ORDINANCE 2007-____
VILLAGE OF CAPITAN
CLEAN INDOOR AIR
ENACTING THE VILLAGE OF CAPITAN CLEAN INDOOR AIR ORDINANCE; PROVIDING
FOR SMOKEFREE AREAS; PROVIDING PENALTIES.
BE IT ORDAINED BY THE GOVERNING BODY OF THE VILLAGE OF CAPITAN:
Section 4-3-1: Short Title
Section 4-3-2: Purpose
Section 4-3-3: Definitions
Section 4-3-4: Smoking Prohibited
Section 4-3-5: Smoking-Permitted Areas
Section 4-3-6: Prohibition of Smoking Near
Entrances, Windows and Ventilation
Systems
Section 4-3-7: Responsibilities of Employers
Section 4-3-8: Posted Smoke free and
Smoking-Permitted Areas
Section 4-3-9: Enforcement
Section 4-3-10: Violations
Section 4-3-11: Penalties
Section 4-3-12: Nonretaliaton –Nonwaiver
Section 4-3-13: Severability
4-3-1: Short Title: This
ordinance may be cited as the Village of Capitan Clean Indoor Air
Ordinance.
4-3-2: Purpose: Whereas one
of the duties of government is to protect the public health, safety and
welfare of its citizens, the Capitan governing body recognizes
environmental tobacco smoke as detrimental to the public health and
declares as the purpose of this Ordinance to protect the public health
and safety by prohibiting smoking in indoor public places and indoor
workplaces.
4-3-3: Definitions:
As used in this Ordinance:
A. “bar” means an establishment that is devoted to
the selling or serving of alcoholic beverages for consumption by
patrons on the premises and in which the serving of food is only
incidental to the consumption of those beverages, including taverns,
nightclubs, cocktail lounges and cabarets;
B. “cigar bar” means an establishment that:
(1) is a bar as defined in
Subsection A of this section; and
(2) is engaged in the business of
selling cigars for consumption by patrons on the premises and generates
ten percent or more of its total annual gross revenue or at lease ten
thousand dollars ($10,000) in annual sales from the sale of cigars, not
including any sales from vending machines. A cigar bar that fails
to generate at least ten percent of its total annual sales from the
sale of cigars in the calendar year after December 31, 2006, not
including sales from vending machines, shall not be defined as a cigar
bar and shall not thereafter be known as such regardless of sales
figures. A cigar bar shall agree to provide adequate information
to demonstrate to the Village’s satisfaction compliance with this
definition;
C. “department” means the department of health;
D. “designated outdoor smoking area” means an area
where smoking may be permitted, designated by an employer or manager,
outside an indoor workplace or indoor public place; provided that the
following conditions are maintained:
(1) smoking shall not be
permitted near any building entrance, including a door, window or
ventilation system of any facility where smoking is prohibited under
the provisions of this Ordinance, so as to prevent secondhand smoke
from entering the indoor workplace or indoor public place; and
(2) employees or members of the
general public are not required to walk through the smoking area to
gain entrance to the indoor workplace or indoor public place;
E. “employer” means an individual, a partnership, a
corporation or the state that employs the services of one or more
individuals and includes the Village of Capitan;
F. “enclosed” means any interior space
predominantly or totally bounded on all sides and above by
physical barriers, regardless of whether such barriers consist of or
include uncovered openings, screened or otherwise partially covered
openings or open or closed windows;
G. “indoor public place” means the enclosed area
within any governmental or nongovernmental place to which the public is
invited or in which the public is permitted regardless of whether work
or public business, meetings, or hearings occur at any given time;
H. “indoor workplace” means any enclosed place where
one or more persons engage in work, including lobbies, reception areas,
officers, conference and meeting rooms, employee cafeterias and
lunchrooms, break rooms, and employee lounges, classrooms, auditoriums,
hallways, stairways, waiting areas, elevators and restrooms and
includes all indoor workplaces and enclosed parts regardless of whether
work occurs at any given time;
I. “private club” means an organization, whether
incorporated or not, that is the owner, lessee or occupant of a
building or portion thereof used exclusively for the organization’s
purposes at all times, that is operated solely for recreational,
fraternal, social, patriotic, political, benevolent or athletic
purposes, but not for pecuniary gain, and that only sells alcoholic
beverages incidental to its operation. The organization shall
have bylaws or a constitution to govern its activities and shall have
been granted an exemption as a club under the provisions of Section 501
of the Internal Revenue Code of 1986, as amended;
J. “restaurant” means a coffee shop, cafeteria,
private or public school cafeteria or eating establishment and any
other eating establishment that gives or offers for sale food to the
public, patrons or employees, including kitchens and catering
facilities in which food is prepared on the premises for serving
elsewhere or a bar area within or attached to the premises;
K. “retail tobacco store” means a retail store used
primarily for the sale of tobacco products and accessories and in which
the sale of other products is merely incidental, including smoke shops,
cigar shops or hookah lounges, and does not include establishments that
offer for sale alcoholic beverages for consumption by patrons on the
premises;
L. “secondhand smoke” means smoke emitted from
lighted, smoldering or burning tobacco when the smoker is not inhaling,
smoke emitted at the mouthpiece during puff drawing and smoke exhaled
by the smoker;
M. “smoke free area” means any building or other
enclosed space where smoking is prohibited;
N. “smoking” means inhaling ,exhaling, burning,
carrying or holding any lighted tobacco product, including all types of
cigarettes, cigars, and pipes and any other lighted tobacco product;
and
O. “smoking-permitted area” means any building or
other enclosed space where smoking may be permitted; provided that
secondhand smoke does not infiltrate any area where smoking is
prohibited pursuant to this Ordinance.
4-3-4: Smoking Prohibited:
A. It is unlawful for a person to smoke in any
indoor workplace or indoor public place or in buses, taxicabs or other
means of public transit not specifically exempted pursuant to the
Ordinance.
4-3-5: Smoking-Permitted
Areas: Notwithstanding any other provision of this Ordinance,
smoking-permitted areas include the following:
A. a private residence, except during hours of
business operation while it is being used commercially to provide child
care, adult care or health care or any combination of those activities;
B. a retail tobacco store;
C. a cigar bar;
D. the facilities of a tobacco manufacturing company
licensed by the United States to manufacture tobacco products that are
operated by the company in its own name and that are used exclusively
by the company in its business of manufacturing, marketing or
distributing its tobacco products; provided that smoke does not
infiltrate other indoor workplaces or other indoor public places where
smoking is otherwise prohibited under this Ordinance;
E. a state-licensed gaming facility, casino or bingo
parlor;
F. an indoor workplace to the extent that tobacco
smoking is an integral part of a smoking cessation program that is
approved by the department or of medical or scientific research that is
conducted in the indoor workplace and in which each room of the indoor
workplace in which tobacco smoking is permitted complies with signage
requirements;
G. designated outdoor smoking areas;
H. private clubs;
I. a limousine under private hire;
J. hotel and motel rooms that are rented to guests
and are designated as smoking-permitted rooms; provided that not more
than twenty-five percent (25%) of rooms rented to guests in a hotel or
motel may be so designated;
K. enclosed areas within restaurants, bars, hotel
and motel conference or meeting rooms while these places are being used
for private functions; provided that none of these areas are open to
the general public while the private functions are occurring and
provided that smoke does not infiltrate other indoor workplaces or
indoor public places where smoking is otherwise prohibited under this
Ordinance.
L. a site that is being used in connection with the
practice of cultural or ceremonial activities by Native Americans and
that is in accordance with the federal American Indian Religious
Freedom Act, 42 U.S.C. 1996 and 1996a;
M. a business of a sole proprietor or a business
with fewer than two employees that is not commonly accessible to the
public; provided that:
(1) the business is not a
restaurant or bar;
(2) the employer or manager of
such business shall provide a smoke-free work environment for each
employee requesting a smoke-fee environment; and
(3) cigarette smoke does not
infiltrate other smoke-free work environments as provided for in this
Ordinance; and
N. a theatrical stage or a motion picture or
television production set when it is necessary for performers to smoke
as part of the production.
4-3-6: Prohibition of Smoking Near
Entrances, Windows and Ventilation Systems: Smoking is prohibited
near entrances, windows and ventilation systems of all workplaces and
public places where smoking is prohibited by this Ordinance. An
individual who owns, manages, operates or otherwise controls the use of
any premises subject to the provisions of this Ordinance shall
establish a smoke free area that extends a reasonable distance from any
entrances, windows and ventilation systems to any enclosed areas where
smoking is prohibited. The reasonable distance shall be a
distance sufficient to ensure that persons entering or leaving the
building or facility shall not be subjected to breathing tobacco smoke
and to ensure that tobacco smoke does not enter the building or
facility through entrances, windows, ventilation systems or any other
means.
4-3-7: Responsibilities of
Employers:
A. Employers shall provide that
their places of employment meet the requirements of this Ordinance.
B. An employer shall adopt,
implement, post and maintain a written policy pursuant to the Ordinance.
4-3-8: Posted Smoke free and
Smoking-Permitted Areas:
A. To advise persons of the
existence of smoke free areas or smoking-permitted areas, signs shall
be posted as follows:
(1) for each
indoor workplace or indoor public place where smoking is prohibited
pursuant to this Ordinance, a “No Smoking” sign shall be posted where
it is clear, conspicuous and easily legible at each public
entrance. Post of “No Smoking” signs is the responsibility of the
owner, operator, manager or other person having control of the indoor
workplace or indoor public place; and
(2) for each
indoor workplace or indoor public place where smoking is permitted
pursuant to this Ordinance, a “Smoking Permitted” sign shall be posted
where it is clear, conspicuous and easily legible at each public
entrance, unless an owner, operator or manager chooses to prohibit
smoking in all or part of an indoor workplace or indoor public place
where smoking is otherwise permitted.
B. Nothing in this Ordinance
shall be construed so as to require the posting of signs at a
residence, except during the hours of business operation while it is
being used commercially to provide child care, adult care or health
care or any combination of those activities.
4-3-9: Enforcement
A. Enforcement of this Ordinance
shall be by citation from the Fire Department, Police Department and
Code Enforcement officers.
B. A person may register a
complaint regarding an alleged violation pursuant to this Ordinance to
initiate enforcement with the Fire or Police Department.
C. The designated enforcement
agencies may inspect an establishment for compliance with this
Ordinance.
4-3-10: Violations: It is
unlawful for a person who owns, manages, operates or otherwise controls
the use of premises subject to regulation under this Ordinance to
violate its provisions. The owner, manager or operator of
premises subject to regulation shall not be subject to a penalty if a
person on the premises is in violation of this Ordinance as long as the
owner, manager or operator has posted signs, implemented the
appropriate policy and informed the person that the person is in
violation.
4-3-11: Penalties: A person
eighteen years of age or older who violates a provision of this
Ordinance is subject to:
A. a fine not to exceed one
hundred dollars ($100) for the first violation;
B. a fine not to exceed two
hundred dollars ($200) for the second violation within any consecutive
twelve-month period of the first violation; and
C. a fine not to exceed five
hundred dollars ($500) for the third and each subsequent violation
within any consecutive twelve-month period of a previous violation.
4-3-12: Nonretaliation –Nonwaiver
A. A person or employer shall not
discharge, refuse to hire or in any manner retaliate against an
employee, applicant for employment or patron because that employee,
applicant or patron exercises any rights afforded by this Ordinance or
reports or attempts to prosecute a violation of this Ordinance.
B. An employee who works in a
setting where any employer allows smoking does not waive or otherwise
surrender any legal rights the employee may have against the employer
or any other party.
4-3-13: Severability: If any
section, subsection, paragraph, phrase or other portion of this
Ordinance shall be declared invalid for any reason whatsoever by a
court of competent jurisdiction, then such decision shall not affect
the validity or enforceability of the remaining portions of this
Ordinance.
PASSED, APPROVED AND ADOPTED this 11th day of
September 2007.
____________________________________
Sammy L.
Hammons, Mayor
ATTEST:
______________________________________
Kay Strickland, Village Clerk