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Chapter 9.50 PUBLIC AND WORKPLACE SMOKING RESTRICTIONS* Article II. Prohibition of Smoking 9.50.030 Probation of smoking in public places. 9.50.040 Prohibition of smoking in places of employment. 9.50.050 Additional declaration of nonsmoking establishment. 9.50.070 Application of article to city-owned facilities. Article III. Where Smoking Is Not Regulated 9.50.080 Private and public places. Article V. Public Health Education 9.50.100 City-county health and environmental district program. Article VI. Enforcement, Violations and Penalties 9.50.130 Violations and penalties. 9.50.140 Other applicable laws. *Note to Chapter 9.50
* Prior ordinance history: Ord. 8869, 10787 and 13152 § 53.
Article I. General Provisions 9.50.010 Purpose.
The purpose of this chapter is to (1) improve and protect the public’s
health by eliminating smoking in public places and places of employment; (2)
guarantee the right of nonsmokers to breathe smoke-free air; and, (3)
recognize that the need to breathe smoke-free air shall have priority over the
choice to smoke. (Ord. 14878 § 1 (part), 2001)
9.50.020 Definitions.
The following words and phrases, whenever used in this chapter, shall be
construed as defined in this section:
"Bar" means an area which is devoted to the serving of alcoholic
beverages for consumption by guests on the premises and in which the serving
of food is only incidental to the consumption of such beverages. A
"bar" includes those facilities located within a hotel, motel or
other similar transient occupancy establishment.
"Business" means any sole proprietorship, partnership, joint
venture, corporation or other business entity formed for profit-making
purposes, including retail establishments where goods or services are sold as
well as professional corporations and other entities where legal, medical,
dental, engineering, architectural or other professional services are
delivered.
"Employee" means any person who is employed by any employer in
consideration for direct or indirect monetary wages or profit, and any persons
who volunteers his or her services for a nonprofit entity.
"Employer" means any person, partnership, corporation, including a
municipal corporation, or nonprofit entity, which employs the services of one
or more individual persons.
"Enclosed area" means all space between a floor and ceiling which is
enclosed on all sides by solid walls or windows (exclusive of door or passage
ways) which extend from the floor to the ceiling, including all space therein
screened by partitions which do not extend to the ceiling or are not solid,
"office landscaping" or similar structures.
"Food establishment" means food product or food service
establishments.
"Place of employment" means any enclosed area under the control of
public or private employer which employees normally frequent during the course
of employment, including, but not limited to, work areas, employee lounges and
restrooms, conference and classrooms, employee cafeterias and hallways. A
private residence is not a "place of employment" unless it is used
as a child care, adult day care or health care facility.
"Private place" means any enclosed area to which the public is not
invited or in which the public is not permitted, including but not limited to,
personal residences; private social clubs or personal automobiles. A
privately-owned business, open to the public, is not a "private
place."
"Public place" means any enclosed 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 facilities; reception areas; production and marketing
establishments; retail service establishments; retail stores; theaters and
waiting rooms. A private residence is not a "public place."
"Retail tobacco store" means a retail store utilized primarily for
the sale of tobacco products and accessories and in which the sale of other
products is merely incidental.
"Service line" means 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.
"Smoking" means inhaling, exhaling, burning or carrying any lighted
cigar, cigarette, pipe, weed, plant or combustible substance in any manner or
in any form.
"Sports arena" means sports pavilions, gymnasiums, health spas,
boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other
similar places where members of the general public assemble either to engage
in physical exercise, participate in athletic competition, or witness sports
events. (Ord. 14878 § 1 (part), 2001)
Article II. Prohibition of Smoking 9.50.030 Probation of smoking in public places.
A. Smoking shall be prohibited in all enclosed public places within the city,
including, but not limited to, the following places:
1. Elevators;
2. Restrooms, lobbies, reception areas, hallways and any other common-use
areas;
3. Buses, bus terminals, taxicabs, train stations, airports and other
facilities and means of public transit under the authority of the city, as
well as ticket, boarding, and waiting areas of public transit depots;
4. Service lines;
5. Retail stores;
6. All areas available to and customarily used by the general public in all
businesses and nonprofit entities patronized by the public, including but not
limited to, attorneys’ offices and other offices, banks, laundromats, hotels
and motels;
7. Food establishments, nightclubs and bars;
8. Galleries, libraries, museums and zoo facilities and grounds;
9. Any facility which is primarily used for exhibiting any motion picture,
stage, drama, lecture, musical recital or other similar performance, except
that performers may smoke when the smoking is part of a stage production;
10. Sports arenas and convention halls, including bowling facilities;
11. Every room, chamber, place of meeting or public assembly, including school
buildings under the control of any board, council, commission, committee,
including joint committees, or agencies of the city or any political
subdivision of the state during such time as a public meeting is in progress,
to the extent such place is subject to the jurisdiction of the city;
12. Waiting rooms, hallways, wards and semiprivate rooms of health facilities,
including, but not limited to, hospitals, clinics, physical therapy
facilities, doctors’ offices, and dentists’ offices;
13. Lobbies, hallways, and other common areas in apartment buildings,
condominiums, trailer parks, retirement facilities, nursing homes, and other
multiple-unit residential facilities;
14. Polling places;
15. Bingo games. (Ord. 14878 § 1 (part), 2001)
9.50.040 Prohibition of smoking in places of employment.
A. It shall be the responsibility of employers to provide a smoke-free
workplace for all employees.
B. Each employer having any enclosed place of employment located within the
city 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, restrooms,
vehicles, and all other enclosed facilities.
C. The smoking policy shall be communicated to all employees within four weeks
of its adoption.
D. All employers shall supply a written copy of the smoking policy upon
request to any existing or prospective employee. (Ord. 14878 § 1 (part),
2001)
9.50.050 Additional declaration of nonsmoking establishment.
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. (Ord.
14878 § 1 (part), 2001)
9.50.070 Application of article to city-owned facilities.
All enclosed facilities owned by the city shall be nonsmoking at all times
notwithstanding other provisions of this chapter. (Ord. 14878 § 1 (part),
2001)
Article III. Where Smoking Is Not Regulated 9.50.080 Private and public places.
A. Notwithstanding any other provision of this chapter to the contrary, the
following areas shall not be subject to the smoking restrictions of this
chapter:
1. Private residences, except when used as a child care, adult day care or
health care facility;
2. No more than twenty-five percent of hotel and motel rooms rented to guests;
3. Retail tobacco stores in stand alone physical facilities;
4. Restaurants, hotel and motel conference or meeting rooms and public and
private assembly rooms while places are being used for private functions
except while contracted food or beverage service functions are taking place
(including set-up, service and cleanup activities or when the room is used for
exhibit activities);
5. Outdoor places of employment except those covered in Section 9.50.050. (Ord.
14878 § 1 (part), 2001)
Article IV. Signs 9.50.090 Posting of signs.
A. The owner, manager or other person having control of such building or other
area where smoking is prohibited by this chapter shall have a conspicuously
posted sign clearly stating that smoking is prohibited at each entrance and
within the building or other areas where smoking is prohibited.
B. Such "No Smoking" signs shall have bold lettering of not less
than one inch in height. The international "No Smoking" symbol may
also be used (consisting of a pictorial representation of a burning cigarette
enclosed in a red circle with red bar across it).
C. All ashtrays and other smoking paraphernalia shall be limited in facilities
to that required for the enforcement of extinguishing of smoking materials in
public places. (Ord. 14878 § 1 (part), 2001)
Article V. Public Health Education 9.50.100 City-county health and environmental district program.
The city-county health and environmental district shall promote the purposes
and requirements of this chapter to the public affected by it, and to guide
owners, operators and managers in their compliance with it. Such promotion may
include publication of a brochure for affected businesses and individuals
explaining the provisions of this chapter. (Ord. 14878 § 1 (part), 2001)
Article VI. Enforcement, Violations and Penalties 9.50.110 Enforcement.
A. Enforcement of this chapter shall be implemented by the El Paso city-county
health and environmental district, building services, fire and law enforcement
agencies.
B. Notice of the provisions set forth in this chapter shall be given to all
applicants for a business license in the city.
C. Any person may register a complaint under this chapter to initiate
enforcement with the El Paso city-county health and environmental district.
D. The health district, building services or the fire department shall, while
an establishment is undergoing otherwise mandated inspections, inspect for
compliance of this chapter.
E. Any owner, manager, operator or employee of any establishment regulated by
this chapter shall be responsible for informing persons violating this chapter
of the provisions through appropriate signage. (Ord. 14878 § 1 (part), 2001)
F. Notwithstanding any other provision of this chapter, a private citizen may
bring legal action to enforce this chapter. (Ord. 14878 § 1 (part), 2001)
9.50.120 Nonretaliation.
No person nor employee shall discharge, refuse to hire or in any manner
retaliate against any employee, applicant for employment or customer because
such employee, applicant or customer exercises any right to a smoke free
environment afforded by this chapter. (Ord. 14878 § 1 (part), 2001)
9.50.130 Violations and penalties.
A. It shall be unlawful 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 all of its provisions, except for violations
noted in subsection B of this section.
B. It shall be unlawful for any person to smoke in any area where smoking is
prohibited by the provisions of this chapter.
C. Any person who violates any provision of this chapter shall be guilty of an
infraction, punishable by:
1. A fine not exceeding one hundred dollars for the first violation;
2. A fine not exceeding two hundred dollars for a second violation within a
one year period of the first violation;
3. A fine not exceeding five hundred dollars for an additional violation
within a one year period of the first violation. (Ord. 14878 § 1 (part),
2001)
9.50.140 Other applicable laws.
This chapter shall not be interpreted nor construed to permit smoking where it
is otherwise restricted by other applicable laws. (Ord. 14878 § 1 (part),
2001)
9.50.150 Severability.
If any provision, clause, sentence or paragraph of this chapter or the
application thereof to any person or circumstances shall be held invalid, such
invalidity shall not affect the other provisions of this chapter which can be
given effect without the invalid provision or application, and to this end the
provisions of this chapter are declared to be severable. (Ord. 14878 § 1
(part), 2001)
9.50.160 Effective date.
This chapter shall be effective on and after January 2, 2002. (Ord. 14878 § 1
(part), 2001)
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