Tuesday, June 10, 2008

FYEN -- Smoke Free Parks Ordinance Draft

Name of the Ordinance
The ordinance's name should relate to its purpose. Examples of names are "Smokefree Air Ordinance" or "Ordinance for Smokefree Public Places and Workplaces."

Intent of the Ordinance
The ordinance should have the intent of protecting people from the health hazards of secondhand smoke. Examples of "whereas" clauses for the preamble are as follows:

"WHEREAS, numerous studies have found that tobacco smoke is a major contributor to indoor air pollution;"

"WHEREAS, the American Academy of Pediatrics published a study (Pediatrics, February 1998) that attributes approximately half of early childhood cases of asthma, chronic bronchitis, and wheezing to secondhand smoke;"

"WHEREAS, the U.S. Surgeon General found in his 1986 Report that environmental tobacco smoke is a cause of disease, including lung cancer, in nonsmokers;"

"WHEREAS, studies have shown that environmental tobacco smoke is a cause of cardiovascular disease in nonsmokers;"

"WHEREAS, studies have shown that breathing environmental tobacco smoke is a significant health hazard for children, the elderly, and individuals with cardiovascular disease, impaired respiratory function, and asthma;"

"WHEREAS, the Americans with Disabilities Act, which requires access for handicapped persons in public places and workplaces, deems impaired respiratory function a disability;"

"WHEREAS, the U.S. Surgeon General further found that separating smokers from nonsmokers within the same air space does not eliminate the exposure of nonsmokers to environmental tobacco smoke;"

An example of a summation preamble clause is as follows:

"WHEREAS, on the basis of the published warnings of the U.S. Surgeon General and on the basis of scientific reports and other authoritative and instructive data, the [municipal council or board of health] of [municipality name] has determined that the public interest requires certain measures to be established to eliminate the exposure of people to environmental tobacco smoke in public places, and that this ordinance intends to (1) protect the public health and welfare by eliminating smoking in public places and workplaces, and (2) guarantee that the need to breathe smokefree air shall take priority over smoking;"

General Restrictions for Public Places
The ordinance should describe the location of public places that are to be smokefree. Examples are:

"Smoking shall be prohibited at all times in all enclosed public places within [municipality name] including, but not limited to, the following places:

1.      All enclosed areas available to and customarily used by the general public and all areas of business establishments and non-profit entities generally accessible to the public, including, but not limited to, the public areas of retail stores, banks, offices, movie theaters, laundromats, hotels, motels, sports arenas, bowling facilities.

2.      All restaurants and bars in accordance with N.J.S.A. 26:3E-7 to 26:3E-13.

3.      All outdoor areas within ten linear feet from any and all entrances and exits of any and all enclosed indoor areas where smoking is prohibited, to ensure that tobacco smoke does not enter the smokefree indoor areas through entrances, windows, ventilation systems, or any other means.

4.      All rest rooms, lobbies, reception areas, hallways, elevators, service lines, and any other common-use areas in enclosed public places.

5.      All polling places.

6.      All places that host bingo games.

7.      All lobbies, hallways, elevators, and other common areas of multi-unit residential buildings, including, but not limited to, apartment buildings, condominiums, town houses, trailer parks, retirement facilities, and nursing homes.

8.      All buses, taxis, other means of public transit and waiting areas of public transit depots, and limousine and car services.

9.      All private residences that are used as childcare or healthcare facilities.

10.  All healthcare facilities, including but not limited to clinics, physical therapy facilities, and offices of doctors, dentists, chiropractors, and psychiatrists.

11.  All enclosed facilities owned, leased, or operated by [municipality name]."

Voluntary Smokefree Policy
A provision that provides for owners to make their establishments smokefree could be as follows:

"Notwithstanding any other provision of this section, any owner, operator, manager, or other person who controls any establishment or facility may declare that entire establishment or facility as a smokefree establishment."

General Restrictions for Workplaces
The ordinance should provide that workplaces are required to be smokefree. An example is:

"All employers within the boundaries of [municipality name] shall provide a smokefree workplace for all employees. Smoking shall be prohibited in all enclosed facilities within the workplace at all times without exception. This includes, but is not limited to, all common work areas, private offices and work areas, meeting rooms, conference rooms, auditoriums, classrooms, hallways, elevators, stairs, cafeterias, employee lounges, rest rooms, medical facilities, and all other enclosed areas, including vehicles. The employer shall adopt and provide a written policy within 90 days of the effective date of this ordinance, and that smokefree policy shall be in effect, making that workplace smokefree within 120 days of the effective date of this ordinance. The employer will provide all employees with a copy of the policy within two weeks of its adoption. All prospective employees will receive a copy of the policy."

An employee or applicant for employment who desires a smokefree work environment can be protected from retaliation. An example follows:

"No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for

Outdoor Restrictions
A provision that provides for smokefree school grounds and outdoor recreational areas could be as follows:

"It is unlawful for any person to smoke tobacco on the property of any and all educational facilities, and at any and all recreational facilities, parks, playgrounds, sports fields, and recreational properties that are owned, leased, or operated by [municipality name] or by the [municipality name] recreation commission."

Posting Signs
A provision that provides for notice of the local law is useful for awareness and enforcement purposes. An example of a sign provision is as follows:

"A 'No Smoking' sign shall be clearly, sufficiently, and conspicuously posted at every entrance to every public place where smoking is prohibited by this ordinance.

The sign(s) shall be posted by the owner, operator, manager, or other person having control of such building or other area.

The sign(s) shall have the words 'No Smoking' in lettering that is not less than two (2) inches in height, or shall contain the international no smoking sign or symbol (consisting of a pictorial representation of a burning cigarette enclosed in a circle with a bar diagonally through the cigarette) that is not less than two (2) inches in height.

Signs that are removed shall be replaced within five (5) working days by the owner, operator, manager, or other person having control of such building or other area."

Public Education
Awareness of the ordinance is important for compliance and enforcement. Here is an example of such a provision:

"The Health Officer, or designee, shall engage in a continuing program to explain and clarify the purpose and requirements of this ordinance to citizens affected by this ordinance, and to guide owners, operators, and managers in their compliance. Such a program may include publications explaining the provisions of this ordinance."

Enforcement is vital to the viability of the ordinance. Here is an example of an enforcement provision:

"The Health Officer, or designee, and the Police Department are hereby charged with the enforcement of this ordinance. All members of the Health Department and the Police Department are hereby designated as enforcement officers for the purpose of enforcement of this ordinance.

Enforcement shall be implemented by the Municipal Manager or designee. Notices of this ordinance shall be given to all applicants for a business license in [municipality name].

Any employee or person who desires to register a complaint under this ordinance may initiate enforcement with the Health Officer, or designee, Police Officer, or designee, or Municipal Manager. [Select one registration location.]

Notwithstanding any other provision of this article, any person or employee may bring legal action to enforce this article.

Any owner, manager, operator, or employee of any establishment regulated by this article may inform persons violating this article of the appropriate provisions thereof."

The penalties provision will encourage compliance by the public and by persons who control the smokefree public places covered by this ordinance. Here is an example of a penalties provision:

"It shall be a violation of this ordinance for any owner, operator, manager, or person who controls any premises subject to this ordinance to fail to comply with any of its provisions.

It shall be unlawful to smoke or carry a lighted cigarette, cigar, or pipe where smoking is prohibited.

Any person who violates any provision of this ordinance shall be guilty of an infraction, punishable by:

1.      A fine not exceeding $100 for the first violation.

2.      A fine not exceeding $200, but no less than $100, for the second violation.

3.      A fine not exceeding $500, but no less than $200, for the third violation."

Power to adopt more comprehensive smokefree policies
Managers and owners of establishments and businesses may want to have more comprehensive policies. An example would be as follows:

"Notwithstanding any other provision of this ordinance, any owner, operator, manager, employer, or other person who controls any establishment or place of employment regulated by this ordinance may adopt policies relating to smoking which are more comprehensive than those provided herein."

Other applicable laws
Other local, state, and federal laws need to be considered. This provision ensures that compliance:

"No provision in this ordinance shall be construed or interpreted to allow smoking where it is otherwise restricted by other laws."

This provision can ensure that the ordinance remains valid, even if a provision of the ordinance is held invalid:

"If any provision or application of this ordinance shall be held invalid, such invalidity shall pertain only to that specific provision or application, and shall not affect the other provisions and applications 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 severable."

Effective Date
Citizens and those owning, managing, or controlling the public places and workplaces affected by this ordinance need to know its effective date for compliance purposes.

"This ordinance shall be effective thirty (30) days from and after the date of its adoption, unless specified otherwise."

Stay informed: http://mayorjfvalley.googlepages.com/recentjournalentries (Recent Entries on Mayor's Journal)

Honorable James F. Valley
MAYOR - Helena West Helena
P O Box 248
Helena-West Helena, 72342
870-572-3421 Phone
870-572-5034 Fax
870-817-4035 Cell

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