Smoking Ordinance

Many St. Joseph County residents would like to see a comprehensive tobacco ordinance that includes all restaurants and bars thereby protecting all workers.

If you would like to see a stronger, comprehensive ordinance, please complete the form in the Contact Us section. In the Question/Comment field, please indicate your support for a comprehensive ordinance.

Bill No. 83-05

As Amended

Ordinance No. ________

AN ORDINANCE OF THE ST JOSEPH COUNTY COUNCIL RESTRICTING SMOKING OF TOBACCO IN CERTAIN PLACES AND ESTABLISHING PENALTIES FOR VIOLATIONS THEREOF

WHEREAS, numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke (also known as environmental tobacco smoke) is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory disease, and lung cancer. The National Cancer Institute determined in 1999 that secondhand smoke is responsible for the early deaths of up to 65,000 Americans annually. (National Cancer Institute (NCI), "Health effects of exposure to environmental tobacco smoke: the report of the California Environmental Protection Agency. Smoking and Tobacco Control Monograph 10, Bethesda, MD: National Institutes of Health, National Cancer Institute (NCI), August 1999.)

WHEREAS, secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. Children exposed to secondhand smoke have an increased risk of asthma, respiratory infections, sudden infant death syndrome, developmental abnormalities, and cancer. (California Environmental Protection Agency (Cal EPA), "Health effects of exposure to environmental tobacco smoke", Tobacco Control 6(4): 346-353, Winter, 1997.)

WHEREAS, the Americans With Disabilities Act, which requires that disabled persons have access to public places and workplaces, deems impaired respiratory function to be a disability; and therefore requires access to public places and workplaces to those suffering from their impairment. (Daynard, R.A., "Environmental tobacco smoke and the Americans With Disabilities Act," Nonsmokers’ Voice 15(1): 8-9.)

WHEREAS, the U.S. Surgeon General has determined that the simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, the exposure of nonsmokers to secondhand smoke. (Department of Health and Human Services, The Health Consequences of Involuntary Smoking. A Report of the Surgeon General. Public Health Service, Centers for Disease Control, 1986.)

WHEREAS, a significant amount of secondhand smoke exposure occurs in the workplace. Employees who work in smoke-filled businesses suffer a 25-50% higher risk of heart attack and higher rates of death from cardiovascular disease and cancer, as well as increased acute respiratory disease and measurable decrease in lung function. (Pitsavos, C; Panagiotakos, D.B.; Chrysohoou, C.; Skoumas, J.; Tzioumis, K. Stefanadis, C.; Toutouzas, P. "Association between exposure to environmental tobacco smoke and the development of acute coronary syndromes; the CARDIO2000 case-control study," Tobacco Control 11(3): 220-225, September 2002.)

WHEREAS, smoke-filled workplaces result in higher worker absenteeism due to respiratory disease, lower productivity, higher cleaning and maintenance costs, increased health insurance rates, and increased liability claims for disease related to exposure to secondhand smoke. ("The high price of cigarette smoking," Business & Health 15(8), Supplement A: 6-9, August 1997.)

WHEREAS, the County Council of St Joseph County and the St. Joseph County Health Department are responsible for the health, safety and welfare of the citizens of St. Joseph County; and

WHEREAS, the smoking of tobacco and breathing second hand smoke is detrimental to the health, safety and welfare of the citizens of St. Joseph County; and

WHEREAS, the reasonable regulation of the smoking of tobacco is necessary to protect the health, safety and welfare of the citizens of St. Joseph County; and

Accordingly, the St. Joseph County Council finds and declares the purpose of this ordinance is to protect the public health, safety and welfare of the citizens of St. Joseph County by prohibiting smoking in certain public places and places of employment in St. Joseph County.

NOW, THEREFORE, BE IT HEREBY ORDAINED BY THE ST. JOSEPH COUNTY COUNCIL THAT:

SECTION 1. Definitions Changed to alphabetical order

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

1. "Bar" or "Tavern" means an establishment that must:
   1. possess a valid alcoholic beverage license under the State of Indiana;
   2. allows no patron or employee under age 18 to enter at any time; and
   3. employs no person under the age of 18; and
   4. provides written notice as a part of its annual application for retail food establishment license to the Health Department that it intends to allow smoking, intends to serve only patrons over the age of 18, and that this election may be made only twice a year (other than an initial enrollment period of three months after the effective date of this Ordinance.)
   5. if located within a building with a business required to be smoke-free by this Ordinance, the establishment must be located on a separate floor, or on the same floor but separated from the business required to be smoke-free by walls, windows or closeable doors, and allows no patron or employee under the age of 18.
2. "Business" means any sole proprietorship, partnership, joint venture, corporation or other business entity either for profit-making purposes or not-for-profit, including, but not limited to, retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, accounting, insurance, financial, architectural or other professional services are delivered, sold or offered to the public.
3. "Employee" means any person who is employed by any employer for direct or indirect monetary wages or profit, including those employed full-time, part-time, on a temporary basis, or by contract through a third party, or any person who volunteers their services for a non-profit entity.
4. "Employer" means any person, partnership, and corporation, including a municipal corporation, or other business entity or non-profit entity, who employs the services of one or more individual persons.
5. "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.
6. "Health Care Facility" means an office or institution providing care or treatment of diseases, whether physical, mental or emotional, or other medical, physiological, or psychological conditions, including but not limited to, hospitals, rehabilitation hospitals or other clinics, including 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. This definition shall include all area waiting rooms, hallways, private rooms, semiprivate rooms, and wards within health care facilities, including but not limited to the above named locations.
7. "Place of Employment" means any enclosed area under the control of a public or private employer; or non-profit entity with employees or volunteers who normally frequent during the course of employment or volunteering, including, but not limited to, work areas, private offices, employee lounges and restrooms, conference and classrooms, employee cafeterias and hallways.
8. "Private Club" means a facility:
   1. Owned or operated by an association or corporation, which shall:
      1. Not be operated for pecuniary gain; and
      2. Consist of a membership:
   2. formed as a lodge, union local chapter, or corresponding unit of a fraternal order recognized on a national basis; or
   3. comprised of persons who have served in the armed forces of the United States; or
   4. formed as a recognized, exclusive association of persons organized for a joint or common purpose for which application for membership, the payment of dues, and self governance by the membership are distinguishing characteristics; and
   5. where entry into, and use of the facility is restricted to members and guests of members.
9. "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, educational facilities, health facilities, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters and waiting rooms. A private residence is not a "public place."
10. "Restaurant" means an eating establishment, including but not limited to, coffee shops, cafeterias, sandwich stands, and private and public school cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term "restaurant" shall include an attached bar
11. "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. The term does not include retail stores where food or beverages are sold for consumption on the premises or where an area has been set aside on the premises for customers to consume any food or beverage.
12. "Service Line" means any indoor or outdoor area 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.
13. "Shopping Mall" means an enclosed public walkway or hall area that serves to connect retail or professional establishments
14. "Smoking" means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, weed, plant or other lighted tobacco product or smoking equipment.
15. "Sports Arena" means any indoor or outdoor space used as a sports pavilion, gymnasium, health spa, boxing arena, swimming pool, roller and ice rink, football field, soccer field, and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.
16. "Tobacco Bar" means a business that:
    1. Offers alcoholic beverages for sale to customers for consumption on the licensed premises pursuant to a Type 210 retailer permit issued by the Indiana Alcohol and Tobacco Commission;
    2. Does not admit customers or hire employees who are less than twenty-one (21) years of age;
    3. Generated ten percent (10%) or more of its total annual gross income from the on-site sale of tobacco products in the previous calendar year.

SECTION 2. Application to County-Owned Facilities

All enclosed facilities owned or leased by St. Joseph County shall be subject to the provisions of this Ordinance. This section shall not be deemed to restrict smoking in individual motor vehicles owned or leased by St. Joseph County.

SECTION 3. Prohibition of Smoking in Public Places and Certain Places of Employment

Smoking shall be prohibited in all public places within St. Joseph County, unless exempted by Section 5, including, but not limited to, the following areas:

1. Restaurants that do not restrict patrons to those 18 years of age or older.
2. Retail stores and shopping malls.
3. All places of employment within St Joseph County, except where enumerated in Section 5.
4. Restrooms, lobbies, reception areas, hallways and any other common-use areas.
5. Elevators, aquariums, art galleries, libraries, zoos and museums.
6. Any facility which is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, except when the performers are smoking as part of a theatrical production.
7. Sports arenas, football stadiums and convention halls, indoor driving ranges and miniature golf courses.
8. Healthcare facilities, all businesses, all public places as defined herein, all service lines, and sports arenas.
9. Polling places
10. Bowling Alleys, except in an enclosed bar area.
11. The following outdoor areas:
    1. All areas provided by eating establishments that do not limit access to patrons 18 years or older;
    2. Within courtyards and other covered areas where air circulation is impeded by architectural, landscaping or other barriers;
    3. All St. Joseph County municipally owned and/or operated parks and recreational areas.

SECTION 4. Prohibition of Smoking in Places of Employment

1. Smoking shall be prohibited in all enclosed areas within places of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medicals facilities cafeterias, employee lounges, stairs, restrooms, and all other enclosed facilities.
2. This prohibition on smoking shall be communicated to all existing employees by the effective date of this Ordinance and to all prospective employees upon their application for employment or hiring. A prominently placed sign in an area available to all employees posted on or before the effective date shall be proof of this required communication.

SECTION 5. Where Smoking Not Regulated (Exceptions):

The following places are exempt from provisions of Sections 3 and 4:

1. Private residences and independent or assisted living facilities that are considered private residences, except when used as a child care, adult day care or health care facility
2. Family-owned and operated businesses in which all employees are related to the owner, and offices of self-employed persons in which all employees are related to the self- employed person, but only if the enclosed areas these businesses and offices occupy are not open to the public.
3. 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;
4. Retail tobacco stores, and tobacco bars; provided that smoke from these places does not infiltrate into areas where smoking is prohibited under the provisions of this Ordinance.
5. All establishments limiting access to those patrons 18 years of age or older, pursuant to a state statutory requirement;
6. Outdoor areas of a golf course not to include miniature golf courses;
7. Bingo establishments;
8. Private motor vehicles;
9. Outdoor areas of places of employment except those covered by the provisions of Section 3;
10. Private clubs as defined in Section 1 (H) of this Ordinance;
11. Any hall, room or assembly area owned or operated by a church, synagogue, or other place of worship that is rented or leased out for a social function;
12. Any bar or tavern which:
    1. possesses a valid alcoholic beverage license under the State of Indiana;
    2. allows no patron or employee under age 18 to enter at any time;
    3. employs no person under the age of 18; and
    4. provides written notice as a part of its annual application for retail food establishment license to the Health Department that it intends to allow smoking, intends to serve only patrons over the age of 18, and that this election may be made only twice a year (other than an initial enrollment period of three months after the effective date of this Ordinance).
    5. if located within a business required to be smoke-free by this Ordinance, the establishment must be located on a separate floor, or on the same floor but separated from the business required to be smoke-free by walls, windows or closeable doors and allows no patron or employee under the age of 18.
13. Notwithstanding any other provision herein, smoking shall not be allowed in any area if the smoke from smoking is allowed to enter, either directly or indirectly, any other area where smoking is prohibited under this Ordinance.
14. Any business claiming an exemption pursuant to this Section shall provide to any enforcement agency listed in this Ordinance, within fifteen (15) business days of written demand, adequate written proof that it qualifies for the exemption claimed.
15. Extension of Time: This Ordinance shall allow a one-time two (2) year extension for certain food service establishments that meet the following criteria:
    1. Certify prior (3) years’ of food sales of less than $450,000.00
    2. Establishments meeting the criteria must apply with the Health Department within forty-five days of Ordinance adoption.
    3. No new food service establishments established after the adoption of this Ordinance shall be eligible for this extension.

SECTION 6. Outside Distance

Smoking is prohibited within such distance outside any portion of an enclosed area where smoking is prohibited, to prevent tobacco smoke from entering the restricted area through entrances, windows, ventilation systems, or other means.

SECTION 7. Posting of Signs -Removing of Paraphernalia

Where smoking is prohibited herein, the owners, occupants and persons in control of said premises shall:

1. Clearly and conspicuously post "No Smoking" signs, or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly and conspicuously posted in every public place and place of employment where smoking is prohibited by this Ordinance, by the owner, operator, manager or other person in control of that place. Every public place and place of employment where smoking is prohibited by the Ordinance shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.
2. Remove or not permit the use of ashtrays, lighters or matchbooks for smoking in any area where smoking is prohibited.

Where smoking is NOT prohibited herein, the owners, occupants and persons in control of said premises shall clearly and conspicuously post the following sign at every entrance: " Warning: This is a Smoking Establishment". Said entrance sign shall be in clear and conspicuous type. Entrance signs may be made available without charge through the local Indiana Tobacco Prevention and Cessation Agency grant.

SECTION 8. Enforcement

1. The owners, occupants and persons in control of said premises shall:
   
   Ask any person who smokes in an area where smoking is prohibited to refrain from smoking and, if the person does not comply with this request, ask the person to leave, and if the person refuses to leave, contact the appropriate law enforcement authorities and handle the situation consistent with lawful methods for handling persons acting in a disorderly manner. Upon a complaint being lodged or registered with the St Joseph County Health Department regarding an alleged violation of this Ordinance, such agency is hereby authorized to initiate enforcement of this ordinance. A copy of this Ordinance shall be given to all applicants for a health permit in St Joseph County, Indiana.
2. Any person who desires to lodge or register a complaint under this Ordinance may initiate enforcement by lodging or registering such complaint by telephone, mail, and electronic communication or in person with the St. Joseph County Health Department. Such department may require a complainant to execute an affidavit when an establishment is accused of a third violation or greater which may result in a fine under this Ordinance.
3. An owner, manager, operator, or employee of an establishment regulated by this Ordinance shall inform persons violating this Ordinance of the appropriate provisions thereof.
4. The Department shall undertake reasonable and good faith efforts to assure compliance with this ordinance. Where deemed necessary, as indicated in Section 9 G, the St Joseph County Health Department shall refer complaints for further enforcement to the St Joseph County Prosecutor’s Office.

SECTION 9. Violations and Penalties

1. A person who owns, manages, operates, or otherwise controls a public place or place of employment and who fails to comply with the provisions of this Ordinance shall be found in violation which is punishable as follows:
   1. A verbal warning for the first violation
   2. A written warning for the second violation
   3. A fine of one hundred dollars ($100) for a third violation.
   4. A fine of two hundred dollars ($200) for a fourth violation.
   5. A fine not exceeding five hundred dollars ($500) for each additional violation.
2. Any fines collected herein shall be deposited in a non-reverting line item account maintained in the budget of the St Joseph County Health Department with such sums being applied toward enforcement of this ordinance and in furtherance of the intent of this ordinance.
3. It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises, or any person or employee occupying such premises subject to regulation under this Ordinance to fail to comply with any of its provisions.
4. Each day on which a violation of the Ordinance occurs shall be considered a separate and distinct violation.
5. 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 knowingly or willfully allow smoking to occur where prohibited by this Ordinance. It is a defense to this section, if the foregoing persons or their employees act in a reasonable and timely manner to personally inform the violator of the prohibition and request that he or she refrain from smoking.
6. It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this ordinance.
7. A person who smokes in an area where smoking is prohibited by the provisions of this Ordinance shall be guilty of an infraction, punishable by a fine not exceeding fifty ($50.00) dollars, which fine shall be processed through the St Joseph County Health Department. Furthermore, if after multiple violations have occurred by either the same person or the same establishment and the St Joseph County Health Department has reason to believe that fines will not be effective in enforcing this Ordinance, then the St Joseph County Prosecutor’s office shall be empowered to seek any and all other remedies provided by law.
8. The Board of Health shall adopt an appeal procedure for any aggrieved individual or establishment, which has been found in violation of this ordinance. Such appeal procedure must be adopted by the Board of Health within forty-five days of passage of this ordinance and shall be subject to final review and approval by this Council. Such final and approved appeal procedure will be adopted no later than the effective date of this ordinance, April 10, 2006.

SECTION 10. Non-retaliation

No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or customer because that employee, applicant, or customer exercises any rights afforded by this Ordinance or reports or attempts to prosecute a violation of this Ordinance.

SECTION 11. Other Applicable Laws

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

Furthermore, the St Joseph County Council shall periodically request other governmental and educational entities having facilities within St Joseph County to establish local operating procedures in cooperation and compliance with this ordinance. This includes urging all Federal, State, County, City and School District agencies to update their existing tobacco control policies to be consistent with current health findings with regard to the hazards second hand smoke.

In addition, the St. Joseph County Health Department shall engage in a continuing program to explain and clarify the purposes and requirements of this Ordinance.

SECTION 12. Severability

If any sections, sentence or provision of this Ordinance, or the application thereof to any person or circumstance shall be declared invalid, such invalidity shall not affect any of the other sections, sentences, provisions, or applications 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 13. Legal Construction.

This Ordinance shall be construed with the intent so as to further its purposes.

SECTION 14. No local preemption

Nothing herein prohibits an owner or lessee of real estate or property subject to this Ordinance from imposing smoking restrictions greater than those contained in this Ordinance.

SECTION 15. Effective Date

This Ordinance shall be in full force and effect from and after its passage by the County Council of St. Joseph County, its approval by the Board of Commissioners of St Joseph County and such publications as required by law, effective April 10, 2006.

______________________

Member, St Joseph County Council

________________________

Member, St Joseph County Council