Las Cruces Clean Indoor Air Ordinance


Sec. 12-121. Short title.
This article may be cited as the "Las Cruces Clean Indoor Air Ordinance."

(Code 1988, § 21-271)

Sec. 12-122. Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Bar means an area which is devoted primarily to the sale of spirituous liquors and fermented beverages such as wine, beer and ale by the drink as defined by the Liquor Control Act for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of such beverages and is an area where minors are normally prohibited. Although a restaurant may contain a bar, the term "bar" shall not include the restaurant dining area nor a "bar," "tavern," or "cocktail lounge" area. Except as provided in section 12-127, a "bar" for the purpose of this definition shall be enclosed and separate from any restaurant dining area, shall be vented to the outside, and such ventilation system will prohibit smoke from filtering into a dining area or any other area than the bar and shall include those enclosed areas where minors are not normally permitted. In addition, an enclosed bar means that no smoke shall filter from the bar into any other area by a ventilation system or any other means.

Bowling alley concourse means an area, such as is customarily found in bowling alleys, that is not in the direct area commonly referred to as the "settee," where the bowling activity is performed, but rather as an overlook area.

Business means any profession, trade or occupation and all and every kind of calling whether or not carried on for profit, except those organizations exempt from the federal income tax pursuant to section 501(c)(3) of the United States Internal Revenue Code as amended or renumbered; provided, however, "business" shall include an "unrelated trade or business" of such organizations as the latter terms are defined in section 513 of the United States Internal Revenue Code of 1954 as amended or renumbered.

City-owned building means any building owned or leased and used by the city in the operation of its governmental function, but does not include buildings owned by the city and leased to any other person. City-owned buildings shall include Memorial Medical Center and its hospital-controlled or hospital-occupied buildings.

Common area means any enclosed area designated or otherwise allowed to be used for the mutual enjoyment of the general public or for customers or patrons in general.

Dining area means any enclosed area designated or otherwise allowed to be used for the mutual enjoyment of the general public or for customers or patrons in general. Outdoor dining area means an open area which has a counter or tables upon which meals, food, and drinks are served. "Outdoor" means not enclosed, no roof, outside of a building or outside, open, taking place in the open air. "Roof/roof assembly" means a system designed to provide protection and resistance to design loads. The system includes the roof deck substrate and roof covering.

Employee means any person who is regularly employed by an employer in consideration of direct or indirect wages or profit; any person who volunteers his services to a nonprofit entity.

Employer means any person, including a municipal corporation or nonprofit entity, who employs the services of one or more persons.

Enclosed area means surrounded by a ceiling, floor, and solid walls which, except for doors, passageways, and/or windows, extend from floor to ceiling on all sides. If an enclosed area is divided by internal partial walls or other "office landscaping," it must still, in its entirety, be enclosed.

Place of employment means an enclosed area under the control of an employer intended for occupancy by employees during the course of their employment, including but not limited to work areas, lobbies, reception areas, offices, conference and meeting rooms, employee cafeterias and lunchrooms, classrooms, auditoriums, hallways, stairways, waiting areas and restrooms.

Public place means any enclosed area to which the public is invited or in which the public is permitted, not including the offices or work areas not entered by the public in the normal course of business or other use of the area. A private residence and city-owned buildings are not public places.

Public transit depot means an enclosed area for the purchase of tickets, boarding or public waiting for the use of public transportation.

Restaurant means any coffeeshop, cafeteria, private and public school cafeteria or eating establishment, and any other eating establishment that gives or offers for sale food to the public, patrons or employees. The term "restaurant" shall not include a cocktail lounge or tavern, if the cocktail lounge or tavern is a bar as defined in this section.

Retail tobacco store means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.

Semi-enclosed means any area covered by a solid (non-permeable) roof of any type including, but not limited to, open sided tents and kiosks.

Smoke free means that there shall be no smoking within an enclosed area.

Smoking means inhaling, exhaling, or burning any lighted cigar, cigarette, pipe or other combustible tobacco product.

Smoking permitted area means an area within a city-owned building in which smoking may be permitted.

(Code 1988, § 21-273; Ord. No. 1639, §§ I--IV, 11-3-97; Ord. No. 1857, §§ I, II, 2-5-01)

Sec. 12-123. Purpose.
The purpose of this article is to:
Recognize public health as a priority.
Protect the public health and safety by regulating the burning of tobacco in city buildings, public places and places of employment.

(Code 1988, § 21-272)

Sec. 12-124. Smoking in public places.
Subject to the exceptions provided in this article, smoking shall be prohibited in all public places within the city, including but not limited to the following:
Buses and other means of public transit under the authority of the city; taxicabs; and ticket, boarding, and waiting areas of public transit depots.
Those public places within shopping malls, business establishments, office buildings, offices, retail stores, banks, sports arenas, aquariums, galleries, libraries, airports and museums.
Bingo playing rooms where the bingo games are licensed under the state Bingo and Raffle Act.
Any public place which is primarily used for or designated for the primary purpose of exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, except that performers may smoke when smoking is part of a stage production.
Every room, chamber, place of meeting or public assembly owned by the city.
Waiting rooms, hallways, wards and patient rooms of health facilities and public places housing health-related meetings open to the public, including but not limited to hospitals, clinics, physical therapy facilities, doctors' offices, and dentists' offices, except when prescribed for patients in patient rooms of hospitals by physician's order, or allowed by an organization responsible for organizing meetings or functions open to the public which have as their primary purpose the treatment of or recovery from substance abuse or addiction.
Polling places during city elections.
All common areas of city airports, with the exception that separate enclosed areas with separate ventilation systems designated by the city manager as smoking areas shall be located in the areas leased to airlines for passenger boarding and commuter boarding. No less than 90 percent of the total square footage of the areas leased to airlines for passenger and commuter boarding shall be smoke free. All airport restaurants will abide by smoking regulations established in this article for all other restaurants. All offices and exclusive leasehold areas within the airports which are not public places will abide by smoking regulations established in this article for places of employment.
Bowling alley establishments.
Within 50 feet of an accessible entrance of any building owned or leased and used by the city in the operation of its governmental function.

(Code 1988, § 21-274; Ord. No. 1847, § I, 12-18-00; Ord. No. 1857, § III, 2-5-01)

Sec. 12-125. Smoking in places of employment.
It shall be the responsibility of employers to provide that their places of employment meet the requirements of this article.
Each employer having a place of employment located within the city shall adopt, implement, post and maintain a written smoking policy, which shall provide at a minimum that:
All common work areas; conference and meeting rooms; offices, other than individual, enclosed private offices or shared offices containing only smokers, although the offices or shared offices may be visited by nonsmokers; lobbies; reception areas; auditoriums; classrooms; elevators; hallways; medical facilities; and restrooms shall be smoke free; and
Separate nonsmoking areas of not less than 66 2/3 percent of the seating capacity and floor space in cafeterias, lunchrooms, break rooms and employee lounges shall be provided; however, if there are two or more cafeterias, lunchrooms, break rooms or employee lounges available for employee use, one entire cafeteria, lunchroom, break room or lounge may be designated as a nonsmoking area, and one may be designated as a smoking area.
Nothing in this section shall prevent an employer, at the employer's option, from either declaring the entire place of employment smoke free or, in the alternative, allowing all the employees by popular vote to determine which part, if any, of the employer's workplace shall be smoke free.

(Code 1988, § 21-275)

Sec. 12-126. Smoking in city-owned buildings.
It is unlawful for any person to smoke in any city-owned building.
Fifty feet from each accessible entrances to city-owned buildings or in a position where the sign is clearly visible upon entry to a city-owned building, the city shall conspicuously post a sign using the words "no smoking" or the international no smoking symbol or both.

(Code 1988, § 21-276; Ord. No. 1847, § II, 12-18-00)

Sec. 12-127. Exemptions.
Notwithstanding any other section of this article to the contrary, the following areas shall not be subject to the restrictions of this article:
Bar. In a restaurant which contains within its premises a "bar," "tavern," or "cocktail lounge" area in which the service and consumption of alcoholic beverages are business activities, such "bar," "tavern," "cocktail lounge" area shall not constitute a "bar" for the purposes of this section. Thus the "bar," "tavern," cocktail lounge" area to permit smoking must be:
fully enclosed and physically separated by solid walls or other solid enclosure;
have a ventilation system which vents air directly from the separate "bar," "tavern," "cocktail lounge" area to the outside;
allows no filtration of smoke from the "bar," "tavern," "cocktail lounge" area into other dining areas or other areas as the case may be within the restaurant; and
minors, i.e., persons under the age of 21 years, are not normally permitted.
Retail tobacco stores.
Enclosed areas within restaurants, hotel and motel conference or meeting rooms and public and private assembly rooms while being used for private functions and provided that 50 percent of these areas are designated nonsmoking.
Truck stops and related facilities.

(Code 1988, § 21-278; Ord. No. 1639, §§ V, VI, 11-3-97)

Sec. 12-128. Posting of signs.
Smoking or no smoking signs, or other signs indicating smoking restrictions, whichever are appropriate, with letters of not less than one inch in height or 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, shall be posted where it is clear, conspicuous and easily legible in all areas where smoking is regulated by this article by the owner, operator, manager or other person having control of such building or other place. Such signs shall also be placed at all outdoor entrances to such areas.
Every theater owner, manager or operator shall conspicuously post signs in the lobby stating that smoking is prohibited within the theater or auditorium, and in motion picture theaters such information shall be shown upon the screen for at least five seconds prior to the showing of each feature motion picture.
Every restaurant shall have posted at every public entrance a conspicuous sign clearly stating the smoking policy of the restaurant.

(Code 1988, § 21-279)

Sec. 12-129. Buildings housing multiple businesses.
The owner or manager of a building that houses multiple businesses located in the same building shall be responsible for declaring public places therein smoke free.
This section shall not be construed to require the owner or manager to enforce section 12-125.

(Code 1988, § 21-280)

Sec. 12-130. Violations and penalties.
It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this article to violate any section of this article. The owner, manager or operator shall not be subject to a penalty because any person therein is in violation of this article, so long as the owner, manager or operator has posted signs, has implemented the appropriate policy and has informed the individual he is in violation of this article.
It shall be unlawful for any person to smoke in any area where smoking is prohibited by this article.
Any person who violates any section of this article shall be guilty of a petty misdemeanor punishable by:
A written warning during the initial six months after the effective date of the ordinance from which this article derives.
A maximum fine of $100.00 following the initial six months after the effective date of the ordinance from which this article derives.
The city manager, in addition to other remedies, may institute an action or proceeding to enjoin, restrain, correct or abate the violation of this article.

(Code 1988, § 21-281)

Sec. 12-131. Enforcement.
Enforcement of this article may be by citation from the fire department or the police department or a codes enforcement officer.

(Code 1988, § 21-282)

Sec. 12-132. Inspection of premises; violation notices.
Whenever necessary to make an inspection to enforce any section of this article or whenever the city manager has reasonable cause to believe that there exists in any building or upon any premises any violation, the city manager may enter such building or premises at all reasonable times to inspect the building or premises or to perform any duty imposed upon the city manager by this article. However, if such building or premises is occupied, he shall first present proper credentials and request entry, and if such building or premises is unoccupied, he shall first make a reasonable effort to locate the owner or other person having charge or control of the building or premises and request entry. If such entry is refused, the city manager shall proceed to obtain a search warrant or other appropriate legal authorization.
When the city manager shall have first obtained a proper inspection warrant or other remedy provided by law to secure entry, no owner or occupant or any other person having charge or control of any building or premises shall fail or neglect, after proper request is made as provided in this section, to promptly permit entry therein by the city manager for the purpose of inspection and examination pursuant to this article.

(Code 1988, § 21-283)

Sec. 12-133. Compliance with other laws.
Nothing in this article excuses noncompliance with any state or federal law, city ordinance or any rule or regulation adopted pursuant thereto, which prohibits smoking.

(Code 1988, § 21-284)

Secs. 12-134--12-139. Reserved.