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Home My WebLink About13.C.2. Proposal for City Oversight of Outdoor Smoking Areas i V . ~ ~ CITY OF SHAKOPEE memorandum CASE NO.: N/A TO: Honorable Mayor and City Council Mark McNeill, City Administrator FROM: R. Michael Leek, Community Development Director SUBJECT: Proposal for City Oversight of Outdoor Smoking Areas MEETING DATE: February 19, 2008 REVIEW PERIOD: N/A INTRODUCTION: On May 16, 2007 Governor Tim Pawlenty signed into law the "Freedom to Breathe" provisions. These provisions prohibit smoking in indoor areas, and provide a specific definition of indoor areas. Since going into effect, bar and restaurant owners in the City have reported that the provisions have had a negative impact on their businesses. As a result, several have establishedlare considering establishing outdoor smoking areas, which unfortunately do not meet fire or building codes. City staff has contacted those businesses to address the problems. Council is asked to provide direction to staff on whether or not to proceed with an approach to permitting "outdoor smoking areas" which is outlined below. DISCUSSION: In order to discuss and develop a possible approach to dealing with outdoor smoking areas, a staff subcommittee consisting of the City Clerk, the Building Official, the Fire Inspector and members of the Planning staff was convened. A copy of the proposal developed through this subcommittee accompanies this memorandum for Council's information. Issues that were discussed by the subcommittee included compliance with the following provisions of the Shakopee City Code; o liquor licensing; o Fire Code; o Building Code; and o Zoning Code provisions related to exterior materials. Based on that discussion, as well as a review of other cities' approaches, an initial proposal was drafted for review and comment by the subcommittee. This proposal is described below. Proposal for Permitting Outdoor Smoking Areas: • Amend City Code Chapter 4, CONSTRUCTION LICENSING, PERMITS AND REGULATIONS by adding a new Section 4.21 which would establish a permitting and annual review process requirement for outdoor smoking areas; H:1CC12008\02-19\outdoor smoking areas rpt.doc 1 o The proposed permitting and review processes are proposed to be carried out by City staff; o Annual reviews would be conducted at the same time as the annual review of liquor licenses for those businesses that have liquor licenses; • An informational handout on requirements related to outdoor smoking areas would be finalized and made available to affected business owners. (See attached draft of handout.} ALTERNATIVES: 1. Direct staff to prepare an ordinance amendment related to outdoor smoking areas for consideration and possible adoption by the City Council, and to finalize an informational handout for distribution to businesses impacted by the "Freedom to Breathe" provisions. 2. Do not take action to implement an outdoor smoking area ordinance amendment. 3. Table the matter for additional information. STAFF RECOMMENDATION: Staff recommends alternative number 1, directing staff to prepare an ordinance amendment related to outdoor smoking areas for consideration and possible adoption by the City Council, and to finalize an informational handout for distribution to businesses impacted by the "Freedom to Breathe" provisions. ACTION REQUESTED: Offer and pass a motion directing staff to prepare an ordinance amendment related to outdoor smoking areas for consideration and possible adoption by the City Council, and to finalize an informational handout for distribution to businesses impacted by the "Freedom to Breathe" provisions. 0 R. Michael Leek Community Development Director H:1CC12008\02-19\outdoor smoking areas rpt.doc 2 DRAFT PROPOSAL FOR IMPLEMENTATION OF OUTDOOR SMOKING SPACES City of Shakopee, Minnesota December 3, 2007, rev. January 15, 2007 BACKGROUND: On May 16, 2007, Governor Tim Pawlenty signed into law the Freedom to Breathe provisions. The provisions define an "indoor area" as; All space between a floor and a ceiling that is bounded by walls, doorways, or windows (whether open or closed}, covering more than fifty (50) percent of the surface area of the vertical planes (i.e. wall space} constituting the perimeter of the area, whether temporary or permanent. A number of businesses in the City have either taken the initiative to create outdoor smoking areas, or have contacted City staff about creating such areas. Unfortunately, in reviewing some of the areas that have been set up, it is clear that they violate various pravisions of the State fire code (in 3 cases, tents have been set up which neither meet the 50% open wall standard, and which violate fire code). The Freedom to Breathe provisions do not supersede either the building or fire codes, and staff has been in contact with, or will be contacting those businesses about removing these temporary measures. The Act does allow local governments to adopt more stringent measures to protect the public from secondhand smoke. A staff subcommittee was appointed to review the issues related to outdoor smoking areas. The committee was made up of the City Clerk, planning staff, building inspection staff including the Fire Inspector, and a representative of the Police Department. The issues identified for the committee's discussion included; • Compliance with liquor license conditions and liquor licensing requirements generally; • Compliance with the Fire Code; • Compliance with the Building Code; • Compliance with Materials Standards for Business Zones (City Code Chapter 11, Zoning}; ALTERNATIVE APPROACHES: The committee members reached consensus on the idea that there should be an initial permit for outdoor smoking areas, and perhaps also an annual review for these areas. It was thought that such a process would allow for a review that includes compliance with applicable State and City codes, such as the fire, building and materials code provisions. In addition, it would allow for a determination as to whether the proposed area would require a revision to the applicant's liquor license. The Committee identified two alternatives for the initial review. The first approach is to require a conditional use permit (CUP). This is an approach considered recently by the City of New Prague. However, since the City's zoning regulations no longer require a CUP for Class II restaurants (i.e. H:\CC\2008\02-19\outdoor smoking areas rpt.doc 3 those serving alcoholic beverages or having live entertainment); it seemed incongruent to require a CUP for outdoor smoking areas for Class II restaurants. However, "taverns" do require a CUP, and thus there is some reasonable rationale for requiring a CUP for outdoor smoking areas for taverns. Second, the City could implement an administrative review for outdoor smoking areas. Similarly, there seem to be at least two possible approaches to ongoing monitoring of established outdoor smoking areas. Of course, the City could choose not to monitor such areas at all once they are established. However, because of safety concerns, it seems that it would make sense to periodically review them. Since the City annually reviews liquor licenses, and since that review is intended to make sure that the license holder is in compliance with all City regulations, it appeared to the subcommittee discussed having the outdoor smoking areas reviewed at the same time as the liquor license review. PROPOSED PROCESS FOR OUTDOOR SMOHING AREAS UNDER THE FREEDOM TO BREATH ACT. 1. Establish a separate, administrative permit application and review process for outdoor smoking areas. a. The fee would be based on an estimate of the review time that would be required (building inspector, fire inspector, and planner time). 2. Establish an annual review process in connection with the annual liquor license review. a. The additional fee (if any) would reflect the actual cost of onsite review of the area and comparison with the approved permit for the area. 3. Develop an information piece that covers the following; a. The applicability of specific fire or building code provisions related to heaters, separation requirements, materials (especially as it relates to flammability) and structural standards; b. The exterior materials requirements for commercial zones of City Code Sec. 11.60. Performance Standards, Subd. 4 Construction Materials.A. Special Minimum Requirements and Performance Standards in all Business Districts. As it relates to accessory structures, this provision provides; Garages, accessory structures, screen walls and exposed areas of retaining walls shall be of a similar type, quality and appearance as the principal structure. (Which materials are addressed in preceding sections) H:\CC\2008\02-19\outdoor smoking areas rpt.doc 4 SAMPLE INFORMATION/GUIDELINES SHEET CRITERIA FOR OUTDOOR SMOHING SHELTERS Requirements: 1. Outdoor smoking shelters shall comply with the Minnesota Clean Indoor Air Act, Freedom to Breathe Provisions found in Minn.Stat. Ch. 144.411. 2. Outdoor smoking shelters must comply with the Building and Fire codes adopted by the City. This includes, but is not limited to, providing sprinklers if required; meeting occupant load restrictions; providing fire extinguishers; 3. Obtain an Outdoor Smoking Shelter Permit from the City prior to installation. 4. Shall be completely located within the building area of the property, and shall meet zoning setbacks. 5. Shall be aesthetically compatible with the architecture of the principal building(s) on the property. 6. Shall not impede access to or egress from principal buildings. Recommendations: 1. Only fixed, noncombustible ashtrays should be used. 2. Noncombustible rubbish containers with lids should be used. 3. LP gas containers shall be located six (6) feet from heat sources unless they are integral to the structure. H:\CC\2008\02-19\outdoor smoking areas rpt.doc 5