Chapter 6-4: Regulation of Smoking15
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.
Ordinance No. 7650 (2009)
The following terms used in this chapter have the following meanings unless the context clearly indicates otherwise:
"Bar" means any indoor area that is operated and licensed as a tavern liquor license under Article 47 of Title 12, C.R.S., primarily for the sale and service of alcohol beverages for on premises consumption and where the service of food is secondary to the consumption of such beverages.
"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.
"Cigar-tobacco bar" means a bar that, in the calendar year ending December 31, 2005, generated at least five percent or more of its total annual gross income or $50,000 in annual sales from both the onsite sale of tobacco products and the rental of onsite humidors. In any calendar year after December 31, 2005, a bar that fails to generate at least five percent of its total annual gross income or $50,000 in annual sales both from the onsite sale of tobacco products and the rental of onsite humidors, shall not be defined as a "cigar-tobacco bar" and shall not thereafter be included in the definition, regardless of sales figures.
"Dwelling," as used in this chapter, means any place used primarily for sleeping overnight and conducting activities of daily living, not including a hotel or motel room or suite or bed and breakfast.
"Enclosed area," as used in this chapter, means an area which contains a structure made up of a roof and two or more walls regardless of the composition of the walls or roof. This includes, but is not limited to, the following: park shelters, event tents, bus shelters, patio awnings, and canopies.
"Entryway" means the outside of any doorway leading into and exiting from a building or enclosed area. "Entryway" also includes the area of public or private property within fifteen feet of the doorway.
"Mall" means the Downtown Boulder Mall as defined in Ordinance No. 4267, as amended by Ordinance No. 4543 and any successor ordinance.16
"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.
"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.
"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 where alcohol is not sold, if more than eighty-five 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.
Ordinance Nos. 6088 (1999); 7650 (2009); 7681 (2009); 7881 (2012)
(a) No person shall smoke within any building or enclosed area 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;
(2) In a hotel/motel room or bed and breakfast guest room rented to one or more guests if the total percentage of such smoking rooms in such hotel/motel or bed and breakfast does not exceed twenty-five percent. This exception does not extend to a lobby, common elevator, common hallway, or any other common area of a hotel/motel or bed and breakfast;
(3) In a tobacco store;
(4) In a cigar-tobacco bar which existed as of December 31, 2005, provided that it does not expand its size or change its location from the size and location in which it existed as of December 31, 2005;
(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 smoke free area by the manager of such area. The city council urges such governmental entities to designate smoke free areas in order to promote full access by the public and protect the health of employees;
(6) In private homes, private residences, and private automobiles; not to include any such home, residence, or vehicle being used for child care or day care or a private vehicle being used for the public transportation of children or as part of health care or day care transportation; or
(7) In a limousine under private hire.
(b) Unless excepted under Subsection (a) of this section, the prohibitions of this chapter apply to all buildings or enclosed areas which serve as places of work, but this Subsection (b) neither enlarges nor diminishes the meaning of Subsection (a) of this section.
(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 Nos. 5797 (1996); 7650 (2009); 7831 (2012); 7965 (2014)
No person shall smoke in any public conveyance.
Ordinance Nos. 7650 (2009); 7831 (2012); 7965 (2014)
(a) The owner, lessee, principal manager, or person in control of a cigar-tobacco bar 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 nonsmoking areas;
(2) It is physically separated from the nonsmoking areas;
(3) A designated smoking area under this section may not include any waiting area, lobby, hallway, elevator, restroom, 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 nonsmoking majority portion of the establishment as in the designated smoking area. This requirement includes, without limitation, live entertainment and games; and
(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 cigar-tobacco bar which designates a smoking area shall fail to maintain it in accordance with the requirements of this chapter.
(c) "Independently ventilated" means that the ventilation system for the area in which smoking is permitted and the ventilation system for any nonsmoking area do not have a connection which allows the mixing of air into the smoking and nonsmoking areas.
(d) "Physically separated" means that there are physical barriers, such as walls and doors, extending from floor to ceiling that prohibit smoke from entering a nonsmoking area.
Ordinance Nos. 7650 (2009); 7831 (2012); 7965 (2014)
No person shall smoke on the Mall.
Ordinance Nos. 7881 (2012); 7965 (2014)
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, enclosed area, 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:
(1) 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, enclosed area, or establishment.
(2) 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 or establishment.
(3) In tobacco stores, a sign shall be posted conspicuously either on all public entrances or in a position clearly visible on entry into the building or establishment using the words "Smoking Permitted: children under eighteen years of age must be accompanied by a parent or guardian."
(4) A sign using the words "No Smoking within fifteen feet of the entryway" shall be posted conspicuously on all entryways of buildings, enclosed areas, or establishments.
(5) The requirements of this section do not apply to an exempt dwelling.
Ordinance Nos. 7650 (2009); 7831 (2012); 7965 (2014)
(a) No owner, lessee, principal manager, or person in control of a building or establishment shall fail to:
(1) Ask smokers to refrain from smoking in any smoke free area;
(2) In a cigar-tobacco bar, affirmatively direct smokers to designated smoking areas; and
(3) Use any other means which may be appropriate to further the intent of this chapter.
(b) No owner, principal manager, proprietor, or any other person in control of a business shall fail to ensure compliance by subordinates, employees, and agents with both the restrictions on sale and display of tobacco products contained in Section 6-4-8, "Restrictions on Sale and Display of Tobacco Products," B.R.C. 1981, and the restrictions on smoking within fifteen feet of any entryway contained in Section 6-4-9, "Entryway," B.R.C. 1981.
Ordinance Nos. 6088 (1999); 7650 (2009); 7831 (2012); 7965 (2014)
(a) No person shall furnish to any person who is under eighteen years of age, by gift, sale, or any other means, any tobacco product. Before selling to any individual any cigarette or tobacco product, a person shall request from the individual and examine a government issued photographic identification that establishes that the individual is eighteen years of age or older; except that, in face to face transactions, this requirement shall be waived if the individual appears older than thirty years of age.
(b) No person shall sell or offer to sell any tobacco product by use of a vending machine.
(c) No person shall stock or display, or sell from a stock or display, tobacco products in a business which sells such products at retail in a manner which makes them accessible to customers without the assistance of an employee. This subsection requires a direct, face-to-face exchange of the tobacco product from an employee to the customer.
(d) No person shall distribute any tobacco product with-out charge in any public place or at any event open to the public for the purpose of promotion or advertising. No person shall, in any public place or at any event open to the public, distribute any coupon or similar writing which purports to allow the bearer to exchange the same for any tobacco product, either free or at a discount.
(e) No person shall sell tobacco products except cigars or pipe tobacco in any form or condition other than in the packaging provided by the manufacturer.
(f) No person shall sell cigarettes except in packs of twenty or more cigarettes per pack.
(g) It is an affirmative defense to a charge of violating Subsection (a) of this section that the person furnishing the 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.
(h) 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.
(i) It is a specific defense to a charge of violating Subsection (c) of this section that the store was a tobacco store and no person under the age of eighteen years was within the premises unless actually accompanied by a parent or legal guardian. A tobacco store may use self-service displays of tobacco products so long as it is within the terms of this specific defense.
(j) It is a specific defense to a charge of violating Subsection (c) of this section that the tobacco product was a cigar or pipe tobacco in a locked walk-in humidor, entry into which by the customer required the assistance of an employee and no person under eighteen years of age was in the humidor.
(k) Monitoring by employee.
(1) It is a specific defense to a charge of violating Subsection (c) of this section that the tobacco product was a cigar or pipe tobacco in a walk-in humidor which was visually monitored by an employee and no person under eighteen years of age was in the humidor.
(2) This defense shall not apply if there have been three convictions of violation of Subsection (c) of this section involving the business within any thirty-six month period, based on the dates of the offenses, and the most recent conviction became final no more than five years before the pending violation.
Ordinance Nos. 6088 (1999); 7650 (2009)
(a) No person shall smoke within any entryway of a building, enclosed area, or common entrance to a multifamily dwelling, except a single-family dwelling.
(b) No owner, principal manager, proprietor, or any other person in control of a business shall fail to ensure compliance of this section by subordinates, employees, and agents.
Ordinance Nos. 7650 (2009); 7831 (2012); 7965 (2014)
(a) The city manager may adopt rules regarding the prohibition of smoking pursuant to Chapter 1-4," Rulemaking," B.R.C. 1981.
(b) The city manager may adopt rules and regulations that the manager determines are reasonably necessary to implement the requirements of this chapter.
Ordinance Nos. 7650 (2009)
15 Adopted by Ordinance No. 5754. Derived from Ordinance Nos. 4023, 4661, 4898, 4969, 4994, 5176, 5248.
16 The ordinances generally describe the area included within the mall as the entire right-of-way of Pearl Street from approximately the east curb line of 11th Street to the west curb line of 15th Street except for the roadway at the intersections at Broadway, 13th and 14th Streets; and the area directly south of the Boulder County courthouse complex, specifically, the area bounded by the east curb line of 13th Street on the west, the west curb line of 14th Street on the east, the north boundary line of the Pearl Street right-of-way on the south and, on the north, by a line coinciding with the south wall of the west wing of the Boulder County courthouse complex and extending westerly at a right angle from the west wall thereof to the east curb line of 13th Street and extending easterly at a right angle from the east wall thereof to the west curb line of 14th Street; excepting, however, any buildings or portions of buildings which are owned by the County of Boulder and located in such area.