CITY OF BOULDER, COLORADO

TITLE 6, HEALTH, SAFETY, AND SANITATION

Chapter 4
Regulation of Smoking
Adopted by Ordinance No. 5754.
Derived from Ordinance Nos. 4023, 4661, 4898, 4969, 4994, 5176, 5248.

6-4-1 Legislative Intent.
The purpose of this chapter is to protect the public health, safety, and welfare by prohibiting smoking in buildings open to the public or serving as places of work, except in certain buildings or parts of buildings where the council has determined that smoking should not be prohibited, and fixing the requirements of property owners in this regard. In addition, this chapter regulates access of minors to tobacco products.

6-4-2 Definitions.
The following terms used in this chapter have the following meanings unless the context clearly indicates otherwise:

Building means any structure enclosed for protection from the weather, whether or not windows or doors are open. If a person leases or possesses only a portion of a building, the term building applies to the leasehold or possessory interest as well.

Dwelling means any place used primarily for sleeping overnight and conducting activities of daily living, including without limitation a hotel or motel room or suite or a hospital, hospice or nursing home room, but not a hotel, motel, hospital, hospice or nursing home lobby, common elevator, common hallway or other common area.

Independently ventilated shall mean that the ventilation system for the area in which smoking is permitted and the ventilation system for any non-smoking area do not have a connection which allows the mixing of air into the smoking and non-smoking areas.

Physically separated means that there are physical barriers such as walls and doors extending from floor to ceiling that prohibit smoke from entering a non-smoking area.

Public conveyance means any motor vehicle or other means of conveyance licensed by the Public Utilities Commission of the state for the transportation of passengers for hire, and includes without limitation busses, taxicabs, limousine services, and airport passenger services.

Restaurant means an establishment licensed as a hotel/restaurant under the liquor laws of the state, or an establishment whose principal business is the retail sale of prepared food and beverages and has seating for on-premises consumption of food.

Smoke or smoking means the lighting of any cigarette, cigar, or pipe or the possession of any lighted cigarette, cigar, or pipe, regardless of its composition.

Tavern means an establishment licensed as a tavern under the liquor laws of the state.

Tobacco product means cigarettes, cigars, cheroots, stogies, periques, and other products containing any measurable amount of tobacco, granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco, snuff, snuff flour, cavendish, plug and twist tobacco, fine-cut and other chewing tobaccos, shorts, refuse scraps, clippings, cuttings and sweepings of tobacco, and other kinds and forms of tobacco.

Tobacco store means a retail business open to the public if more than fifty percent of its gross revenue from that location is from the retail sale of cigarettes and tobacco products, or products related to the use of cigarettes and tobacco products.

6-4-3 Smoking Prohibited Within Buildings. (a)No person shall smoke within any building except in one of the following locations: (1)In any dwelling: This exception does not extend to a lobby, common elevator, common hallway, or any other common area of a building containing attached dwelling units, hotel rooms, or motel rooms, but if a hospital, hospice, or nursing home permits smoking in its dwelling rooms, smoking is not allowed in any room shared with a non-smoker without that person's consent; (2)In a room or hall being used by a person or group for a private social function that is not open to the public, in any room used for psychological treatment of nicotine addiction by a licensed health care professional, or in a physically separate and independently ventilated room in a hospital, hospice, or nursing home open to all residents as a smoking room and for no other purpose; (3)In a tobacco store; (4)In a designated smoking area in a restaurant or tavern as provided in Section 6-4-5, Smoking Areas in Restaurants and Taverns, B.R.C. 1981; (5)In a building or on property which is occupied by the State of Colorado, the United States government, Boulder County, or the Boulder Valley School District which was not designated as a no-smoking area by the manager of such area. The city council urges such governmental entities to designate no smoking areas in order to promote full access by the public and protect the health of employees; or (6)By a performer as part of a theatrical production, so long as the following additional conditions are met: (A)A sign with letters no less than one inch high is posted conspicuously at each public entrance to the place of performance informing the audience that performers will be smoking as part of the performance; and (B)The producer of the performance has used reasonable efforts to inform the potential audience for the performance, in advance of their arrival at the place of performance, of the fact that performers will be smoking as part of the performance. This shall be accomplished by giving the information at the time advance reservations are made or advance tickets are sold, or seats are confirmed, or by including in all advertising and publicity specific to the performance over whose content the producer has control the information that actors will be smoking as part of the performance, or by any other means reasonably likely to convey the information in a timely manner. (b)Unless excepted under subsection (a) above, the prohibitions of this chapter apply to all buildings which serve as places of work, but this subsection (b) neither enlarges nor diminishes the meaning of subsection (a). (c)Nothing in this chapter shall prevent an owner, lessee, principal manager or person in control of any place, including without limitation any motor vehicle, outdoor area, or dwelling, from prohibiting smoking completely in such place, and no person shall fail to abide by such a private prohibition. Ordinance No. 5797 (1996).

6-4-4 Smoking Prohibited in Public Conveyances. No person shall smoke in any public conveyance.

6-4-5 Smoking Areas in Restaurants and Taverns. (a)The owner, lessee, principal manager, or person in control of a restaurant or tavern may designate one smoking area of no more than fifty percent of the square footage of the floor area of the establishment which is open to the public so long as it meets all of the following criteria: (1) It is independently ventilated from the non-smoking areas; (2) It is physically separated from the non-smoking areas; (3) A designated smoking area under this section may not include any waiting area, lobby, hallway, elevator, rest room, or area adjacent to a self-service food line or cash register, and such areas shall also be excluded from the calculation of the square footage of floor area under this subsection; (4)Any service or amenity which the establishment chooses to provide to patrons, other than smoking, shall at all times be at least as available in the non-smoking majority portion of the establishment as in the designated smoking area. This requirement includes, without limitation, live entertainment and games. (5)The city manager may make reasonable rules interpreting the terms independently ventilated and physically separated and specifying ventilating and construction measures which will accomplish these goals. (b)No owner, lessee, principal manager, or person in control of a restaurant or tavern which designates a smoking area shall fail to maintain it in accordance with the requirements of this chapter. (c)If patron seating at an establishment with a designated smoking area is directed by an employee, no owner, lessee, principal manager, or person in control of the establishment shall fail to ensure that such employee asks each patron for the patron's preference for seating in or use of a no-smoking or a smoking area. If patron seating or use at an establishment with a designated smoking area is not directed by an employee, no owner, lessee, principal manager, or person in control of the establishment shall fail to post a conspicuous sign on all public entrances or in a position clearly visible on entry into the restaurant advising patrons that such a no-smoking area is available and where it is located.

6-4-6 Signs Required to be Posted. To advise persons of the existence of No Smoking or Smoking Permitted areas, no owner, lessee, principal manager, or person in control of a building or an establishment within a building shall fail to post signs with letters no less than one inch high or symbols no less than three inches high as follows: (a)Where smoking is prohibited in the entire establishment, a sign using the words No Smoking or the international no-smoking symbol shall be posted conspicuously either on all public entrances or in a position clearly visible on entry into the building or establishment. (b)In a building where certain areas are designated as smoking areas pursuant to this chapter, a sign using the words No Smoking Except in Designated Areas shall be posted conspicuously either on all public entrances or in a position clearly visible on entry into the building. (c)In a building or establishment where smoking is permitted in the entire building or establishment, a sign using the words Smoking Permitted or the international smoking symbol shall be posted conspicuously either on all public entrances or in a position clearly visible on entry into the building or establishment. (d)If an ashtray or other receptacle for extinguished smoking materials is located in a building, except in an area where smoking is permitted, a sign with the international no-smoking symbol and letters no less than one inch high using the words No Smoking and three-quarters inch high using the words Extinguish Here, shall be posted within twelve inches above each such ashtray or other receptacle. (e)The requirements of this section do not apply to an exempt dwelling.

6-4-7 Additional Responsibilities of Proprietors. No owner, lessee, principal manager, or person in control of a building or establishment shall fail to: (a)Ask smokers to refrain from smoking in any no-smoking area; (b)In a restaurant or tavern, if smoking is allowed, affirmatively direct smokers to designated smoking areas; and (c)Use any other means which may be appropriate to further the intent of this chapter.

6-4-8 Restrictions on Sale of Tobacco. (a)No person shall furnish to any person who is under eighteen years of age, by gift, sale, or any other means, any cigarette or tobacco product. (b)No person shall sell or offer to sell any cigarette or tobacco product by use of a vending machine. (c)It is an affirmative defense to a charge of violating subsection (a) of this section that the person furnishing the cigarette or tobacco product was presented with and reasonably relied upon a document which identified the person receiving the prohibited items as being eighteen years of age or older. (d)It is a specific defense to a charge of violating subsection (b) of this section that the vending machine was located in a place of work not open to the public where persons under eighteen years of age are not permitted access.