Chapter 8.10
MESILLA SMOKE-FREE REGULATION
Sections:
8.10.010 Title, findings and purpose.
8.10.030 Application of chapter to town-owned facilities.
8.10.040 Prohibition of smoking in public places.
8.10.050 Prohibition of smoking in places of employment.
8.10.060 Where smoking not regulated.
8.10.090 Violations and penalties.
8.10.110 Other applicable laws.
8.10.010 Title, findings and purpose.
This chapter shall be known as the “Mesilla smoke free ordinance.”
The board of trustees does hereby find that:
Numerous studies have found that tobacco smoke is a major contributor to indoor/outdoor air pollution and is now classified by the EPA as a Class A carcinogen; and
Reliable studies have shown that breathing secondhand smoke is a cause of disease, including lung cancer, in healthy nonsmokers. At special risk are elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and
Health hazards induced by breathing secondhand smoke include lung cancer, heart disease, respiratory infection, decreased respiratory function, bronchoconstriction, and bronchospasm; and
Nonsmokers who suffer ill effects from secondhand smoke may experience a drop in productivity and an increase in sick leave; and
It is necessary to restrict smoking in areas not covered by the 1995 New Mexico State Clean Air Act, which calls for no smoking in state, county and city-owned buildings; and
Accordingly, the board of trustees finds and declares that the purposes of this chapter are (A) to protect the public health and welfare by prohibiting smoking in public places except in designated smoking areas, and by regulating smoking in places of employment; and (B) to guarantee the right of nonsmokers to breathe smoke-free air; and (C) to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke. [Ord. 2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-1]
8.10.020 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
A. “Bar” means an area which is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of such beverages.
B. “Business” means any sole proprietorship, partnership, joint venture, corporation, or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered.
C. “Employee” means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity.
D. “Employer” means any person, partnership, corporation, including a municipal corporation, or nonprofit entity, who employs the services of one or more individual persons.
E. “Enclosed area” means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of doorways or passageways) which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid, “office landscaping,” or similar structures.
F. “Health care facility” means an office or institution providing care or treatment of diseases, whether physical, mental or emotional, or other medical, physiological, or psychological conditions, including, but not limited to, clinics, nursing homes, laboratories, offices of surgeons, chiropractors, physical therapists, physicians, dentists, and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, and semiprivate rooms.
G. “Health spa” or “health club” means any place where therapeutic, rehabilitative or health maintenance services or equipment, with or without swimming facilities, saunas, steam rooms, and similar facilities, are available for use by patrons whether membership is required or not.
H. “Patio” means an area open to the sky to which the public is invited or in which the public is permitted and which is devoted to public purposes including but not limited to the serving of food and beverages.
I. “Place of employment” means any area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and classrooms, employee cafeterias, and hallways.
1. A private residence is not a “place of employment” unless it is used as a child care or health care facility.
J. “Public place” means any area to which the public is invited or in which the public is permitted, including but not limited to banks, educational facilities, health facilities, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters, waiting rooms, and the town plaza. A private residence is not a “public place.”
K. “Restaurant” means any coffee shop, cafeteria, sandwich stand, private or public school cafeteria, and any other eating establishment which gives or offers for sale food to the public, guests, or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities, except that the term “restaurant” shall not include a cocktail lounge or tavern if said cocktail lounge or tavern is a “bar” as defined in this section.
L. “Smoking” means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, weed, or other plant in any manner or in any form.
M. “Sports arena” means gymnasiums, health spas, swimming pools, and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events. [Ord. 2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-2]
8.10.030 Application of chapter to town-owned facilities.
All facilities owned by the town of Mesilla shall be subject to the provisions of this chapter. [Ord. 2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-3]
8.10.040 Prohibition of smoking in public places.
A. Smoking shall be prohibited in all public places within the town of Mesilla, including, but not limited to, the following places, and with the following exceptions:
1. All areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public, including but not limited to attorneys’ offices, banks, day care facilities, and other businesses.
2. Any building which is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital, or other similar performance, except when smoking is part of a stage production.
3. Bars, including outdoor patios.
4. Every room, chamber, place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee, including joint committees, or agencies of the town or of any political subdivision of the state, during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the town.
5. Lobbies, hallways, and other common areas in multiple-unit commercial facilities and multiple-unit residential facilities.
6. Galleries, libraries, and museums.
7. Polling places.
8. Restaurants, including outdoor patios.
9. Restrooms, lobbies, reception areas, waiting rooms, hallways and any other common-use areas in all buildings open to the public.
10. Retail stores.
11. Sports arenas and convention halls.
12. Town plaza including the streets (Calle de Principal, Calle de Santiago, Calle de Guadalupe, and Calle de Parian) and sidewalks immediately abutting the plaza, including all public parking abutting the plaza. This area will be designated the “Plaza Smoke Free Zone” and indicated by appropriate signage. Refer to Exhibit A attached to the ordinance codified in this section.
13. Parks.
14. Waiting rooms, hallways, and private or semiprivate rooms of health facilities, including but not limited to hospitals, clinics, physical therapy facilities, doctors’ offices, and dentists’ offices. [Ord. 2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-4]
8.10.050 Prohibition of smoking in places of employment.
A. Smoking shall be prohibited in all enclosed facilities within places of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles, and all other enclosed facilities.
B. Within 30 days of the effective date of the ordinance codified in this chapter, each employer having a place of employment located within the town shall adopt, implement, make known, and maintain a written smoking policy.
C. The smoking policy shall be communicated to all employees within 30 days of its adoption.
D. All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee. [Ord. 2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-5]
8.10.060 Where smoking not regulated.
Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:
A. Private residences, except when used as child care, adult day care or health care facility.
B. Public streets, except in designated smoke-free plaza area. [Ord. 2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-6]
8.10.070 Posting of signs.
A. “Smoking” or “No Smoking” signs, whichever are appropriate, with 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 with a red bar across it) shall be clearly, sufficiently, and conspicuously posted in every building or other place where smoking is regulated by this chapter, by the owner, operator, manager, or other person having control of such building or other place.
B. Every public place and place of employment where smoking is prohibited by this chapter shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.
C. All ashtrays shall be removed from any area where smoking is prohibited by this chapter by the owner, operator, manager, or other person having control of the area.
D. It shall be unlawful for any person to serve food or beverages to any person smoking within an eating establishment where smoking is prohibited under the provisions of this section. [2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-7]
8.10.080 Enforcement.
A. Enforcement of this chapter shall be implemented by the town marshal’s department.
B. Any citizen who desires to register a complaint under this chapter may initiate enforcement with the marshal’s department.
C. The fire department shall require, while an establishment is undergoing otherwise mandated inspections, a “self-certification” from the owner, manager, operator, or other person having control of such establishment that all requirements of this chapter have been complied with.
D. Any owner, manager, operator, or employee of any establishment regulated by this chapter may inform persons violating this chapter of the appropriate provisions thereof.
E. Notwithstanding any other provision of this chapter, a private citizen may bring legal action to enforce this chapter. [Ord. 2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-8]
8.10.090 Violations and penalties.
A. It shall be unlawful for any person who owns, manages, operates, or otherwise controls the use of any premises subject to regulation under this chapter to fail to comply with any of its provisions.
B. It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this chapter.
C. Any person who violates any provision of this chapter shall be guilty of an infraction, punishable by:
1. A fine not exceeding $100.00 for a first violation.
2. A fine not exceeding $200.00 for a second violation of this chapter within one year.
3. A fine not exceeding $500.00 for each additional violation of this chapter within one year. [Ord. 2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-9]
8.10.100 Nonretaliation.
No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any right to a smoke-free environment afforded by this chapter. [Ord. 2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-10]
8.10.110 Other applicable laws.
This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. [Ord. 2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-12. Formerly 8.10.120.]
8.10.120 Severability.
If any provision, clause, sentence, or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. [Ord. 2006-16 § 1; Ord. 2000-04; Ord. 95-04; prior code § 8-10-13. Formerly 8.10.130.]