A. The owner of an existing restaurant may apply for a hardship smoking exception to allow smoking throughout the restaurant, if compliance creates an undue financial hardship.
B. For purposes of this section only, an "undue financial hardship" for the initial hardship smoking exception means at least a fifteen percent (15%) reduction in state sales tax receipts from the sale of food and nonalcohol beverages for two (2) consecutive months wherein the restaurant has operated smoke-free as compared to the same two (2) consecutive months during the year prior to compliance with this chapter. For restaurants which have not been open for an entire year prior to the date of application for a hardship smoking exception, an "undue financial hardship" for the initial hardship smoking exception means at least a fifteen percent (15%) reduction in state sales tax receipts from the sale of food and nonalcohol beverages for two (2) consecutive months wherein the restaurant has operated smoke-free as compared to the two (2) consecutive months immediately prior to those two (2) months of smoke-free operation. For purposes of this section only, an "undue financial hardship" for subsequent hardship smoking exceptions means at least a fifteen percent (15%) reduction in state sales tax receipts from the sale of food and nonalcohol beverages for two (2) consecutive months wherein the restaurant has returned to operating smoke-free as compared to the same two (2) consecutive months of the immediately preceding year during which the restaurant operated under a hardship smoking exception. Such a showing shall constitute prima facie evidence and a rebuttable presumption of an undue financial hardship.
C. The initial application for a smoking hardship exception must be made within one hundred twenty (120) days from the effective date of this ordinance. Subsequent applications for a smoking hardship exception shall be made as indicated in this section. If application for a smoking hardship exception is not made within the time periods set forth in this section, the restaurant must be smoke-free.
D. An initial hardship smoking exception application shall be submitted to the health department and shall contain the following:
1. A description of all efforts made, or which reasonably could be made, to operate the restaurant successfully as a smoke-free environment; and,
2. Exact copies of state sales tax statements submitted by the restaurant to the state of Arizona, which can serve to compare state sales taxes of food and nonalcohol beverages for a two (2) consecutive month period of smoke-free operation and the same two (2) consecutive month period in the year immediately prior to smoke-free operation.
3. Evidence which demonstrates that the purported drop in state sales tax between the year in which the exemption is sought and the prior comparison year has occurred under similar circumstances and is not due to extraneous factors. Evidence must show that the business operated in substantially the same manner including, but not limited to, operating during the same number of hours, being open the same number of days, being open on the same high business days, such as holidays; and, serving from a menus similar in selection and cost.
E. A hardship smoking exception, if granted, shall not exceed two (2) years.
F. All entries to the restaurant must be clearly marked by the posting of a legible warning sign(s) which read(s): "NOTICE: SMOKING PERMITTED. This establishment permits smoking which is known to cause cancer, heart disease, and lung diseases in smokers as well as non-smokers." The sign(s) shall be black letters on a white background and at least 8.5 inches by 11 inches in size.
G. The entire restaurant shall remain smoke-free unless and until a hardship smoking exception is granted.
H. Upon the expiration of a hardship smoking exception, the restaurant must be smoke-free, but may apply for a subsequent hardship smoking exception no less than sixty (60) days and no more than one hundred twenty (120) days after the expiration of a hardship smoking exception.
I. Subsequent hardship smoking exception applications shall be submitted to the health department and shall contain the following:
1. A description of all efforts made, or which reasonably could be made, to operate the restaurant successfully as a smoke-free environment; and,
2. State sales tax statements prepared by a licensed certified public accountant, which compare state sales tax receipts for food and nonalcohol beverages for a two (2) consecutive month period of smoke-free operation in the year the application is made and the same two (2) consecutive month period in the year immediately prior where the restaurant operated under a hardship smoking exception.
J. Restaurants constructed, opened, or remodeled after the effective date of this ordinance must immediately be smoke-free or in compliance with Section 8.50.031 and shall not be eligible for a hardship smoking exception.
(Ord. 2001-137 § 1 (part), 2001)