HomeMy WebLinkAboutA010 - Legal Opinion dated October 4, 2000 City Attorney's Office Q�
515 Clark Avenue,P.O.Box 811
(:acing People Ames,1A 50010
(quality Progra ins Phone: 515-239-5146 • Fax: 515-239-5142
Euepfioual Service
October 4, 2000
The Honorable Ted Tedesco, Mayor
And Members of the Ames City Council
Re: Ordinance On Smoking
Dear Mayor Tedesco and Council Members:
As instructed by Council,the attached ordinance was prepared to prohibit the designation of smoking
areas in all food service establishments except those that have more than 50%of gross revenue from
sale of alcoholic beverages.
You will notice that the ordinance is crafted to demonstrate its connection to the state law at Chapter
142B Code of Iowa. The provisions of the ordinance operate within the parameters of the state law.
The ordinance is not in conflict with or inconsistent with the state law. What the ordinances does
is prohibit the designation of a smoking area in a certain specified kind of public place. Section
142B.2(2) Code of Iowa expressly provides that a smoking area shall not be designated in places
where smoking is prohibited by ordinance. This ordinance relies on that feature of the state law to
prohibit smoking in certain places to prevent the designation of smoking areas in those places.
To proceed with the enactment of this ordinance the Council should set a date of hearing, to meet
the requirements of Section 380.10 Code of Iowa, for an ordinance that adopts any portion of the
Code of Iowa by reference. The hearing can be set for the Council's next regular meeting. The
Council may adopt motions to amend features of the proposed ordinance.
Yours truly,
John R. Klaus
City Attorney
Encl.
ORDINANCE NO.
AN ORDINANCE TO AMEND THE MUNICIPAL CODE OF THE CITY OF
AMES,IOWA,BY ENACTING A NEW CHAPTER 21A CONSISTING OF
SECTIONS 21A.100 THROUGH 21A.300 FOR THE PURPOSE OF
PROHIBITING THE DESIGNATION OF SMOKING AREAS IN CERTAIN
PUBLIC PLACES IN ACCORDANCE WITH CHAPTER 142B CODE OF
IOWA;PROVIDING A PENALTY;AND ESTABLISHING AN EFFECTIVE
DATE.
WHEREAS,"smoking",as defined by Subsection 14213.1(4)Code of Iowa,is,by Subsection 14213.2(1)Code
of Iowa, prohibited in a "public place" as defined by Subsection 14213.1(3) Code of Iowa, except in a designated
"smoking area";and,
WHEREAS,"smoking areas"may be designated,pursuant to Subsection 142B.2(2)Code of Iowa,by persons
having custody or control of public places except in places where smoking is prohibited by ordinance;and,
WHEREAS,it is found that smoking areas have been designated in many restaurants in this city;and,
WHEREAS,it is found that the designation of smoking areas in restaurants has subjected patrons and employees
to the deleterious effects of tobacco smoke on their health,and curtailed the number of restaurants that can be enjoyed
by persons who have an allergy or other heightened sensitivity to smoke;and,
WHEREAS,it is deemed to be in the interest of the public health and the economic welfare of the community
that designation of smoking areas be prohibited in restaurants that are patronized,for the most part,by residents of this
city;
NOW,THEREFORE,be it ordained,by the City Council for the City of Ames,Iowa;
Section One. The Municipal Code of the City of Ames,Iowa shall be and the same is hereby amended by adding
a new Chapter 2 1 A as follows:
"CHAPTER 21A
SMOKING IN PUBLIC PLACES
Sec.21A.100. PURPOSE.
The purpose of the provisions of this chapter, Sections 21A.100 through 21A.300 of the
Municipal Code of the City of Ames,Iowa,is to augment the provisions of chapter 14213,Sections
14213.1 through 14213.6 Code of Iowa,by prohibiting smoking, as smoking is defined by Section
14213.1(4)Code of Iowa,in certain public places,as `public place' is defined in Section 14213.1(3)
Code of Iowa, to prevent the designation in those certain public places of any smoking area in
accordance with Section 142B.2(2)Code of Iowa.
Sec.21A.101. PUBLIC PLACES WHERE SMOKING IS PROHIBITED.
Smoking,as definedby Subsection 142B.1(4)Code oflowa,is prohibited in any establishment
that is a`public place'as defined by Subsection 14213.1(3)Code of Iowa,where food is prepared or
served for individual portion service intended for consumption on the premises of the establishment
and subject to the Iowa sales tax.
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Sec.21A.102. DESIGNATION OF SMOKING AREA PROHIBITED.
The person having custody or control of any establishment that is a`public place' as defined
by Section 14213.13 Code of Iowa,where food is prepared or served for individual portion service
intended for consumption on the premises of the establishment shall not designate any part or portion
of that establishment as a smoking area pursuant to Section 142B.2(2)Code of Iowa.
Sec.21A.200. EXCEPTION FOR INTERSTATE TRUCK STOPS.
The provisions of Section 21A.101 and 21A.102 shall not apply to an establishment that:a)
is located within 1,000 feet of Interstate Highway 35,b)provides parking places for more than twelve
semi-tractor trailers,and c)has filed with the City Clerk the sworn affidavit of the person in custody
and control of the establishment that the establishment has,in addition to its food service sales,sales
of diesel fuel that on average,over a calender year,amount to more than twelve thousand gallons per
month,as shown by records made in the regular course of that establishment's business and filed with
the said affidavit.
Sec.21A.201. EXCEPTION FOR ALCOHOLIC BEVERAGE ESTABLISHMENTS.
The provisions of Section 21A.101 and 21A.102 shall not apply to an establishment that has
filed with the City Clerk the affidavit of the person in custody and control of the establishment,that
the establishment has monthly sales of alcoholic beverages,as defined by Section 123.3(4)Code of
Iowa,for consumption on the premises of the establishment that,on average,over a calendar year,
amount to more than 50%of the average monthly gross revenue of the establishment,as shown by
records made in the regular course of that establishment's business and filed with the said affidavit.
Sec.21A.300. PENALTY.
1. Designation of a smoking area in violation of Section 21A.102 shall be a municipal
infraction punishable by a civil penalty of$500 for a person's first violation thereof,and a penalty
of$750.00 for each repeat violation.
2. Smoking in violation of Section 21A.101 shall be a municipal infraction punishable by
a penalty of$25.00."
Section Two. If any section, subsection, sentence, clause or other part or portion of this ordinance shall be
adjudicated invalid,all the rest and remainder of this ordinance shall be and remain in full force and effect.
Section Three. Violation of this ordinance shall constitute a municipal infraction punishable as herein provided.
Section Four. All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such
conflict,if any.
Section Five. This ordinance shall be in full force and effect on January 5, 2001.
Passed this day of
Diane R.Voss,City Clerk Ted Tedesco,Mayor
0594
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