GASP of Colorado (Group to Alleviate Smoking Pollution)
Ordinance Grade: 5
Some local laws have provisions that are stronger than the Colorado Clean Indoor Air Act and provide better protection from exposure to secondhand smoke at work and in public places. GASP of Colorado rates local laws compared to the state law on a scale of zero to five. The highest and best rating is a five (click here for an explanation of our rating system). Any stronger provisions in the state law take precedence over any weaker local provisions so the state law should be reviewed first through these links: smokefreecolorado.org or gaspforair.org.
This is one of the strongest local laws when compared to the state law and receives GASPÕs highest ranking with protections from secondhand smoke in the following sections of the law.
Work Places: (8.24.040)
Employee and Customer Retaliation Prohibited: (8.24.130)
Restaurants and Bars: (8.24.010) definitions of public places and smoking appear to prohibit smoking in cigar and hookah bars.
Building Entrances and Perimeters: (8.24.060-90)
Outdoor Places: (8.24.060-80)
TOWN OF AVON, COLORADO ORDINANCE NO. 05-14 SERIES OF 2005
AN ORDINANCE AMENDING TITLE 8, AVON MUNICIPAL CODE, PROHIBITING
SMOKING IN CERTAIN PLACES, AND PROVIDING FINES FOR THE VIOLATION
WHEREAS, numerous studies have found that tobacco smoke is a major contributor to indoor air pollution and that breathing secondhand smoke is a cause of disease, including heart disease, respiratory disease and lung cancer. The National Cancer Institute determined in 1999 that secondhand smoke accounts for an estimated 53,000 deaths annually in the U.S. At special risk are children, elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and
WHEREAS, secondhand smoke has been classified as a Group A carcinogen equally hazardous as asbestos by the Environmental Protection Agency; and
WHEREAS, secondhand smoke contains more than 4,000 chemicals, including arsenic, formaldehyde, hydrogen cyanide and radioactive elements. More than 60 of these chemicals have been identified as carcinogenic; and
WHEREAS, studies have shown there is no safe level of exposure to secondhand smoke; and
WHEREAS7 the Town Council has determined that the best interests and the health7 safety and welfare of the citizens of, workers of, and visitors to the Town of Avon will be served by enacting regulations place and places of employments, as
Prohibiting smoking in public defined herein within the Town;
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO:
Section 1. Amendment. Title 8, Avon Municipal Code, is amended by the addition of a Chapter 8.24 to provide as follows:
The Town Council finds and declares that the purposes of this Chapter are (1) to protect the public health and welfare by prohibiting smoking in public places and places of employment;
(2) to guarantee the right to breathe smoke-free air, and 3) to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke.
The following words and phrases, whenever used in this Chapter, shall be construed as defined in this section:
Bar means a bar area of a restaurant or an establishment which is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of such beverages, including, but not limited to, taverns, nightclubs, and cocktail lounges. As used in this Chapter, the term bar shall include any outdoor seating or serving areas within the exterior walls, fences or otherwise defined limits thereof.
Business means any sole proprietorship, partnership, joint venture, corporation or other business entity, either for-profit or not-for-profit, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.
Commercial Bingo and Gaming Facility means premises used for the purpose of conducting games of chance.
Employee means any person who is employed by any employer for direct or indirect monetary wages or profit and any person who volunteers his or her services for a non-profit or business entity.
Employer means any person, partnership, corporation or other business entity, including municipal corporations or non-profit entities, which employs the services of one or more individual persons.
Enclosed Area means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of doors or passage ways) which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid "office landscaping" or similar structures.
Place of Employment means any 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 areas, employee lounges, restrooms, conference rooms and classrooms, employee cafeterias, private clubs and hallways.
Place of employment includes all bars and restaurants. 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 organization, whether incorporated or not, which is the owner, lessee, or occupant of a building or portion thereof used exclusively for club purposes at all times, which is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain, and which only sells alcoholic beverages incidental to its operation.
A Private Club shall not include an establishment that is open to members of the general public upon payment of a nominal fee. A Private Club must have established bylaws and/or other written operating standards to govern its activities, including written definitions and descriptions of its membership policies, including a description of eligibility for membership. A Private Club must administer its membership system consistent with adopted policies and must maintain a written list of current members. A Private Club must structure its memberships so as to provide for membership status to be ongoing as opposed to one-time, weekly or incidental memberships. A Private club must charge a fee or membership in an amount intended to defray the ongoing cost of providing services to members as opposed to a "cover charge" or other nominal fee intended to pay for a single night's or week's entertainment. A Private Club must have been granted an exemption from the payment of federal income tax as a club under 26 U.S.C. Section 501. A Private Club must not be open to the general public, although infrequent, occasional public functions are permissible so long as they constitute an insignificant proportion of the establishment's operation and so long as smoking is prohibited during any such public function. A Private Club must be physically separate from any public place.
Public Place means any enclosed area to which the public is invited or in which the public is permitted, including but not limited to, banks, commercial bingo and gaming facilities, convention halls, covered parking structures, public or private educational facilities, childcare, adult daycare or medical or healthcare facilities, guest rooms in any commercial lodging establishment, laundromats, performance halls, polling places, professional offices, public transportation facilities and vehicles, reception areas, restaurants, bars, retail food production and marketing/grocery establishments, retail service establishments, retail stores and theaters; every room, chamber, places of meeting or public assembly; all areas of an establishment that are open to, or customarily used by, the general public, including but not limited to elevators, restrooms, lobbies, reception areas, hallways, waiting rooms and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes and other multipleunit residential facilities. A private residence, only when in use as a childcare, adult daycare, or healthcare facility is a Public Place. A Private Club is not a Public Place unless it is being used for a function, to which the general public is invited.
Recreational Facility means indoor or outdoor sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys, fairgrounds, skate parks, soccer fields, ball fields, playgrounds and other venues similar to those listed above where members of the general public assemble either to engage in physical exercise, participate in athletic competition or witness sports or other events, including all the spectator stands for such events. Recreational Facility shall not include the outdoor parking lots of said facilities; however, smoking in said parking lots remains subject to the smoke free perimeter requirements set forth in Section 8.24.070 hereunder.
Restaurant means any coffee shop, cafeteria, sandwich stand, open food stand, private and public school cafeteria and any other eating establishment which gives or offers food to the public, guests or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities, except that Restaurant shall not include a cocktail lounge or tavern if said cocktail lounge or tavern is a bar as defined above. A facility shall conclusively be considered to be a Restaurant for the purposes of this Chapter, regardless of the category of liquor license under which that facility operates, if such facility: ( a) serves malt, vinous, and/or spirituous liquors; and (b) includes a restaurant, as defined by C.R.S. 12-47- 103(30), or operates a kitchen used for preparing meals, as defined by C.R.S. 12-47-103(20). As used in this Chapter, Restaurant shall include any outdoor seating or serving areas within the exterior walls, fences or otherwise defined limits thereof.
Retail Tobacco Store means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental. Service Line means any indoor and outdoor line at which one (1) or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money, including but not limited to, movie ticket lines, theater lines, concert lines, sporting events lines, food vendor lines, lift ticket lines, and chair lift/gondola lines. For purposes of this Chapter,
Service Line as it relates to chair lift/gondola lines shall include both the line to embark on a chair lift/gondola and the time spent riding the chair lift/gondola until disembarking. Smoking means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, or other lighted plant or combustible substance in any manner or in any form.
Smoke-free describes an establishment, facility or the premises controlled by said establishment or facility that has been declared to be a place in which smoking is prohibited, whether by the terms of this Chapter or by the owner or operator of said establishment or facility.
8.24.030. Application of Chapter to Town-Owned Facilities. All facilities including buildings and vehicles owned by the Town of Avon shall be subject to the provisions of this Chapter. No person shall smoke in any motor vehicle owned or operated by Town of Avon; in any public meeting room or during any public meeting held in any building owned or operated by the Town of Avon; or in any entrance way, steps, porticos or other area adjacent to, but which is on the exterior of, a building owned or operated by the Town of A von except as set forth herein or as otherwise designated as an allowed outside smoking area by the Town Manager.
8.24.040. Smoking in Public Places Prohibited. It is unlawful to smoke in any public place within the Town of Avon, except as expressly permitted by Section 8.24.100 hereof.
8.24.050. Smoking in Places of Employment Prohibited.
(a) It is unlawful to smoke in any enclosed facility within any Place of Employment, including common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, covered parking garages, hallways, medical facilities, clinics, cafeterias, employee lounges, stairs, restrooms and any other enclosed facility.
(b) This prohibition on smoking in Places of Employment shall be communicated to all existing employees prior to the effective date of the ordinance codified in this Chapter and to all prospective employees upon their application for employment.
8.24.060. Smoking in Service Lines Prohibited. It is unlawful to smoke in any Service Line or within twenty-five (25) feet of any Service Line.
8.24.070. Smoking at Recreational Facilities Prohibited. It is unlawful to smoke in any Recreational Facility or within twenty-five (25) feet of any Recreational Facility.
8.24.080. Smoking at Outdoor Seating Areas Prohibited. It is unlawful to smoke within the exterior walls, fences or otherwise defined limits of an outdoor seating or serving area of a Restaurant or Bar or within twenty-five (25) feet thereof.
8.24.090. Smoking within Smoke-free Perimeter Prohibited. It is unlawful to smoke within twenty-five (25) feet outside of an entrance, passageway, operable window, ventilation system or other opening of an enclosed smoke-free area.
8.24.100. Where Smoking is Not Prohibited. (a) Notwithstanding any other provision of this Chapter to the contrary, the following areas shall not be a violation of this Chapter:
(1) Private residences, except when used as a childcare, adult care or healthcare facility.
(2) Hotel and lodge rooms that are rented to guests and are designated as smoking rooms; provided, however, that not more than ten percent (10%) of rooms rented to guests in a hotel or lodge may be so designated. All smoking rooms on the same floor must be contiguous and smoke from these rooms must not infiltrate into areas where smoking is prohibited under the provisions of this Chapter. The status of rooms as smoking or nonsmoking may not be changed except to add additional nonsmoking rooms. Employees of such establishments must be notified in the hiring process that the establishment is not a Smoke-free Place of Employment.
(3) Retail tobacco stores, provided that smoke does not infiltrate into areas where smoking is prohibited under the provisions of the Chapter and provided that employees of such establishments are notified in the hiring process that the establishment is not a Smoke-free Place of Employment.
(4) Outdoor areas of Places of Employment except as prohibited by Sections
(5) Private Clubs that have no employees, except when being used for a function to which the general public is invited.
(6) Outdoor, uncovered parking lots for upper levels of parking garages meeting the perimeter requirements of Sections 8.24.06Q through 8.24.090 hereof.
(7) Smoking by performers as part of a stage production at a facility primarily used for exhibiting drama performances.
(b) Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment described in this section may declare the entire establishment, facility or grounds Smoke-free.
8.24.110. Posting of Signs. Signs indicating that smoking is prohibited, or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it) shall be clearly and conspicuously posted in every building or other areas where smoking is prohibited by this Chapter or by the owner, operator, manager or other person having control of such building or other area.
8.24.120. Enforcement. (a) Enforcement of this Chapter shall be implemented and enforced by the Police Department, the Community Service Officer or his or her authorized representative, or both. (b) Any person who desires to register a complaint under this chapter may initiate enforcement with the Town of Avon Police Department. (c) Any Town of Avon Police Officer or the Community Service Officer may inspect for compliance with this Chapter while an establishment is undergoing otherwise mandated inspections by the Town or by Eagle County. (d) Any owner, manager, operator or employee of any establishment regulated by this Chapter shall inform persons violating provisions of this Chapter of the appropriate provisions thereof and request their compliance. (e) Notwithstanding any other provision of this Chapter, an Employee or private citizen may bring legal action to enforce the provision hereof.
8.24.130. Retaliation Prohibited. (a) It shall be unlawful for any Employer to discharge, refuse to hire or retaliate in any manner against any Employee or applicant for employment because such Employee or applicant for employment exercises any rights afforded by this Chapter or reports or attempts to prosecute a violation of this Chapter. (b) It shall be unlawful for any person to retaliate in any manner against any customer because such customer exercises any rights afforded by this Chapter or reports or attempts to prosecute a violation of this Chapter.
8.24.140. Violations and Penalties.
(a) It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this Chapter to allow or condone smoking in a prohibited location within such premises or otherwise fail to comply with any of the provisions of this Chapter.
(b) It is unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this Chapter.
(c) Any person who owns, manages, operates or otherwise controls the use of any premises or any other person who violates any provision of this Chapter shall be guilty of a violation of this Chapter, punishable by:
(1) A fine not exceeding one hundred dollars ($100) for a first violation.
(2) A fine not exceeding two hundred dollars ($200) for a second violation.
(3) A fine not exceeding five hundred dollars ($500) for each additional violation.
(d) Violation of this Chapter is hereby declared to be a public nuisance, which may be abated by the Town by restraining order, preliminary and permanent injunction, or other means provided for by law, and the Town may take action to recover the costs of the nuisance abatement.
(e) Each day of continuing violation shall be deemed to be a separate violation. (f) Notwithstanding any other provision of this Chapter, an Employee or private citizen may bring legal action to enforce the provisions of this Chapter.
8.24.150. Public Education. The Town, alone or in cooperation with Eagle County, may engage in a continuing program to explain and clarify the purposes and requirements of this Chapter to citizens affected by it and to guide owners, operators and managers in their compliance with it. Such program may include publication of a brochure for affected businesses and individuals explaining the provisions of this Chapter. However, the provision of such an educational program shall not be a prerequisite to the applicability of the terms and conditions herein.
8.24.160. Other Applicable Laws. This Chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.
8.24.170. Liberal Construction. This Chapter shall be liberally construed so as to further its purposes. Section 2. Severability. If any provision, clause, sentence or paragraph of this Ordinance or the application thereof to any person or circumstances shall be held invalid, such 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.
Section 3. Effective Date. This Ordinance shall be effective sixty (60) days from and after the date of its adoption on final reading.
Section 4. Penalties. It is unlawful for any person to violate any of the provisions of this Ordinance. Every person convicted of a violation of any of the provisions of this Ordinance shall be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding one year or by both such fine and imprisonment.