ORDINANCE # 11-20 AN ORDINANCE OF THE MAYOR AND BOROUGH COUNCIL OF THE BOROUGH OF FLORHAM PARK, IN THE COUNTY OF MORRIS, STATE OF NEW JERSEY, ADDING A NEW CHAPTER 280, OUTDOOR SMOKE-FREE AIR,TO THE BOROUGH CODE TO ESTABLISH OUTDOOR SMOKEFREE AREAS WITHIN THE BOROUGH OF FLORHAM PARK WHEREAS, tobacco smoke is now the nation's leading cause of preventable death, causing more than 430,000 deaths every year; and WHEREAS, exposure to secondhand smoke now causes an estimated 46,000 deaths from heart disease, 3,400 deaths from lung cancer, 150,000 to 300,000 lung infections such as pneumonia and bronchitis in children under the age of 18 months, and more than 750,000 middle ear infections in children; and WHEREAS, the U.S. Environmental Protection Agency has now classified secondhand smoke as a risk to public health, classifying it as a group A carcinogen, the most dangerous class of carcinogens; and WHEREAS, the majority of smokers begin to smoke before the age of 18, and one out of three begin before the age of 14; and WHEREAS, public health has now urged policymakers to address a range of social determinants, that is, social factors that contribute to tobacco exposure, since there is no simple biomedical fix for the challenges posed by secondhand smoke; and WHEREAS, one such factor is prohibiting smoking in public places; and
WHEREAS, doing so reduces the public's exposure to secondhand smoke and limits places where young people can begin to smoke; and WHEREAS, the Borough's public health authority arises from the state's police power; and WHEREAS, the Borough now determines to exercise its authority to establish outdoor smoke-free areas on Borough-owned property, in outdoor dining areas, and certain other outdoor areas with significant pedestrian traffic or congregation of people; NOW, THEREFORE, BE IT ORDAINED, by the Mayor and Borough Council of the Borough of Florham Park, County of Morris, and State of New Jersey as follows: SECTION 1. The Florham Park Municipal Code is hereby amended by adding a new Chapter 280 to read, in its entirety, as follows: Section 280-1 Purpose. CHAPTER 280 OUTDOOR SMOKE-FREE AIR The purpose of this ordinance is to ban tobacco use on municipal property and to ban smoking at outdoor areas where people tend to congregate, except within designated smoking areas. Section 280-2 Definitions. The following words and phrases, whenever used in this chapter, shall be construed as hereinafter set out, unless it shall be apparent from the context that they have a different meaning: 1. DSAs means limited areas designated by the owner of a subject property pursuant to this chapter where smoking will be permitted. A DSA may not include any outdoor dining area, public entrance way, public retail walkway or service area on the subject property.
2. Electronic smoking device means an electronic device that can be used to deliver nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, cigarillo, or pipe. 3. Municipal property means any real property owned by the Borough (exclusive of public roads that are located outside of the Borough complex, recreation areas or other Borough-owned lots) or any real property leased or used by the Borough during the time it is used under the Borough s lease or use agreement. 4. "Outdoor dining area" means any area, including streets and sidewalks, which is available to or customarily used by the general public or an employee and which is designed, established, or commonly used for consuming food or drink and all nonenclosed areas within 25 feet thereof. An outdoor dining area shall not include any outdoor dining area of a private club or facility that is completely closed to the public for a one-time private event and such event does not take place at a sidewalk café that is contiguous to or within 25 feet of any entrances, exits, windows or air intake source to any restaurant, business or non-commercial building. 5. "Playground" means any park or recreational area designed in part to be used by children that has play or sports equipment installed or that has been designated or landscaped for play or sports activities, or any similar facility located on public or private school grounds. 6. Public entrance area means a public entrance or exit, or air intake source, of any building in which smoking is prohibited by the laws of the State of New Jersey on the date hereof and all non-enclosed areas within twenty-five feet thereof. 7. Public retail walkway means any contiguous sidewalk, walkway or other pedestrian way that connects the entrances of two or more retail establishments. 8. Scheduled Public Events means any scheduled event within the Borough where the public is invited, some of which may require a permit, including, but not limited to, farmers markets, concerts, festivals, carnivals, and car shows. 9. "Service Area" means any outdoor areas at which one or more persons are waiting for a transaction, entry or service of any kind, whether or not such services involve the exchange of money, including, but not limited to ATMs, ticket lines, food vendor lines, movie ticket lines, bus stops, cab stands, and school bus stops. 10. "Smoke" or "smoking" means the burning of, inhaling from, exhaling the smoke from, or possession, carrying or holding of a lighted pipe, cigar, cigarette of any kind, hookah or similar device or any other matter that can be smoked, or the inhaling or exhaling of smoke or vapor of an electronic smoking device.
11. Subject property means any real property located within the Borough upon which there exists a building in which smoking is prohibited by the laws of the State of New Jersey on the date hereof (which includes, but is not limited to, retail space, office space, colleges, assisted living facilities and buildings used for religious purposes). 12. Tobacco product means any substance containing tobacco and intended for use by smoking, inhalation, chewing, sniffing, sucking, or vaping that are not FDA-approved for tobacco cessation, including, but not limited to, cigarettes, cigars, pipe tobacco, hookah, chewing or spit tobacco, snus and electronic smoking devices. Section 280-3 Creation of Smoke-Free and Tobacco-Free Zones A. Smoking or the use of an electronic smoking device is prohibited in the following places (each, a smoke-free zone and collectively, smoke-free zones ): 1. Municipal property, except in DSAs 2. Outdoor dining areas, public entrance areas, public retail walkways 3. Subject property, except in DSAs 4. Service areas 5. Scheduled Public Events and playgrounds. B. The use of any tobacco product is prohibited on municipal property, except in DSAs. C. Grace Period. With respect to clauses (2) and (3) of section A, a sixty(60)day grace period shall follow the effective date of this ordinance to permit a period of public education. The no-smoking provisions of such clauses (2) and (3) shall not be enforced during the sixty (60) day grace period. D. Within thirty days of the effective date of this subsection: (1) The Department of Public Works of the Borough of Florham Park shall post a sufficient number of signs, using the phrase NO SMOKING, except in Designated Smoking Areas or the international no-smoking symbol, and the phrase USE OF ANY TOBACCO PRODUCT PROHIBITED in this area or on any municipal property, except in Designated Areas and shall cite chapter 280 of the Florham Park Municipal Code, at various conspicuous locations on each municipal property to ensure that their message is visible and readable to most persons using municipal property. When events are held on municipal property, such Department of Public Works shall post additional temporary signs if needed to educate the persons attending the event that smoking is prohibited on municipal property, except in DSAs. (2) Any business with an outdoor dining area shall post a notice in size 24 font or larger that is clearly visible and readable to a majority of its customers in the
outdoor dining area, and most persons passing outdoors within 25 feet of it, that shall remain posted through the end of the sixty (60) day grace period and state: "Beginning [DAY AFTER GRACE PERIOD ENDS], smoking is prohibited in the outdoor dining area of this business, and within 25 feet of it, pursuant to ordinance of the Borough of Florham Park." (3) Any owner of a subject property on which there is a public retail walkway shall post a notice in size 24 font or larger that is clearly visible and readable to a majority of persons using the public retail walkway, that shall remain posted through the end of the sixty (60) day grace period and state: "Beginning [DAY AFTER GRACE PERIOD ENDS], smoking is prohibited on this sidewalk, pursuant to ordinance of the Borough of Florham Park." (4) Any owner of a building on a subject property with a public entrance area shall post a notice in size 24 font or larger that is clearly visible and readable to a majority of its persons in the vicinity of the public entrance area, that shall remain posted through the end of the sixty (60) day grace period and state: "Beginning [DAY AFTER GRACE PERIOD ENDS], smoking is prohibited within 25 feet of this entrance pursuant to ordinance of the Borough of Florham Park." E. Permanent Signs. By the end of the grace period, signs indicating that smoking is prohibited, or the international No Smoking symbol (consisting of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it) shall be clearly and conspicuously posted on each subject property by the owner of such subject property or, in the case of an outdoor dining area or carnival, the manager or operator of such outdoor dining area or carnival. The signs shall be posted at such a height (generally not less than 5 feet nor more than 8 feet above floor level) and shall be of sufficient number and location to cause the message of at least one of the signs to be clearly visible, legible and readable to persons in the smoke-free zone. As appropriate for the subject property, the signs shall also include the words: in this [dining area] [food service area] and within 25 feet of it ; within 25 feet of this [door] [entrance] [air intake vent] ; on this walkway ; while waiting for this [ATM] ; except in designated smoking areas following the international No Smoking symbol or the words No Smoking. Each sign shall cite chapter 280 of the Florham Park Borough Code. Owners of subject properties are encouraged but not required to consult with the Borough Administrator to determine the adequacy of such signs for compliance with this section. In case of Scheduled Public Events, conspicuous but temporary signs containing the same messages may be erected. F. The Health Department of the Borough of Florham Park shall periodically inspect the smoke-free zones to determine compliance with the posting of signs required by this subsection.
Section 280-4 Exceptions to Smoking Ban in Certain Outdoor Areas; DSAs A. Smoking shall be permitted on municipal property only in DSAs. At the Borough municipal complex, such smoking areas shall be at the eastern portion of the Pool/Library parking lot and the southwest portion of the Community Center parking lot. Signs shall be placed at these areas to indicate that smoking is permitted within these areas. Additional DSAs may be designated by Resolution of the Borough Council. B. The owner of a subject property may designate a DSA for its property by filing with the Health Department a statement that describes the DSA or DSAs. Owners may change the locations of DSAs from time to time by filing a new statement with the Health Department. If the owner of a subject property does not make such a filing with the Health Department, the entire subject property shall be smoke-free until such a filing is made. Section 280-5 Enforcement and Penalties. It shall be a violation of this ordinance for any owner, operator, manager, or person who controls any premises subject to this ordinance to fail to comply with any of its provisions. It shall be unlawful to smoke or carry a lighted cigarette, cigar, pipe, hookah, electronic smoking device or another product that can be smoked where smoking is prohibited. Any person who violates any provision of this ordinance shall be guilty of an infraction, punishable by: 1. A fine not exceeding $75 for the first violation. 2. For subsequent offenses, failure to comply with any of the requirements of this chapter shall be punishable as provided for in 1-16 of the Borough Code. In addition to monetary penalties, the health department shall suspend the business outdoor dining license or permit for three days, and shall suspend the business retail food license for a period of not more than three days. The Health Officer, or designee, and the Police Department are hereby charged with the enforcement of this ordinance. All members of the Health Department and the Police Department are hereby designated as enforcement officers for the purpose of enforcement of this ordinance. Any citizen may register a complaint under this ordinance with the Health Officer, or designee, or a Police Officer. Any owner, manager, operator, or employee of any establishment regulated by this article may inform persons violating this article of the appropriate provisions thereof. SECTION 2. All Ordinances or parts or ordinances inconsistent herewith are hereby repealed as to such inconsistencies.
SECTION 3. If any article, section, subsection, paragraph, phrase, or sentence is for any reason held to be unconstitutional or invalid, said article, section, subsection, paragraph, phrase or sentence shall be deemed separable. SECTION 4. This Ordinance shall take effect upon final publication as provided by law. I HEREBY CERTIFY this to be a true and correct Ordinance of the Mayor and Borough Council of the Borough of Florham Park introduced on November 15, 2011, and will be further considered for adoption after Public Hearing held on December 13, 2011, at 7:00 p.m. in the Municipal Building located at 111 Ridgedale Avenue. INTRODUCED: November 15, 2011 ADOPTED: December 13, 2011 R. Scott Eveland, Mayor ATTEST: Sheila Williams, Borough Clerk