[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.
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.
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.
A single- or multiple-family dwelling unit as defined in Chapter 350, Unified Development Code, of the County Code.
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:
A.
County facilities and vehicles, including property and vehicles owned,
operated or utilized for County business by County elected officials,
employees or their agents.
B.
Buses, taxicabs, and other means of public transit.
C.
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.
D.
Restaurants, truck stops, liquor establishments and other food and
beverage establishments.
E.
Facilities primarily used for exhibiting any motion picture, stage,
drama, lecture, musical recital or other similar performance, including
convention halls.
F.
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.
G.
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:
A.
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.
B.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
Administrative enforcement.
(1)
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.
(2)
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.
C.
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.
