[HISTORY: Adopted by Dutchess County 9-9-2002 by L.L. No. 5-2002. Amendments noted where applicable.]
Regulation of smoking in certain public areas — See Public Health Law Art. 13-E, § 1399-n et seq.
CODE OF LOCAL LAWS REFERENCES
Alcoholic beverages — See Ch. 128.
The Dutchess County Legislature hereby finds as follows:
Significant health risks have been determined to be attributable to exposure to environmental tobacco smoke (ETS), including lung cancer, heart disease, respiratory infection and decreased respiratory function.
According to the United States Environmental Protection Agency (EPA), ETS, also known as "secondhand smoke," has been proven to be carcinogenic and has been designated a Group A (known human) carcinogen responsible for 3,000 lung cancer deaths each year in nonsmoking adults.
The EPA also concludes the ETS causes other significant health problems in adults and children, including increasing the risks of respiratory and middle ear disease and contributing to an estimated 150,000 to 300,000 cases of bronchitis and pneumonia in infants and young children each year.
Exposure to ETS significantly worsens the condition of up to 1,000,000 asthmatic children and contributes to an estimated 26,000 new cases of asthma each year.
Involuntary exposure to ETS presents a substantial and serious health risk to the residents and workers of Dutchess County.
Therefore, the Dutchess County Legislature declares that the intent and purpose of this chapter is to preserve and improve the public health by prohibiting smoking in public places and places of employment.
Unless otherwise noted, Article 13-E of the New York State Public Health Law applies.
As used in this chapter, the following terms shall have the meanings indicated:
- BAR AND TAVERN
- Any establishment, including outdoor seating areas, devoted to the sale and service of alcoholic beverages for on-premises consumption, where the service of food is merely incidental to the operation of the business. Any bar or tavern that generates 40% or more of total annual gross sales from the sale of food for on-premises consumption shall be a restaurant.
- Any sole proprietorship, partnership, joint venture, corporation, or other business entity, whether for profit or not-for-profit, including retail establishments where goods or services are sold as well as professional corporations, social agencies, and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered.
- DINING AREA
- Any indoor or enclosed outdoor area in a restaurant where people dine.
- Any person who is employed by an employer for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity.
- Any person, partnership, corporation, including a municipal corporation, or nonprofit entity that employs the services of one or more individual persons.
- PLACE OF EMPLOYMENT
- Any indoor area or portion thereof under the control of an employer in which employees of the employer perform services, and shall include, but not be limited to, offices, school grounds, retail stores, banquet facilities, theaters, food stores, banks, financial institutions, factories, warehouses, employee cafeterias, lounges, auditoriums, gymnasiums, rest rooms, elevators, hallways, museums, libraries, bowling establishments, employee medical facilities, rooms or areas containing photocopying equipment or other office equipment used in common, and company vehicles.
- PRIVATE SOCIAL FUNCTION
- Any weddings, parties, testimonial dinners, or other similar gatherings in which the seating and/or eating arrangements are under the control of the organizer or sponsor of the event and not the person who owns, manages, operates or otherwise controls the use of the place in which the function is held.
- PUBLIC PLACE
- Any indoor or enclosed outdoor area to which the public is invited or in which the public is permitted, including, but not limited to, banks, educational facilities, health facilities, laundromats, public transportation vehicles and facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters, lobbies, elevators, stairwells, waiting rooms, spectator facilities, and places of worship. Areas in a private residence which constitute common areas of a multiple dwelling are "public places" within the meaning of this regulation, as well as areas in a private residence where a child-care center, health care facility or other business open to the public is operated.
- Any indoor or enclosed outdoor area of a coffee shop, cafeteria, sandwich shop or private or public school cafeteria, and any 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.
- RETAIL TOBACCO BUSINESS
- Shall be defined as set forth in Article 13-E of the Public Health Law of the State of New York.
- SERVICE LINE
- Any indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.
- To inhale or exhale the smoke of burning tobacco or tobacco substitute and also to carry burning tobacco or tobacco substitute in the form of a cigarette, cigar, or any other smoke-producing product or device, including pipes.
- SPECTATOR FACILITIES
- Any indoor or outdoor facility where members of the general public assemble to view and/or participate in scheduled events involving competitions, exhibitions, entertainment productions, trade shows, conventions or other events established for common purposes.
- SPORTS ARENA
- Any indoor sports pavilion, including, but not limited to, concourses, gymnasia, health spas, boxing arenas, swimming pools, roller or ice skating rinks, and other similar places. This term also applies to places where the general public assembles either to engage in physical exercise, participate in athletic or recreational activity or to witness sports, cultural, recreational or similar activities.
All enclosed facilities owned or leased by the County and any political subdivision of the County shall, without exception, be smoke-free and subject to the provisions of this chapter.
Smoking shall be prohibited in all indoor or enclosed outdoor public places within Dutchess County, unless otherwise provided by this regulation. This regulation shall include, but not be limited to, restaurants, sports arenas, and spectator facilities.
Hotels and motels shall be required to designate a group of contiguous bedrooms, at least 50% of all bedrooms, as smoke-free rooms and shall be required to keep them consistently so. Lobbies, hallways, meeting rooms, and other common areas shall be smoke-free.
It shall be the responsibility of employers to provide a smoke-free workplace for all employees, but employers are not required to incur any expense to make structural or other physical modifications.
Within 90 days of the effective date of this chapter, each employer having any enclosed place of employment located within the County shall adopt, implement, make known, and maintain a written smoking policy which shall contain the following requirements: Smoking shall be prohibited in all enclosed facilities within a place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, rest rooms, vehicles, and all other enclosed facilities.
The smoking policy shall be communicated to all employees at least three weeks prior to its adoption. Employers shall prominently post the smoking policy in the workplace, and supply a written copy upon request to any existing or prospective employee.
Any employee working in a smoking area in a bar/tavern must sign an acknowledgement, which is provided by the employer upon hiring, that he/she will be working in a smoking area and he/she is aware of the negative health effects of secondhand tobacco smoke.
Notwithstanding any other provisions of this regulation to the contrary, the following shall not be subject to the smoking restrictions contained in this regulation:
Private social functions.
Nonenclosed outdoor areas, except as provided otherwise by Article 13-E of the New York State Public Health Law.
Bars and taverns.
Notwithstanding any other provision of this chapter, any owner, operator, manager, or other person who controls any establishment described in this chapter (hereafter "owner/manager") may declare that entire establishment as a nonsmoking establishment.
"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, sufficiently, and conspicuously posted at each entrance to every building or other facility where smoking is prohibited. The Dutchess County Health Department shall provide such signs.
The owner, operator, or manager of a hotel or motel must post a notice at the reception area of the establishment as to the availability, upon request, of smoking or nonsmoking rooms. The entry door and interior of all smoking rooms must be properly posted.
The owner, manager, or operator of any establishment regulated by this chapter shall be responsible for configuring and constructing said establishment within the confines of this chapter. The owner, manager, or operator shall also be required to inform persons violating this chapter of the appropriate provisions hereof verbally or by presentation of written explanation of the law, and to prohibit staff from smoking in nonsmoking areas.
The owner/manager may, at his/her sole discretion, either ask a customer violating any provision of this chapter to leave or ask any local law enforcement officer to order that customer to leave, or do both.
Nothing in Subsection B above implies that the owner/manager must ask a customer to leave or ask a local law enforcement officer to order the customer to leave. The owner's/manager's responsibility is merely to inform the customer that he/she is in violation of this chapter. If the owner/manager chooses, also at his/her sole discretion, to report the violation to the County Commissioner of Behavioral and Community Health, the Commissioner shall record the report as evidence that the owner/operator has complied with his/her responsibility under this chapter.
Any citizen may register a complaint under this chapter to the Dutchess County Department of Behavioral and Community Health.
The Dutchess County Department of Behavioral and Community Health shall be charged with enforcement of this chapter. The County Commissioner of Behavioral and Community Health or his/her representative is authorized to issue all notices, orders, and other processes that may be necessary in the enforcement of this chapter.
Upon written notice of a violation of any provision of this chapter, the County Commissioner of Behavioral and Community Health shall cause a hearing to be held in accordance with this code and shall rule whether the person so charged is or is not guilty of a violation.
The Board of Health may overturn the Commissioner's decision by a 2/3 majority of its full membership.
The Dutchess County Board of Health and the County Commissioner of Behavioral and Community Health shall be responsible for public education concerning this chapter.
It shall be a violation 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.
It shall be a violation for any person to smoke in any area where smoking is prohibited by the provisions of this chapter.
Any person who is convicted of violating any provision of this chapter may be punishable by a fine not to exceed $1,000 per violation and/or 40 hours of community service.
It is the intent of this chapter for the Dutchess County Department of Behavioral and Community Health to use all fines and/or penalties for the education of the public as to the negative health effects of smoking and secondhand smoke and smoking cessation programs.
No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any right to a smoke-free environment afforded by this chapter.
This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.
Nothing in this chapter shall be construed to create a cause of action by one person against another person for violation of any provision of this chapter.
This chapter shall take effect January 1, 2003.