A Regulation Eliminating Smoking in Public Places and Places of Employment.
Sec. 1000. Title
This article shall be known as the Harrison County Clean Indoor Air Regulation of 2008.
Sec. 1001. Findings and Purpose
The United States Surgeon General and numerous other credible authorities and medical researchers have determined:
(A) That involuntary inhalation of secondhand or tobacco smoke can cause or contribute to numerous serious health problems and diseases, including heart disease, cancer, respiratory illness, and acute episodes of decreased respiratory function, including broncho-constriction and broncho-spasm in healthy nonsmokers.
(B) That the presence of secondary tobacco smoke is a major contributor to indoor air pollution.
(C) That children, elderly people and individuals with cardiovascular and/or respiratory diseases are at increased risk.
(D) That the simple separation of smokers and nonsmokers within the same airspace may reduce, but does not eliminate the exposure of nonsmokers to environmental tobacco smoke. Smoking bans remain the most viable and cost-effective method of protecting patrons. The Environmental Protection Agency (EPA) has classified secondhand smoke as a Group A Carcinogen, known to cause cancer in humans.
Sec. 1002. Definitions
The following words and phrases, whenever used in this article, shall be construed as defined in this section:
A. “Business” means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit-making purposes, including 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.
B. “Employee” means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a non-profit entity.
C. “Employer” means any person, partnership, corporation, including a municipal corporation, or non-profit entity, which employs the services of one or more individual persons.
D. “Enclosed Area” means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid, “office landscaping” or similar structures.
E. “Place of Employment” means any area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and classrooms, private offices, employee cafeterias and hallways. A private residence is not a “place of employment” unless it is used as a childcare, adult day care or health care facility.
F. “Public Place” means any enclosed area to which the public is invited or in which the public is permitted, including but not limited to, banks, educational facilities, health facilities, laundramats, public transportation facilities, reception areas, restaurants, bars, gaming facilities, retail food production and marketing/grocery establishments, retail service establishments, retail stores, theaters, and waiting rooms. This shall include all rooms and offices of any agency that receives any monetary support from Harrison County.
G. “Restaurant” means any coffee shop, cafeteria, sandwich stand, private and public school cafeteria, bars, video lottery establishments, and any other establishment which gives or offers for sale food or beverage to the public, guests, or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities.
H. “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.
I. “Service Line” means any indoor line at which one (1) or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.
J. “Smoking” means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, weed, plant or other combustible substance in any manner or in any form.
K. “Sports Arena” means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.
L. A “private function” shall be defined as a function in which no fee is charged and no tickets are sold, and no public announcements are made to the event and/or function.
Sec. 1003. Application of Article to County-Owned Facilities
All enclosed facilities including buildings and vehicles owned by Harrison County or any agency that receives any monetary support from Harrison County shall be subject to the provisions of this regulation.
Sec. 1004. Prohibition of Smoking in Public Places
A. Smoking shall be prohibited in all enclosed public places within Harrison County, including, but not limited to, the following places:
2. Restrooms, lobbies, reception areas, hallways and any other common-use areas.
3. Buses, taxicabs, airports and other means of public transit under the authority of Harrison County, and ticket, boarding, and waiting areas of public transit depots.
4. Service lines.
5. All retail stores.
6. All areas available to and customarily used by the general public in all businesses and non-profit entities patronized by the public, including but not limited to, attorneys’ offices and other offices, banks, laundromats, hotels and motels.
8. Public areas of aquariums, galleries, libraries and museums.
9. Any facility which is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance.
10. Sports arenas and convention halls, including bowling facilities.
11. Every room, chamber, place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee, including joint committees, or agencies of Harrison County or any political subdivision of the State during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the County. This shall include any agency that receives any monetary support from Harrison County.
12. Waiting rooms, hallways, wards, private and semiprivate rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors’ offices, dentists’ offices, nursing homes, and any other health care providers.
13. Lobbies, hallways, and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities.
14. Polling places.
15. Auction houses.
16. Enclosed shopping malls including indoor flea markets.
17. All fire department facilities.
18. All emergency medical services facilities.
B. 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 nonsmoking establishment.
C. In any dispute arising under this regulation, the health concerns of the nonsmoker shall be given precedence.
Sec. 1005. Prohibition of Smoking in Places of Employment
A. It shall be the responsibility of employers to provide a smoke-free workplace for all employees
B. Within 30 days of the effective date of this article, each employer having an enclosed place of employment located within Harrison County shall adopt, implement, make known and maintain a written smoking policy which shall contain the following requirements:
Smoking shall be prohibited in all enclosed facilities within a place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles, and all other enclosed facilities.
C. The smoking policy shall be communicated to all employees within three (3) weeks of its adoption.
D. All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee.
Sec. 1006. Prohibition of Smoking in Outdoor Areas
A. Smoking shall be prohibited in the following outdoor places:
1. Designated smoking areas shall occur at a reasonable distance of 15 feet or more outside any entrance, exit, or ventilation units of any buildings or enclosed area where smoking is prohibited to insure that tobacco smoke does not enter the area through entrances, windows, ventilation systems or any other means. This shall include fresh air intake area for the heating, ventilation, air-conditioning (HVAC) system of any building.
Sec. 1007. Where Smoking Not Regulated
A. Notwithstanding any other provision of this article to the contrary, the following areas shall be exempt from Section 1005:
1. Private residences, except when used as a childcare, adult daycare, health care facility, or homes that are registered with West Virginia Department of Health as personal or residential board facility.
2. No more than twenty-five percent (25%) of hotel and motel rooms rented to guests.
3. Bingo halls that distribute more than one hundred bingo cards or bingo sheets as allowed under WV Code Section 47-20-281, as stipulated by the WV State Supreme Court of Appeals, December 2, 2003
4. Residents, prior to September 4, 2003, of personal care home, who had smoking privileges under WV 64CSR 14-8.12.3 as stipulated by the WV State Supreme Court of Appeals, December 2, 2003
Sec. 1008. Posting of Signs
A. “No Smoking” signs 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 clearly and conspicuously posted in every building or other area where smoking is prohibited by this article, by the owner, operator, manager or other person having control of such building or other area.
B. Every public place where smoking is prohibited by this Article shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.
C. All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited by this article by the owner, operator, manager or other person having control of such area.
Sec. 1009. Enforcement
A. Enforcement of this article shall be implemented by the Harrison County Health Officer, or his or her designee.
B. Notice of the provisions set forth in this article shall be given to all applicants for a business license in the County of Harrison.
C. Any citizen who desires to register a complaint under this chapter may initiate enforcement with the Harrison – Clarksburg Health Department.
D. The Health Department shall, while an establishment is undergoing otherwise mandated inspections, inspect for compliance of this ordinance.
E. Any owner, manager, operator or employee of any establishment regulated by this article shall inform persons violating this article of the appropriate provisions thereof.
Sec. 1010. Nonretaliation
No person or employer shall discharge, refuse to hire or in any manner retaliate against any employee, applicant for employment, or customer because such employee, applicant, or customer exercises any right to a smoke-free environment afforded by this article.
Sec. 1011. Violations and Penalties
Willful violation of this Clean Indoor Air Regulation is an unlawful act.
Any person who owns, manages, operates or otherwise controls the use of a premise shall commit a willful violation if they:
(1) Knowingly permit smoking on a premises subject to their control in an area where smoking is prohibited by the provisions of this clean indoor air regulation, or
(2) Knowingly violate any other provision of this clean indoor air regulation.
Any person who smokes or possesses a burning cigarette, cigar or pipe tobacco in an area of a premise where smoking is prohibited with knowledge that he or she is in a non-smoking area commits a willful violation of this clean indoor air regulation.
The Board of Health may, at its option, seek civil relief and/or file a misdemeanor complaint under
W.VA. Code 16-2-15 against any person who willfully violates this clean indoor air regulation. Enforcement through civil process, includes, but is not limited to a petition for injunctive relief.
Any person who willfully violates this clean indoor air regulation, may be charged with a misdemeanor under W.Va. Code 16-2-15 and, upon conviction, be subject to a monetary fine. At the time of the adoption of this Clean Indoor Air Regulation, West Virginia Code 16-2-15 provided as follows.
Chapter 16-2-15. Obstructing local health officers and others in the
enforcement of public health laws; other violations, penalties.
Any person who willfully obstructs any local health officer, public health nurse, sanitarian or any other person charged with the enforcement of any public health law, in the performance of that person’s legal duties in enforcing the law, is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than fifty dollars and not more than five hundred dollars.
Any person who willfully violates any of the provisions of this article, or any of the rules or orders adopted or issued pursuant to the provisions, for which a penalty is not otherwise provided, is guilty of a Misdemeanor and, upon conviction, shall be punished by a fine of not less than two hundred dollars and Not more than one thousand dollars.
Magistrates have concurrent jurisdiction with the circuit courts of this state for violations of Provisions of this article.
Sec. 1012. Public Education
The Harrison-Clarksburg Health Department shall engage in a continuing program to explain and clarify the purposes and requirements of this ordinance to citizens affected by it, and to guide owners, operators and managers in their compliance with it. Such program may include publication of a brochure for affected businesses and individuals explaining the provisions of this regulation.
Sec. 1013. Other Applicable Laws
This article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.
Sec. 1014. Severability
If any provision, clause, sentence or paragraph of this article or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are declared to be severable.
Sec. 1015. Effective Date
This Regulation shall become effective June 1, 2010.