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FY2014-03 Second-hand Smoke Ordinance FAILED I Introduced by: KIB Manager Requested by Assembly Members Griffin and 2 Bonney 3 Drafted by: Assembly Members Griffin, 4 Bonney, and Borough Attorney 5 Introduced: July 2, 2013 Public Hearing: July 18, 2013 6 7 Failed: July 18, 2013 8 KODIAK ISLAND BOROUGH 9 ORDINANCE NO. FY2014-03 10 11 AN ORDINANCE OF THE ASSEMBLY OF THE &irk SLAND 12 BOROUGH SUBMITTING THE QUESTION OF T ADOP 0 •F A a 13 SECONDHAND SMOKE CONTROL ORDINANC THE VOT OF 14 THE BOROUGH AT THE OCTOBER 1, 20 3 R AR MUNI R L 15 ELECTION 16 17 WHEREAS, the severe disease-causing an., ::diy har of expo ' ,, secondhand 18 smoke have been documented by the U S re -one a 'eral and Yhumerous other 19 recognized scientific authorities; and 'isAii: ii 20 21 WHEREAS, exposure to secon.ad• smoke is reco. y as a leading cause of 22 preventable death and the U Su Ce• General ' .s .rermined that exposure to 23 secondhand smoke causes pl'. ximate - 50 000 needy.s non-smoker deaths from lung 24 cancer and heart disease eaa larii,n the U i e. State- nd 25 g:' 26 WHEREAS, it ha been determineglthy the U,S. Surgeon General that air ventilation 27 systems and filtratio c`art ng systems c Ito ffectively protect health from secondhand 28 smoke and that only c pte =r, a oke-free vironments can protect health; and 29 Sm., 30 WHERE ', orkers an m-mbers 'a he public exposed to secondhand smoke for only a 31 short .'-riod of t , e can exprience adverse cardiovascular effects and there is no safe level 32 of : ''_ to t e:=a any cars o•ens in secondhand smoke. 33 f 34 NOW, THER Fs RE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND 35 BOROUGH T '•It; 36 37 Section 1: Th= ollowing ballot measure shall be submitted to the qualified voters of the 38 Kodiak Island Borough at the October 1, 2013 Regular Municipal Election. 39 The question must receive an affirmative vote from a majority of the qualified 40 voters voting on the question to be approved. 41 PROPOSITION NO. 1 42 43 "Shall the Kodiak Island Borough adopt a 44 secondhand smoke control ordinance?" 45 A "yes" vote would authorize an ordinance prohibiting smoking in enclosed public 46 areas and certain outdoor areas. Kodiak Island Borough, Alaska Ordinance No. FY2014-03 Page 1 of 6 47 Section 2: This ordinance is of a special nature. If approved by the voters, the ordinance 48 becomes effective January 2, 2014; and the Borough code shall be amended 49 to add a new Chapter 8.50 Secondhand Smoke Control in Title 8 Health and 50 Safety of the Borough Code as follows: 51 52 Chapter 8.50 53 SECONDHAND SMOKE CONTROL 54 Sections: 55 8.50.010 Definitions. 56 8.50.020 Enclosed areas where smoking is prohibited. 57 8.50.030 Reasonable distance. 58 8.50.040 Outdoor areas where smoking is prohibited. 59 8.50.050 Declaration of smoke-free area. . 60 8.50.060 Exceptions — Areas where smoking is noZpzohibi e•. 61 8.50.070 Signage — Obligations of property ownth and empll yell. 62 8.50.080 Violations and penalties. 63 8.50.090 Enforcement. .. 64 8.50.100 Nonretaliation and nondiscrimination. ,t4 65 8.50.110 Public education. 66 .e 67 8.50.010 Definitions. , 68 The following definitions pe,,in to thrvo apter: 69 A. "Bar" means a business.tfia s Is alcoholic beverage or consumption on the premises 70 and in which the serving o f is ortl}t Cdeital to the consumption of those 1'4 PIAIV 71 beverages, including but not 11‘ ,.. to ta'e:ns, nightclubs, cocktail lounges, and 72 cabarets. sR 73 B. 'Business" mean " an;: atural perso' Per°legal entity (such as a business-for-profit 74 corporation, nonprofit c.r.c)r-tien, so e proprietorship, partnership, limited liability 75 compan trust) th " uno -rta -stto"provide goods or services to the public regardless 76 of Cher the busines exists or ',conducted for the purpose of making a profit. 77 C. " m+toyee' sans any erson who is employed by any employer for compensation or 78 volunte s hi saner sen)i 79 D. "Emplo ' eans a person, business, partnership, association, corporation including a 80 municipal `o oration, trust, or nonprofit entity that employs the services of one or more 81 individual pe s 82 E. "Enclosed are . means the interior space within a building or other facility between a 83 floor and a ceiling that is enclosed on all sides by wails, windows, or doors, whether the 84 windows or doors are open or closed, the combination of which extend from the floor to 85 the ceiling. 86 F. "Health care facility" means a business, office, or institution that provides care or 87 treatment of diseases or disability, whether physical, mental or emotional. 88 G. "Operator" means an employer and the owner or manager of a business or place of 89 employment. 90 H. "Place of employment" means an area under the control of a public or private employer, 91 including but not limited to work areas, places of business, private offices, employee Kodiak Island Borough, Alaska Ordinance No. FY2014-03 Page 2 of 6 92 lounges, restrooms, conference rooms, classrooms, cafeterias, hallways, and vehicles. 93 A vehicle is not a place of employment if it is assigned to, driven by, and used 94 exclusively by a single individual. A private residence is not a place of employment 95 unless it is used as a child care, adult care or health care facility on a fee for service 96 basis. 97 I. "Private club" means an organization (whether a legal entity or an informal association of 98 persons) that is the owner, lessee, or occupant of a building used for club purposes, 99 which is operated solely for a recreational, fraternal, social, patriotic, political, 100 benevolent, or athletic purpose, but not for pecuniary gain and which has been granted 101 an exemption from the payment of federal income tax as a club nee,,_,6 U.S.C. Section 102 501. 103 J. "Public place" means any area into which the public is in "°d or permitt cluding but 104 not limited to educational facilities, health care 'Wes, hotels • motels, 105 entertainment establishments, restaurants, food a d Bever..= ervice esttishments, 106 bars, offices, retail stores, and transportation hties and v-4 ct-s accessible to the 107 general public. A private club is a public pla when b=1,g used h f tetion open to 108 the public. A private residence is not a pds apiece u,' - •;., it i us-• s a child care, 109 adult care or health care facility on a fee for serum":.- s. 110 K. "Restaurant" means an eating esta9lishment, inclu•ikg;•ut not lid t-d to a coffee house, 111 cafeteria or sandwich shop that gi es or offers for s. = fop o the public, guests or 112 employees, including the kitche 9 food prepay ion -.s. The term "restaurant" 113 includes a bar area within staurant ' 114 L. "Smoking" means inhaling, . .ling, bur i g or car g any lighted or heated tobacco 115 product, including E-Cigarette . :nd othe'; -'.or sed nicotine delivery devices. 116 8.50.020 Enclosed =a, where smoki g" prohibited. 117 Smoking is prohibi . h following 131319,19 . 118 A. Inside an enclosed blic -rea 1,cluding a building or vehicle owned or controlled by the 119 borou• o. •orough including every room, chamber, place of meeting 120 or; blic assembly urger the co trot of any borough board, assembly, commission, 121 ittee, o orough a$thority. 122 B. Insid .Med area t at is a public place within the borough, including, but not 123 limited , every health ca e facility, transportation facility, retail store, place of business, 124 bus, taxica , orts arena, or other enclosed area open to the public. 125 C. Inside every e c e ed area within a place of employment. 126 D. Inside every e osed area within a private club licensed under state law for the sale of 127 alcoholic beverages. 128 E. A private residence when used as a child care, adult care, or health service facility on a 129 fee for service basis. 130 F. Rooms that are rented to guests for dwelling, lodging, or sleeping purposes on a non- 131 permanent basis. This includes, but is not limited to hotels, motels, lodges, bed and 132 breakfast establishments, hostels, shelters, or boarding houses. 133 G. Any facility used for the care, housing, or recreation of the elderly, including nursing 134 homes, long term care facilities, assisted living residences with common use corridors. Kodiak Island Borough, Alaska Ordinance No. FY2014-03 Page 3 of 6 135 8.50.030 Reasonable distance. 136 To ensure that smoke does not enter an enclosed area where smoking is prohibited 137 through entrances, windows, ventilation systems or any other means, smoking is permitted 138 only at a reasonable distance outside an enclosed area, public place or place of 139 employment where smoking is prohibited. Unless otherwise stated under this chapter, or 140 increased by the owner, operator, manager, or other person having control of the property, 141 the minimum reasonable distance is 50 feet. 142 8.50.040 Outdoor areas where smoking is prohibited. 143 Smoking is prohibited in the following places: 144 A. Within 50 feet of any entrance to a hospital or medical cliat-. 145 B. Within 50 feet of any entrance to an enclosed area on pf,T1perty owne.'o ontrolled by 146 the borough or borough school district, including every roo41,4c"'amber, place fik eeting or 147 public assembly under the control of any borough boar.,assem•ly„commission committee, 148 or borough authority. Smoking is allowed only in desi•nate.'smokino°e eas. 149 C. Within 15 feet of the entrance to a premis- ' icensedhinder stack . to,sell alcoholic 150 beverages for consumption on the premises. 151 D. An outdoor arena, stadium or amphitheater, -x•eq in a desi•na ed smoking area, 152 which may be established only in a,,//perimeter areat least 50 ''eet from bleachers, 153 grandstands, seating areas or concesbn stands. 154 E. Any municipal operated play plaeehd or park. 155 156 8.50.050 Declaration of smd e- , e area. 157 Smoking is prohibited on an property (in nclo d or outdoor areas) if the owner, 158 operator, manager, or other person having co trot of the property chooses to prohibit 159 smoking. Smoking i .r• ibited in any pi in wh ch a sign conforming to the requirements 160 of KIBC 8.50.070 is p s 161 8.50.060 E Q ztions —tees; he a stn•king is not prohibited. 162 A. Sm Ogg is not prohibi in the fo lowing places: 163 > signa . smokin areas described in KIBC 8.50.030, 8.50.040, or areas on 164 ..r•ug ep perty de •r5ated by the borough manager or designee as smoking 165 are.> 166 2. A priv el -sidence, except when used as a child care, adult care, or health service 167 facility on- _ or service basis. 168 3. An area on.e deck or patio adjoined to a premises licensed under state law to sell 169 alcoholic beverages for consumption on the premises. The 15 foot separation from 170 the entrance to the enclosed area must still be maintained. 171 4. A business whose sole enterprise is to sell and cater to the cultural side of tobacco 172 smoking. This exception is dependent upon proper structural separation and 173 ventilation so as to restrict smoke to the business occupancy holding the exception. 174 This exception will only be granted after receiving compliance authorization by the 175 manager or the manager's designee following a review of an as-built drawing. Kodiak Island Borough, Alaska Ordinance No. FY2014-03 Page 4 of 6 176 B. Nothing in this chapter shall be construed or interpreted to provide any person a right to 177 smoke on premises or property owned, leased or under the legal control of another. 178 179 8.50.070 Signage — Obligations of Operators. 180 A. Every operator of a place of employment or a public place must conspicuously post 181 signage sufficient to inform the public and employees that smoking is prohibited in every 182 enclosed place in the premises or vehicle. 183 B. The operator or other person having control of a building, enclosed area or other area 184 where smoking is prohibited by this chapter must remove any ashtrays and other 185 smoking accessories offered for on-premises use. 186 C. An employer must provide a smoke-free workplace, an• ' -it - a employer nor 187 operator having legal control of the premises may per an employer stomer, or 188 other person to smoke inside an enclosed area or pla - • •loyment or •. it smoke 189 to infiltrate into an area where smoking is prohibite der the%•visions oft . chapter. 190 D. An operator or employee of an establishmentto this • ;'later who •bserves a 191 person smoking in violation of this chapter • t imme. -tely dir- t t•e •-rson to stop 192 smoking. If the person violating the chap a •'.-s no s.. s okinsii ,e operator or 193 employee must direct the person to leave the pre ui' e . .,,,,,, 194 8.50.080 Violations and penalties. 195 A. It is unlawful for any person to s e any area wh re s` n`ng is prohibited or for any 196 person who owns, manage ,.operate or otherwise c tr©s the use of premises subject 197 to this chapter to fail to com•y ith the prow ions of chapter. 198 B. A person who smokes in an a here s • "i; • is:: ohibited by the provisions of this 199 chapter is subject to a fine of $10'0'004 200 C. An operator who n rols a public place,.. business, an enclosed area, place of 201 employment or pl 40 • ,'bhi d care or otR_r +remises in violation of this chapter is subject 202 to KIBC 8.18 090(B <nd hold ing •-:nalties: 203 1. A tt�eQwarning try-irst i on; 204 2. t.' me of $100.00 f•r a seconolation; 205 Acki. ine or%50.00 fo;i third violation within a 24-month period; and 206 4. a fi - of.3-n0.00 for lfourth or additional violation within a 24-month period. 207 D. Each v o at1•n and each and every day that a violation occurs is a separate violation. 208 8.50.090 Enforc= r 209 A. The borough r -nager or designee is responsible for the active enforcement of this 210 chapter. 211 B. A person who desires to register a complaint hereunder may initiate enforcement 212 consideration with the borough manager or designee. 213 C. Before citing an operator for violation of this chapter, the borough manager must provide 214 the operator with a written warning for the violation. Thereafter, the operator is subject to 215 the penalties set out in KIBC 8.50.080. 216 D. In addition to the remedies provided in this chapter, a person aggrieved by the failure of 217 the operator or other person in control of a public place or place of employment to Kodiak Island Borough, Alaska Ordinance No. FY2014-03 Page 5 of 6 218 comply with the provisions of this chapter may apply for injunctive relief to enforce those 219 provisions in a court of competent jurisdiction. 220 8.50.100 Nonretaliation and nondiscrimination. 221 A. No operator may discharge, refuse to hire, or in any other manner retaliate or 222 discriminate against any employee, applicant for employment, or customer because 223 such employee, applicant for employment or customer insists upon compliance with a 224 requirement of this chapter. Violation of this subsection is punishable by a fine not to 225 exceed $300.00 for each violation. 226 B. An employee who works in a setting where an employer allows rrimo g does not waive 227 or otherwise surrender any legal rights the employee may ..iie�g in; t _he employer or 228 any other person. A 229 8.50.110 Public education. 230 The borough manager will engage in a continui effo to ed 'Gi the public about the 231 requirements of this chapter and to guide owns , operatbm,� and _ 3ger of enclosed 232 areas and other areas subject to the provisions o thi chaptasensure ' lance. 233 234 8.50.120 Other Applicable Laws vg- 235 This article shall not be interpretedror construed to pe ".smo ing where it is otherwise 236 restricted by other applicable laws 237 ii 238 Section 3: If approved by taii, oters of - election n October 1, 2013, the ordinance 239 set forth in Section ., all bee ed i e J nuary 1, 2014. 240 241 Section 4: This . .i.ance shall be e e five upon approval. 242 243 ADOPTED Bt,.T °Jli_ . BLY • F THE KODIAK ISLAND BOROUGH 244 THI / ` '®At OF 2014 245 ' ' 246 KODIAK ISLAND BOROUGH 247 ' ' 248 249 250 ATTEST: Jerome M. Selby, Borough Mayor 251 252 253 254 Nova M. Javier, MMC, Borough Clerk Kodiak Island Borough, Alaska Ordinance No. FY2014-03 Page 6 of 6