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HomeMy WebLinkAboutD-1029 WITHDRAWNORDINANCE No. D- I029 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, AMENDING CHAPTER 6, ARTICLE 5, SECTION 6-157, OF THE CARMEL CITY CODE BY THE INCLUSION OF SECTIONS ENTITLED SMOKING PROHIBITED WHEREAS, the State of Indiana has adopted I.e. 36-8-2-4 which authorizes the City of Carmel to regulate conduct and property for reasons of public health, safety and welfare and WHEREAS, the United States Environmental Protection Agency has concluded that "passive" tobacco smoke is a human lung carcinogen and WHEREAS, the Journal of the American Medical Association has published a report that concludes that adequate protection of nonsmokers from the dangers of environmental tobacco smoke exposure requires a smoke free work site and WHEREAS, the health hazards induced by breathing environmental tobacco smoke include, lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, broncho-construction, and bronchospasm and WHEREAS, it has been determined that the health, safety and general welfare of the residents of, persons employed in, and persons who frequent this City would be benefited by the regulation of environmental tobacco smoke in designated enclosed places, including places of employment. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, AS FOLLOWS: Section I.I. The following words and phrases, whenever used in this Ordinance, shall be construed as hereafter set out, unless it shall be apparent from the content that they have a different meaning. A. "Bar" shall mean an area which is devoted to the serving of beverages and in which the service of food is only incidental to the consumption of such beverages. B. "Agency" shall mean any board, commission, department, agency, authority, or other entity (by whatever name designated) exercising a part of the executive, administrative, legislative or judicial powers of the City of Carmel. - 1 - C. "Employee" shall mean any person who is employed by an employer in consideration for direct or indirect monetary wages or profit. D. "Employer" shall mean any person, partnership, corporation, including municipal corporations and agencies, who employ the services of more than three (3) persons. E. "Enclosed" shall mean closed in by roof and four (4) walls with appropriate openings for ingress and egress. F. "Places of Employment" shall any enclosed area under the control of a public, or private employer or agency which employees normally frequent during the course of employment, including but not limited to, work areas, employee lounges, conference rooms, and employee cafeterias. A place of private residence shall not be considered a place of business except as that private residence may be used as a child care or health care facility. G. "Smoking" shall mean the carrying or holding of a lighted cigarette, cigar, pipe or any other lighted smoking equipment, or the inhalation or exhalation of smoke from any lighted smoking equipment. H. "Sports Arena" shall mean sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys, and other similar places where members of the public assemble to engage in physical exercise, participate in athletic competition~ or witness sports events. Section 1.2 The following sections of Indiana Code are hereby incorporated into this Ordinance by reference: 13-1-13-4 Smoking in public buildings; infraction. 13-1-13-5 Designation of smoking and nonsmoking areas. 13-1-13-6 Duties of official in charge of public building. Section 1.3 Regulation of Smoking in City Owned Facilities. All enclosed facilities owned by the City of Carmel shall be subject to the provisions of this article. Section 1.4 Prohibition of Smoking in Designated Enclosed Places. Smoking shall be prohibited in the following places within the City of Carmel: (a) All enclosed areas available to and customarily used by the general public and all businesses patronized by the public, including, but not limited to, retail stores, hotels and motels, pharmacies, banks, attorneys' offices and other offices. - 2 - (b) Within all restaurants having an occupied capacity of 50 or more persons, provided, however, that this prohibition does not prevent (1) the designating of a contiguous area with the restaurant that contains no more than 60% of the seating capacity of the restaurant as a smoking area, or (2) the providing of separate rooms designated as smoking rooms, so long as said rooms do not contain more than 60% of the seating capacity of the restaurant. (c) Waiting rooms, hallways, wards, and semi-private rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors' offices and dentists' offices, except that health facilities shall also be subject to the provisions of Section 1.5 of this Ordinance regulating smoking in places of employment. (d) Elevators, public restrooms, indoor service lines, buses taxicabs and other means of public transit under the authority of the City, while within the boundaries of the County, and in ticket, boarding, and waiting areas of public transit depots, provided, however, that this prohibition does not prevent (1) the establishment of separate waiting areas for smokers and nonsmokers, or (2) the establishment of at least 40% of a given waiting area as a non-smoking area. (e) In public areas of museums, galleries. (f) Enclosed theaters, auditoriums, and halls which are used for motion pictures, stage dramas and musical performances, ballets or other exhibitions, except when smoking is part of any such production. (g) Retail food marketing establishments, including grocery stores and supermarkets, except those areas of such establishments set aside for the purpose of serving of food and drink, restrooms and offices, and areas thereof not open to the public, which may be otherwise regulated by this Ordinance. (h) Public facilities under the control of another public agency, which are available to and are customarily used by the general public, to the extent that the same are subject to the jurisdiction of the City. (i) Sports arenas and convention halls, except in designated smoking areas. (j) Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment described in this section may declare that entire establishment as a nonsmoking establishment. - 3 - Section 1.5 Regulation of Smoking in Places of EmDloyment A. It shall be the responsibility of employers to provide smoke-free areas for nonsmokers within existing facilities to the maximum extent possible, but employers are not required to incur any expense to make structural or other physical modifications in providing these areas. B. Within 90 days of the effective date of this Ordinance, each employer and each place of employment located within the City shall adopt, implement, make known and maintain a written smoking policy, which shall contain at a minimum the following requirements: (1) Prohibition of smoking in conference and meeting rooms, classrooms, auditoriums, restrooms, medical facilities, hallways, and elevators. (2) Any employee in a place of employment shall be given the right to designate his or her immediate work area as non-smoking area and to post the same with an appropriate sign or signs, to be provided by the employer. The policy adopted by the employer shall include a reasonable definition of the term "immediate work area". (a) In any dispute arising under this smoking policy, the rights of the non-smoker shall be given precedence. (b) Provision and maintenance of a separate and contiguous non-smoking area of not less than 40% of the seating capacity and floor space in cafeterias, lunchrooms and employees lounges. (c) The smoking policy shall be communicated to all employees within three weeks of its adoption, and at least annually thereafter. (d) Notwithstanding the provisions of Subsection (a) of this section, every employer shall have the right to designate any place of employment, or portion thereof, as a non-smoking area. Section 1.6. Smoking - Optional Areas Notwithstanding any other provisions of this Ordinance to the contrary, the following areas shall not be subject to the smoking restrictions of this article: - 4 - (a) Private residences; (b) Bars; (c) Hotel and motel rooms rented to guests; (d) Retail stores that deal exclusively in the sale of tobacco and smoking paraphernalia; (e) Restaurants, hotel and motel conference or meeting rooms, and public and private assembly rooms while these places are being used for private functions; (f) A private residence which may serve as a place of employment, except when used as a child care or health care facility; (g) A private enclosed place occupied exclusively by smokers, even though such a place may be visited by non- smokers, and a private enclosed office, excepting places in which smoking is prohibited by the Fire Department or by any other law, Ordinance or regulation. Section 1.7 Posting Requirements "Smoking" or "No Smoking" signs, whichever are appropriate, with letter of not less the 1" in height 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 in every building or other place where smoking is controlled by this article, by the owner, operator, manager or other person having control of such building or other place. Every restaurant regulated by this Ordinance will have posted at its entrance a sign clearly stating that a nonsmoking section is available, and every patron shall be asked as to his or her preference. Section 1.8 Enforcement Any police officer, fire officer, building inspector or any other employee or official of the City of Carmel, authorized to issue a summons, shall do so when observing any violation of this Ordinance. Such summons shall be delivered upon the owner or manager of the premises upon which the violation is observed or upon the individual causing such violations as the case may be. All violations of said Ordinance shall be required to appear before the City Court and be subject to the penalties provided for violations of the provisions of this Chapter. - 5 - Section 1.9 Penalties A. It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the restrictions of this article to fail to: properly post signs required hereunder; to provide signs for the use of employees in designating their areas; to set aside "No Smoking" areas; to adopt a smoking restriction policy; or to apply with other requirements of this article. B. It shall be unlawful for any person to smoke in any area restricted by the provisions of this article. C. Any person/business who violates SubSections A or B herein, or any other provisions of this article, shall be guilty of an infraction, punishable; (1) A fine, not less than $100, nor more than $500, for the first violation; (2) A fine, not less than $200, nor more than $500, for a second violation of this article within 1 year; (3) A fine, not exceeding $500, for each additional violation of this article within 1 year. Section 1.10 Nonretaliation 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 rights afforded by this chapter. Section 1.11 Other Applicable Laws This article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. Section II All prior Ordinances or parts thereof inconsistent with any provision of this Ordinance are hereby repealed. Section III If any provision or clause of this Ordinance or the application thereof to any person or circumstances held to be unconstitutional or to be otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect - 6 - other Ordinance provisions or clauses or applications thereof which can be implemented without the invalid provisions and clauses of this Ordinance are declared to be severable. Section IV The Clerk/Treasurer is hereby directed to: a. Advertise the Ordinance in a manner consistent with Indiana Code so that it shall take effect and be in force on September 1, 1993. b. Send a copy of this Ordinance to'the Judge of the City Court in compliance with City Code, Chapter 2, Article 1, Section 2-16. PASSED BY THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, THIS DAY OF , 19 . Presiding Officer ATTEST: Clerk/Treasurer PRESENTED by meto the Mayor of the City of Carmel, Indiana, on the day of , 1993 at the hour of .m. Mayor, City of Carmel, Indiana ATTEST: Clerk/Treasurer - 7 -