§ 9. SMOKING IN PUBLIC PLACES

A.

DEFINITIONS:

As used in this article, the following words and terms shall have the meanings ascribed to them in this section, unless the context of their usage clearly indicates another meaning:

Bar. A lounge bar or restaurant bar.

Business. A sole proprietorship, partnership, joint venture, corporation, or other business 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.

Dining area. Any area in which meals or entrees are served but shall not include areas where the incidental service of hors' d'oeuvres, snacks, pretzels, popcorn, or similar items are provided.

Educational facility. Any public or private day care center, nursery school, elementary school, middle school, junior high school, senior high school, vocational school, special education center, or institution of higher education.

Employee. Any person other than a domestic household servant who is employed in consideration of direct or indirect monetary wages, commissions or profits and any contract employee, or a person who volunteers services for a non-profit entity.

Employer. Any person, business, partnership, association, corporation, including a municipal corporation, or non-profit entity that employs the services of one (1) or more employees.

Enclosed areas. All space between a floor and ceiling that is enclosed on all sides by smoke-impermeable walls or windows (exclusive of doorways) that extend from that floor to the ceiling. An enclosed area may be a portion of a larger enclosed area.

Exception area. An area in which smoking is permitted pursuant to this section.

Large multi-tenant building. A multi-tenant building with twenty thousand (20,000) square feet or more of useable floor space that has a common heating, ventilating, and air conditioning system in which fifty (50) percent or more of the gross useable floor space is devoted to other than residential, restaurant, hotel/motel, and retail establishment uses. The exterior area within twenty-five (25) feet of any entrance or exit door or wheelchair ramp serving the door, if any, shall also be included, to the extent it is within the building owner's control and is not being used as a restaurant outdoor seating area.

Lounge bar. All areas of any establishment having fifty (50) or more percent of its gross sales from sale of alcoholic beverages for on-premises consumption.

Minor. Any person under eighteen (18) years of age.

Multi-tenant. Any building that has two (2) or more separate occupancies, such as a building owner and one (1) or more tenant occupancies, or if the building owner has no occupancy in the building, then two (2) or more tenant occupancies. For this purpose, an occupancy shall not include a transient occupancy of ten (10) days or less.

Place of employment. Any area under the control of an employer to which employees have access during the course of employment, including but not limited to, work areas, employee lounges, restrooms, conference rooms, meeting rooms, hallways, stairs, employee cafeterias, 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.

Private function. A gathering of persons for the purpose of deliberation, education, instruction, entertainment, amusement, or dining where membership, attendance, or specific invitation is a prerequisite for entry and where the event is not intended to be open to the public.

Private residence. A private home where food is prepared or served for guests and individual family consumption.

Public ground transportation facility. Any facility used in connection with public ground transportation into which the public is provided access.

Public place. An enclosed area or any portion thereof to which at any time the public is admitted by general invitation or is otherwise given generally unrestricted access, or routinely has access for municipal services, including but not limited to an enclosed area, which, at any time is being utilized in whole or in part by the public. The imposition of an entry fee, use charge, membership requirement or other condition of entry to an enclosed area shall not prevent it constituting a public place, provided that admission is granted on a uniform basis to persons who meet the established criteria for use or admission. In addition to the enclosed area described above, the term public place shall include any associated exterior area, whether enclosed or not, that is within twenty-five (25) feet of any entrance or exit door or wheelchair ramp serving the door, if any, that provides public ingress or egress to the public place, to the extent that the area is within the control of the person who controls the public place and is not being used as a restaurant outdoor seating area.

Restaurant. An eating establishment or any place where food is manufactured, packaged, produced, processed, transported, stored, sold, commercially prepared, vended, or otherwise handled. The term includes any such place regardless of the duration of the permit or whether there is a charge for the food. The term includes, but is not limited to, any coffee shop, cafeteria, luncheonette, sandwich shop, soda fountain, private or public school cafeteria or eating establishment, and any other eating establishment that gives or offers food to the general public, guests, or employees, including kitchens in which food is prepared on the premises for serving elsewhere, such as catering facilities, except that the term restaurant shall not be construed to include any portion of the establishment that constitutes a restaurant bar. A lounge bar shall not constitute a restaurant for any purpose.

Restaurant bar. One (1) contiguous area of a restaurant that is primarily devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which food service, if any, is only incidental to the consumption of such beverages.

Restaurant outdoor seating area. Any patio, sidewalk cafe, or similar unenclosed area in which a contiguously situated restaurant provides outdoor food service to its patrons.

Retail establishment. Any enclosed area in any portion of which goods or services of any nature are sold or offered for sale directly to consumers including, but not limited to grocery stores, convenience stores, dry goods stores, banks, department stores and specialty shops.

Retail establishment mall. An enclosed area that connects customer entrances to two (2) or more retail establishments and is used for customer pedestrian traffic, regardless of whether the area is also used for other purposes. The term retail establishment mall does not include separate enclosed areas that may be appended thereto. Separate enclosed areas that are appended to a retail establishment mall shall be subject to separate regulation hereunder, as applicable.

Smoke or smoking. The possessing, carrying, or holding of a burning tobacco product, lighted pipe, cigar, or cigarette of any kind, or any other lighted smoking equipment or device, or the lighting, emitting, inhaling, exhaling, or burning of any tobacco product, pipe, cigar, or cigarette of any kind or any other lighted smoking equipment or device.

Tobacco specialty retail shop. An enclosed area utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.

B.

SMOKING PROHIBITED IN CERTAIN AREAS

1.

Smoking is prohibited in all enclosed public places within the city, including but not limited to, the following places:

a.

Aquariums, galleries, libraries, and museums;

b.

Areas available to and customarily used by the general public in businesses and non-profit entities patronized by the public, including but not limited to, professional offices, banks, laundromats, hotels, and motels;

c.

Auditorium, convention centers, and convention facilities;

d.

Elevators and stairs;

e.

Facilities primarily used for exhibiting a motion picture, stage, drama, lecture, theatre, or other similar performance, except performers when smoking is a part of the stage production;

f.

Licensed child care, adult day care, and health care facilities, including hospitals, nursing homes, doctors' and dentists' offices, and waiting rooms;

g.

Educational facilities;

h.

Lobbies, hallways, and other common areas in apartment buildings, multi-tenant buildings, large multi-tenant buildings, condominiums, trailer parks, retirement facilities, nursing homes, assisted living facilities, hotels, motels, and other multiple-unit residential facilities;

i.

Polling places;

j.

Public transportation facilities, other than limousines for hire, including buses, taxicabs, ferries, and public transit deposits, terminals, and waiting areas;

k.

Restaurants, businesses, commercial establishments, and places of employment;

l.

Restrooms, lobbies, reception areas, hallways, and other common use areas;

m.

Retail establishments and retail establishment malls;

n.

Rooms, chambers, places of meeting or public assembly, including governmental facilities owned, leased, operated, or managed by a governmental entity;

o.

Sports arenas, including enclosed areas in outdoor arenas.

2.

A person commits an offense if the person is knowingly or intentionally in possession of a burning tobacco product or smokes in any place where smoking is prohibited.

C.

SMOKING NOT REGULATED IN CERTAIN AREAS

1.

Notwithstanding any other provision of this section to the contrary, the following areas shall be exempt from the provisions of this section:

a.

Billiard halls, where the establishment uses more than fifty (50) percent of the premises for operational pool tables, provided that food sales constitute less than ten (10) percent of gross sales, and minors are not admitted, unless accompanied by their parent or legal guardian. Billiard halls may establish no smoking hours during which minors may be admitted;

b.

Bingo facilities, provided that food sales constitute less than ten (10) percent of gross sales, and minors are not admitted, unless accompanied by their parent or legal guardian. Bingo facilities may establish no smoking hours during which minors may be admitted;

c.

Comedy clubs;

d.

Enclosed bar areas;

e.

Enclosed dining areas within restaurants designated as exception areas in accordance with subsection E of this section, provided that minors are not admitted unless accompanied by their parent or legal guardian;

f.

Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided however, that not more than twenty-five (25) percent of rooms rented to guests in a hotel or motel may be so designated;

g.

Outdoor seating areas of restaurants designated as exception areas in accordance with subsection E of this section, provided however, that a non-smoking area shall also be provided in outdoor seating of restaurants;

h.

Private residences, except when used as a licensed child care, adult day care, or health care facility;

i.

Private and semiprivate rooms in nursing homes, assisted living facilities, and long term care facilities that are occupied by one (1) or more persons, all of whom are smokers and have requested in writing to be placed in a room where smoking is permitted;

j.

Private functions in facilities where smoking is not prohibited;

k.

Tobacco specialty retail shops; provided however, that smoke from these places does not infiltrate into areas where smoking is prohibited under the provisions of this section.

D.

POSTING OF SIGNS

1.

It shall be the duty of every person having ownership, possession, or control of any place, public or private, where smoking is prohibited to post a clearly visible sign with the words "No Smoking" at each entrance to the area where smoking is prohibited. Additionally, 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) may be posted at each entrance where smoking is prohibited.

2.

All areas where smoking is prohibited shall be equipped with facilities for the extinguishment of smoking materials. Facilities for extinguishment of smoking materials shall be accompanied by a clearly visible sign stating "No Smoking."

E.

EXCEPTION AREAS

1.

A person having ownership, possession, or control of an area where smoking is generally prohibited may, but is not required to, designate an exception area in which smoking is permitted. Any exception area that is designated must be created and maintained in strict compliance with this section.

2.

An exception area shall not be designated in an elevator, restroom, stairway, public means of mass transportation, or areas where possession of a burning tobacco product or smoking is prohibited by the Fire Code, state or federal law, or other city ordinances. No place other than a bar or a tobacco specialty retail shop may be designated as an exception area in its entirety.

3.

Any area that is designated as an exception area must be located in a separately ventilated enclosed area and situated so that air is not drawn into or across the non-smoking area. Physical barriers and ventilation systems shall be used to minimize the effect of smoke in adjacent non-smoking areas.

4.

An exception area cannot be located in such a manner that requires patrons to travel through the smoking area to reach a non-smoking area.

5.

The total of all designated smoking areas within an establishment may not exceed thirty (30) percent of the seating area of the establishment.

6.

It shall be the duty of every person having ownership, possession, or control of an exception area to post a clearly visible sign at each entrance thereto indicating the bounds of the exception area and stating that smoking is permitted therein.

7.

The exception area must contain ashtrays, containers, or other facilities for extinguishing smoking materials prior to leaving the exception area.

F.

RULES AND REGULATIONS

The Community Services Department of the City of Santa Fe will be responsible for the enforcement of these regulations. The Director of the Community Services Department may promulgate rules and regulations consistent with this section to ensure compliance, including inspection, reporting, and compliance procedures. The Director may establish a program to explain and clarify the purposes of this section to citizens affected by it and to guide owners, operators and managers in their compliance with it.

G.

OTHER SMOKING PROHIBITIONS NOT AFFECTED

Nothing in this article shall be construed to repeal or excuse compliance with smoking prohibitions or restrictions imposed by the Fire Code or any other state or federal law or ordinances of the city. The extent that any offense specified in this article also constitutes an offense under the Fire Code, then the offense shall be punishable pursuant to the Fire Code.

H.

VIOLATIONS; PENALTY

Whenever in this article an act is prohibited or is made or declared to be unlawful or an offense or misdemeanor, or whenever in this article the doing of any thing or act is required or the failure to do any thing or act is prohibited, the violation of the provision shall be and constitute a misdemeanor punishable, upon conviction, fined in accordance with Chapter 1, General Provisions, Code of Ordinances, Section 5, General Penalty for Violations of Code. Each violation shall constitute and be punishable as a separate offense. Prosecution or conviction under this provision is cumulative of and shall never be a bar to any other civil or administrative remedy provided or allowed in this article or by law.

(Ordinance No. 13-2005 of September 8, 2005, Sec. 1)