HomeMy WebLinkAbout06921AS AMENDED 1219/02
ORDINANCE NO. 6921
AN ORDINANCE REPEALING CHAPTER 6 OF TITLE VII OF THE PUEBLO MUNICIPAL CODE
AND ENACTING A NEW CHAPTER 6 OF TITLE VII OF THE PUEBLO MUNICIPAL CODE
RELATING TO SMOKING IN PLACES OF PUBLIC ACCOMMODATION AND PLACES OF
EMPLOYMENT, AND PROVIDING PENALTIES FOR VIOLATION THEREOF
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (Brackets indicate matter
deleted; underscoring indicates matter added.)
SECTION 1
Chapter 6 of Title VII of the Pueblo Municipal Code is repealed in its entirety:
[CHAPTER 6
Smoking in Public Places and Places of Employment
Sec. 7 -6 -1. Definitions.
As used herein, the following terms shall be defined as follows:
(1) Tobacco shall mean any part or portion of any plant belonging to the
genus Nicotiana, including but not limited to N. tobacum, and including all processed
forms of such plant and products derived therefrom.
(2) Smoking and smoke shall mean the act of smoking tobacco or
possessing tobacco which is currently undergoing combustion.
(3) Smoking instrument shall mean any cigar, cigarette, pipe or other
smoking device containing tobacco.
(4) Public building shall mean any building or enclosed structure
providing shelter which is owned, leased or controlled by any local, state or federal
public entity. Any place of public accommodation which is operated by or for a
public entity within a public building shall be subject to the requirements of this
Chapter applicable to public buildings rather than the requirements applicable to
places of public accommodation.
(5) Places of public accommodation shall mean all buildings generally
open to the use of the public without special invitation, including but not limited, to
the public areas of schools, institutions of higher education, churches, restaurants,
retail stores, theaters, elevators, public conveyances, recreational facilities,
hospitals, nursing homes, auditoriums, ice arenas, roller rinks, grocery stores,
showrooms and jails.
(6) Designated employer shall mean any employer who has elected to
prohibit smoking in his or her place or places of employment and any other
employer who has received a petition in writing signed by more than fifty percent
(50 %) of his or her current employees requesting that smoking be prohibited in the
place or places of employment.
(7) Tavern shall mean an establishment licensed to sell malt, spirituous
or vinous liquors or fermented malt beverages for consumption on the premises
under the laws of the State, except the term shall not include those establishments
selling such liquors or beverages under a "hotel- restaurant license" or merely
ancillary to a restaurant business.
(8) Designated smoking area shall mean an area of any public building,
place of public accommodation or place of employment of a designated employer
which the public or private owner, lessee or employer has designated as an area in
which smoking is allowed.
(9) Public meetings shall mean all meetings open to the public without
special invitation and conducted by governmental entities or by civic organizations
for public or civic purposes.
Sec. 7 -6 -2. Smoking prohibited; penalties.
(a) No person shall, except in a designated smoking area, smoke or carry a
lighted smoking instrument in any public building or place of public accommodation or at
any public meeting.
(b) Any person who smokes or possesses a lighted smoking instrument within
any area where prohibited or posted as a no- smoking area pursuant to or under the
authority of this Chapter commits a municipal violation and upon conviction thereof shall be
punished by a fine of not more than one hundred dollars ($100.00).
Sec. 7 -6 -3. Public buildings; designated smoking areas.
(a) A public entity may designate areas in public buildings where smoking is permitted.
Such areas shall not be designated in common areas shared with nonsmokers, such as
lobbies and hallways, unless such common areas exceed two thousand five hundred
(2,500) square feet and ventilation is adequate. In such event, the designated smoking area
of a lobby, hallway or other common area shall not exceed twenty-five percent (25 %) of the
total area of such lobby, hallway or other common area. In no event shall a designated
smoking area be located in elevators or rest rooms, or any location where smoking is
otherwise prohibited by applicable fire, building or safety codes or regulations.
(b) A public entity may also designate as smoking areas employee offices in
work places, lounges, conference rooms and cafeterias in a public building which are
occupied by employees, provided that such offices are not generally open to the public.
Sec. 7 -6-4. Places of public accommodation; designated smoking areas.
(a) Smoking areas may be designated in places of public accommodation
except in retail stores, grocery stores, public conveyances, theaters, auditoriums, rest
rooms, elevators, libraries, museums or galleries and where prohibited by applicable fire,
building or safety codes or regulations. The owner or proprietor of all places of public
accommodation in which smoking areas may be designated shall nevertheless provide a
no- smoking area of sufficient size to accommodate patrons who request to be seated or
served in a no- smoking area.
(b) Whenever possible, designated smoking areas shall be located in
connection with existing physical barriers and ventilation systems so as to minimize
migration of smoke into no- smoking areas. In the case of places of public accommodation
which consist of a single room, an owner or proprietor shall be considered to be in
compliance with this Section if one (1) side of the room is established as a no- smoking
area.
(c) Notwithstanding anything in this Chapter, an owner or proprietor may prohibit
smoking in the entire place of public accommodation.
Sec. 7-6 -5. Places of employment.
(a) An employer who has become a designated employer by virtue of having
received a petition signed by more than fifty percent (50 %) of his or her full -time employees
requesting a no- smoking area shall designate within the place of employment the areas
where smoking is prohibited and such designated smoking areas as the employer
determines are appropriate. In making such area designations, designated employers shall
make reasonable efforts to provide a smoke -free work area for all employees who request
the same, and shall make reasonable efforts to separate smoking and no- smoking areas so
as to reduce smoke migration into no- smoking areas, consistent with the employer's needs,
requirements and the physical limitations of the place of employment. An employer who in
good faith develops and promulgates a policy regarding smoking and no- smoking areas in
the place of employment shall be deemed to be in compliance with this Section.
(b) Notwithstanding anything in this Chapter, an employer may elect to prohibit
smoking in the entire place of employment.
Sec. 7 -6 -6. Areas where smoking permitted.
Unless otherwise posted by the owner or proprietor or unless otherwise prohibited
by other applicable fire or safety codes or regulations, smoking shall be permitted in the
following places or areas:
(1) Taverns and night clubs;
(2) Hotels, restaurants, cafes and eateries with seating capacity for less
than fifty (50) patrons;
(3) Tobacco shops and retail establishments which derive more than fifty
percent (50 %) of their gross revenue from the sale of tobacco products, smoking
instruments and accessories related thereto;
(4) Rooms or halls being used by a person or group for a social or
business function where the seating arrangements are under the control of the
sponsor of the function;
(5) Private homes, clubs and other places not generally open to the
public; and
(6) Areas designated pursuant to this Chapter as smoking areas in
public buildings, places of public accommodation and places of employment of
designated employers.
Sec. 7 -6 -7. Signs.
Signs advising of areas where smoking is prohibited and of areas where it is
permitted or designated smoking areas exist shall be posted as follows:
(1) In public buildings and places of public accommodation where the
owner, proprietor or person in charge prohibits smoking in the entire establishment,
a sign using the words "No Smoking" and /or the international no smoking symbol
shall be conspicuously posted either on all public entrances or in a position clearly
visible on entry into the establishment.
(2) In public buildings and places of public accommodation where certain
areas are designated as smoking areas pursuant to this Chapter, the statement "No
Smoking Except in Designated Areas" shall be conspicuously posted on all public
entrances or in a position clearly visible on entry into the establishment.
(3) In places of public accommodation where smoking is permitted in the
entire establishment, a sign using the words "Smoking Permitted" and /or the
international smoking symbol shall be conspicuously posted either on all public
entrances or in a position clearly visible on entry into the establishment.]
SECTION 2
A new Chapter 6 of Title VII of the Pueblo Municipal Code is hereby enacted and adopted to read
as follows:
CHAPTER 6
Smoking in Places of Public Accommodation and Places of Employment
Sec. 7 -6 -1. Title.
This Chapter shall be known as the Pueblo Smoke -Free Air Act of 2002.
Sec. 7 -6 -2. Findinsas and Purpose.
u It is hereby found that studies have determined that tobacco smoke is a
major contributor to indoor air pollution and that breathing secondhand smoke is a cause of
disease. At special risk are children, elderly people, individuals with cardiovascular
disease, and individuals with impaired respiratory function, including asthmatics and those
which obstructive airway disease. Secondhand smoke has been classified as a Class A
carcinogen by the Environmental Protection Agency. Secondhand smoke contains known
toxins and carcinogens. Health hazards induced by breathing secondhand smoke include
lung cancer, heart disease, respiratory infection, and decreased respiratory function,
including bronchoconstriction and broncho- spasm.
u It is hereby declared that the purpose of this Chapter is to protect the public
health and welfare by prohibiting smoking in public places and places of employment
Sec. 7-6 -2. Definitions.
The following words and phrases, whenever used in this Chapter, shall be
construed as defined in this section:
u Attached bar means a bar area of a restaurant. An "attached bar" for the
purposes of this Chapter shall not include any area where full meals are served, but may
include the service of appetizers and snacks. Although a restaurant may contain a bar, the
term "bar" shall not include the restaurant dining area.
IQ Freeestandinp bar means an establishment that is devoted to the serving of
malt, vinous and /or spirituous liquors for consumption on the premises and in which the
serving of food is not more than twenty -five percent (25 %) of the gross income of the
business of the licensed premises, including but not limited to, taverns, nightclubs, cocktail
lounges, and cabarets.
(3) Business means a 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.
M Employee means a person who is employed by an employer in consideration
for direct or indirect monetary wages or profit, and a person who volunteers his or her
services for a non-profit entity.
L5.) Employer means a person, business, partnership, association, corporation,
including a municipal corporation, trust, or non - profit entity that employs the services of one
or more individual persons.
u Enclosed area means all space between a floor and ceiling that is enclosed
on all sides by solid walls or windows (exclusive of doorways), which extend from the floor
to the ceiling, including all space therein screened by partitions, office landscaping, or
similar structures which do not extend to the ceiling or are not solid.
M Place of employment means an enclosed area under the control of a public
or private employer that employees normally frequent during the course of employment,
including, but not limited to, work areas, employee lounges, restrooms, conference rooms,
meeting rooms, classrooms, employee cafeterias, hallways, and vehicles. A private
residence is not a 'place of employment" unless it is used as a child care, adult day care, or
health care facility.
Place of public accommodation means an enclosed area to which the public
is invited or in which the public is permitted, including but not limited to, public buildings
banks, educational facilities, health care facilities, laundromats, public transportation
facilities, reception areas, restaurants, retail food production and marketing / grocery
establishments, retail service establishments, retail stores, theaters and waiting rooms. A
private club is considered a "place of public accommodation" when functions are held at the
club which are open to the -general public and are not restricted to the members of the club
and their guests. A private residence is not a `place of public accommodation."
u Private club means any establishment which restricts admission to members
of the club and their guests.
10 Private residence means single and multiple family dwelling units, including
dwelling units located in apartments, condominiums and common interest communities.
j11) Restaurant means any coffee shop, cafeteria, sandwich stand, private and
public school cafeteria, and anv 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, nightclub, cabaret, or tavern if said cocktail
lounge, nightclub, cabaret, or tavern is a "freestanding bar' as defined in Section 7- 6 -2(2).
A facility other than a "freestanding bar' shall conclusively be considered to be a
"restaurant" for the purposes of this ordinance, regardless of the category of liquor license
under which the facility operates, if such facility: (a) serves malt, vinous, and /or spirituous
liquors; and (b) includes a restaurant, as defined by C.R.S. 12-47- 103(30).
12 Retail tobacco store means a retail store utilized primarily for the sale of
tobacco products and accessories and in which the sale of other products is merely
incidental.
j13� Indoor service line means an indoor line in which one (1) or more persons
are waiting for or receiving service of any kind, whether or not the service involves the
exchange of money.
LU44 Smoking means inhaling, exhaling, burning or carrying any lighted cigar,
ci-garette, pipe, weed, plant or other combustible substance in any manner or in any form.
15 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 to engage in physical exercise, participate in
athletic competition, or witness sports or other events.
j16) Commercial bingo facility means premises used for the purpose of
conducting bingo and related games of chance.
(17) Smoke -free means that air in an establishment is not contaminated by
tobacco smoke.
(18) Private function means any activity, which is restricted to invited guests in a
nonpublic setting.
Sec. 7 -6 -3. Application of Chapter to City -owned facilities.
All enclosed facilities, including buildings and vehicles owned or leased by the City,
shall be subject to the provisions of this Chapter.
Sec. 7 -6-4. Prohibition of smokinq in places of public accommodation.
u Smoking shall be prohibited in all enclosed places of public accommodation
within the City, including but not limited to the following places:
LD Elevators;
Q Restrooms, lobbies, reception areas, hallways and any other
common -use areas:
III Buses and other means of public transit under the authority of the
City, and ticket, boarding, and waiting areas of public transit depots;
W Indoor service lines:
JQ Retail stores;
to 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;
Restaurants:
u Freestanding and attached bars:
u Public areas of aquariums, galleries, libraries and museums:
Any facility which is primarily used for exhibiting any motion picture
stage, drama, lecture, musical recital or other similar performance, except
performers when smoking is part of a stage production;
11 Sports arenas and convention halls, including bowling facilities:
12 Every public room, chamber, place of meeting or assembly, including
school buildings under the control or any board, council, commission, committee,
including joint committees, or agencies of the City or any political subdivision of the
State durinq such time as a public m eeting is in progress, to the extent such place is
subject to the jurisdiction of the City
13 Waiting rooms, hallways, wards and semiprivate rooms of health
facilities, including, but not limited to, hospitals, clinics, physical therapy facilities,
doctors' offices, and dentists' offices:
14 Lobbies, hallways, elevators and other common areas in apartment
buildings, condominiums, mobile home and manufactured home parks, retirement
facilities, nursing homes, and other multiple -unit residential facilities:
15 Polling places; and
16 Commercial bingo facilities.
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, facility or grounds as smoke -free.
Sec. 7 -6 -5. Prohibition of smoking in places of employment.
(a) It shall be the responsibility of employers to provide a smoke -free place of
employment for all employees but employers are not required to incur any expense to
make structural or other physical modifications.
Within ninety (90) days of the effective date of this Chapter, 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 areas that employees normally
frequent during the course of employment. This includes, but is not limited to,
common work areas, auditoriums, classrooms, conference and meeting rooms
elevators, hallways, medical facilities, cafeterias, employee lounges, stairs,
restrooms, and vehicles.
u The smoking policy shall be communicated to all employees within three (3)
weeks of its adoption.
All employers shall supply a written copy of the smoking policy upon request
to any existing or prospective employee.
Sec. 7 -6 -6. Smoke -free entranceways.
Smoking is prohibited within a distance of 20 feet of an entrance to an enclosed
area where smoking is prohibited to insure that tobacco smoke does not enter the area
through entrances.
Sec. 7 -6 -7. Where smoking not regulated.
(a) Notwithstanding any other provision of this Chapter to the contrary. the
following areas shall be exempt from the provisions of this Chapter:
M Private residences, except when used as a licensed child care, adult
day care, or health care facility;
No more than twenty -five percent (25 %) of hotel and motel rooms
rented to guests:
u Retail tobacco stores:
(4) Restaurants: attached bars: freestanding bars: apartment,
condominium, hotel and motel conference or meeting rooms: and public and private
assembly rooms, when these places are being used for private functions:
Outdoor areas of places of emplovment except those covered in
Section 6 of this Chapter: and
u Private and semiprivate rooms in nursing homes, retirement facilities
and long -term care facilities that are occupied by one (1) or more persons all of
whom are smokers and who have requested in writing to be placed in a room where
smoking is permitted.
(b) Notwithstanding any other provision of this section any owner, operator
manager or other person who controls any establishment described in this section may
declare that entire establishment, facility, or grounds as smoke -free.
Sec. 7 -6 -8. Postina of signs.
u Within ninety (90) days of the effective date of this Chapter, "No Smoking"
signs 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 and
conspicuously posted in every place of public accommodation and place of employment
where smoking is prohibited by this Chapter, by the owner, operator, manager, or other
person having control of such building or other area.
(bbj Every place of public accommodation where smoking is prohibited by this
Chapter shall have posted at every entrance a conspicuous sign clearly stating that
smoking is prohibited.
(c) All signs referred to in this Section shall be a minimum size of 20 square
inches and must be placed at a height of between 4 to 6 feet above the floor.
All ashtrays and other smoking paraphernalia shall be removed from any
area where smoking is prohibited by this Chapter by the owner, operator, manager, or other
person having control of such area.
Sec. 7 -6 -9. Enforcement.
(a) This Chapter shall be enforced by the Director of the Health Department or
his or her designee.
u Notice of the provisions of this Chapter shall be given to all applicants for a
business license in the City.
Lc� Any person who desires to register a complaint under this Chapter may file
such complaint in such person's name with the Health Department.
IM The Health Department shall inspect for compliance with this Chapter while
an establishment is undergoing otherwise mandated inspections.
u An owner, manager, operator, or emplovee of an establishment regulated by
this Chapter shall inform persons violating this Chapter of the appropriate provisions thereof
and request their compliance.
Sec. 7 -6 -10. Nonretaliation.
No person or emplover shall discharge, refuse to hire, or in any manner retaliate
against an employee, applicant for employment, or customer because that employee.
applicant, or customer exercises any rights to a smoke -free environment afforded by this
Chapter.
Sec. 7 -6 -11. Violations and penalties.
W a1 It shall be unlawful and a Class 2 municipal offense 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.
u It shall be unlawful and a Class 2 municipal offense for any person to smoke
in any area where smoking is prohibited by the provisions of this Chapter.
(c) Each day of continuing violation shall be deemed to be a separate violation.
Sec. 7 -6 -12. Public education.
The Health Department shall engage in a continuing ixogram to explain and clarify
the purposes and requirements of this Chapter to citizens affected by it, and to guide
owners, operators, and managers in their compliance with it. Such programs may include
publication of a brochure for affected businesses and individuals explaining the provisions
of this ordinance.
Sec. 7 -6 -13. Other applicable laws.
This Chapter shall not be interpreted or construed to permit smoking where it is
otherwise restricted by other applicable ordinances.
SECTION 3
If any provision of this Ordinance or the application thereof to any person or circumstances
shall be held invalid, such invalidity shall not affect the other provisions of this Ordinance which are
declared to be severable.
SECTION 4
This Ordinance shall become effective January 1, 2003.
INTRODUCED October 28, 2002
BY Al Gurule
Councilperson
- ; ; e
APPROVED
resident of City Council
ATTEST:
City C
PASSED AND APPROVED: December 9. 2002