SUBSTITUTE
Clean Indoor ORDINANCE - 2005

WHEREAS, the City of Chicago is a major tourism and convention destination; and

WHEREAS, health organizations have conducted studies that show secondhand smoke can cause health problems in non-smokers; and

WHEREAS, secondhand smoke is particularly hazardous to elderly people, people with cardiovascular disease, and individuals with impaired respiratory function; and

WHEREAS, children exposed to secondhand smoke have an increased risk of asthma, respiratory infections, sudden death syndrome, developmental abnormalities and cancer; and

WHEREAS, studies on the economic impact of smoking bans present conflicting data on the actual impact of smoking bans on the business community-particularly the impact on the hospitality business community; and

WHEREAS, the Chicago City Council desires to promote public health while simultaneously protecting the economic stability of the hospitality business community; and

WHEREAS, the Chicago City Council needs to significantly limit smoking in public places and provide a revenue stream to enforce this limitation; and

WHEREAS, the people working or visiting public places in the City of Chicago have a right to know if smoking is allowed on the premises; and

WHEREAS, the people working or visiting public places in the City of Chicago have a right to know who in the City government will enforce the Chicago Clear Indoor Air Act;

NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CHICAGO:

Section 1.  Chapter 7-32 of the Municipal Code is hereby amended by deleting the Sections 7/32-010 through 7-32-090 and inserting the language and code sections underlined as follows.

7-32-010. Title.

This chapter shall be known as the Chicago Clean Indoor Air Ordinance of 2005.

7-32-020. Interpretation With Other Laws.

Nothing in this Chapter overrides any existing elimination of smoking that is already covered by fire code restrictions.

7-32-030. Definitions.

The following words and phrases, whenever used in Sections 7-32-30 through 7-32-90, shall have the following meanings:

“Arcade” means a public place of amusement that contains four or more automatic amusement devices and is not licensed to serve alcoholic liquor.

“Bar/Tavern” means an establishment whose primary function is the serving of alcoholic beverages for consumption by patrons on the premises; such business may or may not provide food service.

“Beer Garden” means that physical portion of any business licensed by the City of Chicago as a ‘Beer Garden’.

“Bowling Center” means an establishment whose primary function is having lanes used for the game of bowling.

“Business” means any sole proprietorship, partnership, joint venture, corporation, limited liability company or other entity formed for profit-making purposes, including without limitation 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 or provided.

“City-Owned Facilities” means all enclosed vehicles and facilities, including without limitation buildings and vehicles owned, leased or operated by the City of Chicago.

“Dining Area” means any area in an enclosed structure where food is served or consumed at seated or standing positions other than a Separated Restaurant Bar.

“Employee” means any person who is employed by an employer in consideration for direct or indirect monetary wages or profit.

“Employer” means any person, business, partnership, corporation, association, including without limitation a municipal corporation, trust, or non profit entity that employs the services of more than two persons.

“Health Care Facility” means any office or institution providing care or treatment of diseases, whether physical, mental, emotional, or physiological, including without limitation hospitals, rehabilitation hospitals or facilities, clinics, nursing homes, homes for the chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, dentists, and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, semi-private rooms and wards within health care facilities.

“Place of Employment” means any enclosed area under the control of a public or private employer that employees are during the course of employment, including but without limitation work areas, employee lounges, restrooms, conference rooms, classrooms, employee cafeterias, hallways and vehicles. A private residence is not a “Place of Employment” unless it is used as a childcare facility, adult day care facility, health care facility or home-based business of any kind open to the public.

“Private Function” means a gathering of persons for the purposes of deliberation, education, instruction, entertainment, amusement or dining where membership or specific invitation is a prerequisite to entry and where the event is not intended to be open to the public.

“Public Place” means any enclosed area to which the public is invited or in which the public is permitted, including without limitation banks, concert facilities, educational facilities, government buildings, health care facilities, laundromats, museums, public transportation facilities, reception areas, retail service establishments, retail stores, shopping malls, sports arenas, theatres and zoos. A private residence is not a “Public Place” unless it is used as a childcare facility, adult day care facility, health care facility or home-based business of any kind open to the public.

“Restaurant” means any eating establishment, including without limitation coffee shops, cafeterias, sandwich shops, and private and public school cafeterias that give or offer for sale food to the public, guests or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere.  The term “Restaurant” shall not include the “Restaurant Bar”.

“Restaurant Bar” means the restaurant bar and any tables within 10 feet of any freestanding bar in a restaurant.

“Retail Tobacco Store” means any retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental and where no one under 18 is permitted.

“Separated Restaurant Bar” means the Restaurant Bar that is walled-off from the dining area with ventilation directing air flow away from the Dining Area and though the Separated Restaurant Bar.  The walls separating the Separated Restaurant Bar shall be in compliance with all applicable building and fire codes.

“Sidewalk Café” means that physical portion of any business licensed by the City of Chicago as a ‘Sidewalk Café’.

“Shopping Mall” means any enclosed walkway or hail area that serves to connect retail or professional establishments.

“Smoking” means inhaling, exhaling, burning or carrying of any lighted cigar, cigarette, pipe, weed, hookah or other lighted tobacco product in any manner or in any form.

“Sports Arena” or “Recreational Area” means any sports pavilion, stadium, gymnasium, health spa, boxing arena, swimming pool, roller and ice rink, and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic or recreational competition or activity, or to witness sports, cultural, recreational or other events.

7-32-040. City-Owned Facilities

All enclosed vehicles and facilities, including without limitation buildings and vehicles owned, leased, or operated by the City of Chicago, shall be subject to the provisions of Chapter 7-32.

7-32-050. Prohibition of Smoking in Public Places.

Smoking shall be prohibited in all enclosed public places of employment within the City of Chicago including without limitation the following places:

1.              Arcades.

2.              Aquariums, galleries, libraries and museums.

3.              Bowling Centers. This prohibition does not apply to the concourse and lounge areas of bowling centers.

4.              Convention facilities.

5.              Facilities primarily used for exhibiting a motion picture, stage, drama, lecture, musical recital or other similar performance.

6.              Health care facilities, adult care facilities and nursing homes.

7.              Day care centers, nursery schools, elementary schools, high schools, community colleges, technical training establishments, specialty schools, colleges and universities.

8.              Lobbies, hallways and other common areas in apartment buildings, condominium buildings and enclosed common areas in trailer parks.

9.              Polling places.

10.           Public transportation facilities under the authority of government agencies, including but without limitation buses, trains, taxicabs, limousines, and ticket, boarding and waiting areas of public transit stations.

11.           Public elevators.

12.           All retail stores where merchandise is displayed and offered for sale.

13.           Restrooms.

14.           Restaurants and Dining Areas.  This prohibition does not apply to Separated Restaurant Bar.

15.           Rooms, chambers, places of meeting or public assembly, including without limitation school buildings, buildings under the control of an agency, board, commission, committee or council of the City of Chicago, or a political subdivision of the State, to the extent the place is subject to the jurisdiction of the City of Chicago.

16.           Service lines.

17.           Shopping malls.

18.           Sports Arenas or Recreational Areas, including without limitation enclosed places in outdoor arenas.

19.           Grocery stores.

20.           Public meetings.

21.           Gymnasiums.

22.           Government vehicles used for City business such as maintenance trucks or fleet vehicles.

23.           Public and private school buildings.

7-32-060. Prohibition of Smoking in Places of Employment.

This prohibition on smoking shall be communicated to all existing employees by the effective date of Chapter 7-32 and to all prospective employees upon their application for employment.

7-32-070. Where Smoking is not Regulated.

Notwithstanding any other provision of this Article to the contrary, the following areas shall be exempt from Sections 7-32-050 through 7-32-060:

1.              Private residences, except when used as a licensed childcare facility, adult care facility, health care facility, or a home-based business of any kind open to the public.

2.              Private vehicles.

3.              Hotel and motel sleeping rooms that are rented to guests and are designated as smoking rooms.

4.              Retail tobacco stores, provided that smoke from these places does not infiltrate into areas where smoking is prohibited under the provisions of any section of Chapter 7-32.

7-32-080. Tobacco Use Notice.

Businesses holding a valid on-premise liquor license issued by the City of Chicago where the gross revenue derived from meals does not equal or exceed the gross revenue derived from the service and sale of alcoholic liquors including: Tavern, Bowling Center (for concourse and lounge areas only), Beer Garden, Sidewalk Cafe and Separated Restaurant Bar shall be subject to all existing City regulations but may notify the Department of Business Affairs & Licensing that they permit smoking in that place of business.  Smoking is prohibited without notice to the Chicago Department of Business Affairs & Licensing.

Enforcement in Restaurant Bar areas shall be stayed for one (1) year to allow owners to make necessary building changes to create a Separated Restaurant Bar.

Hardship Exception.  If after one year, an owner can’t make building changes due to landmark status, building code restrictions or excessive costs, the owner may request a further extension of enforcement from the city.  The Mayor shall establish in the Business Affairs & Licensing Department rules to review hardship requests.

A committee comprised of the Chairman of the City Council’s committees on Finance, Health, Budget, Police & Fire and the Alderman of the ward wherein the property seeking the Hardship Exception is located, shall hear and decide hardship exception matters.

7-32-090. Declaration of Establishments as Non-Smoking.

Notwithstanding any other provision of Chapter 7-32, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility or outdoor area as a non-smoking place.

Smoking shall be prohibited in any place in which a sign conforming to the requirements of Section 7-32-100(A) is posted.

7-32-100. Posting of Signs.

A. Every public place and place of employment where smoking is prohibited by Chapter 7-32 shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.  Those public places where smoking is permitted shall have posted at all public and employee entrances a conspicuous sign clearly indicating that smoking is permitted.

B. The operator, manager or other person having control of an area where smoking is prohibited by this Chapter shall remove all ashtrays and other smoking paraphernalia for use where smoking is prohibited.

7-32-110. Removal and Restriction of Smoking Paraphernalia.

The owner, operator, manager or other person having control of an area where Chapter 7-32 prohibits smoking shall remove all ashtrays and other smoking paraphernalia intended for use where smoking is prohibited. Such smoking paraphernalia may be maintained in those restricted areas where smoking is permitted pursuant to Chapter 7-32.

7-32-120. Non-retaliation.

No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or customer because that employee, applicant or customer exercises any rights afforded by this Chapter or reports a violation of this Chapter. No employee or customer may in any manner retaliate against an employer or business owner, operator, manager or employee because that employer or place of business complied with and/or enforced the non-smoking/smoking provisions of this Chapter.

7-32-130. Enforcement.

A. The Chicago Department of Public Health and the Department of Business Affairs & Licensing shall enforce Chapter 7-32. Enforcement of Chapter 7-32 shall commence one hundred and eighty (180) days from the effective date to permit sufficient time for the City of Chicago to issue licenses, signs, etc.

B. The Department of Business Affairs & Licensing shall give notice of the provisions of the Chapter 7-32 to all applicants for a business license in the City of Chicago.

C. Any citizen who desires to register a complaint under Sections 7-32-020 through 7-32-120 may initiate enforcement with the Chicago Department of Public Health.

D. The Chicago Department of Public Health or their designees shall, while a business is undergoing otherwise mandated inspections, inspect for compliance with Sections 7-32-20 through 7-32-120.

E. An owner, operator, manager or employee of a business regulated by this Chapter shall inform persons violating Sections 7-32-020 through 7-32-120 of the appropriate provisions thereof.

F. In addition to the remedies provided by the provisions of Sections 7-32-020 through 7-32-120, the Chicago Department of Public Health may apply for injunctive relief to enforce those provisions in any court of competent jurisdiction.

7-32-140. Violations and Penalties.

A. A person who violates Chapter 7-32 by smoking in a place where smoking is prohibited by Chapter 7-32 shall be guilty of an infraction, punishable by a fine not less than one hundred dollars ($100) and not more than five hundred dollars ($500).

B. A person who owns, manages, operates or otherwise controls a public place or place of employment and who fails to comply with the provisions of Chapter 7-32 shall be guilty of an infraction, punishable by:

1.              A fine not exceeding one hundred dollars ($100) for the first violation.

2.              A fine not exceeding five hundred dollars ($500) for the second violation within one (1) year of the first violation.

3.              A fine not more than one thousand dollars ($1,000) for each additional violation within one (1) year and a five (5) day suspension or revocation of any permit or license issued to the person for the premises on which the violation occurred.

C. A person who owns, manages, operates or otherwise controls a public place or place of employment shall have an affirmative defense to the violations outlined in Section 7-32-140(B) if the person attempts to enforce the provision of Chapter 7-32 but fails.

D. Each day on which a violation of Chapter 7-32 occurs shall be considered a separate and distinct violation.

E. Revenues collected pursuant to the enforcement of the Chapter 7-32 shall be dedicated to enforcing this ordinance.

7-32-140. Public Education.

The Chicago Department of Public Health shall engage in a continuing program to explain and clarify the purposes and requirements of Chapter 7-32 to citizens affected by it, and to guide owners, operators and managers in their compliance with it.

7-32-150. Government Agency Cooperation.

The Mayor and the City Council shall annually request that other governmental and additional agencies having facilities located within the City of Chicago establish local operating procedures in cooperation and compliance with Chapter 7-32. This includes urging all federal, state, county, city, special district and school district agencies to update their existing smoking control regulations to be consistent with the Chapter 7-32.

7-32-160. Severability

If any provision, clause, sentence or paragraph of the Chapter 7-32 or the application thereof to any person or circumstance shall be held invalid by a court of competent jurisdiction, such invalidity shall not affect the other provisions of Chapter 7-32 which can be given effect without the invalid provision or application, and to the end the provisions of Chapter 7-32 are declared to be severable.

Section 2.  The effective date of this ordinance shall be April 1, 2006.