Chapter 8.30
SMOKING PROHIBITED IN WORKPLACES AND IN PUBLIC PLACES
Sections:
8.30.020 Smoking in public places and employee locations prohibited.
8.30.050 Administration and enforcement.
8.30.060 Violations and penalties.
8.30.010 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined herein:
“Business(es)” shall mean all sole proprietorships, partnerships, joint ventures, corporations, and other business entities, either for-profit or not-for-profit, including, but not limited to, retail establishments where goods or services are provided to the public, and other entities where accounting, counseling, legal, medical, dental, engineering, architectural, or other professional services are delivered.
“City” shall mean the City of Evansville, Indiana.
“Employee(s)” shall mean all persons who are employed by an employer in consideration for direct or indirect monetary wages or profit, and all persons who volunteer their services.
“Employee location(s)” shall mean all enclosed areas under the control of public or private employers that employees normally frequent during the course of their employment, including, but not limited to, work areas, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, cafeterias, hallways, and vehicles.
“Employer(s)” shall mean all persons, businesses, companies, partnerships, associations, municipal corporations, trusts, and not-for-profit entities that employ the services of one or more employees.
“Enclosed area(s)” shall mean all spaces closed in by roofs, ceilings, or other overhead coverings of any material, as well as by walls or other side coverings of any material on at least two sides of same, with appropriate openings for ingress and egress.
“Health care facility(ies)” shall mean all offices and institutions providing care for or treatment of diseases, whether physical, mental, or emotional, or other medical, rehabilitation hospitals, 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, as well as all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within same.
“Public place(s)” shall mean all enclosed areas, whether owned publicly or privately, to which the public is invited or in which the public is permitted.
“Retail tobacco store(s)” shall mean all retail stores that are not tobacco departments of larger commercial establishments (i.e., grocery stores, department stores, and discount stores) that:
(1) Are utilized primarily for the sale of tobacco and/or tobacco-related products including, but not limited to, cigarettes, cigars, tobacco, pipes, cigarette paper, and lighters; and
(2) Are not licensed for the consumption of meals or alcoholic beverages on the premises nor operated in conjunction with another business that is licensed for the on-premises consumption of meals or alcoholic beverages; and
(3) Are a retail store in which the sale of tobacco and tobacco-related products accounts for 66 percent or more of the store’s gross sales.
“Service line” shall mean any indoor line at which one or more persons are waiting for or receiving services of any kind.
“Shopping mall(s)” shall mean all enclosed public walkways or hall areas that serve to connect retail or professional establishments.
“Smoking” shall mean the carrying or holding of a lighted cigarette, cigar, pipe or any other lighted smoking item or equipment containing tobacco or any other herbaceous material, or the inhalation or exhalation of smoke from the same, but does not include incense or the burning of incense.
“Sports arena(s)” shall mean all sports pavilions, stadiums, athletic fields, gymnasiums, health spas, swimming pools, roller or ice rinks, bowling alleys, and other similar places where members of the public assemble to engage in physical exercise or recreation, participate in athletic competition, or witness sports or other events. [Ord. G-2006-10, passed 6-20-06. 1983 Code § 9.80.01.]
8.30.020 Smoking in public places and employee locations prohibited.
(A) Except as provided in EMC 8.30.030, smoking is prohibited in all public places within the City, including, but not limited to, the following:
(1) Elevators;
(2) Health care facilities;
(3) Laundromats;
(4) Licensed child care and adult care facilities;
(5) Lobbies, hallways, and all other common areas of apartment buildings, condominiums, retirement facilities, nursing homes, and other multiple-unit residential facilities;
(6) Buildings containing polling places;
(7) Public transportation facilities, including buses and taxicabs, and ticket boarding and waiting areas in public transit depots;
(8) Restrooms, lobbies, reception areas, hallways, and other common use areas;
(9) Service lines;
(10) Shopping malls;
(11) Sports arenas;
(12) All areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public.
(B) Smoking is prohibited in all employee locations within the City. This smoking prohibition shall be communicated by employers to all existing employees on or before the effective date of the ordinance codified in this chapter, and to all prospective employees upon their application for employment.
(C) Smoking is also prohibited within 25 feet outside any enclosed area where smoking is prohibited to ensure that tobacco smoke does not enter such enclosed area through entrances, windows, or ventilation. [Ord. G-2006-10, passed 6-20-06. 1983 Code § 9.80.02.]
8.30.030 Exemptions.
(A) The following establishments, areas and locations shall be exempt from the smoking prohibitions set forth in EMC 8.30.020:
(1) Private residences, except when used as licensed child care or adult day care facilities or as health care facilities.
(2) Any vehicle used by an employee while in the service of an employer when the vehicle is occupied only by the employee.
(3) Private vehicles when not being used in the service of an employer.
(4) Hotel and motel rooms that are rented to guests in a hotel or motel may be designated as “smoking rooms”; however, by January 2, 2010, no more than 20 percent of the rooms rented to guests in a hotel or motel may be designated as “smoking rooms.”
(5) Retail tobacco stores.
(6) Private and semiprivate rooms in nursing homes and long-term health care facilities that are occupied by one or more persons, all of whom have requested in writing to be placed in a room where smoking is permitted.
(7) Any bar or tavern that:
(a) Holds a beer, liquor and/or wine retailer’s permit under the laws of Indiana; and
(b) During all hours of operation allows no customer to enter therein who is under the age of 18; and
(c) Employs no person therein who is under the age of 18.
(8) Any business (or club) that:
(a) Is exempt from Federal income taxation under 26 USCA 501(c); and
(b) Is a “club” as that term is defined in IC 7.1-3-20-1, or a “fraternal club” as that term is defined by IC 7.1-3-20-7.
(9) A designated area within a business, which meets the following requirements:
(a) Is designated as a smoking area, and has a clear and conspicuous sign posted at every entrance to the area declaring it to be a smoking area and declaring that persons under the age of 18 are prohibited from entering said area; and
(b) The area designated as a smoking area shall not be a public place.
(10) A designated area within a restaurant, bar, or tavern which meets the following requirements:
(a) Is designated as a smoking area, and has a clear and conspicuous sign posted at every entrance to the area declaring it to be a smoking area; and declaring that persons under the age of 18 are prohibited from entering said area; and
(b) Allows no customers or employees under the age of 18 to enter the designated smoking area.
(c) The designated smoking area must be separated from the nonsmoking area by the following means:
(i) The designated smoking area is an enclosed space within the business, meaning that it is separated from nonsmoking areas by solid walls and ceilings, and is accessed by a doorway or passageway that does not exceed 60 inches in width, and which was in place on or before June 19, 2007.
(11) Any outdoor area connected to a restaurant, bar, or tavern in which seating is provided.
(12) Any area within a business which contains a garage or automotive sales or service area, and which contains overhead doors and is authorized or equipped for handling of exhaust from motor vehicles.
(B) Any business claiming an exemption pursuant to this section shall provide to any City official, within two business days from the date of demand, adequate written proof showing that it qualifies for the exemption claimed. Such written proof shall be certified under the penalties for perjury by an authorized representative of the business.
(C) All ashtrays and other smoking paraphernalia shall be removed from all public places and employee locations where smoking is prohibited by the owner, operator, manager or other persons having control of same.
(D) Notwithstanding any other provision of this chapter, any owner, operator, manager, or other person who controls any establishment or facility may declare that entire establishment or facility as a nonsmoking establishment. [Ord. G-2006-10, passed 6-20-06. 1983 Code § 9.80.03.]
8.30.040 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 has exercised any right afforded by this section or reports or attempts to prosecute any violation of this chapter. [Ord. G-2006-10, passed 6-20-06. 1983 Code § 9.80.04.]
8.30.050 Administration and enforcement.
(A) This chapter may be enforced by any of the following:
(1) The Executive Director of the Vanderburgh County Health Department or the designee(s) of said Director;
(2) Any person or department designated by the Mayor.
(B) Any citizen who desires to register a complaint under this chapter may do so through the office of the City Clerk.
(C) Owners, managers, and operators of businesses, public places and/or employee locations regulated by this chapter shall inform all persons located therein whom they observe smoking in violation of this chapter of the provisions of this section, and shall ask such persons to refrain from smoking in any area or location in which smoking is prohibited.
(D) It shall be the obligation and duty of the owner, manager or operator of any bar or tavern that elects to be exempted from the provisions of this chapter pursuant to EMC 8.30.030 to ensure that no person(s) under the age of 18 are allowed to enter therein in violation of this chapter. [Ord. G-2006-10, passed 6-20-06. 1983 Code § 9.80.10.]
8.30.060 Violations and penalties.
(A) Any person who engages in the act of smoking in a public place, employee location or in any other establishment, area or location wherein smoking is prohibited by this chapter, as well as any person who owns, manages, operates, or controls the same and who fails to comply with the provisions of this chapter, shall be subject to a fine not to exceed $50.00 for the first violation of this section in a calendar year, with all subsequent violations of this section in the same calendar year being subject to a fine of not less than $100.00 and not more than $500.00 for each such violation.
(B) In addition to the fines established by this chapter, the violation of this chapter by any person who owns, manages, operates, or controls any public place, employee location or any other establishment, area or location where smoking is prohibited by this chapter may result in the suspension or revocation of any permit or license issued to said person by the City for the premises in or on which the violation occurred.
(C) Each day on which a violation of this chapter occurs shall be considered a separate and distinct violation.
(D) If a judgment is entered against a defendant in an action to enforce this chapter, the defendant may perform community restitution or service (as defined in IC 35-41-1-4.6) instead of paying the monetary judgment for the ordinance violation if:
(1) The defendant and the attorney for the City agree to the defendant’s performance of community restitution or service instead of payment of a monetary judgment;
(2) The terms of the agreement described in subsection (D)(1) of this section:
(a) Include the amount of the judgment the City requests that the defendant pay under IC 34-28-5-4(e) for the ordinance violation if the defendant fails to perform the community restitution or service provided for in the agreement as approved by the court;
(b) Are recorded in a written instrument signed by the defendant and the attorney for the City;
(c) The agreement is filed in the court where the judgment was entered; and
(d) The court approves the agreement.
If a defendant fails to comply with an agreement approved by a court hereunder, the court shall require the defendant to pay up to the amount of the judgment requested in the action under IC 34-28-5-4(e) as if the defendant had not entered into an agreement hereunder. This provision is adopted under and shall be construed consistent with IC 34-28-5-1(g).
(E) This chapter shall be construed broadly to effectuate the purposes described herein. [Ord. G-2006-10, passed 6-20-06. 1983 Code § 9.80.11.]
8.30.070 Severability.
If any sections, sentences, or provisions of this chapter, or the application thereof to any person or circumstances shall be declared invalid, such invalidity shall not affect any of the other sections, sentences, provisions, or applications of this chapter which can be given effect without the invalid provision or applications, and to this end the provisions of the ordinance are deemed to be severable.
Effective date: January 2, 2007. [Ord. G-2006-10, passed 6-20-06. 1983 Code § 9.80.12.]