Chapter 11

Smoke Free Air

5-11-1: Short Title

This chapter shall be known as the BOISE CITY SMOKE FREE AIR ORDINANCE, and any other ordinances or resolutions in conflict herewith are repealed upon the effective date hereof. (1952 Code § 6-23-01)

5-11-2: Authority

This chapter is adopted pursuant to the authority granted by Idaho Code sections 39-5511, 39-5713, 50-302 and 50-304. (1952 Code § 6-23-02)

5-11-3: Findings And Intent

A. Public health officials have concluded that secondhand tobacco smoke causes disease, including lung cancer and heart disease, in nonsmoking adults, as well as causing serious conditions in children, such as asthma, respiratory infections, middle ear infections and sudden infant death syndrome. In addition, public health officials have concluded that secondhand smoke can exacerbate adult asthma and allergies and cause eye, throat and nasal irritation. The conclusions of public health officials concerning secondhand tobacco smoke are sufficient to warrant measures that regulate smoking in public places in order to protect the public health and the health of employees who work in public places.

B. The intent of this chapter is to protect the public health, the health of employees who work in public places, and the rights of nonsmokers to breathe clean air by prohibiting smoking in public places and in places of employment. (1952 Code § 6-23-03)

5-11-4: Other Applicable Laws

This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. (1952 Code § 6-23-14)

5-11-5: Liberal Construction

This chapter shall be liberally construed so as to further its purposes. (1952 Code § 6-23-15)

5-11-6: Definitions

As used in this chapter:

BAR: An establishment that is devoted to the serving of alcoholic beverages for consumption by guests 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, bikini bars and cabarets.

BUSINESS: A sole proprietorship, partnership, joint venture, corporation or other business entity, either for profit or not for profit, including retail establishments where goods or services are sold; professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered; and private clubs.

E-CIGARETTE: Any electronic oral device, such as one composed of a heating or ultrasonic element, battery and/or electronic circuit, which provides a vapor of nicotine or any other substance, and use or inhalation of which simulates smoking. The term shall include any such device, whether manufactured, distributed, marketed or sold as an e-cigarette, e-cigar, e-pipe or under any other product name or descriptor.

EMPLOYEE: A person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and a person who volunteers his or her services for an employer.

EMPLOYER: A person, business, association, municipal corporation or trust that employs the services of one or more individual persons.

ENCLOSED AREA: All space between a floor and a ceiling that is bounded on all sides by walls, doorways or windows, whether open or closed. A wall includes any retractable divider, garage door or other physical barrier, whether temporary or permanent.

EXCLUSIVE RETAIL TOBACCONIST: A retail tobacco business which derives more than ninety five percent (95%) of sales from tobacco and tobacco products sold on the premises for consumption off the premises and which the sale, manufacture or promotion of other products is merely incidental. The status as an exclusive retail tobacco business is lost if at any time the business premises provides seating for more than four (4) patrons or is used to sell or serve food or drink, vend lottery tickets or newspapers or magazines not primarily for tobacco enthusiasts, or if the premises is used for dancing, karaoke, gaming or live entertainment, or performance of any kind.

HEALTHCARE FACILITY: An office or institution providing care or treatment of diseases, whether physical, mental or emotional, or other medical, physiological or psychological conditions, including, but not limited to, hospitals, rehabilitation hospitals or other clinics, including weight control clinics, nursing homes, long term care facilities, homes for the aging or chronically ill, laboratories and offices of surgeons, chiropractors, physical therapists, physicians, psychiatrists, dentists and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, semiprivate rooms and wards within healthcare facilities.

PLACE OF EMPLOYMENT: An area under the control of a public or private employer.

PUBLIC PLACE: An area to which the public is invited or in which the public is permitted for any purpose, whether the place is publicly owned or private. Public places are as further defined in section 5-11-8 of this chapter.

RESTAURANT: An eating establishment, including, but not limited to, coffee shops, cafeterias and food stands, which gives or offers for sale food to the public, guests or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term restaurant shall include a bar area within the restaurant.

RETAIL TOBACCO BUSINESS: A business which, during the normal course of business, primarily distributes any tobacco and/or tobacco product or provides any equipment or material used for the consumption of tobacco.

SERVICE LINE: An indoor or outdoor location in which one 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, persons waiting to use an ATM, attend a concert, obtain food or drink from a vendor, purchase movie tickets, purchase or board public transit or attend a sporting event.

SHOPPING MALL: An enclosed public walkway or hall area that serves to connect retail or professional establishments.

SMOKING: Inhaling, exhaling, burning, carrying, or possessing any combusting (heated, lit, or smoldering) tobacco or any other substance, whether contained in a cigar, cigarette, or pipe, or any other object. Smoking also includes the use of an e-cigarette which creates vapor, in any manner of any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking in this chapter. Smoking does not include possession of an unlit or unheated cigar, cigarette, or pipe.

SPORTS ARENA: Places where members of the general public assemble to engage in physical exercise, participate in athletic competition or witness sports or other events. This term includes, but is not limited to, sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, and bowling alleys.

TEMPORARY SPECIAL EVENT ZONE: Any outdoor area set aside to accommodate people in a smoke free space for such activities as concerts, movies or other entertainment in a public space. A temporary special event zone shall be designated by a perimeter of "No Smoking" signs placed at each entrance to the zone and spaced approximately every fifty feet (50') at a height of between three feet (3') (measured from the top edge of the sign) and five feet (5') (measured from the bottom edge of the sign). The signs shall be no less than one hundred (100) square inches with the words "No Smoking" in letters at least one inch (1") high or displaying the international "No Smoking" symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it. If the permit is issued for an area in which smoking is not otherwise prohibited, a temporary special event zone may be required as a condition of issuance of a special event permit/citizen use permit for the entire duration of the event authorized in the permit.

TOBACCO AND TOBACCO PRODUCTS: Tobaccos, cigarettes, cigars, pipes, tobacco pipe tobaccos, humidors, cigar cutters, pipe cleaners, pipe maintenance tools and literature primarily for tobacco enthusiasts. (1952 Code § 6-23-04; amd. Ord. 16-19, 5-7-2019)

5-11-7: Application To City Owned Facilities

All vehicles and enclosed areas owned, leased or operated by the City shall be subject to the provisions of this chapter. (1952 Code § 6-23-05)

5-11-8: Smoking In Enclosed Public Places

Smoking shall be prohibited in all enclosed public places within the limits of the City, including, but not limited to, the following places:

A. Aquariums, galleries, libraries and museums.

B. Businesses patronized by the public, including, but not limited to, banks, laundromats, professional offices and retail service establishments.

C. Bars.

D. Bingo facilities.

E. Child care and adult daycare facilities.

F. Convention facilities.

G. Educational facilities, both public and private.

H. Elevators.

I. Gaming facilities.

J. Health care facilities.

K. Hotels and motels, except as provided in Idaho Code.

L. Lobbies, hallways and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities, except where permitted by Idaho Code, nursing homes and other multiple unit residential facilities.

M. Polling places.

N. Private clubs. (1952 Code § 6-23-06)

O. Public transportation vehicles, including buses and taxicabs, and ticket, boarding and waiting areas of public transportation facilities, including bus, train and airport facilities. (1952 Code § 6-23-06; amd. 2019 Code)

P. Restaurants.

Q. Restrooms, lobbies, reception areas, hallways and other common use areas.

R. Retail tobacco businesses, except an exclusive retail tobacconist.

S. Rooms, chambers, places of meeting or public assembly, including school buildings, under the control of a public agency, board, commission, committee or council of a political subdivision of the State, to the extent the place is subject to the jurisdiction of the City.

T. Shopping malls.

U. Sports arenas, including enclosed places in outdoor arenas.

V. Theaters and theatrical productions, except as provided in Idaho Code. (1952 Code § 6-23-06)

5-11-9: Smoking In Enclosed Places Of Employment

Smoking shall be prohibited in all enclosed places of employment in the City without exception. This includes, but is not limited to, common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, retail spaces and showrooms, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms and garages. (1952 Code § 6-23-07)

5-11-10: Smoking In Outdoor Areas

Smoking shall be prohibited in the following outdoor public places:

A. Within the bus transfer location known as the Downtown Boise Transit Mall, consisting of the entire sidewalk on the north side of Idaho Street from Capitol Boulevard to 9th Street and the entire sidewalk on the south side of Main Street from Capitol Boulevard to 9th Street.

B. Within the bus transfer location at the Towne Square Mall, consisting of the entirety of the raised concrete waiting location and extending out twenty feet (20') into the parking lot on all sides.

C. Within twenty feet (20') of all other bus stops, benches, stations, platforms and shelters.

D. Within twenty feet (20') of entrances or exits to schools, including public and private elementary, secondary, vocational and trade schools or colleges, so as to ensure that tobacco smoke does not enter those areas.

E. Within twenty feet (20') of entrances or exits to buildings owned or managed by the City, so as to ensure that tobacco smoke does not enter those areas.

F. Within twenty feet (20') of any sidewalk cafe (as defined by the designated footprint area set forth in the sidewalk cafe map on file with the City Clerk's Office and/or the State Police Bureau of Alcohol Beverage Control) and in any dining patio and/or outdoor seating or serving areas of restaurant legally accessible to persons under the age of twenty one (21).

G. Within twenty feet (20') of all outdoor service lines.

H. Within the Grove Plaza bounded by Capitol Boulevard, 9th Street, Main Street and Front Street, except for those areas specifically designated for smoking by the City Clerk or designee following recommendation of those areas by the Capital City Development Corporation.

I. Within the sidewalk and roadway of 8th Street, extending from Main Street to Bannock Street and from the building faces on either side and into the alleyways for the first twenty feet (20') measured from start of the building faces along 8th Street.

J. Within any designated "temporary special event zone". (1952 Code § 6-23-08)

5-11-11: Where Smoking Is Not Regulated

Notwithstanding any other provision of this chapter to the contrary, the following areas shall be exempt from the provisions of sections 5-11-8, 5-11-9 and 5-11-10 of this chapter:

A. Private residences, unless used as a child care, adult daycare or health care facility, or as a home office that is accessible to one or more employees or members of the public.

B. Privately owned outdoor spaces legally accessible only to persons age twenty one (21) and over, including rooftop patios and courtyards of bars, but not including sidewalk cafes. Any such privately owned outdoor spaces established consistent with all applicable building and zoning codes existing at the time of the effective date hereof shall be exempt from the twenty foot (20') rule in subsection 5-11-10F of this chapter.

C. An "exclusive retail tobacconist", as defined in section 5-11-6 of this chapter.

D. American Indian/Alaska native ceremonies. A religious ceremony using a traditional pipe under this section is subject to any applicable State or local law, except as provided in this section. A person is exempt from the restrictions of this chapter if the person:

1. Is a member of an American Indian/Alaska native tribe whose members are recognized as eligible for the special programs and services provided by the United States to American Indians/Alaska natives who are members of those tribes; and

2. Is an American Indian/Alaska native who actively practices an American Indian/Alaska native religion, the origin and interpretation of which is from a traditional American Indian/Alaska native culture; and

3. Is smoking tobacco using the traditional pipe of an American Indian/Alaska native tribal religious ceremony, of which tribe the person is a member, and is smoking the pipe as part of that ceremony; and

4. The ceremony is conducted by a pipe carrier, American Indian/Alaska native spiritual person, or medicine person recognized by the tribe of which the person is a member and by the American Indian/Alaska native community. (1952 Code § 6-23-09)

5-11-12: Declaration Of Establishment As Nonsmoking

Notwithstanding any other provision of this chapter, an owner, operator, manager or other person in control of an establishment, facility or outdoor area may declare that entire establishment, facility or outdoor area as a nonsmoking place. Smoking shall be prohibited in any area in which a sign conforming to the requirements of section 5-11-13 of this chapter is posted. (1952 Code § 6-23-10)

5-11-13: Posting Of Signs And Removal Of Ashtrays

The owner, operator, manager or other person in control of a place of employment or a public place where smoking is prohibited by this chapter shall:

A. Clearly and conspicuously post in that place:

1. "No Smoking" signs or the international "No Smoking" symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it; and

2. A sign at every entrance that clearly states that smoking is prohibited. If the place of employment is a vehicle, there shall be at least one conspicuous sign, visible from the exterior of the vehicle, clearly stating that smoking is prohibited.

B. Remove all ashtrays from any area where smoking is prohibited by this chapter, except for ashtrays displayed for sale and not for use on the premises. (1952 Code § 6-23-11)

5-11-14: Enforcement

In addition to any law enforcement officer, any citizen who desires to complain about a violation of this chapter for which there is probable cause may initiate enforcement by requesting to sign a uniform citation as the complaining party and State's witness. (1952 Code § 6-23-12)

5-11-15: Responsibilities, Violations And Penalties

A. Smoking Where Prohibited: A person who smokes in any public place where smoking is prohibited by the provisions of this chapter shall be guilty of an infraction, subject to the penalty prescribed by the Idaho Infraction Rules for Smoking in violation of the Idaho Indoor Clean Air Act.

B. Observance Of Violator: An employer, owner, manager, operator or employee of an establishment regulated by this chapter, who observes a person smoking in apparent violation of this chapter shall ask the person to extinguish all lighted smoking products. If the person persists in violating this chapter, the employer, person in charge, agent or employee shall ask the person to leave the premises. Any person who refuses to either extinguish all lighted smoking products or leave the premises is guilty of an infraction and is subject to the penalty prescribed by the Idaho Infraction Rules for Smoking in violation of the Idaho Indoor Clean Air Act. Any violation may be reported to a law enforcement officer.

C. Permitting Smoking Where Prohibited: No employer or other person in charge of a public place or publicly owned building or office shall knowingly or intentionally permit smoking in violation of this chapter. Any employer or other person in charge of a public place or publicly owned building or office who violates the provisions of this section is guilty of a separate act of permitting smoking where smoking is prohibited, each of which is an infraction, subject to the penalty prescribed by the Idaho Infraction Rules for Smoking in violation of the Idaho Indoor Clean Air Act. (1952 Code § 6-23-13; amd. 2019 Code)

D. Discrimination Against Complaining Employee: Any employer who discharges or in any manner discriminates against an employee because that employee has made a complaint or has given information to the Department of Health and Welfare or the Department of Labor pursuant to this section shall be subject to a civil penalty of not less than one thousand dollars ($1,000.00) nor more than five thousand dollars ($5,000.00) for each violation.

E. Public Nuisance Declared: Violation of this chapter is hereby declared to be a public nuisance, which may be abated by the City by restraining order, preliminary and permanent injunction, or other means provided for by law, and the City may take action to recover attorney fees and/or costs of the nuisance abatement. (1952 Code § 6-23-13)