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10.4. SR SR 04-06-2015City of Elk River Request for Action To Item Number Mayor and City Council 10.4 Agenda Section Meeting Date Prepared by Worksession Aril 6, 2015 Tina Allard, City Clerk Item Description Reviewed by E- Cigarette Regulation for Indoor Public Places Cal Portner, City Administrator Reviewed by Action Requested Council to review material and provide feedback. Background /Discussion In January the Council amended the tobacco ordinance in order to match legislative changes regarding e- cigarette (e -cig) licensing. The Council requested staff come back in spring with information about the Minnesota Clean Indoor Air Act (MCIAA) and e -cig usage in restaurants. In 2014, the Minnesota Legislature amended the MCIAA to restrict the use of e -cigs in certain places and also include their use within the definition of smoking for certain types of facilities. The types of facilities prohibited from allowing e -cigs are mostly local and state government buildings/ schools along with licensed daycares. Currently state law prevents tobacco smoking, via the MCIAA, in indoor public places and indoor places of employment, such as shopping malls and restaurants, private workplaces, common areas of hotels /apartments, home offices with more than one employee or with customers, private educational facilities, auditoriums and meeting rooms. The MCIAA does not prohibit the use of e -cigs at these same locations. Cities can be more restrictive than state law for tobacco and e -cig licensing. Cities that are more restrictive than state law have been adopting the MCIAA be reference into their ordinance to also include the prohibition of e -cigs. Some cities banning the use of e -cigs in indoor places include: • Austin • Bloomington • Duluth • Eden Prairie • Edina • Mankato • Minneapolis • Savage There is little information regarding the health and safety effects of e -cigs. There are more than 250 types of products on the market and the ingredients vary. Studies and state regulations take time to develop and there are opponents and supporters for both sides. P 0 W I R I 1 6Y NaA f RE] Some options for Council consideration: 1. Take no action This would continue to allow e -cig usage in indoor public places and indoor places of employment. A property owner could implement their own ban on e -cig usage. Mall of America and Target Field have prohibited the use of e -cigs on their premises. Locally, The Sunshine Depot has banned use. 2. Public locations City buildings and vehicles do not allow the use of e -cigs. Per Parks and Recreation policy there is no tobacco use allowed in city parks. E -cigs do not use tobacco in them. 3. Public /private locations The city can amend the ordinance to prohibit the use of e -cigs to include the same areas as the MCIAA. This would prohibit the use of e -cigs in all locations that tobacco is currently prohibited, such as restaurants, stores, home offices, etc. Financial Impact N/A Attachments • Freedom to Breathe General Information • E -cigs and the MCIAA • Sample ordinance Edina • News Article Environmental Health, Indoor Air Unit PO Box 64975 St. Paul, MN 55164 -0975 651- 201 -4601 Freedom to Breathe General Information Background The Freedom to Breathe (FTB) provisions amended the Minnesota Clean Indoor Air Act ( MCIAA) to further protect employees and the public from the health hazards of secondhand smoke. The FTB amendments became effective October 1, 2007. The MCIAA describes where smoking is prohibited, outlines the responsibilities of employers, managers and other persons in charge and lists exemptions that affect their workplaces and facilities. Public Health Issue Secondhand smoke is a leading cause of preventable death in the United States. "In 2005, it was estimated that exposure to secondhand smoke kills more than 3,000 adult nonsmokers from lung cancer, approximately 46,000 from coronary heart disease, and an estimated 430 newborns from sudden infant death syndrome."' According to the U.S. Surgeon General, there is no safe level of exposure to secondhand smoke. Secondhand smoke causes premature death and disease in children and in adults who do not smoke. Definition of "Smoking" "Smoking" means inhaling or exhaling smoke from a lighted tobacco product or any other lighted plant product intended for inhalation. Carrying a lighted tobacco product or lighted plant product is also considered smoking. Definition of "Indoor Area" "Indoor Area" means all space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than 50 percent of the combined surface area of the vertical planes [wall space] constituting the perimeter of the area, whether temporary or permanent. A [standard] window screen is not considered a wall. Smoking - prohibited areas Smoking is prohibited in virtually all indoor public places and indoor places of employment, including: • Bars, restaurants, and private clubs • Office and industrial workplaces • Retail stores • Common areas of rental apartment buildings, hotels and motels • Public transportation, including taxis • Work vehicles, if more than one person is present • Home offices with one or more on -site employees, or used as a place to meet or deal with customers — during work hours • Public and private educational facilities • Auditoriums, arenas and meeting rooms • Day care premises • Health care facilities and clinics Permitted smoking The law does not prohibit smoking in the following locations or circumstances: • Outdoor smoking, regardless of distance from building openings • Private places, such as private homes, residences or automobiles when they are not being used as places of employment • Sleeping rooms of hotels and motels • Cabs of commercial motor vehicles that weigh over 26,000 pounds • Family farm buildings, farm trucks and equipment, if certain conditions are met • Patients of licensed residential healthcare facilities in designated separate, enclosed areas that meet applicable regulations April 2012 Freedom to Breathe General Information — Page 2 • Patients in a locked psychiatric unit in a separated well - ventilated area, as approved by the treating physician • Tobacco product shops - when customers are sampling tobacco products • Approved scientific study participants • Traditional Native American ceremonies • Theatrical productions, that is, actors and actresses who are smoking as part of the theatrical performance • Disabled Veterans Rest Camp in Washington County Responsibilities of proprietors Employers and facility managers continue to play an important role in controlling smoking in their place of business. In general, they are required to: • Make reasonable efforts to prevent indoor smoking • Post "No Smoking" signs • Ask persons who smoke in prohibited areas to refrain from smoking and to leave if they refuse to do so • Use lawful methods consistent with handling disorderly persons or trespassers for any person who refuses to comply after being asked to leave the premises • Refrain from providing ashtrays and other smoking equipment • Refuse to serve noncompliant persons Outdoor smoking The MCIAA does not prohibit outdoor smoking, regardless of distance from building openings such as doors and windows. Compliance and Enforcement MDH has compliance authority over the MCIAA and may delegate compliance activities to local units of government. MDH, a local board of health or any affected person can request a court order directing a repeat MCIAA violator to stop. In addition to the compliance authority provided to MDH and local units of government, local law enforcement has the authority to issue petty misdemeanor citations to proprietors or individuals who knowingly fail to comply with the MCIAA. Local government ordinances Local governments retain the authority to adopt and enforce more stringent measures to protect individuals from secondhand smoke. Retaliation prohibited An employer, manager or other person in charge cannot fire, refuse to hire, penalize, discriminate or retaliate against an employee, applicant, or customer who exercises any right to a smoke -free environment provided under the MCIAA. For more information Contact the Minnesota Department of Health to receive a copy of the MCIAA, or to receive additional educational materials please visit the MDH website at: htlp://www.health.state.mn.us/freedomtobreathe Citation U.S. Department of Health and Human Services. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. Atlanta, Georgia: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006. Available from: htlp://www.surgeongeneral.gov/library /secondhands moke /report April 2012 Environmental Health, Indoor Air Unit PO Box 64975 St. Paul, MN 55164 -0975 651- 201 -4601 Electronic cigarettes and the Minnesota Clean Indoor Air Act Background The Minnesota Clean Indoor Air Act (MCIAA) is a state law that describes where smoking is prohibited, outlines the responsibilities of employers, managers, and other persons in charge and lists exemptions that affect their workplaces and facilities. • Buildings owned or operated by the state of Minnesota • Buildings owned or operated by cities, counties, townships, and other political subdivisions • Facilities owned by Minnesota State Colleges and Universities and the University of Minnesota • Buildings and vehicles owned or operated by In 2014, the Minnesota Legislature amended the public school districts MCIAA to restrict the use of electronic cigarettes in • Facilities licensed by Minnesota Department of certain places and also include use of electronic Human Services cigarettes within the definition of smoking for • Facilities that are licensed by the Minnesota certain types of facilities. Department of Health and also subject to federal For more information on the MCIAA provisions related to tobacco smoking, please see the "Freedom to Breath — General Info" fact sheet. Definition of "smoking" "Smoking" means inhaling or exhaling smoke from a lighted tobacco product or any other lighted plant product intended for inhalation. Carrying a lighted tobacco product or lighted plant product is also considered smoking. In facilities outlined by the legislature (see Affected areas) the definition of smoking includes inhaling and exhaling of vapor from electronic cigarettes or any other electronic delivery device as defined in Minnesota Statutes, section 609.685, subdivision 1. Affected areas In the following areas, the use of electronic cigarettes is subject to smoking restrictions and prohibitions: • Licensed day care, including family home daycare during hours of operation Health care facilities and clinics licensing requirements Permitted electronic cigarette use* The law does not prohibit use of electronic cigarettes in the following locations or circumstances: • Bars, restaurants, and private clubs • Private office and industrial workplaces • Private places, such as private homes, residences or automobiles, except home daycare during open hours • Hotels and motels • Retail stores • Private educational facilities • Patients of licensed residential healthcare facilities in designated separate, enclosed areas that meet applicable regulations • Patients in a locked psychiatric unit in a separated well - ventilated area, as approved by the treating physician *Local government ordinances or building policies may be more restrictive than the MCIAA. June 2014 E -cig General Information — Page 2 Outdoor use of electronic cigarettes The MCIAA does not prohibit the use of electronic cigarettes outdoors, regardless of distance from building openings such as doors and windows. Compliance and enforcement MDH has compliance authority over the MCIAA and may delegate compliance activities to local units of government. MDH, a local board of health, or any affected person can request a court order directing a repeat MCIAA violator to stop. Local government ordinances Local governments retain the authority to adopt and enforce more stringent measures related to the use of electronic cigarettes. Retaliation prohibited An employer, manager or other person in charge cannot fire, refuse to hire, penalize, discriminate or retaliate against an employee, applicant, or customer who exercises any right provided under the MCIAA. For more information Contact the Minnesota Department of Health to receive a copy of the MCIAA, or to receive additional educational materials please visit the MDH website at: httD://www.health.state.mn.us/freedomtobreathe June 2014 ORDINANCE NO. 2014 -11 AN ORDINANCE AMENDING CHAPTERS 12,20 and 24 OF THE EDINA CITY CODE CONCERNING TOBACCO AND ELECTRONIC DELIVERY DEVICES THE CITY OF EDINA ORDAINS: Section I. Saction 12 -189 of the Edina City Code is amended by adding and amending the following definitions: Sec. 12 -189. Definitions. Electronic delivery devioe and e cigarette mean any product containing or delivering nicotine, lobelia, or any other substance intended for human consumption that can be used by a person to simulate smoking in the delivery of nicotine or any other substance through inhalation of vapor from the product. Electronic delivery device includes any component part of a product, whether or not marketed or sold separately. Electronic delivery device does not include any product that has been approved or certified by the United States Food and Drug Administration for sale as a tobacco-cessation product, as a tobacco - dependence product, or for other medical purposes, and is marketed and sold for such an approved purpose. 9nokincLounue means a location licensed to sell tobacco products where. U Except for a bona fide sale of a smoking device, providing or otherwise making available for use bX a customer, potential customer, or any other person a smoking device for the purpose of smoking any tobacco product: U Providing in exchange for a fee or any other consideration seating within or access to the indoor area of a tobacco products shop; or U Permitting within the indoor area the sampling of any tobacco product which was not furnished by the tobacco products shop on the date and at the time the sampling occurs. Toba000-related device means any tobacco product as well as a pipe, rolling papers or other device intentionally designed or intended to be used in a manner which enables the chewing, sniffing, or smoking of tobacco or tobacco - related products. The term "tobacco- related device` includes electronic delivery devices. Vapor lounge means a location that sells electronic delivery devices where: (a) Except for a bona fide sale of electronic delivery devices, providing or otherwise making available for use by a customer, potential customer, or any other person a device or product for the purpose of using an electronic delivery device product: U Providing in exchange for a fee or any other consideration seating within or access to the indoor area of a shop that sells electronic delivery devices: or U Permitting within the indoor area of a shop that sells electronic delivery devices the samplinc o� f any electronic delivery 177161v1 Ordinance No. 2014 -11 Page 2 device oroduct which was not furnished by the shoo on the date and time the sampling occurs Section 2. Chapter 12 of the Edina City Code is amended by adding section 12 -56 to read as follows: 12 -56. Snoking and VWor Lounges S'nokin. Iq_oun= and vapor lounges are prohibited. Section 3. Chapter 20 of the Edina City Code is amended by adding Article X to read as follows: ARTICLEX. CLEAN INDOORAIRACT Division 1. Generally. 20 -60. Adoption of Minnesota Clean Indoor Air Act by reference: prohibition on use of electronic delivery devices in public places. (a) The following terms and phrases, when used in this Article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Indoor area means all space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than fifty percent (50°/o) of the combined surface area of the vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent. A 0.011 gauge window screen with an 18 by 16 mesh count is not a wall. Public place means any enclosed, indoor area used by the general public, including, but not limited to, restaurants: bars; any other food or liquor establishment: retail stores and other commercial establishments: educational facilities other than public schools, as defined in section 120A.05, subdivisions 9, 11, and 13: hospitals; nursin_ homes: omes: auditoriums: arenas; meetin_ rooms: ooms: and common areas of rental apartment building (b) Minnesota statutes §§ 144.411 to 144.417 are hereby adopted by reference and are made a part of this article as if set out in full. (c) The use of electronic delivery devices is prohibited in all public places. Section 4. SBction 24 -282 of the Edina City Code is amended to read as follows: 177161v1 Ordinance No. 2014 -11 Page 3 Sec. 24 -282. Tobacco and electronic delivery device use prohibited in public parks. In addition to the requirements of sections 24 -254 and 24 -255, the use of electronic delivery devices and tobacco in any form is prohibited in public parks, indoor or outdoor. Section 5. This ordinance is effective immediately upon its passage and publication. First Reading: Second Reading: Published Attest 177161v1 August 4, 2014 Waived August 14, 2014 Debra A. Mangen, City Clerk .times B. Hovland, Mayor 3/30/2015 City of Savage bans indoor tobacco sampling, further regulates a -cig use - Savage Pacer: Local City of Savage bans indoor tobacco sampling, further regulates a -cig use By ALEX HALL ahall @swpub.com I Posted: Tuesday, November 4, 2014 3:00 pm The Savage City Council voted Monday to prohibit customers from sampling tobacco products indoors at smoke shops, and it also drastically shortened the list of public places in which you can use electronic cigarettes (e- cigarettes). At its Monday, Nov. 3 meeting, the Council voted unanimously to amend a tobacco - related ordinance in order to ban in -store sampling as well as e- cigarette use in places like restaurants, retail stores and workplaces. "What this is doing is basically banning the sampling of tobacco products — which includes e- cigarettes — and then also making the use of e- cigarettes consistent with the no- smoking policies put in place by the state," said Savage City Attorney Ric Rosow. Savage City Council Savage City Council members include Christine Kelly, Gene Abbott, Jane Victorey, Al McColl and Mayor Janet Williams. The Council previously voted in February to place a one -year moratorium on indoor sampling to give the city time to develop a long -term solution in response to the issue. E- cigarette establishments, "vaping lounges" and "related lounges" were also included in the temporary ban. Several metropolitan cities have enacted similar bans to halt action while studies are done to determine the best course of action. Shakopee enacted a moratorium on so- called "hookah lounges" last December, and Prior Lake enacted one in January. During a Sept. 8 workshop, the Council was presented with several regulatory options regarding hookah lounges and indoor e- cigarette use. Had the Council not taken action before February, the moratorium would have ended and indoor sampling in retail stores would have again been allowed. E- CIGARETTES Minnesota's Clean Indoor Air Act of 2007 prohibits people from using e- cigarettes — or "vaping" — in places such as day cares; health care facilities; buildings owned or operated by the state of Minnesota, cities, counties, townships, and other political subdivisions; buildings and vehicles owned or operated by public school districts; and facilities licensed by Minnesota Department of Human http://www.swnewsmedia.com/savage� pacer/ news /local /city -of- savage- bans -i ndoor- tobacco -sam pl i ng- further -regul ates- a /article_8d5f32bc- 29e2 -5c35- 9850 -7... 1/2 3/30/2015 City of Savage bans indoor tobacco sampling, further regulates a -cig use - Savage Pacer: Local Services and /or the Minnesota Department of Health. The city of Savage has now extended that list by making it illegal in the city to use e- cigarettes in any establishment where tobacco use is restricted by the Clean Indoor Air Act. That means it is now illegal in Savage to vape in bars, restaurants, and private clubs, office and industrial workplaces, retail stores, common areas of rental apartment buildings, hotels and motels, public transportation, including taxis; work vehicles, if more than one person is present; home offices with one or more on- site employees, or used as a place to meet or deal with customers (applicable only during work hours); public and private educational facilities; and auditoriums, arenas and meeting rooms. Eden Prairie took similar action in February, and at September's workshop, the Savage Council directed city staff to model an amendment to the city's tobacco licensing code after the ordinance Eden Prairie has regarding indoor public e- cigarette use. While proponents of e- cigarettes argue that they are healthier alternatives for inhaling nicotine and better for public health because they don't produce smoke, some say there is not enough research yet to know the impacts of e- cigarette use — both first -hand and second -hand. HOOKAH LOUNGES Minnesota's Clean Indoor Air Act allows retail establishments to offer sampling of tobacco products, but the definition of sampling is open to interpretation, creating gray areas when it comes to smoking products indoors. This has led some smoke shops to offer sampling rooms or "hookah lounges." A hookah is a standing water pipe, often with multiple "hoses," that is used to smoke flavored tobacco. Concerns surrounding hookah lounge operations include potential fire code violations, electrical hazards, commercial zoning violations, and air- quality issues. Assistant City Attorney Sarah Schwarzhoff said at September's workshop that with the prices of some cigars, "it's not an unreasonable thing" for customers to want to sample a product before buying an entire box of it. However, some stores are using the sampling exception as a way to create recreational lounges, which Schwarzhoff said is not honoring the intent of the exception. "Where we begin to see problems is where we see actual lounges, couches and everybody sitting around [smoking] for hours," Schwarzhoff said in September. "In Burnsville, they were having problems with noise, parking, the smell." http://www.swnewsmedia.com/savage� pacer/ news /local/ city -of- savage- bans -i ndoor- tobacco -sam pl i ng- further -regul ates- a /article_8d5f32bc- 29e2 -5c35- 9850 -7... 2/2 MCIAA Regulates where smoking is prohibited to protect Public from second hand smoke Smoking is defined as inhaling/exhaling of a lighted tobacco/plant product intended for inhalation. Last year legislature changed the definition to include the vaping of c-cigarettes but only for certain facilities. Tobacco & E-cigarettes prohibited L per A4C1AA • Local & state government buildings • Public schools & vehicles • Licensed daycares • Health care facilifies/clinics, Per 10CfgA Tobacco prohibited E-cigarettes allowed Indoor public places and indoor places of employment • Malls • Restaurants • Private workplaces • Common areas of hotels/apartments • Home offices with more than 1 employee or with customer., Private schools Auditoriums NICeting rooms