Regulating Smoke Part 3: Smoking & Tobacco Products

Welcome to Our Series on Regulating Smoke

One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter from some of the meetings I have attended. Smoke can be the result of residential heating, recreational activities or industrial activities. Whatever the source, smoke is a frequent topic of city regulation. This article is the 3rd in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on indoor air quality and the regulation of tobacco products.

Indoor Air Quality and Smoking

Indoor air quality issues related to smoke from tobacco products used to be a heated concern. Now this issue is primarily regulated by state law. Local regulation of this issue was largely pre-empted through the “Freedom to Breathe Act” (FBA) of 2007.  The FBA essentially prohibits smoking in all indoor public places and places of employment. The details of this law are summarized on the MN Department of Health website at: http://www.health.state.mn.us/divs/eh/indoorair/mciaa/ftb/docs/f2bgeneral.pdf.

Cities may still regulate issues related to smoking by:

• Adopting more stringent measures than state statute (such as prohibitions on smoking in city parks, bus shelters and near air intakes of buildings); and
• Regulating sellers of tobacco products.

The City of Rochester, Minnesota has adopted an ordinance related to smoking that is stricter than the state statute. See Chapter 85 General Regulations, Section 85.26 at: http://www.rochestermn.gov/departments/attorney/ordinances/pdf/ORD85.pdf. Cities generally regulate sellers of tobacco products by licensing them through local ordinance.  The focus of these local ordinances is usually on limiting youth access.

Licensing Tobacco Sellers

Cities are not required to license tobacco sellers. In contrast, the county must license all retailers that sell tobacco products, unless a city adopts its own tobacco ordinance. A city adopting a tobacco ordinance must give general notice of the intent to adopt or amend a tobacco ordinance, and must give retailers a 30-day written notice of the time, place, and subject matter of the meeting where the proposed ordinance or amendments are to be considered.

A tobacco ordinance must contain at least the following provisions:

• The ordinance must establish an administrative hearing system where an alleged violator has the right to be heard before a designated hearing officer or panel (which could be the city council) and where a fine, instead of a criminal penalty, could be imposed for violating the ordinance. State law establishes a schedule of minimum fines;
• The ordinance must provide for at least one, unannounced compliance check each year; and 
• The ordinance must prohibit self-service (vending machines) sales of individual cigarette packages, except in establishments that prohibit minors, and in establishments that derive at least 90 percent of their revenue from the sale of tobacco.

The ordinance may establish a licensing fee sufficient to cover the costs of enforcing the above provisions.

Tobacco Modernization and Compliance Act of 2010

Cities who license tobacco sellers should be aware of the Tobacco Modernization and Compliance Act of 2010 (TMCA). The TMCA is effective August 1, 2010. The main feature of the TMCA is to expand the definition of what is regulated as tobacco in the state of Minnesota. “Tobacco products” were formally defined at Minn. Stat. §297F.01, Subd 19 as:

“cigars; little cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine-cut and other chewing tobacco; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco, and other kinds and forms of tobacco.”

The definition is now expanded to also include:

“any products containing, made, or derived from tobacco that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, or any component, part, or accessory of a tobacco product.”

This expanded definition encompasses new products on the market, such as tobacco laced mints and “e-cigarettes.” The e-cigarettes are typically a plastic container (that looks like a cigarette and may even have a red-lighted end) that delivers nicotine through a mist. The e-cigarettes are smokeless. The new law also criminalizes sale of these tobacco related products to minors.

Cities may now regulate these new forms of tobacco the exact same way they have always regulated traditional cigarettes, cigars, snuff and chew via a local licensing ordinance. Cities should review their licensing ordinance in light of the TMCA. Cities may need to amend their ordinance’s terms and definitions section to mirror the new expanded definitions.

Picture provided by http://tinyurl.com/295v6nu

Neighborhood Conflict and Cities

Minnesota Public Radio featured today a podcast on neighborhood conflict that may be of interest to city attorneys, staff and officials - who often find themselves in the middle of such conflicts.

The podcast notes that neighborhood conflicts can be draining to city resources, by generating frequent police service calls and demanding city staff attention (building inspection services, zoning services, attorney services, etc). A few callers into the show noted success they had in contacting their city for assistance (for example the St. Paul problem properties unit).

It is important to note that many of the conflicts discussed seem to erupt over issues commonly regulated by city ordinance - for example encroaching fences, barking dogs, curfew issues, etc. This is often how the city gets drawn into the conflict. I found it interesting, however, that none of the conflict experts featured in the podcast saw city involvement as solution to the conflict. It was considered more a symptom of a deeper underlying problem.

City staff and officials may be interested in hearing the expert suggestions for conflict resolution resources for neighbors - potentially available though non-profits at low cost. These may be resources that the city can direct residents to when neighbors appear at city hall with grievances. These resources could supplement traditional city code enforcement efforts. While potentially non-traditional, utilizing these resources may equally benefit cities and residents by reducing conflict and the need for city enforcement services.

Here is a link to the Minnesota Public Radio podcast:

http://minnesota.publicradio.org/display/web/2010/07/28/midmorning1/

City Regulation of Smoke Part 2: Recreational Fires

Welcome to Our Series on Regulating Smoke

One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter from some of the meetings I have attended. Smoke can be the result of residential heating, recreational fires or industrial activities. Whatever the source, smoke is a frequent topic of city regulation. This article is the second in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on recreation fires – typically small fires (under 3 feet) for roasting marshmallows and singing camp songs.

Recreational Fires

Controversy over recreational fires – and the smoke they generate - are common at city halls in Minnesota and nationally. The Sun Press carried a story from Mounds View just this past week:

http://www.mnsun.com/articles/2010/07/16/mounds_view/news/mv15council.txt

In Mounds View neighbors are upset about recreational fires on an adjacent property being carried on "six or seven nights a week” and sometimes at 2 pm. They recently brought their concerns to City Hall, as reported in the press. The smoke generated by the fires is bothering the neighbors – one of whom is asthmatic. The neighbors are also concerned because the adjacent property owner appears to be burning “roofing, siding, decorated logs (treated with arsenic and other chemicals), carpeting, clothing, garbage and green wood.” According to the neighbor testimony before city council, aside from the smoke, these materials “smell bad.”

State law already prohibits the burning of garbage and certain prohibited materials. This includes rubber, plastics, chemically treated materials, tires, etc. This is discussed extensively in the LMC Memo “Open Burning in Cities” (available at this link: http://www.lmc.org/media/document/1/openburning.pdf).

Common Local Restrictions

Many cities choose not to regulate recreational fires. Commonly, recreational fires are exempted from the permit requirements for other types of open burning. The LMC Model Ordinance on open burning takes this approach (linked above). However, some cities do choose to regulate recreational fires for public safety reasons and to limit the affects of smoke on neighboring properties.

Common restrictions on recreational fires include:

• Requiring a permit;
• Limiting the number of permits issued per property per year;
• Limiting the number of fires burning simultaneously on a property;
• Requiring setbacks from buildings and property lines (i.e. 50 feet);
• Limiting times for burning (i.e. from 8am-midnight);
• Setting fuel requirements (i.e. clean, dry wood); and
• Prohibiting fires when wind speeds are high (i.e. over 7 mph).

Sample Language Regulating Smoke

In reviewing recreational fire ordinances, some cities do include language that attempts to directly regulate smoke that may become an irritant to neighbors.

For example, this language from Cottage Grove, MN:

The fire chief may order any recreational fire to be immediately extinguished if the fire poses a nuisance to surrounding residences. A nuisance is deemed to exist if the fire generates flying embers that pose a hazard to property or generates smoke or odors that unreasonably interfere with the use or enjoyment of neighboring properties.

The City of Waconia, MN uses this language:

Burning Prohibitions.

Any smoke generated from a Recreational Fire that becomes a nuisance or irritant shall be due cause to extinguish the fire, regardless of the fuel source.

The City of West Concord, MN uses this language:

920.02. The City Fire Chief or Police Officer and/or designee may perform periodic on-site inspections.

920.03. Open fire for recreational purposes must satisfy the following requirements:

The Fire Chief, Police Officer or its designee is authorized to require that recreational fires be immediately discontinued if smoke emissions are offensive to occupants of surrounding properties or if the Fire Chief, Police Officer or its designee determines that the fire constitutes a hazardous condition.

Subd. 9. Smoke: A recreational fire shall be extinguished immediately if it generates smoke that becomes a nuisance to adjacent or nearby properties, including imposition of smoke into a neighboring structure.

Conclusion

The City of Edina website notes that “in recent years, backyard fires have become more common in suburban cities, where the confines are much tighter than you’d find in the 'great outdoors.'" The new popularity of recreational fires has prompted many cities to consider adopting new regulations on smoke and fire. However, in addition to new regulations, many cities are concurrently urging old fashioned courtesy to neighbors. For example, on the burning permit webpage for Minnetonka, it is noted that “the city of Minnetonka asks its residents to be considerate of their neighbors when having a recreational fire, such as smoke traveling onto adjoining property where breathing problems with the residents may exist.”

Outdoor Wood Burners & Smoke

Welcome to Our Series on Regulating Smoke

One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter from some of the meetings I have attended. Smoke can be the result of residential heating, recreational fires or industrial activities. Whatever the source, smoke is a frequent topic of city regulation. This article is the first in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on Outdoor Wood Burners.

Outdoor Wood Burners
With the recent rise in the cost of natural gas and oil, the use of outdoor wood burners (also known as boilers, furnaces and heaters) is becoming more common nationally. As a result, cities may be receiving inquiries from homeowners who wish to install outdoor wood burners (OWB). In addition, cities may receive complaints from neighbors of newly installed OWBs, particularly concerning the smoke the OWB generates.

Generally, OWBs are more common in rural settings. However, recent years have seen a spike in OWBs appearing in more densely residential neighborhoods. Typically, an OWB resembles a small shed with a short smokestack. The OWB burns wood in a fire box to heat water in a water jacket that surrounds the box. An OWB can be used as a water heater and/or can be used as a primary heat source for the home (typically when attached to a forced air finance inside the home). The typical OWB is powered by wood, but some OWBs burn corn, pellets and biomass. The focus of this article is on wood burning OWBs.

Studies on Health Effects of Outdoor Wood Burners
Due to the rapid increase in OWBs in New York State, the state attorney general commissioned a study on OWB use. The report, titled “Smoke Gets in Your Lungs: Outdoor Wood Boilers in New York State,” found that neighbors of OWB users reported that smoke from the OWB:

• led to a variety of health symptoms, including upset stomach, headaches, dizziness, respiratory effects, and throat and eye irritation

• prevented neighbors from using their yards for normal activities such as gardening, hanging clothes out to dry, playing with children, etc.

• left a residue and smoke odors on items inside their homes, such as clothing, curtains and upholstery

• set off their home carbon monoxide detectors

The full report is available at this link: http://burningissues.org/pdfs/ny-outdoor-wood-boilers-05.pdf

Studies by the Federal Environmental Protection Agency (EPA) indicate that smoke produced from OWBs is dramatically higher than smoke produced by traditional interior gas and oil furnaces (over 1000 times more). Since OWBs tend to be placed in small shacks with very short smokestacks, this dense smoke is often emitted very close to the ground, near windows and in areas where people circulate. The smoke and emissions problems associated with OWBs can be exacerbated when OWB owners use the burner to dispose of trash, tires, or treated wood, potentially releasing toxic chemicals into the air. The EPA’s document “Strategies for Reducing Residential Wood Smoke” is available at this link: http://www.epa.gov/ttncaaa1/t1/memoranda/strategies-doc-8-11-09.pdf

Currently, there are no federal or state standards regulating emissions from residential OWBs. Inhalation of wood smoke is noted to cause many unhealthful side effects. According to the MN Pollution Control Agency website, burning wood adds harmful fine particles and toxins to the air. These particles can cause short term eye, lung, throat irritation problems and long-term health effects (chronic obstructive lung disease, chronic bronchitis, increased risks of cancer), and may be especially harmful young children with developing lungs. The Minnesota Pollution Control Agency also has two webpages dedicated to wood smoke at these links: http://www.pca.state.mn.us/index.php/air/air-quality-and-pollutants/general-air-quality/wood-smoke/wood-smoke.html and
http://www.pca.state.mn.us/index.php/air/air-quality-and-pollutants/general-air-quality/wood-smoke/wood-smoke-problems-and-complaints.html?menuid=&missing=0&redirect=1

City Ordinance Regulation of Outdoor Wood Burners

Despite the lack of federal and state regulations, some cities have opted to regulate OWBs on a local level through their nuisance ordinance. A nuisance is generally defined as anything that is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with a comfortable enjoyment of life or property.

Cities are granted the authority to regulate nuisances via a local ordinance by state statute. In Minnesota, the regulation of smoke by cities as a potential nuisance is longstanding. In 1911, the Minnesota Supreme Court upheld a Minneapolis ordinance defining excessive smoke as a public nuisance noting that “smoke. . . becomes a nuisance when it permeates that air surrounding people and invades their residences and places of occupation.” See State v. Chicago, Milwaukee & St. Paul Railway, 114 Minn. 122 (Minn. 1911).

The council has authority to explicitly define a particular nuisance, and then to provide for its regulation or abolition. This means that a city can choose to either completely prohibit OWBs as a nuisance in an ordinance, or provide detailed guidelines for their use. In cities that choose to regulate OWBs, the regulations usually limit the use of OWBs to areas zoned for agricultural use, prohibit the burning of treated wood, garbage and other potentially harmful materials, impose setback requirements from neighboring properties, require smokestacks that are at least as high as neighboring residences and require an annual permit with inspections.

Cities may also attempt to regulate OWBs through their zoning ordinance. Cities could permit or prohibit the OWBs as an accessory, conditional or interim use and establish setback and lot size requirements. If a city chooses to regulate the OWBs through their zoning regulations, they should consider whether the ordinance will be applicable to existing OWBs or considered a lawful non-conformity pursuant to Minn. Stat. § 462.357, subd. 1c. In contrast, pre-existing uses that are declared a nuisance and regulated as such are not protected as lawful non-conformities.

Sample Ordinances Regulating Outdoor Wood Burners

Some sample ordinances regulating OWB from Minnesota cities can be found at these links:

City of Shorewood, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn

St Charles, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn

Houston, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn

City of Madison Lake, MN:

http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn

Hermantown, MN:

http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn

Battle Lake, MN:

http://www.ci.battle-lake.mn.us/index.asp?Type=B_BASIC&SEC=%7BD70447F8-39DE-4DE3-AE68-D0CACA784A3A%7D

Oak Park Heights, MN:

http://www.cityofoakparkheights.com/vertical/Sites/%7B22E6E0E6-5B6F-460C-B43E-F48433F4DDAB%7D/uploads/%7B2B4A3D2D-00CC-4744-94ED-50CD64475DD0%7D.PDF

Albany, MN:

http://ci.albany.mn.us/ORDINANCE%2078.pdf

CocoDorm, Adult Uses and City Ordinances

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Dead Animals, Old Ordinances and Surprising Duties For Council Members

I recently blogged about the hazards of archaic ordinances and a recent fortunetelling case in Maryland. One reader noted that I should also point out that old ordinances can create some truly surprising duties for city staff and council members. Here is a 1903 ordinance from a Minnesota city on the disposal of dead animals that was only recently repealed (emphasis added):

DEAD ANIMALS (1903)
When any horse, mule, cow, sheep, hog, dog or other animal dies within the limits of the City the owner thereof shall, within forty eight (48) hours thereafter bury the same; and when the carcass weighs more than one hundred (100) pounds, such owner shall within forty eight (48) hours remove the same to the City dump grounds for burial.

The carcass of any animal removed to the City dump grounds shall be buried by the owner thereof provided, however, that the carcass of any animal removed to the City dump grounds after December 1 shall be buried by the owner before the first day of May following.

Dead animals within the city limits with unidentified owners shall be removed to the City dump grounds by the City Council member from the ward in which the animal expired.

The pit for horses, mules, and cows shall be six feet (6”) deep; for sheep, hogs and dogs and other small animals required to be buried in the dump grounds, four feet (4’) deep, and in any case sufficiently large to allow the carcass to rest upon the bottom of the pit.