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A. The owner of an existing restaurant may apply for a hardship phase-in to allow a period beyond the date prescribed to make the necessary modifications to create a designated smoking area which meets the requirements of Section 8.50.031, if completing those modifications within the date prescribed would create an undue financial hardship.
B. For purposes of this section only, an "undue financial hardship" means that the applicant does not have current funds, or the current ability to borrow and repay funds, necessary and sufficient to remodel the restaurant to create a designated smoking area which complies with Section 8.50.031. The owner bears the burden of showing that compliance would create an undue financial hardship.
C. The time allotted for a hardship phase-in to create a designated smoking area shall not exceed one (1) year.
D. A hardship phase-in to create a designated smoking area application shall be submitted to the health department and shall contain the following:
1. An estimate from appropriately licensed contractor(s) of the costs of modifying the seating area of the restaurant to be a designated smoking area which meets the requirements of Section 8.50.031;
2. Financial statements prepared by a licensed certified public accountant for the twelve (12) months immediately prior to the month in which a hardship phase-in application is filed purporting to show an undue financial hardship;
3. A time and task schedule for complying with all requirements of Section 8.50.031 if a hardship phase-in is granted; and,
4. A sworn statement that, if a phase-in is granted, the applicant shall complete the structural, HVAC, signage, and all other modifications necessary to meet the requirements of Section 8.50.031(B) and (C) in accordance with the time and task schedule.
E. A restaurant owner must apply for a hardship phase-in to create a designated smoking area within ninety (90) days of the effective date of this ordinance. If application for hardship phase-in to create a designated smoking area is not made within this time period, the restaurant must be smoke-free.
F. The entire restaurant shall remain smoke-free until the modifications for the designated smoking area are completed.
G. Restaurants constructed, opened, or remodeled after the effective date of this ordinance, must immediately comply with Section 8.50.031 and shall not be eligible for a hardship phase-in.
(Ord. 2001-137 § 1 (part), 2001)
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)
A. Applications for either a hardship phase-in to create a designated smoking area or a hardship smoking exception shall be made to the health department pursuant to procedures developed by the department director.
B. The county shall hold an administrative hearing, before a hearing officer, to review the application for a hardship phase-in to create a designated smoking area or a hardship smoking exception and to consider the recommendations of appropriate county departments within thirty (30) days of the health department's receipt of an application for hardship phase-in to create a designated smoking area or a hardship smoking exception. The hearing officer shall issue a ruling within seven (7) days after the hearing and to mail a copy of his decision to the applicant and to the health department within seven (7) days after the ruling is made.
(Ord. 2001-137 § 1 (part), 2001)
B. "No Smoking" signs shall depict letters of not less than one inch in height or the international "No Smoking" symbol consisting of a pictorial representation of a burning cigarette enclosed in a red circle of not less than six inches in diameter and with a red bar across it.
C. Any owner or person in lawful control of property that would otherwise be exempt from the provisions of this chapter pursuant to Section 8.50.030 may placard the property as "No Smoking."
D. The owner or person in lawful control of property shall keep all nonexempt areas of the property smoke-free. If a nonexempt area cannot be kept smoke-free due to smoking in an exempt area, the owner or person m lawful control of the exempt area shall placard the exempt area as "No Smoking."
(Ord. 2001-137 § 3 (part), 2001; Ord. 1992-9 § 2 (part), 1992)
A. The provisions of this chapter shall apply to the unincorporated areas of Pima County.
B. The provisions of this chapter shall apply to all property owned or controlled by Pima County.
C. The provisions of this chapter may apply to the incorporated areas of Pima County pursuant to the provisions of Arizona Revised Statutes Section 11-251.05, subsection C.
D. The provisions of this chapter shall not apply to any place where smoking is allowed pursuant to federal or state law.
E. Nothing in this chapter excuses noncompliance with any other Pima County Code, state or federal law, or any rule or regulation adopted pursuant thereto.
(Ord. 2001-137 § 3(part), 2001; Ord. 1992-9 § 2 (part), 1992)
A. Any person who smokes in an area placarded with a "No Smoking" sign is guilty of a Class 3 misdemeanor.
B. Any person who owns, manages, operates, or otherwise controls a restaurant who commits any of the following is guilty of a Class 3 misdemeanor:
1. Failing to placard property with "No Smoking" signs as required by Section 8.50.040;
2. Failing to placard a designated smoking area with warning signs as required by Section 8.50.031(B)(5);
3. Failing to comply with the terms of an order granting a hardship phase-in to create a designated smoking area or hardship smoking exception.
4. Allowing a person to smoke in a restaurant area other than the designated smoking area;
5. Allowing smoke from a designated smoking area to diffuse or drift into the smoke-free areas of the restaurant.
C. Each day of a violation described in paragraphs A or B of this section shall constitute a separate offense and is punishable as such.
D. For violations described in paragraphs B and C of this section, no judge, magistrate, or justice of the peace may suspend the imposition of a minimum fine of at least one-hundred dollars ($100). Fines may be assessed in excess of one-hundred dollars ($100) to the maximum prescribed for a Class 3 misdemeanor.
(Ord. 2001-137 § 3 (part), 2001; Ord. 1992-9 § 2 (part), 1992)