[HISTORY: Adopted by the Mayor and Council of the City of Española as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Fire Department — See Ch. 49.
Regulation of businesses — See Ch. 158.
[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:
CITY BUILDING
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.
SMOKE or SMOKING
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:
(1) 
Protect the public health and welfare by prohibiting smoking in public places and places of employment; and
(2) 
Guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-flee air shall have priority over the desire to smoke.
As used in this article, the following terms shall have the meanings indicated:
BAR
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.
BUSINESS
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.
EMPLOYEE
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.
EMPLOYER
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.
ENCLOSED AREA
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.
HEALTH-CARE FACILITY
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.
PLACE OF EMPLOYMENT
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.
PRIVATE CLUB
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.
PUBLIC PLACE
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.
RESTAURANT
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.
RETAIL TOBACCO STORE
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.
SERVICE LINE
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.
SHOPPING MALL
An enclosed public walkway or hall area that serves to connect retail or professional establishments.
SMOKING
Inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other lighted tobacco product in any manner or in any form.
SPORTS ARENA
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.
G. 
Outdoor areas of places of employment, except those covered by the provisions of §§ 278-13 and 278-14.
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.