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cp12-03-2007 c . AGENDA HUTClllNSON CITY COUNCIL SPECIAL MEETING MONDAY, DECEMBER 3, 2007, 5:00 P.M. 1. CALL TO ORDER - 5:00 P.M. 2. NEW BUSINESS (a) CONSIDERATION FOR APPROVAL OF AMENDING ORDINANCE NO. 06-0449 - SMOKE FREE WORKPLACE ORDINANCE (WAIVE FIRST READING AND SET SECOND READING AND ADOPTION FOR DECEMBER 11, 2007) Action - Motion to reject - Motion to approve 3. ADJOURN . . . . . ORDINANCE NO. 07-0487 An Ordinance Amending Ordinance No. 06-0449, the Hutchinson Smoke-Free Workplace Ordinance, to Permanently Exclude the Provisions of the Smoke-Free Workplace Ordinance as It Applies to Hotels and Motels The City Council of Hutchinson, Minnesota hereby ordains that the provisions of Ordinance No. 06-0449 (the Hutchinson Smoke-Free Workplace Ordinance) shall be amended to exclude application of Ordinance No. 06-0449 as it applies to rented hotel and motel sleeping rooms permanently as indicated in the attached Exhibit A. Dated: ATTEST Steven W. Cook, Mayor Gary D. Plotz, City Administrator . . . SECTION 1. FINDINGS OF FACT AND PURPOSE. The City Council finds that: Tobacco smoke is a leading cause of disease in nonsmokers and a major source of indoor air pollution. Secondhand smoke causes premature death and disease in children and in adults. Secondhand smoke causes heart disease, lung cancer, respiratory infections, decreased respiratory function, and other health problems. In a2006 Report of the United States Surgeon General, U.S. Surgeon General Carmona concluded that "exposure to secondhand smoke remains an alarming public health hazard" and that "more than 126 million nonsmokers are still exposed." Numerous, nationally recognized medical and scientific authorities, including the American Medical Association, the U. S. Surgeon General, the National Institute on Occupational Safety and Health, the National Cancer Institute, the Environmental Protection Agency, the National Academy of Sciences, the National Toxicology Program, and the World Health Organization, have issued reports and health advisories addressing the adverse effects of exposure to secondhand smoke. It is estimated that between 24,300 and 71,900 low birth-weight or pre-term deliveries, about 202,300 episodes of childhood asthma (new cases and exacerbations), between 150,000 and 300,000 cases of lower respiratory illness in children, and about 789,700 cases of middle ear infections in children occur in the United States each year as a result of exposure to secondhand smoke. It is estimated that in the U.S., secondhand smoke causes about 46,000 (a range of 22,700 to 69,600) deaths per year from cardiac-related illnesses (including 700 to 1,240 deaths among Minnesotans), and 3,400 deaths per year from lung cancer. There is no known safe level of exposure to secondhand smoke; neither the separation of smokers and nonsmokers nor the introduction of new ventilation systems can eliminate the health hazards caused by secondhand smoke. The scientific evidence indicates that there is no risk-free level of exposure to secondhand smoke. Eliminating smoking in indoor spaces protects nonsmokers from exposure to secondhand smoke. Separating smokers from nonsmokers, cleaning the air, or ventilating buildings cannot eliminate exposure of nonsmokers to secondhand smoke. The only means of effectively eliminating health risks associated with indoor exposure is to prohibit smoking. Objective evidence does not support fears that restricting smoking in enclosed, indoor areas will harm a community's economy. On the contrary, many independent economic studies have shown that the elimination of smoking has no material economic impact on a community. These studies have drawn from the experience of hundreds of communities that have successfully eliminated smoking in workplaces and public places. Numerous U.S. cities, counties, and states, and many nations, have adopted laws ending all smoking in bars, restaurants, and other public places. 2 . . . Business owners have no legal or constitutional right to expose their employees and customers to airborne toxins, such as those found in secondhand smoke. On the contrary, employers have a common law duty to provide workers with a workplace that is not unreasonably dangerous. Restricting smoking in public places and places of work can help to model smoke-free behavior and to reduce youth exposure to secondhand smoke. Public health policies, ordinances, and other laws are part of the system by which people learn behaviors, guide youth, reduce health threats, and reinforce community norms that support the public's health. Accordingly, the City Council finds and declares that the purpose of this Ordinance is to: (1) Protect vulnerable populations, including employees, children, the elderly, and those with chronic health conditions; and (2) Affirm that the right to breathe has priority over the desire to smoke; and (3) Protect the public health, welfare and safety by better ensuring the ability of citizens to breathe safe and uncontaminated air; SECTION 2. DEFINITIONS. As used in this chapter: (1) "Food Establishment" means any establishment, however designated, engaged in the preparation or serving of food or beverages for consumption either on or off the premises, or anywhere consumption of food occurs on the premises. This term includes any establishment, however designated, that has an on-sale non-intoxicating malt liquor license, an on-sale intoxicating liquor license, an on-sale wine license, and/or a strong beer liquor license issued by the State of Minnesota, the municipality within which it is located, or McLeod County. (2) "Other Person in Charge" means the agent of the Proprietor authorized to provide administrative direction to, and general supervision of, the activities within a public place or place of work at any given time. (3) "Place of Work" means any enclosed, indoor location at which two or more individuals perform any type of a service for consideration of payment under any type of employment relationship including, but not limited to, an employment relationship with or for a private corporation, partnership, individual, or government agency. This term includes any location where two or more individuals gratuitously perform services for which individuals are ordinarily paid. Examples of a place of work include, but are not limited to, enclosed, indoor areas of an office, a factory, a hotel or motel (except rented sleepinQ rooms). a vehicle, a warehouse, and other locations where services are performed under an employment relationship. Enclosed, indoor areas of a private clubs and rooms used for private meetings or social functions are "places of work" if two or more persons acting under an employment relationship provide cleaning, catering, food or beverage service, maintenance, or other support services in such locations. 3 . . . (4) "Proprietor" means the party who ultimately controls, governs, or directs the activities within the public place or place of work, regardless of whether the party is owner or lessee of the public place or place of work. The term "proprietor" may apply to a corporation as well as an individual. (5) "Public Place" means any enclosed, indoor area used by the general public or serving as a place of work including, but not limited to, arenas, auditoriums, bars, bowling alleys, bingo halls, commercial establishments, educational facilities other than public schools, as defined in Minnesota Statutes 9120A.05, subdivisions 9, 11, and 13, hospitals, offices and other commercial establishments, pool halls, public conveyances, restaurants, retail stores, and common areas of rental apartment buildings. "Public Place" also means the outdoor dining or bar area of food establishments. (6) "Smoking" means the inhaling, exhaling, or combustion of any tobacco product, weed, plant, or any other similar article, including any cigar, cigarette, pipe, or any other similar article. Smoking includes possessing or carrying a lighted cigar, cigarette, pipe or any other lighted, smoking equipment. The term "smoking" does not include the use of tobacco by an enrolled member of a federally-recognized Indian tribe as part of a traditional Indian spiritual or cultural ceremony. SECTION 3. PROHIBITIONS. Subd. 1. Except as provided in Subdivision 2, smoking is prohibited in the following locations: A. Public places and places of work, including outdoor dining or bar areas of food establishments; B. Within fifteen (15) feet of entrances, exits, open windows, and ventilation intakes of public places and places of work; and C. Within fifteen (15) feet of any outdoor dining or bar areas of food establishments. Subd. 2. The prohibitions of this Section do not apply to the following places or situations: A. Private residences; B. Motor vehicles in private use; C. Motor vehicles that serve as a place of work for no more than one employee; D. Outdoor areas, except as provided in subdivision 1; aM E. The use of tobacco by an enrolled member of a federally-recognized Indian tribe as part of a traditional Indian spiritual or cultural ceremony; and F. A hotel or motel sleepinQ room rented to one or more Quests. 4 . . . SECTION 4. RESPONSIBILITIES OF PROPRIETORS AND OTHER PERSONS IN CHARGE. The proprietor or other person in charge of a public place or place of work where smoking is prohibited shall: 1. Post "No Smoking" signs that comply with the Minnesota Clean Indoor Air Act Rules, Minnesota Rules Part 4620.0500, as amended from time to time; 2. Ensure that ashtrays, lighters, matchbooks, or other smoking paraphernalia are not provided in areas where smoking is prohibited; 3. Place any receptacles for the deposit of extinguished cigarettes, cigars, pipe tobacco, and other smoking materials more than fifteen (15) feet from entrances, exits, open windows, and ventilation intakes of public places and places of work; and 4. Ask any person who smokes in any area where smoking is prohibited to refrain from smoking and, if the person does not refrain from smoking after being asked to do so, ask the person to leave. If the offending party refuses to leave, the proprietor or other person in charge shall handle the situation consistent with lawful methods for handling other persons acting in a disorderly manner or as a trespasser. Appropriate action shall include calling the Hutchinson Police Department for assistance. SECTION 5. PRIVATE PROHIBITIONS. Nothing in this Ordinance prevents the proprietor or other person in charge of any place, including, without limitation, any residence, motor vehicle, or outdoor space, from prohibiting smoking in any such place. SECTION 6. RETALIATION PROHIBITED. No person or employer shall discharge, refuse to hire, penalize, discriminate against, or in any manner retaliate against any employee, applicant for employment, or customer because the employee, applicant, or customer exercises any right to a smoke-free environment afforded by this Ordinance or other law. SECTION 7. EMPLOYEES' RIGHTS PRESERVED. An employee who consents to work in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other party. SECTION 8. OTHER LAWS. This Ordinance is intended to complement the Minnesota Clean Indoor Air Act, Minnesota Statutes, Sections 144.411 to 144.417, as amended from time to time. Nothing in this Ordinance authorizes smoking in any location where smoking is prohibited or restricted by other laws. 5 . . . SECTION 9. VIOLATIONS AND PENALTIES. Subd. 1. Smoking Where Prohibited. It is a violation of this Ordinance for any person to smoke in an area where smoking is prohibited by this Ordinance. Subd. 2. Proprietor or Other Person in Charge. It is a violation of this Ordinance for the proprietor or other person in charge of any premises subject to this Ordinance to fail to comply with the requirements of Section 4 of this Ordinance or to retaliate against an employee, applicant for employment or customer, as prohibited by Section 6 of this Ordinance. Subd. 3. Penalties. A. Violation of any provision of this Ordinance shall be a petty misdemeanor for the first offense. Any additional violation of any provision this Ordinance shall be a misdemeanor. Each day of violation constitutes a separate offense. B. Violation of any provision of this chapter by a licensee shall be adequate grounds for the denial, refusal to renew, suspension, or revocation of any food, liquor, or other business license. Subd. 4. Enforcement The provisions of this chapter shall be enforced by the Hutchinson Police Department or other enforcement agency designated by the City. Subd. 5. Injunctive Relief. In addition to the penalties provided in subdivision 3 of this Section, the City Attorney may bring a civil action against the proprietor or other person in charge of a public place or place of work to enjoin repeated or continuing violations of this Ordinance. SECTION 10. SEVERABILITY. If any portion of this Ordinance, or its application to any circumstances, is held invalid, the remaining provisions shall be considered severable and shall be given effect to the maximum extent possible. SECTION 11. EFFECTIVE DATE. The provisions of this Ordinance shall become effective J~ACl 1, 2007 upon adoption and publication. 6 . ORDINANCE NO. 07-0488 An Ordinance Amending Ordinance No. 06-0449, the Hutchinson Smoke-Free Workplace Ordinance, to Temporarily Exclude the Provisions of the Smoke-Free Workplace Ordinance as It Applies to Hotels and Motels The City Council of Hutchinson, Minnesota hereby ordains that the provisions of Ordinance No. 06-0449 (the Hutchinson Smoke-Free Workplace Ordinance) shall be amended to exclude application of Ordinance No. 06-0449 as it applies to rented hotel and motel sleeping rooms until March 1, 2008, as indicated in the attached Exhibit A. Dated: ATTEST: . Steven W. Cook, Mayor Gary D. Plotz, City Administrator . SECTION 1. FINDINGS OF FACT AND PURPOSE. . The City Council finds that: Tobacco smoke is a leading cause of disease in nonsmokers and a major source of indoor air pollution. Secondhand smoke causes premature death and disease in children and in adults. Secondhand smoke causes heart disease, lung cancer, respiratory infections, decreased respiratory function, and other health problems. In a 2006 Report of the United States Surgeon General, U.S. Surgeon General Carmona concluded that "exposure to secondhand smoke remains an alarming public health hazard" and that "more than 126 million nonsmokers are still exposed." Numerous, nationally recognized medical and scientific authorities, including the American Medical Association, the U. S. Surgeon General, the National Institute on Occupational Safety and Health, the National Cancer Institute, the Environmental Protection Agency, the National Academy of Sciences, the National Toxicology Program, and the World Health Organization, have issued reports and health advisories addressing the adverse effects of exposure to secondhand smoke. It is estimated that between 24,300 and 71,900 low birth-weight or pre-term deliveries, about 202,300 episodes of childhood asthma (new cases and exacerbations), between 150,000 and 300,000 cases of lower respiratory illness in children, and about 789,700 cases of middle ear infections in children occur in the United States each year as a result of exposure to secondhand smoke. . It is estimated that in the U.S., secondhand smoke causes about 46,000 (a range of 22,700 to 69,600) deaths per year from cardiac-related illnesses (including 700 to 1,240 deaths among Minnesotans), and 3,400 deaths per year from lung cancer. There is no known safe level of exposure to secondhand smoke; neither the separation of smokers and nonsmokers nor the introduction of new ventilation systems can eliminate the health hazards caused by secondhand smoke. The scientific evidence indicates that there is no risk-free level of exposure to secondhand smoke. Eliminating smoking in indoor spaces protects nonsmokers from exposure to secondhand smoke. Separating smokers from nonsmokers, cleaning the air, or ventilating buildings cannot eliminate exposure of nonsmokers to secondhand smoke. The only means of effectively eliminating health risks associated with indoor exposure is to prohibit smoking. Objective evidence does not support fears that restricting smoking in enclosed, indoor areas will harm a community's economy. On the contrary, many independent economic studies have shown that the elimination of smoking has no material economic impact on a community. These studies have drawn from the experience of hundreds of communities that have successfully eliminated smoking in workplaces and public places. Numerous U.S. cities, counties, and states, and many nations, have adopted laws ending all smoking in bars, restaurants, and other public places. . Business owners have no legal or constitutional right to expose their employees and customers to airborne toxins, such as those found in secondhand smoke. On the contrary, 2 . . . employers have a common law duty to provide workers with a workplace that is not unreasonably dangerous. Restricting smoking in public places and places of work can help to model smoke-free behavior and to reduce youth exposure to secondhand smoke. Public health policies, ordinances, and other laws are part of the system by which people learn behaviors, guide youth, reduce health threats, and reinforce community norms that support the public's health. Accordingly, the City Council finds and declares that the purpose of this Ordinance is to: (1) Protect vulnerable populations, including employees, children, the elderly, and those with chronic health conditions; and (2) Affirm that the right to breathe has priority over the desire to smoke; and (3) Protect the public health, welfare and safety by better ensuring the ability of citizens to breathe safe and uncontaminated air; SECTION 2. DEFINITIONS. As used in this chapter: (1) "Food Establishment" means any establishment, however designated, engaged in the preparation or serving of food or beverages for consumption either on or off the premises, or anywhere consumption of food occurs on the premises. This term includes any establishment, however designated, that has an on-sale non-intoxicating malt liquor license, an on-sale intoxicating liquor license, an on-sale wine license, and/or a strong beer liquor license issued by the State of Minnesota, the municipality within which it is located, or McLeod County. (2) "Other Person in Charge" means the agent of the Proprietor authorized to provide administrative direction to, and general supervision of, the activities within a public place or place of work at any given time. (3) "Place of Work" means any enclosed, indoor location at which two or more individuals perform any type of a service for consideration of payment under any type of employment relationship including, but not limited to, an employment relationship with or for a private corporation, partnership, individual, or government agency. This term includes any location where two or more individuals gratuitously perform services for which individuals are ordinarily paid. Examples of a place of work include, but are not limited to, enclosed, indoor areas of an office, a factory, a hotel or motel (except rented sleepinQ rooms until March 1. 2008). a vehicle, a warehouse, and other locations where services are performed under an employment relationship. Enclosed, indoor areas of a private clubs and rooms used for private meetings or social functions are "places of work" if two or more persons acting under an employment relationship provide cleaning, catering, food or beverage service, maintenance, or other support services in such locations. 3 . . . (4) "Proprietor" means the party who ultimately controls, governs, or directs the activities within the public place or place of work, regardless of whether the party is owner or lessee of the public place or place of work. The term "proprietor" may apply to a corporation as well as an individual. (5) "Public Place" means any enclosed, indoor area used by the general public or serving as a place of work including, but not limited to, arenas, auditoriums, bars, bowling alleys, bingo halls, commercial establishments, educational facilities other than public schools, as defined in Minnesota Statutes 9120A.05, subdivisions 9, 11, and 13, hospitals, offices and other commercial establishments, pool halls, public conveyances, restaurants, retail stores, and common areas of rental apartment buildings. "Public Place" also means the outdoor dining or bar area of food establishments. (6) "Smoking" means the inhaling, exhaling, or combustion of any tobacco product, weed, plant, or any other similar article, including any cigar, cigarette, pipe, or any other similar article. Smoking includes possessing or carrying a lighted cigar, cigarette, pipe or any other lighted, smoking equipment. The term "smoking" does not include the use of tobacco by an enrolled member of a federally-recognized Indian tribe as part of a traditional Indian spiritual or cultural ceremony. SECTION 3. PROHIBITIONS. Subd. 1. Except as provided in Subdivision 2, smoking is prohibited in the following locations: A. Public places and places of work, including outdoor dining or bar areas of food establishments; B. Within fifteen (15) feet of entrances, exits, open windows, and ventilation intakes of public places and places of work; and C. Within fifteen (15) feet of any outdoor dining or bar areas of food establishments. Subd. 2. The prohibitions of this Section do not apply to the following places or situations: A. Private residences; B. Motor vehicles in private use; C. Motor vehicles that serve as a place of work for no more than one employee; D. Outdoor areas, except as provided in subdivision 1; aM E. The use of tobacco by an enrolled member of a federally-recognized Indian tribe as part of a traditional Indian spiritual or cultural ceremony; and F. A hotel or motel sleepinQ room rented to one or more Quests until March 1, 2008. 4 . . . SECTION 4. RESPONSIBILITIES OF PROPRIETORS AND OTHER PERSONS IN CHARGE. The proprietor or other person in charge of a public place or place of work where smoking is prohibited shall: 1. Post "No Smoking" signs that comply with the Minnesota Clean Indoor Air Act Rules, Minnesota Rules Part 4620.0500, as amended from time to time; 2. Ensure that ashtrays, lighters, matchbooks, or other smoking paraphernalia are not provided in areas where smoking is prohibited; 3. Place any receptacles for the deposit of extinguished cigarettes, cigars, pipe tobacco, and other smoking materials more than fifteen (15) feet from entrances, exits, open windows, and ventilation intakes of public places and places of work; and 4. Ask any person who smokes in any area where smoking is prohibited to refrain from smoking and, if the person does not refrain from smoking after being asked to do so, ask the person to leave. If the offending party refuses to leave, the proprietor or other person in charge shall handle the situation consistent with lawful methods for handling other persons acting in a disorderly manner or as a trespasser. Appropriate action shall include calling the Hutchinson Police Department for assistance. SECTION 5. PRIVATE PROHIBITIONS. Nothing in this Ordinance prevents the proprietor or other person in charge of any place, including, without limitation, any residence, motor vehicle, or outdoor space, from prohibiting smoking in any such place. SECTION 6. RETALIATION PROHIBITED. No person or employer shall discharge, refuse to hire, penalize, discriminate against, or in any manner retaliate against any employee, applicant for employment, or customer because the employee, applicant, or customer exercises any right to a smoke-free environment afforded by this Ordinance or other law. SECTION 7. EMPLOYEES' RIGHTS PRESERVED. An employee who consents to work in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other party. SECTION 8. OTHER LAWS. This Ordinance is intended to complement the Minnesota Clean Indoor Air Act, Minnesota Statutes, Sections 144.411 to 144.417, as amended from time to time. Nothing in this Ordinance authorizes smoking in any location where smoking is prohibited or restricted by other laws. 5 . . . SECTION 9. VIOLATIONS AND PENALTIES. Subd. 1. Smoking Where Prohibited. It is a violation of this Ordinance for any person to smoke in an area where smoking is prohibited by this Ordinance. Subd. 2. Proprietor or Other Person in Charge. It is a violation of this Ordinance for the proprietor or other person in charge of any premises subject to this Ordinance to fail to comply with the requirements of Section 4 of this Ordinance or to retaliate against an employee, applicant for employment or customer, as prohibited by Section 6 of this Ordinance. Subd. 3. Penalties. A. Violation of any provision of this Ordinance shall be a petty misdemeanor for the first offense. Any additional violation of any provision this Ordinance shall be a misdemeanor. Each day of violation constitutes a separate offense. B. Violation of any provision of this chapter by a licensee shall be adequate grounds for the denial, refusal to renew, suspension, or revocation of any food, liquor, or other business license. Subd. 4. Enforcement The provisions of this chapter shall be enforced by the Hutchinson Police Department or other enforcement agency designated by the City. Subd. 5. Injunctive Relief. In addition to the penalties provided in subdivision 3 of this Section, the City Attorney may bring a civil action against the proprietor or other person in charge of a public place or place of work to enjoin repeated or continuing violations of this Ordinance. SECTION 10. SEVERABILITY. If any portion of this Ordinance, or its application to any circumstances, is held invalid, the remaining provisions shall be considered severable and shall be given effect to the maximum extent possible. SECTION 11. EFFECTIVE DATE. The provisions of this Ordinance shall become effective June 1, 2007 upon adoption and publication. 6 Page 1 of 1 Steve Cook . From: To: Sent: Subject: "Steve Cook" <swcook@hutchtel.nel> "Steve Cook" <scook@hutchtel.nel> Sunday, December 02, 2007 7:33 PM Fw: Lingering Affects sot Second Hand Smoke - Original Message - From: repace To: SteYlU:;ook Sent: Sunday, December 02, 2007 6:33 PM Subject: Re: Lingering Affects sot Second Hand Smoke Dear Mayor Cook: The 2006 Surgeon General's Report on Involuntary Smoking states clearly "there is no safe level of exposure to secondhand smoke [SHS)." It is clear from data taken in Norway and presented in past International Indoor Air Conferences and in current U.S. research done at Lawrence Berkeley Lab by Dr. Brett Singer in the LBL's indoor air research program that SHS sorbed on surfaces will outgas and re-expose nonsmokers to toxic gases and particles. Where there is exposure there is risk. How much risk depends on how much exposure and each motel will differ depending upon how many smokers have been in a motel room and for how long, so it's difficult to generalize. However all policy makers need to know is that there will be exposure from deposited smoke and there will be risk from outgassing smoke, and there is no safe level of exposure. Insofar as the whole SHS business being a "charade" only an imbecile would believe that. Enough said. James Repace, MSc., Biophysicist Visiting Assistant Clinical Professor, Tufts Univ. School of Medicine, and ~ACE ASSOCIATES, Inc. .econdhand Smoke Consultants 101 Felicia Lane Bowie, MD 20720, U.S.A. . 1212/2007