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ORDINANCE
OF SAINT PAUL, MINNESOTA
Presented
Refened To
Committee Date :
ZG
An Ordinance prohibiting smoking in bars and restaurants; creating responsibilities for
proprietors; prohibiting retaliation; and providing penalties for violation.
THE COUNCIL OF THE CTTY OF SAINT PAUL DOES ORDAIN:
Section 1. That the Saint Paul L.egislative Code be amended by adding thereto a new Chapter
238 to read as follows:
CHAPTER 238. PUBLIC SMOHING IN LICENSED LIQUOR
ESTABLISHMENTS AND RESTAURANTS
Sec. 238.01 Purposes and Findings of Fact
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 heart disease, lung cancer, respiratory infections,
decreased respiratory function and other health problems. Secondhand smoke kills an
estimated 35,000 to 62,000 Americans each year from coronary heart disease. Secondhand
smoke also causes an estimated 3,000 lung cancer deaths in America each year.
These effects are well documented, and numerous medical and scientific authorities,
including the American Medical Association, the Surgeon General, the National Institute on
OccupaUOnal Safety and Health, the National CancerInstitute, the Environmental Protection
Agency, the National Academy of Sciences, the National ToxicologyProgram and the World
Health Organization have recognized the deadly effects of exposure to secondhand smoke.
The proposed Framework Convention on Tobacco Control, a global treaty negotiated by
more than190 countries, declares that "scientific evidence has unequivocally established that
exposure to tobacco smoke causes death, disease and disability."
There is no safe level of exposure to tobacco smoke. Science has been unable to find any
level of dilution at which smoke does not cause cancer. Neither the separation of smokers
and nonsmokers, nor the introduction of new ventilation systems, can eliminate the health
hazards caused by secondhand smoke.
Page 1 of 5
CouncIl File # � � W
Ordinance #
Green Sheet # 05\3S
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1 Employees in smoky workplaces are at special risk. One study has estimated that working in a
2 smoky baz for eight hours is equivalent to smoking 16 cigazettes. Also at special risk are
3 children, elderly people, and those with cardiovascular disease or impaired respiratory function,
4 including people with asthma and those with obstructive airway disease.
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Obj ective evidence does not beaz out the feaz that elimination of public smoking will hazm a
community's economy or result in a net loss of jobs in restaurants and bazs. On the contrary,
many independent ecottomic studies have shown that the eliminafion of smoking has no material
economic impact on a community. These studies are drawn from the experience of hundreds of
communities that have successfully eliminated smoldng in workplaces and public places. The
states of Califomia, Connecticut, Delawaze, Maine, and New York have adopted laws ending all
smoking in bars, restaurants, and other pubiic places, as have the narions of Ireland, New Zealand
and Norway.
By reducing the e�cposure of young people to adult smoking and unhealthy role modeling,
elimination of smoking in public places fiirthers Minnesota's goal of reducing youth smoking.
There is no legal ar constitutionai "right to smoke." Business owners have no legal or
constitutional right to expose their employees and customers to toxic chemicals, whether in
tobacco smoke or otherwise. On the contrary, employers have a common law duty to provide
their workers with a workplace that is not unreasonably dangerous.
Accordingly, the City Council finds and declazes that the purpose of this ordinance is to:
(1)
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Protect the public health, welfaze and safety by better ensuring the ability of
citizens to breathe safe and uncontaminated air;
Affirm that the right to breathe has priority over the desire to smoke; and
Protect wlnerable populations, including employees, children, the elderly and
those with chronic health conditions.
Prevent harm to emplovees and patrons by second hand smoke, while allowine
smokin¢ bv patrons choosine to do so in a desianated Smoking Room
Sec.238.02 Definitions.
As used in this ordinance:
(a) "bowling centers and pool halls" means those establishments licensed under
Chapter 322 of the Saint Paul Legislative Code, whether or not they are also a
licensed liquor establishment.
(b) "Licensed liquor establishment" means an establishment that has an on-sale
intoxicating liquor license; an on-sale non-into�cating liquor license ; a wine
license and/or a strong beer license issued pursuant to Chapters 409 or 410 of the
Saint Paul Legislative Code, as amended from tnne to time, but does not include
the guest rooms of a hotel or motel.
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1 (c) "Other person in chazge" means the agent of the proprietor authorizGd to perform
2 aduunistrative direction to and general supervision of the activities within a bar or
3 restaurant at any given tune.
4 (d) "Proprietor' means the party who holds the license or licences for a baz or
5 restaurant. The term "proprietor" may apply to a corporation as well as an
6 individual.
(e) "Restaurant" has the meaning specified in Legislative Code Section
331A.04(d)(17)(18)(19)(20) or (21), as amended from time to time, but does not
include outdoor azeas and does not include the guest rooms of a hotel or motel.
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(fl "Smoking" means the inhaling, exhaling or combustion of any cigar, cigazette,
pipe, tobacco product, weed, plant or any other similar article. "Smoking"
includes possessing or catrying a lighted cigar, cigazette, pipe or any other lighted
smoking equipment. "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.
(g� "Smokine Room" means a room in a licensed liquor establishxnent that meets the
conditions nrovided in Section 238.03 herein.
Sec.238.03 Prohibitions.
Smoking is prohibited in restaurants, pool halls and bowling centers and licensed liquar
establishments.; provided, however that each licensed liquor establishment wili be allowed to
desi¢nate one Smoking Room subject to the following conditions:
�a,2 The area must be �hysically separated and sealed within the licensed premises bv
a solid wall and door with a easket sufficient to �revent passage of air from the
Smoking Room to the rest of the premises.
�b The Smokine Room mav not serve as access or e�ress from the licensed premises
� The Smoking Room must be e�austed to the outside of the building and provide
a ne ativ�ressure at all times within the s�ace so as to not allow air to escape or
infiltrate into the rest of the nremises.
�d,� Outside e�aust shall not be directed or noticeable in any area used for public
access, outdoor service or adjacent pronerties.
� The Smokin� Room must have windows or glass to the inside of th�remises
providine clear and constant visibility bv em�loyees at a11 times while still
ureventine the passage of air from the Smoking Room into the rest of the
uremises.
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�f There shall be no service of food or bevera�es bv emplovees, proprietor, or other
person in chazee within the Smoking Room. No em l�ovees sha11 enter the
Smoking Room except in cases of emergencv or cleanup after closine Only the
proprietor or other person in charge may enter the Smoking Room for cleanu� or
maintenance durin2 normal service hours.
� The Smokin¢ Room shall be no ereater than 30% of the azea licensed to serve
liquor or 300 square feet wluchever is smaller.
9 (h) The �rOprietor shall reimburse the Citv of St. Paul for an annual air test to ensure
10 negative air �ressure within the Smoking Room and that there is no air exchan�e
11 between the Smokin� Room and the rest of the premises. In addifion. the office of
12 LIEP mav administer testin a� t any time during the veaz and must be reimbursed
13 the cost of testine bv the nrororietor in the event of non-com lip ance•
14 � Patrons shall not be allowed to hold the door open or order service from the
15 Smokine Room. The proprietor or other person in chazge shall ensure that service
16 is not provided unless the patron leaves the Smokinp Room completely to order
17 � The �roprietor or other oerson in chazee mav provide entertainment such as
18 television, video eames, azcade games or other self service entertainment. Non-
19 profit volunteer entertainment such as pull-tabs may not be sold or offered within
20 the Smoking Room. Live entertainxnent includine karaoke may not be provided
21 within the Smokin¢ Room.
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� Smoking Room plans must be reviewed and aQnroved by LIEP and Fire
Inspections to insure comnliance with the conditions contained in Section
238.03 herein.
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Sec. 238.04
The proprietor or other person in chazge of a baz or restaurant shall:
(a)
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The door to the Smoking Room shall not be left ooen or prooued open and shall
onl be o ened to allow in ress and e ess.
No one under the age of 21 vears shall be allowed in a Smoking Room.
Work must be done by licensed contractors and all appropriate permits must
be obtained and construction Alans reviewed.
Responsibilities of Proprietors.
Post "no smoking" signs that comply with the Minnesota Ciean Indoor Air Act
Rules, Minnesota Rules, part 4620.0500, as amended from time to time;
Ensure that ashtrays, lighters, and matchbooks aze not provided in any area where
smoking is prohibited; and
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1 (c) Ask any person who smokes in an azea where smoking is prohibited to refrain
2 from smoking and, if the person does not refrain from smoking after being asked
3 to do so, ask the person to leave.
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Sec. 238.05
Nothing in this ordinance prevents the propriefor or other person in charge of any place,
including, without lnnitation, any outdoor space, from prohibiting smoking in any such place.
Sec. 238.06 Retaliation Prohibited.
No person or employer sha11 discharge, refuse to hire, 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 environxnent afforded by this ordinance or other law.
Sec. 238.07 Employee's Rights Preserved.
An employee who consents to work in a setting where an employer allows smoking does not
waive or otherwise sunender any legal rights the employee may have against the employer or any
other party.
Sec. 238.08 Other Appiicable Laws.
If there is a Smoking Room, make and enforce the conditions of the Smoking
Room as required in Section 238.03 herein.
Additional Private Prohibitions.
18 This ordinance is intended to complement and go beyond the Minnesota Clean Indoor Air Act,
19 Minnesota Statutes §§ 144.411 to 144.417, as amended from time to time. Nothing in this
20 ordinance authorizes smoking in any location where smoking is prohibited or restricted by other
21 laws.
22 Sec. 238.09. Violation and Penalties.
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(a) Proprietors. It is a violation of this ordinance for the proprietor to fail to comply
with the requirements of section 238.04, or to retaliate against an employee,
applicant for employment or customer, as prohibited by section 238.06.
(b) Penalfies. Failure to comply with the requirement of this ordinance shall be a
basis for adverse action under Saint Paul Legislative Code §310.06(b)(7).
(c) A licensee who violates any provision of this ordinance shall be punished by a
fine of not to exceed $300. A licensee who violates any provision of this
ordinance within one year after having been determined to have committed a
previous violation shall be punished by a fine of not to exceed $1,000. Each day
of violation constitutes a separate offense.
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Sec. 238.10. Severability.
2 If any portion of this ordinance, or its application to any circumstances, is heid invalid, the
3 remain;ng provisions shall be considered severable, and shall be given effect to the maximum
4 e�ent possible.
Section 2. This ordinance shall become effective thirty (30) days after passage, approval and
publication, or co..+o..,�,o. i �nnd � ever is later.
January 2, 2005
Yeas Na s Absent
Benanav f/
Bostrom �-
Harris y-
Helgen ✓
Lantry �/'
Montgomery �--
Thune `
Adopted by Council: Date �--,-��-� °z 3 `�U C? �
✓
Adoption Certified by Council Secretary
Requested by Department of.
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Form Approv by City ttorney
By: � �v✓1��
Approved by Mayor for Submission to Council
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COMACT PQ2SON & PHONE Nmalmate M�uawm
Dave Thune 651-266-8620 o�.µ�roa,r�tar arrcaxci
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TOTAL # OF SIGNATURE PACaES (CLJP ALL LOCATIONS FOR SIGNATURE)
CTION REQUESTm � � - � - � �
An Ordinance prohibiting smoking in bars and restaurants; creating responsibilities for
proprietors; prohibiting retaliation; and providing penalties for violation.
RECOMMENDATION Approve (A) or Reject (R) VERSONAL SERVICE WNTRACiS MUSTANSWER TXE FOLLOWING QUESTlONS:
1. Has ihis persoNfirm ever v.oiked under a cont�aU far this depaRmeM7
PLANNING COMMISSION YES NO
CIB COMMITTEE 2. Fias this peisoNfrm ert,v been a ciry empbyee? �
CIVIL SERVICE CAMMISSION YES No -
3. Ooes this persoNfrm possess a skU not nom�alfyposaessetl by any aureM c�7y employee7
YES NO
4. Is fhis personfirm a targete0 ventloYt
VES NO
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INITIATING PROBLEM ISSUE, OPPORTUNITY (WFw, Wha( When, Where, WhyJ
ADVANTAGESIFAPPROVED
DISADVANTAGES IF APPROVED
DISADVANTAGES IF NOT APPROVED
TOTAL AMOUNT OF TRANSACTION f CAST/REVENUE BUOGETW (CIRCLE ONt7 YES NO
FUNDING SOURCE ACTNITY NUMBER
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RECOivilt�fENDATIODIS
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C'I'I'Y OF' S�'I' PA�. 390 Ciry Hall Telephorse: 651-266-8510
Randy C. Ke([y, Mayor I S West Kellogg Boulevard Facsirrzile: 65l-266-8573
Sairsi Paul, MN 55102
July 6, 2004
Council President Dan Bostrom
and members of the City Council
310 City Hall
15 West Kellogg Blvd.
Saint Paul, MN 55102
Deaz Council President Bostrom and Councilmembers:
In the name of public health, a 4-3 majority of The City Council has sent me a proposed ordinance
that would force Saint Paul residents and hospitality visitors into sealed rooms, 300 squaze feet ar
smaller, filled with concentrated volumes of carcinogens from cigarette smoke. Surely we can
protect the public health in better ways than this, and with good Ieadership, reason, and common
sense, I believe that we will.
Accordingly, and pursuant to sections 6.07, 6.08 and 6.09 and the City Charter, I am vetoing
Council Files 04-520 and 04-627. I want to stress that this veto is based on the flaws in the 4-3
Council proposal and is not meanY to stop debate and acYion on smoking resh-ictions. Ultimately, a
unifonn, statewide solution will best protect the public health, but we are not waiting for that as
the only possible solution.
I have already begun working with officials from our neighborin� communities to fashion a
regional approach. Last week I discussed the smoking issue with several members of the Ramsey
County Board who want to si�ificantly tighten laws against smoking in restaurants and bars. I
also met last week with officials from Minneapolis, Hennepin County and Dakota County to
discuss the issue. Our meetin� brought agreement to share information about various approaches
with local officials in the seven-county area; this will hopefully stimulate informed discussion that
could lead to more jurisdictions addressing the issue. Our meeting also btought a�eement that a
regionat approach to regulating smoldng in bars and restaurants makes sense from an economic
standpoint. With a regional approach we can set aside the false choice of health versus economics
that is presented when one local jurisdiction tries to regulate commerce on its own. The people of
our region deserve no less.
Minneapolis and Hennepin County are already coordinating their efforts and may have solutions in
hand in the near future. Saint Paul should try to sync up our efforts with those of Ramsey County
as well as Minneapolis and the surrounding suburbs.
Some history helps explain why it may take more than a few weeks to arrive at the best solution to
this problem. During the 29 yeazs since the state Clean Indoor Air Act was passad, our City has
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been led by five different mayors and 45 different members of the City Council and we have co-
existed, smokers and non-smokers, under the state system of desi�ated smokin� and non-smokin�
areas. After these 29 yeazs, on May 12, 2004, with no advance community discussion and no
discussion with tke Mayor, some members of our City Council decided that tke public health
required nothing less than a total ban on smokin� in restaurants and bazs in the city of Saint Paul
by this summer. After a short period of public input, the proposal was amended to permit the
ciosed-in "smoking rooms," and the effective date was delayed to September 1, 2004 and then to
January 2, 2005.
I reco�ize that in recent years we have come to leam a lot more about the dangers of second-hand
smoke; in my mind those dangers are not open to serious dispute. This accumulated body of
scientific knowled;e certainly justifies us revisiting our smoking policies on a local, reb onal and
statewide basis and comin� up with new and thoughtful approaches. In tke last few years and in
the face of the mounting evidence regazding the hann from second-hand smoke, a handful of
Minnesota local governments have experimented with more restrictive smoking ordinances for
bars and restaurants.
However, the 4-3 proposal from our City Council is both more restrictive and more dangerous than
smoking restrictions enacted by other local governments in Minnesota. For example, in Olmsted
County, the home of the Mayo Clinic and one of the most health-conscious areas of the country,
establishments with at least half of their revenue from alcohol can continue to allow smoking if
they meet certain ventilation and separaTion requirements. Duluth has enacted several versions in
recent yeazs, and recently loosened its restrictions on smoking in bars. Other commumties have
rejected attempts to impose greater regulation.
As mentioned, the "smoking room" approach proposed by the 4-3 vote of our City Council only
worsens the health of people in our society who aze addicted to nicotine and want to smoke in
places where alcohol is served. The proposed ordinance would force such addicted people to
huddle inside a tiny enclosed room filled with other smokers. The door is only allowed to be
opened for in�ess and egress and patrons aze specifically barred from even holding the door open
for another person. This proposal harkens back to "smoking rooms" in high schools when we were
younger — something no one would today consider to be a good public health outcome.
Beyond these very significant public health concems, there are other reasons why I do not support
the "smoking room" concept:
This is not a true compromise. None of the people concerned about the effect of the
proposed ban were consulted and none of them support the "smoking room"
altemative.
• There was no public input on the proposal. The concept was added to the proposed
ordinance only after the public hearing closed and without any understanding by the
Council of the actual cost and impact on business owners or the public.
The true costs were grossly underestnnated. The ordinance's author estimated the cost
of a smoking room to be about �5000. Once the proposal was made public, bids were
solicited and it was determined that the true cost was at least $30-50,000 for
construction and even more for ventilation.
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Smokin� rooms are not possible in some bars. Some small businesses simply do not
have the space to put in a smoking room. For other businesses, their leases may not
pemut such a configuration. Such instances could create an additional economic
disparity between bars that can put in smoking rooms and those that cannot.
. Bar and restaurant owners are not likely to make the capital expenditures necessary for
a smoking room until they lmow whether regional or statewide regulation will be
passed and what the terms of such regulation will be.
Given the seriousness of the issue and the various approaches taken by other Minnesota
jurisdictions that have considered local restrictions on smokin�, I regret that the narrow Council
majority sent me this hastily-produced, flawed ordinance as a"take-it-or-leave-it" proposition.
Unfortunately, though my staff and I have talked several times with the ordinance's author, the
author has never agreed to consider any compromises that might be acceptable to me and others in
the community who also have serious ideas about how best to protect the public health.
Repeatedly, the author has simply expressed his wish that I agree with his position. However, the
public expects that its elected officials should engage in honest give-and-take where matters of this
importance and this level of controversy aze concemed. The rigd "my way or the highwa}�'
approach is one of the problems we have at our national level and we see it now at our state level.
We should not emulate this practice at the municipal level.
Though the "smoking room" concept is both dangerous and unworkable, I have confidence that if
people of good will come together we can come up with much better ideas. As noted, a regional
approach will both increase the public health benefits and decrease the economic dislocation that
occurs when a single jurisdiction unilaterally regulates commerce on its own. I invite members of
the City Council, the pubiic health community, the hospitality industry and any other interested
members of the public to shaze their ideas so we can get to the best solution.
In closing, I want to assure the public that I have not carried any water -- and will not carry any
water -- for the tobacco companies. Their sins aze well-documented and indefensible. To my
lrnowledge I have not spoken to any tobacco company representatives or their lobbyists since this
ordinance was introduced. They do not set or even influence policy for the City of Saint Paul. My
sole obligation is to the people who live and work and visit in our City. For our residents, visitors,
business owners and employees in Saint Paul, I will continue to work over the next few weeks to
find the best solution to this problem.
Sincerely, �
���� c� � �
Randy C. Kelly
Mayor
cc: Members of the City Council