[HISTORY: Adopted by the Mayor and Council of the City of
Española as indicated in article histories. Amendments noted
where applicable.]
[Adopted 11-15-1994 by Ord. No. 524 (Ch. 54, Art. II, of the
Code of Ordinances)]
The laws and regulations promulgated and published by the State
Environmental Improvement Board and subsequent revisions thereof and
amendments thereto are hereby adopted by reference and made a part
of this chapter as if fully set forth in this section; provided, however,
that the penalty sections in such laws and regulations shall not be
applicable to violations thereof within this City.
The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
Any enclosed, indoor area owned, leased, or otherwise under
the control of the City to which any person has access during the
course of doing business of any kind, including, but not limited to,
work areas, employee lounges, conference rooms, offices, reception
areas, and public meeting rooms. The expression "City building" does
not mean any building owned by the City which is leased on a long-term
basis to another group, individual or entity; nor does it mean a building
owned by another group, individual, or entity but constructed on City-owned
land.
Carrying, holding, inhaling, exhaling, or burning any lighted
cigar, cigarette, pipe or other lighted combustible tobacco product.
It is unlawful for any person to smoke in a City-owned building,
facility or City-owned vehicles, except for designated areas in the
jail facility to be designated by the jail administrator.
Wherever smoking is prohibited in City-owned buildings, facilities
and vehicles, signs shall be posted in conspicuous places near every
public entrance of that building stating "no smoking" or they shall
bear the international "no smoking" symbol.
Any person convicted of violating this article shall be punished
by a fine no less than $10 for the first offense and no more than
$50 for each subsequent offense.
Law enforcement personnel are authorized to issue citations
in lieu of filing complaints.
[Adopted 11-27-2006 by Ord. No. 2006-11]
This article may be cited as the "Española Smoke Free
Ordinance."
A.
Numerous studies have found that tobacco smoke is a major contributor
to indoor air pollution, and that breathing secondhand smoke (also
known as "environmental tobacco smoke") is a cause of disease in healthy
nonsmokers, including heart disease, stroke, respiratory disease,
and lung cancer. The Public Health Service's National Toxicology
Program (NTP) has listed secondhand smoke as a known carcinogen.
B.
Secondhand smoke is particularly hazardous to children, elderly people,
individuals with cardiovascular disease, and individuals with impaired
respiratory function, including asthmatics and those with obstructive
airway disease.
C.
According to the United States Surgeon General's Report on the
Health Consequences of Involuntary Exposure to Tobacco Smoke, issued
June 27, 2006, there is no risk-free level of exposure to secondhand
smoke. The United States Surgeon General has determined that the simple
separation of smokers and nonsmokers within the same air space may
reduce, but does not eliminate, the exposure of nonsmokers to secondhand
smoke.
D.
Given the fact that there is no safe level of exposure to secondhand
smoke, the American Society of Heating, Refrigerating and Air Conditioning
Engineers (ASHRAE) bases its ventilation standards on totally smoke-free
environments. ASHRAE has determined that there is currently no air
filtration or other ventilation technology that can completely eliminate
all the carcinogenic components in secondhand smoke and the health
risks caused by secondhand smoke exposure, and recommends that indoor
environments be smoke-free in their entirety.
E.
Based on the accumulation of sound scientific data, the smoking of
tobacco must be considered a serious danger to public health, a form
of air pollution, and a material public nuisance.
F.
Accordingly, the Española City Council finds and declares
that the proposes of this article are to:
As used in this article, the following terms shall have the
meanings indicated:
An establishment that 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 those beverages,
including, but not limited to, taverns, nightclubs, cocktail lounges,
and cabarets.
A sole proprietorship, partnership, joint venture, corporation,
or other business entity, either for-profit or not-for-profit, including
retail establishments where goods or services are sold, professional
corporations and other entities where legal, medical, dental, engineering,
architectural, or other professional services are delivered; and private
clubs.
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 nonprofit entity.
A person, business, partnership, association, and corporation,
including a municipal corporation, trust, or nonprofit entity that
employs the services of one or more individual persons.
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.
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, hospitals,
rehabilitation hospitals or other clinics, including weight control
clinics, nursing homes, homes for the aging or chronically ill, laboratories,
and offices of surgeons, chiropractors, physical therapists, physicians,
dentists, and all specialists within these professions This definition
shall include all waiting rooms, hallways, private rooms, semiprivate
rooms, and wards within health-care facilities.
An 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, private offices, employee
lounges, rest rooms, 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.
An organization, whether incorporated or not, which is the
owner, lessee, or occupant of a building or portion thereof used exclusively
for club purposes at all times, which is operated solely for a recreational,
maternal, social, patriotic, political, benevolent, or athletic purpose,
but not for pecuniary gain, and which only sells alcoholic beverages
incidental to its operation. The affairs and management of the organization
are conducted by a board of directors, executive committee, or similar
body chosen by the members at an annual meeting. The organization
has established bylaws and/or a constitution to govern its activities.
The organization has been granted nonprofit status as a club under
26 U.S.C. § 501.
An enclosed area to which the public is invited or in which
the public is permitted, including, but not limited to, banks, bars,
educational facilities, gaming facilities, health-care facilities,
hotels and motels, laundromats, public transportation facilities,
reception areas, restaurants, retail food production and marketing
establishments, retail service establishments, retail stores, shopping
malls, sports arenas, theaters, and waiting rooms. A private club
is a public place when being used for a function to which the general
public is invited. A private residence is not a public place unless
it is used as a child-care, adult day-care, or health-care facility.
An eating establishment, including, but not limited to, coffee
shops, cafeterias, sandwich stands, and private and public school
cafeterias, which gives or offers for sale food to the public, guests,
or employees, as well as kitchens and catering facilities in which
food is prepared on the premises for serving elsewhere. The term "restaurant"
shall include a bar area within the restaurant.
A retail store utilized primarily for the sale of tobacco
products and accessories and in which the sale of other products is
merely incidental, including but not limited to smoke shops, cigar
shops, and hookah lounges, and shall not include establishments which
offer for sale alcoholic beverages for consumption by guests on the
premises.
An indoor line in which one or more persons are waiting for
or receiving service of any kind, whether or not the service involves
the exchange of money.
An enclosed public walkway or hall area that serves to connect
retail or professional establishments.
Inhaling, exhaling, burning, or carrying any lighted cigar,
cigarette, pipe, or other lighted tobacco product in any manner or
in any form.
Sports pavilions, stadiums, 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.
All enclosed facilities, including buildings and vehicles owned,
leased, or operated by the City of Española, shall be subject
to the provisions of this article.
Smoking shall be prohibited in all enclosed public places within
the City of Española, including, but not limited to, the following
places:
A.
Areas available to and customarily used by the general public in
businesses and nonprofit entities patronized by the public, including,
but not limited to, banks, laundromats, professional offices, and
retail service establishments.
B.
Bars.
C.
Child-care and adult day-care facilities.
D.
Convention facilities.
E.
Educational facilities, both public and private.
F.
Elevators and stairwells.
G.
Galleries, libraries, and museums.
H.
Health-care facilities.
I.
Hotels and motels.
J.
Lobbies, hallways, and other common areas in apartment buildings,
condominiums, trailer parks, retirement facilities, nursing homes,
and other multiple-unit residential facilities.
K.
Polling places.
L.
Private clubs when being used for a function to which the general
public is invited.
M.
Public transportation facilities, including buses and taxicabs, under
the authority of the City of Española, and ticket, boarding,
and waiting areas of public transit depots.
N.
Restaurants and other eating establishments.
O.
Rest rooms, lobbies, reception areas, hallways, and other common-use
areas in all buildings open to the public.
P.
Retail stores.
Q.
Rooms, chambers, places of meeting or public assembly, including
school buildings, under the control of an agency, board, commission,
committee or council of the City of Española or a political
subdivision of the state, to the extent the place is subject to the
jurisdiction of the City of Española.
R.
Service lines.
S.
Shopping malls.
T.
Sports arenas, including enclosed places in outdoor arenas.
U.
Theaters and other facilities primarily used for exhibiting motion
pictures, stage dramas, lectures, musical recitals, or other similar
performances.
V.
Bingo parlors/games and bowling alleys not owned or located on tribal
land.
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,
elevators, hallways, medical facilities, cafeterias, employee lounges,
stalls, rest rooms, vehicles, and all other enclosed facilities.
B.
This prohibition on smoking shall be communicated to any existing
employees by the effective date of this article and to all prospective
employees upon their application for employment.
Smoking shall be prohibited in the seating areas of all outdoor
arenas, stadiums, and amphitheaters, as well as in bleachers and grandstands
for use by spectators at sporting and other public events.
Smoking is prohibited within a reasonable distance of 20 feet
outside entrances, operable windows, and ventilation systems of enclosed
areas where smoking is prohibited, so as to ensure that tobacco smoke
does not enter those areas and so that employees or members of the
general public are not required to walk through the smoking area to
gain entrance to the enclosed indoor workplace or enclosed indoor
public place.
Notwithstanding any other provision of this article to the contrary, the following areas shall be exempt from the provisions of §§ 278-11 and 278-12:
A.
Hotel and motel rooms that are rented to guests and are designated
as smoking rooms; provided, however, that not more than 20% of rooms
rented to guests in a hotel or motel may be so designated. All smoking
rooms on the same floor must be contiguous, and smoke from these rooms
must not infiltrate into areas where smoking is prohibited under the
provisions of this article.
B.
Private residences, except when used as a child-care, adult day-care,
or health-care facility.
C.
Private clubs that have no employees, except when being used for
a function to which the general public is invited. This exemption
shall not apply to any organization that is established for the purpose
of avoiding compliance with this article.
D.
Casinos and gaming facilities.
E.
Retail tobacco stores, provided that smoke from these places does
not infiltrate into areas where smoking is prohibited under the provisions
of this article.
F.
A site that is being used in connection with the practice of cultural
activities, which include the smoking of tobacco, by American Indians
that is in accordance with the American Indian Religious Freedom Act,
42 U.S.C. §§ 1996 and 1996a.
Notwithstanding any other provision of this article, an owner, operator; manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place. Smoking shall be prohibited in any place in which a sign conforming to the requirements of § 278-17A is posted.
A.
"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 public place and place of employment where smoking
is prohibited by this article, by the owner, operator, manager, or
other person in control of that place.
B.
Every public place and place of employment where smoking is prohibited
by this article 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 article by the owner, operator, manager, or other person having
control of the area.
A.
No person or employer 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 afforded by this article or reports or attempts to prosecute
a violation of this article.
B.
An employee who works in a setting where an employer allows smoking
does not waive or otherwise surrender any legal rights the employee
may have against the employer or any other party.
A.
The Española Fire Department or another authorized designee
of the City Manager shall enforce this article.
B.
Notice of the provisions of this article shall be given to all applicants
for a business license in the City of Española.
C.
The Española City Manager shall engage in a continuing program
to explain and clarify the purposes and requirements of this article
to citizens affected by it; and to guide owners, operators, and managers
in their compliance with it, the program may include publication of
a brochure for affected businesses and individuals explaining the
provisions of this article.
D.
Any citizen who desires to register a complaint under this article
may initiate enforcement with the City Manager or Fire Department.
E.
The Fire Department, Health Department, or their designees shall,
while an establishment is undergoing otherwise mandated inspections,
inspect for compliance with this article.
F.
An owner, manager, operator, or employee of an establishment regulated
by this article shall inform persons violating this article of the
appropriate provisions thereof.
G.
Notwithstanding any other provision of this article, an employee
or private citizen may bring legal action to enforce this article.
H.
In addition to the remedies provided by the provisions of this section,
the City Manager or any person aggrieved by the failure of the owner;
operator, manager, or other person in control of a public place or
a place of employment to comply with the provisions of this article
may apply for injunctive relief to enforce those provisions in any
court of competent jurisdiction.
A.
It shall be unlawful for any person to smoke in any area where smoking
is prohibited pursuant to this article.
B.
It shall be unlawful for any person who owns, manages, operates or
otherwise controls the use of any premises subject to the provisions
of this article to violate any of its provisions.
C.
The owner, manager, or operator of the premises shall not be subject
to a penalty, provided signs have been posted, the implementation
of an appropriate policy exists, and the individual violator has been
informed that he is in violation of the article.
Any person who violates any provision of this article shall
be guilty of a petty misdemeanor punishable by:
A.
A fine not exceeding $100 for a first violation within any consecutive
twelve-month period.
B.
A fine not exceeding $200 for a second violation within any consecutive
twelve-month period.
C.
A fine of $500 for the third and each subsequent violation of this
article within any consecutive twelve-month period.
The City Manager shall request other governmental and educational
agencies having facilities within the City to establish local operating
procedures in cooperation with this article. This includes urging
all federal, state, county, tribal, and school district agencies to
update their existing smoking control regulations to be consistent
with the current health findings regarding secondhand smoke.
This article shall not be interpreted or construed to permit
smoking where it is otherwise restricted by other applicable laws.
This article shall be effective January 1, 2007.
