Smoking By-law 2019-200 (consolidated to June 14, 2021) — full text

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Legal Department Office Consolidation June 14, 2021 THE CORPORATION OF THE CITY OF SAULT STE. MARIE BY-LAW NUMBER 2019-200 SMOKING: (R1.2) A by-law to regulate the smoking and consumption of tobacco, cannabis and electronic cigarettes in public places, enclosed workplaces and City Buildings in the City of Sault Ste. Marie. WHEREAS Section 8 of the Municipal Act, 2001, S.O. 2001, c.25, as amended ("Municipal Act") provides that the powers of a municipality shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality's ability to respond to municipal issues; AND WHEREAS Section 9 and 10 of the Municipal Act provides that the Corporation of the City of Sault Ste. Marie has the capacity, rights, powers and privileges of a natural person, and may pass by-laws for prohibiting or regulating, for purposes considered necessary or desirable including the use and protection of public assets, social and environmental purposes, the delivery of services, and for the health, safety and well- being of persons under the authority of the Municipal Act; AND WHEREAS subsection 115(1) of the Municipal Act provides that without limiting section 9 and 10, a municipality may prohibit or regulate the smoking of tobacco or cannabis in public places and workplaces; AND WHEREAS it has been determined that second-hand smoke is a serious health hazard because of its adverse effects and risk to the health of all of the inhabitants in the City of Sault Ste. Marie; AND WHEREAS it is desirable for the purpose of promoting and protecting the health, safety and welfare of the inhabitants of the City of Sault Ste. Marie to ensure that all public places and City buildings will be free from second hand smoke; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF SAULT STE. MARIE ENACTS AS FOLLOWS: PART I 1. DEFINITIONS 1.0 In this by-law, 2 1.1 "Cannabis" means cannabis as defined in subsection 2 (1) of the Cannabis Act S.C. 2018, c.16, or successor legislation; 1.2 "Children's Playground" means an area as defined in Ontario Regulation 268/18 promulgated under the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26, or successor legislation or regulations made thereunder; 1.3 "City" means the City of Sault Ste. Marie; 1.4 "City Building" means any building, owned, operated or leased by the Corporation of the City of Sault Ste. Marie; 1.5 "Community Recreational Facility" means an area as defined in Ontario Regulation 268/18 promulgated under the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26, or successor legislation or regulations made thereunder; 1.6 "Electronic Cigarette" means a vaporizer or inhalant-type device, whether called an electronic cigarette or any other name, that contains a power source and heating element designed to heat a substance and produce a vapour intended to be inhaled by the user of the device directly through the mouth, whether or not the vapour contains nicotine; 1.7 "Enclosed Public Place" means, (a) the inside of any place, building or structure or vehicle or conveyance, or a part of any of them, within the City: (i) that is covered by a roof, and (ii) to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry, or (b) a prescribed place as defined in Ontario Regulation 268/18 promulgated under the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26, or successor legislation or regulations made thereunder within the City; 1.8 "Enclosed Workplace" means, (a) the inside of any place, building or structure or vehicle or conveyance, or a part of any of them, within the City: (i) that is covered by a roof, 3 (ii) that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time, and (iii) that is not primarily a private dwelling as that term is defined in Section 1(2) of the Smoke-Free Ontario Act, 2017, S.O. 2017, c. 26, or (b) a prescribed place as defined in Ontario Regulation 268/18 promulgated under the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26, or successor legislation or regulations made thereunder within the City; 1.9 "Highway" means a highway within the City as defined in Part III of the Municipal Act, specifically the following are highways unless they have been closed: (a) all highways that existed on December 31, 2002; (b) all highways established by by-law of a municipality on or after January 1, 2003; (c) all highways transferred to a municipality under the Public Transportation and Highway Improvement Act; (d) all road allowances made by the Crown surveyors that are located in municipalities; and (e) all road allowances, highways, streets and lanes shown on a registered plan of subdivision; 1.10 "Inspector" means an employee or class of employees of Algoma Public Health authorized by the Medical Officer of Health to carry out an inspection under and to enforce the provisions of this By-law; 1.11 "John Rowswell Hub Trail" means the City's 22.5km non-motorized, multi-use trail that was constructed throughout the City, as set out in Schedule "A" to this By-law; 1.12 "Restaurant and Bar Patio" means an area as defined in Ontario Regulation 268/18 promulgated under the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26, or successor legislation or regulations made thereunder; 1.13 "Parkland" means any and all lands owned by the Corporation of the City of Sault Ste. Marie that has been or hereinafter may be set apart, designated, dedicated or established by Council as public parkland; 1.14 "Permitted Event" means an event, whereby an Applicant has applied for a Special Event Exemption - Parkland in accordance with Section 4.1(a) of this By- law and to which Council for the City has granted a Special Event Exemption pursuant to Section 4.1(a) and (b) of this By-law; 4 1.15 "Prescribed" means prescribed by Ontario Regulation 268/18 promulgated under the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26, or successor legislation or regulations made thereunder; 1.16 "Person" includes a corporation; 1.17 "Proprietor" means a person, or in the case of the Corporation of the City of Sault Ste. Marie, a City staff member, who in either case, ultimately controls, governs or directs the activity carried on within a place governed by this By-law and includes the person actually in charge of such a place at any particular time, 1.18 "Public Place" means any building, structure, vessel, vehicle or conveyance, or part thereof in the City that does not meet the definition of an Enclosed Public Place herein, and to which the public has access as of right or by invitation, expressed or implied, whether or not a fee is charged for entry but does not include a Highway; 1.19 "Roberta Bondar Park Tent Pavilion" refers to the large outdoor tent pavilion located at 65 Foster Drive, Sault Ste. Marie, Ontario; 1.20 "Smoke/Vape or Smoking/Vaping" includes to carry, hold, smoke, inhale or exhale from: (a) a lighted, heated, or activated, cigarette, cigar, pipe, waterpipe, cigarillo's, electronic cigarette; or (b) a lighted, heated, or activated device or equipment not described in (a) that heats, burns, vaporizes, or aerosolizes any tobacco, cannabis, e-substance, whether or not it contains tobacco, or any other material, liquid, or any combination thereof; 1.21 "Sporting Area" means an area as defined in Ontario Regulation 268/18 promulgated under the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26, or successor legislation or regulations made thereunder; 1.22 "Tobacco Product" means any product that contains tobacco and includes the package in which tobacco is sold; and 1.23 "Vapour Product" means an electronic cigarette, an e-substance, or any component of an electronic cigarette and includes the package in which the electronic cigarette, e-substance or component is sold. 1.24 "Officer" means any Municipal Law Enforcement Officer or other person appointed by Council pursuant to a by-law. [AMENDED BY BY-LAW 2021-120] 5 PART II 2.0 APPLICATION 2.1 This By-law applies to the smoking and/or vaping of the following in various specified areas of the City: (a) tobacco products; (b) cannabis; (c) vapour products including but not limited to the use of electronic cigarettes; and (d) prescribed products and substances in accordance with Section 2(d) of the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26, or successor legislation or regulations made thereunder, which are collectively referred to in this By-law as the "Prohibited Products and Substances". 2.2 The Smoke-Free Ontario Act, 2017, S.O. 2017, c.26 prohibits the smoking and/or vaping of Prohibited Products and Substances in a various areas throughout Ontario, including the City to which all persons must comply. 2.3 This By-law sets out specified areas within the City where the smoking and/or vaping of Prohibited Products and Substances is prohibited in addition to those areas set out in the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26. PART III 3.0 PROHIBITIONS 3.1 No person shall smoke and/or vape the Prohibited Products and Substances in any City Building and within 9 metre radius surrounding any entrance or exit to a City Building. 3.2 No person shall smoke and/or vape the Prohibited Products and Substances in any Public Place within the City. 3.3 No person shall smoke and/or vape the Prohibited Products and Substances in any Enclosed Public Place within the City. 3.4 No person shall smoke and/or vape the Prohibited Products and Substances in any Enclosed Workplace within the City. 6 3.5 No person shall smoke and/or vape the Prohibited Products and Substances in any Parkland located within the City subject to the exemption, contained in Section 4.1 of this By-law. 3.6 No person shall smoke and/or vape the Prohibited Products and Substances in any Children's Playground in the City and all public areas within 20 metres of any point on the perimeter of any Children's Playground in the City. 3.7 No person shall smoke and/or vape the Prohibited Products and Substances in any Sporting Area in the City, the spectator areas adjacent to the Sporting Area, any food and beverage concessions at a Sporting Area and all public areas within 20 metres of any point on the perimeter of a Sporting Area or a spectator area adjacent to a Sporting Area in the City. 3.8 No person shall smoke and/or vape the Prohibited Products and Substances in any Community Recreational Facility in the City, the outdoor grounds of a Community Recreational Facility and all public areas within 20 metres of any point on the perimeter of the grounds of a Community Recreational Facility in the City. 3.9 No person shall smoke and/or vape the Prohibited Products and Substances in any Restaurant and Bar Patio in the City and all public areas within a 9 metre radius surrounding any point on the perimeter of such patios in the City. 3.10 No person shall smoke and/or vape the Prohibited Products and Substances while under the Roberta Bondar Park Tent Pavilion, or within 15 metres of any entrance or exit to the Roberta Bondar Park Tent Pavilion. 3.11 No person shall smoke and/or vape the Prohibited Products and Substances on the Sault Area Hospital site located at 750 Great Northern Road, Sault Ste. Marie, including the outdoor grounds of the hospital site and the area within a 9 metre radius surrounding any entrance or exit of the hospital site. 3.12 No person shall smoke and/or vape the Prohibited Products and Substances at any location on the lands comprising the John Rowswell Hub Trail. 3.13 No person shall smoke and/or vape on the Algoma Public Health site located at 294 Willow Avenue, Sault Ste. Marie, including the outdoor grounds of the Algoma Public Health site and the area within a 9 metre radius surrounding any entrance or exit of the Algoma Public Health site. 3.14 Every proprietor of an Enclosed Public Space, Public Place, Children's Playground, Community Recreational Facility, Restaurant and Bar Patio, Sporting Area, City Building, City Parkland, the Roberta Bondar Tent Pavilion, the John Rowswell Hub Trail, the Sault Area Hospital, Algoma Public Health and any other place or area 7 in the City mentioned in subsection 12(2) of the Smoke Free Ontario Act, 2017, S.O. 2017, c. 26 shall, as it relates to their respective place or area: (i) ensure compliance with this By-law and Section 12 of the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26; (ii) post No Smoking and No Vaping signs in conspicuous locations throughout their respective place or area, including but not limited to each entrance and exit, all washrooms, and other appropriate locations in accordance with Section 5 of this By-law and in the Prescribed manner, and in sufficient numbers to ensure that the public is aware that the smoking and/or vaping of the Prohibited Products and Substances is prohibited in the respective place or area; (iii) ensure that a person who refuses to comply with Section 12 of the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26 does not remain in their respective place or area; (iv) ensure that no ashtrays or similar equipment remain in their respective place or area other than a vehicle in which the manufacturer has installed an ashtray; and (v) ensure compliance with any other Prescribed obligations. 3.15 No person shall fail to leave an area set out in Section 3.14 herein after a proprietor of such area has given the person notice or direction to leave the area for smoking and/or vaping Prohibited Products and Substances therein. 3.16 No person shall enter or use an area set out in Section 3.14 herein after a proprietor of such area has prohibited the person's entry or use of such area given the smoking and/or vaping of Prohibited Products and Substances therein. 3.17 Every employer of an Enclosed Workplace or any other place or area in the City mentioned in subsection 12(2) of the Smoke Free Ontario Act, 2017, S.O. 2017, c. 26 shall, as it relates to their respective place or area: (i) ensure compliance with this By-law and Section 12 of the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26; (ii) give notice to each employee in the Enclosed Workplace or other place or area of the prohibition under Section 12(1) of the Smoke Free Ontario Act, 2017, S.O. 2017, c.26 and this By-law in accordance with the regulations made under the Smoke Free Ontario Act, 2017, S.O. 2017, c.26; (iii) post No Smoking and No Vaping signs in conspicuous locations throughout their respective Enclosed Workplace, including but not limited to each entrance and exit, all washrooms, and other appropriate locations in accordance with Section 5 of this By-law and in the Prescribed manner, and in sufficient numbers to ensure that the public is aware that the smoking and/or vaping of the Prohibited Products and Substances is prohibited in the Enclosed Workplace; 8 (iv) ensure that a person who refuses to comply with Section 12 of the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26 does not remain in the Enclosed Workplace or area; (v) ensure that no ashtrays or similar equipment remain in their respective Enclosed Workplace or area other than a vehicle in which the manufacturer has installed an ashtray; and (vi) ensure compliance with any other Prescribed obligations. PART IV 4.0 EXEMPTIONS 4.1 Application for Special Event Exemption - Parkland (a) Notwithstanding anything contained in this By-law, any person may make application to the Legal Department to request an exemption from the prohibition contained in Section 3.5 of this By-law to smoke and/or vape the Prohibited Products and Substances in an area defined as Parkland in the City for a special event on the following basis: (i) the Application should set out the full particulars of the special event, the type of Prohibited Products and Substances desired to be smoked and/or vaped, the desired area of Parkland for the special event, and any other particulars relevant to the special event to the satisfaction of the Legal Department; (ii) the area of Parkland for the special event cannot be an area prohibited by the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26 or the request shall be automatically denied; (iii) the Legal Department shall circulate the request to relevant City Departments and Algoma Public Health for comment; (iv) if the responses to the circulation are favourable, the Legal Department shall bring the request forward to City Council for consideration; and (v) City Council may approve and/or deny the request and its approval, if applicable, may contain such terms and conditions as Council sees fit. The decision of City Council regarding the application for exemption is final. (b) In deciding whether to grant the exemption, Council shall give the applicant and any person opposed to the application an opportunity to be heard and may consider such other matters as it sees fit. 9 (c) Breach by the applicant of any of the terms or conditions of any exemption granted by Council shall render the exemption null and void. 4.2 Exemption for Traditional Use of Tobacco by Indigenous Persons No provision in this By-law that prohibits smoking in a place or area: (a) prohibits an Indigenous person from smoking tobacco or holding lighted tobacco there, if there activity is carried out for traditional Indigenous cultural or spiritual purposes; or (b) prohibits a non-Indigenous person from smoking tobacco or holding lighted tobacco there, if the activity is carried out with an Indigenous person and for traditional Indigenous cultural or spiritual purposes. PART V 5.0 SIGNAGE REQUIRED 5.1 For the purposes of Section 3.14 of this By-law, at each location where a No Smoking sign and No Vaping sign are required to be placed or posted under this By-law, every Proprietor shall post the following signage: (a) both of the following signs, each of which must be at least 10 centimetres in height and at least 10 centimetres in width; a. a copy of a sign entitled "Tobacco Sign for Proprietors" dated January 1, 2018 and accessible through a website of the Government of Ontario sign; and b. a sign entitled "Electronic Cigarette Sign for Proprietors" dated January 1, 2018 and accessible through a website of the Government of Ontario, copies of which are appended as Schedule "B" to this By-law, or (b) a copy of the sign at least 15 centimetres in height and at least 20 centimetres in width, entitled "Tobacco and Electronic Cigarette Sign for Proprietors", dated January 1, 2018 and accessible through a website of the Government of Ontario, a copy of which is appended as Schedule "C" to this By-law. 5.2 For the purposes of Section 3.17 of this By-law, at each location where a No Smoking sign and No Vaping sign are required to be placed or posted under this By-law, every Employer shall post the following signage: 10 (a) both of the following signs, each of which must be at least 10 centimetres in height and at least 10 centimetres in width; a. a copy of a sign entitled "Tobacco Sign for Proprietors" dated January 1, 2018 and accessible through a website of the Government of Ontario sign; and b. a sign entitled "Electronic Cigarette Sign for Proprietors" dated January 1, 2018 and accessible through a website of the Government of Ontario, copies of which are appended as Schedule "B" to this By-law, or (b) a copy of the sign at least 15 centimetres in height and at least 20 centimetres in width, entitled "Tobacco and Electronic Cigarette Sign for Proprietors", dated January 1, 2018 and accessible through a website of the Government of Ontario, a copy of which is appended as Schedule "C" to this By-law. 5.3 The prohibitions in Section 3 above apply whether or not a "No Smoking" and or "No Vaping" sign of any format or content is posted. 5.4 No person shall remove, cover up or alter any sign that has been posted pursuant to Section 5 of this By-law. PART VI 6.0. ENFORCEMENT 6.1 Inspectors or an Officer [AMENDED BY BY-LAW 2021-120] are vested with the authority of enforcing the provisions of this By-law. 6.2 Where any person contravenes any provision of this By-law, an Inspector or an Officer [AMENDED BY BY-LAW 2021-120] may direct such person to comply with this By-law. Every person so directed shall comply with such direction without delay. 6.3 Any Inspector or Officer [AMENDED BY BY-LAW 2021-120] who has reasonable grounds to believe that a person has contravened any provision of this By-law may require that person to provide their identification to the Inspector or Officer. 6.4 Every person who is required by an Inspector or Officer [AMENDED BY BY-LAW 2021-120] to provide identification under Section 6.3 herein shall identify 11 himself or herself to the Inspector or Officer. Giving their correct name, date of birth and address shall constitute sufficient identification. Failure to provide sufficient identification shall constitute obstruction of the Inspector or Officer as set out in Section 7.1 of this By-law. 6.5 No person shall hinder, obstruct or interfere with an Inspector or Officer [AMENDED BY BY-LAW 2021-120] lawfully carrying out the enforcement of this By-law. PART VII 7.0 OFFENCES, ENFORCEMENT AND PENALTIES 7.1 Every person who contravenes any provision of this By-law, is guilty of an offence and upon conviction is liable to a fine as provided for in the Provincial Offences Act, R.S.O. 1990, chapter 33, as amended or the Smoke-Free Ontario Act, 2017, S.O. 2017, c.26 as amended. 7.2 Any fine described in this By-law that relates to matters set out in the Smoke- Free Ontario Act, 2017, S.O. 2017, c. 26 as amended shall be as set out in the Set Fines Schedule, specifically Schedule 83.0.1 to the Smoke Free Ontario Act, 2017, S.O. 2017, c.26 as amended from time to time. 7.3 Any fine described in this By-law, except for a matter described in Section 7.2 herein, shall be as set out in the Set Fines Schedule appended as Schedule "D" to this By-law, as amended from time to time. PART VIII 8.0 CONTINUATION, REPETITION PROHIBITED BY ORDER 8.1 The Court in which the conviction has been entered and any court of competent jurisdiction thereafter may make an order prohibiting the continuation or repetition of the offence by the person convicted, and such order shall be in addition to any other penalty imposed on the person convicted. PART IX 9.0 COLLECTION OF UNPAID FINES 9.1 Where a fine is in default, the City may proceed with civil enforcement against the person upon whom the fine has been imposed, pursuant to the Provincial Offences Act, R.S.O. 1990, c.P.3. 12 9.2 The City may make a request to the Treasurer of the City to add any part of a fine that is in default to the tax roll for any property in the local municipality for which all of the owners are responsible for paying the fine, and collect it in the same manner as municipal taxes. PART X 10.0. CONFLICTS 10.1 If a provision of this By-law conflicts with an Act or Regulation or another By-law, the provision that is the most restrictive of smoking and/or vaping shall prevail. PART XI 11.0 SEVERABILITY 11.1 If any section or sections of this By-law or part thereof, is found in any court of law to be illegal or void or beyond the power of the City to enact, such section or sections or part thereof shall be deemed to be severable and all other sections or parts of the By-law shall be deemed to be separate and independent thereof and to be enacted as such. PART XII 12.0 REPEAL 12.1 The following By-laws are hereby repealed, effective October 21, 2019: (a) By-law 2003-7; (b) By-law 2005-13; (c) By-law 2005-33; (d) By-law 2007-154; (e) By-law 2009-155; (f) By-law 2011-22; (g) By-law 2011-48; (h) By-law 2012-37; and (i) By-law 2015-151. PART XII 13.0 SCHEDULES 13.1 All schedules attached to this By-law shall form part of this By-law. 13 PART XIV 14.0 EFFECTIVE DATE 14.1 This By-law comes into effect on October 22, 2019. PASSED in open Council this 22nd day of October, 2019. "Christian Provenzano " MAYOR - CHRISTIAN PROVENZANO "Rachel Tyczinski" CITY CLERK - RACHEL TYCZINSKI New Schedule "D" June 14, 2021 Schedule "D" CITY OF SAULT STE. MARIE PART 1 - PROVINCIAL OFFENCES ACT BY-LAW 2019-200: SMOKING BY-LAW ITEMS COLUMN 1 COLUMN 2 COLUMN 3 SHORT FORM WORDING PROVISION CREATING/ DEFINING OFFENCE SET FINE 1 Smoke or vape a Prohibited Product or Substance in a City Building 3.1 $250.00 2 Smoke or vape a Prohibited Product or Substance within (9) metre form a City Building entrance 3.1 $250.00 3 Smoke or vape a Prohibited Product or Substance in a Public Place 3.2 $250.00 4 Smoke or vape a Prohibited Product or Substance in Parkland 3.5 $250.00 5 Smoke or vape a Prohibited Product or Substance under the Roberta Bondar Pavilion Tent 3.10 $250.00 6 Smoke or vape a Prohibited Product or Substanceor within (15) metres of the Roberta Bondar Pavilion Tent 3.10 $250.00 7 Smoke or vape a Prohibited Product or Substance on the Sault Area Hospital Site 3.11 $250.00 8 Smoke or vape a Prohibited Product or Substance upon the John Rowswell Hub Trail 3.12 $250.00 9 Smoke or vape a Probited Product or Substance on the Algoma Public Health site 3.13 $250.00 10 Proprietor - fail to post prescribed signs - Public Place 3.14(ii) $300.00 11 Proprietor - fail to post prescribed signs - Enclosed Public Place 3.14(ii) $300.00 12 Proprietor - fail to ensure no ashtrays or similar Equipment - Public Place 3.14(iv) $300.00 13 Proprietor - failure to ensure no ashtrays or similar Equipment - Enclosed Public Place 3.14(iv) $300.00 14 Fail to leave area upon notice or direction to leave area by Proprietor for smoking or vaping a Prohibited Product or Substance 3.15 $250.00 15 Enter or use area after prohibited entry or use by a Proprietor for smoking or vaping a Prohibited Product or Substance 3.16 $250.00 16 Remove, cover up or alter a sign posted pursuant to Section 5 of By-law 2019-200 5.4 $250.00 17 Fail to provide sufficient identification upon request 6.4 $250.00 18 Hinder, obstruct or interfere with an Officer or Inspector 6.5 $250.00 "NOTE: The penalty provision for the offences indicated above is section 7.1 of By-law No. 2019-200, a certified copy of which has been filed."