§ 13.5-21. Smoke-free air.
(a)
[Purpose.] Accordingly, the city council finds and declares that the purposes of this article are (1) to protect the public health and welfare by prohibiting smoking in public places and places of employment; and (2) to guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke.
(b)
Definitions. The following words and phrases, whenever used in this article, shall be construed as defined in this subsection:
(1)
"Bar" means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food if at all is only incidental to the consumption of those beverages, including, but not limited to, taverns, nightclubs, cocktail lounges, and cabarets.
(2)
"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; professional corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered; and private clubs.
(3)
"Cigar bar" means a bar, as defined in this section, legally in operation that generated ten (10) percent or more of its total annual gross income from the on-site sale of cigars and the rental of humidors, not including sales from vending machines, for the calendar year ending December 31, 2014, and every year thereafter. A cigar bar does not permit the smoking of cigarettes and shall not knowingly sell to or permit entrance to any person less than twenty-one (21) years of age.
(4)
"Electronic smoking device" means any electronic device, not prescribed by a doctor, as one composed of a heating element, battery, and/or electronic circuit, which provides a vapor of nicotine or any other substances, and the use or inhalation of which simulates smoking. The term shall include any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, or under any other product name or descriptor.
(5)
"Electronic smoking device business" means a business establishment in which the primary activity is the sale, manufacture, or promotion of electronic smoking device products and accessories either at wholesale or retail, and in which the sale, manufacture or promotion of other products is merely incidental.
(6)
"Employee" means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and a person who volunteers his or her services to such employer for nonmonetary compensation.
(7)
"Employer" means a person, business, partnership, association, corporation, including a municipal corporation, trust, or non-profit entity that employs the services of one (1) or more individual persons.
(8)
"Enclosed area" means all space between a floor and a ceiling that is bounded on at least two (2) sides by walls, doorways, or windows, whether open or closed. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent and whether or not containing openings of any kind.
(9)
"Gambling facility" means any institution in which gaming operations are permitted to occur upon a riverboat, at the land-based casino, at a facility licensed for the operation of electronic video draw poker devices, at an eligible facility licensed for the operation of slot machines, by a licensed charitable organization, or at a pari-mutuel wagering facility or off-track wagering facility which is licensed for operation and regulated under the provisions of R.S. chs. 4 and 11 of tit. 4 and chs. 4, 5, 6 and 7 of tit. 27, or any other gaming operations authorized by law.
(10)
"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, long-term care facilities, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, psychiatrists, dentists, and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within health care facilities.
(11)
"Hookah" means a water pipe and any associated products and devices which are used to produce fumes, smoke, and/or vapor from the burning of material including, but not limited to, tobacco, shisha, or other plant matter.
(12)
"Hookah bar" means a bar, as defined in this section, legally in operation that generated at least ten (10) percent or more of its total annual gross income from on-site retail stores of shisha for consumption in hookahs on the premises by customers and the sale of accessories used for smoking shisha for the calendar year ending December 31, 2014, and every year thereafter. A hookah bar does not permit the smoking of cigarettes and shall not knowingly sell to or permit entrance to any person less than twenty-one (21) years of age.
(13)
"Place of employment" means an area under the control of a public or private employer, including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, construction sites, temporary offices, and vehicles. A private residence is not a "place of employment" unless it is used as a child care, adult day care, or health care facility therein or unless it is a common area of a multi-unit dwelling.
(14)
"Park" means any outdoor area accommodating or having facilities for rest or recreation (including passive activities) or playground designed, at least in part, to be used by children that has play or sports equipment installed or that has been designed or landscaped for play, sports, or leisure activities on grounds owned, occupied or operated by the city or an agency thereof, or any similar facility located on public school grounds.
(15)
"Public place" means an area to which the public is invited or in which the public is permitted, including, but not limited to, banks, bars, educational facilities, gaming facilities, health care facilities, hotels and motels, laundromats, public transportation vehicles and facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, and waiting rooms. A private residence is not a "public place" unless it is used as a child care, adult day care, or health care facility therein or unless it is a common area of a multi-unit dwelling.
(16)
"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.
(17)
"Public property" means any vehicle, building or other location or site within the city of Sulphur owned, leased, occupied, or operated by any of the following:
a.
The state, including the legislative, executive, and/or judicial branches of state government.
b.
The city or any instrumentality or agency thereof, or any other political subdivision of the state, special district, authority, commission, or agency.
c.
Any other separate corporate instrumentality or entity of state or local government.
(18)
"Public event" means an event which is open to and may be attended by the general public, including but not limited to, such events as concerts, fairs, farmers' markets, festivals, parades, performances, and other exhibitions, regardless of any fee or age requirement.
(19)
"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 a bar area within the restaurant.
(20)
"Retail tobacco business" is any establishment or business, including, but not limited to cigar shops, that are utilized primarily for the sale of tobacco products and accessories and in which the sale of other items is incidental.
(21)
"Secondhand smoke" means smoke emitted from a lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, including hookahs and marijuana, whether natural or synthetic, in any manner or in any form, when the smoker is not inhaling, smoke emitted at the mouthpiece during puff drawing, and smoke exhaled by the smoker. Secondhand smoke also includes aerosol or vapor from the use of an electronic smoking device emitted, in any manner or in any form, when the smoker is not inhaling, at the mouthpiece during puff drawing, and when the smoker is exhaling.
(22)
"Service line" means an indoor or outdoor line in which one (1) or more persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of money, including, but not limited to, ATM lines, concert lines, food vendor lines, movie ticket lines, and sporting event lines.
(23)
"Shopping mall" means an enclosed public walkway or hall area that serves to connect retail or professional establishments.
(24)
"Smoking" means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, in any manner or in any form. "Smoking" also includes the use of an e-cigarette which creates a vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking in this article.
(25)
"Sports arena" means a place where people assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events, including sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, and bowling alleys.
(26)
"Vaping" means the use of an electronic smoking device which creates an aerosol or vapor, in any manner or in any form.
(c)
Application of article to City of Sulphur facilities and property. All enclosed areas, including buildings and vehicles owned, leased, or operated by the City of Sulphur, as well as all outdoor property adjacent to such buildings and under the control of the City of Sulphur, shall be subject to the provisions of this article with the exception of administratively approved designated outdoor smoking areas.
(d)
Prohibition of smoking in enclosed public places. Smoking shall be prohibited in all enclosed public places within the City of Sulphur, including, but not limited to, the following places:
(1)
All pre-primary, primary, and secondary school buildings providing instruction for students at or below the twelfth-grade level, the campuses of such schools, any buildings on the campuses of such schools, and all school buses.
(2)
All schools other than those covered in subsection (6) of this section including, but not limited to, community colleges, technical training establishments, specialty schools, colleges and universities.
(3)
Aquariums, galleries, libraries, and museums.
(4)
Areas available to the general public in businesses and non-profit entities patronized by the public, including, but not limited to, banks, laundromats, professional offices, and retail service establishments.
(5)
Bars.
(6)
Bingo facilities.
(7)
Child care and adult day care facilities.
(8)
Convention facilities.
(9)
Educational facilities, both public and private.
(10)
Elevators.
(11)
Gaming facilities.
(12)
Health care facilities.
(13)
Hotels and motels: including all rooms rented to guests, restrooms, lobbies, reception areas, hallways, and other common-use areas; provided that a maximum of fifty (50) percent of the hotel rooms, at the discretion of the hotel owner or general manger, available for rent to guests in a hotel or motel may be designated as smoking rooms as provided by the Louisiana Smoke-Free Air Act, Act 815.
(14)
Lobbies, hallways, and other common areas in apartment buildings, condominiums, trailer parks, and other multiple-unit residential facilities.
(15)
Nursing homes: common-use, public areas. To remain consistent with the Louisiana Smoke-Free Air Act, Act 815, smoking is allowed in private and semiprivate rooms or apartments in assisted living residences, and other long-term care facilities that are occupied by one (1) or more persons, who are all smokers and who have requested in writing to be placed in a room where smoking is permitted; provided that smoke from such rooms or apartments does not infiltrate into areas where smoking is prohibited.
(16)
Polling places.
(17)
Public transportation vehicles, including buses and taxicabs, under the authority of the City of Sulphur, and ticket, boarding, and waiting areas of public transportation facilities, including bus, train, and airport facilities.
(18)
Restaurants.
(19)
Restrooms, lobbies, reception areas, hallways, and other common-use areas.
(20)
Retail stores.
(21)
Retail tobacco business, including cigar shops.
(22)
Rooms, chambers, places of meeting or public assembly, including school buildings, under the control of an agency, board, commission, committee or council of the City of Sulphur or a political subdivision of the state, to the extent the place is subject to the jurisdiction of the City of Sulphur.
(23)
Service lines.
(24)
Shopping malls.
(25)
Sports arenas, including enclosed places in outdoor arenas.
(26)
Theaters and other facilities primarily used for exhibiting motion pictures, stage dramas, lectures, musical recitals, or other similar performances.
(e)
Prohibition of smoking in enclosed places of employment.
(1)
Smoking shall be prohibited in all enclosed areas of places of employment without exception. This includes, without limitation, 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.
(2)
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.
(f)
Prohibition of smoking in unenclosed public places. Smoking shall be prohibited in the following outdoor places:
(1)
Within twenty-five (25) feet of main entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited, so as to prevent tobacco smoke from entering those areas.
a.
Within five (5) feet of secondary entrances or exits.
b.
A variance for less than five (5) feet distance for secondary entrances for bars and casinos shall be considered by the city council on a case-by-case basis.
(2)
In, and within twenty-five (25) feet of, outdoor seating or serving areas of restaurants.
(3)
In all outdoor arenas, stadiums, and amphitheaters. Smoking shall also be prohibited in, and within twenty-five (25) feet of, bleachers and grandstands for use by spectators at sporting and other public events.
(4)
In, and within twenty-five (25) feet of, all outdoor playgrounds.
(5)
In, and within twenty-five (25) feet of, all outdoor public transportation stations, platforms, and shelters under the authority of the City of Sulphur.
(6)
In outdoor common areas of apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities, except in designated smoking areas, not to exceed twenty-five (25) percent of the total outdoor common area, which must be located at least twenty-five (25) feet outside entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited.
(7)
Other applicable laws. This section shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.
(g)
Prohibition of smoking in outdoor places of employment.
(1)
Smoking shall be prohibited in all outdoor places of employment, unless designated smoking areas are available outside of buildings or enclosed areas, and approved administratively, where two (2) or more employees are required to be in the course of their employment. This includes, without limitation, work areas, construction sites, temporary offices such as trailers, restroom facilities, and vehicles unless designated smoking areas are available outside of buildings or enclosed areas.
(2)
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.
(h)
Where smoking not regulated.
(1)
Private homes, private residences, and private vehicles; except that this subsection shall not apply if any such home, residence, or vehicle is being used for child care or day care or as a health care facility or if a private vehicle is being used for the public transportation of children or as part of health care or day care transportation in which case smoking and vaping are prohibited
(2)
Cigar shops/hookah bars whose sole intent is to sell those products which were open prior to March 9, 2015.
(3)
E-cigarette/vapor businesses whose sole intent is to sell vapor products.
(4)
Business vehicles - private business owners who own and operate privately owned vehicles for the purpose of conducting said business with all applicable Louisiana State laws.
(5)
Designated smoking or vaping sections of outdoors seating, serving areas, balconies, and courtyards of bars, restaurants, and casinos.
(i)
Declaration of establishment or outdoor area as nonsmoking. Notwithstanding any other provision of this article, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place. Smoking shall be prohibited in any place in which a sign conforming to the requirements of subsection (l)(1) is posted.
(j)
Posting of signs and removal of ashtrays. The owner, operator, manager, or other person in control of a public place or place of employment where smoking is prohibited by this article 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) in that place.
(2)
Clearly and conspicuously post at every entrance to that place a sign stating that smoking is prohibited.
(3)
Remove all ashtrays from any area where smoking is prohibited by this article, except for ashtrays displayed for sale and not for use on the premises.
(k)
Non-retaliation; non-waiver of rights.
(1)
No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, customer, or resident of a multiple-unit residential facility because that employee, applicant, customer, or resident exercises any rights afforded by this article or reports or attempts to prosecute a violation of this article. Notwithstanding section 1015, violation of this subsection shall be a misdemeanor, punishable by a fine not to exceed one thousand dollars ($1,000.00) for each violation.
(2)
An employee who works in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other party.
(l)
Enforcement.
(1)
This article shall be enforced by the Sulphur Fire Department, Sulphur Police Department and/or any other law enforcement agency.
(2)
Notice of the provisions of this article shall be given to all applicants for a business license in the City of Sulphur.
(3)
Any citizen who desires to register a complaint under this article may initiate enforcement with the Sulphur Police Department.
(4)
City of Sulphur Code Enforcement officials may enforce this article while an establishment is undergoing otherwise mandated inspections.
(5)
An owner, manager, operator, or employee of an area regulated by this article shall direct a person who is smoking in violation of this article to extinguish the product being smoked/vaped. If the person does not stop smoking/vaping, the owner, manager, operator, or employee shall refuse service and shall immediately ask the person to leave the premises. If the person in violation refuses to leave the premises, the owner, manager, operator, or employee shall contact a law enforcement agency.
(6)
Notwithstanding any other provision of this article, an employee or private citizen may register a non-emergency complaint to law enforcement.
(m)
Violations and penalties.
(1)
Generally.
a.
Any violation of any prohibition in R.S. 40:1300.256(A) may be cited by aforementioned enforcement agency(ies) by the issuance of a citation and summons to appear before a court of proper jurisdiction.
b.
Such citations shall be in a form such that there shall be retained in each book of citations a receipt and each shall have a copy to be deposited by the law enforcement officer with a court having jurisdiction over the alleged offense.
c.
Upon the deposit of the copy, the court shall notify the alleged violator of the time and place of his hearing or of his opportunity to plead guilty by the payment of his specified fine. Failure to appear, unless the fine is paid, may be punished within the discretion of the court as contempt of court.
(2)
A person who smokes in an area where smoking is prohibited by the provisions of this article shall be guilty of a misdemeanor, punishable by:
a.
A fine not exceeding one hundred dollars ($100.00) for a first violation.
b.
A fine not exceeding two hundred fifty dollars ($250.00) for a second violation within one (1) year.
c.
A fine not exceeding five hundred dollars ($500.00) for each additional violation within one (1) year.
(3)
Except as otherwise provided by this section, 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 section shall be guilty of a misdemeanor, punishable by:
a.
A fine not exceeding one hundred dollars ($100.00) for a first violation.
b.
A fine not exceeding two hundred fifty dollars ($250.00) for a second violation within one (1) year.
c.
A fine not exceeding five hundred dollars ($500.00) for each additional violation within one (1) year.
(4)
In addition to the fines established by this section, violation of this section by a person who owns, manages, operates, or otherwise controls a public place or place of employment may result in the suspension or revocation of any permit or license issued to the person for the premises on which the violation occurred.
(5)
Each day on which a violation of this section occurs shall be considered a separate and distinct violation.
(6)
All fines imposed and collected pursuant to this section shall be transmitted to the City of Sulphur General Fund unless Louisiana State Statute deems otherwise.
(n)
Public education. Louisiana Campaign for Tobacco Free Living shall engage in a continuing program to explain and clarify the purposes and requirements of this article to citizens affected by it, and to guide owners, operators, and managers in their compliance with it. The program may include publication of a brochure for affected businesses and individuals explaining the provisions of this section.
(o)
Governmental agency cooperation. The City of Sulphur shall annually request other governmental and educational agencies having facilities within the City of Sulphur to establish local operating procedures in cooperation and compliance with this article. This includes urging all federal, state, parish and school district agencies to update their existing smoking control regulations to be consistent with the current health findings regarding secondhand smoke.
(p)
Construction of article.
(1)
Nothing in this article shall be construed to permit smoking or vaping where it is otherwise prohibited by law or regulation.
(2)
Nothing in this article shall be construed to preclude owners, operators, managers, employers or other persons having control of any premises covered by this article from prohibiting smoking or vaping on such premises to a greater extent than is provided by this article, in accordance with applicable law.
(3)
This article shall be liberally construed so as to further the general purposes stated in this article and the specific purposes of the particular provisions involved.
(4)
If any provision, clause, sentence, or paragraph of this article or the application thereof to any person or circumstances shall be held invalid, that 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.
(q)
Effective date. This article shall become effective thirty (30) days after the date of adoption but not enforced until ninety (90) days.
(Ord. No. 1286, 4-13-15, eff. 5-13-15)