§ 17-93. Violations and penalties.

(a)

Any person who owns, manages, operates or otherwise controls the use of an establishment in which smoking is prohibited pursuant to division 2, or the designated agent thereof, who fails to comply with any limitation on the size of an area designated for smoking pursuant to divisions 2 and 3; fails to post the signs required by section 17-71(5), (f), (8), (10), (12), (14) or other provisions of divisions 2 and 3, and section 17-91; or fails to make a good faith effort to comply with section 17-92(c) shall be deemed to be in violation of these regulations. In actions brought for violations of these regulations, it shall be an affirmative defense that during the relevant time period actual control of the premises was not exercised by the respondent or a person under the control of the respondent, but rather by a lessee, sublessee or any other person; provided, however, that after receiving the notice of violation, the respondent submits to the fire department within five (5) business days, by certified mail, a sworn affidavit and other such proof as may be necessary, indicating that he or she has not exercised actual control during the relevant time period.

(b)

Any employer, whose place of employment is subject to regulation under section 17-72, who fails to comply with the provisions of that section, including, but not limited to, those provisions requiring the adoption, implementation dissemination and maintenance of a written smoking policy which conforms to the requirements of section 17-72(b) or fails to make a good faith effort to comply with section 17-72(c) shall be deemed to be in violation of these regulations. In actions brought for violations of these regulations, it shall be an affirmative defense that the employer has made good faith efforts to ensure that employees comply with the provisions of such written smoking policy.

(c)

Any person who owns, manages or operates a restaurant in which smoking is restricted to designated areas pursuant to section 17-71(5), or fails to make good faith efforts to ensure that employees responsible for seating arrangements substantially comply with the requirements set forth therein shall be deemed to be in violation of these regulations.

(d)

Any person who smokes in any area where smoking is prohibited under these regulations shall be deemed to be in violation of these regulations and of section 20-122.1 of the Code of Ordinances.

(e)

Every person who violates the provisions of these regulations shall be guilty of violating the provisions of section 20-122. 1 of the Code of Ordinances and shall be liable for all penalties provided for therein except as follows:

(1)

For a first violation thereof, the violator shall be liable for a penalty of not more than one hundred dollars ($100.00);

(2)

For a second violation, both of which were committed within a period of twelve (12) months, the violator be liable for a penalty of not more than two hundred dollars ($200.00); and,

(3)

For a third or subsequent violation, all of which were committed within a period of twelve (12) months, the violator shall be liable for a penalty of not more than three hundred dollars ($300.00);

(4)

Every person who violates section 17-93(d) shall be liable for a penalty of up to fifty dollars ($50.00) for each violation.

(Res. No. 80006, § 4.3, 7-12-95)