AN ORDINANCE REGULATING SMOKING IN PUBLIC RESTAURANTS
WHEREAS, numerous studies have found that tobacco smoke is a major contributor to indoor air pollution and that breathing secondhand smoke is a cause of disease, including lung cancer, in non-smokers; and,
WHEREAS, at special risk are children, elderly persons, individuals with cardiovascular disease and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and,
WHEREAS, health hazards induced by breathing secondhand smoke include lung cancer, heart disease, respiratory infection and decreased respiratory function, including brochoconstriction and broncho-spasm; and,
WHEREAS, pursuant to I.C. 36-8-2-4 and I.C. 36-1-3 et.seq., Morgan County has the authority to regulate conduct that might endanger public health, safety or welfare; and,
WHEREAS, the Board of Health has approved this Ordinance and has found that the purpose of this Ordinance is to protect public health and welfare by prohibiting smoking in public restaurants;
NOW THEREFORE, BE IT ORDAINED by the Board of Commissioners of Morgan County, Indiana, that smoking shall be prohibited in all public restaurants in Morgan County, as follows:
SECTION 1: Definitions
As used in this Ordinance:
(A) “Bar” means any building, room or area used primarily for the sale of alcoholic beverages for consumption by guests on the premises, and in which the sale of food and the provision of entertainment is merely incidental.
(B) “Private Club” means a facility:
(a) owned or operated by an association or corporation which shall:
(1) not be operated for pecuniary gain and
(2) consist of a membership:
i. formed as a lodge, local chapter or corresponding unit of a fraternal order recognized on a national basis; or
ii. comprised of persons who have served in the armed forces of the United States; or
iii. formed as a recognized, exclusive association of persons organized for a joint or common purpose for which application for membership, the payment of dues, and self-governance by the membership are distinguishing characteristics; and
(b) where entry into and use of the facility is restricted to members and guests of members.
(C) “Restaurant” means any coffee shop, cafeteria, sandwich shop, private or public school cafeteria, or any other eating establishment which offers for sale, food to the public, guests or employees, as well as kitchens in which the food is prepared on the premises for serving elsewhere, including catering facilities. Restaurant shall also mean any establishment which meets the requirements of I.C. 7.1-3-20-9.
(D) “Smoking” means the act of inhaling, exhaling, burning, carrying or possessing any lighted cigar, cigarette, pipe, weed, plant or tobacco product.
(E) “Tobacco Product” means a product that contains tobacco and is intended for human consumption.
(F) “Designated smoking room” means an enclosed room with all space between a floor and ceiling that is enclosed on all sides by solid walls or windows (exclusive of a standard size doorway), which extend from the floor to the ceiling, and has a separate heating and cooling system including return air and ducts.
NOTE: Any Restaurant that offers a “Designated Smoking Room”, must also offer a non-smoking area of equal or greater size.
SECTION 2: Smoking Prohibited in Restaurants:
Smoking is prohibited in all restaurants.
SECTION 3: Exceptions
Section 2 shall not apply to the following:
(A) Bars or private clubs. However, Section 2 shall apply to that portion of a private club and/or bar where a dining area of such establishment is open to the public and admits persons under twenty-one (21) years of age and/or where food is the primary sale.
(B) Property owned or leased by governmental entities other than Morgan County.
(C) Outdoor eating areas that are at least twelve (12’) feet from the entrance.
(D) A “designated smoking room”. (See Definitions Section 1 (F)
SECTION 4: Posting of Signs and Removal of Paraphernalia
(A) If smoking is prohibited by this Ordinance, a restaurant shall post conspicuous signs at all entrances to the restaurant which advise that smoking is prohibited. Such signs may utilize the international symbol for “No Smoking” and all signs must be clearly and conspicuously posted.
(B) All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited under this Ordinance, by the owner, operator, manager or other person having control of such area or premises.
(C) It shall be a violation of this Ordinance for any person to remove or deface a sign posted or required herein, and such person shall be subject to the penalty provisions contained in Section 6 of this Ordinance.
SECTION 5: Other Local Laws
The provisions of this Ordinance are not intended to supersede any local laws which are more restrictive.
SECTION 6: Penalties and Enforcement
It shall be a violation of this Ordinance:
(A) for any person who owns, manages, operates or controls any restaurant subject to regulation under this Ordinance:
i. to fail to comply with any provisions of this Ordinance;
ii. to knowingly or intentionally allow or permit smoking to occur in any restaurant as prohibited under this Ordinance. It is a defense to a violation under this sub-section where the person or their employees or agents act in a prompt and reasonable manner to personally inform the violator of the prohibition and request that he or she refrain from smoking.
(B) for any person to smoke in any area where smoking is prohibited by the provisions of this Ordinance.
(C) any person who violates any provision of this Ordinance shall be subject to a fine not to exceed One Hundred Dollars ($100.00) for each such violation. If, after multiple violations by the same person or business, the Morgan County Attorney or Morgan County Prosecutor shall have reason to believe that the fines assessed hereunder will not be effective in enforcing the provisions herein; then, the Morgan County Attorney or the Morgan County Prosecutor may seek any other remedy provided by law, including injunction.
SECTION 7: Severability
If any section, sentence or provision of this Ordinance, or the application thereof, to any person or circumstances, shall be declared unconstitutional or invalid, such invalidity shall not affect any of the other sections, sentences, provisions, or application of this Ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this Ordinance are declared to be severable.
SECTION 8: Effective Date
The provisions of this Ordinance shall take effect on
January 1, 2005.
All of which is PASSED and ORDAINED this 3rd day of September, 2004.
BOARD OF COMMISSIONERS OF MORGAN COUNTY
Norman Voyles, Commissioner
Jeff Quyle, Commissioner
Brian Goss, Commissioner
Morgan County Auditor