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52-04 Ordinance AMENDED RECORD OF ORDINANCES Dayton Leal Blank, Inc. Form No. 30043 Ordinance No. 52-04 (Amended) passed 20 AN ORDINANCE AMENDING CHAPTER 94 (HEALTH AND SANITATION) OF THE DUBLIN CITY CODE, BY AMENDING AND ENACTING NEW SECTIONS, WHICH PROHIBIT SMOHING IN PUBLIC PLACES AND PLACES OF EMPLOYMENT. WHEREAS, the City of Dublin supports and encourages asmoke-free environment for its residents; and WHEREAS, in the past twenty-five years more than 1,000 papers and studies have been published about secondhand smoke demonstrating severe and pervasive injury to non smokers exposed to tobacco smoke; and WHEREAS, the United States Centers for Disease Control states that between 38,000 and 62,000 nonsmoking Americans die every year from exposure to secondhand smoke; and WHEREAS, secondhand smoke has been shown to contain over 4000 chemical compounds, 200 of which are known poisons including carbon monoxide, arsenic, cyanide, benzene and formaldehyde; and WHEREAS, secondhand smoke is classified as a "Class A Carcinogen" by the U.S. Environmental Protection agency and, by definition, there is no safe level of exposure to a Class A Carcinogen; and WHEREAS, secondhand smoke has been shown to substantially increase the risk of lung cancer, nasopharyngeal cancer, breast cancer, heart disease in adults and sudden infant death syndrome, asthma and airway disease in children; and WHEREAS, nonsmoking workers chronically exposed to secondhand smoke are on average 1/3 more likely to get lung cancer than those who aren't exposed; and WHEREAS, everyone has the right to breathe clean indoor air in public places and workplaces; and R'HEREAS, no one should be required to risk disease and disability from secondhand smoke to earn a living; and WHEREAS, no one should suffer the risk or discomfort of exposure to secondhand smoke while indoors engaging in business, dining or entertainment; and WHEREAS, everyone, even those made vulnerable because they are young or old or ill should be able to enter a public place or work within a place of employment without fear of harm from secondhand smoke; and WHEREAS, our children deserve to grow up free of the hazards of secondhand smoke; and, WHEREAS, Council has determined that it is in the best interest of the residents and employees within the City of Dublin and their health, welfare and safety to prohibit smoking in public places and places of employment. NOW, THEREFORE, BE IT ORDAINED by Council, City of Dublin, State of Ohio, of the elected members concurring, as follows: SECTION 1. That the following be adopted as new Section in Chapter 94 of the Dublin Codified Ordinances. SMOKING PROHIBITIONS Section 94.10 Definitions Section 94.11 Prohibitions Section 94.12 Areas where smoke is not regulated Section 94.13 Construction; other applicable laws RECORD OF ORDINANCES Dayton Legal Blank, lnc. Form No. 30043 Ordinance No. 52-04 (Amended) Passed Pa~j2 Section 94.14 Declaration of establishment as nonsmoking Section 94.15 Posting of signs; prohibition of ashtrays; responsibilities of proprietors Section 94.16 Enforcement Section 94.17 Severability 94.10 Definitions. For purposes of this chapter: (A) "Business" means a sole proprietorship, partnership, association, joint venture, corporation, or any limited liability form of any of the foregoing, or any other entity formed for any legal purpose, whether for profit, not for profit or charitable purposes, 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, architectural, financial, counseling, or other professional or consumer services are provided. (B) "Employee" means a person who is employed by an employer, or who contracts with an employer or who contracts with a third person to perform services for an employer, or who otherwise performs services for an employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services to such employer for no monetary compensation. (C) "Employer" means an individual person, business, partnership, association, corporation, including a municipal corporation, trust, or any non-profit entity that accepts the provision of services from one or more employees in a place of employment. (D) "Enclosed Area" means all space closed in by a roof or other overhead covering of any kind and walls or other side coverings of any kind on at least three sides with openings for ingress and egress. Enclosed Area shall not include designated smoking shelters provided by an employer when such shelters are located more than 10 feet from any point of ingress, egress, ventilation system operable window or other opening which could provide a means for smoke to enter into the place of employment or public place. (E) "Place of Employment" means that portion of any enclosed, Public Place under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, such areas in office work places, factories, warehouses and laboratories. An enclosed area as described herein is a "Place of Employment" without regard to time of day or actual presence of employees. "Place of Employment" only includes private residences, whether single or multifamily, if used as a child care, adult day care, or health care facility, or if a person uses a private residence in any way otherwise qualifying that person as an employer with respect to the use of that private residence; provided, however, that private residences are exempt from this Chapter to the extent that the services being provided include housecleaning, home maintenance, cable or telephone repair, personal care services, domestic services, or food and beverage services in the private residence. Persons utilizing a private residence in a home occupation wherein no employees are present or in which employees are present infrequently are not a place of employment, provided that no employee shall be required to enter into the private residence within 15 minutes of a person smoking. (F) "Proprietor" means the owner, manager, operator, liquor permit holder, or other person in charge or control of a public place or place of employment. (G) "Public Place" means an enclosed area to which the public is invited or in which the public is permitted and includes service lines. (H) "Service Line" means an indoor line in which one or more persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 ordinance No. 52-04 (Amended) passed Pam 3 money. (I) "Smoke" or "Smoking" means inhaling, exhaling or carrying any lighted and/or burning smoking materials. "Smoking" does not include the burning or carrying of incense in a religious ceremony or the use of matches or lighters for nonsmoking purposes. Smoke shall also mean the by-product of the burning of any smoking materials. (J) "Smoker" means a person or persons smoking. (K) "Smoking materials" means any cigar, cigarette, pipe, weed, plant or other organic substance grown, manufactured or processed which is intended to be used for smoking in any form. "Smoking materials" do not include candles, incense or other similar items. (L) "Work area" means any room, desk, station or other area normally occupied by an employee while carrying out his or her primary work function. (M) "Retail tobacco store" means a retail store used primarily for the sale of smoking materials and smoking accessories in which the sale of other products is incidental and where smoking is permitted within the Public Place. "Retail tobacco store" does not include a tobacco department of a larger commercial establishment such as a department store, discount store, or bar or retail stores used primarily for the sale of smoking materials where no provisions for smoking within the Public Place are provided or permitted.. (N) "Outdoor patio" means an outdoor area, open to the air at all times, that is either: a. enclosed by a roof or other overhead covering and not more than two walls or other side coverings; or b. has no roof or other overhead covering at all regardless of the number of walls or other side coverings. (O) "Private Club" means a club as that term is defined in R.C. 4301.01 (B)(13) and that is organized as not for profit. 94.11 Prohibitions. (A) No proprietor of a public place or employer of a place of employment shall negligently permit smoking in said public place or place of employment within the City of Dublin, except as provided in section 94.13 of this Chapter. All enclosed areas, including buildings and vehicles owned, leased, or operated by the City of Dublin, shall be subject to the provisions of this Chapter. (B) All areas within ten (10) feet of the ventilation intake system, any ingress, egress, windows or any other means of access capable of being opened that are part of any enclosed area shall be subject to the provisions of this Chapter so as to ensure that smoke does not enter the enclosed area through entrances, windows, ventilation systems, or other means. 94.12 Smoking in prohibited areas (A) No person shall smoke in a public place, or place of employment, within the City of Dublin, except as provided in Section 94.13 of this Chapter. (B) No person shall smoke in any business or outdoor area that has been declared nonsmoking pursuant to Section 94.15 of this Chapter. 94.13 Areas where smoking is not regulated by this Chapter. Notwithstanding any other provision of this Chapter to the contrary, the following areas shall be exempt from the prohibitions in Sections 94.11 and 94.12: (A) Private residences, except those that qualify as a Place of Employment. (B) Hotel and motel rooms that are rented to guests and are designated as smoking RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 Ordinance No. 52-04 (Amended) Passed Pag~j4 rooms; provided, however, that not more than 15% of rooms rented to guests in a hotel or motel maybe so designated. (C) Any home, as defined in Section 3721.10(A) of the Ohio Revised Code, but only to the extent necessary to comply with R.C. 3721.13(A)(18) and rules promulgated according to that section. (D) Retail tobacco stores as defined in Section 94.10(M) of this Chapter in operation prior to the effective date of this ordinance. Any new retail tobacco store or any existing retail tobacco store that relocates to another site may only qualify for this exemption if (i) completely enclosed on all sides by solid floor-to roof deck walls; (ii) comply with all applicable fire and building code requirements; and (iii) have a separate ventilation system whereby the air from such space is immediately exhausted to an outdoor area rather than being recirculated inside, and is negatively pressurized to prevent back streaming of second-hand smoke into adjoining areas. (E) Outdoor patios as defined in Section 94.10(N) of this Chapter. If the outdoor patio has a structure capable of being enclosed by walls, covers, solid surface fencing, or tents, regardless of the materials or the removable nature of the walls, covers, solid surface fencing, or tents, the space will be considered enclosed, when the walls, covers, fences, or tents are in place. All outdoor patios shall be physically separated from an enclosed area. If sliding or folding windows or doors or other windows or doors forms any part of the border to the outdoor patio, the openings shall be closed to prevent the migration of smoke into the enclosed area. If sliding or folding windows or doors or other windows or doors does not prevent the migration of smoke into the enclosed area, the outdoor patio shall be considered an extension of the enclosed area and subject to the prohibitions of this Chapter. (F) Private clubs as defined in Section 94.10(0) of this Chapter provided that all of the following apply: a. that there are no nonmembers permitted to utilize the facility; and b. that the private club is the holder of a valid D-4 liquor permit pursuant to R.C. 4303.17 if alcoholic beverages are to be served. 94.14 Construction; other applicable laws. This Chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws, and shall be liberally construed so as to further its purposes. 94.15 Declaration of establishment as nonsmoking. Notwithstanding any other provision of this Chapter, the proprietor of a business or outdoor area which does not otherwise qualify as a public place or place of employment or any public place or place of employment otherwise exempt from the provisions of §94.11 & §94.12 may declare such location as a nonsmoking place. Smoking shall be prohibited in any place in which a sign conforming to the requirements of Section 94.16 is posted. 94.16 Posting of signs; prohibition of ashtrays; responsibilities of proprietors. In addition to the prohibitions contained in Section 94.11 of this Chapter, the proprietor of a public place or place of employment shall comply with the following requirements: (A) "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 at the entrance to every public place and place of employment and within such spaces where smoking is prohibited by this Chapter. A sign shall be of sufficient size to be clearly legible to persons entering or frequenting the area it is intended to mark. All signs shall contain a telephone number for reporting RECORD OF ORDINANCES Dayton Leal Blank, Inc. Form No. 30043 52-04 (Amended) Pa 5 Ordinance No. Passed , violations. (B) All ashtrays and other receptacles used for disposing of smoking materials shall be removed from any area where smoking is prohibited by this Chapter. (C) This Section shall not be construed to permit smoking in any area in which smoking is prohibited pursuant to Section 94.1 1. 94.17 Enforcement. This chapter shall be enforced by the City Manager and his or her designee(s). 94.18 Severability. If any provision, clause, sentence, or paragraph of this Chapter or the application thereof to any person or circumstances shall be held invalid, that invalidity shall not affect the other provisions of this Chapter that can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are declared to be severable. SECTION 2. Section 94.99 of the Dublin Codified Ordinances shall be amended as follows. 94.99 Penalties. (A) Whoever violates § 94.01 is guilty of a misdemeanor of the fourth degree. ('80 Code, § 521.01(b)) (B) Whoever violates § 94.02 is guilty of a misdemeanor of the first degree. (R.C. § 3701.99(8)) ('80 Code, § 521.02(k)) (C) Whoever violates 94.03, 94.04, 94.07, 94.08 or 94.09 is guilty of a minor misdemeanor. (D) Whoever violates any provision of § 94.05(8) through (V) or § 94.06 is guilty of a misdemeanor of the third degree. The sentencing court may in addition to or in lieu of the penalty provided in this division require a person who violates § 94.05(8) to (V) to remove litter from any public or private property or in or on any waters. (E) Upon a first violation, in a twelve-month period, of any provision of 94.10 through 94.18 of this Chapter, the City Manager and his or her designee(s) shall issue a warning letter to the individual or proprietor. Thereafter, the penalties contained in Divisions (F), (G) and (H) of this Section shall apply. (F) If, within one year of the offense, the individual or proprietor previously has been issued a warning letter pursuant to division (E) of this Section and has not been convicted of or pleaded guilty to a violation of any provision of 94.10 through 94.18 of this Chapter, a fine of not more than Two Hundred and Fifty Dollars ($250.00) and up to Thirty (30) hours of community service; (G) If, within one year of the offense, the individual or proprietor previously has been issued a warning letter pursuant to division (E) of this Section and been convicted of or pleaded guilty to one violation of any provision of 94.10 through 94.18 of this Chapter, a fine of not more than Five Hundred Dollars ($500.00) and up to Thirty (30) hours of community service; (H) If, within one year of the offense, the individual or proprietor previously has been issued a warning letter pursuant to division (E) of this Section and been convicted of or pleaded guilty to two or more violations of any provision of 94.10 through 94.18 of this Chapter, a fine of not more than One Thousand Dollars ($1,000.00) and up to Thirty (30) hours of community service; RECORD OF ORDINANCES Dayton Leeal Blank, Inc. Form No. 30043 Ordinance No. 52-04 (Amended) Passed Pang 6 If, within one year of the offense, the individual or proprietor previously has been issued a warning letter pursuant to division (E) of this Section and has not been convicted of or pleaded guilty to a violation of any provision of 94.10 through 94.18 of this Chapter, a fine of not more than Two Hundred and Fifty Dollars ($250.00) and up to Thirty (30) hours of community service; If, within one year of the offense, the individual or proprietor previously has been issued a warning letter pursuant to division (E) of this Section and been convicted of or pleaded guilty to one violation of any provision of 94.10 through 94.18 of this Chapter, a fine of not more than Five Hundred Dollars ($500.00) and up to Thirty (30) hours of community service; If, within one year of the offense, the individual or proprietor previously has been issued a warning letter pursuant to division (E) of this Section and been convicted of or pleaded guilty to two or more violations of any provision of 94.10 through 94.18 of this Chapter, a fine of not more than One Thousand Dollars ($1,000.00) and up to Thirty (30) hours of community service; It is an affirmative defense for the proprietor to any charge under § 94.11(C) of this Chapter if the violation does not occur on or within the property boundaries of the proprietors public place or place of employment. It is an affirmative defense to any charge under § 94.12 of this Chapter if the proprietor or other person in charge or control of a public place or place of employment fails to comply with the requirements of § 94.16(A) or (B). SECTION 3. Public Education To the extent that grant monies, publications and or proceeds from fines is available, the City of Dublin may engage in a continuing program to explain and clarify the purposes and requirements of this ordinance to persons affected by it, and to guide proprietors in their compliance with it. SECTION 4. This ordinance shall take effect on February 1, 2005. Passed this _ day of ~ 0 ~ ~t,J' ~~2004. v V Mayor-Presiding Officer Attest: Clerk of Council I hereby certify that copies of this Ordinance/Resolution were posted in the City of Dublin in accordance with Section 731.25 of the Ohio/~R~evised Code. uty Clerk of Council, Dublin, Ohio MEMORANDUM TO: Jane Brautigam, City Manager Dublin City Council FROM: Stephen J. Smith, Law Director Stephen J. Smith DATE: November 9, 2004 RE: Clean Indoor Air Ordinance The City of Dublin is currently considering an Ordinance to prohibit smoking in public places and places of employment. Following extensive discussions and deliberations, Dublin has made extensive revisions to the City of Columbus Ordinance which was used as a base model. While most of these changes are stylistic, Dublin has made the following substantive changes: • Added an exemption for designated "smoking shelters" in parking lots or other areas not within ten (10) feet of the ventilation system or any point of ingress or egress. See Section 94.10(D). • Amended the definition of the smoking and smoking materials to allow the burning of incense, candles and other similar materials. See Sections 94.10(I), 94.10(J), 94.10(x). • Amended the prohibition of smoking in an area "immediately adjacent" to the ingress and egress of a building to a specific requirement of ten (10) feet. See Section 94.11(C). • Included a prohibition and penalties against the individual who is smoking in a prohibited location. See Sections 94.12 and 94.99. • Eliminated the family owned and operated business exception. • Decreased the number of designated smoking rooms in hotels from twenty percent (20%) to fifteen percent (15%). See Section 94.13(C). • Expanded the retail tobacco store exception to businesses that relocate into "strip" type structures if specific requirements are satisfied. See Section 94.13(D). • Narrowed the private club exception to clubs in which no nonmembers are permitted to utilize the facility. See Section 94.13(F). • Prohibit the use of ashtrays or other smoking receptacles in areas where smoking is prohibited. See Section 94.16(B). • Eliminated the provision that established a private cause of action for "retaliation" and the requirements that require businesses to establish policies on this issue. • Included a progressive penalty system, which includes fines up to One Thousand Dollars ($1,000.00) and community service. See Sections 94.99(E)-(H). • Amended the Ordinance to include a mental state, thus eliminating strict liability for the businesses subject to the Ordinance. See Section 94.11(A). • Included affirmative defenses if a proprietor fails to comply with the notice requirements of the Ordinance. See Sections 94.99(I)-(J) • Conditioned the expenditure of funds for public education on the receipt of grants or other monies. See Section 3. Finally, the effective date of the Dublin Ordinance was amended to February 1, 2005 in an effort to remain consistent with the City of Columbus. If you have any further questions, please do not hesitate to contact us.