HomeMy WebLinkAboutA002 - Legal Opinion dated March 30, 2000 PKf . 3 - 31 -cC
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Curing People Ames,IA 50010
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March 30, 2000
The Honorable Ted Tedesco, Mayor
and Members of the City Council
of the City of Ames, Iowa
Re: Smoking in Restaurants, Regulation by Local Ordinance
Dear Mayor Tedesco and Council Members:
At its meeting of December 14, 1999, the Council adopted a motion that directed staff "to
investigate the possibility of the City regulating smoking in restaurants". The issue is whether this
matter has been pre-empted by the statutes of the State of Iowa.
Chapter 14213, Code of Iowa, establishes smoking prohibitions. Section 142B.2(1) states that:
"A person shall not smoke in a public place or in a public meeting except in a
designated smoking area."
The term"public place"is defined at subsection 142B.1(3), Code of Iowa, as:
".... all restaurants with a seating capacity greater than fifty ..."
With respect to the designation of a"smoking area", it is provided by subsection 142B.2(2), Code
of Iowa, that:
"Smoking areas may be designated by persons having custody or control of public
places, except in places in which smoking is prohibited by the fire marshall or by
other law, ordinance, or regulation(emphasis supplied)."
It would appear from the injection of the word"ordinance"into subsection 142B.2(2),Code of Iowa,
that the legislature did intend for cities to have the power to regulate smoking in restaurants, even
to the point of prohibiting the designation of a smoking area for a restaurant.
However, it must be noted that the last sentence of Chapter 142B, Code of Iowa, states:
"For the purpose of equitable and uniform implementation, application, and
enforcement of state and local laws and regulations, the provisions of this chapter
shall supersede any local law or regulation which is inconsistent with or conflicts
with the provisions of this chapter."
Therefore,whatever regulation of smoking in restaurants that the Council would adopt could not be
"inconsistent" or "in conflict" with the State statute. An ordinance to prohibit designation of a
smoking area in a restaurant would not be in conflict with the state law;but, regulation of smoking
in a restaurant with a seating capacity of less than fifty would be "inconsistent"with the State law.
The penalty for violation of a local regulation on smoking in a restaurant must also be consistent
with the state law. Section 142B.6, Code of Iowa, states:
"A person who smokes in those areas prohibited ... shall pay a civil fine pursuant to
Section 805.8, subsection 11, for each violation. `t
The penalty provided by Section 805.8(11) is a civil penalty of twenty-five dollars ($25.00) for
violations of Section 142B.6. Therefore, the maximum penalty that can be assessed under a local
ordinance against a person smoking in a restaurant or other public place is $25.00. (See Sec. 17.7(3)
Ames Code setting $25.00 as the penalty for smoking in a city building, CyRide bus, or other city
vehicle.) However, a greater penalty could be provided with respect to a restaurant operator who
failed to post"no smoking"signs that might be required under a city ordinance or who failed to take
action to effect a cessation of smoking done contrary to such signs.
There have not, as yet,been any reported court decisions or opinions of the Attorney General on this
issue. An opinion of the Attorney General of Iowa would, of course,be more authoritative.
Yours truly,
XJohn R. Klaus
City Attorney
JRK:gmw
c: Steve Schainker