What Melissa Massicotte did this morning at Reggie's

At the stroke of midnight this morning at Reggie's Place Tavern downtown, Melissa Massicotte (shown) was one of those butting out.

Sault Ste. Marie'e new smoke-free bylaw comes into effect today, June 1.

It prohibits people from carrying lighted cigars, cigarettes, pipes or any other smoking equipment in any enclosed public place.

Bar and restaurant owners must ensure their establishments are free of smoking paraphernalia including ashtrays and matches.

Full text of the bylaw

On Monday night, City Council received a legal opinion from City Solicitor Lorie Bottos about the legality of licensed establishments converting to private clubs to bypass the bylaw.

Legal opinion on private clubs

The opinion, developed with help from Bill O'Donnell and Janet Allen from the Algoma Health Unit, insisits that places that were licensed establishments up until last night cannot claim now to be private clubs unless they meet a tangle of legal requirements including having their own bylaws, regular meetings and a degree of exclusivity of membership.

"I think a court would give close scrutiny to any establishment claiming it is a private club," Bottos advises City Council.

If such establishments cannot be successfully prosecuted, a second approach might be to change the bylaw to outlaw smoking in workplaces, which would cover any private club that has employees, Bottos said.

The Algoma Health Unit has hired two inspectors to work with bar and restaurant owners.

Bottos will ask for a report sometime over the next month to determine whether prosecutions are needed against any establishments that declare themselves to be private clubs.

Here's the full text of his opinion:

************************ File No: R.1.2.1.

REPORT TO: Acting Mayor Pat Mick and Members of Council

REPORT FROM: Lorie Bottos, City Solicitor

DATE: 2004 05 31

RE: Smoking By-law and Private Clubs

Over the last week the Legal Department has received a number of phone calls concerning licensed establishments turning themselves into private clubs to circumvent the Smoking By-law 2003-7.

Nuala Kenny and I have met with Bill O'Donnell of the Algoma Health Unit as well as Don Maki of the Building Division to consider this issue.

First of all Section 115 of the Municipal Act, 2001 is the section that allows municipalities to pass by-laws to prohibit or regulate the smoking of tobacco "in public places and workplaces."

In drafting the by-law in conjunction with the Algoma Health Unit, it was decided that by-law would deal with smoking in "public places."

Some municipalities have extended their by-laws to private work places as well as public places.

In recommending By-law 2003-7 to Council it was felt that a major concern was with smoking in public places and that the issue of smoking in workplaces would be to the Smoking in the Workplace Act.

That Act sets out the circumstances under which an employer may designate part of the workplace as a smoking area.

An establishment that has been a licensed liquor establishment up until May 31st cannot just claim it is now a private club and avoid the by-law.

There are certain requirements that I think a court would require before it accepts an argument that an establishment is a private club.

For example, the establishment would have to have by-laws, membership lists, regular meetings, possibly annual dues and some degree of exclusivity of membership for example.

The Algoma Health Unit has hired two inspectors to educate owners of public establishments about the requirements of the by-law.

It is hoped that it does not become necessary, but these inspectors also can enforce the by-law through laying charges.

In the next month or so I will ask the Algoma Health Unit to bring back a report to Council on the experience of the two inspectors.

If they feel that some establishments are trying to circumvent the by-law by calling themselves private clubs, then that can be remedied in one of two ways.

The first would be through prosecutions to determine whether in fact the establishment is a private club.

I think courts will give a wide scope to the intent of the by-law, which is to protect the health of the public.

Therefore, I think a court will give close scrutiny to any establishment claiming it is a private club.

The second would be through amending the by-law to add workplaces as a prohibited area for smoking.

That would cover private clubs that have employees.

Yours truly,

L.A. Bottos City Solicitor

Mr. Bill O'Donnell Public Health Program Manager

Ms. Janet Allen Public Health Nurse

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