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Home My WebLink About184-03 RESOLUTIONRESOLUTION NO. 184-03 A RESOLUTION SETTING THE DATE FOR THE SPECIAL ELECTION FOR THE REFERENDUM ELECTION ON ORDINANCE NO. 4512 WHICH AMENDED §95.05 OF THE FAYETTEVILLE CODE TO REGULATE SMOKING IN MOST PUBLIC PLACES AND PLACES OF EMPLOYMENT AND REQUESTING THE WASHINGTON COUNTY BOARD OF ELECTION COMMISSIONERS TO PLACE THIS REFERENDUM ON THE BALLOT WHEREAS, Fayetteville City Clerk Sondra Smith has diligently verified and counted the number of Fayetteville Registered Voters who signed referendum petitions calling for a special referendum election on Ordinance No. 4512; and WHEREAS, Fayetteville City Clerk Sondra Smith certified on November 24, 2003 that the referendum petition was sufficient pursuant to Amendment 7 and state law. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS• Section 1. That the City Council of the City of Fayetteville, Arkansas hereby Orders that in accord with the certified sufficient referendum petition, a special election called for in such referendum petition, shall be held on February 10, 2004, to determine by vote of the qualified electors of the City of Fayetteville, Arkansas, whether Ordinance No. 4512, amending §95.05 of the Fayetteville Code to more strictly regulate smoking in most public places and places of employment (attached as Exhibit A) shall be approved or rejected. Section 2. That the City Council of the City of Fayetteville, Arkansas hereby requests the Washington County Board of Election Commissioners, pursuant to A.C.A. §7-9-117 to place Ordinance No. 4512 upon the ballot followed by thesc words: FOR REFERRED ORDINANCE NO. 4512 AGAINST REFERRED ORDINANCE NO. 4512 U ;�t Fti Erye; �‘PASSED and APPROVED this god day of December, 2003. <<�„S APP' ' ED: T: sPist • SONDRA SMITH, City Clerk By: DAN COOD ' , ayor RESOLUTION NO.184-03 A RESOLUTION SETTING THE DATE FOR THE SPECIAL ELECTION FOR THE REFERENDUM ELECTION ON ORDINANCE NO. 4512 WHICH AMENDED §95.05 OF THE FAYETTEVILLE CODE TO REGULATE SMOKING IN MOST PUBLIC PLACES AND PLACES OF EMPLOYMENT AND REQUESTING THE WASHINGTON COUNTY BOARD OF ELECTION COMMISSIONERS TO PLACE THIS REFERENDUM ON THE BALLOT WHEREAS, Fayetteville City Clerk Sondra Smith has diligently verified and counted the number of Fayetteville Registered Voters who signed referendum petitions calling fora special referendum election on Ordinance No. 4512; and WHEREAS, Fayetteville City Clerk Sondra Smith certified on November 24, 2003 that the referendum petition was sufficient pursuant to Amendment 7 and state law. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby Orders that in accord with the certified sufficient referendum petition, a special election called for in such referendum petition, shall be held on February 10, 2004, to determine by vote of the qualified electors of the City of Fayetteville, Arkansas, whether Ordinance No. 4512, amending §95.05 of the Fayetteville Code to more strictly regulate smoking in most public places and places of employment (attached as Exhibit A) shall be approved or rejected. Section 1. That the City Council of the City of Fayetteville, Arkansas hereby requests the Washington County Board of Election Commissioners, pursuant to A.C.A. §7-9-1 17 to place Ordinance No. 4512 upon the ballot followed by these words: FOR REFERRED ORDINANCE NO. 4512 AGAINST REFERRED ORDINANCE NO. 4512 "E I TF/; :s PASSED and APPROVED this 2nd day of December, 2003. t1 • 10 11 �L43r...,.; +r.. - 1 S RA SMITH, City Clerk By • • 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 WIIEREAS, 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 smokc is responsible for the early deaths of up to 65,000 Americans annually; and WIIEREAS, 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 TIIE 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 following definitions shall apply unless the Bar. An establishment whether termed a private club or public establishment, that is devoted primarily to the sale and service of alcoholic beverages for on -premises consumption and where the service of food, if any, is incidental to the consumption of such beverages. Restaurant. An eating establishment, including but not limited to dining establishments, private dubs, coffee shops, cafeterias, sandwich shops, private and public cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as non-residential kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term "restaurant" shall include a bar area within the restaurant. Enclosed area. All space partially enclosed between a floor and ceiling that is enclosed on all sides by solid walls or windows (exclusive of doorways), which extend from the floor to the ceiling. Manager. The owner, lessee, or other person in charge of a public place. Place of employment. An enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, work areas employee lounges, restrooms, conference rooms, meeting rooms, hallways, classrooms, and employee cafeterias. A private residence is not a "place of empbymenr unless it is used as a child care, adult day care, or health care facility. A 'bar and a 'retail tobacco store' are not places of employment for purposes of this Section. An enclosed private office that is not regularly entered or occupied by a nonsmoking employee is not a place of employment for purposes of this section. Public place. (1) Any enclosed indoor area that is used by the public or private club members and guests, except designated hotel and motel guest rooms. (2) Any swimming pool owned or operated by the city. Retail Tobacco Store. A retail store utilized primarily for the sale and use of tobacco products and accessories and in which the sale of other products is merely incidental. Smoking. Holding a lighted pipe, cigar, or cigarette of any kind, or lighting, or emitting or exhaling the smoke of, a pipe, cigar, or cigarette of any kind. 2 (B) Prohibition of Smoking in public places and places of employment Smoking is prohibited in all public places, places of employment, and city vehicles unless specifically exempted in subsection (C). (C) Exemptions. The following types of establishments are exempted from the smoking prohibition of this ordinance: (1) Bars (2) Retail tobacco stores (D) Duties of Managers. (1) The manager of a place within which smoking is prohibited by this ordinance shall place "No Smoking" or "Smoke Free signage at the major entrance and other appropriate places within the establishment. (2) The manager of a public place in which smoking is prohibited or restricted shall not knowingly permit or fail to make reasonable efforts to prevent snaking in any area where smoking Is prohibited. (E) Enforcement. (1) City police shall enforce this section pursuant to their normal police power. (2) If a manager knowingly permits or fails to make reasonable efforts to prevent smoking by the establishment's customers or employees where prohibited by this section, the manager shall be guilty of a violation and a fine or not more than $100.00 per occurrence. (3) A person who smokes In an area where smoking is prohibited by provisions of this section shall be guilty of a violation punishable by a fine not exceeding fifty ($50.00) dollars per occurrence (4) In addition to the fines established by this Section, multiple violations of this Section by a person who owns, manages, operates or otherwise controls a public place or place of employment may result in the suspension or revocation of any permit or license issued for the premises on which the violation occurred. • • (F)' Jurisdiction. (G) Effective date. This section is not applicable nor enforceable in federal, state or county buildings including all facilities owned or operated by the University of Arkansas This ordinance shall take effect on February 1, 2004. PASSED and APPROVED this the 2" day of September, 2003. APPROVED. By: ATTEST: By: SONI)RA SMITH, City Clerk 3 ter./ DAN COODY Mayor NORTE/VEST ARKANSA4EDITION Arkansas Democrat (razet#e AFFIDAVIT OF PUBLICATION I, �Z/) z, E10/2X) 2 do solemnly swear that I am Legal Clerk of the Arkansas Democrat-Gazette/Northwest Arkansas Times newspaper, pnnted and published in Lowell, Arkansas, and that from my own personal knowledge and reference to the files of said publication, that advertisement of: /eh/!n) /N-03 /0-/0-03 . Po# 63- •V3/Oq ,/ ** Publication Charge: $ /�1 was inserted in the regular editions on Subscribed and sworn to before me this /0fsY day of pece--.bfr Notary Public My Commission Expires: 07A00/2 ** Please do not pay from Affidavit. An invoice will be sent. Official Seal SEAN -MICHAEL ARGO Notary Public -Arkansas WASHINGTON COUNTY My Commission Expires 07-25-2013 2003. RECEIVED DEC 1 0 2003 CITY OF FAYETTEVILLE CT' CLERK'S OFF/CF AW$OLy7gw NO. 18403 A PESCl010N SETTING THE DATE FOR Tr'E SPECIAL E:.EC ' RCN FOR THE REFERENDUM ELECTION CN ORDNANCE NO. 4512 WHCH ANENDEO 495.05 OF 'HE FAYETTE ALLE CODE TO REGULATE $MCtCNG IN MOST PU9LC PLACES AND RACES CE EMPLOYMENT MD REOUEST1NG THE WA$ruNGTON COCNTY BOARD OF ELELIUN COMMIS. ayfy of le SCN4ERS TO P,ACE `HI$ RE:ERENU,H ON THE fl4LOT "7o•�•e Fayelle+ae Cly Clerk Salad Srn th has Cep:nay vaned and cameo The Roar 0' FB• y&b.9e Rogsteoo W:es veva sped n'aan..n oeeta's caLrg to a soeaW relaortm eecllon an Ort'w ce No. 4512. end WHEREAS, Feyenevae Gly Oak Saco 9n'„h Masted on !inventor 24. 21703 that :he rSay,oun onlatn was menet pursuant to Mercirrniat 7 alp state law N OW, 7K' IWPONN. Y R AR•01RED BY 7X0 CRY comae oI 711R CT' Of raTRT- *.YLLII..NRANSA/0 SRYbn 1 That the City Councf o' Tho City of Fayenemo. Msaisa, hwohy ONgs Ing' in sada Vete Tho anted &Malerw r8fe'Ta,n onion. a soOrS dect[n CafoO tor an dual telecom an Natal. gad bo held on Fealyy 10. 2004. :o anonym by nap o LNG dual:mei Mecca of Iho Cty of Feyoneaao. Manses, moan Ordnance No. 4512. emend 'g 495 05 01 ale FaNnevee Code to nae SMC nag - An emce)g n most medic daces MO penes o' wrf oytnae (atteceed as E Ctbr Al sta, be Ooaa90 Or rOIBCIoo. molal 2 hal The Gly Cat nof the Cry cf Pawnee°. N':srGas helm repasts Cat Wnsh g:on Canty Boma of Erco, Can ressoens. 'meanie :3 A CA 47.9-117 to Dice On:ma ce No 4512 Axe ire baIol lois et by Mose woos OR REFERRED ORDINANCE C. 4512 AGNNST REFERRED ORDNANCE NO. 4512 PANNED sty APPROVED on 2 i day a Devrem aJ. APPROJEO BY DAX COOOT, Meer ATTEST: ay 1101W 1A GATX, CAy.0101, 212 NORTH EAST AVENUE • P.O. BOX 1607 • FAYETTEVILLE, ARKANSAS 72702 • (501) 442-1700 • • • ,anti -v N • MIC I', OFILA D Rto . 18163 CERTIFICATE OF WASHINGTON COUNTY BOARD OF 5p `fes ELECTION COMMISSIONERS ASCERfTG p AND DECLARING RESULTS OF SPECIAL ELECTION INTAYETTEYILLE, -e k -%^a.. WASHINGTON COUI 3 API 9 10 chow FEBRUARY 10, 2004 KAREN COMBS PRITCHARD CO. & PROBATE CLERK WASHINGTON Cn 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 appointcd 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 hercinto set our hands this 13thday of February, 2004 CERTIFICATE I CERTIFY THAT THIS STRUME„(VT IS A TRUE COPY OF THE FILj^ jNIS % IC CC ft�pmbs P ' hard -County Clerk 'j�--�� DC • • • February 13, 2004 Dan Coody Mayor, City of F City Hall 113 W. Mountain Fayetteville, AR WASHINGTON COUNTY ELECTION COMMISSION County Courthouse, Suite 140 280 North College Ave. Fayetteville, AR 72701 .ayetteville Street 72701 Dear Mayor Coody: RECEIVED FEB 2 5 2004 COF FAYETTLLE ITY CLERK'S OFFICE liSeceN' CITY O OR s OFFtGE v, LLE The Washington County Election Commission is authorized to request reimbursement from each city or incorporated town in Washington County for the cost to put on a special election initiated by that city or town. Reference Election Laws of Arkansas 1995 Edition, Section 14-42-310. Attached is a sheet summarizing the costs to the Election Commission for the February 10, 2004 special elections. Please note that Fayetteville's share of the costs comes to $18,405.00. Please have a check made out for that amount payable to the Washington County Election Commission and mail it to us at the above address. If you have any questions, please call. Thank you, va,74,4 Nancy Varvil Election Coordinator Telephone: 479-444-1766 FAX: 479-973-8440 Election Expenses for the Feb. 10, 2004 special election Entity to be billed Ballots cast Percent of ballots cast Ballot Stock and punting Tabulator program Advertisements Pollworkers and supervisor mileage Election night workers Pre-election supplies Staff Total Springdale 1997 0.14 $ 2,728.61 S 166.05 $ 188.00 $ 5,778.90 $ 47.60 $ 13.65 $ 52.50 $8,975.31 Fayetteville Elm Springs 11534 0.83 $ 5,931.40 S 984.43 $ 366.00 $ 10,448.80 $ 282.20 $ 80.93 $ 311.25 $ 18,405.00 115 0.01 $ 368.48 $ 11.86 $ 134.00 $ 442.35 $ 3.40 S 0.98 S 3.75 Elkins 298 0.02 $ 460.59 S 23.72 $ 183.00 $ 547.50 $ 6.80 $ 80.93 $ 7.50 $ 964.82 $1,310.04 Totals 13,949 1 489.08 186.06 871.00 ,217.55 340.00 97.50 375.00 $29,576.19 Note: The tabulator computer programs, election night workers, pre-election supplies and central staff costs are prorated among the entities having the elections. The proportions paid by each entity are calculated by dividing the number. of ballots cast in each election by the total number of ballots cast in all elections on that day. CITY *FORNEY AGENDA REQUA FORM FOR: COUNCIL MEETING OF DECEMBER 2, 2003 FROM: CITY ATTORNEY KIT WILLIAMS ORDINANCE OR RESOLUTION TITLE AND SUBJECT: A Resolution Setting The Date For The Special Election For The Referendum Election On Ordinance No. 4512 Which Amended §95.05 Of The Fayetteville Code To Regulate Smoking In Most Public Places And Places Of Employment And Requesting The Washington County Board Of Election Commissioners To Place This Referendum On The Ballot APPROVED FOR AGENDA: 1/7zS/o3 Date Mayor Date • • RESOLUTION NO. A RESOLUTION SETTING THE DATE FOR THE SPECIAL ELECTION FOR THE REFERENDUM ELEC'T'ION ON ORDINANCE NO. 4512 WHICH AMENDED §95.05 OF THE FAYETTEVILLE CODE TO REGULATE SMOKING IN MOST PUBLIC PLACES AND PLACES OF EMPLOYMENT AND REQUESTING THE WASHINGTON COUNTY BOARD OF ELECTION COMMISSIONERS TO PLACE THIS REFERENDUM ON THE BALLOT WHEREAS, Fayetteville City Clerk Sondra Smith has diligently verified and counted the number of Fayetteville Registered Voters who signed referendum petitions calling for a special referendum election on Ordinance No. 4512; and • WHEREAS, Fayetteville City Clerk Sondra Smith certified on November 24, 2003 that the referendum petition was sufficient pursuant to Amendment 7 and state law. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCII, OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby Orders that in accord with the certified sufficient referendum petition, a special election called for in such referendum petition, shall be held on February 10, 2004, to determine by vote of the qualified electors of the City of Fayetteville, Arkansas, whether Ordinance No. 4512, amending §95.05 of the Fayetteville Code to more strictly regulate smoking in most public places and places of employment (attached as Exhibit A) shall be approved or rejected. Section 1. That the City Council of the City of Fayetteville, Arkansas hereby requests the Washington County Board of Election Commissioners, pursuant to A.C.A. §7-9-117 to place Ordinance No. 4512 upon the ballot followed by these words: FOR REFERRED ORDINANCE NO. 4512 AGAINST REFERRED ORDINANCE NO. 4512 PASSED and APPROVED this 2"d day of December, 2003. ATTEST: By: SONDRA SMITH, City Clerk APPROVED: Cit By:Os' DAY, Mayor rl • • 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 following definitions shall apply unless the Bar. An establishment, whether termed a private club or public establishment, that is devoted primarily to the sale and service of • • alcoholic beverages for on -premises consumption and where the service of food, if any, is incidental to the consumption of such beverages. Restaurant. An eating establishment, including but not limited to dining establishments, private clubs, coffee shops, cafeterias, sandwich shops, private and public cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as non-residential kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term "restaurant" shall include a bar area within the restaurant. Enclosed area. All space partially enclosed between a floor and ceiling that is enclosed on all sides by solid wails or windows (exclusive of doorways), which extend from the floor to the ceiling. Manager. The owner, lessee, or other person in charge of a public place. Place of employment. An enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, work areas employee lounges, restrooms, conference rooms, meeting rooms, hallways, classrooms, and employee cafeterias. A private residence is not a "place of employment' unless it is used as a child care adult day care, or health care facility. A'bar and a 'retail tobacco store' are not places of employment for purposes of this Section. An enclosed private office that is not regularly entered or occupied by a nonsmoking employed is not a place of employment for purposes of this section. Public place. (1) Any enclosed indoor area that is used by the public or private club members and guests, except designated hotel and motel guest roams. (2) Any swimming pool owned or operated by the city. Retail Tobacco Store. A retail store utilized primarily for the sale and use of tobacco products and accessories and in which the sale of other products is merely incidental. Smoking. Holding a lighted pipe, cigar, or cigarette of any kind, or lighting, or emitting or exhaling the smoke of, a pipe, cigar, or cigarette of any kind. (B) Prohibition of Smoking in public places and places of employment Smoking is prohibited in all public places, places of employment, and city vehicles unless specifically exempted in subsection (C). (C) Exemptions. The following types of establishments are exempted from the smoking prohibition of this ordinance: (1) Bars (2) Retail tobacco stores (D) Duties of Managers. (1) The manager of a place within which smoking is prohibited by this ordinance shall place No Smoking" or 'Smoke Free' signage at the major entrance and other appropriate places within the establishment. (2) The manager of a public place in which smoking is prohibited or restricted shall not knowingly permit or fail to make reasonable efforts to prevent smoking in any area where smoking is prohibited. (E) Enforcement. (1) City police shall enforce this section pursuant to their normal police power. (2) If a manager knowingly permits or fails to make reasonable efforts to prevent smoking by the establishment's customers or employees where prohibited by this section, the manager shall be guilty of a violation and a fine or not more than $100.00 per occurrence. (3) A person who smokes in an area where smoking is prohibited by provisions of this section shall be guilty of a violation punishable by a fine not exceeding fifty ($50.00) dollars per occurrence. (4) In addition to the fines established by this Section, multiple violations of this Section by a person who owns, manages, operates or otherwise controls a public place or place of employment may result in the suspension or revocation of any permit or license issued for the premises on which the violation occured. • (F)' Jurisdiction. (G) Effective date. This section is not applicable nor enforceable in federal, state or county buildings including all facilities owned or operated by the University of Arkansas This ordinance shall take effect on February 1, 2004. PASSED and APPROVED this the 2nd day of September, 2003. APPROVED: By: ATTEST: By: o��,�al��, /k4ja/ SOND SNIT , City Clerk 3 • DAN COODY, Mayor • FAYETTEVtL.LE THE CITY 01 EAYEITEVIllE. ARKANSAS Kit Williams, City Attorney David Whitaker, Asst. City Attorney DEPARTMENTAL CORRESPONDENCE TO: Dan Coody, Mayor City Council FROM: Kit Williams, City Attorney DATE• November 24, 2003 RE: Setting Date for Special Election on Smoking Ordinance LEGAL DEPARTMENT Now that City Clerk Sondra Smith has certified that the second group of referendum petitions contain enough registered voters' signatures so that the petition is sufficient, a date for a special election needs to be fixed by the City Council. A.C.A. §7-9-111 (h) states: "Municipal referendum petition measures shall be submitted to the electors at a regular general election unless the petition expressly calls for a special election. If the date set by the petition does not allow sufficient time to comply with election procedures, then the city or town council shall fix the date for any special election on the referendum measure. The date of any special election shall not be more than one hundred twenty (120) calendar days after the date of certification of sufficiency by the municipal clerk." • • Since the petition did request a Special Election, one must be set by the City Council within one hundred twenty (120) calendar days from today. Another state law requires that any special election be held only on the second Tuesday of the month. By the way I calculate it, four days (December 9, January 13, February 10 and March 9) meet that requirement. However, ballots need to be printed and a period of early voting be allowed. February 10, 2004 and March 9, 2004 are certainly feasible. December 9th would be impossible. I am not certain whether the Washington County Election Commission could get everything printed and ready for early voting for the January 13, 2004 date. If the Clerk's certification of sufficiency is contested by Smoke Free Fayetteville in Court, I recommend the farthest away date of March 9, 2004, to give the Court and litigants as much time as possible to resolve any disputes in Court If an election is held without such resolution, the election controls, and no further review of any alleged problems with the petitions will be considered. This needs to be placed on your Agenda for December 2, 2003 so that the Washington County Election Commission can begin the necessary preparations (printing the ballots, etc.) for the special election. City of Fayetteville, Arkansas Memo To: Dan Coody, Mayor City Council From: Sondra Smith, City Clerk / oyt CzO„ -' 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 fust batch of petitions which had no ordinance attached as required by Amendment 7 and state law. In my analysis of these petitions, 1 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 7's 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 257, 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. 558, 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, onginal 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 sworn to m 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 sworn 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. • Page 2 FAYETTEVLE THE CITY Of FAYETTEVILLE. ARKANSAS KIT WII.LIAMS, CITY ATTORNEY DAVID WHITAKER, ASST CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: Dan Coody, Mayor City Council FROM: Kit Williams, City Attorneyg7 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, 1 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 submitted of 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 electors voting at such elections. Such measures shall be operative on and after the 30th 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 penod 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. • • RESOLUTION NO. A RESOLUTION SETTING THE DATE FOR THE SPECIAL ELECTION FOR THE REFERENDUM ELECTION ON ORDINANCE NO. 4512 WHICH AMENDED §95.05 OF THE FAYETTEVILLE CODE TO REGULATE SMOKING IN MOST PUBLIC PLACES AND PLACES OF EMPLOYMENT AND REQUESTING THE WASHINGTON COUNTY BOARD OF ELECTION COMMISSIONERS TO PLACE THIS REFERENDUM ON THE BALLOT WHEREAS, Fayetteville City Clerk Sondra Smith has diligently verified and counted the number of Fayetteville Registered Voters who signed referendum petitions calling for a special referendum election on Ordinance No. 4512; and WHEREAS, Fayetteville City Clerk Sondra Smith certified on November 24, 2003 that the referendum petition was sufficient pursuant to Amendment 7 and state law. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF TIIE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby Orders that in accord with the certified sufficient referendum petition, a special election called for in such referendum petition, shall be held on February 10, 2004, to determine by vote of the qualified electors of the City of Fayetteville, Arkansas, whether Ordinance No. 4512, amending §95.05 of the Fayetteville Code to morc strictly regulate smoking in most public places and places of employment (attached as Exhibit A) shall be approved or rejected. Section 1. That the City Council of the City of Fayetteville, Arkansas hereby requests the Washington County Board of Election Commissioners, pursuant to A.C.A. §7-9-1I 7 to place Ordinance No. 4512 upon the ballot followed by these words: FOR REFERRED ORDINANCE NO. 4512 AGAINST REFERRED ORDINANCE NO. 4512 PASSED and APPROVED this 2nd day of December, 2003. ATTEST: By: SONDRA SMITH, City Clerk APPROVED: Oa By: R DAI�OODY, Mayor u FAYETTEVTLLE THE CITY OF FAYETTEVIIIE, ARKANSAS DEPARTMENTAL CORRESPONDENCE To: Kit Williams City Attomey \�,y� From: Clarice Buffalohead-Pearman)1k City Clerk Division Date: 12/8/2003 Re: Res. No. 184-03 Attached please find an executed copy of the above resolution passed by the City Council on December 2, 2003, setting the date for the referendum special election on Ord. No. 4512. This resolution will be published in the Northwest Arkansas Times. If anything else is needed please let the city clerk's office know. /cbp cc: Nancy Smith, Internal Auditor