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HomeMy WebLinkAboutSubstitute Bill 31-14 Smoke Free OrdinanceSUBSTITUTE BILL NO. 31-14 ORDINANCE NO. AN ORDINANCE OF THE COMMON COUNCIL OF THE SOUTH BEND COMMON COUNCIL AMENDING VARIOUS SECTIONS IN ARTICLE 10 OF CHAPTER 14 OF THE SOUTH BEND MUNCIPAL CODE ADDRESSING SMOKEFREE AIR REGULATIONS STATEMENT OF PURPOSE AND INTENT The 2006 U.S. Surgeon General's Report, The Health Consequences of Involuntary Exposure to Tobacco Smoke, has concluded that (1) secondhand smoke exposure causes disease and premature death in children and adults who do not smoke; (2) children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory problems, ear infections, and asthma attacks, and that smoking by parents causes respiratory symptoms and slows lung growth in their children; (3) exposure of adults to secondhand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer; (4) there is no risk -free level of exposure to secondhand smoke; (5) establishing smokefree workplaces is the only effective way to ensure that secondhand smoke exposure does not occur in the workplace, because ventilation and other air cleaning technologies cannot completely control for exposure of nonsmokers to secondhand smoke; and (6) evidence from peer- reviewed studies shows that smokefree policies and laws do not have an adverse economic impact on the hospitality industry. (U.S. Department of Health and Human Services. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006.) According to the 2010 U.S. Surgeon General's Report, How Tobacco Smoke Causes Disease, even occasional exposure to secondhand smoke is harmful and low levels of exposure to secondhand tobacco smoke lead to a rapid and sharp increase in dysfunction and inflammation of the lining of the blood vessels, which are implicated in heart attacks and stroke. (U.S. Department of Health and Human Services, How Tobacco Smoke Causes Disease: The Biology and Behavioral Basis for Smoking - Attributable Disease: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2010.) 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) is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory disease, and lung cancer. The National Cancer Institute determined in 1999 that secondhand smoke is responsible for the early deaths of approximately 53,000 Americans annually. (National Cancer Institute (NCI), "Health effects of exposure to environmental tobacco smoke: the report of the California Environmental Protection Agency. Smoking and Tobacco Control Monograph 10," Bethesda, MD: National Institutes of Health, National Cancer Institute (NCI), August 1999.) Smokefree Air Ordinance of 2014 — Substitute Bill No. 31 -14 Page 2 The Public Health Service's National Toxicology Program (NTP) has listed secondhand smoke as a known carcinogen. (Environmental Health Information Service (EHIS), "Environmental tobacco smoke: first listed in the Ninth Report on Carcinogens," U.S. Department of Health and Human Services (DHHS), Public Health Service, NTP, 2000; reaffirmed by the NTP in subsequent reports on carcinogens, 2003, 2005.) Based on a finding by the California Environmental Protection Agency in 2005, the California Air Resources Board has determined that secondhand smoke is a toxic air contaminant, finding that exposure to secondhand smoke has serious health effects, including low birth- weight babies; sudden infant death syndrome (SIDS); increased respiratory infections in children; asthma in children and adults; lung cancer, sinus cancer, and breast cancer in younger, premenopausal women; heart disease; and death. (California Air Resources Board (ARB), "Appendix II Findings of the Scientific Review Panel: Findings of the Scientific Review Panel on Proposed Identification of Environmental Tobacco Smoke as a Toxic Air Contaminant as adopted at the Panel's June 24, 2005 Meeting," California Air Resources Board (ARB), September 12, 2005.) There is indisputable evidence that implementing 100% smoke -free environments is the only effective way to protect the population from the harmful effects of exposure to secondhand smoke. (World Health Organization (WHO), "Protection from exposure to secondhand smoke: policy recommendations," World Health Organization (WHO), 2007.) In reviewing 11 studies concluding that communities see an immediate reduction in heart attack admissions after the implementation of comprehensive smokefree laws, the Institute of Medicine of the National Academies concluded that data consistently demonstrate that secondhand smoke exposure increases the risk of coronary heart disease and heart attacks and that smokefree laws reduce heart attacks. (Institute of Medicine (IOM) of the National Academies, Board on Population Health and Public Health Practice, Committee on Secondhand Smoke Exposure and Acute Coronary Events, "Secondhand smoke exposure and cardiovascular effects: making sense of the evidence," Washington, DC: National Academies Press, October 2009.) A significant amount of secondhand smoke exposure occurs in the workplace. Employees who work in smoke - filled businesses suffer a 25 -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 decrease in lung function. (Pitsavos, C.; Panagiotakos, D.B.; Chrysohoou, C.; Skoumas, J.; Tzioumis, K.; Stefanadis, C.; Toutouzas, P., "Association between exposure to environmental tobacco smoke and the development of acute coronary syndromes: the CARDI02000 case - control study," Tobacco Control 11(3): 220 -225, September 2002.) Studies measuring cotinine (metabolized nicotine) and NNAL (metabolized nitrosamine NNK, a tobacco - specific carcinogen linked to lung cancer) in hospitality workers find dramatic reductions in the levels of these biomarkers after a smokefree law takes effect. Average cotinine levels of New York City restaurant and bar workers decreased by 85% after the city's smokefree law went into effect. (fn.a.], "The State of Smoke -Free New York City: A One Year Review," New York City Department of Finance, New York City Department of Health & Mental Hygiene, New York City Department of Small Business Services, New York City Economic Smokefree Air Ordinance of 2014- Substitute Bill No. 31 -14 Page 3 Development Corporation, March 2004). After the implementation of Ontario, Canada's Smokefree Indoor Air Law, levels of NNAL were reduced by 52% in nonsmoking casino employees and cotinine levels fell by 98 %. (Geoffrey T. Fong, et. al., "The Impact of the Smoke - Free Ontario Act on Air Quality and Biomarkers of Exposure in Casinos: A Quasi - Experimental Study," Ontario Tobacco Control Conference, Niagara Falls, Ontario, December 2, 2006.) Following a Health Hazard Evaluation of Las Vegas casino employees' secondhand smoke exposure in the workplace, which included indoor air quality tests and biomarker assessments, the National Institute of Occupational Safety & Health ( NIOSH) concluded that the casino employees are exposed to dangerous levels of secondhand smoke at work and that their bodies absorb high levels of tobacco - specific chemicals NNK and cotinine during work shifts. NIOSH also concluded that the "best means of eliminating workplace exposure to [secondhand smoke] is to ban all smoking in the casinos." (Health hazard evaluation report: environmental and biological assessment of environmental tobacco smoke exposure among casino dealers, Las Vegas, NV. By Achutan C, West C, Mueller C, Boudreau Y, Mead K. Cincinnati, OH: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, NIOSH HETA No. 2005 -0076 and 2005- 0201 -3080, May 2009.) Secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. (California Environmental Protection Agency (Cal EPA), "Health effects of exposure to environmental tobacco smoke ", Tobacco Control 6(4): 346- 353, Winter, 1997.) The Americans With Disabilities Act, which requires that disabled persons have access to public places and workplaces, deems impaired respiratory function to be a disability. (Daynard, R.A., "Environmental tobacco smoke and the Americans with Disabilities Act," Nonsmokers' Voice 15(1): 8 -9.) The U.S. 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 non - linear at low doses, increasing rapidly with relatively small doses such as those received from secondhand smoke or actively smoking one or two cigarettes a day, and has warned that all patients at increased risk of coronary heart disease or with known coronary artery disease should avoid all indoor environments that permit smoking. (Pechacek, Terry F.; Babb, Stephen, "Commentary: How acute and reversible are the cardiovascular risks of secondhand smoke ?" British Medical Journal 328: 980 -983, April 24, 2004.) Given the fact that there is no safe level of exposure to secondhand smoke, the American Society of Heating, Refrigerating and Air Conditioning Engineers ( ASHRAE) bases its ventilation standards on totally smokefree environments. ASHRAE has determined that there is currently no air filtration or other ventilation technology that can completely eliminate all the carcinogenic components in secondhand smoke and the health risks caused by secondhand smoke exposure, and recommends that indoor environments be smokefree in their entirety. ( Samet, J.; Bohanon, Jr., H.R.; Coultas, D.B.; Houston, T.P.; Persily, A.K.; Schoen, L.J.; Smokefree Air Ordinance of 2014- Substitute Bill No. 31 -14 Page 4 Spengler, J.; Callaway, C.A., "ASHRAE position document on environmental tobacco smoke," American Society of Heating, Refrigerating and Air - Conditioning Engineers (ASHRAE), 2005.) During periods of active smoking, peak and average outdoor tobacco smoke (OTS) levels measured in outdoor cafes and restaurant and bar patios near smoker's rival indoor tobacco smoke concentrations. (Klepeis, N.; Ott, W.R.; Switzer, P., "Real -time measurement of outdoor tobacco smoke particles," Journal of the Air & Waste Management Association 57: 522 -534, 2007.) Nonsmokers who spend six -hour periods in outdoor smoking sections of bars and restaurants experience a significant increase in levels of cotinine when compared to the cotinine levels in a smokefree outdoor area. (Hall, J.C.; Bernert, J.T.; Hall, D.B.; St Helen, G.; Kudon, L.H.; Naeher, L.P., "Assessment of exposure to secondhand smoke at outdoor bars and family restaurants in Athens, Georgia, using salivary cotinine," Journal of Occupational and Environmental Hygiene 6(11): 698 -704, November 2009.) Residual tobacco contamination, or "thirdhand smoke," from cigarettes, cigars, and other tobacco products is left behind after smoking occurs and builds up on surfaces and furnishings. This residue can linger in spaces long after smoking has ceased and continue to expose people to tobacco toxins. Sticky, highly toxic particulate matter, including nicotine, can cling to walls and ceilings. Gases can be absorbed into carpets, draperies, and other upholsteries, and then be reemitted (off - gassed) back into the air and recombine to form harmful compounds. (Singer, B.C.; Hodgson, A.T.; Nazaroff, W.W., "Effect of sorption on exposures to organic gases from environmental tobacco smoke (ETS)," Proceedings: Indoor Air 2002, 2002.) Tobacco residue is noticeably present in dust throughout places where smoking has occurred. (Matt, G.E.; Quintana, P.J.E.; Hovell, M.F.; Bernert, J.T.; Song, S.; Novianti, N.; Juarez, T.; Floro, J.; Gehrman, C.; Garcia, M.; Larson, S., "Households contaminated by environmental tobacco smoke: sources of infant exposures," Tobacco Control 13(1): 29 -37, March 2004.) Given the rapid sorption and persistence of high levels of residual nicotine from tobacco smoke on indoor surfaces, including clothing and human skin, this recently identified process represents an unappreciated health hazard through dermal exposure, dust inhalation, and ingestion. (Sleiman, M.; Gundel, L.A.; Pankow, J.F.; Jacob III, P.; Singer, B.C.; Destaillats, H., "Formation of carcinogens indoors by surface - mediated reactions of nicotine with nitrous acid, leading to potential thirdhand smoke hazards," Proceedings of the National Academy of Sciences of the United Sates of America (PNAS) 107(15): 6576 -6581, February 8, 2010.) Unregulated high -tech smoking devices, commonly referred to as electronic cigarettes, or "e- cigarettes," closely resemble and purposefully mimic the act of smoking by having users inhale vaporized liquid nicotine created by heat through an electronic ignition system. After testing a number of e- cigarettes from two leading manufacturers, the Food and Drug Administration (FDA) determined that various samples tested contained not only nicotine but also detectable levels of known carcinogens and toxic chemicals, including tobacco - specific nitrosamines and diethylene glycol, a toxic chemical used in antifreeze. The FDA's testing also suggested that "quality control processes used to manufacture these products are inconsistent or non - existent." &.a j, "Summary of results: laboratory analysis of electronic cigarettes conducted by FDA," Food and Drug Administration (FDA), July 22, 2009; http:// www. fda. gov/ NewsEvents/ PublicHealthFocus /ucmI73146.htm Accessed on: October 22, Smokefree Air Ordinance of 2014- Substitute Bill No. 31 -14 Page 5 2009.) E- cigarettes produce a vapor of undetermined and potentially harmful substances, which may appear similar to the smoke emitted by traditional tobacco products. Their use in workplaces and public places where smoking of traditional tobacco products is prohibited creates concern and confusion and leads to difficulties in enforcing the smoking prohibitions. The Society of Actuaries has determined that secondhand smoke costs the U.S. economy roughly $10 billion a year: $5 billion in estimated medical costs associated with secondhand smoke exposure and $4.6 billion in lost productivity. (Behan, D.F.; Eriksen, M.P.; Lin, Y., "Economic Effects of Environmental Tobacco Smoke," Society of Actuaries, March 31, 2005.) 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 workplaces to be smokefree. Creation of smokefree workplaces is sound economic policy and provides the maximum level of employee health and safety. (Glantz, S.A. & Smith, L., "The effect of ordinances requiring smokefree restaurants on restaurant sales in the United States." American Journal of Public Health, 87:1687 -1693, 1997; Colman, R.; Urbonas, C.M., "The economic impact of smoke -free workplaces: an assessment for Nova Scotia, prepared for Tobacco Control Unit, Nova Scotia Department of Health," GPI Atlantic, September 2001.) There is no legal or constitutional "right to smoke." (Graff, S.K., "There is No Constitutional Right to Smoke: 2008," Tobacco Control Legal Consortium, 2d edition, 2008.) Business owners have no legal or constitutional right to expose their employees and customers to the toxic chemicals in secondhand smoke. On the contrary, employers have a common law duty to provide their workers with a workplace that is not unreasonably dangerous. (Graff, S.K.; Zellers, L., "Workplace Smoking: Options for Employees and Legal Risks for Employers," Tobacco Control Legal Consortium, 2008.) Smoking is a potential cause of fires; cigarette and cigar burns and ash stains on merchandise and fixtures causes economic damage to businesses. ( "The high price of cigarette smoking," Business & Health 15(8), Supplement A: 6 -9, August 1997.) The smoking of tobacco is a form of air pollution, a positive danger to health, and a material public nuisance. The South Bend Common Council also recognizes that in February of 2014, the Indiana Supreme Court, by a vote of 3 -2, found the City of Evansville, Indiana's smoking ban ordinance unconstitutional due to an exemption it granted to a riverboat casino located within the city The Supreme Court noted that the special exemption for the casino violated the Indiana Constitution's Equal Privileges and Immunities Clause. The following ordinance has been drafted to comply with the Indiana Supreme Court latest judicial ruling. Smokefree Air Ordinance of 2014- Substitute Bill No. 31 -14 Page 6 r i 1.111111liql1liq i r r r r i Section I. Various sections of Article 10 of Chapter 14 of the South Bend Municipal Code shall be amended to read as follows: ARTICLE 10. SMOKEFREE AIR SMBKING REGULATIONS. See. 14-61. Title. This Article shall be known as the City of South Bend Smokefree Air Ordinance of 2014. See. 14 -62. Findings and Intent The Common Council of the City of South Bend, Indiana finds and declares that the purposes of this Article are: (1 ) to protect the public health and welfare by prohibiting smoking in public places and places of employment; and (2) to guarantee the right of nonsmokers to breathe smokefree air, and to recognize that the need to breathe smokefree air shall have priority over the desire to smoke. See. 14 61 Sec. 14 -63. Definitions. All definitions set forth in IC 7.1 -5 -121 related to "prohibition on Smoking" shall govern; and shall be supplemented by the following words and phrases, whenever used in this Article, shall be construed as defined in this Section: (a) "Bar" means an establishment that 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 those beverages, including but not limited to, taverns, nightclubs, cocktail lounges, and cabarets. (b) "Business" means a sole proprietorship, partnership, ioint venture, corporation, or other business entity, either for -profit or not - for - profit, including retail establishments where goods or services are sold; professional corporations and other entities where legal, medical, dental, en ineering, architectural, or other professional services are delivered: and private clubs. (c) "E- cigarette" means any electronic oral device, such as one composed of a heating element, battery, and/or electronic circuit, which provides a vapor of nicotine or any other substances, and the use or inhalation of which simulates smoking. The term shall include an y 'Indiana Code & 7.1 -5 -12 sets forth definitions for the following terms: ashtray, place of employment, public place, and smoking. Smokefree Air Ordinance of 2014- Substitute Bill No. 31 -14 Page 7 such device whether manufactured distributed, marketed, or sold as an e- cigarette, e- cigar, e- pipe, or under any other product name or descriptor. (d) "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 non -profit entity. (e) "Employer" means a person, business, partnership, association, corporation, including a municipal corporation, trust, or non - profit entity that employs the services of one or more individual persons. (f) "Enclosed Area" means all space between a floor and a ceiling that is bounded on at least two sides by walls, doorways, or windows, whether open or closed. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent and whether or not containing openings of any kind. (g) "Health Care Facility" means an office or institution providing care or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including but not limited to, hospitals, rehabilitation hospitals or other clinics, including weight control clinics, nursing homes, long -term care facilities, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, psychiatrists, dentists, and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within health care facilities. (h) "Playground" means any park or recreational area designed in part to be used by children that has play or sports equipment installed or that has been designated or landscaped for play or sports activities, or any similar facility located on public or private school grounds or on city grounds. (i) "Private Club" means an organization, whether incorporated or not, which is the owner, lessee, or occupant of a building or portion thereof used exclusively for club purposes at all times, which is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic pumose, but not for pecuniary gain, and which only sells alcoholic beverages incidental to its operation. The affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting. The organization has established bylaws and/or a constitution to govern its activities. The organization has been granted an exemption from the payment of federal income tax as a club under 26 U.S.C. Section 501. 0) "Restaurant" means an eating establishment, including but not limited to, coffee sus, cafeterias, sandwich stands, and private and public school cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in Smokefree Air Ordinance of 2014- Substitute Bill No. 31 -14 Page 8 (k) " Retail Tobacco Store" means a retail store: 1. Utilized primarily for the sale of tobacco and tobacco - related products included, but not limited to, cigarettes, cigars, tobacco, pipes, cigarette paper and lighters, 2. That is not licensed for the consumption of meals or alcoholic beverages on the premises or operated in conjunction with another business that is licensed for the on- premises consumption of meals or alcoholic bevera eg sand 3. In which the sale of tobacco and tobacco - related products accounts for not less than eighty-five pereent (85 %) of the store's gross sales; Retail Tobacco Store does not include a tobacco department of a larger commercial establishment such as a grocery store, department store, discount store or hotel. (1) "Service Line" means an indoor or outdoor line in which one (1) or more persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of money, including but not limited to, ATM lines, concert lines, food vendor lines, movie ticket lines, and sporting event lines. (m) "Shopping Mall" means an enclosed public walkway or hall area that serves to connect retail or professional establishments. (n) "Smoking" means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, or pipe or any other lighted or heated tobacco or plant product intended for inhalation in any manner or in any form. "Smoking" also includes the use of an e- cigarette which creates a vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking in this Article. (o) "Sports Arena" means a place where people assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events, including sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, and bowling alleys. Sec. 14 -64. Application of Article to City -Owned Facilities and Property. This Article shall apply to all enclosed areas, including buildings and vehicles owned, leased, or operated by the City of South Bend. Smokefree Air Ordinance of 2014- Substitute Bill No. 31 -14 Page 9 See. 14 -65. Prohibition of Smoking in Enclosed Public Places. Smoking shall be prohibited in all enclosed public places within the City of South Bend including but not limited to, the following places: (a) Aquariums, galleries, libraries, and museums; (b) Areas available to the eg neral public in businesses and non - profit entities patronized by the public, including but not limited to, banks, laundromats, professional offices, and retail service establishments; (c) aml (d) Bingo facilities; (e) Child care and adult day care facilities; (f) Convention facilities; (g) Educational facilities, both public and private; (h) Elevators; (i) Gaming facilities; 0) Health care facilities; (k) Hotels and motels; (1) Lobbies, hallways, and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple -unit residential facilities; (m) Polling places; (n) Public transportation vehicles, including buses and taxicabs, under the authority of the City of South Bend, and ticket, boarding, and waiting areas of public transportation facilities, including bus, train, and airport facilities; (o) Restaurants; (p) Restrooms, lobbies, reception areas, hallways, and other common -use areas; (q) Retail stores-, (r) Rooms, chambers, places of meeting or public assembly under the control of the City of South Bend; (s) Service lines; (t) Shopping malls; (u) Sports arenas, including enclosed places in outdoor arenas; and (v) Theaters and other facilities primarily used for exhibiting motion pictures, stage dramas, lectures, musical recitals, or other similar performances. Sec. 14 -66. Prohibition of Smoking in Enclosed Places of Employment. (a) Smoking shall be prohibited in all enclosed areas of places of employment without exception. This includes, without limitation, 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. Smokefree Air Ordinance of 2014- Substitute Bill No. 31 -14 Page 10 (b) This prohibition on smoking shall be communicated to all existing employees by the effective date of this Article and to all prospective employees upon their application for employment. See. 14 -67. Prohibition of Smoking in Private Clubs. Smoking shall be prohibited in all private clubs. Sec. 14 -68. Prohibition of Smoking in Enclosed Residential Facilities. Smoking shall be prohibited in the following enclosed residential facilities: (a) All.private and semi - private rooms in nursing homes; and (b) All hotel and motel rooms that are rented to guests. Sec. 14 -69. Prohibition of Smoking in Outdoor Public Places. Smoking shall be prohibited in the following outdoor places: (a) Within a reasonable distance of eight feet (8') outside entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited, so as to prevent tobacco smoke from entering those areas; -(e)- (b) In all outdoor arenas, stadiums, and amphitheaters. Smoking shall also be prohibited in, and within eight feet (8') of, bleachers and grandstands for use by spectators at sporting and other public events; *1 - (c) In, and within eight feet (8') of, all outdoor play rog unds; °(e} (d) In, and within eight (8') of, all outdoor public transportation stations, platforms, and shelters under the authority of the City of South Bend; J4) - (e) In all outdoor service lines, including lines in which service is obtained by persons in vehicles, such as service that is provided by bank tellers, parking lot attendants, and toll takers. In lines in which service is obtained by persons in vehicles, smoking is prohibited by both pedestrians and persons in vehicles, but only within eight feet (8') of the point of service; and Smokefree Air Ordinance of 2014 Page 11 In outdoor common areas of apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple -unit residential facilities, except in designated smoking areas, not to exceed twenty -five percent (25 %) of the total outdoor common area, which must be located at least eight feet (8') outside entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited. where See. 14 70. Prohibition of Smoldne ift Outdoor- Plaees of Emplovment. 4., effivievees are reeiiired to be in 4he a of their a le -yq ^ent. This iftehidej. Vyid%Tt limitation, work areas, eenstvae4ien sites, tempermy &ffiees sueh as tr-ailefs, rest,-eem faei.* «.t ..et,�� ten nnIIQYG2IZCIG,T. C°^ -4-74. Sec. 14-70. Where Smoking Not Regulated. Notwithstanding any other provision of this Article to the contrary, smoking shall not be prohibited in private residences, unless used as a childcare, adult day care, or health care facility; and in retail tobacco stores. See. 4-7T- Sec. 14 -71. Declaration of Establishment or Outdoor Area as Nonsmoking. Notwithstanding any other provision of this Article, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place. Smoking shall be prohibited in any place in which a sign conforming to the requirements of Section 1012(A) is posted. -See.-14 See. 14 -72. Posting of Signs and Removal of Ashtrays.2 The owner, operator, manager, or other person in control of a public place or place of employment where smoking is prohibited by this Article shall: (a) Clearly and conspicuously post "No Smoking" signs or the international "No Smokina" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) in that place, printed on a minimum size of 8" x 10 ". (b) Clearly and conspicuously post at every entrance to that place a sign stating that smoking is prohibited. z This section replaces current section 14 -62 entitled "Signap_e Required" of the South Bend Municipal Code. Smokefree Air Ordinance of 2014 - Substitute Bill No. 31 -14 Page 12 (c) Clearly and conspicuously post on every vehicle that constitutes a place of employment under this Article at least one (1) sign, visible from the exterior of the vehicle, stating that smoking is prohibited. (d) Remove all ashtrays from any area where smoking is prohibited by this Article, except for ashtrays displayed for sale and not for use on the premises. See-. 4, -,'t: Sec. 14 -73. Non - retaliation, Non - waiver of Rights. (a) No person or employer shall discharge, refuse to hire, or in any manner retaliate against an emplovee, applicant for employment, customer, or resident of a multiple -unit residential facility because that employee, applicant, customer, or resident exercises any rights afforded_ by this Article or reports or attempts to prosecute a violation of this Article. Notwithstanding Section 14 -76, violation of this Subsection shall be punishable by a fine not to exceed one thousand dollars ($1,000) for each violation. (b) An employee who works in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other part y. See.-14-75. Sec. 14 -74. Enforcement. (a) This Article shall be enforced by the Department of Code Enforcement and the Police Department or an authorized designee. (b) Notice of the provisions of this Article shall be given to all applicants for a business license in the City of South Bend. (c) Any citizen who desires to register a complaint under this Article may initiate enforcement with the Department of Code Enforcement. (d) The Health Department, Fire Department, or their designees may, while an establishment is undergoing otherwise mandated inspections, inspect for compliance with this Article. (e) An owner, manager, operator, or employee of an area regulated by this Article shall direct a person who is smoking in violation of this Article to extinguish the product being smoked. If the person does not stop smoking, the owner, manager, operator, or employee shall refuse service and shall immediately ask the person to leave the premises. If the person in violation refuses to leave the premises, the owner, manager, operator, or employee shall contact a law enforcement agency. (f) Notwithstanding any other provision of this Article, an employee or private citizen may bring legal action to enforce this Article. Smokefree Air Ordinance of 2014 Page 13 (g) In addition to the remedies provided by the provisions of this Section, the Department of Law or any person aggrieved by the failure of the owner, operator, manager, or other person in control of a public place or a place of employment to comply with the provisions of this Article may apply for injunctive relief to enforce those provisions in any court of competent jurisdiction. See. 4 og Sao See. 14 -75. Violations and Penalties. (a) Any one violating any of the provisions of this Article shall be subject to the following penalties: 1. Citations: For the first violation in a calendar year, a citation shall be issued imposed a fine of fifty dollars ($50.00); one hundred dollars for the 2 "d violation; and two hundred fifty dollars for all violations thereafter with such fines payable through the Ordinance Violations Bureau 2. Each violation shall constitute a separate offense. (b) Except as otherwise provided in Section 14 -74 (a), a person who owns, manages, operates, or otherwise controls a public place or place of employment and who fails to comply with the provisions of this Article shall be guilty of an infraction, punishable bv: 1. A fine of one hundred dollars ($100) for a first violation. 2. A fine of two hundred fifty dollars ($250) for a second violation within one (1) year. 3. A fine of one thousand dollars ($1,000) for each additional violation within one (1) year. (c) In addition to the fines established by this Section, violation of this Article by aaperson 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 the person for the premises on which the violation occurred. (d) Repeated violation of this Article is declared to be a public nuisance, which may be abated by the Department of Law seeking a restraining order, rder, preliminary and permanent injunction, or other means provided for by law, and may bring action to recover the costs of the nuisance abatement. (e) The City ttaf.,.. 's ^FF. Department of Law is authorized to bring civil action against any alleged violator of this Article for all unpaid fines, and any and all expenses incurred by the City to enforce the provisions of this Article to seek compliance from the alleged violator. Smokefree Air Ordinance of 2014 Page 14 (f) Each day on which a violation of this Article occurs shall be considered a separate and distinct violation. Each violation of this Article shall constitute a separate offense. See. 4-W. Sec. 14 -76. Public Education. The Department of Code Enforcement shall engage in a continuing program to explain and clarify the purposes and requirements of this Article to citizens affected by it, and to guide owners, operators, and managers in their compliance with it. The program may include publication of a brochure for affected businesses and individuals explaining the provisions of this Article. See. 14 -77. Other Apulfcable Laws. This Article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. Sec. 14 -78. Liberal Construction. This Article shall be liberally construed so as to further its purposes. See. 14 -79 Through Sec. 14 -92 Reserved. Section II. Severability: If any provision, clause, sentence, or paragraph of this Article or the application thereof to any person or circumstances shall be held invalid, that invalidity shall not affect the other provisions of this Article which can be given effect without the invalid provision or application, and to this end the provisions of this Article are declared to be severable. Section II1. This ordinance shall be in full force and effect from and after sixty (60) after the passage by the Common Council, approval by the Mayor and le a] Council Member Gavin Ferlic Council Member Tim Scott Council Member Dr. Fred Ferlic Council Member Valerie Schey Smokefree Air Ordinance of 2014 Page 15 I, John Voorde, hereby verify that the foregoing ordinance was passed /defeated by the South Bend Common Council on the day of 2014, by a vote of in favor and John Voorde, City Clerk South Bend, Indiana day of against. f. 2014, at o'clock .m. Janice Talboom, Deputy City Clerk day of o'clock m. Mark Neal, Deputy Mayor South Bend, Indiana 2014, at Filed In Clam's Office MAY -1 2014 J©RN td4'3(9yD� CITY CLERK, SWT €t REND, IN Oliver J. Davis President Derek D. Dieter Vice - President Valerie Schey Chairperson, Committee of the Whole Tim Scott First District Henry Davis, Jr. Second District Valerie Schey Third District Fred Ferlic Fourth District David Varner Fifth District Oliver J. Davis Sixth District Derek D. Dieter At Large Gavin Ferlic At Large Karen L. White At Large City of South Bend Common Council 441 County -City Building • 227 W. Jefferson Blvd South Bend, Indiana 46601 -1830 May 1, 2014 The South Bend Common Council 4th Floor County -City Building South Bend, Indiana 46601 Substitute Bill No. 31 -14 Smokefree Air Regulations Dear Council Members: (574) 235 -9321 Fax (574) 235 -9173 http: //w .southbendin.gov We are filing Substitute Bill No. 31 -14 addressing Smokefree Air Regulations. It reflects the following clarifications: • Page 10, Section 14 -69 deletes former paragraph (b) addressing outdoor property and re- letters the other paragraphs; and Page 11, deletes former Section 14 -70 Proibition of Smoking in Outdoor Places of Employment and re- numbers the remaining sections of the proposed ordinance. We seek your support. Thank you. Most sincerely, Gavin Ferlic Council Member at Large Tim Scott lst District Council Member Dr. Fred Ferlic 4th District Council Member Valerie Schey 3rd District Council Member Filed Ih Office 1��_•, .,. 201Q JOHN a' �� CITY CLERK, Boo 9 SEND, IN