ORDINANCE NO. 5073
AN ORDINANCE ADDING A NEW DIVISION 6 TO CHAPTER 17 OF THE
MUNICIPAL CODE, TOWN OF NORMAL - SMOKING REGULATORY ACT OF 2006
WHEREAS, New York City, Chicago, Los Angeles, Dallas and Boston
strengthened their existing clean indoor air laws by adopting
strict no smoking legislation to protect the health of their
citizens; and
WHEREAS, within the State of California, the cities of Los
Angeles, San Francisco, San Diego and other major cities have
banned smoking in their restaurants and bars; and
WHEREAS, the States of California, Massachusetts, Rhode Island,
Utah, Vermont, Idaho, Connecticut, South Dakota, Maine,
Delaware, Florida and Washington adopted protective clean indoor
air laws that eliminate workers’, patrons’ and visitors’
exposure to secondhand smoke; and
WHEREAS, secondhand smoke, which contains 4,000 chemicals, 63 of
which cause cancer, is the third leading cause of preventable
death in the United States, and the National Cancer Institute
determined in 2000 (Monograph #10) that secondhand smoke is
responsible for the early deaths of as many as 65,000 Americans
annually; and
WHEREAS, numerous studies have found that tobacco smoke is a
major contributor to indoor air pollution, and that breathing
secondhand smoke (also known as environmental tobacco smoke) is
a cause of disease in healthy nonsmokers, including heart,
stroke, respiratory disease, and lung cancer; and
WHEREAS, the Public Health Service’s National Toxicology Program
has listed secondhand smoke as a known carcinogen (U. S. DHHS,
2000, citing Cal. EPA, 1997); and
WHEREAS, the ills of smoking and secondhand smoke are well
documented in all of the independent medical studies and
secondhand smoke is particularly hazardous to elderly people,
individuals with cardiovascular disease, and individuals with
impaired respiratory function, including asthmatics and those
with obstructive airway disease; and
WHEREAS, children exposed to secondhand smoke have an increased
risk of asthma, respiratory infections, sudden death syndrome,
developmental abnormalities, and cancer; and
WHEREAS, the Americans with Disabilities Act, which requires
that disabled persons have access to public places and
workplaces, deems impaired respiratory function to be a
disability; and
WHEREAS, (1) the U. S. Surgeon General has determined that the
simple separation of smokers and nonsmokers within the same air
space may reduce, but does not eliminate, the exposure of
nonsmokers to secondhand smoke, (2) the Environmental Protection
Agency has determined that secondhand smoke cannot be reduced to
safe levels in businesses by high rates of ventilation, (3) air
cleaners, which are only capable of filtering the particulate
matter and odors in smoke, do not eliminate the known toxins in
secondhand smoke, (4) American Society of Heating, Refrigerating
and Air Conditioning Engineers (ASHRAE) bases its ventilation
standards on totally smoke-free environments because it cannot
determine a safe level of exposure to secondhand smoke, which
contains cancer-causing chemicals, and ASHRAE acknowledges that
the technology does not exist that can remove chemicals from the
air that cause cancer; and
WHEREAS, a recently promulgated ASHRAE Position Document on
Environmental Tobacco Smoke concludes that at present, the only
means of eliminating health risks associated with indoor
exposure is to ban all smoking activity; and
WHEREAS, the ASHRAE Position Document further concludes that no
current ventilation, air cleaning or other technologies have
been demonstrated to control health risks from environmental
tobacco smoke exposure in spaces where smoking occurs; and
WHEREAS, a significant amount of secondhand smoke exposure
occurs in the workplace, and employees who work in smoke-filled
businesses suffer a 25-50% higher risk of heart attack and
higher rates of death from cardiovascular disease and cancer, as
well as increased acute respiratory disease and a measurable
decrease in lung function; and
WHEREAS, smoke-filled workplaces result in higher worker
absenteeism due to respiratory disease, lower productivity,
higher cleaning and maintenance costs, increased health
insurance rates and increased liability claims for diseases
related to exposure to secondhand smoke; and
WHEREAS, numerous economic analyses examining restaurant and
hotel receipts and controlling for economic variables have shown
either no difference or a positive economic impact after
enactment of laws requiring workplaces to be smoke-free; and
WHEREAS, creation of smoke-free workplaces is sound economic
policy and provides the maximum level of employee health and
safety; and
WHEREAS, smoking is a potential cause of fires, cigarette and
cigar burns and ash stains on merchandise and fixtures and
contributes to the economic damage of businesses; and
WHEREAS, enacting a Clean Indoor Air Ordinance will eliminate
secondhand smoke exposure in all workplaces and public places
including without limitation restaurants and bars; and
WHEREAS, the Council finds and declares that the purposes of
this Ordinance are (1) to protect the public health and welfare
by prohibiting smoking in all public places and places of
employment, and (2) to guarantee the right of nonsmokers to
breathe smoke-free air which shall have priority over the desire
to smoke; now, therefore,
BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE
TOWN OF NORMAL:
SECTION ONE. Chapter 17 of the Municipal Code is hereby amended
by adding a new Division 6 to read as follows:
17.6-1 Title.
This Division shall be known as the Smoking Regulatory Act of 2006.
17.6-2 Interpretation With Other Laws.
Nothing in this Division overrides any existing elimination of smoking that is already covered by fire code restrictions.
17.6-3 Definitions.
The following words and phrases whenever used in Sections 17.6-3
through 17.6-15 shall have the following meanings:
“Adult Day Care Home” means a private residence which receives
for care one or more aging or disabled adults, not related to
the family.
“Business” means any sole proprietorship, partnership, joint
venture, corporation, limited liability company or other
business entity formed for profit-making purposes, including
without limitation 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.
“Child Day Care Home” means a private residence which receives
for care one or more children under the age of 12, not related
to the family.
“Church” means a facility or outdoor place of public assembly
primarily and regularly used for religious worship or religious
instruction.
“Employee” means any 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 for a non-profit
entity.
“Employer” means any person, business, partnership, association,
corporation, including without limitation a municipal
corporation, trust, or non-profit entity that employs the
services of one or more individual persons.
“Enclosed Area” means all space in any structure or building
that is enclosed on all sides by any combination of walls, half
walls, windows, or doorways extending from floor to the ceiling,
regardless of whether they are open or closed.
“Facility” means any enclosed structure or building intended for
human occupancy.
“Health care facility” means any office or institution providing
care or treatment of diseases, whether physical, mental, or
emotional, or other medical, physiological, or psychological
conditions, including without limitation hospitals,
rehabilitation hospitals, clinics, nursing homes, homes for the
aging or chronically ill, laboratories, and offices of surgeons,
chiropractors, physical therapists, physicians, dentists, and
other specialists within these professions. This definition
shall include all waiting rooms, hallways, private rooms,
semi-private rooms and wards within health care facilities.
“Outdoor Place of Public Assembly” means any sports arena,
recreational area, park, theater, and similar place where
members of the general public assemble and congregate in a
designated seating area in order to witness an event or
performance open to the public.
“Place of employment” means any enclosed area under the control
of a public or private employer that employees frequent during
the course of employment, including without limitation work
areas, employee lounges, restrooms, conference rooms,
classrooms, employee cafeterias, hallways and vehicles. A
private residence is not a “place of employment” unless it is
used as a child day care home, adult day care home, health care
facility or home-based business of any kind open to the public.
“Private Club or Lodge” 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 if alcoholic beverages
are sold such sale is 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.
“Public place” means any enclosed area to which the public is
invited or in which the public is permitted, including without
limitation banks, any business, educational facilities,
government buildings, health care facilities, laundromats,
museums, public transportation facilities, reception areas,
restaurants, bars/taverns, retail food production and marketing
establishments, retail service establishments, retail stores,
service line, shopping malls, sports arenas, theaters, outdoor
place of public assembly, waiting rooms and common areas in
multiple family residences. A private residence is not a “public
place” unless it is used as a child day care home, adult day
care home, health care facility or home-based business of any
kind open to the public.
“Retail tobacco store” means any retail store utilized primarily
for the sale of tobacco products and accessories and in which
the sale of other products is merely incidental and where no one
under 18 is permitted.
“Service line” means any indoor line at which one (1) or more
persons are waiting for or receiving services of any kind,
whether or not the service involves the exchange of money.
“Shopping mall” means any enclosed walkway or hall area that
serves to connect retail or professional establishments.
“Smoking” means inhaling, exhaling, burning or carrying any
lighted cigar, cigarette, pipe, hookah or other lighted tobacco
product in any manner or in any form.
“Sports Arena, Enclosed or Semi-Enclosed” means any sports
pavilion, stadium, gymnasium, health spa, boxing arena, swimming
pool, roller and ice rink, bowling alley and other similar
places where members of the general public assemble to
participate in or witness sports, cultural, recreational or
other events.
Section 17.6-4 Town Owned Facilities.
Smoking shall be prohibited in any Town facility and any Town vehicle, including without limitation facilities and vehicles owned, leased, or operated by the Town of Normal.
Section 17.6-5 Prohibition of Smoking in Public Places and Places of Employment.
Smoking shall be prohibited in all enclosed public places and places of employment within the Town of Normal, except as provided in Section 17.6-8.
Section 17.6-6 Prohibition of Smoking in Outdoor Place of Assembly.
Smoking is prohibited at any outdoor place of public assembly located within the Town of Normal.
Section 17.6-7 Reasonable Distance.
Smoking is prohibited within fifteen feet of any public entrance to an area in which smoking is prohibited.
Section 17.6-8 Where Smoking is not Regulated.
Notwithstanding any other provision of this Division to the contrary, the following areas shall be exempt from the provisions of Section 17.6-5 and 17.6-7.
- Private residences, except when used as a licensed child day
care home, adult care home, health care facility, or a
home-based business of any kind open to the public, provided,
however, private sleeping rooms in nursing homes and assisted
living centers are not subject to 17.6-5, unless a roommate
objects to smoking in the room.
- Hotel and motel sleeping rooms that are rented to guests and
are designated as smoking rooms provided, however, that not more
than twenty-five per cent (25%) of the rooms rented to guests in
a hotel or motel may be so designated.
- Retail tobacco stores, provided that smoke from these places
does not infiltrate into areas where smoking is prohibited under
the provisions of any section of this Division.
- Private clubs or lodges.
- Outdoor patios, except for that area of an outdoor patio
within fifteen feet (15’) of a primary public entrance to an
area where smoking is prohibited.
- Public sidewalk, roadway, park and golf course (unless such
area becomes an outdoor place of public assembly).
- Churches.
Section 17.6-9 Declaration of Establishment as Non-smoking.
Notwithstanding any other provisions of this Division, 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 non-smoking place by posting a sign in conformance with the provisions of this Act. Smoking shall be prohibited in any area declared a non-smoking area and any person smoking in such area shall be subject to the penalty provisions of this Act.
Section 17.6-10. Non-retaliation.
No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or customer because that employee, applicant, or customer exercises any rights afforded by this Division or reports or attempts to prosecute a violation of this Division.
Section 17.6-11. Enforcement.
- Notice of the provisions of this Division shall be given to
all applicants for a business license in the Town of Normal.
- Any citizens who desires to register a complaint under this
Division may file a complaint with the Town of Normal.
- The Town shall, while an establishment is undergoing
otherwise mandated inspection, inspect for compliance with this
Division.
- An owner, manager, operator or employee of an establishment
regulated by this Division shall inform persons violating this
Division of the appropriate provisions thereof. Posting of a no
smoking sign conforming with this Division shall be considered
adequate notice.
- In addition to the remedies provided by this Division, the City Manager or any person aggrieved by the failure of the owner, operator, manager or other person in control of a public place or a place of employment to comply with the provisions of this Section may apply for injunctive relief to enforce those provisions in any court of competent jurisdiction.
Section 17.6-12. Posting of Signs.
Every public place, place of employment, place established as non-smoking pursuant to Section 17.6-9 and outdoor place of public assembly where smoking is prohibited by this Division, shall have posted at every public entrance a conspicuous sign clearly stating that smoking is prohibited. The international “no smoking” symbol consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar diagonally across it shall be considered acceptable under this Section.
Section 17.6-13. Violations and Penalties.
- A person who smokes in an area where smoking is prohibited by
this Division shall be guilty of an infraction, punishable by a
fine of not less than twenty-five dollars ($25.00 nor more than
five hundred dollars ($500.00).
- A person who owns, manages, operates or otherwise controls a
place subject to this Division and who fails to prohibit smoking
shall be guilty of an infraction, punishable by: a fine of not
less than twenty-five dollars ($25.00) nor more than twenty-five
hundred dollars ($2,500.00).
An owner, manager, operator or person in control of a place subject to this Division shall be deemed to have permitted a violation of the Division if a violation has occurred while the owner, manager, operator or person in control is physically present at the location at the time of the violation. It shall be a defense to this charge that the owner, manager, operator or person in control of the premises has told the smoking offender that smoking is prohibited, and if the smoker does not stop smoking, the owner, manager, operator or person in control has called the police at the time of the violation and reported the refusal to comply with the ordinance.
- A person who owns, manages, operates or otherwise controls a
place subject to this Division and who fails to post a sign in
conformance with the provisions of this Division shall be guilty
of an infraction punishable by a fine of not less than
twenty-five dollars ($25.00) nor more than five hundred dollars
($500.00).
- Each day on which a violation of this Division occurs shall be considered a separate and distinct violation.
Section 17.6-14. Public Education.
The Town of Normal 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.
Section 17.6-15. Other Applicable Laws.
This Division shall not be interpreted or be construed to permit smoking where it is otherwise restricted by other applicable laws.
Section 17.6-16. Severability.
If any provision, clause, sentence or paragraph of this Division or the application thereof to any person or circumstances shall be held invalid by a court of competent jurisdiction, such invalidity shall not affect the other provisions of this Division which can be given effect without the invalid provision or application, and to this end the provisions of this Division are declared to be severable.
SECTION TWO: That Section 17.2-1 of the Municipal Code Town of Normal 1969, as amended, be and the same is further amended to add the following:
| 17.6-13 A. | Unlawful smoking | $25.00 |
| 17.6-13 B. | Failure to prohibit smoking | $25.00 |
| 17.6-13 C. | Fails to post a no smoking sign | $25.00 |
SECTION THREE: That Section 17.2-2 of the Municipal Code Town of Normal 1969, as amended, be and the same is further amended by adding the following at the end of said Section:
Notwithstanding the foregoing subsequent violations of Sections 17.6-13 A., 17.6-13 B. and 17.6-13 C. may be settled at City Hall for payment of an amount equal to 200 per cent of the last amount paid by the named defendant.
SECTION FOUR: That the Municipal Code, Town of Normal, Illinois, 1969, as previously amended and as amended herein shall remain in full force and effect.
SECTION FIVE: That the Town Clerk be and she is hereby directed and authorized to publish this ordinance in pamphlet form as provided by law.
SECTION SIX: That this ordinance shall take effect January 1, 2007.
SECTION SEVEN: That this ordinance is adopted pursuant to Home Rule Authority granted the Town of Normal by Article 7, Section 6, of the Illinois Constitution, 1970.