Sec. 36-230. - Restaurants and other establishments and facilities.
Sec. 36-231. - Violations and penalties.
Sec. 36-233. - Places of employment.
Sec. 36-235. - General provisions.
Secs. 36-236—36-257. - Reserved.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Alcoholic beverage means any beer, wine, spirits or other alcoholic liquor as each word or phrase is defined in 4 Del. C.
Bar or cocktail lounge area means that part of any restaurant or other establishment, to a depth of 20 feet from such bar, primarily engaged in the business of selling or dispensing alcoholic or other beverages and duly licensed by the state for the same, but secondary to the restaurant or other primary use of the establishment.
Employee means any person who renders or has rendered any service to another for a consideration or its equivalent, under an expressed or implied contract, and who is or was under the control and direction of the latter when rendering the services including temporary, provisional, casual or part-time employment.
Employer means an individual, co-partnership, association, corporation, governmental body or unit or agency or any other entity, for whom or for which one or more persons render or have rendered any services on a salary, commission or other compensation basis.
Health care facility means any office or institution providing individual care or treatment of diseases, whether physical, mental or emotional, or other medical, physiological or psychological conditions.
Place of employment means any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment. A private residence is not considered to be a place of employment for the purpose of this article, nor is a motor vehicle of the employer used by the employees in the course of employment.
Public conveyance means any mass transit vehicle or school bus.
Public meeting means any meeting or assembly held in any room, auditorium or chamber wherein public, civic or governmental business is conducted and which is open to the public either as participants or spectators.
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 care facilities, property owned, occupied or operated by the city or any agency thereof, public transportation facilities, lobbies and reception areas, but not including the offices or work areas not entered by the public in the normal course of business or use of the premises. A private residence is not a public place, but the lobby or common area of a multifamily dwelling containing ten or more dwelling units is a public place.
Restaurant means any establishment which is regularly used and kept open principally for the purpose of serving complete meals to persons for consideration and which has seating at tables for 35 or more persons, and suitable kitchen facilities connected therewith for cooking an assortment of foods under the charge of a chef or cook. The service of only such food and victuals as sandwiches or salads shall not be deemed to be the service of meals. Any such establishment shall be duly licensed as a restaurant by the city and state.
Retail store means any establishment whose primary purpose is to sell or offer for sale to consumers, not for resale, any goods, wares, merchandise, articles or food for consumption off the premises.
Secondhand smoke means the smoke to which a person may be involuntarily exposed, either through a smoker exhaling the smoke of or from a tobacco product, or through the lighting or burning of any tobacco product.
Smoking means the lighting, burning, holding or carrying of, or emitting, or inhaling, or exhaling the smoke of, a pipe, cigar or cigarette of any kind or any form of lighted object or device which contains tobacco.
Sports arena means any indoor facility primarily used for sports, cultural or similar events.
Taproom means any establishment which is regulated and licensed as such by the state pursuant to the state Alcoholic Beverage Control Act and which is provided with special space and accommodations and operated primarily for the sale by the glass for consumption on the premises of alcoholic beverages with the sale of food as a secondary object as distinguished from a restaurant where the sale of food is the primary object.
Tavern means any business selling spirits, wine or beer by the glass at retail for consumption on the premises, and which is duly licensed and regulated as such pursuant to 4 Del. C., and in which the sale of food is a secondary object as distinguished from a restaurant where the sale of food is the primary object.
Theater means any indoor facility primarily used for the exhibition of any motion picture, stage drama, musical recital, dance, lecture or other similar performance.
(Ord. No. 06-054(sub 1), § 6, 10-19-06)
(a)
Public places. Smoking is unlawful in public places and in the following public places during the hours in which they are open to the public:
(1)
Art galleries, libraries, museums and similar cultural facilities;
(2)
Classrooms and lecture halls;
(3)
Designated no smoking areas of restaurants, as set forth in section 36-230, and the corresponding parts of any dining area of any membership organization that is considered to be not distinctly private in nature pursuant to the provisions of sections 5-31 and 5-57
(4)
Elevators;
(5)
Health care facilities, not including the in-patient sleeping quarters of any facility; each such facility shall make a reasonable effort to assign patients to sleeping rooms according to the patient's smoking or nonsmoking preference; provided, however, that the owner or other person with authority to manage and control such facility may designate separate rooms or areas in which smoking is permitted, using existing physical barriers and ventilation systems to the greatest extent possible to minimize the second-hand smoke in adjacent no-smoking areas;
(6)
Public conveyances;
(7)
Public meetings;
(8)
Retail stores that are designed and arranged with 1,500 square feet or more of gross interior floor space on the ground floor or 3,000 square feet or more of the same for any upper floor and that employ more than 25 persons at the same location, other than retail tobacco stores whose primary activity is the sale or promotion of tobacco and tobacco products and accessories; provided, however, that smoking may be permitted in those areas of enclosed shopping centers or malls that are external to the retail stores and are used by customers as a route of travel from one store to another and consist primarily of walkways and seating arrangements; further provided that where smoking is permitted, the proprietor shall post a sign to that effect; and
(9)
Theaters and sports arenas, except when smoking is part of a theatrical production; provided, however that smoking may be permitted in the area that serves as a lobby if physically separate from the spectator area and if a sign is posted to that effect.
(b)
Places of employment. Smoking is unlawful in designated no smoking areas of places of employment, as set forth in section 36-233
(Ord. No. 06-054(sub 1), § 6, 10-19-06)
Sec. 36-230. - Restaurants and other establishments and facilities.
(a)
Nonsmoking area; when required. The proprietor of every restaurant, whether currently in existence or to be established in the future, with an indoor seating capacity of more than 75 seats shall designate a nonsmoking area consisting of as much of the indoor seating capacity of the restaurant, as is deemed appropriate by the proprietor for his clientele, provided, however, that smoking may be permitted in any part of the restaurant that constitutes a bar or cocktail lounge area. The management of any membership organization that is not distinctly private in nature, pursuant to chapter 5 of this Code, shall be subject to the requirements in a like manner based on its seating capacity.
(b)
Exceptions. This section shall not apply to:
(1)
Taprooms and taverns; nor shall the seating capacity of any bar or lounge area and the area within 20 feet of the bar and located within a restaurant be included in the calculation of the total seating capacity of the restaurant.
(2)
Rooms used for private functions, such as wedding receptions, or banquets that are conducted in private and are not open to the general public.
(3)
The facilities of any membership organization that is considered to be distinctly private in nature in accordance with the provisions of sections 5-31 and 5-57
(c)
Alternative methods. Any restaurant that is not subject to subsection (a) of this section and any taproom, tavern, organization, rooms or facilities that are exceptions pursuant to subsection (b) of this section shall be required to have a mechanical system that effectively removes secondhand smoke from the premises.
(Ord. No. 06-054(sub 1), § 6, 10-19-06)
Sec. 36-231. - Violations and penalties.
(a)
Violations. The following acts constitute violations of this article:
(1)
Smoking in a posted nonsmoking area.
(2)
Failure to post a no smoking sign as required by this article.
(3)
Intentional failure to inform any person who violates this article, when such duty to inform arises as set forth in section 36-234
(4)
Willful destruction or defacement of a sign posted as required by this article.
(5)
Failure to adopt a smoking policy as set forth in section 36-233
(b)
Penalties. Anyone who violates any provision of this article shall be deemed guilty of a misdemeanor and shall be liable for a fine in an amount not to exceed $100.00. Each day such violation continues shall constitute a separate offense.
(Ord. No. 06-054(sub 1), § 6, 10-19-06)
The owner or other person having the authority to manage and control any area designated as a no smoking area pursuant to this article shall post, or cause to be posted, and prominently displayed, and shall maintain, "No Smoking" signs in conspicuous locations within such areas. Such signs shall clearly and conspicuously recite the phrase "No Smoking" and/or use the international no smoking symbol and shall cite this chapter. Existing signs that cite chapter 33 of the 1968 Edition of the City Code are not invalidated by this section. Signs shall be of sufficient number and prominent location to convey the message clearly and legibly to a man or woman of reasonable sensibilities.
(Ord. No. 06-054(sub 1), § 6, 10-19-06)
Sec. 36-233. - Places of employment.
(a)
Written smoking policy. Every employer of 25 or more employees at any one location in the city shall adopt, implement and maintain a written smoking policy which shall contain, at a minimum, the following provisions:
(1)
A statement providing that the employer shall attempt to reach a reasonable accommodation, insofar as possible, between the preferences of smoking and nonsmoking employees; provided, however, that the employers are not required to incur any expense to make structural or physical modifications to accommodate individual preferences; if a satisfactory accommodation cannot be reached, the preferences of nonsmoking employees shall prevail;
(2)
Smoking may be permitted in private, enclosed offices even though such offices may be visited in the normal course of business by nonsmoking employees, except that smoking shall not be permitted in any private, enclosed offices that are part of the city government offices;
(3)
Prohibition of smoking in auditoriums, classrooms, elevators, stairwells and stairway landings, medical facilities, conference rooms and rooms containing photocopying or other office equipment used in common by employees;
(4)
Designation of some portion of the seating capacity of cafeterias, lunch rooms and employee lounges as no smoking areas; provided, however, that if there are two or more lounges available for employee use, one entire lounge may be designated as a smoking area;
(5)
A procedure to resolve employee disputes and objections arising under the smoking policy; and
(6)
A statement providing that the employer will not retaliate or take any adverse personnel action against any employee exercising his rights granted under the smoking policy.
(b)
Copies of policy to be provided to employees. Employers shall supply a written copy of the smoking policy to all current employees within 30 days of the date of adoption of such policy and shall supply copies of it to all future employees at the time of their entry into employment.
(c)
Posting of policy. Employers shall post the smoking policy conspicuously in the place of employment.
(Ord. No. 06-054(sub 1), § 6, 10-19-06)
(a)
Public places and places of employment. The owner, proprietor, manager, or other person having the authority to manage and control any public place or place of employment, or a designated agent of such owner or manager, shall inform persons smoking in restricted areas of such places in order to warn them that they are in violation of the law. Any person may file a complaint with the department of licenses and inspections or with the police department alleging a violation of any provision of this article.
(b)
Complaints; concurrent department jurisdiction. Upon complaint to the department of licenses and inspections, or to the police department, each department shall have concurrent jurisdiction to enforce the provisions of this article by any of the following actions:
(1)
Serving notice requiring the prompt correction by the owner, proprietor, manager or other person having the authority to manage and control any public place or place of employment of any violation of this article.
(2)
Advising the city solicitor of violations of this article in order to maintain an action at law or in equity to enforce the provisions of this article, recover the fines and costs of prosecution, or to prevent, enjoin, abate or remove or otherwise to cause the correction of any such violation of the provisions of this article.
(3)
Issue to any person a constable's citation or a summons to appear in the justice of the peace court or court of common pleas to answer to a charge of any violation of this article.
(Ord. No. 06-054(sub 1), § 6, 10-19-06)
Sec. 36-235. - General provisions.
(a)
Nothing in this article shall be construed to permit smoking where it is otherwise prohibited by law or regulation.
(b)
Nothing in this article shall be construed to preclude any owner or other person having the authority to manage and control any public place or place of employment from prohibiting smoking to a greater extent than is provided by this article.
(c)
Nothing in this article shall be construed to permit or authorize, or be permitted to result in a fire safety hazard or violation, as may be determined by the fire marshal, by anyone in attempting to comply with the provisions of this article.
(Ord. No. 06-054(sub 1), § 6, 10-19-06)