CHAPTER 7-05
SMOKE-FREE AND TOBACCO-FREE AIR
SECTIONS:
7-05-001-0001 DEFINITIONS
7-05-001-0002 APPLICATION OF ORDINANCE TO CITY-OWNED FACILITIES
7-05-001-0003 PROHIBITION OF SMOKING AND USE OF ELECTRONIC CIGARETTES IN PUBLIC PLACES
7-05-001-0004 PROHIBITION OF SMOKING AND USE OF ELECTRONIC CIGARETTES IN PLACES OF EMPLOYMENT
7-05-001-0005 REASONABLE DISTANCE
7-05-001-0006 WHERE SMOKING AND USE OF ELECTRONIC CIGARETTES NOT REGULATED
7-05-001-0007 DECLARATION OF ESTABLISHMENT AS NONSMOKING AND FREE FROM USE OF ELECTRONIC CIGARETTES
7-05-001-0008 POSTING OF SIGNS
7-05-001-0009 NONRETALIATION
7-05-001-0010 ENFORCEMENT
7-05-001-0011 VIOLATIONS AND PENALTIES
7-05-001-0012 OTHER APPLICABLE LAWS
7-05-001-0013 LIBERAL CONSTRUCTION
7-05-001-0014 SEVERABILITY
7-05-001-0015 EFFECTIVE DATE
7-05-001-0001 DEFINITIONS
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
"Accessory bar" means a place within a restaurant or other business building for the service of alcoholic beverages and associated snacks for on-site consumption.
"Business" means a sole proprietorship, partnership, joint venture, corporation, including a municipal corporation, limited liability company 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, accounting, medical, dental, engineering, architectural, or other professional services are delivered.
"Cemeteries" means any areas in the City of Flagstaff as defined in the Flagstaff City Code, Section 10-80.20.030, which are owned by the City of Flagstaff.
"Electronic cigarette" means any product containing or delivering nicotine or any other similar substance intended for human consumption that can be used by a person to simulate smoking through inhalation of vapor or aerosol from the product. The term includes any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, or vape pen, or under any other product name or descriptor.
"Emissions from electronic cigarettes" means any tobacco aerosol, vapor, odor, or any other substance released into the air from the use of electronic cigarettes.
"Employee" means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit.
"Employer" means a person, business, association, trust, or nonprofit entity that employs the services of one or more individual persons.
"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.
"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, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, 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.
"Opening" means an entrance, window or ventilation system.
"Park property" means any areas in the City of Flagstaff as defined in the Flagstaff City Code, Section 8-11-001-0004(A).
"Place of employment" means an area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, and vehicles. A private residence is not a "place of employment" unless it is used as a childcare, adult day care, or health care facility.
"Private club" means an establishment, operated by an organization established for patriotic, fraternal, benevolent or recreational purposes that does not employ any employees and provides goods or services to members only.
"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, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports facilities, theaters, and waiting rooms. A private residence is not a "public place" unless it is used as a childcare, adult day care, or health care facility.
"Reasonable distance" means a distance sufficient to ensure that persons entering or leaving the building shall not be subjected to breathing tobacco smoke and emissions from electronic cigarettes.
"Restaurant" means an eating establishment, including but not limited to, coffee shops, 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 which food is prepared on the premises for serving elsewhere. The term "restaurant" shall include a bar area within the restaurant.
"Shopping mall" means an enclosed public walkway or hall area that serves to connect retail or professional establishments.
"Smoking" or "to smoke" means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, weed, plant, or other combustible substance in any manner or in any form.
"Sports facilities" means enclosed or covered sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys, and other similar places where members of the general public assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events.
"Stand-alone bar" means any place of business that is used to sell and serve alcoholic beverages and that is not located within a restaurant or other business building. (Ord. 2005-19, Amended, 08/16/2005; Ord. 2017-18, Amended, 06/06/2017; Ord. 2018-43, Amended, 12/11/2018)
7-05-001-0002 APPLICATION OF ORDINANCE TO CITY-OWNED FACILITIES
All enclosed facilities, including buildings and vehicles owned, leased, or operated by the City of Flagstaff shall be subject to the provisions of this Ordinance.
7-05-001-0003 PROHIBITION OF SMOKING AND USE OF ELECTRONIC CIGARETTES IN PUBLIC PLACES
Smoking and use of electronic cigarettes shall be prohibited in all enclosed and unenclosed public places within the City of Flagstaff, including but not limited to:
1. Aquariums, galleries, libraries, and museums.
2. 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, hotels, and motels.
3. Accessory bars and stand-alone bars.
4. Bingo facilities.
5. Convention facilities.
6. Elevators.
7. Facilities primarily used for exhibiting a motion picture, stage, drama, lecture, musical recital, or other similar performance.
8. Health care facilities.
9. Licensed childcare and adult day care facilities.
10. Lobbies, hallways, and other enclosed common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities.
11. Polling places.
12. Public transportation facilities, including buses and taxicabs, under the authority or franchise of the City of Flagstaff, and ticket, boarding, and waiting areas of public transit depots.
13. Restaurants.
14. Restrooms, lobbies, reception areas, hallways, and other common-use areas.
15. Retail stores.
16. 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 of Flagstaff.
17. Shopping malls.
18. Sports facilities.
19. Park property.
20. Cemeteries. (Ord. 2005-19, Amended, 08/16/2005; Ord. 2017-18, Amended, 06/06/2017; Ord. 2018-43, Amended, 12/11/2018)
7-05-001-0004 PROHIBITION OF SMOKING AND USE OF ELECTRONIC CIGARETTES IN PLACES OF EMPLOYMENT
A. Smoking and use of electronic cigarettes shall be prohibited in all enclosed facilities within places 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.
B. This prohibition on smoking and use of electronic cigarettes shall be communicated to all existing employees by employers by the effective date of the ordinance codified in this chapter and to all prospective employees upon their application for employment. (Ord. 2018-43, Amended, 12/11/2018)
7-05-001-0005 REASONABLE DISTANCE
Smoking and use of electronic cigarettes are prohibited within a reasonable distance outside an opening to an enclosed area where smoking and use of electronic cigarettes are prohibited, so as to ensure that tobacco smoke does not enter the area through entrances, windows, ventilation systems, or other means. Such reasonable distance shall be a distance sufficient to ensure that persons entering or leaving the building shall not be subjected to breathing tobacco smoke and emissions from electronic cigarettes. All smoking receptacles shall be placed outside the no smoking area in order to discourage smoking and use of electronic cigarettes in these areas. (Ord. 2018-43, Amended, 12/11/2018)
7-05-001-0006 WHERE SMOKING AND USE OF ELECTRONIC CIGARETTES NOT REGULATED
Notwithstanding any other provision of this chapter to the contrary, the following areas shall be exempt from the provisions of Sections 7-05-001-0003 and 7-05-001-0004:
1. Private residences, except when used as a licensed childcare, adult day care, or health care facility.
2. Hotel and motel rooms that are rented to guests and are designated as smoking rooms and rooms for use of electronic cigarettes; provided, that not more than twenty percent (20%) of rooms rented to guests in a hotel or motel may be designated as smoking and for use of electronic cigarettes. Hotels and motels that have twenty-six (26) or fewer rooms that are rented to guests may designate a percentage of rooms as smoking and for use of electronic cigarettes and nonsmoking. The status of rooms as smoking and for use of electronic cigarettes or nonsmoking may not be changed except to permanently add nonsmoking rooms.
3. Outdoor areas of places of employment except those covered by the provisions of Section 7-05-001-0005.
4. Native American or other religious ceremony practice pursuant to the American Indian Religious Freedom Act of 1978, as amended.
5. Theatrical production sites, if smoking and use of electronic cigarettes are an integral part of the story in the theatrical production.
6. Medical research or treatment sites, if smoking and use of electronic cigarettes are integral to the research or treatment being conducted.
7. Private clubs.
8. Private and semiprivate rooms in nursing homes and long-term care facilities that are occupied by one (1) or more persons, all of whom are smokers or users of electronic cigarettes and have requested in writing to be placed in a room where smoking or use of electronic cigarettes is permitted; provided, that smoke and emissions from electronic cigarettes from these places does not infiltrate into areas where smoking and use of electronic cigarettes are otherwise prohibited under the provisions of this chapter. (Ord. 2018-43, Amended, 12/11/2018)
7-05-001-0007 DECLARATION OF ESTABLISHMENT AS NONSMOKING AND FREE FROM USE OF ELECTRONIC CIGARETTES
Notwithstanding any other provision of this chapter, an owner, operator, manager, or other person in control of a privately owned establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place and free from the use of electronic cigarettes. Smoking and use of electronic cigarettes shall be prohibited in any place in which a sign conforming to the requirements of Section 7-05-001-0008 is posted. (Ord. 2018-43, Amended, 12/11/2018)
7-05-001-0008 POSTING OF SIGNS
A. "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly and conspicuously posted in every public place and place of employment where smoking and use of electronic cigarettes are 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 and use of electronic cigarettes are prohibited by this chapter shall have posted at all primary public entrances a conspicuous sign clearly stating that smoking is prohibited.
C. All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited by this chapter by the owner, operator, manager, or other person having control of the area. (Ord. 2018-43, Amended, 12/11/2018)
7-05-001-0009 NONRETALIATION
No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or customer because that employee, applicant, or customer exercises any rights afforded by this Ordinance or reports or attempts to prosecute a violation of this Ordinance.
7-05-001-0010 ENFORCEMENT
A. This Ordinance shall be enforced by the Flagstaff City Manager or his or her authorized designee.
B. Any citizen who desires to register a complaint under this Ordinance may initiate enforcement with the Flagstaff City Manager or his or her designee.
C. An owner, manager, operator, or employee of an establishment regulated by this Ordinance shall inform persons violating this Ordinance of the appropriate provisions thereof.
D. Nothing in this ordinance shall be deemed to prevent or prohibit any person aggrieved by a violation of this ordinance to bring whatever legal remedies are available under state law.
7-05-001-0011 VIOLATIONS AND PENALTIES
A. A person who smokes or uses electronic cigarettes in an area where smoking and electronic cigarettes are prohibited by the provisions of this chapter shall be guilty of a petty offense, punishable by a fine not exceeding fifty dollars ($50.00).
B. 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 chapter shall be guilty of a petty offense, 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 three hundred dollars ($300.00) for each additional violation within one (1) year.
C. Each day on which a violation of this chapter occurs shall be considered a separate and distinct violation. (Ord. 2018-43, Amended, 12/11/2018)
7-05-001-0012 OTHER APPLICABLE LAWS
This chapter shall not be interpreted or construed to permit smoking or use of electronic cigarettes where it is otherwise restricted by other applicable laws. (Ord. 2018-43, Amended, 12/11/2018)
7-05-001-0013 LIBERAL CONSTRUCTION
This chapter shall be liberally construed so as to further its purposes.
7-05-001-0014 SEVERABILITY
If any provision, clause, sentence, or paragraph of this Ordinance or the application thereof to any person or circumstances shall be held invalid, that invalidity shall not affect the other provisions 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.
7-05-001-0015 EFFECTIVE DATE
This Ordinance shall be effective ninety (90) days from and after the date of its adoption (May 1, 2005).
(Ord.No. 2005-04; 02/01/2005)