HomeMy WebLinkAboutORD 2003-112 2002-2004 COUNTY OF HAWAII STATE OF HAWAII
BILL NO. 260
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ORDINANCE NO. ~3
AN ORDINANCE AMENDING CHAPTER 14 (GENERAL WELFARE) OF THE HAWAII
COUNTY CODE ]983 (1995 EDITION), AS AMENDED, RELATING TO SMOKING IN
CERTAIN PLACES IN THE COUNTY OF HAWAII.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Purpose. The County Council finds that there are compelling public health and
safety reasons to protect nonsmoking employees and the general public from the hazardous effects
of environmental tobacco smoke (ETS), more commonly known as "second-hand smoke." ETS
has been determined to cause a number of adverse health effects, including lung cancer, childhood
asthma, and lower respiratory tract infections, according to studies by the U.S. Surgeon General,
Environmental Protection Agency, and the National Research Council.
The purpose of this measure is to prohibit the smoking of tobacco or any other plant in certain
areas of the County.
Terms of this article shall be liberally construed to effectuate the purpose stated in this section, and
shall be read in conjunction with applicable state laws governing smoking in the workplace and
public places. The Council recognizes that this ordinance is more stringent than Part 1, Chapter
328K, Hawaii Revised Statutes.
SECTION 2. Chapter 14, Article 4, of the Hawaii County Code, relating to smoking in
public places, is amended to read and be appropriately numbered as follows:
"Article 4. Prohibition of Smoking in [Public] Certain Places.
Section 14-20. Definitions.
(a) As used in this article, unless the context requires otherwise:
[5]~ "Bar" means an establishment [in which the sale and consumption of
intoxicating liquor on the premises is authorized under a license issued by the
department of liquor control.] that is devoted to the serving of alcoholic beverages
for consumption by~?uests on the premises and in which the serving of food is only
incidental to the consumption of those beverages, including but not limited to,
taverns, nightclubs, cocktail lounges, and cabarets. "Incidental" means that for the
prior calendar year, gross sales of food are less than one-third (I /3) of gross sales of
alcoholic beverages. A "bar" is authorized under a license issued by the department
of liquor control.
(2) "Bowling alley" means a building where people go to bowl.
(3)"Building" means any area enclosed by a roof and at least three walls.
(4) ["Small businesses" means those business establishments having no more
than five employees working on the business premises per established work
shift.] "Business" means a sole proprietorship, partnership, joint venture,
corooration, or other business entity formed for profit-making purooses,
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.
(51 "Commercial building" means a building occupied by Two or more
commercial tenants.
(6) "Enclosed or partially enclosed area(s)" means area(s) closed in by a roof or
overhang and at least two walls.
(7) "Hotel" means a transient vacation rental, other than a bed and breakfast
home containing lodging or dwellin units.
(8) "Multifamily dwelling" means a building containing more than two dwelling
units.
(9) "Nightclub" means a bar in which live entertainment is provided and in which
facilities for dancing by patrons either by live entertainment or recorded
music are provided.
[(2)]~"Open to the public" means areas within any building available for use by or
accessible to the general public during the normal course of business
conducted therein by either private or public entities.
[(6)] 1 1 "Restaurant" means [a] a~ retail eating establishment where food is served or
provided for on-site consumption by seated patrons that is authorized by the
State department of health to operate as a [restaurant.] food establishment,
including any private food service establishment or club in which one
members or their guests are permitted, but excluding a "bar." If a restaurant
includes an area devoted to the serving of alcoholic beverages, that area shall
be deemed part of the "restaurant," not a separate "bar," for this article. An
establishment that is a "restaurant" shall have that status for all hours of
operation.
[(1)]~"Smoke" or "smoking" means [and includes] inhaling or exhaling [upon,
burningl the fumes of tobacco or any other plant material, or burning or
carrying any lighted smoking equipment for tobacco or any other plant
material; the personal habit commonly known as smoking including
smoking cigv~ettes, cigars, or pipes.
Section 14-21. Prohibition [in certain places open to the] of smoking in [public.
certain places.
(a) Except as otherwise provided [herein,] in this article, smoking shall be prohibited in
[the following places within the County:] all enclosed places within the County,
including but not limited to, the following places:
[(l) Elevators in buildings generally open to and used by the public, including
elevators in apartment and other multi-unit residential buildings.]
[(2)](I~[Private and semiprivate] Patient rooms, wards, waiting rooms, lobbies, and
public hallways of public and private health care facilities, including, but not
limited to, hospitals, clinics, and physicians' and dentists' offices.
[(A) Nothing in this section shall prevent a Facility from establishing
waiting areas where smoking is permitted where smoking areas comprise no
more than fifty percent of the waiting area space in the facility if the smoking
areas are physically separated by walls so that smoke does not permeate into
nonsmoking areas.]
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[(3) Any room which is primarily used for exhibiting any motion picture, stage
drama, dance, musical performance or other similar performance during the
time that the room, hall, or auditorium is open to the public for such
exhibition.
(4) Museums, libraries and galleries, provided that smoking may be permitted in
a designated portion of the reading area in a library if the smoking area
comprises uo more than twenty percent of the reading area in the library and
is physically separated by walls or partitions from the remainder of the library
so that smoke does not permeate into nonsmoking areas.]
[(5)]~2Z_jRestaurants with a seating capacity of more than forty patrons.
(A) Nothing in this section shall prevent a restaurant of more than forty
patrons from providing smoking areas which are reasonably
proportionate to the preference of its users.
(B) Where an establishment is both a restaurant and a bar, the
establishment shall be deemed as the type of enterprise from which
the major source of income is derived, provided that if the restaurant
services are provided in one section and the bar services are provided
in another section, the restaurant section itself shall be subject to this
section.]
Restaurants and bowline alleys, except as outlined in Sections 14-21(a)(2)(A)
and 14-21(a)(2)(B) below. If a restaurant or bowling alley contains an
outdoor, open air or partially enclosed seatine area where food and beverages
are served, smoking is prohibited in this area of the establishment.
(A) Through August 31, 2004, smoking shall be permitted in a separate
bar area of a restaurant when the business operating the restaurant
refrains from designating the area as nonsmoking. A "separate bar
area of a restaurant" means an indoor area of a restaurant that is in
compliance with all of the following:
(i) The area is devoted primarily to the serving of alcoholic
beverages for consumption by patrons in the area.
(ii) On a monthly basis, the gross sales of food to patrons for
consumption in the area are less than one-third (1/3) of the
gross sales of alcoholic beverages to patrons for consumption
in the area.
(B) Beginning September 1, 2004, a restaurant may continue to operate a
separate bar area, as defined above, provided that:
(i) There is a physical separation (consisting of solid walls with
no door or window opening into the restaurant area) between
the separate bar area and restaurant;
(ii) The entrance into the bar azea is totally separate and at ]east
15 feet from the entrance into the restaurant; and
(iii) The restaurant and separate bar area have separate ventilation
systems.
[(6)](~[The following facilities or areas in County-owned or controlled buildings:
(A) Meeting or conference rooms;
(B) Auditorium or sports areas that are enclosed;
(C) Community centers where persons may gather for meetings, parties,
or any other pwpose where the area is enclosed;
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(D) All areas open to the public, including service counters and reception
or waiting areas, but excluding hallways, corndors or other
passageways and private, enclosed offices not generally open to the
public for the transaction of business.]
Any enclosed or partially enclosed area or building owned, leased operated
or maintained by the County, except for residential dwelling units which shall
be regulated herein as multi-family dwellings
[(7) Except as otherwise provided in this section and subject to the exceptions in
section 14-22, all areas open to the public in the following business
establishments:
(A) Food and grocery stores;
(B) Drug stores;
(C) Supermarkets;
(D) Banks;
(E) Savings and loan associations and industrial loan companies;
(F) Retail stores;
(G) Credit unions.
(8) Restrooms. Any restroom open to the public in places specified in this
section.]
[(9)] 4~[Notwithstanding the exceptions stated in section 14-22, any area of any
business, govenunental, or charitable establishment which has been
designated by the owner, operator, manager, or other persons having control
of such establishment as a nonsmoking area and marked with a "no smoking"
sign or signs.] Except as provided in Section 14-22, all business and not-for-
profit establishments, including but not limited to auditoriums, theaters, halls
museums, libraries, galleries, classrooms, private offices, conference or
meeting rooms and all other enclosed facilities. This also includes common
areas, including but not limited to, work aeeas, elevators, hallways cafeterias
employee lounges, stairs, and restrooms.
(5) All enclosed or partially enclosed areas within multi-family dwellings that are
open to the common use of all unit owners or residents, including but not
limited to lobbies, elevators, restrooms, hallways, corridors, stairwavss
waiting areas and recreation areas.
(61 All enclosed or partially enclosed areas within commercial buildin snot
subject to the exclusive use and possession of a tenant and oven to the
common use of the tenants of the buildine and their employees and
customers, including but not limited to common entrance areas, restrooms,
lobbies, elevators, malls, hallways, corridors, escalators, stainvavs, and
waiting or rest areas within commercial buildings.
(7) In the event a building is both amulti-family dwelling and a commercial
building, as defined in this article, all common use areas except for private
residences.
(81 All enclosed or partially enclosed areas within hotels that are open to the
common use of the public, hotel Quests, or hotel employees, including but not
limited to, restrooms, lobbies, elevators, hallways, corridors, stairways,
waiting areas, recreation areas, banquet halls, banquet rooms, and ballrooms.
(9) In the event a buildine is both a commercial buildin¢ and a hotel, all common
use areas except for hotel rooms rented to guests and designated as smoking
rooms.
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(10) All vehicles owned or leased by the County
(I1) Taxicabs.
(12) Private residences, during hours of operation when used as a licensed child
care, adult day care or health care facility except in residences where the care
facility is phvsically detached from the residence or is separated from the
owner's area.
(13) Smoking is prohibited within a reasonable distance from any entrance to exit
from, or any fresh air intake of any enclosed area where smoking_is
prohibited to insure that tobacco smoke does not enter the enclosed area
through entrances, windows, ventilation systems or other means
(14) Areas within private residences during hours of operation that are used for
the care of patients or clients in licensed residential care homes except in
residences where the care facility is phvsically detached from the residence or
is completely separated by a solid wall with no other openin sg except
closable doors or windows, which shall remain closed during hours of
operation from the owner's area where clients or patients are not allowed
Section 14-22. Exceptions.
(a) [Smoking may be allowed hereunder in the following places subject to section 14-21.]
Notwithstanding any other provision of this article to the contrary the following areas shall
be exempt:
(1) [Small businesses.] Private residences, except as~rohibited in Sections 14-21(a)(12)
and 14-21(a)(14).
(2) [A restaurant with a seating capacity of forty or fewer patrons.] Individual hotel and
motel rooms that are rented to guests and are designated as smoking rooms
(3) [A restaurant while it is being used solely for private parties or e parties or
gatherings.] Bars.
[(4) An enclosed room of a restaurant, or a banquet room used solely for private parties or
gatherings.
(5) A private restaurant or club to which only members or their guests are permitted.
(6) Any seating area completely outside the building housing the restaurant.
(7) Bars.
(8) Any property owned, controlled, or leased by State or Federal government entities.]
Section 14-23. [Signs.) Posting of signs.
(a) [Clearly legible signs which include the words "Smoking Prohibited by Law" with letters of
not less than one inch in height] "No Smoking" signs or the international "No Smoking"
symbol (consistingof 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 [all places generally
open to the] every public place and place of employment where smoking is prohibited by this
article, by the owner, operator, manager, or other person having control of such place.
(b) Alternate means of notification [(individual place cards, film clips, etc.)] may be employed
provided the effect thereof is equivalent to the notice given by signs [detailed in this section.]
described in subsection (a).
(c) [All signs required by this section shall be posted by April 30, 1987.] Ever public place and
place of employment where smoking is prohibited by this article shall have posted at every
entrance a conspicuous sign clearly stating that smoking is prohibited.
(d) Any person violating any of the provisions of this section shall be issued a notice of violation
and shall comply with the provisions of this section within ten days. Thereafter, the violation
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shall carry a fine [of not more than $25.] as provided in Section 14-24(b) and/or 14-24(c).
Each violation cited shall constitute a separate offense.
Section 14-24. Violations and penalties.
(a) It is unlawful for any person to smoke in a place within the County where smoking is
prohibited.
(b) [Except as otherwise provided, any] Any person violating any of the provisions of this article
shall be [punished by a fine of $5 for each violation.] fined not less than $25 and not more
than $50.
(c) 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 this article shall be euilty of an
infraction, punishable by:
(1) A fine not exceeding $100 for a first violation;
(2) A fine not exceedin¢ $200 for a second violation within one year of the date of the
first violation; and
(3) A fine not exceedine $500 for each additional violation within one year of the date of
the preceding violation.
Section 14-24.1. Enforcement and administration.
(a) Summons or Citation.
(1) There shall be provided for use by an officer or employee of the County duly
authorized to issue a summons or citation, or any police officer a form of summons or
citation for use in citing violators of this article which does not provide for the
physical arrest of such violators. The form and content of such summons or citation
shall be as adopted or prescribed by the administrative judge of the district court,
shall be printed on a form commensurate with the form of other summons or citations
used in modern methods of arrest, and so designed to include all necessary
information to make the same valid within the laws and regulations of the State and
the County.
(2) In every case, when a citation is issued, the original of the same shall be given to the
violator[;], provided that the administrative judge of the district court may prescribe
that the violator be given a carbon copy of the citation and provide for the disposition
of the original and any other copies.
(3) Every citation shall be numbered, and each carbon copy shall bear the same number
as its original.
(b) Enforcement and administration of the provisions of section 14-23 shall be under the
jurisdiction of the department of public works of the County, which department shall have
the power to formulate any applicable rules and regulations necessary to carry out the
provisions of section 14-23.
(c) Except as provided in section 14-24.1(b), enforcement of this ordinance shall be under the
jurisdiction of the County police department.
(d) In addition to the foregoing, any police officer or other officer or employee of the County
duly authorized to issue a summons or citation may eject from the premises any person to
whom a citation has been issued and who continues to smoke after the person has been
requested by the police officer or other duly authorized officer or employee to stop smoking.
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Section 14-2a.2. Fire Code.
Nothing in this article shall be construed as superseding applicable fire code provisions.
Where a conflict between the provisions of this article and the fire code arises, the fire code
provisions will prevail."
SECTION 3. Material to be repealed is bracketed. New material is underscored. In printing
this ordinance, the brackets and bracketed material need not be included.
SECTION 4. Severability. If any provision of this ordinance, or the application thereof to
any person or circumstance, is held invalid, the invalidity does not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application, and to this end, the provisions of this ordinance are severable.
SECTION 5. This ordinance shall take effect six months after approval.
INTRODUCED BY:
a. ~
~c~a3crL
Mme,
cor1N-T~oF
H:awAI`I
COUNCIL MEMBER, COUNTY OF HAWAII
Hilo , Hawaii
Date of Introduction: June 18, 2003
Date of 1" Reading: June 13, 2003
Date 2nd Reading: July 23, 2003
Effective Date: Febnu~y 1, 2004
13E~EREP3tCr: Canm. 13,
222.. -
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OFFICE OF THE COUNTY CLERK
County of Hawaii
~ r~"'~'
Hilo ,Hawaii . I'! i.:.-_)
(Draft 5)
ROLL CA~
Introduced By: Fred C. Holschuh AYES NOES AB.S _
i..
Date Introduced: June 18, 2003 _ Arakaki X ~ ~ ~ ~~N~I
First Reading: June 18, 2003 _ Chung X
Published: June 29, 2003 Elarionoff X
Holschuh X
REMARKS: Jacobson X
_ Leithead-Todd X
Reynolds X
Safarik X
Tyler X
7 2 0 0
(Draft 9)
Second Reading: July 23, 2003 ROLL CALL VOTE
To Mayor: July 25, 2003 AYES NOES ABS EX
Returned: August 1. 2^v(j3 Arakaki X
Effective: T2bnia~~QQL Chung X
Published: August 1~, 21103 Elarionoff X
Holschuh X
REN/ARKS: July 2, 2003: Held over Jacobson X
for Second Reading due to substantive Leithead-Todd X
amendments (Bill 260, Draft 8) . _ Reynolds X
_ Safarik X
Tyler X
9 0 0 0
I DO HEREBYCERTIFYthat ~he,foregoing BILL was adopted by the Coamry Council published us
indicated above.
APPROVED AS TO
FORM AND LEGALITY:
CDUNC/L CHAIRMAN
CORPORATION COUNSEL
COUNTY OF HAWAII
2 ~ ~0(J3 COUNTY CLERK
Date
260 (Draft 9)
Bill No.: _
W C-13.292/HSBDC-3
Appror» /Disupprored this 1 day Reference: ~y~
Ord No.: 0 uw
~ w C ~n o 3
UNTYOF'HAWA/1