ORDINANCE NO. 1927

AN ORDINANCE OF THE COMMON COUNCIL OF THE TOWN OF GILBERT, ARIZONA, AMENDING THE TOWN OF GILBERT MUNICIPAL CODE OF GILBERT, ARIZONA, CHAPTER 42 OFFENSES AND ABATEMENT OF PUBLIC NUISANCES, DIVISION 4 PROHIBITION ON SMOKING IN WORKPLACES AND ENCLOSED PUBLIC PLACES, RE-NAMING DIVISION 4 TO “PROHIBITION ON SMOKING IN PUBLIC PLACES AND PLACES OF EMPLOYMENT”; AMENDING SECTIONS 42-266 DEFINITIONS, 42-268 PROHIBITION OF SMOKING IN PUBLIC PLACES, 42-269 PROHIBITION OF SMOKING IN PLACES OF EMPLOYMENT, 42-272 POSTING OF SIGNS, 42-273 ENFORCEMENT; REPEALING SECTIONS 42-267 APPLICATION TO TOWN-OWNED FACILITIES, 42-270 DISTANCE FROM ENCLOSED AREAS, 42-271 WHERE SMOKING NOT REGULATED, 42-277 HARDSHIP EXCEPTION, 42-278 APPEALS TO THE TOWN COUNCIL, AND 42-279 WAIVER OF PERMIT FEES; ALL RELATED TO SMOKING IN THE TOWN, PROHIBITING SMOKING IN PUBLIC PLACES AND SETTING FORTH EXCEPTIONS; PROHIBITING SMOKING IN PLACES OF EMPOYMENT, ALL TO CONFORM TO THE REQUIREMENTS OF PROPOSITION 201 ADOPTED BY THE ELECTORATE OF THE STATE OF ARIZONA; PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES; PROVIDING FOR PENALTIES; PROVIDING FOR AN EFFECTIVE DATE OF MAY 1, 2007.

WHEREAS in November 2006 Arizona voters passed Proposition 201, the Smoke-Free Arizona Act;

WHEREAS the Town desires to amend its Municipal Code related to smoking in public places and places of employment to conform to the requirements of Proposition 201;

NOW THEREFORE, BE IT ORDAINED by the Common Council of the Town of Gilbert, Arizona, as follows:

Section I. In General.

The Town of Gilbert Municipal Code, Chapter 42 Offenses and Abatement of Public Nuisances, Division 4 Prohibition on Smoking in Workplaces and Enclosed Public Places is hereby amended by renaming Division 4 as “Prohibition on Smoking in Enclosed Public Places and Places of Employment”; Repealing Sections 42-267 Application To Town-Owned Facilities, 42-270 Distance From Enclosed Areas, 42-271 Where Smoking Not Regulated, 42-277 Hardship Exception, 42-278 Appeals To The Town Council, and 42-279 Waiver Of Permit Fees; and by amending Sections 42-266 Definitions, 42-268 Prohibition of Smoking in Public Places, 42-269 Prohibition of Smoking in Places of Employment, 42-272 Posting of Signs, and 42-273 Enforcement to read as follows (additions in ALL CAPS; deletions in strikeout):

DIVISION 4. PROHIBITION ON SMOKING IN ENCLOSED PUBLIC PLACES AND PLACES OF EMPLOYMENT

Sec. 42-266. Definitions.
The following words and phrases, whenever used in this division, shall be construed as defined in this section:
Bar means an area which is devoted to the serving of alcoholic beverages for consumption by guests on the premises, deriving 50 percent of their gross revenue from the sale of alcohol and in which the serving of food is only incidental to the consumption of such beverages.
Business means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit-making purposes, 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.
Employee means any person who performs any service on a full-time, part-time or contracted basis whether or not the person is denominated an employee, independent contractor or otherwise and whether or not the person is compensated or is a volunteer.
Employer means any person, partnership, association, the State of Arizona and its political subdivisions, corporation, including a municipal corporation, trust, or non-profit entity, who 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 permanent or temporary walls or windows (exclusive of doorways) which extend from the floor to the ceiling. Enclosed area includes a reasonable distance from any entrances, windows and ventilation systems so that persons entering or leaving the building or facility shall not be subjected to breathing tobacco smoke and so that tobacco smoke does not enter the building or facility through entrances, windows, ventilation systems or any other means.
Health care facility means any enclosed area utilized by any health care institution licensed according to Title 36 Chapter 4, Chapter 6 Article 7, or Chapter 17, or any health care professional licensed according to Arizona A.R.S. Title 32, Chapters 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 21, 25, 28, 29, 33, 34, 35, 39, 41, or 42.
Person means an individual, partnership, corporation, limited liability company, entity, association, governmental subdivision or unit of a governmental subdivision, or a public or private organization of any character.
Physically separated means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passageway) and independently ventilated from smoke-free areas, so that air within permitted smoking areas does not drift or get vented into smoke-free areas.
Place of employment means any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, office buildings, work areas, auditoriums, employee lounges and restrooms, conference and class rooms, meeting rooms, cafeterias and hallways, stairs, elevators, health care facilities, private offices and vehicles owned and operated by the town during working hours when the vehicle is occupied by more than one person. A private residence is not a "place of employment" unless it is used for childcare, adult day care, or health care facilities.
Public place means any enclosed area to which the public is invited or in which the public is permitted, including but not limited to, airports, banks, bars, common areas of apartment buildings, condominiums or other multi-family housing facilities, educational facilities, entertainment facilities or venues, health care facilities, hotel and motel common areas, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports facilities, theaters and waiting rooms. A private residence is not a "public place" unless it is used for childcare, adult day care, or health care facilities.
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.
Retail tobacco store means a retail store that derives the majority of its sales from tobacco products and accessories.
Smoking means inhaling, exhaling, burning or carrying or possessing any lighted tobacco product, including cigars, cigarettes, pipe tobacco and any other lighted tobacco product.
Sports facilities means enclosed areas of sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, billiard halls, 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 events.
Veteran and fraternal club means a club as defined in A.R.S. § 4-101(7)(A)(B) OR (C).
(Ord. No. 1927, § I, 4-3-07)
Sec. 42-267. Reserved.

Sec. 42-268. Prohibition of smoking in public places.
(a) Smoking is prohibited in all public places and places of employment within the town except in the following places:
(1) Private residences, except when used as a licensed child care, adult day care, or health care facility.
(2) Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided, however, that not more than 50 percent of rooms rented to guests in a hotel or motel are so designated.
(3) Retail tobacco stores that are physically separated so that smoke from retail tobacco stores does not infiltrate into areas where smoking is prohibited under the provisions of this section.
(4) Veterans and fraternal clubs when they are not open to the general public.
(5) Smoking when associated with a religious ceremony practiced pursuant to the American Indian Religious Freedom Act of 1978.
(6) Outdoor patios so long as tobacco smoke does not enter areas where smoking is prohibited through entrances, windows, ventilation systems, or other means.
(7) A theatrical performance upon a stage or in the course of a film or television production if the smoking is part of the performance or production.
(b) Notwithstanding any other provision of this section, any owner, operator, manager or other person or entity who controls any establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking establishment.
(Ord. No. 1927, § I, 4-3-07)

Sec. 42-269. Prohibition of smoking in places of employment.
(a) It shall be the responsibility of employers to provide a smoke-free workplace for all employees.
(b) On or before May 1, 2007, each employer having a place of employment located within the town shall communicate the prohibition on smoking to all existing employees and to all prospective employees upon their application for employment.
(Ord. No. 1927, § I, 4-3-07)

Sec. 42-270. Distance from enclosed areas.
Smoking shall occur at least 25 feet from any enclosed area where smoking is prohibited to insure that tobacco smoke does not enter the enclosed area through entrances, windows, ventilation systems or any other means.
(Ord. No. 1927, § I, 4-3-07)
Sec. 42-271. Reserved.

Sec. 42-272. Posting of signs.
(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, sufficiently and conspicuously posted by the owner, operator, manager or other person in control of that place identifying where smoking is prohibited by this division and where complaints regarding violations may be registered.
(b) Every public place where smoking is prohibited by this division shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.
(c) All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited by this division by the owner, operator, manager or other person having control of such area.
(d) The minimum size for a sign required by subsection (a) shall be:
For all businesses (except businesses not regulated): The international four-inch by four-inch no smoking symbol.
For restaurants: A 2 1/2-inch by nine-inch smoke-free sign with the international no smoking symbol.
(Ord. No. 1927, § I, 4-3-07)

Sec. 42-273. Enforcement.
(a) Enforcement of this division shall be implemented by the code enforcement officer.
(b) Notice of the provisions set forth in this division shall be given to all applicants for a business registration in the town, provided however that failure to receive such notice shall not exempt any person from the requirements of this division or its enforcement.
(c) Any citizen who desires to register a complaint under this division may initiate enforcement with the code enforcement officer.
(d) The fire department shall require, while an establishment is undergoing otherwise mandated inspections, a "self-certification" from the owner, manager, operator or other person having control of such establishment that all requirements of this division have been complied with.
(e) Any owner, manager, operator or employee of any establishment regulated by this division shall inform persons violating this division of the appropriate provisions thereof.
(Ord. No. 1927, § I, 4-3-07)

Sec. 42-274. Nonretaliation.
No person or employer shall discharge, refuse to hire or in any manner retaliate 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 division.
(Ord. No. 1927, § I, 4-3-07)

Sec. 42-275. Public education.
The town manager shall engage in a continuing program to explain and clarify the purposes and requirements of this division 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 division.
(Ord. No. 1927, § I, 4-3-07)

Sec. 42-276. Other applicable laws.
This division shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.
(Ord. No. 1927, § I, 4-3-07)