Community
Key Information
Bismarck Smoke Free Ordinance
Frequently Asked Questions
How does this ordinance differ from state law? The City ordinance defines a “bar” more narrowly than state law meaning fewer “bars” are allowed to permit smoking under the ordinance than state law. The City ordinance requires that in order to be considered a “bar” the facility must only allow patrons that are at least 21 years old to enter. The City ordinance also limits the designation to only those holding specified types of alcohol licenses. The City ordinance prohibits smoking in outdoor areas of restaurants, whereas state law may not do so. The City ordinance also prohibits smoking within 5 feet of any entrances to public places or places of work, whereas, the state law does not have such a restriction. The City ordinance specifically allows owners or managers to designate nonsmoking areas, whereas, state law does not specify. The City ordinance requires proprietors to clearly and conspicuously post signs in the designated non-smoking areas, whereas, state law does not include such a requirement. What does this ordinance prohibit? The ordinance prohibits smoking in all public places and places of employment with some exceptions provided. The smoking prohibition extends to all indoor and outdoor areas of restaurants, areas within five feet of any entrance or exit to a public place or a place of employment, and any area designated by the proprietor as non-smoking. What places are NOT included in the ordinance? The exceptions to the smoking ban include the following places: Hotel and motel rooms, which are designated as smoking rooms; Outdoor areas of places of employment (smoking is not permitted, however, in the outdoor areas of sports arenas and restaurants); Areas of truckstops which are separately enclosed and accessible to adults only; The use of tobacco as part of an Indian spiritual or cultural ceremony; Medical facilities, such as a hospital or nursing facilities, when it is prescribed by the patient’s attending physician and/or authorized by the board or medical policy of the facility; and “Bars” as defined under the ordinance. Retail tobacco stores provided that smoke does not infiltrate into areas where smoking is prohibited. Areas of an owner/operated business having no employee other than the owner/operator and which areas are not commonly accessible to the public. Areas rented or leased for private functions from which the general public and children are excluded and arrangements for the function are under the exclusive control of the function sponsor. Private residences except when operated as a child care facility and when any child attending the facility is present. What is defined as a “bar” under this ordinance? The Bismarck ordinance excludes specifically defined bars from the smoking restrictions. Not all alcoholic beverage license holders qualify as a bar under the ordinance. The ordinance defines a “bar” as a retail alcoholic beverage establishment holding a Class A, C, D, or E alcoholic beverage license as defined by Bismarck City Ordinance Section 5-01-04. Establishments holding a license in any of these Classes can be considered a “bar” for purposes of this ordinance only if patrons entering the premises are 21 years of age or older and the bar is separately enclosed. Establishments holding other classes of alcoholic beverage licenses are not considered a “bar” under this ordinance and are therefore smoke free. What is considered a “separately enclosed area” for purposes of this ordinance? A separately enclosed area is that which all space between a floor and a ceiling is enclosed on all sides by solid walls, closed windows or doors. The separately enclosed area must be constructed to ensure that tobacco smoke does not infiltrate into areas where smoking is prohibited under the provisions of this ordinance. Does the ordinance apply to private residences, clubs, or meetings? Private residences are not regulated by this smoking ordinance unless the residence is licensed as a child care facility by the North Dakota Department of Human Services and when any child cared for under that license is present. The smoking ordinance does not apply to a place of public access that is rented or leased for private functions so long as: (1) the general public and children are excluded; and (2) the arrangements for the function are under the control of the function sponsor. However, private clubs and rooms used for private meetings are considered “places of work”, and therefore smoking is prohibited, when two or more persons acting under an employment relationship provide catering, food or beverage service, maintenance or other support services at the location. Is smoking allowed in a restaurant if a separate smoking section is provided? No. The ordinance does not allow for any smoking in the indoor or outdoor restaurant areas. The outdoor areas of a restaurant include areas where food and/or beverages are served or consumed including but not limited to outdoor patios, terraces, decks, courtyards, sidewalks, and porches. Unless otherwise exempted by the ordinance, smoking is not permitted in any bar areas of a restaurant even if the bar area is separate and enclosed from the restaurant area. Can a business owner designate as non-smoking an area where smoking is otherwise allowed under this ordinance? Yes. Business owners have complete discretion to designate an otherwise lawful smoking area as non-smoking. If a proprietor does so, smoking is prohibited in the designated non-smoking area and individuals violating the non-smoking designation can be prosecuted under this ordinance. This ordinance does not require a business owner to designate smoking areas where they are permitted. Where can employees and/or visitors to public places or places of work smoke? At public places and places of work, designated smoking areas are permitted outdoors at least five (5) feet away from all entrances and exits unless otherwise designated as non-smoking by the owner or manager. Can employees smoke at service entrances? No. The ordinance does not make a distinction between service entrances, front entrances, or public entrances. Smoking at public places and places of work is prohibited within five (5) feet of all entrances and exits. Can an employer designate an indoor area where smoking would be permitted? No. The ordinance does not allow employers or anyone else to designate an indoor area as an area where smoking would be permitted if the ordinance otherwise prohibits smoking in the area. What must a business do to comply with the new smoking ordinance? Post “no smoking” signs in prominent places. The signs should be posted clearly and conspicuously. If an individual refuses to comply with the ordinance, becomes disorderly, threatening or violent, a proprietor should contact the Bismarck Law Enforcement Center at 701-223-1212. What signs are proprietors required to post? How can I get the non-smoking signs to post in my business? Each proprietor must post signs that clearly indicate that smoking is not allowed. However, there is not a specific type of sign that is required. The Bismarck Burleigh Public Health Department will provide signs free of cost. To obtain signs call 701-222-7516. Where can an individual or proprietor call to report violations of the ordinance? Reports of violations may be made to the Bismarck Law Enforcement 701-223-1212. Who can report violations of this ordinance to authorities and if they do so would there be any repercussions? Anyone can report violations of this ordinance to authorities. No person or employer can discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or other person because that person asserts or exercises any rights afforded by this ordinance or reports or attempts to prosecute a violation of this ordinance. Who can be prosecuted? An individual who smokes in an area in which smoking is prohibited under the provisions of this ordinance. Also, a business, employer, owner of a business, or a person with general supervisory authority over a public place or a place of employment who willfully fails to comply with the provisions of this ordinance. What are the penalties? A business or individual who is found guilty of a violation of this ordinance is punished as follows: A fine not exceeding $100 for the first violation; A fine not exceeding $200 for a second violation within one year of the first violation; or A fine not exceeding $500 for each violation within one year of the second violation. When does this ordinance go into effect? October 12, 2005