Hennepin County, MN Smoke-Free Ordinance

Type: Ordinance

Status: Adopted in 2005

Source File: http://tinyurl.com/yppuaa

Text:

ORDINANCE NO. 24 SMOKE-FREE ORDINANCE
“The Hennepin County Board of Commissioners does ordain:”

SECTION 1: PURPOSE.
1.01 Purpose. This Ordinance is enacted to protect the health, safety, and general welfare of the people of Hennepin County pursuant to powers granted under Minnesota Statutes Chapters 145A and 375 and subsequent recodifications and/or amendments, and other applicable legislation, as may be adopted from time to time.

1.02 Objectives. The principal objectives of this Ordinance are:

A. To prevent secondhand smoke exposure and its adverse health effects on patrons and employees of Food Establishments; and

B. To protect, in particular, the health of vulnerable populations including children and those with chronic health conditions.

SECTION 2: GENERAL PROVISIONS.
2.01 Scope. This Ordinance shall be applicable to all Food Establishments.

2.02 Prohibitions.

A. Smoking is prohibited in the indoor areas of Food Establishments unless otherwise excluded.

B. Nothing in this Ordinance shall prevent the proprietor or other Person in Charge of any place including, without limitation, any residence, motor vehicle or outdoor space, from prohibiting smoking in any such place.

C. Nothing in this Ordinance shall prevent other local levels of government within Hennepin County from adopting measures to protect citizens from secondhand smoke.

D. This Ordinance is intended to complement the Minnesota Clean Indoor Air Act, Minnesota Statutes, Sections 144.411 to 144.417, or other applicable law, as amended from time to time. Nothing in this Ordinance authorizes smoking in any location where smoking is prohibited or restricted by other laws.

2.03 Exclusions. This Ordinance does not apply to:

A. Outdoor spaces of Food Establishments.

B. Locations where smoking is expressly authorized by state or federal law, rule, or regulation.

C. The use of tobacco as part of a recognized religious ritual or activity.

D. Guest rooms of a hotel or motel.

E. Food Establishments located in a house of worship when the food service is limited to preparation, service or consumption by the members of the house of worship and not advertised to the public.

F. Food Establishments granted exemption from the requirements of Section 2.02 of this Ordinance by the Health Authority as specified in Section 6 of this Ordinance.

G. The exclusions contained in this section shall not apply to an individual, organization or activity which is established or undertaken to avoid compliance with this Ordinance.

2.04 Jurisdiction. This Ordinance shall apply throughout all of Hennepin County as follows:

A. A statutory or home rule charter city that maintains a delegation of authority agreement with the Minnesota Department of Health and/or the Minnesota Department of Agriculture to regulate Food Establishments pursuant to Minnesota Statues 145A.07 and/or 28A.075 may either:

1. Elect to enforce this Ordinance and subsequent recodification and/or amendments, as may be adopted from time to time, or a local ordinance; or
2. Provide verification to Hennepin County of its intention to have the Health Authority enforce this Ordinance and subsequent recodification and/or amendments, as may be adopted from time to time, by submitting a resolution of the City Council or authorized City official to Hennepin County.

B. The Health Authority shall be responsible for enforcing this Ordinance and subsequent recodification and/or amendments, as may be adopted from time to time, for areas within its delegation of authority agreement with the Minnesota Department of Health and the Minnesota Department of Agriculture to regulate Food Establishments pursuant to Minnesota Statutes 145A.07 and 28A.075. The Health Authority shall also be responsible for enforcing this Ordinance:

1. In Food Establishments in cities under the provisions in section 2.04, subpart A., 2., of this Ordinance; and
2. In Food Establishments not delegated by the Minnesota Department of Agriculture pursuant to Minnesota Statutes 28A.075 located within cities maintaining a delegation of authority agreement with the Minnesota Department of Health pursuant to Minnesota Statutes 145A.07.

SECTION 3: DEFINITIONS.
3.01 Food Establishment. “Food Establishment” means those establishments defined in Minnesota Rules 4626.0020, subpart 35, including an establishment that has an on-sale non-intoxicating malt liquor license; an on-sale intoxicating liquor license; an on-sale wine license and/or strong beer liquor license issued by the State of Minnesota, the municipality within which it is located, or Hennepin County.

3.02 Health Authority. “Health Authority” means the Hennepin County Human Services and Public Health Department and its designated employees, agents, or contractors, as the Hennepin County Board may designate.

3.03 Other Person in Charge. “Other Person in Charge” has the meaning specified in the Minnesota Clean Indoor Air Act Rules, Minnesota Rules, part 4620.0100, subpart 10, as amended from time to time.

3.04 Private Club. “Private Club” means a nonprofit organization incorporated under the laws of the State of Minnesota for civic, fraternal, social, or business purposes; for intellectual improvement; for promotion of sports; or for a congressionally chartered veterans’ organization which can verify that it:

A. Has more than 50 members; and

B. Has owned or rented a building or space in a building for more than one year that is suitable and adequate for the accommodation of its members; and

C. Is directed by a board of directors, executive committee, or other similar body chosen by its members at a meeting held for that purpose. No member, officer, agent, or employee shall receive any profit from the distribution or sale of beverages to the members of the club, or their guests, beyond a reasonable salary or wage fixed and voted upon each year by the governing body; and

D. Does not restrict its membership on the basis of race, color, creed, religion, or national origin.

3.05 Proprietor. “Proprietor” has the meaning specified by the Minnesota Clean Indoor Air Act Rules, Minnesota Rules, part 4620.0100, subpart 13, as amended from time to time.

3.06 Smoking. “Smoking” means the inhaling, exhaling or combustion of any cigar, cigarette, pipe, tobacco product, weed, plant or any other similar article. “Smoking” includes possessing or carrying a lighted cigar, cigarette, pipe or any other lighted smoking equipment.

SECTION 4: ADMINISTRATION. Except where otherwise specified, this Ordinance is subject to all provisions of the Hennepin County Administrative Ordinance, Ordinance No. 1, as may be amended from time to time.

SECTION 5: RESPONSIBILITIES OF PROPRIETORS.
5.01 Proprietors or other Person in Charge shall:

A. Post “no smoking” signs that comply with the requirements for sign placement and size of letters consistent with the Minnesota Clean Indoor Air Act Rules, Minnesota Rules, part 4620.0500, as may be amended from time to time; and

B. Ask any person who smokes in an area where smoking is prohibited to refrain from smoking and, if the person does not refrain from smoking after being asked to do so, ask the person to leave the Food Establishment.

SECTION 6 : EXEMPTIONS.
6.01 Exemption Criteria. Food Establishments meeting either one of the following criteria are eligible for an exemption from the requirements of Section 2.02 of this Ordinance:

A. The Food Establishment’s sales of beer, non-intoxicating malt liquor, 3.2 percent malt liquor, wine, and intoxicating liquor are more than fifty percent of its total gross sales of food and beverages, as reported to the Minnesota Department of Revenue and/or local municipality for the preceding calendar year.

B. Private Clubs, except when they are open to serve food and/or beverages to the public that are not members. Guests accompanied by members are considered to be members. No Private Club shall be exempt from the smoke-free provisions of this Ordinance if it is established to avoid compliance with this Ordinance.

6.02 Exemption application and approval process.

A. Applicants claiming exemption allowed under Section 6.01 A. of this Ordinance, shall at least annually, or as often as requested, provide to the Health Authority a copy of the food and liquor sales records as provided to the Minnesota Department of Revenue and the local municipality from the most recent calendar year. The application shall be submitted in a form determined by the Health Authority and shall be due by June 1 of each year, except that the due date for the initial request for exemption shall be January 30, 2006. The information shall be provided under oath and penalty of perjury. The application shall be the basis for demonstrating whether the Food Establishment is eligible for continued exemption. Initial exemptions shall be from the effective date of this Ordinance through June 30, 2006. Thereafter the term of exemptions shall be July 1 through June 30.

B. Persons seeking to open a Food Establishment exempt from the smoke-free requirements of Section 6.01B of this Ordinance shall provide a notarized affidavit and agreement to the Health Authority at the same time their initial food and/or beverage license applications are submitted to the Health Authority. The affidavit, in a form determined by the Health Authority, shall be due by June 1 of each year, except that the due date for the initial request for exemption shall be January 30, 2006. The information shall be provided under oath and penalty of perjury. The application shall be the basis for demonstrating whether the Food Establishment is eligible for continued exemption. Initial exemptions shall be from the effective date of this Ordinance through June 30, 2006. Thereafter the term of exemptions shall be July 1 through June 30.

6.03 Exemptions are not transferable. Exemptions to the requirements in 2.02 of the Ordinance issued by the Health Authority as described in Section 6 of this Ordinance are not transferable.

SECTION 7: APPEALS.
7.01 Right of Appeal. Where an exemption application or renewal is denied or a Proprietor receives a suspension, summary suspension, or revocation notice, the applicant or Proprietor may appeal the action to the Health Authority by requesting an administrative hearing within ten County working days of the date of the notice. The notice of the action shall state the right to an administrative hearing.

7.02 Administrative Hearing. If any Proprietor makes a written request to the Health Authority for an administrative hearing, such hearing shall be held before the Health Authority Division Manager or his/her designee.

7.03 Schedule. The hearing shall be held no later than 45 calendar days after the date of service of the request for a hearing was received unless the appellant requests an extension of time. If an extension is requested, the hearing shall be held no later than 90 calendar days after the date of service of the request for a hearing.

7.04 Notice. The Health Authority shall mail a notice of the time and place of the hearing at least ten calendar days prior to the hearing.

7.05 Witnesses and Evidence. All parties shall have full opportunity to respond to and present evidence and witnesses.

7.06 Standard of Proof. The appellant shall have the burden of proving its position by clear and convincing evidence.

7.07 Rules of Evidence. Hearings shall be informal and the rules of evidence as applied in the courts shall not apply. Irrelevant, immaterial and repetitious evidence shall be excluded.

7.08 Record of Hearing. The hearing shall be taped or videotaped.

7.09 Notice of Decision. The decision of the Health Authority Division Manager shall be issued within ten calendar days following the administrative hearing. Unless otherwise provided by law, the decision of the Health Authority shall constitute the final decision unless the County Board modifies or rejects it as provided in section 7.10.

7.10 County Board Review. Each party adversely affected may submit written exceptions and arguments to the County Board within ten calendar days of the service of the decision of the Health Authority Division Manager. The County Board shall consider the decision of the Health Authority at a board meeting and may adopt or modify the decision, reject the decision, or remand for further hearing.

7.11 Further Appellate Rights. Any party aggrieved by a final decision is entitled to judicial review of the decision. A petition for a writ of certiorari by the party must be filed with the Court of Appeals not more than thirty calendar days after the party receives the final decision from the County Board.

SECTION 8: ENFORCEMENT.
8.01 Inspections. Compliance with the requirements of this Ordinance will be verified:

A. As part of a routine Food Establishment inspection conducted by the Health Authority pursuant to Hennepin County Ordinance No. 3, Food Protection Ordinance; or

B. As part of routine Food Establishment inspection conducted by a statutory or home rule charter city that maintains a delegation of authority agreement with the Minnesota Department of Health and/or the Minnesota Department of Agriculture to regulate food establishments pursuant to Minnesota Statues 145A.07 and/or 28A.075; or

C. As part of a complaint investigation.

8.02 Access to premises and records. The proprietor or other Person in Charge shall, upon the request of the Health Authority and after proper identification, permit access to all parts of the establishment as often as necessary, and at any reasonable time for the purpose of inspection and shall exhibit and allow copying of any and all records necessary to ascertain compliance with this Ordinance.

8.03 Interference with the Health Authority. No person shall in any way interfere with or hinder the Health Authority in the performance of duties, or refuse the Health Authority to make such inspections.

SECTION 9: PENALTY.
9.01 Misdemeanor. Any person who violates this Ordinance, or who permits a violation to exist on the premises under his/her control, or fails to take action to abate the existence of the violation(s) within a specified time period, when ordered or notified to do so by the Health Authority, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished as provided by law. Each day of violation constitutes a separate offense.

9.02 Adverse license action. Violation of any provision of this Ordinance by a proprietor or other Person in Charge shall be adequate grounds for the denial, refusal to renew, revocation or suspension of a license to operate a Food Establishment as determined by the Health Authority.

9.03 Civil remedies. In the event of a violation or a threat of violation of this Ordinance, the City Attorney or County Attorney may take appropriate action to enforce this Ordinance, including application for injunctive relief, action to compel performance, or other appropriate action in court, if necessary, to prevent, restrain, correct, or abate such violations or threatened violations. The City Attorney or County Attorney enforcing provisions of this Ordinance may seek costs and dispursements, including attorneys’ fees.

9.04 Citations. Whenever the Health Authority discovers a violation of this Ordinance, a citation may be issued to the person alleged to have committed the violation. The citation shall be issued to the person charged with the violation, or in case of a corporation or municipality, to any officer or agent expressly or impliedly authorized to accept such issuance.

SECTION 10: FEES. Fees for the initial application and renewal of exemptions allowed under Section 6 of this Ordinance, complaint investigation, verification, and enforcement of violations of this Ordinance in Food Establishments shall be those established by resolution, as amended from time to time, of the Hennepin County Board of Commissioners.

SECTION 11: SEPARABILITY. If any provision or application of this Ordinance is held invalid, that invalidity shall not affect other provisions or applications of this Ordinance.

SECTION 12: CAPTIONS. The captions printed in boldfaced type before sections of this Ordinance are mere catch words to indicate the content of the section.

SECTION 13: EFFECTIVE DATE. After passage by the Hennepin County Board of Commissioners, this Ordinance shall take effect on January 3, 2006.

SECTION 14: EXEMPTION PROCESS EXPIRATION. All exemptions to this Ordinance allowed under Section 2.03F and Section 6 shall expire on July 31, 2007, all other Sections of this Ordinance shall remain in full force and effect after July 31, 2007.