petition to be insufficient, the city clerk shall without delay notify the sponsors of the petition and permit at least ten days for correction or amendment I believe that the required liberal construction of Amendment 7 gives a city clerk the right to permit "at least" ten days from the date of notification for the proponents to gather additional signatures to make a sufficient petition. Side almost 3,000 legal signatures of qualified, registered voters of Fayetteville must be _ obtained upon proper petitions with the ordinance attached, I believe the proponents should be granted until October 30, 2003 by the close of business (5:00 pm), to file proper petitions in my office.