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HomeMy WebLinkAboutordinance.council.035-85 RECORD OF PROCEEDINGS 100 Leaves ORDINANCE NO. 35 (Series of 1985) AN ORDINANCE ENACTING A NEW ARTICLE IV TO CHAPTER 11 OF THE MUNI- CIPAL CODE OF THE CITY OF ASPEN, COLORADO, TO BE KNOWN AS "THE CITY OF ASPEN CLEAN INDOOR AIR ACT", TO CONTROL AND LIMIT THE SMOKING OF TOBACCO OR ANY OTHER WEED OR PLANT IN INDOOR PUBLIC PLACES AND PLACES OF EMPLOYMENT AS SET FORTH THEREIN; PRESCRIBING PENALTIES AND REMEDIES FOR THE VIOLATION THEREOF; AMENDING THE GENERAL PENALTY PROVISION CURRENTLY NUMBERED SECTION 11-4.1 SO AS TO RENUMBER SAID SECTION TO 11-5.1 AND REFLECT THAT THE PENALTY FOR A VIOLATION OF THE CITY OF ASPEN CLEAN INDOOR AIR ACT SHALL NOT INCLUDE IMPRISONMENT BUT SHALL BE LIMITED TO A FINE OF NOT MORE THAN THREE HUNDRED DOLLARS; AND DIRECTING THAT CHAPTER 11 OF THE MUNICIPAL CODE BE REORGANIZED TO REFLECT THE DIVISION OF SAID CHAPTER INTO VARIOUS ARTICLES WHEREAS, the City Council finds that the smoking of tobacco, or any other weed or plant, is a form of air pollution, a positive danger to health and a material annoyance, inconvenience, nui- sance, discomfort and a health hazard to those who are present in confined spaces; and WHEREAS, the City Council of the City of Aspen deems it to be in the best interest of the City, and its residents and visitors, to control and limit the smoking of tobacco, or any weed or plant, in public places and places of employment, and to enact a new Article IV to Chapter 11 of the Municipal Code of the City of Aspen to be known commonly as the "City of Aspen Clean Indoor Air Act". NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO. Section 1 That Chapter 11 of the Municipal Code of the City of Aspen, Colorado, is hereby amended by renumbering Section "11-4.1 Penal- ties and Relief" thereof to "11-5.1 Penalties and Relief", and adding a new Article IV, to read as follows: RECORD OF PROCEEDINGS 100 Leaves "ARTICLE IV SMOKING IN PUBLIC PLACES Sec. 11-4.1. Short Title. This article shall be known as and it may be cited as the "City of Aspen Clean Indoor Air Act". Sec. 11 . 42. Legi_~s~!Z~_~n_~te~nt__a~._~poses. The City Council finds that the smoking of tobacco, or any other weed or plant, is a form of air pollution, a positive danger to health and a material annoyance, inconvenience, nuisance, discomfort and a health hazard to those who are present in confined spaces, and in order to serve public health, safety and welfare the declared purpose of this arti- cle is to control and limit the smoking of tobacco, or any weed or plant, in public places and places of employment as hereinafter set forth. The City Council intends that the restrictions and limitations of this article be viewed as minimum standards, and should not be construed as limiting in any way the authority of persons in control of a public place from prohibiting smoking within their establishment alto- gether. Sec. ~1-4.3. Definitions. (a) "Bar area" means an area comprising fifteen feet or less from the perimeter of a permanent counter which is pri- marily devoted to serving alcoholic beverages and within which the service of food is only incidental to the con- sumption of such beverages. Although a restaurant may contain a bar, the term "bar area" shall not include the restaurant/dining area. The City Council (or its desig- nee) may extend the fifteen-foot limitation to encompass a larger area upon a demonstration by the owner of an establishment that such area is primarily devoted to the serving of alcoholic beverages (such as a bar room, cocktail lounge or similar facility) and the service of food is only incidental to the consumption of such beverages. b) "Dining area" means any enclosed area containing a coun- ter or tables upon which meals are served, excluding the bar area. c) "Enclosed" means closed in by a roof and four walls with appropriate openings for ingress and egress and is not intended to mean areas commonly described as public lob- bies. d) "Public place" means any enclosed area to which the pub- lic is invited or in which the public is permitted, including, but not limited to: banks, education facili- ties, health facilities, public transportation facili- ties, reception areas, restaurants, retail stores, retail service establishments, waiting rooms. A private residence is not a public place. RECORD OF PROCEEDINGS 100 Leaves (e) "Smoking" means the combustion of any cigar, cigarette, pipe, or similar article, using any form of tobacco or other combustible substance in any form. (f) "Theater and Auditorium" means any enclosed area devoted to exhibiting motion pictures or presenting theatrical performances, lectures or like entertainment. (g) "Employee" means any person who is employed by any employer in consideration for monetary compensation or profit. (h) "Employer" means any person, partnership or corporation, including municipal corporation, who employs the ser- vices of any person(s). (i) "Independently ventilated" means that the ventilation system for any area in which smoking is permitted and the ventilation system for any nonsmoking area do not have a connection which allows for the mixing of air from the smoking and nonsmoking areas. (j) "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 area, employee lounges, conference rooms, and employee cafeterias. A private residence is not a place of employment. Sec. 11-4.4. ~mokin~ Prohibited. (a) Elevators. Smoking is prohibited and is unlawful within elevators in buildings generally used by and open to the public, including elevators in office, hotel, and multi- family buildings. (b) Hospitals and Health Care Facilities. Smoking is pro- hibited and is unlawful in public areas of health care facilities and hospitals, as defined in Section 25-3- 101, C.R.S., as it may be amended from time to time, including waiting rooms, public hallways and lobbies, except in specially designated smoking areas that are physically separated and independently ventilated. (c) Public Meeting Rooms. Smoking is prohibited and is unlawful in hearing rooms, conference rooms, chambers, places of public assembly in which public business is conducted, which requires or provides direct participa- tion or observation by the general public. (d) Public Restrooms. Smoking is prohibited and unlawful in public restrooms. (e) Indoor Service Lines. Smoking is prohibited and is unlawful in indoor service lines in which more than one person is giving or receiving services of any kind, whether or not such service involves the exchange of money. (f) Eating Establishments. Smoking is prohibited and is unlawful in every publicly or privately owned coffee 3 RECORD OF PROCEEDINGS 100 Leaves shop, cafeteria, short-order cafe, luncheonette, sand- wich shop, soda fountain, restaurant, or other eating establishment serving food, except under the following circumstances where smoking may be permitted at the option of the owner of the establishment: (1) Any area exterior to the building in which the establishment is located. (2) The smoking of cigarettes in any bar area as defined in Section 11-4.3(a). The smoking of pipes and cigars shall not be permitted in such area. (3) Any enclosed rooms which are being used for private functions. (4) Until June 1, 1986, the smoking of cigarettes in any interior area limited to not more than fifty percent (50%) of contiguous floor space of the dining area and which is specifically designated and signed as a smoking area. The smoking of pipes and cigars shall be prohibited in such area. (5) After June 1, 1986, in a secondary, physically separated and independently ventilated interior area that is specifically designated and signed as a "Smoking Permitted" dining area, provided that such secondary dining area shall not exceed in square footage an area equal to fifty percent (50%) of the square footage of the primary dining area. The smoking of pipes and cigars shall be prohibited in such area. (g) Retail Stores. Smoking is prohibited and is unlawful in all public areas of retail stores, including grocery stores, retail service establishments, retail food pro- duction establishments, and drug stores. Sec. 11-4.5. Structural Modifications Not Reguired. (a) Nothing in this article shall require the owner, opera- tor, or manager of any existing theater, auditorium, health care facility, or any existing building, facil- ity, structure, or business, to incur any expense to make structural or other physical modifications to any area. (b) Nothing in this section shall relieve any person from the duty to post signs or adopt policies as required by this article. Sec. 11-4.6. ~e~lation._of_~S~okin~ in Places of ~mplq~n_~t~ The places subject to regulation pursuant to subsection 11.4 shall not be deemed places of employment for purposes of this subsection. The following regulations apply to places of employment. (a) Within ninety days of the effective date of this ordin- ance, each employer shall adopt, implement, and maintain 4 RECORD OF PROCEEDINGS 100 Leaves a written smoking policy which shall contain at a mini- mum the following: (1) Prohibition of smoking in employer conference and meeting rooms, classrooms, auditoriums, restrooms, medical facilities, hallways, and elevators. (2) Provision and maintenance of no smoking areas in cafeterias, lunchrooms and employee lounges that effectively provide a smoke-free environment for nonsmoking employees. (3) Any employee in the place of employment shall be given the right to designate his or her immediate area as a nonsmoking area and to post it with appropriate signs or sign. The policy adopted by the employer shall include a definition of the term immediate work area which gives preferential con- sideration to nonsmokers. (4) In any dispute arising in the work place under the smoking policy, the rights of the nonsmoker shall be given precedence. (5) Except where other signs are required, whenever smoking is prohibited, conspicuous signs shall be posted so stating. b) The smoking policy shall be communicated to all employees within three weeks of its adoption. c) Notwithstanding the provisions of subsection (a) of this section, every employer shall have the right to desig- nate any place of employment as a nonsmoking area. d) This section is not intended to regulate smoking in the following places and under the following conditions: (1) A private home which may serve as a place of employment. (2) Any property owned or leased by other governmental agencies. (3) A private enclosed place of employment occupied exclusively by smokers, even though such place of employment may be visited by nonsmokers, excepting places in which smoking is prohibited by fire mar- shal or by other law, ordinance or regulation. RECORD OF PROCEEDINGS 100 Leaves (e) An employer shall post "No Smoking" signs in any area designated as a nonsmoking area and "Smoking Allowed" signs in any area designated as a smoking area. Sec. 11-4.7. Posting. of sig.ns.. To advise persons of the existence of "No Smoking" or "Smok- ing Permitted" areas, signs shall be posted as follows: (a) In public places where no smoking is permitted pursuant to this article, a sign using the words "No Smoking" and/or the international no-smoking symbol shall be con- spicuously posted either on all public entrances or in a position clearly visible on entry into the establish- ment. (b) In public places where certain areas are designated as smoking areas pursuant to this ordinance, the statement "No Smoking Except in Designated Areas" shall be con- spicuously posted on all public entrances or in a posi- tion clearly visible on entry into the establishment. In addition, the person having the authority to manage and control any area designated as a nonsmoking area pursuant to this article, shall post or cause to be posted and prominently displayed, and shall maintain "No Smoking" signs in conspicuous locations within said areas. All such signs shall clearly and conspicuously recite the phrase "No Smoking" and/or use the interna- tional no-smoking symbol. The signs shall be posted not less than 5 feet nor more than 8 feet above floor level and shall be of sufficient number and location to cause the message of at least one of the signs to be clearly visible, legible, and readable. Sec. 11-4.8. Exceptions. (a) "No Smoking" areas are not required, although they are encouraged, in private areas; hotel, motel, and lodge meeting and assembly rooms rented to guests; hotel and motel lobbies; areas and rooms while in use for private social functions, the facilities of a private or members only organization, private hospital rooms, psychiatric or psychological counseling facilities, jails, bars, or stores that deal exclusively in tobacco products and accessories. Notwithstanding anything to the contrary contained herein, the smoking of pipes and cigars shall not be allowed in hotel and motel lobbies. (b) Any owner or manager of a business or other establish- ment subject to this article may apply to the City Coun- cil (or such board or commission of the City authorized by the City Council to grant the same) for an exception or modification of the provisions of this article due to unique or unusual circumstances or conditions, provided that it will be the burden of the applicant to show either that the provisions of this article cannot be complied with without incurring expenses for structural or other physical modifications, other than posting signs, or that due to unique or unusual circumstances, the failure to comply with the provision for which the 6 RECORD OF PROCEEDINGS 100 Leaves exemption is requested will not result in a danger to health or annoyance, inconvenience or discomfort. Sec. 11-4.9. Enforcement. (a) The City Manager or the City Manager's designee shall be responsible for compliance with this article with regard to facilities which are owned, operated, or leased by the City of Aspen. (b) The owner, operator, or manager of any facility, busi- ness or agency shall post or cause to be posted all "No Smoking" signs required by this article. Owners, opera- tors, manager or employees of same shall be required to orally inform persons violating this article of the pro- visions thereof. The duty to inform such violator shall arise when such owner, operator, manager or employee of same becomes aware of such violation, and shall be their sole enforcement obligation hereunder. (c) Any citizen who desires to register a complaint under this article may initiate enforcement with the City Man- ager or City Manager's designee. (d) The City Manager or the City Manager's designee may enforce the provisions of this article by either of the following actions: (1) Serving notice requiring correction of any viola- tion of this article. (2) Requesting the City Attorney to initiate appropri- ate enforcement proceedings, including, without limitation, the initiation of a complaint in muni- cipal court or the institution of injunctive, abatement, or other appropriate action to prevent, enjoin, abate or remove such violation. (e) Any person convicted of violating any provision of this article shall, upon conviction, be punished by a fine of not more than three hundred dollars ($300.00), for'each separate offense, and may be enjoined from any further or continued violation thereof. Each day any violation of this article shall continue shall constitute a separ- ate offense. f) Any remedies provided for herein shall be cumulative and not exclusive and shall be in addition to any other remedies provided by law." Section 2 That Section .11-4.1 of the Municipal Code of the City of Aspen be amended by renumbering said section to 11-5.1 and amend- ing subsection (~) to read as follows: RECORD OF PROCEEDINGS 100 Leaves "Sec. 11-5.1. Penalties and Relief. (a) Any person, upon conviction of a violation of any provi- sion of Article I, II or III of this chapter, shall be subject to a fine not to exceed three hundred dollars ($300.00) or imprisonment in the county jail for a period of not more than ninety (90) days, or both, at the discretion of the court, for each separate offense, and may be enjoined from any further or continued viola- tion hereof. A violation of Article IV shall be punish- able by a fine only. Each day any violation of this chapter shall continue, shall constitute a separate offense hereunder." Section 3 The City Clerk is hereby directed to effect the recodifica- tion of Chapter 11 of the Municipal Code of the City of Aspen as follows: 1. The title of Chapter 11 shall be amended to read as fol- lows: "Health-Water Quality, Air Quality, Control of Rubbish, Weeds and Brush, and Smoking in Public Places". 2. Section 11-1.1 through 11-1.8 shall be designated as Article I and entitled "Water Quality". 3. Section 11-2.1 through 11-2.9 shall be designated as Article II and entitled "Air Quality". 4. Section 11-3.1 through 11-3.3 shall be designated as Article III and entitled "Control of Rubbish, Weeds and Brush". Section 4 The regulations and amendments set forth in this ordinance shall become effective thirty (30) days after the date of publica- tion after final passage, specifically October 19, 1985. It is the present intention of this Council that this ordin- ance shall be reviewed by the City Council regarding it effective- ness in addressing problems associated with smoking in public places on the City Council agenda. Seetion 5 If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or RECORD OF PROCEEDINGS 100 Leaves unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 6 A public hearing on the ordinance shall be held on the day of ____~_ ~ L, 1985, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED published as provided by law of the City Council of the City of Aspen on the j_/__ day of 1985. : William L. Stifling ATTEST: ~--C-~yCler~ FINALLY adopted, passed and approved this /~ day of William L. Stirling Kathryn S, ~ch,-~r~ Clerk -- 5B 9 RECORD OF PROCEEDINGS 100 Leaves STATE OF COLORADO CERTIFICATE COUNTY OF PITKIN I, Kathryn S. Koch, City Clerk of Aspen, Colorado, do hereby certify that the above and foregoing ordinance was introduced, read in full, and passed on first reading at a regular meeting of the City Council of the City of Aspen on _ , 1985, and published in the Aspen Time_~, a weekly newspaper of general circulation published in the City of Aspen,Colorado, in its issue of ~ 1985, and was finally adopted and approved at a regular meeting of the City Council on  /~ , 1985, and ordered published as Ordinance o. ~__, Series of 1985, of said City as provided by law. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of said City of Aspen, Colorado this c~/~'~' day of Kathryn S.~och, City Clerk - Deputy City Clerk