Chapter 37
SMOKING CONTROL*
Sections:
5-37.05 Application of chapter to City facilities.
5-37.06 Prohibition of smoking in public places.
5-37.07 Regulation of smoking in places of employment.
5-37.08 Place of employment: Retaliation against person exercising rights under chapter provisions.
5-37.09 Where smoking not regulated.
5-37.12 Violations and penalties.
5-37.14 Other applicable laws.
* Chapter 37, codified from Ordinance No. 748-87 C-M, as amended by Ordinance No. 756-87 C-M, repealed and replaced in its entirety by Ordinance No. 957-94 C-M.
5-37.01 Title.
This chapter shall be known as the “smoking control ordinance.”
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.02 Findings.
The City Council hereby finds as follows:
(a) Numerous studies have found that tobacco smoke is the major contributor to indoor air pollution and that breathing secondhand smoke is a cause of disease in nonsmokers;
(b) The U.S. Environmental Protection Agency has classified secondhand smoke as a carcinogen for which there is no safe level of exposure. At special risk are children, elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and
(c) Health hazards induced by breathing secondhand smoke include lung cancer, heart disease, respiratory infection, decreased respiratory function, bronchoconstriction, and broncho-spasm.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.03 Purpose.
The City Council hereby declares that the purposes of this chapter are:
(a) To protect the public health, safety, and welfare by prohibiting smoking in public places and places of employment; and
(b) To guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.04 Definitions.
For the purposes of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:
“Bar” means an area in which (1) the serving of alcoholic beverages for consumption by patrons on the premises is its primary purpose; and (2) persons under the age of twenty-one (21) are not permitted on the premises. A “bar” for the purposes of this chapter does not include any bar which is structurally part of a building hosting other business operations, unless it is physically separate from other uses in the same building and has a separate ventilating system. For the purposes of this chapter, a separate ventilation system shall be demonstrably able to prevent, through the creation of a negative air pressure zone within the bar or by other effective and measurable means, the infiltration of smoke from the bar to other areas of business operations, including but not limited to any lobby, restroom, kitchen, or seating area.
“Business” means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit-making purposes, including, but not limited to, 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.
“Electronic smoking device” means any electronic device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substance to the user. “Electronic smoking device” includes any electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.
“Employee” means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a non-profit entity.
“Employer” means any person, sole proprietorship, partnership, joint venture, corporation, or other business entity, or a public agency, or non-profit entity, who employs the services of one or more individual persons.
“Enclosed area” means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of doors(s) 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.
“Nonprofit entity” means any corporation, unincorporated association, or other entity created for charitable, philanthropic, educational, character building, political, social, or other similar purposes, the net proceeds from the operation of which are committed to the promotion of the objects of purposes of the organization and not for private financial gain. A public agency is not a “nonprofit entity” within the meaning of this section.
“Place of employment” means any enclosed 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 restroom, conference and classroom, employee cafeterias and hallways. A private residence used as a child care, family care, health care, board and care, or community foster care facility is a “place of employment.”
“Public place” means any enclosed area to which the public is invited or in which the public is permitted, including but not limited to, common area of any hotel, motel, inn or other lodging, banks, educational facilities, health facilities, laundromats, public transportation facilities, reception areas, restaurant, retail food production and marketing establishments, retail service establishments, retail store, theaters and waiting rooms. A private residence used as a child care, family day care, health care, board and care, or community foster care facility is a “public place.”
“Restaurant” means any coffee shop, cafeteria, sandwich stand, private and 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.
“Retail tobacco store” means a retail store where at least fifty (50%) percent of the annual gross receipts are from the sale of tobacco products and smoking accessories and in which the sale of other products is merely incidental.
“Service line” means any indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.
“Smoke” or “smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco, chemical substance or plant product intended for inhalation, including hookahs and marijuana, whether natural or synthetic, in any manner or in any form. “Smoking” also includes the use of an electronic smoking device which creates an aerosol or vapor, in any manner or in any form.
“Sports arena” means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys 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.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994, as amended by § 1, Ord. 1313-14 (CM), eff. January 8, 2015)
5-37.05 Application of chapter to City facilities.
All enclosed facilities owned, operated or leased by the City shall be subject to the provisions of this chapter.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.06 Prohibition of smoking in public places.
Except as expressly allowed under Section 5-37.09, smoking shall be prohibited in all enclosed public places within the City, including, but not limited to those public places hereinafter listed; and to those other places not enclosed, but otherwise specifically designated and hereinafter listed as follows:
(a) Elevators;
(b) Buses, taxicabs, and other means of public transit under the authority of the City, and ticket, boarding, and waiting areas of public transit depots;
(c) Restrooms;
(d) Service lines;
(e) Retail stores;
(f) All areas available to and customarily used by the general public in all businesses and non-profit entities patronized by the public, including, but not limited to, professional offices and other offices, banks, laundromats, hotels and motels;
(g) Restaurant and restaurant-bar combinations, however, the restrictions imposed on restaurant-bar combinations by this section shall not be operative until January 1, 1996;
(h) Theater-bar combinations and dinner theaters;
(i) Public areas of aquariums, galleries, libraries and museums when open to the public;
(j) Any area or facility which is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, except for smoking which is part of a stage production;
(k) Sports arenas and convention halls;
(l) 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 City during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the City;
(m) Waiting rooms, hallways, wards and patient rooms of health facilities, including, but not limited to, hospitals, medical centers, clinics, physical therapy facilities, and medical, dental and chiropractic offices;
(n) Lobbies, hallways, and other common areas in apartment buildings, condominiums, retirement facilities, nursing homes, and other multiple-unit offices;
(o) Lobbies, hallways, and other common areas in multiple-unit commercial facilities;
(p) Polling places;
(q) Private residences which are used as a child care, family day care, health care, board and care, or community foster care facility, as those terms are defined by State law;
(r) Shopping malls, except in outdoor malls in specifically designated smoking areas;
(s) Parks, outdoor recreation areas, and recreational trails, where such parks, recreation areas, and trails are specifically designated and identified by appropriate signs as non-smoking;
(t) Video arcades, bingo parlors, card rooms, game room, pool halls, dance halls, amusement centers and bowling alleys;
(u) Areas which share the air space including, but not limited to, air conditioning, heating, or other ventilation system, entries, doorways, open windows, hallways, and stairways with other public places in which smoking is prohibited;
(v) At least seventy-five (75%) percent of the guest rooms in every hotel, motel, inn or other place of lodging, which shall be maintained as permanently designated non-smoking rooms;
(w) Public parking lots designated by resolution as amended from time to time.
Notwithstanding any other provisions of this section, any owner, operator, manager or other person who controls any establishment or facility may declare that entire establishment or facility as a non-smoking establishment.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994, as amended by § 1, Ord. 1261-10 (CM), eff. July 22, 2010)
5-37.07 Regulation of smoking in places of employment.
(a) It shall be the responsibility of employers to provide a smoke-free workplace for all employees, but employers are not required to incur any expense to make structural or other physical modifications to meet the requirements of this section.
(b) On or before January 1, 1995, each employer having an enclosed place of employment located within the City shall adopt, implement, make known and maintain a written smoking policy which shall contain the following requirements: smoking shall be prohibited in all enclosed facilities within a place of employment including common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, employer vehicles except where assigned permanently to one employee to the exclusion of other employees or members of the public, and all other enclosed facilities.
(c) Each employer shall supply a written copy of the employer’s smoking policy to each employee within three (3) weeks of the policy’s adoption.
(d) All employers shall supply a written copy of the smoking policy to each newly hired employee, and upon request to any prospective employee.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.08 Place of employment: Retaliation against person exercising rights under chapter provisions.
(a) 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 rights afforded by this chapter.
(b) No person or employer shall discharge, discriminate against, or in any manner retaliate against any employee who smokes, if the employee obeys the employer’s no-smoking policies and regulations.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.09 Where smoking not regulated.
Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the regulations of this chapter:
(a) Private residences, except if the private residence is used as a child care, family day care, health care, board and care, or community foster care facility;
(b) Retail tobacco stores;
(c) Bars;
(d) Outdoor park and recreation areas, and recreational trails, except where such parks, recreation areas, and trails are designated as no-smoking.
Notwithstanding any other provisions of this chapter, any owner, operator, manager or person who controls any establishment described in this section may declare that entire establishment as a no-smoking establishment.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.10 Posting of signs.
(a) “No Smoking” signs or the international “No Smoking” symbol (consisting of a pictorial presentation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly 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 restaurant shall have a no smoking sign conspicuously posted at every entrance.
(c) Every hotel, motel, inn or other place of lodging shall have no smoking signs conspicuously posted in the registration and lobby areas which further state that nonsmoking rooms are maintained and may be available; each room designated as being nonsmoking shall have a sign designating such restriction permanently affixed to the entry door of the room as well as conspicuously placed within the room itself.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.11 Enforcement.
(a) The City Health Officer shall be responsible for the administration and enforcement of this chapter.
(b) Any person who desires to register a complaint under this chapter may request an investigation by the City Health Officer.
(c) Whenever any facility in which smoking is prohibited by this chapter applies for any permit or regulatory approval of the City or undergoes any required inspection, the City department to which the application is submitted shall require a written certification in a form acceptable to the City Health Officer from the owner, manager, operator or other person having control of such facility that all requirements of this chapter have been complied with.
(d) Any owner, operator, or employee of any facility in which smoking is prohibited may inform persons violating this chapter of the appropriate provisions of this chapter.
(e) Notwithstanding any other provision of this chapter, any person may seek and obtain, by action of any court of competent jurisdiction, an injunction or other mandatory order against a person or establishment subject to the provisions of this chapter for any failure to comply with its provisions.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.12 Violations and penalties.
(a) It is unlawful and constitutes an infraction for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this chapter to violate or fail to comply with any of its provisions.
(b) It is unlawful and constitutes an infraction for any person to smoke in any area where smoking is prohibited by the provision of this chapter.
(c) A conviction for any violation of this chapter shall be punishable as provided in Chapter 2 of Title 1 of this Code.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.13 Public education.
(a) The City Health Officer shall engage in a continuing program to explain and clarify the purposes of this chapter to persons affected by it, and to guide owners, operators, and managers in their compliance with it. Where feasible, such education program shall be undertaken and maintained in conjunction and coordination with appropriate health or safety-oriented community-based organizations and coalitions. Such programs may include publication of a brochure for affected businesses and individuals explaining the provisions of this chapter.
(b) The City Health Officer shall, in coordination with other health agencies, have the responsibility for providing public education of the health consequences of smoking.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.14 Other applicable laws.
This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)
5-37.15 Severability.
If any provision, clause, sentence, paragraph, or section of this chapter or the application thereof to any person or circumstance 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.
(§ 2, Ord. 957-94 C-M, eff. August 11, 1994)