Avon 2005
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
HEREOF
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:
8.24.010. Purpose.
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.
8.24.020.
Definitions.
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.