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Home My WebLink AboutA008 - Legal Opinion dated September 12, 2000 t 440,41Ld daio - City Attorney's Office 515 Clark Avenue,P.O.Box 811 Caring People Ames,IA 50010 Quality ProgTa 1u Phone: 515-239-5146 • Fax: 515-239-5142 Evepinrwl Service September 12, 2000 The Honorable Ted Tedesco, Mayor, and Members of the City Council SEP 2 20 of the City of Ames, Iowa CiSl'CLEFIK Re: Smoking Ban State Law Preemption CITY OF AMES,WA Dear Mayor Tedesco and Council Members: On Monday morning,the Mayor suggested that I recirculate my legal opinion because he expected that someone might argue to the Council that the state legislature intended to preempt cities from enacting an ordinance that was more restrictive than state law,based on the last phrase of Chapter 142B, Code of Iowa: "... the provisions of this chapter shall supersede any local law or regulation which is inconsistent with or conflicts with the provisions of this chapter." (emphasis supplied) It was and is my opinion that a local ordinance to ban smoking in restaurants is not"inconsistent" or in "conflict"with state law because Section 142B.2(2) expressly states that smoking cannot be allowed where it is prohibited by ordinance. You will recall that when we last discussed this matter, I pointed out that the Iowa law definition of "food service establishment" is very broad and inclusive. See the attached letter of July 18, 2000. Yours truly, John R. Klaus City Attorney JRK:gmw Enclosure f . 7-al-oo • Al Attorney's Office 515 Clark Avenue,P.O.Box 811 Caring People Ames,IA 50010 Quality Programhone: 515-239-5146 •Fax: 515-239-5142 Luephonal.Service July 18, 2000 The Honorable Ted Tedesco, Mayor and Members of the City Council of the City of Ames, Iowa Re: Local Ordinance to Restrict Smoking in Restaurants Dear Mayor and Council Members: With this is a legal opinion concluding that the City can place smoking restrictions on restaurants of any size to disallow the designation of smoking areas in those establishments. If the Council should decide to proceed further in that regard, it should give an indication of what it regards as a "restaurant". The term "restaurant" is not defined in the state law. The terms used in the "food code" promulgated by the Iowa Department of Inspections and Appeals is "food service establishment". That term is defined at 481 IAC 30.2 as follows: "Food service establishment"means a food establishment where food is prepared or served for individual portion service intended for consumption on the premises or subject to Iowa sales tax as provided in Iowa Code Section 422.45. That definition includes a wide array of varied premises. A list can be provided by the City Sanitarian. Yours truly, John R. Klaus City Attorney JRK:gmw Attachment - City Attorney's Office 515 Clark Avenue,P.O.Box 811 Caring People Ames,IA 50010 Quality Programs Phone: 515-239-5146 •Fax: 515-239-5142 Fxrepliorral Service July 13, 2000 _ The Honorable Ted Tedesco, Mayor, �lu� 20�� ' 7 and Members of the City Council of the City of Ames, Iowa CITti C`ES,►S I CITY OF;�N! IOWA Re: Ordinance to Ban Smoking in Restaurants Dear Mayor Tedesco and Council Members: The legal issue is whether a local ordinance to ban smoking in all parts of all food service establishments, disallowing the designation of any smoking section,without regard to the size of the establishment,would be consistent with the state law, or in conflict with the state law. Chapter 142B, 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." 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 word "ordinance" in 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. A related question is whether the state law shields restaurants of less than fifty seats from such an ordinance. It was reported in the press, at the time of enactment of the state law that placed restrictions on smoking in restaurants, that the legislation exempted restaurants of less than fifty seats. (See the attached Des Moines Register article of April 8, 1990.) If the legislature did intend to exempt those small establishments, than a local ordinance to ban smoking in those places could be deemed inconsistent with the state law. The state law on smoking in restaurants is a result of BF209 enacted in 1990. As initially filed,the bill deleted the words"... a restaurant"from the list of places specifically not included under the state smoking restrictions, and added the words"... all restaurants ..."to a non-exclusive list of examples of places that the restrictions did apply to. While the bill was in committee it was amended to add the words: "...with a seating capacity greater than twenty-five ..." following the word"restaurant". A subsequent amendment changed"twenty-five"to "fifty". The addition of the "seating capacity greater than fifty" wording appears to have caused the Des Moines Register to report that the laws restrictions applied only to restaurants of more than fifty seats. That may have been what the sponsor of the amendment was attempting. If so, it was a failed attempt. The wording appears only in an expressly non-limiting list of examples. If the legislature had intended to exclude restaurants of less than fifty seats, it could have added wording to the law's list of places not included. The legislature did not do that. Therefore, a local ordinance that bans smoking in every food service establishment, including those with less than fifty seats,would not be inconsistent with or in conflict with the legislative intent of the state law. Respectfully submitted, John R. Klaus City Attorney JRK:gmw Enclosures . Is kimbd at allowing parents to pie&(' 7wr. IVY I VP w.ry wa u. ... w.. reauiromenn of Vale o"Kies. 91 . To gov- et'ence a their case to immediately regain CUB- .er . �� — Rote« to rn. han,:f.r of w- as part of a au tody of a chi who has been placed!n propriai�ts between state agencies. 31-». To bw expected to be a enl foster care. governor. �'g Y H.F. 2M — �tuttwrhas Ito Iowa Deport- makers before they , 'The bill, approved 52-1 in the meat of corrections to consider two prison yr. Ffouse and sent to the governor, was oroNct&•t Oakdale.»-a To gov- The HouseAast'wt prompted by an 'Iowa City case in tl.F. sas — Regukes state eotyai workers• amendment to the i 14brua in which a couple waited to no"wO0"rt o"icw&"m,,wxf ateh'wtteet ry p t.rtwor.rgy Pt.ce . this in tosser,can. t� would have, require over a weekend for the court to open To governor. H.F.2U6 — Estabttshos Procedures%r re- three or more drank to regain their children after the porting wild-growing martp.am to ttte.iowa victions to forfeit tb fgther was arrested on minor traffic Department of f�ubitc safety. �1-& To .ever- mobiles. The law al aor. M,E�22f6_-_EilaWlfhel�llldlnOsssk'_ — V�Qlati ,tans program fix qw-�ncorrte v w l i.96-t To M � r is* An increase in penalties.for re- go _ Permits ,,,,, ,o make st>a- Critics of the ewer • pt>sat violators of Iowa hunting and clot Property tax issasments against property that drpIIkED drivers owners to *"rate heatth or safety hazards. ausp�siob and drive fishing laws. 9g-10.To govarnor. H.F. 309 — Establishes,smoking and no- In the Senate, m, A"It-A state licensing requirement for sw ts.smoking sections in restauran IS-S.To got►- balked at the propo� blood bank3 and plasma centers.Sap- sF.� _ Appropriates noev for trans- to automobile, sayi porters say the state needs to become portation Programs•61-29. To governor. �pv_olv_ed as ui'in the qualit S.F. ='n — Appropriates federal block pose unfair hardship g y grants. 16-0_To Governor. of the blood supply because o th — s•F.ui - Moeinas f c r a Y rn�n �hO�O! P for&man businesses.W-0. To governor. car. spiread of AIDS. The compromise, 1 - ate Judiciary Coma • RWwd Varn,D-Solt •: • in Minnesota) and o ki n ��re tricted- calls.�or a specially ta�rant smo � w�aResplate. le • Would, in effect, giv( Smokers who light up in public places where smoking is banned could be be stopped at any V fined $25 and smoking in larger restaurants would be restricted under a bill cers. given final legislative approval Saturday by the Iowa.House. I That would allow hair- easily detect violatit For non-smokers, the legislation.means "you can have a meal without i4g to'choke and cough,"said Rep.Johnie Hammond.D-Ames. dr am iver's lit d B soap ore an 50 people would be required to have sep- ow for smokers and non-smokers. Hammond estimates that about Transportation wou arate'sections h�11f of Iowa restaurants now restrict smoking to designated areas. code for,the special ..Lawmakers of Iowa re raised the fine for breaking the law regulating smoking in the Plate probably lic places from $10 to$25. They also waived civil court filing fees for peo- lice r licenses special three-letter c ' 1*wbo file complaints against smokers. A final votk on t titics of the pteaent anti-smoking law say it is virtually.unenforceable be- oAuse.ofits weak penalties. chambers was expec Other elements o; --The smoking bill exempts small stores, offices and malls with 250 squarecommittee fnprom feat of space or less. Under present law, stores regardless of their wise must fa Eliminating fro restrict smoking to designated areas, and the threshold for offices and malls Edon of the crime bil subject to the law is 300 square feet of space. proposal to requirt -The bill also prohibits local governments from adopting ordinances morefor crime victims_ strict_thanihestate la�►�lating-smok-inin—public places. T police reports.