AN ORDINANCE REGULATING SMOKING IN PUBLIC PLACES TO PROTECT THE PUBLIC FROM SECONDHAND SMOKE
WHEREAS, it has been shown that the smoke produced by the smoking of cigarettes, cigars and pipes is both hazardous and detrimental to the health, welfare and comfort of smokers and nonsmokers; and
WHEREAS, the United States' Surgeon General has reported that smoking is a significant cause of cancer, heart disease and lung disorders in smokers and passive smokers (those inhaling the smoke of others); and
WHEREAS, the County of Charleston ("Charleston County" or the "County") in furtherance of its duty to provide such regulations as may be necessary to protect the health of its citizens and minimize the incidents of disease of its population, and to provide a working environment for its employees and the general public which is reasonably free of hazards and distractions, such as smoke, and in furtherance of the objectives of the Clean Indoor Air Act of 1990, deems it to be in the public's interest to regulate smoking in the County;
NOW, THEREFORE, be ordained it by Charleston County Council ("County Council"), in meeting duly assembled, as follows:
SECTION 1. FINDINGS INCORPORATED
In addition to the recitals set forth above, which Charleston County Council hereby adopts as findings of fact, County Council specifically finds that the County is a political subdivision and as such possesses all powers granted to political subdivisions by the South Carolina Constitution and the laws of South Carolina, including the powers enumerated in Title 4, Chapter 19, County Government, S.C. Code Ann. Section 4-9-10, et seq., Code of Laws of South Carolina, 1976, as amended, relating to regulating health and order in counties.
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 disease, stroke, respiratory disease, and lung cancer. The National Cancer Institute has determined that secondhand smoke is responsible for the early deaths of up to 65,000 Americans annually. The Surgeon General has declared that (i) secondhand smoke causes disease and premature death in nonsmokers exposed to smoke; (ii) children exposed to secondhand smoke have an increased risk for sudden death syndrome, acute respiratory infections, ear problems, and more severe asthma; (iii) adults exposed to secondary smoke have a higher risk of coronary heart disease and lung cancer; (iv) there is no safe level of exposure to secondhand smoke; and (v) separating smoking and nonsmoking sections of indoor areas does not sufficiently remove the threats of secondhand smoke in enclosed areas.
A significant amount of secondhand smoke exposure occurs in the workplace. Studies have shown that employees who work in smoke-filled businesses suffer a twenty-five (25) to fifty (50) percent higher risk of heart attack and higher rates of death from cardiovascular disease and cancer, as well as increased acute respiratory disease and measurable decrease in lung function.
Studies have also shown that 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.
There are laws, ordinances and regulations in place that protect workers from other environmental hazards, including Class A carcinogens, asbestos, arsenic and benzene, but none which regulate exposure to environmental tobacco smoke.
Prohibiting smoking in the workplace increases public awareness of the negative health effects of smoking, reduces the social acceptability of smoking and reduces harm to children and other nonsmokers.
The South Carolina General Assembly adopted the Clean Indoor Act, Title 44, Chapter 95, S.C. Code Ann. Section 44-95-10 et seq., Code of Laws of South Carolina, 1976, as amended, (the "Clean Indoor Air Act") in 1990 that imposed certain limitations on smoking. It limited smoking in government buildings (the definition of which includes county-owned buildings) except where the owner of such building shall designate smoking areas.
Prior to the adoption of the Clean Air Indoor Act by the General Assembly, Charleston County Council adopted Code of Ordinances, Chapter 6, Article 1, Section 6-1 ("Section 6-1") prohibiting smoking in certain portions of county buildings consistent with the Clean Indoor Air Act in 1988. County Council has now determined that additional regulation of smoking in areas beyond those addressed in the Clean Indoor Air Act and Section 6-1 is appropriate in furtherance of its duty to protect the health of its citizens and employees in the workplace and therefore enacts this Ordinance.
County Council finds that it is in the best interest of the people of this County to protect nonsmokers from involuntary exposure to environmental tobacco smoke in the workplace.
Therefore, County Council declares that the purpose of this Ordinance is to preserve and improve the health, comfort and environment of the people of this County by limiting exposure to tobacco smoke.
SECTION 2. DEFINITIONS
Unless the context shall clearly indicate some other meaning, the terms defined in this Section shall, for all purposes of this Ordinance and other documents referenced herein, have the meanings specified herein. Definitions shall be equally applicable to both the singular and plural forms of any of the terms herein defined.
(1) Business agent means an individual who has been designated by the owner or operator of any establishment to be the manager or otherwise in charge of said establishment.
(2) Cigar bar means any establishment in existence as of the date of the adoption of the ordinance from which this section derives which (a) serves alcohol for consumption by patrons on the premises; (b) either itself or in conjunction with an affiliated entity operating within the same premises derives thirty (30) percent or more of its gross revenue from the sale of tobacco products or related paraphernalia; (c) shall permit the smoking of cigars and other tobacco products by patrons on the premises; and (d) prohibits the entry of persons under the age of twenty-one (21) at all times. For purposes of this section, affiliated entity shall be defined as a commercial entity with which the Cigar Bar has a business relationship, including but not limited to a lease or sublease, contract, service agreement or sharing of expenses and/or profits.
(3) Employee means any person who performs services for an employer in return for wages, profit or other valuable consideration.
(4) Employer means any person, partnership, association, corporation, trust, school, college, university or other educational institution, nonprofit entity or other organization, including any public or private employer that employs one (1) or more persons.
(5) Enclosed means a space bounded by walls (with or without windows) continuous from floor to ceiling and enclosed by doors, including but not limited to, offices, rooms, foyers, waiting areas and halls.
(6) Environmental tobacco smoke (ETS) or secondhand smoke is the complex mixture formed from the escaping smoke of a burning tobacco product (termed as "sidestream smoke") and smoke exhaled by the smoker. Exposure to ETS is also frequently referred to as "passive smoking," "secondhand smoking" or "involuntary smoking".
(7) Sheriff's department means the County of Charleston Sheriff's Department.
(8) Public building means any building owned, operated or leased by the County, as defined in Section 6-1.
(9) Retail tobacco store means any establishment which is not required to possess a retail food permit whose primary purpose is to sell or offer for sale to consumers, but not for resale, tobacco products and related paraphernalia, in which the sale of other products is merely incidental, and in which the entry of persons under the age of eighteen (18) years is prohibited at all times.
(10) Smoking means the inhaling, exhaling, burning, lighting or carrying of a lighted cigarette, cigar, pipe, or similar device or any other lighted tobacco product.
(11) Smoking materials includes cigars, cigarettes and all other manner of smoking devices intended to be used for the purpose of inhaling, burning, carrying, or exhaling lighted tobacco products.
(12) Workplace means any enclosed indoor area, structure, building or facility or any portionthereof at which one (1) or more employee(s) perform services for their employer, including but not limited to: retail food stores; retail stores; restaurants; bars; cabarets, cafes; public or private clubs; pool halls and bowling alleys.
(13) Work space or work spaces means any enclosed area occupied by an employee during the course of his or her employment, including but not limited to: offices, customer service areas; common areas; hallways; waiting areas; restrooms; lounges and eating areas.
SECTION 3. PROHIBITION OF SMOKING IN THE WORKPLACE
(1) It shall be the responsibility of the employer to provide a smoke free environment for all employees working in an enclosed workplace. Each employer shall adopt, distribute and implement a written policy prohibiting smoking in the workplace in accordance with this Section.
(2) Smoking shall be prohibited in all work spaces in a workplace. This includes all common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, hallways, medical facilities, cafeterias, employee lounges, staircases, restrooms and all other enclosed areas in the workplace.
(3) The written smoking policy shall be adopted and distributed to all employees within four weeks of the effective date of this section or within four weeks of the commencement of business operations. A copy of the policy shall be conspicuously posted in all facilities or areas of the workplace.
SECTION 4. SMOKING RESTRICTIONS INAPPLICABLE
In providing for the inapplicability of this Section to the following subsections (1) through (7), it is specifically recognized that such locations are addressed in the Clean Indoor Air Act.
Therefore, this Section shall not apply to:
(1) Public schools and preschools where routine or regular kindergarten, elementary, or secondary educational classes are held including libraries;
(2) All other indoor facilities providing children's services to the extent that smoking is prohibited in the facility by federal law and all other child day care facilities, as defined in S.C. Code Ann. Section 20-7-2700, which are licensed pursuant to Title 20, Chapter 7, Children's Code, Article 13, Subarticle 11, Code of Laws of South Carolina, 1976, as amended.
(3) Health care facilities as defined in South Carolina Code Ann. Section 44-7-130;
(4) Government buildings as defined in South Carolina Code Ann. Section 44-95-20(4), except to the extent regulation by the County is authorized therein;
(6) Public transportation vehicles, except for taxicabs;
(7) Arenas and auditoriums of public theaters or public performing art centers;
Exceptions. Notwithstanding the provisions contained herein, smoking may be permitted in the following places and/or circumstances:
(1) Private residences;
(2) Hotel, motel, inn, bed and breakfast and lodging home rooms that are rented to guests, designated as "smoking rooms" ("rooms") provided that the total percentage of such rooms does not exceed twenty-five (25) percent in such establishment. A room so designated shall have signs posted indicating that smoking is allowed therein;
(3) Retail tobacco stores;
(4) Cigar bars, provided that the cigar bar has not expanded its size or changed its location from its size or location after the date of the adoption of the ordinance from which this section derives, and it or its affiliated entity operating within the same premises continues to derive thirty (30) percent or more of its gross revenue from the sale of tobacco products or related paraphernalia;
(5) Performers upon a stage, provided that the smoking is part of the theatrical production being performed;
(6) Religious ceremonies where smoking is part of the ritual; and
(7) Medical research facilities.
SECTION 5. POSTING OF SIGNS
The owner, manager or person in control of an establishment or area in which smoking is prohibited pursuant to this Ordinance shall post a conspicuous sign at the main entrance to the establishment or area. The sign shall contain the words "No Smoking" and the universal symbol for no smoking.
SECTION 6. REASONABLE DISTANCE
Smoking outside a workplace, work space or work spaces and any other indoor area where smoking is prohibited, shall be permitted provided that tobacco smoke does not enter the workplace, work space or work spaces through entrances, windows, ventilation systems or other means.
SECTION 7. ENFORCEMENT, VIOLATIONS AND CIVIL PENALTIES
(1) The sheriff's department shall enforce the provisions of this section. In addition, designated code enforcement employees of the County shall have the power to enforce the provisions of this Ordinance.
(2) The sheriff's department shall seek to obtain voluntary compliance with this section by means of publicity and education programs, and the issuance of warnings, where appropriate.
(3) Any person who desires to register a complaint under this section may initiate enforcement with the office of the director of the department of budget, finance and revenue collections or his designee.
(4) Any person who smokes in an area where smoking is prohibited by any provision of this section shall be guilty of an infraction, punishable by a fine of not less that ten dollars ($10.00) nor more than twenty-five dollars ($25.00).
(5) Any employer, owner, manager or other person who has control of a workplace and who fails to comply with any provision of this section shall be guilty of an infraction, punishable by a fine of not less than ten dollars ($10.00) nor more than twenty-five dollars ($25.00).
(6) Violation of this Ordinance is declared to be a public nuisance, which may be abated by the County by restraining order, preliminary and permanent injunction, or other means provided for by law, and the County may take action to recover the costs of the nuisance abatement.
(7) Each day of a continuing violation of this section shall be considered a separate and distinct offense.
(8) a. Suspension or revocation of license. In addition to the fines established by this subsection, whenever the director of the department of budget, finance and revenue collections or his/her designee determines that any employer, owner, manager or other person who has control of a workplace has repeated violations of the provisions of this Ordinance, he/she may give written notice to the licensee or the person in control of the business by personal service or certified mail of a hearing before the business license committee for the purpose of determining whether the license should be suspended or revoked. The notice shall state the time and place at which the hearing is held, which shall be at a regular or special business license committee meeting within thirty (30) days from the date of service of the notice, unless continued by agreement. The notice shall contain a brief statement of the reasons for the proposed suspension or revocation and the applicable provisions of the Ordinance from which this Section derives.
b. Business license committee hearing. At a hearing held before the business license committee, all parties shall have the right to be represented by counsel, to present testimony and evidence and to cross-examine witnesses. The proceedings shall be recorded and transcribed at the expense of the party so requesting. The rules of evidence and procedure proscribed by County Council shall govern the hearing. The business license committee with a quorum of members in attendance shall by majority vote of members present render a written decision based on findings of fact and the application of this Ordinance which shall be mailed to the parties or their representatives within twenty (20) days from the date of the hearing.
c. Appeal to County Council. Any person aggrieved by a final decision of the business license committee recommending a suspension or revocation of a business license may appeal the decision of the business license committee to the County Council by filing with the Clerk of County Council and the director of the department of budget, finance and revenue collections or his/her designee a written notice setting forth plainly, fully, and distinctly the basis for the appeal. The appeal must be filed within thirty (30) days after the affected party receives actual notice of the decision of the business license committee.
(9) In addition to the remedies provided by the provisions of this subsection, the County or any person aggrieved by the failure of the employer, owner, manager or other person who has control of a workplace to comply with the provisions of this Section may apply for injunctive relief to enforce those provisions in any court of competent jurisdiction.
SECTION 8. SEVERABILITY
If any provision, clause, sentence or paragraph of this section or the application thereof to any person or circumstances shall be help invalid, that invalidity shall not affect the other provisions of this Section which can be given effect without the invalid provision or application, and to this end the provisions of this section are declared to be severable.
SECTION 9. NON-RETALIATION
No person or employer shall discharge, refuse to hire, refuse to serve or in any manner retaliate or take any adverse personnel action against any employee, applicant, customer or person because such employee, applicant, customer or person takes any action in furtherance of the enforcement of this Section or exercises any right conferred by this section.
SECTION 10. CONFLICT WITH OTHER LAWS, ORDINANCES OR REGULATIONS
Nothing in this section shall be deemed to amend or repeal any applicable fire, health or other, law, ordinance or regulation so as to permit smoking in areas where it is prohibited by such applicable fire, health or other law, ordinance or regulation.
SECTION 11. WAIVERS
(1) Any employer, owner, manager or other person having control of a workplace subject to this section may apply to the County of Charleston's director of the department of budget, finance and revenue collection or his designee for a waiver of any provision of this regulation for a period not to exceed ninety (90) days.
(2) All waivers shall be submitted to County's director of the department of budget, finance and revenue collection or his designee, on an application form provided by such director along with a one hundred-dollar ($100.00) non-refundable filing fee.
(3) The decision to grant such a waiver shall be in the sole discretion of County's director of the department of budget, finance and revenue collection or his designee, based upon his determination that such waiver is in the public interest. In making the determination, the County's director of the department of budget, finance and revenue collection or his designee may take into account, but is not limited to, the following:
a. The efforts that the employer, owner, manager or other person having control of a workplace has made toward compliance with this Section;
b. Whether or not the workplace will be in compliance with all terms of this Sectionwithin ninety (90) days; and
c. Whether or not the granting of the waiver will result in an appreciable danger to the health of the public.
(4) No employer, owner, manager or other person having control of a workplace shall be granted more than one (1) waiver.
SECTION 12. EFFECTIVE DATE
This Ordinance shall be effective thirty (30) days from and after the date of its adoption.