[HISTORY: Adopted by the Board of County Commissioners of Doña Ana County 1-8-2002 by Ord. No. 199-02; amended in its entirety 6-11-2019 by Ord. No. 303-2019. Subsequent amendments noted where applicable.]
Pursuant to the authority vested in it by NMSA 1978, § 4-37-1 et seq., the Board of Commissioners of Doña Ana County hereby enacts the Doña Ana County Smoke-Free and Vapor-Free Air Ordinance, an ordinance regulating smoking and vaping in order to reduce the effects of secondhand smoke and vapors in public places and places of employment in the unincorporated areas of the County.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
- Any receptacle for ashes from tobacco and other combustible substances, and for cigar and cigarette butts.
- E-CIGARETTE or ELECTRONIC CIGARETTE
- A product containing or delivering nicotine or another substance intended for human consumption that can be used by a person in any manner for the purpose of inhaling vapor or aerosol from the product, including a device, whether manufactured, distributed, marketed or sold as an e-cigarette, e-cigar, e-pipe, e-hookah or vape pen or under another product name or descriptor.
- Any person who is compensated directly or indirectly for rendering services and any person who volunteers his or her services.
- Any person or entity, including but not limited to sole proprietorships, partnerships, corporations, political bodies and not-for-profit entities.
- PLACE OF EMPLOYMENT
- Any area under the control of a public or private employer which employees are required to pass through during the course of employment, including, but not limited to, entrances and exits to the place of employment, including a minimum distance of a fifty-foot radius beyond the entrance or exit; work areas; restrooms; conference rooms and classrooms, break rooms and cafeterias; and other common areas. A private residence or home-based business, unless used to provide child or adult care or other similar health care services on the premises, is not a place of employment.
- PRIVATE RESIDENCE
- A single- or multiple-family dwelling unit as defined in Chapter 350, Unified Development Code, of the County Code.
- PUBLIC FACILITY or PUBLIC PLACE
- Any area to which the public is invited or in which the public is permitted, including but not limited to County-owned buildings and vehicles, banks, educational facilities, medical providers' offices, laundromats, public transportation facilities, reception areas, restaurants, retail service establishments, food production and grocery establishments, retail stores, theaters; and the entrances and exits leading to and from each such public place, including a minimum distance of a fifty-foot radius beyond each entrance or exit open to the public. A private residence or home-based business, unless used to provide child or adult care or other similar health care services on the premises, is not a public place.
- The use of an electronic cigarette.
This chapter is effective within the geographical boundaries of Doña Ana County, excluding incorporated municipalities therein.
In order to reduce pollutants in the air that create health risks and may otherwise impede equal access to members of the public, smoke-free and vapor-free air is mandated in all public places, including the fifty-foot radius from each entrance or exit accessing the public place, including but not limited to the following:
County facilities and vehicles, including property and vehicles owned, operated or utilized for County business by County elected officials, employees or their agents.
Buses, taxicabs, and other means of public transit.
Areas available to and customarily accessed by the public to attend to personal business, including but not limited to offices of attorneys, medical and other health care providers, child and adult care providers, banks, laundromats, retail stores, galleries, museums, libraries, and all common areas leading to and from same, such as elevators, restrooms, lobbies, reception areas, hallways.
Restaurants, truck stops, liquor establishments and other food and beverage establishments.
Facilities primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, including convention halls.
Sports and recreational arenas, including but not limited to sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys, bingo halls and other similar places where members of the general public assemble either to engage in physical exercise, witness sports events or participate in social recreation.
Meeting places of any board, council, commission, committee, including joint committees and subcommittees, of any public entity or agent of any public entity whose meetings are open to the public.
In order to reduce pollutants in the air that create health risks and may otherwise impede equal access to members of the public, employers shall provide smoke-free air as follows:
Employers shall prohibit smoking and vaping in all places of employment, and within a minimum distance of at least a fifty-foot radius, from each entrance or exit to said places of employment, unless otherwise excepted from the terms of this chapter.
Employers shall adopt a written smoke-free air policy consistent with the terms of this chapter by October 1, 2019. Employers shall communicate said policy to all employees, and provide a copy to each employee who requests a copy.
This chapter regulates smoking and vaping in order to reduce the effects of secondhand smoke and vapors in public places and places of employment; therefore, it does not regulate nor prohibit smoking in private settings such as private residences and home-based businesses, unless used to provide child or adult care or other similar health care services on the premises.
Exemption from public places smoking and vaping regulation. Hotel and motel owners, operators, managers and persons otherwise controlling hotels and motels open to the public may permanently designate up to 10% of rooms for use by smoking and vaping guests, provided that such establishments reasonably accommodate employees medically unable to work in non-smoke-free air.
Exemption from places of employment smoking and vaping regulation. An exemption is allowed for employers of hotels and motels to be able to hire employees, contractors and agents to work in the areas designated as smoking and vaping rooms, provided that they reasonably accommodate employees medically unable to work in non-smoke-free air.
Public entities owning, operating, managing or otherwise controlling public places and employers owning, operating, managing or otherwise controlling places of employment, and their respective officials, employees and agents, shall not take any adverse action against a member of the public or against an employee, applicant for employment or customer because such member of the public, employee, applicant or customer exercises the right to smoke-free and vapor-free air extended to him or her under this chapter. In the event of a violation alleged to have caused harm, said member of the public, employee, applicant or customer shall have an independent and private cause of action against the violator based on the terms of this chapter.
The County and each public entity with facilities in the unincorporated areas of the County shall engage in continuing community education activities, including, but not limited to, the distribution of literature and the sponsoring of public meetings to explain and clarify the purposes and requirements of this chapter for the benefit of residents and business owners of Doña Ana County, and in order to seek voluntary compliance and to avoid inadvertent noncompliance. Existing processes involving contact with the public may be expanded to include notice to the public about this chapter; i.e., notification of the terms of this chapter to applicants for a County-issued business license would provide an efficient method for educating the members of the public.
Persons owning, operating, managing or otherwise controlling public places and places of employment shall post in a prominent location. "No Smoking — Including Electronic Cigarettes" signs or the international "No Smoking — Including Electronic Cigarettes" symbol (consisting of a pictorial representation of a burning cigarette and electronic cigarette enclosed in a red circle with a red diagonal bar across it) in locations where smoke-free air is mandated by this chapter.
Persons owning, operating, managing or otherwise controlling public places and places of employment where smoke-free air is mandated by this chapter shall remove or disable all ashtrays.
Voluntary compliance. It is the intent of this chapter to encourage the resolution of disputes arising under this chapter through public education and voluntary compliance; however, should that fail, or should a violation be deemed to pose a significant threat to public health, in the discretion of the prosecutor representing a governmental entity, criminal proceedings may be pursued without pursuing voluntary compliance efforts.
In addition to the enforcement by the Sheriff's Department, and in order to assist in the enforcement of this chapter, other County departments, specifically including Health and Human Services and the Fire Marshal and other departments as authorized by the County Manager, are specifically authorized to inspect for compliance with this chapter while conducting other lawful inspections. In the County's enforcement of this chapter, it shall observe all of the legal rights granted to its residents under federal or New Mexico law, including the constitutional rights against unreasonable searches and seizures.
The County Manager is further authorized to promulgate procedures to facilitate the implementation of this chapter and the public policies expressed herein to increase equal access to public facilities and to promote a healthier community. The Health and Human Services Department and the ADA Coordinator and other appropriate departments, as requested by the County Manager, shall assist in the development of such procedures.
Criminal prosecution. In addition to any other lawful remedy, including injunctive relief, any person who violates any provision of this chapter shall be subject to prosecution consistent with state and local law, including but not limited to NMSA 1978, § 4-37-3 et seq. Each violation of this chapter shall be subject to a fine of up to $300 and imprisonment for a term not exceeding 90 days or by both such fine and imprisonment as provided in Chapter 1, § 1-20, of the Code of Doña Ana County.
Should any provision of this chapter be in conflict with a provision of another applicable law or regulation, the stricter provision shall apply, unless preempted by a less restrictive state or federal law.