Borough of New Hope, PA Chapter 220 Smoking in Public Places

[HISTORY: Adopted by the Borough Council of the Borough of New Hope 5-9-2007 by Ord. No. 2007-05. Amendments noted where applicable.]

§ 220-1 Title.

This chapter shall be known and may be cited as the "Smoking in Public Places Ordinance."

§ 220-2 Legislative findings.

New Hope Borough Council hereby finds as follows:

A. Tobacco smoke, also known as "secondhand smoke," whether inhaled through smoking or indirectly through exposure to smoky environments, contains more than 4,000 known chemical compounds that are released into the air as particles and gases.

B. According to a 2001 report issued by the National Cancer Institute, there are 69 known or probable carcinogens in tobacco smoke.

C. In 1986, the United States Surgeon General concluded that exposure to secondhand smoke can cause lung cancer in healthy nonsmokers.

D. In 1992, the United States Environmental Protection Agency (EPA) published results of an environmental tobacco smoke study.

E. In 1992, the EPA concluded that exposure to secondhand smoke is responsible for approximately 3,000 lung cancer deaths annually in nonsmokers in the United States, and that secondhand smoke has a statistically significant effect on the respiratory health of nonsmoking adults.

F. For children, the 1992 EPA report concluded that exposure to secondhand smoke is causally associated with an increased risk of lower respiratory tract infections, such as bronchitis and pneumonia; an increased prevalence of fluid in the middle ear; and an increase in symptoms of upper respiratory tract irritation. Moreover, the report concluded that secondhand smoke is responsible for the increase in the number of episodes and the severity of symptoms in asthmatic children, and causes thousands of nonasthmatic children to develop this condition each year.

G. A 2004 study appearing in the Journal of Occupational and Environmental Medicine found that levels of cancer-causing particles were up to 50 times higher in a smoky bar than on a busy highway. Credible evidence exists that a nonsmoking bar and restaurant worker's blood cotinine levels are similar to those of a smoker due to heavy environmental tobacco smoke in some establishments. This type of exposure results in the same risks for neoplasms, lung, heart and vascular diseases among nonsmoking hospitality workers as in workers choosing to smoke. A New York City study showed significantly lower levels of nicotine in bar and restaurant workers' blood levels within eight months of the onset of the smoking ban in New York City restaurants, bars, and clubs.

H. The 2004 Journal of Occupational and Environmental Medicine study also found that while 3/4 of white collar workers are covered by smoke-free workplace policies, fewer than 13% of bartenders and wait staff have the benefit of a smoke-free workplace. As recently as 2002, food service workers accounted for the fourth highest number of employees in the workforce. As important, 20% were teenagers, 56% were female; approximately 12% were African-American; and nearly 20% were Hispanic.

I. The Pennsylvania Restaurant Association endorses a comprehensive ban on smoking for restaurants, bars, casinos, and private clubs.

J. Retrofitting existing buildings with ventilation devices is cost prohibitive. Moreover, there exists no scientific evidence demonstrating that ventilation technology can effectively rid an indoor environment of secondhand smoke. The federal Occupational Safety and Health Administration (OSHA) has concluded that ventilation is not an acceptable engineering control measure for reducing and/or eliminating occupational exposure to secondhand smoke.

K. Based on 2002 and 2005 survey results, nearly 75% of Pennsylvanians do not smoke, and 77% of Pennsylvanians believe that people should not be exposed to secondhand smoke in public places.

L. Many citizens of New Hope Borough are exposed to the harmful effects of tobacco smoke due to its widespread presence in public places and in the workplace. Exposure to secondhand smoke presents a substantial health risk to adult nonsmokers and children.

M. According to the United States Surgeon General's 2006 report "The Health Consequences of Involuntary Exposure to Tobacco Smoke," secondhand smoke exposure increases the risk of heart disease and lung cancer in adults, and sudden infant death syndrome and respiratory problems in children.

N. The Surgeon General's 2006 report also found that there is no risk-free level of secondhand smoke exposure, even with brief exposure adversely affecting the cardiovascular and respiratory systems, that only smoke-free environments effectively protect nonsmokers from secondhand smoke in indoor spaces, and that millions of Americans continue to be exposed to secondhand smoke in their homes and workplaces.

O. The United States Surgeon General further concluded that secondhand smoke has been found to contain more than 50 carcinogens and at least 250 chemicals that are know to be toxic or carcinogenic.

P. In addition, the Surgeon General's 2006 report concludes that smoke-free environments are the only approach that effectively protects nonsmokers from the dangers of secondhand smoke, and that even sophisticated ventilation approaches cannot completely remove secondhand smoke from an indoor setting. Because there is no risk-free level of secondhand smoke exposure, anything less than a complete ban cannot ensure that nonsmokers are fully protected from the dangers of exposure to secondhand smoke.

Q. The current status of the state law regarding smoking in public places is unclear. In 1999, through Act 45 of 1999, the Pennsylvania Legislature approved the repeal of the Pennsylvania Clean Indoor Air Act (Act 168 of 1988). The Pennsylvania Clean Indoor Air Act purported to prohibit municipalities from regulating smoking in indoor places.

R. Subsequent action by the Pennsylvania Legislature has not clarified whether the Pennsylvania Legislature continues to preserve the Clean Indoor Air Act prohibition, and whether New Hope Borough has independent authority under the Pennsylvania Borough Code to enact regulations relating to smoking in indoor spaces.

S. In the absence of a clear state statute prohibiting smoking in public places, local restrictions are necessary to protect the public's health, safety and welfare.

§ 220-3 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

BOROUGH

The Borough of New Hope, Bucks County, Pennsylvania.

COMMON USE AREA

An area in any building or structure intended for the common use of residents, the public or invited guests.

DRINKING ESTABLISHMENT

Any food or beverage establishment whose on-site sales of food for consumption on the premises comprises no more than 10% of gross sales of both food, nonalcoholic and alcoholic beverages on an annual basis, or on such other basis as the Borough shall provide by resolution with respect to such establishments that have been open for less than one full year.

ENCLOSED AREA

All space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of doors or passageways) which extend from the floor to the ceiling.

FOOD OR BEVERAGE ESTABLISHMENT

Any restaurant, bar, coffee shop, cafeteria, sandwich stand, diner, fast-food establishment, cafeteria, banquet hall, catering facility, food court, or any other eating or drinking establishment which gives or offers for sale food or drink to the public, guests, or employees whether for consumption on or off the premises.

FOOD FACILITY

Any enclosed area, stationary or mobile, permanent or temporary, where food is prepared, handled, served, sold or provided to any consumer, whether for consumption on or off the premises. Any person who owns, operates, manages or otherwise controls any of the entities described in this subsection shall be cited as a "food facility" for the purposes of this chapter.

PASSAGEWAY

An enclosed means of ingress and egress to any regulated area, used by employees, residents, guests, contractors or the public, up to and including 20 feet in any direction from the outermost point of public contact with the area

PRIVATE CLUB

Any reputable group of individuals associated together as a not-for-profit organization for legitimate purposes of mutual benefit, entertainment, fellowship or lawful convenience which regularly and exclusively occupies, as owner or lessee, a clubhouse or quarters for the use of its members; and, which holds regular meetings, conducts its business through officers regularly elected, and admits members by written application, investigation and ballot. Notwithstanding the foregoing, any volunteer fire company located within and/or serving the Borough is not a private club.

REGULATED AREA

Any area where smoking is prohibited under this chapter.

SMOKE or SMOKING

Inhaling, exhaling, burning or carrying any lighted cigarette, cigar, pipe or other such device which contains tobacco or other smoke-producing products.

TOBACCO-SMOKE-PRODUCING INSTRUMENT

Any device or configuration designed to facilitate the inhalation of tobacco or other plant material smoke, including without limitation factory or hand-rolled cigarettes, cigars, hookahs, bongs and pipes.

§ 220-4 Smoking prohibited; exceptions.

A. Except as provided in Subsection B below, no person shall smoke or possess a lit tobacco-smoking-producing instrument in any of the following locations:

(1) Enclosed areas of food or beverage establishments.

(2) Enclosed areas of drinking establishments.

(3) Any Borough owned or leased building or facility, including parks and open space areas.

(4) Any enclosed area at which a public meeting is held by any public agency, during such time as a public meeting is in progress.

(5) In any place where "No Smoking" signs are posted by order of any individual or agency authorized by law to do so.

(6) Except in outdoor areas permitted under Subsection B(1) below, outdoors within 20 feet of any entrance to any enclosed area in which smoking is prohibited under this chapter.

(7) In any food facility.

(8) Except in outdoor areas permitted under Subsection B(1) below, in any passageway.

B. Exceptions. The provisions of Subsection A above shall not apply:

(1) At any sidewalk cafe, any outdoor deck, patio or similar outdoor service area that is part of a food or beverage establishment or drinking establishment, even if such items are within 20 feet of the entrance to any food or beverage establishment or drinking establishment.

(2) In a private club.

§ 220-5 Duties of persons in control of premises.

A. The owner, operator, manager, employer or other person in control in every regulated area where smoking is regulated by this chapter shall take the following actions, and shall not be cited for any violations of this chapter if all such actions are taken:

(1) Post "No Smoking" signs and other signs relating to smoking on the premises, including all entranceways, as follows:

(a) Such signs shall be no less than six inches high, with lettering no less than four inches high. A symbol consisting of a circle with a lit cigarette and a line diagonally through its center is deemed to satisfy the requirements of this section so long as the sign is at least six inches high and the symbol is at least four inches in height.

(b) Signs posted at entry and exit doors shall include the language "No Smoking within 20 feet of this sign." Such sign shall not be posted at an entrance or exit where it conflicts with a designated outdoor service area for a food, beverage or drinking establishment.

(2) Take reasonable measures to see to it that no person smokes in such place in violation of this chapter, which, at a minimum, must include all of the following which apply in the regulated area at issue:

(a) Removing all ashtrays from regulated areas;

(b) Informing any person who smokes in a regulated area that smoking is prohibited by law in that area, and requesting such person to immediately refrain from smoking or leave the area in which smoking is prohibited; and

(c) Reporting immediately to the Borough Code Official or Police Department if a person does not comply with a request to immediately refrain from smoking or leave the area in which smoking is prohibited.

B. The owner or manager of a building, with respect to any portion of the building leased to others (the leased premises) in which smoking is regulated by this chapter, shall take the following actions, and shall not be cited for any violations of this chapter if all such actions are taken:

(1) Post "No Smoking" signs and other signs relating to smoking on the premises in the manner provided in Subsection A(1) above;

(2) Advise the lessee that smoking is prohibited in the leased premises, and include "No Smoking" provisions in any lease entered into after the effective date of this chapter; and

(3) Refer any complaints which the owner or manager receives about smoking in the leased premises immediately to the tenant in writing.

§ 220-6 Enforcement; violations and penalties.

A. The New Hope Borough Police Department and Code Official shall have the power to enforce the provisions of this chapter, and may bring any action at law or in equity to secure compliance with the provisions of this chapter and/or collect any fine imposed.

B. Any person who shall violate any of the provisions of this chapter or fail to comply therewith or with any of the requirements thereof shall be liable to a fine of not more than $600, community service or imprisonment for not more than 90 days, or a fine, community service and imprisonment. Each and every day such violation continues shall be deemed a separate and distinct violation. Each violation of this chapter shall be a separate and distinct violation.