Sec. 23-106. Regulation of smoking in places of employment.
A. Within ninety days of the adoption of this article, each employer in each place of employment within the City shall adopt, implement, and maintain a written smoking policy containing at a minimum the following provisions and requirements:
1. Prohibition of smoking in employer conference and meeting rooms, classrooms, auditoriums, restrooms, waiting areas, medical facilities, hallways, stairways and elevators.
2. Provision and maintenance of separate non-smoking facilities, rooms or areas of not less than one-half of the total seating capacity and total floorspace in cafeteria, lunchrooms, and employee lounges located on the premises.
3. Any employee may object to his or her employer about smoke in his or her immediate work area, in employee facilities including but not limited to restrooms, cafeteria, and health facilities, or in areas in the work place where he or she must traverse in the course of work or to use employee facilities including but not limited to restrooms, cafeterias, and health facilities. Using already available means of ventilation or partition of office space, the employer must use its best efforts to reasonably accommodate the preferences of non-smoking and smoking employees. However, in doing so, no employer is required to make any expenditures or structural changes to the place of employment.
4.
a. If no accommodation reasonably satisfactory to all complaining employees can be reached in any given work area, the preferences of complaining employees shall prevail and the employer shall prohibit smoking in that work area. Where the employer prohibits smoking in a work area, it shall clearly mark that area with appropriate no smoking signs and upon request, provide signs to employee(s) for use in designating their areas.
b. The employer shall announce its smoking policy within ninety days of adoption of this article to all its employees working in work places in the City and shall post its written policy conspicuously in all work places under the employer’s jurisdiction, and make it available upon request.
c. Notwithstanding the provisions of section, every employer shall have the right to designate any place of employment, or portion thereof, as a non-smoking area. If an employer fails to implement and maintain a written smoking policy, smoking shall be prohibited on the entire premises.
B. The Fire Marshal, or any designee thereof, is authorized to investigate any complaints of violation of subsection A. Upon a determination of reasonable cause that a violation exists, the Fire Marshal, or any designee therefor, may issue a notice of violation stating with reasonable particularity the nature of the violation, to an employer or its agent. Within fifteen days of service of said notice, the employer shall in writing either submit an acceptable compliance plan to the Fire Marshal, or request a hearing on the violation. If a hearing is requested, a hearing officer appointed by the Water and Environmental Resources Manager shall designate a time and place for the hearing.
C. At the hearing it shall be the burden of the Fire Marshal, or the designee thereof, to prove by a preponderance of the evidence that a violation has occurred. Formal rules of evidence shall not apply and the hearing officer may admit whatever evidence he or she deems probative.
D. If the hearing officer determines that a violation has occurred he/she shall issue an order designating the continued noncompliance with this section to be a nuisance and imposing a one hundred dollar assessment against the violator. Any person affected by the nuisance may for a period of one year after the hearing officer’s order bring a civil action in the Municipal Court to abate the nuisance.
E. Service of any notice to an employer required by this section shall be complete upon mailing, to the employer or by personal delivery to the employer or any agent thereof.
F. Failure to respond timely to a notice of violation as described in subsection B shall result in a default being entered against the violator. Upon entering a default the hearing officer shall enter an order as if a determination that a violation has occurred had been made.
G. No person shall smoke in any place of employment except in designated smoking areas. A violation of this subsection is a petty offense punishable by a fine of not less than twenty-five dollars nor more than one hundred dollars. In no case shall a person convicted of a violation of this section be eligible for suspension or commutation of sentence on any basis except on the condition that the offender pays minimum/mandatory a fine of twenty-five dollars. (Ord. No. G-2865, § 1; Ord. No. G-2883, § 1; Ord. No. G-3535, § 1)
State law reference—Penalty for ordinance violations, A.R.S. §§ 9-499.01, 9-240(B)(28).