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HomeMy WebLinkAbout93-146 I THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 93-146 being a By-law to Regulate Smoking in Public Places and to Repeal By-law 80-86 and its Amendments WHEREAS Section 102 of The Municipal Act R.S.O. 1990 c.M45 provides for every municipality to pass By-laws and make such regulations for the health, safety and welfare of the Municipality; AND WHEREAS The Smoking in the Workplace Act R.S.O. 1990, c .S13 permits an employer to prohibit smoking in a workplace and designate one or more places .as smoking areas; AND WHEREAS The Council of the Corporation of the Municipality of Clarington supports the objective of a smoke-free society; THEREFORE the Council of the Corporation of the Municipality of Clarington enacts as follows: DEFINITIONS: 1. In this By-law, (a) "allocated smoking area" means an area that is fully enclosed to which non-smoking individuals do not require access or thoroughfare; (b) "bar or tavern" means an eating establishment where more than 90% of the daily revenue comes from the sale of liquor; (c) "common area" means any indoor area of a building that is open to the public for the purpose of access to a retail shop, establishment or office and includes corridors, passageways, eating areas in corridors or passageways, public rest rooms, public seating areas and public standing areas; (d) "Corporation" means the Corporation of the Municipality of Clarington; (e) "Council" means the Council of the Corporation of the Municipality of Clarington; (f) "day nursery" means any establishment or facilities which provides temporary care or guidance for children under the age of eighteen (18) years as defined by the Day Nurseries Act; (g) "eating establishment" means a building or part of a building, booth, stall, or place within a building where food or drink is offered for sale or sold to the public for immediate consumption and includes a restaurant, cafe, food court, cafeteria, take-out restaurant, ice cream parlour, tea or lunch room, dairy bar, coffee shop, donut shop, snack bar, refreshment room or stand, and shall not include a bar or tavern where more than 90% of the daily revenue comes from the sale of liquor; (h) "financial institution" means a bank, trust company or credit union; (i) "food court" means a food court or a common and public area within a shopping concourse in which there is seating for eight persons or more; f o t , 2 - ( j ) "health care facility" means any office or indoor area of, (i) a community health centre, independent health facility or nursing home as defined by The Nursing Homes Act; (ii) any other residential facility for the aged or chronically ill as defined in The Homes for the Aged and Rest Homes Act; or (iii) the office of a health professional where practice is regulated under The Health Disciplines Act and, if and when proclaimed, the Regulated Health Professions Act, where individual care or treatment is provided for physical, mental or emotional illness or any other medical, psychological, or physiological condition; (k) "hospital" means any institution, building or other premises or place established for the treatment of persons afflicted with or suffering from sickness, disease or injury, or for the treatment of convalescent or chronically ill persons that is approved under The Public Hospitals Act as a public hospital or The Private Hospitals Act as a private hospital; (1) "hotel" includes a motel; (m) "laundromat" means any facility, premises or area within a non-residential premises, facility or building open to the public for the purposes of laundering, dry cleaning, washing or drying on a self-service basis; (n) "Municipality" means the Corporation of the Municipality of Clarington; (o) "officer" includes a municipal law enforcement officer, a police officer and a person appointed by Council of the Corporation of the Municipality of Clarington to enforce this By-law; (p) "place of public assembly" means an indoor area in a building or structure or part thereof, whether privately or publicly owned, to which the public have access by right or by invitation, express or implied, whether by payment of money or not, but not a place when used exclusively by one or more individuals for a private gathering or other personal purpose; (q) "proprietor" means the person who ultimately controls, manages, or directs the activity carried on within the kinds of premises referred to in this By-law and includes the person actually in charge thereof at any given time; (r) "public portion" means the area of any building to which the public has access; (s) "reception area" or "lobby" means the public space used by an office or establishment for the receiving or greeting of customers, clients or other persons dealing with such office or establishment; l 3 - (t) "retail shop" means a building or part of a building, booth, stall or place where goods or services are provided or are exposed or offered for sale by retail, but does not include a place where the only trade or business carried on is that of a licensed hotel or tavern; (u) "school" means, (i) an institution under the jurisdiction of the Northumberland and Newcastle Board of Education, the Peterborough, Victoria, Northumberland and Newcastle Roman Catholic Separate School Board or any other similar education institution or parochial school operated on a non-profit basis; (ii) a private school; or (iii) a post secondary school operated within the boundaries of the Municipality of Clarington; (v) "school bus" means any public vehicle used for transporting children to and from school or to any activity, event or function associated therewith, and includes a vehicle used to transport mentally challenged or other handicapped persons to and from a school or a training facility; (w) "service line" means an indoor line of two or more persons providing, receiving, or awaiting service of any kind, regardless of whether or not such service involves the exchange of money, including but not limited to sales services, provision of information, transactions or advice and transfers of money or goods; (x) "shopping mall" means any enclosed area that is open to the general public for the purpose of access to one or more retail shops; (y) "smoke" or "smoking" includes the carrying or use of a lighted cigar, cigarette, pipe, or any other lighted or similar equipment or device; (z) "theatre" means any building or part of a building intended for the screening and viewing of motion pictures or the production and staging of public performances of culture, musical or dramatic entertainment; (aa) "transport vehicle" means a school bus, taxi or public transit vehicle including buses, subways and streetcars. PROHIBITED AREAS 2 . No person shall smoke, (a) in any service line or at any service counter on any premises; (b) in any elevator or on any escalator or stairway, except within a private dwelling unit; (c) in any transport vehicle; (d) in a common area of any shopping mall except any part thereof used as an eating establishment as defined in subsection 1(b) and l(g) ; 4 - (e) in any hospital or health care facility other than is specified in Section 5; (f) at any lunch stand; (g) in a lobby or reception area in any establishment or office; (h) in any public washroom. 3 . No person shall smoke in the public portion of any: (a) financial institution; (b) school; (c) concert hall, gymnasium, theatre auditorium, museum or art gallery; (d) day nursery; (e) hair dressing salon, beauty salon or barber shop (f) laundromat; (g) retail shop. RESTRICTED AREAS Eating Establishments 4 . (1) The proprietor of an eating establishment shall designate a "no smoking" area in accordance with the provisions set out in Schedule A attached and forming part of this By- law. (2) In calculating the seating capacity, "seating capacity" means the number of seats available for use by patrons or customers engaging in the immediate consumption of food or drink while seated. (3) Where any section of seats is temporarily closed to patrons, the seating capacity shall be calculated based on the remaining number of seats available for customers. (4) The area which is designated under subsection (2) shall form a contiguous unit separate from any area designated under that subsection for the purposes of smoking. (5) The proprietor of a bar or tavern who wishes to permit smoking in the entire public portion of his establishment shall first ensure that a sign is posted at all entrances to the premises indicating that smoking is permitted and the premises does not contain a non-smoking area. (6) Where smoking is prohibited in the eating area of an eating establishment or part of the eating area of an establishment. : (a) the proprietor shall post signs as required by this By-law; or - 5 - (b) the proprietor shall place or cause to be placed one or more tent signs or stand-up signs as prescribed in this By-law on the table or other surface on which food is served for consumption therefrom. (7) The proprietor shall ensure that a sign or signs are conspicuously placed so as to be clearly visible by patrons and so as to clearly identify the table or other surface as being in the area in which smoking is permitted. (8) While signs must be in accordance with the provisions of the By-law, signs in restaurants may be prepared in a manner which accords with the decor of the premises . (9) Where a proprietor or an employee of an eating establishment directs patrons to a seating area or waiting area or takes advance reservations by telephone, the proprietor or an employee shall determine in advance of seating, the preference of the patron or prospective patron for an area in which smoking is prohibited or an area in which smoking is not prohibited and shall direct the patron to the preferred area. Hospitals and Health Care Facilities 5 . ( 1) Subject to subsection (2) and to any provincial statute or regulation, no person shall smoke in a hospital or health care facility. (2) Notwithstanding the provisions of subsection ( 1) and subject to provisions of The Fire Marshals Act, the proprietor of, (a) a hospital designed in the regulations made under The Public Hospitals Act or The Private Hospitals Act; (b) a psychiatric facility designated in the regulations made under The Mental Health Act; or (c) a facility required to be licensed under The Nursing Homes Act, the Homes for the Aged and Rest Homes Act or The Homes for Special Care Act; may establish an allocated smoking area for the exclusive use of patients, residents, or employees . (3) An allocated smoking area referred to in subsection (2) shall mean an area that is not within common areas, reception areas, washrooms, corridors, escalators, elevators, or stairwells. (4) The proprietor of a hospital or health care facility to which subsection ( 1) applies shall ensure that a sign or signs as prescribed in this By-law shall be conspicuously posted. (5) The proprietor of a hospital or health care facility who fails or neglects to perform any of the duties imposed by subsections (2) and (4) shall be guilty of an offence. Places of Public Assembly 6 . ( 1) Subject to subsections (2) and (3) , no person shall smoke in a place of public assembly. 6 - (2) Notwithstanding the provisions of subsection ( 1) and subject to the provisions of The Fire Marshals Act, the proprietor of a place of public assembly may establish an allocated smoking area provided that the area does not exceed thirty percent of the indoor floor area. (3) Nothwithstanding the provisions of subsections ( 1) and (2) and subject to The Fire Marshals Act or any other applicable provincial statute or regulation: (a) the proprietor of a dinner theatre shall designate a portion of the eating area of the dinner theatre as a "No Smoking" area in accordance with the provisions for eating establishments as set out in Schedule A, attached and forming part of this By- law; (b) where smoking is an element of a stage production, stage performers are permitted to smoke on stage; (c) the proprietor of a bingo hall, billiard hall or bowling alley may permit smoking in the entire public portion of his establishment provided that signs are posted at all entrances to the premises indicating that smoking is permitted and that the premises does not contain a no smoking area. (4) The proprietor of a place of public assembly to which subsection (1) applies shall ensure that a sign or signs as prescribed in this By-law shall be conspicuously posted. (5) Any proprietor who fails or neglects to perform any of the duties imposed upon him by subsections (2) , (3) and (4) shall be guilty of an offence. Obligation of Proprietor 7. (1) A proprietor shall inform a person who is smoking in an area where smoking is prohibited that the smoking activity is in violation of the law. (2) The obligation specified in subsection ( 1) applies only in circumstances where and when the proprietor has knowledge of the violation or probable violation of the By-law. (3) The proprietor shall take all reasonable steps to ensure that employees are familiar with the provisions of this By-law so that they will be able to assist the proprietor in achieving compliance. OTHER ALLOCATED NON-SMOKING AREAS 8 . ( 1) Nothing in this By-law shall prohibit a proprietor from exceeding the minimum non-smoking area percentages as required in this By-law. (2) A proprietor may prohibit smoking completely in the premises of the proprietor. (3) No person shall smoke in any area as set out in subsections (1) and (2) where such has been properly signed in accordance with the provisions of this By-law. 7 - SIGNS 9 . The proprietor of every building, establishment, vehicle or area, or the proprietor of any part thereof, for which smoking is prohibited by this By-law shall ensure that a sign or signs shall be conspicuously posted as to be clearly visible and legible from all parts of the area where smoking is prohibited. 10 . Where smoking is prohibited on an escalator or stairway, the sign or signs shall be conspicuously posted so as to be clearly visible upon using the escalator or stairway. 11. Where smoking is prohibited on an elevator, the sign shall be posted on the interior wall facing the elevator door. 12 . Where smoking is prohibited in a retail shop, the proprietor shall post at least one sign at each entrance of the premises which are subject to the provision of this By-law. 13. Where a sign prohibiting smoking is required by this By-law, such sign shall include the text "Municipality of Clarington By-law #93-146, Maximum Penalty $5,000.00" . The sign may be in either of the following forms; (i) text stating "No Smoking" in capital or lower case letters or a combination thereof; or (ii) a generally recognized graphic symbol indicating that smoking is prohibited; the sign may be in a form similar to that illustrated in Schedule B attached, and forming a part of this By-law. 14. Where an area has been designated pursuant to this By-law to permit smoking in such area, the proprietor may post one or more signs in any such area where smoking is permitted. The sign shall take the following form: (i) text in capital or lower case letters or a combination thereof stating: "Smoking in This Area Only" ; or (ii) a generally recognized graphic symbol in a form similar to that illustrated on Schedule C attached, and forming a part of this By-law. 15. Notwithstanding any provision of this By-law, a sign erected before the passing of this By-law which complied with By-law #93-146, as amended, shall be a permitted sign under this By-law. 16 . No person shall deface, damage or otherwise vandalize any sign required to be displayed in any of the premises regulated under this By-law, and no person shall remove, except with the consent of the proprietor of the premises, such sign. AHTRAYS 17 . The proprietor shall ensure that in the designated smoking areas where smoking is permitted by this By-law, sufficient ashtrays are placed so as to be of convenient access. - 8 - SEVERABILITY 18. Should any section, clause or provision of this By-law be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of this By-law as a whole or any part thereof, other than the part so declared to be invalid. OFFENCE AND ORDERS 19 . Every person who contravenes any provision of the By-law is guilty of an offence. PRIVATE PROSECUTION 20. In lieu of the Municipality instituting and conducting prosecutions for offences under this By-law, the institution and conduct of such prosecution, including the employment of private prosecutors, may be left entirely to private individuals. EFFECTIVE DATE 21. This By-law shall come into force and take effect on January 1, 1994 . REPEALS 22 . By-law 80-86 of the Municipality of Clarington (former Town of Newcastle) and its amendments are hereby repealed. By-law read a first and second time this 27th day of September, 1993 By-law read a third time and finally passed this 27th day of September, 1993 MAYOR CL SCHEDULE"A" to By-law 93-146 1) The designated smoking area for an eating establishment shall be determined in accordance with the chart listed below. 2) The area required to be designated as No Smoking may be decreased after 8:30 p.m. each day if the percentage sale of liquor exceeds 70% of the total sales for that period to no less than that listed on the chart below. 3) The designated smoking area shall be increased over a three (3) year period in accordance with the chart listed below. 6 Minimum % of Seating Capacity Designated as Non-Smoking OPENING 8:30 p.m. to Closing EFFECTIVE DATE to 8:30 pm LIQUOR SALES EXCEED LIQUOR SALES LESS THAN 70% OF TOTAL RECEIPTS 70% OF TOTAL RECEIPTS January 1, 1994 30% 30% 30% January 1, 1995 50% 30% 50% January 1, 1996 75% 30% 75% 4 Schedule "B" to By-law 93-146 SCHEDULE"B" OF ��p;RINGTON � w m UM FINE� o C' B'1'OF MUNICIPALITY OF CLARINGTON 44q.V FINE$5 0� BY-LAW 93-146 MAXIMUM FINE$5,000 r Schedule "C" to By-law 93-146 SCHEDULE "C" r 1. Each symbol shall be on a white background and the circle in green with a cigarette, letters and figures in black, or 2. Where the sign is applied directly to a table or similar surface or mounted on a clear pane4 the lettering shall contrast to the background colour.