Section
83.01 Findings, purpose and authority
83.02 Definitions
83.03 Smoking and vaping is prohibited in all places where smoking is prohibited under state law
83.04 Smoking and vaping is prohibited in public places, in town buildings, in town vehicles and on certain town grounds
83.05 Littering of smoking and vaping refuse prohibited
83.99 Penalty
(A) Findings. The town seeks to protect the health and well-being of its employees and the general public. Secondhand smoke has been proven to cause cancer, heart disease and asthma attacks in both smokers and non-smokers. In 2006, a report issued by the United States Surgeon General concluded that, based upon the scientific evidence, there is no risk-free level of exposure to secondhand smoke. In addition, there is scientific consensus that e-cigarettes pose substantial risks to both users and other persons exposed to secondhand vapor and to e-cigarette products, including but not limited to risks associated with exposure to airborne particulates and toxins, exposure to toxic e-liquids, and explosion of e-cigarettes. Further, the 2016 Surgeon General’s Report on E-Cigarette Use on Youth and Young Adults has stated that e-cigarettes use has become a public health concern and has recommended that e-cigarettes be included in smoke-free policies.
(B) Intent. The town seeks to protect the health and well-being of children by banning, to the extent possible, smoking in their presence. It is further the intent of the town to protect the health of all individuals in public places, places of employment and working in or visiting town buildings from the risks related to secondhand smoke and vaping. It is further the intent of the town to protect the health of individuals driving or riding in town-controlled passenger vehicles assigned permanently or temporarily to town employees for official town business.
(C) Authority. This chapter is adopted pursuant to the authority provided in G.S §§ 130A-491 et seq. and § 160A-174(a).
(Prior Code, § 97.01) (Ord. passed 12-17-2009; Ord. passed 12-16-2019; Ord. passed 12-15-2020)
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
BAR. An establishment with a permit to sell alcoholic beverages pursuant to divisions (1), (3), (5) or (10) of G.S. § 18B-1001.
BUS SHELTER. An ENCLOSED AREA that serves as a shelter for persons waiting at a bus stop.
BUS STOP. A designated location where a passenger bus regularly stops to collect or discharge passengers. A bus stop may have a bus shelter or may be designated only by signage.
CHILD. Any person under the age of 18.
CHILD CARE FACILITY. Any nursery, day care center, preschool or other facility engaged in the practice of providing care for children.
CIGAR BAR.
(1) An establishment with a permit to sell alcoholic beverages pursuant to divisions (1), (3), (5) or (10) of G.S. § 18B-1001 that satisfies all of the following:
(a) Generates 60% or more of its quarterly gross revenue from the sale of alcoholic beverages and 25% or more of its quarterly gross revenue from the sale of cigars;
(b) Has a humidor on the premises; and
(c) Does not allow individuals under the age of 21 to enter the premises.
(2) However, revenue generated from other tobacco sales, including cigarette vending machines, shall not be used to determine whether an establishment satisfies the definition of
CIGAR BAR.
EMPLOYEE. A person who is employed by an employer or who contracts with an employer or third person to perform services for an employer or who otherwise performs services for an employer with or without compensation.
E-CIGARETTE. Any electronic oral device that employs a mechanical heating element, battery, or electronic circuit regardless of shape or size and that can be used to heat a liquid nicotine solution or any other substance, and the use or inhalation of which simulates smoking. The term shall include any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, or under any other product name or descriptor.
EMPLOYER. An individual person, business, association, political subdivision or other public or private entity, including a non-profit entity, that employs or contracts for or accepts the provision of services from one or more employees.
ENCLOSED AREA. An area with a roof or other overhead covering of any kind and walls or side coverings of any kind, regardless of the presence of openings for ingress and egress, on all sides or on all sides, but one.
LODGING ESTABLISHMENT. An establishment that provides lodging for pay to the public.
PLACE OF EMPLOYMENT. Any enclosed area under the control of an employer whose employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and class rooms, employee cafeterias and hallways. A private residence is not a PLACE OF EMPLOYMENT unless it is used as a child care facility or health care facility.
PRIVATE CLUB. A country club or an organization that maintains selective members, is operated by the membership, does not provide food or lodging for pay to anyone who is not a member or a member’s guest and is either incorporated as a non-profit corporation in accordance with G.S. Ch. 55A or is exempt from federal income tax under the Internal Revenue Code, as defined in G.S. § 105-130.2(1). For the purposes of this chapter, PRIVATE CLUB includes country club.
PRIVATE RESIDENCE. A private dwelling that is not a child care facility, as defined in G.S. § 110-86(3) and not a long-term care facility, as defined in G.S. § 131E-114.3(a)(1).
PRIVATE VEHICLE. A privately owned vehicle that is not used for commercial or employment purposes.
PUBLIC PLACE. An enclosed area to which the public is invited or in which the public is permitted. Without limiting the foregoing but rather by way of clarification and illustration: Public places include all buildings and other structures that (i) have a roof or other overhead covering and at least three walls or other side coverings; and (ii) are places in to which the public is invited or permitted. Public places can be on publicly or privately owned property. Examples of public places are banks, retail stores, grocery stores, bowling alleys, waiting rooms, lobbies, and bus shelters. For purposes of this chapter, public places do not include government-owned buildings other than those owned by the town.
RESTAURANT. A food and lodging establishment that prepares and serves drink or food as regulated by the Commission pursuant to G.S. Ch. 130A, Art. 8, Part 6.
SMOKING. The use or possession of a lighted cigarette, lighted cigar, lighted pipe or any other lighted tobacco product.
STATE GOVERNMENT. The political unit for the state, including all agencies of the executive, judicial and legislative branches of government.
STATE GOVERNMENT BUILDING. A building owned, leased as lessor or the area leased as lessee and occupied by state government.
STATE VEHICLE. A passenger-carrying vehicle owned, leased or otherwise controlled by the state and assigned permanently or temporarily to a state employee or state agency or institution for official state business.
TOBACCO SHOP. A business establishment, the main purpose of which is the sale of tobacco, tobacco products and accessories for the products, that receives no less than 75% of its total annual revenues from the sale of tobacco, tobacco products and accessories for the products and does not serve food or alcohol on its premises.
TOWN. The Town of Boone, North Carolina, a municipal corporation.
TOWN GROUNDS. An unenclosed area owned, leased or occupied by the town, including all areas in the town’s street rights-of-way and other easement areas, sidewalks, greenways, and multi-modal paths.
TOWN SIDEWALK. A sidewalk owned or maintained by the Town of Boone.
TOWN VEHICLE. A vehicle owned, leased or otherwise controlled by the town and assigned permanently or temporarily to an employee(s) of the town, its agencies, institutions or facilities for official town business, designed, used or intended for use carrying passengers.
VAPE (VAPING). The use of an e-cigarette.
WALLS/SIDE COVERINGS. A solid material enclosing 50% or more of a side of a structure.
(Prior Code, § 97.02) (Ord. passed 12-17-2009; Ord. passed 2-16-2010; Ord. passed 12-16-2019; Ord. passed 12-15-2020)
(A) Smoking and vaping are prohibited in all places where smoking is prohibited under state law, including, but not limited to:
(1) State government buildings and vehicles;
(2) State government buildings, except when used for medical or scientific research to the extent that smoking is an integral part of the research, but in those instances confined to the area where the research is being conducted;
(3) State vehicles; and
(4) All enclosed areas of restaurants, lodging establishments and bars, except:
(a) In a designated smoking guest room in a lodging establishment; provided that, no greater than 20% of a lodging establishment’s guest rooms may be designated smoking guest rooms;
(b) A cigar bar if smoke from the cigar bar does not migrate into an enclosed area where smoking is prohibited pursuant to G.S. Ch. 130A; provided that, a cigar bar that begins operation after 7-1-2009 may only allow smoking if it is located in a freestanding structure occupied solely by the cigar bar and smoke from the cigar bar does not migrate into an enclosed area where smoking is prohibited and otherwise complies with state law; or
(c) A private club.
(Prior Code, § 97.03) (Ord. passed 12-17-2009; Ord. passed 12-16-2019; Ord. passed 12-15-2020) Penalty, see § 83.99
(A) In addition to those places where smoking is prohibited under state law and except for those places exempted under division (B) below, smoking and vaping are prohibited in each of the following locations:
(1) Inside every public place, including buildings, bus shelters, and other structures that are defined as public places herein;
(2) Inside all town buildings;
(3) On the following grounds and other un-enclosed locations:
(a) On every town sidewalk within 15 feet of any public entrance to a public place during all times when the public place is open to the public;
(b) Within 15 feet of any public entrance to any town or local government building during all times when that building is open to the public;
(c) At any location on town grounds that is within 15 feet of a bus stop, including on a town sidewalk or in a town street right-of-way;
(d) From 10:00 a.m. to 8:00 p.m. each day of the week, on any town sidewalk adjacent to West King Street between Burrell/North Water Street to the west and Appalachian Street to the east;
(e) Within 15 feet of any child who is on town grounds;
(f) Except where expressly allowed and posted as designated smoking areas, within or on the grounds of any town property, including but not limited to: any town playground; any town park or garden, including but not limited to, the Greenway trail system, Daniel Boone Native Gardens, Strawberry Hill Arboretum, Horn in the West property and Jimmy Smith Park; the grounds of the Jones House and the downtown post office; and
(g) Within any area designated and posted by the owner or tenant of private property as a no-smoking area.
(4) In any town vehicle.
(B) Exemptions. The foregoing provisions of division (A) shall not be read or interpreted to restrict or prohibit smoking or vaping in the following places:
(1) A private residence as defined above;
(2) A private vehicle;
(3) A tobacco shop if smoke from the business does not migrate into an enclosed area where smoking is prohibited under state law, except for a tobacco shop that began operation after 7-1-2009, which is exempt only if it is located in a freestanding structure occupied solely by the tobacco shop and smoke from the shop does not migrate into an enclosed area where smoking is prohibited pursuant to state law and it otherwise complies with the reporting requirements under state law;
(4) All of the premises, facilities and vehicles owned, operated or leased by any tobacco products processor or manufacturer or any tobacco leaf grower, processor or dealer;
(5) A designated smoking guest room in a lodging establishment, so long as no greater than 20% of the lodging establishment’s guest rooms are designated smoking guest rooms;
(6) A cigar bar, if smoke from the cigar bar does not migrate into an enclosed area where smoking is prohibited pursuant to state law, except for a cigar bar that began operation after 7-1-2009, which is exempt only if it is located in a freestanding structure occupied solely by the cigar bar and smoke from the cigar bar does not migrate into an enclosed area where smoking is prohibited pursuant to state law and it otherwise complies with the reporting requirements under state law;
(7) A private club; and
(8) A motion picture, television, theater or other live production set, but this exemption applies only to an actor or performer portraying the use of tobacco products during the production.
(Prior Code, § 97.04) (Ord. passed 12-17-2009; Ord. passed 2-16-2010; Ord. passed 12-16-2019; Ord. passed 12-15-2020) Penalty, see § 83.99
It shall be unlawful for anyone to deposit any portion or component of an e-cigarette or a cigarette, cigar, or other smoking device or any refuse related to smoking or vaping, except in a receptacle appropriate for that purpose.
(Prior Code, § 97.05) (Ord. passed 12-17-2009; Ord. passed 12-16-2019; Ord. passed 12-15-2020) Penalty, see § 83.99
(A) Violation of prohibition on smoking or vaping. After an initial warning, any person continuing to smoke or vape in violation of § 83.04 shall be guilty of an infraction and the person committing the infraction is subject to a fine of $50. Conviction of an infraction under this section shall have no consequence other than payment of the penalty and a person smoking or vaping in violation of this chapter shall not be assessed court costs.
(B) Additional sanctions for employees. In addition to any penalty under division (A), any town employee who violates this chapter while on duty for the town shall be subject to disciplinary action consistent with the town's personnel policy.
(C) Violations by persons who manage, operate or control a public place. The Director of the Appalachian District Health Department may take the following actions and may impose the following administrative penalties on a person who manages, operates or controls a public place or place of employment and fails to comply with the provisions of this chapter. However, nothing herein shall be construed to in any way limit or negate the powers conferred upon the Director of the Appalachian District Health Department under state law, it being the intent of this chapter to authorize enforcement actions by the Director to the full extent permissible:
(1) First violation. Provide the person in violation with written notice of the person’s first violation and notification of action to be taken in the event of subsequent violations;
(2) Second violation. Provide the person in violation with written notice of the person’s second violation and notification of administrative penalties to be imposed for subsequent violations; and
(3) Subsequent violations. Impose on the person in violation an administrative penalty of not more than $200 for the third and subsequent violations. Each day on which a violation of this chapter occurs shall be considered a separate and distinct violation.
(D) Violation for littering smoking or vaping refuse. Violations of § 83.05 shall be enforced as follows:
(1) After an initial written warning, a second violation of this chapter within any 12-month rolling period by any person shall subject the offender to a civil penalty in the amount of $50 and each subsequent violation within a 12-month rolling period shall subject the offender to a civil penalty for each violation of $100.
(2) In addition to the civil penalties, a fourth and any subsequent violation within a 12-month rolling period shall be guilty of an infraction punishable by a fine in the amount of $50.
(Prior Code, § 97.99) (Ord. passed 12-17-2009; Ord. passed 2-16-2010; Ord. passed 12-16-2019; Ord. passed 12-15-2020)