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HomeMy WebLinkAboutOrdinance 02- 1574 Smoking ordinance, exempt bars & casinosORDINANCE NO. 1574 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY ADDING A NEW CHAPTER TO BE NUMBERED CHAPTER 8.48 PROVIDING FOR THE PROHIBITION OF SMOKING IN ENCLOSED PUBLIC PLACES AND PLACES OF EMPLOYMENT. BE IT ORDAINED by the City Commission of the City of Bozeman, Montana: Section t That the Bozeman Municipal Code be amended by adding a new Chapter 8.48 to read: "CHAPTER 8.48 SMOKING PROHIBITION IN ENCLOSED PUBLIC PLACES AND PLACES OF EMPLOYMENT "8.48.1)10 Legislative Findings and Intent. The City Commission of the City of Bozeman, Montana finds that: A. Pursuant to Article II, Section 3 of the Montana Constitution, all persons have certain inalienable rights that include a right to a "clean and healthful environment". Article IX, Section 1 of the Montana Constitution further provides "the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations". With respect to these rights and correlating duties, it is the intent of the Bozeman City Commission and the citizens of Bozeman in enacting this ordinance to prescribe requirements concerning smoking tobacco in enclosed public places and in places of employment to provide a clean and healthful environment and to protect the health and safety of people from exposure to environmental tobacco smoke. B. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution and that breathing second-hand smoke (also known as environmental tobacco smoke) is a cause of disease in healthy non- smokers, including head disease, stroke, respiratory disease, and lung cancer. The United States Surgeon General has determined that second- hand smoke is responsible for the early deaths of 65,000 Americans annually. Co Do Go Reliable scientific studies, including studies by the Surgeon General of the United States and studies commissioned and assessed by the U.S. Environmental Protection Agency, have shown that breathing second-hand smoke is a significant health hazard to non-smokers, elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. Children exposed to second-hand smoke have an increased risk of asthma, respiratory infections, Sudden Infant Death Syndrome, development abnormalities, and cancer. The Public Health Service's National Toxicology Program has listed second-hand smoke as a known carcinogen (U.S. DHHS, 2000 citing Cal. EPA 1997). The United States Surgeon General has determined that the simple separation of smokers and non-smokers within the same air space may reduce, but does not eliminate, the exposure of non-smokers to second- hand smoke. The Environmental Protection Agency has determined that second-hand smoke cannot be reduced to safe levels in businesses by high rates of ventilation. Air cleaners, which are only capable of filtering the particulate matter in odors and smoke, do not eliminate the known toxins in second-hand smoke. A significant amount of second-hand smoke exposure occurs in the workplace. Employees who work in smoke-filled businesses suffer 25% to 50% higher risk of heart attack and higher rates of death from cardiovascular disease and cancer, as well as increased acute respiratory disease and measurable degrees in lung function. Smoke-filled work places result in higher worker absenteeism due to respiratory disease, lower productivity, higher cleaning and maintenance costs, increased health insurance rates, and increased liability claims for disease related to exposure to second-hand smoke. -2- 8.48.020 H. Numerous economic analyses examining restaurant and hotel receipts and controlling for economic variables have shown either no difference or a positive economic impact after enactment of laws requiring work places to be smoke-free. Creation of smoke-free work places is sound economic policy and provides the maximum level of employee health and safety. I. Smoking is a potential cause of fires; cigarette and cigar bums and ash stains on merchandise and fixtures causes economic damage to businesses. J. Accordingly, the Bozeman City Commission and the citizens of Bozeman find and declare that the purposes of this ordinance are: (1) to protect the public health and welfare by prohibiting smoking in enclosed public places and places of employment; and, (2) to guarantee the right of non-smokers to breath smoke-free air and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke. K. The City Commission of the City of Bozeman finds that it is within their police powers to implement and enforce the provisions of this ordinance. L. The City Commission of the City of Bozeman further finds that it is also within their self-government powers to implement and enforce the provisions of this ordinance and to supersede any conflicting state statutory provisions pursuant to M.C.A. §7-1-105. Definitions. As used in this Chapter, the following terms shall have the meaning: A. "Bar" means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests and/or patrons on the premises and in which the serving of food is only incidental to consumption of alcoholic beverages, including but not limited to, taverns, night clubs, cocktails, lounges and cabarets. This definition is further limited by Section 8.48.020.F., below. -3- Co Eo "Casino" means an establishment whose primary use or activity is gambling, either in the form of gambling machines, card games, or other licensed gambling activity. In all instances, an establishment will be considered a casino for the purpose of this Chapter if any of the following charactedstics apply: (1) The establishment is referenced as a casino by signage or by name; (2) More than one card table is on the premises; (3) Fifteen or more gambling machines are on the premises. "Employee" means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and a person who volunteers his or her services for a nonprofit entity. "Employer" means a person, business, partnership, association, corporation, including a municipal corporation, trust, governmental entity, or nonprofit entity that employs the services of one or more individual persons. "Enclosed public place" means an enclosed area to which the public is invited or in which the public is permitted, including, but not limited to, banks, bars, educational facilities, health care facilities, laundromats, public transportation facilities, reception areas, rest rooms, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, and waiting rooms. "Incidental to consumption of alcoholic beverages" means that no more than 40 percent of the business's annual gross income from the operation may be from the sale of food. "Place of employment" means an area under control of a public or pdvate employer that employees normally frequent during the course of employment, including but not limited to, work areas, employee lounges, restaurants, conference rooms, meeting rooms, class rooms, employee cafeterias, hallways and vehicles. -4- H. "Public function" means a gathering of persons for the purpose of deliberation, education, instruction, entertainment, amusement, or dining, where membership or specific invitation is a prerequisite to entry and where the event is not intended to be open to the public. I. "Retailed Tobacco Store" means a retail store utilized primarily for the sale of tobacco products and accessories an in which the sale of other products is merely incidental. J. "Smoking" means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, weed, plant, or other combustible substance in any manner or any form. 8.48.030 Prohibition Against Smoking in Enclosed Public Places and Places of Employment. Smoking is prohibited in all enclosed public places and places of employment, except as otherwise provided in this Chapter. 8,48,040 Exemptions to Smoking Prohibitions. The following are exempt from the provisions of this Chapter: A. Pdvate functions and parties, or gatherings not advertised or accessible to the general public. Rooms or areas exempted must be fully separated by location or building construction such that the building areas remain smoke- free. B. Private residences, except when used as a licensed child care, adult care, or health care facility. C. Hotel or motel guest rooms or suite and are designated as smoking rooms. D. Outdoor areas. E. Retail Tobacco Stores. F. Bars and casinos, provided that smoke from these places does not infiltrate into areas where smoking is prohibited under this Chapter. 8.48.050 Declaration of Establishing as Non-Smoking. Not withstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment described in this Chapter may declare the entire establishment as a non-smoking establishment or a portion of the establishment as non-smoking. -5- 8.48.060 Notification. A. "No Smoking" signs or the intemational "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette in a red circle with a red bar across it) shall be cleady, sufficiently, and conspicuously posted in every public place, and place of employment where smoking is prohibited by this Chapter, by the owner, operator, manager or other person in control of that place. B. Every public place and place of employment where smoking is prohibited by this Chapter shall have posted at every entrance a conspicuous sign cleady stating that smoking is prohibited. C. All ashtrays and other smoking paraphernalia shall be removed from the area where smoking is prohibited by this Chapter by the owner, operator, manager or other person in control of the area. 8.48.070 Nonretaliation. No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee, applicant for employment, or customer because that employee, applicant or customer exercises any rights afforded by this Chapter or reports or attempts to prosecute a violation of this Chapter. 8.48.080 Other Applicable Laws. This Chapter may not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. 8.48.090 Enforcement. A. This Chapter shall be enforced by the Director of Public Safety of the City of Bozeman or an authorized designee. B. Notice of the provisions of this Chapter shall be given to all applicants for a Bozeman City business license. C. Any citizen who desires to register a complaint under this Chapter may initiate enforcement with the Director of Public Safety of the City of Bozeman or an authorized designee. -6- 8.48.100 D. The Department of Public Safety and/or the City-County Health Department, or their designees, shall, while an establishment is undergoing otherwise mandated inspections, inspect for compliance with this article. E. An owner, manager, operator or employee of an establishment regulated by this Chapter shall inform persons violating this Chapter of the appropriate provisions thereof. F. Notwithstanding any other provision of this Chapter, an employee or private citizen may bdng legal action to enforce this Chapter. G. In addition to the remedies provided by the provisions of this Chapter, the Director of Public Safety, the Bozeman City Manager, the City Attorney, or any person aggrieved by the failure of the owner, operator, manager, or other person in control of the public place or place of employment to comply with the provisions of this Chapter may apply for injunctive relief to enforce those provisions in any court of competent jurisdiction. H. Upon a complaint being filed with the City, the City may request records and other documents related to the exemptions under Section 8.48.040, and the owner, manager or operator of the business claiming an exemption shall provide the records and/or documents requested by the City. Violations and Penalties. A. It shall be unlawful for any person to smoke in any area where smoking is prohibited under this Chapter and shall be subject to a fine of not exceeding One Hundred Dollars ($100.00). B. A person who owns, managers, operates, or otherwise controls a public place or place of employment and who fails to comply with the provisions of this Chapter shall be guilty of a misdemeanor, punishable by: (1) A fine not exceeding One Hundred Dollars ($100.00) for a first violation. (2) A fine not exceeding Two Hundred Dollars ($200.00) for a second violation within one (1) year. (3) A fine not exceeding Five Hundred Dollars ($500.00) for each additional violation. -7- C. In addition to the fines established by this section, a violation of this Chapter by a person who owns, manages, operates or otherwise controls a public place or place of employment may result in the suspension or revocation of any permit or license issued to a person for the premises on which the violation occurred. D. Each day on which a violation of this Chapter occurs shall be considered a separate and distinct violation. 8.48.'1 '10 State Law Superseded. The Montana Clean Air .Act as set forth in M.C.A. Title 59, Chapter 1, Parts 1 and 2, to the extent inconsistent herewith, is hereby superseded." Section 2 Repealer. All resolutions, ordinances and sections of the Bozeman Municipal Code and parts thereof in conflict therewith are hereby repealed. Section 3 Savin.qs Provision. The ordinance does not affect the rights or duties that mature, penalties that were incurred, or proceedings that were begun before the effective date of this ordinance. Section 4 Severability. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not be affected by other provisions of this ordinance which may be given effect without the invalid provision or application and, to this end, the provisions of this ordinance are declared to be severable. Section $ Effective Date. This ordinance shall be in full force and effect on November 1, 2002. -8- PASSED by the City Commission of the City of Bozeman, Montana on first reading at a special session thereof held on the 21 st day of August 2002. ATTEST: STEVEN R. KI~R~FF, Mayor ROBIN L. SULLIVAN Clerk of the Commission PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana, on second reading at a special session thereof held on the 91:h day of September' 2002. ATTEST: ROBIN L. SULLIVAN Clerk of the Commission STEVEN R. KIR'CHHOFF, May~ ~' APPROVESr~s TO FORM: PAUEO. LUVV/E~/ / City Attorn/~f -9-