Loading...
HomeMy WebLinkAboutD-1778-05 City Non-Smoking As Amended~SPONSOR(S): Councilor Fred Glaser ORDINANCE D-1778-05 AS AMENDED AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL~ IND1ANA~ ESTABLISHING NO SMOKING AREAS BY ADOPTING AND ADDING CHAPTER6~ ARTICLE 5~ DIVISION VII~ SECTION 6-161 TO THE CARMEL CITY CODE WHEREAS, 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) can cause diseases in healthy nonsmokers that include heart disease, stroke, respiratory disease, and lung cancer; and WHEREAS, the National Cancer Institute has determined that secondhand smoke is annually responsible for the early deaths of more than 38,000 Americans and the Public Health Service's National Toxicology Program has listed secondhand smoke as a kn6wn human carcinogen; and WHEREAS, in Indiana, the rate oi' lung cancer deaths and deaths from stroke, and the percentage of peop!e diagnosed with asthma, are all higher than the national average and can be related in part to the persistently high prevalence of smoking and exposure to secondhand smoke; and WHEREAS, secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease, obstructive airway disease, or individuals with impaired respiratory functions, including asthmatics; and WHEREAS, children exposed to secondhand smoke have an increased risk of asthma, respiratory infection, sudden infant death syndrome, developmental abnormalities, and cancer; and WHEREAS, the United States Surgeon General has determined that the separation of smokers and nonsmokers within the same air space does not eliminate the exposure of nonsmokers to secondhand smoke; and WHEREAS, air cleaners filter.particulate matter and odors from smoke but do not eliminate the known toxins in secondhand smoke, and the Environmental Protection Agency has determined that secondhand smoke in businesses cannot be reduced to safe levels through ventilation; and WHEREAS, the Centers for Disease Control and Prevention has determined that the risk of acute myocardial infarction and coronary heart disease associated with exposure to tobacco smoke is nonlinear at low doses and increases rapidly at doses such as those received from secondhand smoke, and has warned persons with an increased risk of coronary heart disease or kfiown coronary artery disease to avoid indoor environments that permit smoking; and Page One of Nine Pages Prepared by Douglas C, Haney, Carmel CityAttorney[~or5/17/osg:34a. m.l SPONSOR(S): Councilor Fred Glaser WHEREAS, under the Americans with Disabilities Act, which requires public places and workplaces to be accessible to disabled persons, impaired respiratory function is a "disability"; and WHEREAS, a significant amount of secondhand smoke exposure occurs in the workplace, with employees who work in smoke-filled businesses suffering a 25% to 50% increase in the risk of a heart attack, as well as higher rates of death from cardiovascular disease and cancer, an increase in acute respiratory diseases, and a measurable decrease in lung functions; and WHEREAS, smoke-filled workplaces result in higher rates of worker absenteeism due to respiratory disease, as well as in lower employee productivity, increased health insurance rates, and an increase in liability claims for diseases related to exposure to secondhand smoke; and WHEREAS, a study of hospital admissions for acute myocardial infarction in Helena, Montana, before, during, and after the enactment of a local law eliminating smoking in workplaces and public places found that a law requiring smoke-free workplaces and public places may be associated with a reduction in morbidity from heart disease; and WHEREAS, the City of Carmel may regulate the introduction of substances and odors into the air to protect the public health and welfare; and WHEREAS, it appropriate and in the best interests of public health and welfare to prohibit smoking in public places and places of employment located within the City. NOW, THEREFORE, BE IT ORDAINED, by the Common Council of the City of Carmel, Indiana, that: Section 1. The foregoing Recitals are incorporated herein by this reference. Section 2. The purposes of this Ordinance are: (1) to protect the public health and welfare by prohibiting smoking in public places and places of employment; (2) to guarantee the right of non-smokers to breathe smoke-free air; and, (3) to recognize that the need to breathe smoke-free air has priority over the desire to smoke, and to this end Chapter 6, Article 5, Division VII, Section 6-161 should be and the same is hereby adopted and added to the Carmel City Code to read as set forth below. Ordinance D-1778-05 Page Two of Nine Pages Prepared by Douglas C. Haney, Carmel City Attorney [A,~CTS/~7/O5 9:34 SPONSOR(S): Councilor Fred Glaser Section 3. Carmel City Code Chapter 6, Articte 5, Division VII, Section 6-161, shall read as follows: "Sect. 6-161. Smoking Prohibited In Work Places And In Public Places a. Definitions. The following words and phrases, whenever used in this Section, shall be construed as defined herein: (i) "Business(es)" shall mean all sole proprietorships, partnerships, joint ventures, corporations, and other business entities, either for-profit or not-for-profit, including, but not limited to, retail establishments where goods or services are provided to the public, and other entities where accounting, counseling, legal, medical, dental, engineering, architectural, or other professional services are delivered. (ii) "City" shall mean the City of Carmel, Hamilton County, Indiana. (iii) "Employee(s)" shall mean all persons who are employed by an Employer in consideration for direct or indirect monetary wages or profit, and all persons who volunteer their services. (iv) "Employer(s)" shall mean all persons, businesses, companies, partnerships, associations, municipal corporations, trusts, and not-for-profit entities that employ the services of one or re'ore Employees. (v) "Employee Location(s)" shall mean all Enclosed Areas ~nder the control of public or private Employers that Employees normally frequent during the course of their employment, including, but not limited to, work areas, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, cafeterias, hallways, and. vehicles. (vi) "Enclosed Area(s)" shall mean all spaces closed in by roofs, ceilings, or other overhead coverings of any material, as well as by walls or other side coverings of any material on at least two (2) sides of same, with appropriate openings for ingress and egress. "Health Care Facility(les)" shall mean all offices and institutions providing care for or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including but not limited to, hospitals, rehabilitation hospitals, 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, as well as all waiting rooms, hallways, private rooms, semi-private rooms, and wards within same. (viii) "Public Place(s)" shall mean all Enclosed Areas, whether owned publicly or privately, to which the public is invited or in which the public is permitted. Ordinance D-1778-05 Page Three of Nine Pages Prepared by Douglas C, Haney, Carmel City Attorney [AACT 5/17/05 9:34 ar.,] SPONSOR(S): Councilor Fred Glaser (ix) "Retail Tobacco Store(s)" shall mean all retail stores that are not tobacco departments of larger commercial establishments (i.e., grocery stores, department stores, and discount stores) that: (A) Are utilized primarily for the sale of tobacco and/or tobacco-related products including, but not limited to, cigarettes, cigars, tobacco, pipes, cigarette paper, and lighters; and (B) Are not licensed for the consumption of meals or alcoholic beverages on the premises nor operated in conjunction with another Business that is licensed for the on-premises consumption of meals or alcoholic beverages; and (C) Are a retail store in which the sale of tobacco and tobacco-related products accounts for 66% or more of the store's gross sales. (x) "Shopping Mall(s)" shall mean all enclosed public,,walkways or hall areas that serve to connect retail or professional establishments. (xi) "Smoking" shall mean the carrying or holding of a lighted cigarette, cigar, pipe, or any other lighted smoking item or equipment containing tobacco or any other herbaceous material, or the inhalation or exhalation of smoke from the same, but does not include incense or the burning of incense. "Sports Arena(s)" shall mean all sports pavilions, stadiums, athletic fields, gymnasiums, health spas, swimming pools, roller or ice rinks, bowling alleys, and other similar places where members of the public assemble to engage in physical exercise or recreation, participate in athletic competition, or witness sports or other events. (xiii) "Tobacco Bar" shall mean all Businesses that: (A) Offer alcoholic beverages for sale to customers for consumption on the licensed premises pursuant to a Type 210 retailer permit issued by the Indiana Alcohol & Tobacco Commission; and (B) Do not admit customers or hire Employees who are less than twenty-one (21) years of age; and (C) Generate ten percent (10%) or more of their total annual gross income from the on- site sale of tobacco products. Ordinance D-1778-05 Page Four of Nine Pages Prepared by Douglas C. Haney, Carmel City Attorney [AACT 5/17/059:34 SPONSOR(S): Councilor Fred Glaser b. Smokinq In Public Places And Employee Locations Prohibited. (i) Except as provided in Subsection (b)(iii) below, Smoking is prohibited in all Public Places within the City, including, but not limited to, the following: . (A) Elevators; (B) Health Care Facilities; (C) Laundromats; (D) Licensed child care and adult day care facilities; (E) Lobbies, hallways, and all other common areas of apartment buildings, condominiums, retirement facilities, nursing homes, and other multiple-unit residential facilities; (F) Polling places; (G) Public transportation facilities, and ticket, boarding and waiting areas in public transit depots; (H) Restrooms, lobbies, reception areas, hallways, and other common use areas; (I) Shopping Malls; (J) Sports Arenas. (ii) Smoking is prohibited in all Employee Locations within the City. This Smoking prohibition shall be communicated by Employers to all existing Employees on or before the effective date of this Section, and to all prospective Employees upon their application for employment. (iii) The following establishments, areas and locations shall be exempt from the Smoking prohibitions set forth in Subsections (b)(i) and (ii) above, provided that no smoke from Smoking activities conducted therein or thereon enters any area or location in which Smoking is otherwise prohibited by this Section, to-wit: (A) Private residences, except when used as licensed child care or adult day care facilities or as Health Care Facilities. (B) Any vehicle used by an Employee while in the service of an Employer when the vehicle is occupied only by that Employee. Ordit~artce D-! 775-05 Page Five o[' Nitre Pages Prepared by Douglas C. Haney, Carmel City Attorney [AAOT 5/fZ/05 SPONSOR(S): Councilor Fred Glaser (E) (F) (G) Private vehicles when not being used in the service of an Employer F~mily-owned and. operated businesses in which all Employees are related to the Business owner by blood or marriage, and the offices of self-employed persons in which all Employees are so related to the self-employed person, but only if no Enclosed Area in these Businesses and offices in which Smoking is permitted is a Public Place. Hotel and motel iooms that are rented to guests and are designated as "smoking rooms," provided that nor more than twenty percent (20%) of the rooms rented to guests in a hotel or motel are designated as ".smoking rooms." Retail Tobacco Stores. Private and semi-private rooms in nursing home~ and long-term Health Care Facilities that are occupied by one (1) or more persons, all of whom have requested in writing to be placed in a room where smoking is permitted. Any Tobacco Bar. Any bar or tavern that: (1) Holds a beer, liquor and/or wine retailer's permit under the laws of Indiana; and (2) Allows no customer to enter therein who is under the age of twen~'-one (21); and (3) Employs no person therein who is under the age of twenty-one (21); and (4) Is not physically located within a Business otherwise required to be smoke-free pursuant to this Section; and (5) Has provided written notice to the City Attorney that it intends to allow smoking and that it meets all of the criteria entitling it to an exemption under this Subsection (b)(iii)(J); and (6) Has not utilized this Subsection (b)(iii)(J) exemption more than once in any calendar year. Ordinance D- 1778 -05 Page Six of Nine Pages Prepared by Douglas C. Haney, Carmel City Attorney [AAcr5/f7/05 9:24 a.m.] SPONSOR(S): Councilor Fred Glaser (J) Any Business that: (1) Is exempi from federal income taxation under 26 U.S.C. 501 (c); and (2) Is a "club" as that term is defined in I.C..7.1-3-20-1, or a "fraternal c!ub" as that term is defined by I.C. 7.1-3-20-7; and (iv) (3) Holds a beer, liquor and/or wine retailer's permit under the laws if Indiana; and (4) Provides food or alcoholic beverages onily to its bona fide members and their guests. Any Business claiming an exemption pursuant to this'i Section shall provide to any City official, within two (2) business days from the dat~ of demand, adequate written proof showing that it qualifies for the exemption claimed.:i Such written proof shall be certified under the penalties for perjury by an authorized representative of the Business. (v) All ashtrays and other Smoking paraphernalia shall b~ removed from all Public Places and Employee Locations where Smoking is prohibited by the owner, operator, manager or other person having control of same. ' (vi) No person nor Employer shall discharge, refuse to hire, oi' in any manner retaliate against any Employee, applicant for employment, or customei because that Employee, applicant, or customer has exercised any right afforded by thi~ Section or reports or attempts to prosecute any violation of this Section. c. Enforcement And Penalties (i) This Section may be enforced by: ii ' (1) The Director of the Department of Commu'hity Services or his designees (2) Fire Department Marshall and his designeb. (ii) Any citizen who desires to register a complaint under this Section may do so through the ' Office of the City Attorney. Ordinance D-1778-05 Page Seven of Nine Pages Prepared by Douglas C. Haney, Carmel CityAttorney[AAcrs/17/os~..3,~a.m.] SPONSOR(S): Councilor Fred Glaser Owners, managers and operators of Businesses, Public Places and/or Employee Locations regulated by this Section shall inform all persons' located therein whom they observe Smoking in violation of this Section of the provisio0s of this Section, and shall ask such persons to refrain from Smoking in any area or location in which Smoking is prohibited. (iv) It shall be the obligation and duty of the owner, ma.fiager or operator of any bar or tavern that elects to be exempted from the provisions of this Section pursuant to Subsection (b)(iii)(I) hereof to ensure that no person(s) under the age of eighteen (18) are allowed to enter therein in violation of this Section. Any person who engages in the act of Smoking in a~y Public Place, Employee Location or in any other establishment, area or location whereiniSmoking is prohibited by this Section, as well as any person who owns manages, operates or controls the same and who fails to comply w~th the provsons of th~s Secton, shal be. subject to a fne not to exceed Ffty Dollars ($50.00) for the first violation of this Section i,n a calendar year, with all subsequent violations of this Section in the same calendar year being subject to a fine of not less than Seventy Five Dollars ($75.00) and not more than Five Hundred Dollars ($500.00) for each such violation. (vi) In addition to the fines established by this Section~ the violation of this Section by any person who owns, manages, operates, or controls any Pubhc Place, Employee Location or anY other establishment, area or location where Smoking is prohibited by this Section may result in the suspension or revocation of any permit br license issued to said person by the City for the premises in or on which the violation occu?red. (vii) Each day on which a violation of this Section occurs shall be considered a separate and distinct violation. (viii) This Section does not and shall not be interpreted as permitting Smoking in any establishment, area or location where it is otherwise i'restricted by any other applicable law, nor to prohibit any property owner from imposing on his property a smoking ban that is more restrictive than that imposed by this Section. ~ (ix) This Section shall be construed broadly to effectuate ihe purposes described herein." Section 3. The remaining provisions of Carmel City Code ChaPter 6, Article 5, are not affected by this Ordinance and remain in full force and effect. i Section 4_. If any portion of this Ordinance ~s for any reasonlldeclared to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of this ordinance so long as enforcement of same can be given .the same effect. Section 5. Upon its passage and signing by the Mayor and suc~ publication as is required by law, this Ordinance shall be in full force and effect from and after March 5, 2006. Ordinance D-1778-05 Page Eight of Nine' Pages Prepared by Douglas C. Haney, Carmel CityAttorney[AACr5/17/o59:34a, m.] by SPONSOR(S): Councilor Fred Glaser the Common Council of the City of Carmel, Indiana, this <:~ ]~3~'day of 2005, by a vote of z-/ ayes and ,~ nays. COMMON COUNCIL FOR THE CITY OF CARMEL, INDIANA r'~sid~ng Officer ,Kevin~K~by, President Pro T~empore l~ick J~r ~ Richard L. Sham ATTEST~ Di~a L. Cordray, IAMC, ~k-Tr~s~ ~resented ~y me to the Mayor of the City of Cannel, Indiana, this g3 day of N at 1~'~% 0 clock, ~.M. Diana L. Cor~ay, ~C, Clerk-T~urer Approved by me, Mayor of the City of Ca~el, Indiana, this ~ ~ dayor Diana L. Cordray, IAMC, Clerk-~,.~ Ordinance D-1778-05 Page Nine of Nine Pages Joseph C. Griffiths Mark Rattermann Mayor /zqe~ Bra~nard, Prepared by Douglas C. Haney, Carmel City Attorney [AAOT 5/17/05 9.34 a.m.]