Chapter 24.14
SMOKING AND VAPING IN PUBLIC PLACES
Sections:
24.14.010 Authority, applicability, and intent.
24.14.020 Adoption by reference of Chapter 70.160 RCW.
24.14.030 Definitions and local supplemental definitions relative to Chapter 70.160 RCW.
24.14.040 Smoking and vaping prohibited in public places and places of employment.
24.14.080 Enforcement procedures.
24.14.100 References to state law.
24.14.010 Authority, applicability, and intent.
A. The statutory authority for the adoption of this chapter is provided in Chapter 70.160 RCW, Smoking in Public Places, the amendments to Title 70 RCW set forth in 2016 Washington Laws, 64th Leg., First Special Session, Chapter 38, Vapor Products, and the authority of Chapter 70.05 RCW to preserve, promote, and improve the public health.
B. These regulations apply to the prohibition of smoking and the prohibition of use of vapor products in indoor public places and places of employment.
C. These regulations supplement but do not replace the regulations adopted by the United States Food and Drug Administration and the regulations enacted by the state of Washington and enforced by the Liquor and Cannabis Board regarding the licensure and regulation of vapor product promotions and sales at retail.
D. This regulation is not intended to restrict vaping in private facilities which are occasionally open to the public, except upon the occasions when a facility is open to the public.
E. This regulation does not preclude or prohibit any property owner from implementing “no smoking” and/or “no vaping” policies on, or within, any property or structures under their control.
F. Nothing contained in this regulation is intended to be nor shall be construed to create or form the basis for, any liability on the part of the Whatcom County health department or its officers, employees or agents, for any injury or damage resulting from the failure of any person subject to these rules and regulations to comply with these rules and regulations, or by reason or in consequence of any act or omission in connection with the implementation or enforcement of these rules and regulations on the part of the health department. (Ord. 2016-042 Exh. A).
24.14.020 Adoption by reference of Chapter 70.160 RCW.
Chapter 70.160 RCW, known as Smoking in Public Places, is adopted and incorporated in this chapter by reference. (Ord. 2016-042 Exh. A).
24.14.030 Definitions and local supplemental definitions relative to Chapter 70.160 RCW.
Pursuant to the authority provided by Chapter 70.160 RCW and for the sake of clarity in the application of Chapter 70.160 RCW, the following local supplemental definitions relative to certain terminology found in Chapter 70.160 RCW are adopted and the following specific definitions shall apply:
A. “Chapter” means a chapter in Whatcom County Code.
B. “County” means Whatcom County.
C. “Employee” means any individual who is employed by an employer in return for the payment of direct or indirect monetary wages, benefit, or profit, any individual who volunteers his or her services to an employer for no monetary compensation or any individual who performs work or renders services, for any period of time, at the explicit or implicit direction of an owner, shareholder, member, lessee or other person in charge of a place that is subject to the provisions of this chapter.
D. “Employer” means any person, sole proprietorship, partnership, corporation, association, nonprofit organization, or other entity of any kind that pays another person direct or indirect monetary wages, profit or provides any other benefit in consideration for such other person’s providing services on the premises of the employer. “Employer” shall also mean the owner(s), shareholders or member(s) respectively of a sole proprietorship, corporation or limited liability corporation, association, nonprofit organization, or other business entity.
E. “Health officer” means the health officer of Whatcom County, or the health officer’s designee.
F. “Indoor public place” means that portion of any building or vehicle used by and open to the public, regardless of whether the building or vehicle is owned in whole or in part by private persons or entities, the state of Washington, or other public entity, and includes a presumptively reasonable minimum distance, as set forth in WCC 24.14.050, of 25 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited. Public places include, but are not limited to: schools, elevators, public conveyances or transportation facilities, taxis, buses, for hire conveyances, museums, concert halls, theaters, auditoriums, exhibition halls, indoor sports arenas, hospitals, nursing homes, health care facilities or clinics, enclosed shopping centers, retail stores, retail service establishments, financial institutions, educational facilities, ticket areas, public hearing facilities, state legislative chambers and immediately adjacent hallways, public restrooms, libraries, restaurants, waiting areas, lobbies, bars, clubs, taverns, bowling alleys, skating rinks, casinos, reception areas, and no less than 75 percent of the sleeping quarters within a hotel or motel that are rented to guests. “Indoor public place” also means any public or private place that is open to the general public regardless of whether dues, cover charges or a fee is charged or there are restrictions such as an age requirement for the privilege of admission, and includes any place used by a membership association or club at which non-member guests are present or permitted. This chapter is not intended to restrict smoking in private facilities, which are occasionally open to the public except upon the occasions when the facility is open to the public. An indoor public place does not include a private residence unless the private residence is used to provide licensed childcare, foster care, adult care, or other similar social service care on the premises.
G. “Place of employment” means any area under the control of a public or private employer which employees are required to pass through during the course of employment, including, but not limited to: entrances and exits to the places of employment, and including a presumptively reasonable minimum distance, as set forth in WCC 24.14.050, of 25 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited; work areas; restrooms; conference and classrooms; break rooms and cafeterias; and other common areas. “Place of employment” also means an outdoor venue or workspace that is adjacent to or enjoined with a business enterprise or work environment where employees are required to pass through during the course of employment; including but not limited to food/drink service areas such as on decks or outdoor areas. A private residence or home-based business, unless used to provide licensed childcare, foster care, adult care, or other similar social service care on the premises, is not a place of employment.
H. “Retail outlet” means a place of business in Whatcom County from which vapor products are sold to customers, but does not include any business licensed or endorsed for the sale of recreational or medical marijuana by the state of Washington and/or the Washington State Liquor and Cannabis Board.
I. “Smoke” or “smoking” means the carrying, use or smoking of any kind of lighted, combustible, smoldering, or burning cigarette, pipe, cigar or other lighted smoking equipment including but not limited to tobacco, flavored tobacco products such as shisha, or marijuana.
J. “Tasting” means to try or taste a vapor product in a retail outlet where entry is restricted to persons 18 years of age or older.
K. “Vape” or “vaping” means the use of a vapor product, or the act of inhaling/exhaling the vapor or aerosol from a vapor product.
L. “Vapor product” means any: (1) device that employs a battery or other mechanism to heat a solution or substance to produce a vapor or aerosol intended for inhalation; (2) cartridge or container of a solution or substance intended to be used with or in such a device or to refill such a device; or (3) solution or substance intended for use in such a device, including, but not limited to, concentrated nicotine. “Vapor product” includes any electronic cigarettes, electronic nicotine delivery systems, electronic cigars, electronic cigarillos, electronic pipes, vape pens, steam stones, or similar products or devices, as well as any parts that can be used to build such products or devices. “Vapor product” does not include any drug, device, or combination product that has been approved by the United States Food and Drug Administration for legal sales for use as a smoking cessation product or other medical purposes, and is marketed and sold for such approved purpose. (Ord. 2016-042 Exh. A).
24.14.040 Smoking and vaping prohibited in public places and places of employment.
No person may smoke or use a vapor product in an indoor public place or in any place of employment except for the purpose of tastings within the premises of a vapor product retail outlet pursuant to amendments to Title 70 RCW set forth in 2016 Washington Laws, 64th Leg., First Special Session, Chapter 38, Vapor Products. (Ord. 2016-042 Exh. A).
24.14.050 Vaping prohibited within 25 feet of public places or places of employment – Application to modify presumptively reasonable minimum distance.
Use of vapor products is prohibited within a presumptively reasonable minimum distance of 25 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where use of vapor products is prohibited so as to ensure that vapor does not enter the area through entrances, exits, open windows, or other means. Owners, operators, managers, employers, or other persons who own or control a public place or place of employment may seek to rebut the presumption that 25 feet is a reasonable minimum distance by making application to the director of the local health department or district in which the public place or place of employment is located. The presumption will be rebutted if the applicant can show by clear and convincing evidence that, given the unique circumstances presented by the location of entrances, exits, windows that open, ventilation intakes, or other factors, vapor will not infiltrate or reach the entrances, exits, open windows, or ventilation intakes or enter into such public place or place of employment and, therefore, the public health and safety will be adequately protected by a lesser distance. (Ord. 2016-042 Exh. A).
24.14.060 Required signage.
In addition to requirements for signs prohibiting smoking as adopted by reference from Chapter 70.160 RCW, owners, or in the case of leased or rented space the lessee or other person in charge, of a place regulated under these regulations shall post signs prohibiting the use of vapor products. Signs shall be posted conspicuously at each building entrance. Signs prohibiting the use of vapor products may be combined with signs prohibiting smoking, such as “No Smoking. No Vaping.” or “No Smoking or Vaping Allowed.” or “No Smoking or Vaping Allowed within 25 Feet of Doorway or Entrance.” (Ord. 2016-042 Exh. A).
24.14.070 Tastings.
No retail outlet may offer a tasting of vapor products unless all of the following conditions are met.
A. The retail outlet is licensed by the state of Washington as a vapor product retailer pursuant to amendments to RCW Title 70 set forth in 2016 Washington Laws, 64th Leg., First Special Session, Chapter 38, Vapor Products, or is a vapor product retailer already in existence as of the effective date of the ordinance codified in this chapter that has applied to the state for a license within 30 days of the Washington State Liquor and Cannabis Board prescribing the form for an application for a license, is in the process of being so licensed, and whose application has not been denied.
B. Pursuant to amendments to RCW Title 70 set forth in 2016 Washington Laws, 64th Leg., First Special Session, Chapter 38, Vapor Products, the retail outlet restricts entry to its premises to persons 18 years or older, products are tasted only within the retail outlet’s premises and are not removed from within the premises by the customer, and a disposable mouthpiece tip or a disposable device is used if the customer is tasting from a vapor device owned and maintained by the retailer.
C. Except for the limited and immediate purpose of tasting a vapor product solution or testing a device, the retail outlet does not allow the consumption or use of any vapor products within its premises, including vapor products purchased for personal use from the retail outlet or brought into the retail outlet premises by any person, including employees. (Ord. 2016-042 Exh. A).
24.14.080 Enforcement procedures.
A. The health officer is authorized to enforce the restrictions and requirements of this chapter, including the imposition of civil penalties, in accordance with Chapter 24.07 WCC and the following subsections.
B. The health officer or his/her duly authorized inspector shall have the authority to seek entry and inspect any building, structure, property, or portion thereof, at reasonable times for the purposes of determining compliance with or enforcing the provisions of this chapter. The Whatcom County health department may work with the Washington State Liquor and Cannabis Board to conduct inspections to assure compliance. (Ord. 2016-042 Exh. A).
24.14.090 Severability.
Should any section, subsection, paragraph, sentence, clause or phrase of this chapter be declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining portions of this regulation. (Ord. 2016-042 Exh. A).
24.14.100 References to state law.
Any and all reference to state statutes are in effect as referenced above or as hereinafter amended by state authority. (Ord. 2016-042 Exh. A).
24.14.110 Effective date.
The ordinance codified in this chapter shall take effect and be in force 30 days after its passage. (Ord. 2016-042 Exh. A).