The City Council
held a public hearing on January 23rd and adopted Ordinance No. 2287, which
amends LOC Chapter 34 to add Article 34.18 relating to smoke-free workplaces and
Article 34.20 relating to tobacco sales:
ORDINANCE No. 2287
EFFECTIVE FEBRUARY 22, 2001
AN ORDINANCE OF THE CITY OF LAKE OSWEGO
AMENDING CHAPTER 34 OF THE CODE TO ADD ARTICLE 34.18 RELATING TO SMOKE-FREE
WORKPLACES AND ARTICLE 34.20 RELATING TO TOBACCO SALES
The City of Lake Oswego ordains as follows:
Section 1. Section 34.04.101 is hereby amended to read
as follows
34.04.101 Establishment and Purpose.
1. A procedure to handle violations of
City Code provisions as civil violations is hereby established, pursuant to the
home rule powers granted the City of Lake Oswego by Article IV, Section 1, and
Article XI, Section 2 of the Oregon Constitution, and by Sections 4 and 22 of
the Lake Oswego Charter.
2. The civil violation procedure is
established for the purpose of decriminalizing penalties for violations of
certain Code provisions and for the purpose of providing a convenient and
practical forum for the civil hearing and determination of cases arising out of
said violations. It is intended that violations be punishable even though the
responsible party does not knowingly or intentionally violate provisions of the
Code. The mere fact that a violation exists and that a person is responsible is
sufficient to initiate violation proceedings and impose a fine. A culpable
mental state as an element of proof is hereby expressly dispensed with.
3. Violation of LOC 34.04.101 through
34.20.060 shall be known as and referred to as "civil violations".
4. A person may be found liable,
responsible or guilty of an alleged civil violation by reason of ownership or
possession of the property on which an event or condition exists or has existed
or by reason of such person being the proximate cause of such act or condition.
(Ord. No. 1856, Sec. 1; 12-28-82.)
Section 2. Section 34.04.105 is hereby amended to read
as follows
34.04.105 Definitions.
For the purpose of LOC 34.04.101
through 34.20.060, unless the context indicates otherwise, the following
definitions apply:
City Manager. As used in this
chapter, City Manager means the person holding the position of City Manager or
any officer or employee of the City of Lake Oswego.
Civil Violation. An offense
against the City in the form of a violation of a provision of the City Code
constitutes a civil violation and shall be handled in accordance with the
procedures established by this chapter. When a violation is of a continuing
nature, a separate violation will be deemed to occur on each calendar day the
violation continues to exist, and a separate citation may be filed for each such
violation.
Fines and Schedules. The only
penalty to be imposed for a violation is a monetary penalty called a fine, in
addition to any costs, assessments or restitution ordered by the court. However,
this section shall not be read to prohibit in any way any other alternative
remedies set out in code provisions covered by this violation procedure which
are intended to abate or alleviate code violations or nuisances, nor shall the
City be prohibited from recovering, in a manner prescribed by law, any expense
incurred by it in abating or removing Code violations pursuant to said chapter.
In addition, the City is not by the use of the violation procedure precluded
from utilizing any other enforcement mechanism provided by the general laws of
the State.
(Ord. No. 1856, Sec. 1; 12-28-82. Ord.
No. 1910, Sec. 3; 3-5-85.)
Section 3. A new Article 34.18 is hereby added to read
as follows
34.18 Smoke-Free Workplaces.
Section 4. A new Section 34.18.100 is hereby added to
read as follows
34.18.100 Definitions.
For the purpose of Article 34.18, the
following definitions shall apply unless the context requires a different
meaning.
Employee. Any person who is employed by
any employer in consideration for direct or indirect monetary wages or profit,
and any person who volunteers his or her services to a non-profit entity.
Employer. Any person or entity who
employs the services of one or more individuals.
Enclosed Area. All space between a
floor and a ceiling that is enclosed on all sides by solid walls or windows
(exclusive of door or passageways) that extend from the floor to the ceiling,
including all space therein screened by partitions that do not extend to the
ceiling or are not solid, such as "office landscaping" or similar structures.
Enclosed areas do not include breakrooms designated for smoking (smoking room)
by employers if the following conditions are met:
1. The smoking room is not accessible
to minors.
2. Air from the smoking room is
exhausted directly to the outside by an exhaust fan and not recirculated to
other parts of the building.
3. The smoking room is in compliance
with ventilation standards established by resolution of the City Council.
4. The smoking room is located in a
non-work area where no one, as part of his or her work responsibilities, is
required to enter. For purposes of this paragraph, "work responsibilities" does
not include custodial or maintenance work carried out in the smoking room when
it is unoccupied.
5. There are sufficient nonsmoking
breakrooms to accommodate nonsmokers.
Place of Employment. Any 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 and rest rooms, conference and class rooms, cafeterias
and hallways. A private residence is not a "place of employment" unless it is
used as a childcare facility as defined in ORS 657A.250, an adult day care
facility as defined in ORS 410.490 or a health care facility as defined in ORS
442.015.
Retail Tobacco Store. A retail store
utilized primarily for the sale of tobacco products and accessories and where
the sale of other products is secondary.
Smoking. Any inhaling, exhaling,
burning, or carrying any lighted cigar, cigarette, weed, plant, other tobacco
product, or tobacco-like product or substances, in any manner or in any
form.
Tobacco Product. Any tobacco cigarette, cigar, pipe
tobacco, smokeless tobacco or any other form of tobacco which may be utilized
for smoking, inhalation, or other means of ingestion.
Section 5. A new Section 34.18.105 is hereby added
to read as follows
34.18.105 Smoking Prohibited in Places
of Employment.
1. Smoking is prohibited in all places
of employment.
2. No employer shall permit smoking by any person in a
place of employment.
Section 6. A new Section 34.18.110 is hereby added
to read as follows
34.18.110 Places Where Smoking is Not
Regulated.
Notwithstanding any other provision of
this section to the contrary, the following areas shall not be subject to any
smoking restrictions contained within this subchapter:
1. Private residences, unless the
private residence is used as a child care facility as defined in ORS 657A.250,
an adult day care facility as defined in ORS 410.490 or a health care facility
as defined in ORS 442.015.
2. Rented motel or hotel rooms that are
designated in some manner as smoking-allowed rooms by the owners of the
establishment renting the rooms.
3. Private rooms rented for an
occupancy that exceeds one month and that are not located in a private residence
used as a childcare, adult day care or health facility.
4. Any facility or facility area
licensed by the Oregon Liquor Control Commission to serve alcohol by the drink
for consumption on the premises that is posted to prohibit the presence of
minors. For facilities or areas with postings that allow the presence of minors
at specified times, smoking may occur only during those times when minors are
prohibited. This subsection shall not apply to the bar portion of bar and
restaurant combinations unless the bar is separated from the restaurant by solid
floor to ceiling walls with solid doors hung in doorways and has a functioning
ventilation system that does not permit tobacco smoke to enter the restaurant
section.
5. Retail tobacco stores.
Section 7. A new Section 34.18.115 is hereby added
to read as follows
34.18.115 Posting "No Smoking" Signs.
"No smoking" signs or the international
"no smoking" symbol (consisting of a pictorial representation of a burning
cigarette enclosed in a circle with a bar across the cigarette) shall be
clearly, sufficiently, and conspicuously posted in every building or other area
where smoking is prohibited by this article, by the owner, manager, or other
person having control of such building or other area, including private
residences used as a child care, adult day care or health care facility.
Section 8. A new Section 34.18.120 is hereby added
to read as follows
34.18.120 Violations.
1. It shall be a civil violation for
every day any employer, or any person who owns, manages, operates or
otherwise controls the use of any premises subject to regulation under this
article, fails to comply with any provisions therein. Each day
shall be a separate violation.
2. It shall be a civil violation for
any person to smoke in any area where smoking is prohibited by the provisions of
this article.
Section 9. A new Section 34.18.130 is hereby added
to read as follows
34.18.130 Other Laws.
This article shall not be interpreted
or construed to permit smoking where it is otherwise restricted by other
applicable laws.
Section 10. A new Section 34.18.135 is hereby added
to read as follows
34.18.135 Penalty.
Any person who violates this article
shall be subject to the following penalties:
1. For a first violation, city staff
shall provide the violator with a notice and warning, together with educational
materials and a referral phone number for the Clackamas County Health Division
Tobacco Program.
2. For a second violation within a
12-month period, a fine of $50 shall be imposed. However, the fine shall be
suspended provided that the violator cooperates with the following remedial
activities:
a. If the violator is an employer, the
violator and city staff, with the assistance of the Clackamas County Tobacco
Program if available, shall jointly develop a smoke-free workplace remediation
plan.
b. If the violator is a person other
than the employer, city staff, with the assistance of Clackamas County Tobacco
Program if available, shall provide additional services and referral information
designed to achieve compliance by that person.
3. For a third violation within a
12-month period, a fine of $100 shall be imposed.
4. For a fourth violation within a
12-month period, a fine of $250 shall be imposed.
5. For a fifth violation within a
12-month period, a fine of $500 shall be imposed.
Section 11. A new Article 34.20 is hereby added to
read as follows
34.20 Tobacco Sales. Section 12. A new Section 34.20.010 is hereby added to
read as follows
34.20.010 Definitions.
Person. All natural and legal persons,
including but not limited to individuals, corporations, associations,
partnerships, and societies.
Tobacco Product. Any tobacco cigarette,
cigar, pipe tobacco, smokeless tobacco, chewing tobacco or any other form of
tobacco that may be utilized for smoking, chewing, inhalation or other means of
ingestion.
Vendor-assisted sale. Circumstance
where only the operator of the business, or an employee, has access to the
tobacco product prior to the completion of the sale, and where the operator or
employee assists the customer by physically supplying the tobacco product.
Section 13. A new Section 34.20.020 is hereby added to
read as follows
34.20.020 Vendor-assisted Sales
Required.
1. No person shall engage in, permit,
allow or offer the retail sale of a tobacco product by any means other than a
vendor-assisted sale.
2. This section shall not apply to the
dispensing of tobacco products by vending machines.
Section 14. A new Section 34.20.030 is hereby added
to read as follows
34.20.030 Retaliation Prohibited.
No person shall discharge, refuse to
hire, or in any manner retaliate against any employee, applicant for employment
or customer because such employee, applicant or customer reports or attempts to
prosecute any violation of this article.
Section 15. A new Section 34.20.040 is hereby added
to read as follows
34.20.040 Responsibility of Owners and
Operators.
A person may be found guilty of an
alleged civil violation under this Article by reason of being the owner,
operator, manager or person in charge of a business where the alleged violation
occurs.
Section 16. A new Section 34.20.050 is hereby added
to read as follows
34.20.050 Responsibility for Sales to
Minors.
A person who owns, operates, manages or
is in charge of a business commits a civil violation if an employee or agent of
the business violates LOC 34.02.031(a) by distributing, selling, or causing to
be sold, tobacco in any form to a person less than 18 years of age.
Section 17. A new Section 34.20.060 is hereby added
to read as follows
34.20.060 Penalties.
1. A person who violates any provision
of this article other than LOC 34.20.050 shall incur the following penalties:
a. For a first violation, a fine of
$200.
b. For a second violation within any
two-year period, a fine of $350.
c. For a third or greater violation
within any two-year period, a fine of $500.
2. A person who is convicted of
violating LOC 34.20.050 shall incur a fine of not less than $100, and not more
than $600.
Section 18.
Severability. The provisions of this ordinance are severable. If any portion
of this ordinance is for any reason held to be invalid, such decision shall not
affect the validity of the remaining portions of this ordinance.
Read by title and enacted at the regular meeting of the
City Council of the City of Lake Oswego held on the 23rd day of
January 2001.
AYES: Mayor Hammerstad, Hoffman, Schoen, Turchi, Graham
NOES: Rohde
ABSENT: McPeak
ABSTAIN: None
/s/ Judie Hammerstad
Judie Hammerstad, Mayor
Dated: January 24, 2001
ATTEST:
/s/ Robyn Christie
Robyn Christie, Deputy City Recorder
APPROVED AS TO FORM:
/s/ David D. Powell
David D. Powell, City Attorney
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