(a) Definitions. The following words and phrases, whenever used in this Section, shall be construed as defined herein:
Business(es) shall mean all sole proprietorships, partnerships, joint ventures, corporations, and other business entities, either for-profit or not-for-profit, including, but not limited to, retail establishments where goods or services are provided to the public, and other entities where accounting, counseling, legal, medical, dental, engineering, architectural, or other professional services are delivered.
City shall mean the City of Carmel, Hamilton County, Indiana.
E-cigarette shall mean any electronic device, such as, but not limited to, one composed of heating element(s), battery(ies), and/or electronic circuit(s), that can be used by a Person in any manner for the purpose of inhaling a vapor or cloud or aerosol of any substance, including, but not limited to, plant based and non-plant based products, nicotine and/or tetrahydrocannabinol, from the device.
Employee(s) shall mean all Persons who are employed by an Employer in consideration for direct or indirect monetary wages or profit, and all Persons who volunteer their services.
Employee Location(s) shall mean all areas under the control of public or private Employers, including, but not limited to, work areas, private offices, Employee lounges, restrooms, conference rooms, meeting rooms, classrooms, cafeterias, hallways, construction sites, temporary offices, and vehicles.
Employer(s) shall mean all Persons, Businesses, companies, partnerships, associations, municipal corporations, trusts, and not-for-profit entities that employ the services of one or more Employees.
Enclosed or Enclosed Area(s) shall mean all spaces closed in by roofs, ceilings, or other overhead coverings of any material, as well as by walls, doorways, or windows, whether open or closed, or other side coverings of any material on at least two sides of same. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent and whether or not containing openings of any kind.
Health Care Facility(ies) shall mean all offices and institutions providing care for or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including but not limited to, hospitals, rehabilitation hospitals, weight control clinics, nursing homes, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, dentists, and all specialists within these professions, as well as all waiting rooms, hallways, private rooms, semi-private rooms, and wards within same.
Person shall mean any man, woman, or child, regardless of age.
Private Club shall mean an organization, whether incorporated or not, that is the owner, lessee, or occupant of a building or portion thereof used exclusively for club purposes at all times, that is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain, and that only sells alcoholic beverages incidental to its operation. The affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting. The organization has established bylaws and/or a constitution to govern its activities and is exempt from federal income taxation under 26 U.S.C. 501.
Public Place(s) shall mean all areas, whether owned publicly or privately, to which the public is invited or in which the public is permitted, including, but not limited to, the following:
a. Aquariums, galleries, libraries, and museums;
b. Areas available to the general public in businesses and non-profit entities patronized by the public, including but not limited to, banks, laundromats, professional offices, and retail service establishments;
c. Bars and taverns;
d. Bingo facilities;
e. Child care and adult day care facilities;
f. Convention facilities;
g. Educational facilities, both public and private;
h. Elevators;
i. Gambling facilities;
j. Health Care Facilities;
k. Hotels and motels;
l. Lobbies, hallways, and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit residential facilities;
m. Parking structures;
n. Polling places;
o. Public transportation vehicles, including buses and taxicabs, under the authority of the City of Carmel and public transportation facilities, including bus, train, and airport facilities;
p. Restaurants;
q. Restrooms, lobbies, reception areas, hallways, and other common-use areas;
r. Retail stores;
s. Schools and school buses;
t. Service Lines;
u. Shopping Malls;
v. Recreational Areas;
w. Theaters and other facilities primarily used for exhibiting motion pictures, stage dramas, lectures, musical recitals, or other similar performances;
x. Vehicles when used commercially to transport members of the public for profit. The term excludes private residences, except when the private residence is used as a child care facility, or adult day care facility, or as Health Care Facility.
Recreational Area(s) shall mean all sports pavilions, stadiums, athletic fields, gymnasiums, health spas, swimming pools, roller or ice rinks, bowling alleys, multiuse paths, trails, and parks located within the City's corporate limits, and other similar places where members of the public assemble to engage in physical exercise or recreation, participate in athletic competition, or witness sports or other events. The term excludes all outdoor areas of golf courses.
Retail Tobacco Store(s) shall mean all retail stores that are not tobacco departments of larger commercial establishments (i.e., grocery stores, department stores, and discount stores) that:
a. Are utilized primarily for the sale of tobacco and/or smoking-related products including, but not limited to, cigarettes, cigars, tobacco, pipes, cigarette paper, lighters, E-cigarettes, and/or e-liquids; and
b. Are not licensed for the consumption of meals or alcoholic beverages on the premises nor operated in conjunction with another Business that is licensed for the on-premises consumption of meals or alcoholic beverages; and
c. Are a retail store in which the sale of tobacco and smoking-related products accounts for 66% or more of the store's gross sales; and
d. Prohibits all Persons under the legal age to lawfully Smoke from entering the premises; and
e. Does not share a ventilation system with any other business, entity, or residential property.
Service Line means an indoor or outdoor line in which one (1) or more Persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of money, including but not limited to, ATM lines, concert lines, food vendor lines, movie ticket lines, and sporting event lines.
Shopping Mall(s) shall mean all enclosed public walkways or hall areas that serve to connect retail or professional establishments.
Smoke or Smoking shall mean:
a. To ignite or cause to be ignited or carry/hold any ignited tobacco or a tobacco product or derivative or plant product intended for inhalation, including, but not limited to, tobacco, marijuana, or derivative(s) thereof;
b. To use any E-cigarette or similar device; or
c. To use any oral product or device for the purpose of circumventing the prohibition of Smoking in this Section; such that the product, derivative, and/or device emits a gas or cloud or aerosol in any form or any manner, which may commonly be understood to be smoke or vapor, that may be or is intended to be inhaled by a Person.
(b) Areas Smoking is prohibited.
(1) Smoking is prohibited in, and within ten (10) feet of:
A. All Enclosed Public Places within the City's corporate limits;
B. All Enclosed Employee Locations within the City's corporate limits. This Smoking prohibition shall be communicated by Employers to all existing Employees on or before the effective date of this Section, and to all prospective Employees upon their application for employment;
C. All private and semi-private rooms in nursing homes;
D. All hotel and motel guest rooms;
E. All outdoor Recreational Areas; and
F. All outdoor seating that is owned by the City or the Carmel Redevelopment Commission ("CRC") and all other outdoor seating that has been approved by the City or CRC and is located on City or CRC owned property.
(2) Notwithstanding any other provision of this Section to the contrary, Smoking shall not be prohibited in:
A. Private residences, except when used as a child care facility or adult day care facility or as Health Care Facility.
B. Private vehicles when not being used in the service of an Employer or when not being used commercially to transport members of the public for profit.
C. Any Enclosed Area of a Retail Tobacco Store within the City's corporate limits that:
1. Previously existed as a physical retail store within the City's corporate limits on or before July 1,2019; and
2. Since July 1, 2019, has been in continuous operation as a Retail Tobacco Store at the same physical location within the City's corporate limits.
D. Any Enclosed Area of a bar or tavern within the City's corporate limits that:
1. Holds a beer, liquor and/or wine retailer's permit under the laws of Indiana; and
2. Allows no Person to enter therein who is under the age of twenty-one (21); and
3. Employs no Person therein who is under the age of twenty-one (21); and
4. Is not physically located within a Business otherwise required to be smoke-free pursuant to this Section; and
5. On or before July 1, 2019, had provided written notice to the City Attorney/Corporation Counsel that it intended to allow Smoking and that it met all of the criteria entitling it to an exemption;
6. Since July 1, 2019, has continuously met the criteria entitling it to an exemption under this subsection (b)(2)(D); and
7. Since July 1, 2019, has been in continuous operation as a bar or tavern at the same physical location within the City's corporate limits.
E. Private Clubs within the City's corporate limits.
(3) Any Business or Private Club claiming an exemption pursuant to this Section shall provide to any City official, within two business days from the date of demand, adequate written proof showing that it qualifies for the exemption claimed. Such written proof shall be certified under the penalties for perjury by an authorized representative of the Business or Private Club.
(4) All ashtrays and other Smoking paraphernalia in Public Places and Employee Locations regulated by this Section shall be removed by the owner, operator, manager or other Person having control of same.
(5) No Person or Employer shall discharge, refuse to hire, or in any manner retaliate against any Employee, applicant for employment, or customer because that Employee, applicant, or customer has exercised any right afforded by this Section or reports or attempts to prosecute any violation of this Section.
(c) Enforcement and penalties.
(1) This Section may be enforced by:
A. The Director of the Department of Community Services and/or his/her designee(s),
B. The Fire Department Marshal and/or his/her designee(s), and/or
C. The Police Department Chief and/or the Chief's designee(s).
(2) Any citizen who desires to register a complaint under this Section may do so through the Office of Corporation Counsel.
(3) Owners, managers, and operators of Businesses, Public Places, and/or Employee Locations regulated by this Section shall inform all Persons located therein whom they observe Smoking in violation of this Section of the provisions of this Section, and shall ask such Persons to refrain from Smoking in any area or location in which Smoking is prohibited.
(4) It shall be the obligation and duty of the owner, manager, or operator of any:
A. Bar or tavern that elects to be exempted from the provisions of this Section, pursuant to subsection (b)(2) hereof, to ensure that no Person(s) under the age of 21 are allowed to enter therein in violation of this Section;
B. Retail Tobacco Store that elects to be exempted from the provisions of this Section, pursuant to subsection (b)(2) hereof, to ensure that no Person(s) under the legal age to lawfully Smoke are allowed to enter therein in violation of this Section.
(5) Any Person who engages in the act of Smoking in any Public Place, Employee Location, or in any other establishment, area, or location wherein Smoking is prohibited by this Section, as well as any Person who owns, manages, operates, or controls the same and who fails to comply with the provisions of this Section, shall be subject to a fine not to exceed $50 for the first violation of this Section in a calendar year, with all subsequent violations of this Section in the same calendar year being subject to a fine of not less than $75 and not more than $500 for each such violation.
(6) In addition to the fines established by this Section, the violation of this Section by any Person who owns, manages, operates, or controls any Public Place, Employee Location, or any other establishment, area, or location regulated by this Section, including those Public Places, Employee Locations, establishments, areas, and/or locations that are exempted under this Section, may result in the revocation of any exemption provided under this Section and/or the suspension or revocation of any permit or license issued to said Person by the City for the premises in or on which the violation occurred.
(7) Each day on which a violation of this Section occurs shall be considered a separate and distinct violation.
(8) This Section does not and shall not be interpreted as permitting Smoking in any establishment, area or location where it is otherwise restricted by any other applicable law, nor to prohibit any property owner from imposing on his or her property a Smoking ban that is more restrictive than that imposed by this Section.
(9) This Section shall be construed broadly to effectuate the purposes described herein.
(Ord. D-1778-05, 11-21-05; Ord. D- 1793-06, 1-23-06; Ord. D-2462-19, As Amended, 7-15-19)