Chapter 8.24
SMOKING PROHIBITED IN WORK PLACES AND IN PUBLIC PLACES
Sections:
8.24.020 Smoking in Public Places and Employee Locations Prohibited.
8.24.070 Violations and Penalties.
8.24.010 Definitions
The following words and phrases, wherever 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.
“County” shall mean Vanderburgh County, 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.
“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.
“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.
“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 (2) 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, semi-private 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% or more of the store’s gross sales.
“Service Line” shall mean any indoor line at which one (1) 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.
(Amended 6/13/2006, Added 2/08/1999)
8.24.020 Smoking in Public Places and Employee Locations Prohibited
A. Except as provided in Section 8.24.03 below, Smoking is prohibited in all Public Places within the County, 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 non-profit entities patronized by the public.
B. Smoking is prohibited in all Employee Locations within the County. This Smoking prohibition shall be communicated by Employers to all existing Employees on or before the effective date of this Ordinance, and to all prospective Employees upon their application for employment.
C. Smoking is also prohibited within ten (10) feet outside any Enclosed Area where Smoking is prohibited to ensure that tobacco smoke does not enter any such Enclosed Area through entrances, windows, ventilation systems, or any other means.
D. 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.
(Ord. 01-11-002 § 1, amended 02/22/11; Amended 6/13/2006, Added 2/08/1999)
8.24.030 Exemptions
A. The following establishments, areas and locations shall be exempt from the Smoking prohibitions set forth in Section 8.24.02 above, provided that no smoke from Smoking activities conducted therein or thereon enters any area or location in which Smoking is otherwise prohibited by said Section, to-wit:
1. Private residences, except when used as licensed child care or adult day care facilities or as Health Care Facilities.
2. Any vehicle, other than a vehicle described in Subsection 8.24.020 (A) (7), used by an Employee while in the service of an Employer when the vehicle is occupied only by that Employee.
3. Private vehicles when not being used in the service of an Employer.
4. Hotel and motel rooms that are rented to guests and are designated as “smoking rooms,” provided that the following shall be the maximum number of the rooms that can be rented to guests in any hotel or motel that are designated as “smoking rooms,” which maximum shall be forty percent (40%) of all rentable rooms as of January 2, 2007, thirty percent (30%) of all rentable rooms as of January 2, 2008, and twenty percent (20%) of all rentable rooms on and after January 2, 2009.
5. Retail Tobacco Stores.
6. Private and semi-private rooms in nursing homes and long-term Health Care Facilities that are occupied by one (1) 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 eighteen (18) or limits access by any customer who is under the age of eighteen (18) to a separate area or areas “Under Age Eighteen (18) Area(s)” that is/are physically separated from the remaining area of any such bar or tavern by a solid floor to ceiling wall accessed from such remaining area only by a doorway or arch that does not exceed sixty (60) inches in width; and
c. Employs no person therein who is under the age of eighteen (18).
Provided that no Smoking shall be permitted in any Under Age Eighteen (18) Area(s). It is further provided that this exemption shall lapse and be of no further effect on and after July 1, 2011.
8. Any Business or club that:
a. Is exempt from federal income taxation under 26U.S.C.50l(c); and
b. Is a “club” as that term is defined in I.C. 7.1-3-20-1, or a “fraternal club” as that term is defined by I.C. 7.1-3-20-7; and
c. Holds a beer, liquor and/or wine retailer’s permit under the laws of Indiana; and
d. Provides food or alcoholic beverages only to its bonafide members and their guests; and
e. During all hours of operation, allows no member or guest of a member to enter therein who is under the age of eighteen (18) or limits access by any member or guest of a member who is under the age of eighteen (18) to a separate area or areas “Under Age Eighteen (18) Area(s)” that is/are physically separated from the remaining area of any such Business or club by a solid floor to ceiling wall accessed from such remaining area only by a doorway or arch that does not exceed sixty (60) inches in width; and
f. Employs no person therein who is under the age of eighteen (18).
Provided that no Smoking shall be permitted in any Under Age Eighteen (18) Area(s). It is further provided that this exemption shall lapse and be of no further effect on and after July 1, 2011.
9. 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 the handling of exhaust from motor vehicles.
B. Any Business or club claiming an exemption pursuant to this Section shall provide to any County official, within two (2) 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 or club. It is further provided that this exemption shall lapse and be of no further effect on and after July 1, 2011.
(Ord. 01-11-002 §§ 2, 3, amended 02/22/11; 8.24.030 (A) (2), (7) & (8) amended 1/13/2009, Amended 6/13/2006, Added 2/08/1999)
8.24.040 Signage
A. The owner, manager, operator or person otherwise in control of any building or establishment in which is located an Employee Location, Public Space or any other area or location wherein Smoking is prohibited by this Chapter shall post signs, with letters of not less than one-half inch high or symbols of not less than two inches high, using the words “No smoking” or the international “No Smoking” symbol consisting of a pictorial representation of a burning cigarette surrounded by a red circle with a red bar across it; which shall be located conspicuously either on all public and Employee entrances or in a position clearly visible on entry into any such building or establishment.
B. The owner, manager, operator or person otherwise in control of a building or establishment described in Subsection 8.24.040(A) shall inform persons violating this Chapter of the applicable provisions thereof and require compliance.
C. The requirements of Subsection 8.24.040(A) do not apply to any establishment, area or location described in Subsection 8.24.030 except as follows:
1. Any bar or tavern that meets the requirements of Subsection 8.24.030(A)(7) but does not have an Under Age Eighteen (18) Area and any Business or club that meets the requirements of Subsection 8.24.030(A)(8) but does not have an Under Age Eighteen (18) Area shall clearly and conspicuously post a sign (meeting the size requirements set forth in Subsection 8.24.040(A)) at every entrance which reads “Warning: This is a Smoking Establishment.”
2. Any bar or tavern that meets the requirements of Subsection 8.24.030(A)(7) and has an Under Age Eighteen (18) Area and any Business or club that meets the requirements of Subsection 8.24.030(A)(8) and has an Under Age Eighteen (18) Area shall post a sign (meeting the size requirements set forth in Subsection 8.24.040(A)) in a position clearly visible on entry into any such bar, tavern, Business or club which reads “NO SMOKING SHALL BE PERMITTED INSIDE THIS FACILITY EXCEPT OUTSIDE THE UNDER AGE EIGHTEEN (18) AREA” and a similar sign on any door leading into an Under Age Eighteen (18) Area which reads “NO SMOKING SHALL BE PERMITTED BEYOND THIS POINT IN THE REMAINING INTERIOR PORTIONS OF THIS FACILITY.”FACILITY.””
(Added 8.24.040 10/24/2006)
8.24.050 Non-Retaliation
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.
(Amended 6/13/2006, Added 2/08/1999)
8.24.060 Enforcement
A. This Chapter may be enforced by any of the following:
1. Members of the Vanderburgh County Sheriff’s Department;
2. The Chief of the Evansville Fire Department or the designee(s) of such Chief;
3. The Director of the Department of Metropolitan Development, Code Enforcement, or the Director’s designee(s);
4. The Building Commissioner or the designee(s) of such Building Commissioner;
5. The Executive Director of the Vanderburgh County Health Department or the designee(s) of said Executive Director;
6. Any person or department designated by the Board of Commissioners of Vanderburgh County.
B. Any citizen who desires to register a complaint under this Chapter may do so through the office of the Vanderburgh County Clerk if the citizen is a resident of the County whose place of residence is outside the corporate boundaries of the City of Evansville, Indiana, and otherwise through the office of the Evansville 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 Chapter, 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 Section 8.24.03 hereof, to ensure that no person(s) under the age of eighteen (18) are allowed to enter therein in violation of this Chapter.
(Added 6/13/2006)
8.24.070 Violations and Penalties
A. Any person who engages in the act of Smoking in any 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 Fifty Dollars ($50.00) for the first violation of this Chapter in a calendar year, with all subsequent violations of this Chapter in the same calendar year being subject to a fine of not less than One Hundred Dollars ($100.00) and not more than Five Hundred Dollars ($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 County 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. This Chapter does not and shall not be interpreted as permitting Smoking in any establishment, area or location where it is otherwise restricted by any other applicable law, nor to prohibit any property owner from imposing on his property a smoking ban that is more restrictive than that imposed by this Chapter.
E. 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 I.C. 35-41-1-4.6) instead of paying the monetary judgment for the ordinance violation if:
1. the defendant and the attorney for the County agree to the defendant’s performance of community restitution or service instead of the payment of a monetary judgment;
2. the terms of the agreement described in (1) above:
a. include the amount of the judgment the County requests that the defendant pay under I.C. 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; and
b. are recorded in a written instrument signed by the defendant and the attorney for the County;
c. the agreement is filed in the court where the judgment was entered; and
3. 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 I.C. 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 I.C. 34-28-5-1(g).
E. This Chapter shall be construed broadly to effectuate the purposes described herein.
(Added 6/13/2006)
8.24.080 Severability
If any Section(s), sentence(s), or provision(s) of this Ordinance, or the application thereof to any person or circumstances shall be declared invalid, such invalidity shall not affect any of the other Section(s), sentence(s), provision(s), or application(s) of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are deemed to be severable.”
(Added 6/13/2006)
8.24.090 Effective Date
This Ordinance shall be in full force and effect on January 2, 2007, prior to which effective date and following passage by the Board of Commissioners of Vanderburgh County, this Ordinance shall be published once each week for two (2) consecutive weeks as provided in I.C. 5-3-1.
(Added 6/13/2006)