San Luis 2007

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 GASP’s highest ranking with protections from secondhand smoke in the following sections of the law.

Work Places: (90.40.060)

Employee or Customer Retaliation Prohibited: (90.40.080-e)

Restaurants and Bars: (90.40.080-8 and 11) definitions of public places and smoking appear to prohibit smoking in cigar and hookah bars.

Building Entrances and Perimeters: (90.40.080)

Outdoor Places: (90.40.070)

SAN LUIS ORDINANCE NO. 2007-5

AN ORDINANCE RESTRICTING SMOKING IN PUBLIC PLACES

WHEREAS, the Colorado General Assembly House Bill 06-1175 prohibiting smoking in indoor enclosed areas, including places of employment, on March 20, 2006; and

WHEREAS, such legislation specifically authorized municipalities to enact regulations covering the same subject matter contained in such legislation;

NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF SAN LUIS, COLORADO: Title 9, Public Peace, Morals and Welfare, of the San Luis Town Code is hereby amended to read as follows:

Chapter 9.40

SMOKING RESTRICTED IN PUBLIC PLACES

Sec. 9.40.010. Short title. This article shall be known and may be cited as the “Smoking Restricted in Public Places Ordinance."

Sec. 9.40.020. Legislative intent. The Board of Trustees finds, determines, and declares that the smoking of tobacco or of any other plant or weed in certain areas is a form of air pollution that threatens the health, safety, and welfare of the public. The Board of Trustees has further determined that secondhand smoke is a cause of disease, including lung cancer, heart disease, respiratory infection, and decreased respiratory function and as such there is no safe level of exposure to secondhand smoke. The Board of Trustees deems it necessary to prohibit smoking in common areas, public places, and work places, except as smoking is otherwise permitted by this article. The provisions of this article shall not apply to a residential dwelling unit. This ordinance is intended to enact and adopt smoking regulations that are to be enforced in the San Luis Municipal Court that cover the same subject matter as the various provisions of the Colorado Clean Indoor Air Act (HB 06-1175, Part 2 of Article 14, Title 25 C.R.S.).

Sec. 9.40.030. Definitions

The following words and phrases, whenever used in this article, shall be construed as defined in this section:

1. “Attached Bar” means a bar area of a restaurant. An “attached bar” for the purposes of this ordinance shall not include any area where full meals are served, but may include the service of appetizers and snacks. Although a restaurant may contain a bar, the term “bar” shall not include the restaurant dining area.

2. “Freestanding Bar” means 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, cocktail lounges, and cabarets.

3. “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.

4. “Employee” means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a non-profit or business entity.

5. “Employer” means any person, partnership, corporation, including a municipal corporation, or non-profit entity, which employs the services of one or more individual persons.

6. “Enclosed Area” means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door 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.

7. “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.

8. “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 facilities, convention halls, 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, attached and freestanding bars, retail food production and marketing/grocery establishments, retail service establishments, retail stores, retail tobacco stores, service lines, theaters, sports arenas; 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 multiple-unit residential facilities. A private residence when used as a childcare, adult daycare, or healthcare facility. A private club is a public place.

9. “Restaurant” means any coffee shop, cafeteria, sandwich stand, private and public school cafeteria, and any other eating establishment which gives or offers for sale 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 the term “restaurant” shall not include a cocktail lounge or tavern if said cocktail lounge or tavern is a “bar” as defined in Section 9.40.030 (2). A facility shall conclusively be considered to be a “restaurant” for the purposes of this ordinance, 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(3), or operates a kitchen used for preparing meals, as defined by C.R.S. 12-47-103(120).

10. “Service Line” means any indoor 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.

11. “Smoking” means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, or other lighted tobacco product in any manner or in any form.

12. "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. The affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting. The organization has established bylaws and/or a constitution to govern its activities. The organization has been granted an exemption from the payment of federal income tax as a club under 26 U.S.C. Section 501.

13. “Sports Arena” means 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 either to engage in physical exercise, participate in athletic competition, or witness sports or other events.

14. “Commercial bingo facility” means premises used for the purpose of conducting games of chance.

15. “Smoke-free” means that air in an establishment is totally free of tobacco smoke.

Sec. 9.40.040. Application of Article to Town-Owned Facilities

All enclosed facilities including buildings and vehicles owned by the Town of San Luis shall be subject to the provisions of this Article.

Sec. 9.40.050. Prohibition of Smoking in Public Places

A. Smoking shall be prohibited in all public places within the Town of San Luis except as otherwise expressly permitted in this Article.

B. Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility may declare that entire establishment, facility or grounds as smoke-free.

Sec. 9.40.060. Prohibition of Smoking in Places of Employment

A. Smoking 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 shall be communicated to all existing employees by the effective date of this Article and to all prospective employees upon their application for employment.

C. All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee.

Sec. 9.40.070. Prohibition of Smoking in Outdoor Arenas and Stadiums

Smoking shall be prohibited in all areas of all outdoor arenas, stadiums, and amphitheaters.

Sec. 9.40.080. Smoke-free Perimeter

Smoking shall not occur within 15 feet outside of an enclosed area to ensure that tobacco smoke does not enter the area through entrances, windows, ventilation systems or any other means.

Sec. 9.40.090. Where smoking is not regulated

A. Notwithstanding any other provision of this Article to the contrary, the following areas shall be exempt from Sec. 9.40.050:

1. Private residences, except when used as a childcare, adult care or healthcare facility.

2. Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided, however, that not more than twenty-five percent (25%) of rooms rented to guests in a hotel or motel 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 Article. The status of rooms as smoking or nonsmoking may not be changed, except to add additional nonsmoking rooms.

3. Outdoor areas of places of employment except those covered in Section 9.07 of this Article.

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 as smoke-free.

Sec. 9.40.100. Enforcement & Penalties

A. Enforcement of this article shall be implemented by the San Luis Police Department.

B. Notice of the provisions set forth in this article shall be given to all applicants for a business license in the Town of San Luis.

C. Any person who desires to register a complaint under this chapter may initiate a complaint with the San Luis Police Department.

D. Any owner, manager, operator, or employee of any establishment regulated by this article shall inform persons violating this article of the appropriate provisions thereof and request their compliance.

E. No person or employer shall discharge, refuse to hire or retaliate in any manner against any employee, applicant for employment, or customer because such employee, applicant, or customer exercises any right to a smoke-free environment afforded by this article.

F. It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this ordinance to fail to comply with any of its provisions.

G. It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this ordinance. H. Any person who violates or any entity which violates any provision of this article shall be guilty of an infraction, punishable by:

1. A minimum fine of two-hundred dollars ($200) for the first violation.

2. A minimum fine of three hundred dollars ($300) for the second violation.

3. A minimum fine of five hundred dollars ($500) for each additional violation of this article.

4. Each day of continuing violation shall be deemed to be a separate violation.

Sec. 9.40.110. Other Applicable Laws

This Article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.

Sec. 9.40.120. Severability

If any provision, clause, sentence or paragraph of this Article or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this Article which can be given effect without the invalid provision or application, and to this end the provisions of this Article are declared to be severable.

Sec. 9.40.130. Effective Date

This Article shall be effective thirty (30) days from and after the date of its adoption.