ORDINANCE NO. #2007-3

ORDINANCE PROHIBITING SMOKING IN PUBLIC PLACES AND PLACES OF EMPLOYMENT

WHEREAS, numerous studies have found that tobacco smoke is a major contributor to indoor pollution, and that breathing secondhand smoke is a cause of disease, including lung cancer in non-smokers; and
WHEREAS, people at special risk to secondhand smoke include children, the elderly, individuals with cardiovascular disease or impaired respiratory function, including asthmatics, and those with obstructive airway disease; and
WHEREAS, health hazards induced by breathing secondhand smoke including lung cancer, heart disease, respiratory infection, decreased respiratory function, and bronchospasm; and
WHEREAS, the City of Greencastle (hereinafter “City”) finds and declares that the purposes of this ordinance 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 persons to breathe smoke-free air, and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GREENCASTLE, INDIANA as follows:

Section 1. Definitions.

As used in this Ordinance, the following words and phrases have the following meanings unless otherwise designated:

1. "Bar" means any establishment used primarily for the sale of alcoholic beverages for consumption by guests on the premises and in which the sale of food is merely incidental to the sale of alcoholic beverages, including but not limited to taverns, nightclubs, and cocktail lounges.
2. "Person" means any individual, firm, partnership, association, corporation, company or organization of any kind.
3. “Private Club” means a facility:
   1. owned or operated by an association or corporation which shall:
      1. not be operated for pecuniary gain;
      2. consists of a membership:
         1. formed as a lodge, local chapter, or corresponding unit of a fraternal order recognized on a national basis; or
         2. comprised of persons who have served in the armed forces of the United States; or
         3. formed as a recognized, exclusive association of persons organized for a joint or common purpose for which application for membership, the payment of dues, and self-governance by the membership are distinguishing characteristics; and 
      3. Registered under Indiana law; and 
      4. Determined by the Internal Revenue Service to be operating under not-for-profit status.
   2. where entry into and use of the facility is restricted to members and guests of members.
4. "Restaurant" means any establishment used as or held out to the public as having food available for payment to be consumed on the premises, including coffee shops, cafeterias, cafes, luncheonettes sandwich stands and soda fountains. The term "restaurant" shall include a bar area within the restaurant. 
5. “Theater” means any enclosed facility, open to the public, which is primarily used for or designed for the purpose of exhibiting any motion picture, stage drama, musical recital, dance, lecture or other similar performance.
6. "Smoke" or "smoking" means the act of lighting, carrying, inhaling from, or leaving a lighted or smoldering cigar, cigarette, or pipe of any kind.
7. "Public place" means any enclosed area used by the general public, including, but not limited to, retail stores and financial institutions, department stores, banks, laundromats and beauty and barber shops, retail food production and marketing establishments, retail service establishments, and other commercial establishments, regardless of whether a fee is charged for admission to the place.
8. "Enclosed Area" means all space between a floor and ceiling that is enclosed on all sides by solid walls or windows (exclusive of doorways), which extend from the floor to the ceiling.
9. "Place of Employment" means any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including but not limited to, work areas, private offices, employee lounges and restrooms, conference and class rooms, employee cafeterias and hallways.
10. "Retail Tobacco Store" means retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental. The term does not include retail stores where food or beverages are sold for consumption on the premises or where an area has been set-aside on the premises for customers to consume food or beverages.
11. "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, homes for the aging or chronically ill.

Section 2. Application of Chapter to City-Owned Facilities

All properties, except public rights-of-way and easements, including buildings and vehicles owned, leased, or operated by the City of Greencastle , shall be subject to the provisions of this Chapter.

Section 3. Smoking prohibited in public places.

Smoking shall be prohibited in all enclosed public places within the City of Greencastle, including but not limited to, the following places:

1. Areas available to and customarily used by the general public in businesses and nonprofit entities patronized by the public, including but not limited to, professional offices, banks, laundromats, bowling alleys, hotels, and motels.
2. Bars.
3. Bingo facilities.
4. Convention facilities.
5. Elevators.
6. Facilities primarily used for exhibiting a motion picture, stage, drama, lecture, musical recital, or other similar performance.
7. Galleries, libraries, and museums.
8. Health care facilities, except where required by law.
9. Licensed childcare and adult day care facilities.
10. Lobbies, hallways, and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities.
11. Polling places.
12. Private Clubs, during any period of time that the public is present and invited on the premises.
13. Public transportation facilities, including buses and taxicabs.
14. Restaurants.
15. Restrooms, lobbies, reception areas, hallways, and other common-use areas.
16. Retail businesses and stores.
17. Rooms, chambers, places of meeting or public assembly, including school buildings, under the control of an agency, board, commission, committee or council of the City or a political subdivision of the State when a public meeting is in progress, to the extent the place is subject to the jurisdiction of the City.
18. Schools
19. Service lines
20. Enclosed shopping malls
21. Sports arenas, including enclosed place in outdoor arenas.

Section 4. Prohibition of Smoking in Places of Employment.

Smoking shall be prohibited in all enclosed areas within places of employment. This includes, but is not limited to, common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, service areas, stairs, restrooms, vehicles, and all other enclosed facilities.

Section 5. Where Smoking is Not Regulated.

The prohibitions of Section 3 shall not apply to the following:

1. Private residences, except when used as a licensed childcare, adult day care, home occupation where the public is invited or health care facility.
2. Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided however, that not more than twenty five (25%) of rooms rented to guests in a hotel or motel may be so designated. The status of rooms as smoking or nonsmoking may not be changed, except to add additional nonsmoking rooms.
3. Retail tobacco stores; provided that smoke from these places does not infiltrate into areas where smoking is prohibited under the provisions of this Ordinance.
4. Private clubs, as described in Section 1. Definitions, item c., and as regulated in Section 3.(l). 
5. Outdoor areas of places of employment.

Section 6. Declaration of Establishment as Nonsmoking.

Notwithstanding any other provision of this Chapter, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, outdoor area or parking lot as a nonsmoking place. Smoking shall be prohibited in any place in which a sign conforming to the requirements of Section 8 is posted.

Section 7. Posting of Signs.

Every public place and place of employment where smoking is prohibited by this Ordinance shall have posted a conspicuous sign clearly stating that smoking is prohibited.

Section 8. Enforcement.

1. This Chapter shall be enforced by the Office of the Mayor of the City of Greencastle, or his/her designee.
2. Any citizen who desires to register a complaint under this Chapter may initiate enforcement by contacting the Office of the Mayor or the Greencastle Police Department.
3. The City’s Building Inspector or Fire Inspector, or their designees may, while an establishment is undergoing otherwise mandated inspections, inspect for compliance with this Ordinance.
4. An owner, manager, operator, or employee of an establishment regulated by this Ordinance shall inform persons violating this Ordinance of the appropriate provisions thereof.

Section 9. Violations and Penalties.

1. A person who smokes in an area where smoking is prohibited by the provisions of this Ordinance shall be guilty of an infraction, punishable by a fine of fifty dollars ($50).
2. 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 Ordinance shall be guilty of an infraction, punishable by: 1. A fine of One Hundred Dollars ($100.00) for a first violation. A fine of Two Hundred Dollars ($200.00) for a second violation within one (1) year. A fine of Five Hundred Dollars ($500.00) for each additional violation within one (1) year.
3. Each day on which a violation of this Ordinance occurs shall be considered a separate and distinct violation.
4. Any person receiving a notice of violation and /or fines for a violation may appeal the violation and/or fine to the Mayor. The Appellant must file a written statement, outlining the reasons that the violation/fine is invalid or should otherwise not be enforced within fifteen (15) days of the violation. The Mayor shall investigate and review the appeal and issue a written determination.
   The Appellant may appeal the Mayor’s determination to the Common Council of the City of Greencastle by filing a written statement within fifteen (15) days of the Mayor’s determination. The Common Council will appoint a three member panel from its members to investigate and review the Appeal. The Common Council review panel shall issue a written determination, which decision shall be final.
   Failure to comply with the above appeals procedure constitutes a waiver of any further rights to appeal.
5. An action to enforce a violation and/or fine may be brought by the City in the court of jurisdiction.

Section 10. Other applicable laws.

This Ordinance shall not be interpreted to permit smoking where it is otherwise restricted by other applicable laws or to supersede any local laws which are more restrictive.

Section 11. Chapter to be broadly interpreted.

This Ordinance shall be construed broadly to effectuate the purposes described in the preamble of this ordinance.

Section 12. Severability.

If any section or sentence or provision of this Ordinance, or the application thereof to any person or circumstances shall be declared unconstitutional or invalid, such invalidity shall not affect any of the other sections, sentences, provisions or application of this ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable.

Section 13. Effective Date.

This Ordinance shall be effective September 1, 2007, at 12:00 p.m. (noon).

PASSED AND ADOPTED by the Common Council of the City of Greencastle, Indiana this ____ day of __________________, 2007.

Approved and signed by me this ______ day of _________________, 200 7, at ___________ o'clock ___.m.