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HomeMy WebLinkAboutORD 2006-144 - Smoking in Public PlacesORDINANCE NO. CR00&_1'#A1 An Ordinance of the City Council of the City of Georgetown, Texas Amending Chapter 8.32 of the Code of Ordinances Regarding "Smoking in Public Places:" Providing A Penalty Clause; Providing a Severability Clause, Repealing Conflicting Ordinances and Resolutions; And Establishing an Effective Date. WHEREAS, The City Council finds that secondhand tobacco smoke is a major contributor to indoor air pollution and that breathing secondhand smoke (also known as environmental tobacco smoke) is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory disease, and lung cancer, and WHEREAS, The National Cancer Institute determined in 1999 that secondhand smoke is responsible for the early deaths of approximately 53,000 Americans annually. (National Cancer Institute (NCI), "Health effects of exposure to environmental tobacco smoke: the report of the California Environmental Protection Agency. Smoking and Tobacco Control Monograph 10," Bethesda, MD: National Institutes of Health, National Cancer Institute (NCI), August 1999); WHEREAS, The Public Health Service's National Toxicology Program (NTP) has listed secondhand smoke as a known carcinogen. (See Environmental Health Information Service (EHIS), "Environmental tobacco smoke: first listed in the Ninth Report on Carcinogens," U.S. Department of Health and Human Services (DHHS), Public Health Service, NTP, 2000; reaffirmed by the NTP in subsequent reports on carcinogens, 2003, 2005); WHEREAS, The U.S. Surgeon General has concluded that no amount of secondhand smoke is safe (Department of Health and Human Services, "The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General "' Public Health Service, Centers for Disease Control (June 27, 2006)); WHEREAS, The U.S. Centers for Disease Control and Prevention has determined that the risk of acute myocardial infarction and coronary heart disease associated with exposure to tobacco smoke is non - linear at low doses, increasing rapidly with relatively small doses such as those received from secondhand smoke or actively smoking one or two cigarettes a day, and has warned that all patients at increased risk of coronary heart disease or with known coronary artery disease should avoid all indoor environments that permit smoking. (Pechacek, Terry F.; Babb, Stephen, "Commentary: How acute and reversible are the cardiovascular risks of secondhand smoke ?" British Medical Journal 328: 980 -983, April 24, 2004); WHEREAS, The Society of Actuaries has determined that secondhand smoke costs the U.S. economy roughly $10 billion a year: $5 billion in estimated medical costs associated Ordinance No. 00(0 ° 4 SMOKING IN PUBLIC PLACES Page 1 of 11 Final with secondhand smoke exposure, and $4.6 billion in lost productivity. (Behan, D.F.; Eriksen, M.P.; Lin, Y., "Economic Effects of Environmental Tobacco Smoke," Society of Actuaries, March 31, 2005); WHEREAS, Numerous economic analyses examining restaurant and hotel receipts and controlling for economic variables have shown either no difference or a positive economic impact after enactment of laws requiring workplaces to be smokefree. Creation of smokefree workplaces is sound economic policy and provides the maximum level of employee health and safety. (Glantz, S.A. & Smith, L. The effect of ordinances requiring smokefree restaurants on restaurant sales in the United States. American Journal of Public Health, 87:1687 -1693, 1997; Colman, R.; Urbonas, C.M., "The economic impact of smoke -free workplaces: an assessment for Nova Scotia, prepared for Tobacco Control Unit, Nova Scotia Department of Health," GPI Atlantic, September 2001); WHEREAS, Hundreds of communities in the U.S., plus numerous states, including California, Delaware, Florida, Massachusetts, Montana, New Jersey, New York, and Washington, have enacted laws requiring workplaces, restaurants, bars, and other public places to be smokefree, as have numerous countries, including Ireland, New Zealand, Norway, Scotland, Sweden, Uganda, and Uruguay; WHEREAS, Smoking is a potential cause of fires, cigarette and cigar burns and ash stains on merchandise and fixtures, and other economic damage to businesses. ('The high price of cigarette smoking," Business & Health 15(8), Supplement A: 6 -9, August 1997) WHEREAS, The City Council also finds the smoking of tobacco is a form of air pollution, a positive danger to health, and a material public nuisance. Accordingly, the City Council of the City of Georgetown finds and declares that the purposes of this ordinance are to protect the public health and welfare by prohibiting smoking in public places; and WHEREAS, the City Council finds that it is in the public interest to recognize that the changes to the City's smoking ordinance effectuated hereby may require substantial changes to the business plans of existing establishments and desires to allow smoking in some existing establishments until such time as significant changes are made to the existing business; and WHEREAS, the City Council finds that it is in the public interest and is not inconsistent with the purposes of this ordinance to allow smoking in certain establishments that cannot be patronized by minors (e.g., bars and events at non -profit clubs at which minors are present) and that such an exemption balances the desire of some adults to smoke with the desire by the City Council to protect minors from second hand smoke in those public places; and Ordinance No. a 00& ' 1414 SMOKING IN PUBLIC PLACES Page 2 of 11 Final WHEREAS, the City Council finds that it is in the public interest and not inconsistent with the purposes of this ordinance to allow smoking in certain areas of an establishment while prohibiting it in others in order to balance the business interests of the regulated business or entity with the desire by the City Council to ensure that persons who do not desire to be exposed to second hand smoke have choices that allow them to avoid direct exposure to second hand smoke while in said establishments (e.g., by limiting smoking to certain designated areas in health care facilities, hotels and motels, and in private membership clubs such as country clubs). NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GEORGETOWN, TEXAS, that: SECTION 1 The facts and recitations contained in the preamble of this Ordinance are hereby declared to be true and correct, and are incorporated be reference herein and made a part hereof, as if copied verbatim. The City Council hereby finds that this Ordinance implements the following Century Plan Policy Statements — Goals and Strategies: 8.0 Parks, open space, recreation facilities and services, and social and cultural activities contribute to an enhanced quality of life for the citizens of Georgetown. 9.0 Georgetown's citizens and businesses enjoy an attractive community with a unique sense of place and a positive, identifiable image, at a cost which is consistent with other city social and economic priorities. Further, as required by Section 2.03 of the Administrative Chapter of the Policy Plan, the City Council hereby finds that the enactment of this Ordinance is not inconsistent with or in conflict with any other Century Plan Policy Statements. SECTION 2 Chapter 8.32 relating to Smoking in Public Places is hereby amended in its entirety and shall provide as follows: CHAPTER 8.32. SMOKING IN PUBLIC PLACES SEC. 8.32.010. DEFINITIONS. (A) As used in this chapter, the following terms have the respective meanings ascribed to them: (1) 'Bar" or "Cocktail Lounge" means any establishment or place of business in which more than 60% of the annual gross sales is derived from the sale of alcoholic beverages for on- premises consumption and where the serving of food is only incidental to the primary business of serving alcoholic beverages or limited to the provision of free snacks or appetizers, and Ordinance No. c10 0 & ` I q t/ SMOKING IN PUBLIC PLACES Page 3 of ii Final that has its own entrance from the outside, does not share an entrance with a Restaurant or other establishment, and does not have a door or access to a Restaurant or other establishment. (2) "Bar Area" means a counter or similar place within a Restaurant where alcoholic beverages are served to customers. (3) "Bingo Hall" means any premises in which an establishment or organization as its sole or predominant function offers the playing of bingo. A "Non- Profit Private Club" offering the playing of bingo as a secondary function is not a "Bingo Hall." (4) "Enclosed Area" means any area covered by a roof and surrounded by walls, including walls with windows and openings for ingress and egress. (5) "Health Care Facility" means any office or institution providing individual care or treatment of human medical, physiological or psychological illness, other than a hospital, which definition shall include but not be limited to doctor's offices, nursing and convalescent homes and senior citizen residential facilities. (b) "Non- Profit Private Club" means any building, premises or portion thereof which is wholly owned or leased and operated by an organization meeting the requirements of Chapter 501(c) of the United States Internal Revenue Code, as amended. (7) "Person" means any individual, firm, partnership, association, corporation, company or organization of any kind. (8) "Private Membership Club" means an association of people that: (1) grants membership to an applicant after submission of a written application to the club for determination of eligibility and/or approval; (2) owns, leases or rents a building, or a space in a building of such extent and character as is suitable and adequate for the club's membership and their guests; and (3) collects annual membership fees, dues, or other income from its members that defrays a substantial portion of the operating expenses of the club. (9) "Public Conveyance" means any mass transit vehicle or school bus other than a transit system bus, or intrastate bus, as defined by Section 541.201, Transportation Code, plane, or train. Ordinance No. cQ 0 No °-1114 SMOKING IN PUBLIC PLACES Page 4 of 11 Final (10) "Public Meeting" means any gathering or assembly of individuals held in any room or chamber wherein public, civic or governmental business is conducted and which is open to the public either as participants or spectators. (11) "Public Place" means any Enclosed Area to which the public is invited or in which the public is permitted, not including the offices or work areas not entered by the public in the normal course of business or use of the premises. A residence is not a Public Place. (12) "Restaurant" means any structure or premises where the principal activity involves the serving of prepared food on- premises or off - premises, with or without alcohol, where the sales of alcoholic beverages are 60% or less than the annual gross sales of the establishment. Cafeterias and lunch counters are included in this definition, while drive -in eating establishments that do not have indoor seating or dining are not. (13) "Retail Store" means an establishment whose purpose is to offer for sale and sell to consumers, not for resale, goods, wares, merchandise and food, which items are purchased for use and/or consumption off the premises. (14) "Separate Ventilation" means separation by a physical barrier of the area where smoking is allowed from the area where smoking is not allowed. The physical barrier must form an effective membrane continuous from outside wall to outside wall, from smoke barrier to smoke barrier, from floor to floor or roof above, or a combination thereof, including continuity through all concealed spaces, such as above suspended ceilings, interstitial structural and mechanical spaces. Transfer grilles, louvers and similar openings shall not be used in these partitions. Self - closing, tight fitting doors are permitted in such barriers. The ventilation system must be a HVAC system designed by a licensed professional engineer to have a negative pressure on the area designated for smoking to prevent air from a smoking area to be drawn across or into a non - smoking area, provide a total air exchange every 15 minutes and exhaust that air to the exterior of the building. All air ventilation systems shall be tested at least once every six months and a record of such test maintained by the establishment or facility and submitted to the building official or his/her designee when requested. The system shall be operated such that smoke from the area where smoking is allowed does not enter the area where smoking is not allowed. (15) "Service Line" means a line of persons formed for the securing of a service or product on a first -come first- served basis. Ordinance No. dQ004P -'10 SMOKING IN PUBLIC PLACES Page 5 of 11 Final (16) "Smoking" means lighting, burning, inhaling, exhaling, holding or carrying of a lighted Tobacco Product including but not limited to cigarettes, pipes, and any other lighted smoking equipment or device. (17) "Sports Arend' means an indoor facility primarily used for sports, cultural or other similar events. (18) " Theater" means any indoor facility primarily used for the exhibition of any motion picture, stage drama, musical recital, musical concert, dance, lecture or other similar performance. (19) "Tobacco Product" means the product derived from the dried leaves of any one of the various species of nicotine, including but not limited to the species nicotine tabacum, the broad- leafed native American plant, which is utilized for smoking. CHAPTER 8.32. 020. PROHIBITIONS. (A) Smoking is unlawful in the following areas, establishments, forms of public transportation, and Public Places during the hours in which they are open to the public: (1) All areas identified in Texas Penal Code Section 48.01(a), including but not limited to a public primary or secondary school or an elevator, enclosed Theater or movie house, library, museum, hospital, transit system bus, or intrastate bus, (as defined by Section 541.201, Transportation Code), plane, or train which is a public place; (2) Art galleries, and similar cultural facilities; (3) Classrooms and lecture halls; (4) Health Care Facilities, except as otherwise provided in Section 8.32.030(A)(3); (5) Public Conveyances; (6) Public Meetings; (7) Restaurants and Bar Areas within Restaurants, except as otherwise provided in Section 8.32.030(A)(1); (8) Retail Stores; (9) Taxicabs; (10) Service Lines; Ordinance No. *Zoo & _ 14 q SMOKING IN PUBLIC PLACES Page 6 of 11 Final (11) Shopping centers and malls; (12) Sports Arenas; (13) All property owned or leased by the Georgetown Independent School District for school purposes, including but not limited to, school grounds, school buildings, and related facilities; (14) Recreational and /or park areas where no- smoking signs are posted; (15) Within the fenced area of the Creative Playscape; (16) Hotels and motels, except as otherwise provided in Section 8.32.030(A)(4) (17) Bed and Breakfast establishments; (18) Bars or Cocktail lounges, except as otherwise provided in Section 8.32.030(A)(2); (19) On the property of the Georgetown Public Library, including the cafe area and outdoor plazas; (20) Within a building owned, leased, or operated by the City, or within fifteen (15) feet of the entrances /exits or openable windows of such buildings; and (21) Bingo Halls (B) The owner, operator, manager or other person having control of an area, building or place identified in Section 8.32.020(A), above, must conspicuously post the following signs at the following locations: (1) At the public and employee entrances to public places where smoking is prohibited in the entire public place, signs that state "NO SMOKING PERMITTED IN THIS BUILDING" or language substantially similar thereto which indicates smoking is prohibited within the public place, which signs may include, but not be limited to "No Smoking" signs of the international "No Smoking" symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it. (2) At the public and employee entrances to public places in which are located designated smoking areas authorized by this article, signs that read "NO SMOKING EXCEPT IN DESIGNATED SMOKING AREAS" or substantially similar language. Ordinance No. r:R00(s —1411 SMOKING IN PUBLIC PLACES Page 7 of 11 Final (3) At entrances to designated smoking areas allowed by this Chapter, signs that state "SMOKING PERMITTED IN THIS AREA" or substantially similar language; provided that such signs may, be placed only at entrances and not any other location and provided further that such signs shall not exceed one square foot in size. (C) The owner, operator, manager or other person having control of an area, building or place identified in Section 8.32.020(A), above, must: (1) Remove all ash trays, and ash cans, and any other smoking related paraphernalia from any place identified in Section 8.32.020 (A); (2) Within ninety (90) days after the effective date of the ordinance adopting this provision, implement, make known, and maintain a written smoking policy that contains at least the following: (i) a provision indicating that smoking is prohibited in an area, building, or place identified in Section 8.32.020(A) (except for designated smoking areas, if applicable), (ii) a provision stating that no person may provide goods or services or allow goods or services to be provided to a person who is smoking in an area, building or place identified in Section 8.32.020 (A). (3) Post the policy required by Section 8.32.020(C)(2) in one or more conspicuous places accessible to employees, customers, and patrons. Section 8.32. .030 EXEMPTIONS. (A) The following are exemptions to Section 8.32.020(A) and are areas where smoking is not prohibited, unless the area is designated as nonsmoking by the owner, operator, manager or person in control of the establishment or facility: (1) Subject to the additional provisions of Section 8.32.030(B), Bar Areas within a Restaurant in operation on the effective date of this Ordinance, if within 180 days of the effective date of this Ordinance the Bar Area has Separate Ventilation. (2) Subject to the additional provisions of Section 8.32.030(B), Bars or Cocktail Lounges that were in operation on the effective date of this Ordinance with a permit from the Texas Alcoholic Beverage Commission to sell beer, wine, and mixed alcoholic beverages on premises by the drink without the requirement to also serve food. (3) Designated areas of a Health Care Facility, except that hallways and other public areas shall be non - smoking areas. Ordinance No. A00(v ` 141/ SMOKING IN PUBLIC PLACES Page 8 of 11 Final (4) Designated smoking guest rooms in a hotel or motel, provided that the hotel or motel does not designate more than 25% of the guest rooms for rent as smoking rooms, and provided further that hotel and motel lobbies, hallways, an other public areas shall be nonsmoking areas; (5) Non -Profit Private Clubs, except that smoking shall not be allowed at a public event or activity at which any person under the age of 18 is allowed; and (6) Designated areas in Private Membership Clubs. (B) The right to exempt status under Section 8.32.030(A)(1) and (2) shall cease and the owner of the affected establishment shall comply with the provisions of Section 8.32.020 of this Code under any of the following circumstances: (1) Whenever the Bar Area, Bar or Cocktail Lounge is vacated, abandoned, closed for business, or ceases to meet the definition of Bar Area, Bar or Cocktail Lounge, any of which continues for a period of more than thirty (30) consecutive days, except when the premises in which the establishment operates are being repaired, remodeled or expanded, in which case the period is one hundred eighty (180) days. The one hundred eighty (180) day period may be further extended to the period for which a building permit for the work remains valid. (2) Whenever the enclosed areas of a structure in which the Bar Area, Bar or Cocktail Lounge is expanded by more than twenty five percent (25 %) of its original size by the owner or operator; or (3) Whenever there is a change of location of the Bar Area, Bar or Cocktail Lounge. Section 8.32. .040. UNLAWFUL ACTS. (A) A person commits an offense if he: (1) Engages in Smoking in an area designated as prohibited by this Chapter; (2) Fails to post any sign required by this Section 8.32.020(B) of this Chapter; (3) Destroys or defaces a sign posted as required by this Chapter; (4) Fails to take the actions required under Sections 8.32.020(C ) of this Chapter; Ordinance No. AM& ° N d SMOKING IN PUBLIC PLACES Page 9 of 11 Final (5) Fails to install or maintain Separate Ventilation as required by this Chapter; (6) Violates any other provision of this Chapter; (7) Fails to designate no- smoking and smoking areas as required by this Chapter. Section 8.32. .050. ENFORCEMENT. (1) Violations of this chapter shall each constitute a separate offense and shall each be punishable as a Class C misdemeanor and shall each be punishable by a fine not to exceed $500.00 for each day the violation exists. A culpable mental state is not required for a violation of this Chapter and need not be proved. (2) The Chief of Police shall have enforcement authority for this Chapter. (3) The Chief of Police hereby authorizes any City employee conducting an inspection under any provision of the City Code to also inspect for compliance with this Chapter and issue a citation for violation of this Chapter. (4) The Chief of Police may seek injunctive relief to enforce this Chapter. (5) A person may report a violation of this Chapter to the City of Georgetown Police Department. (6) This Section is cumulative of other laws providing enforcement authority. SECTION 3 All Ordinances and Resolutions, or parts of Ordinances and Resolutions that are in conflict with this Ordinance are hereby repealed, and no longer in effect. SECTION 4 If any provisions of this Ordinance or application thereof to any person or circumstance, shall be held invalid, such invalidity shall not affect the other provisions, or applications thereof, of this Ordinance which can be given effect without the invalid provision or application and to this end the provisions of this Ordinance are hereby declared to be severable. SECTION 5 The Mayor of Georgetown is hereby authorized to sign this Ordinance and the City Secretary to attest. This Ordinance shall become effective and be in full force and affect in accordance with the terms of the City Charter. PASSED AND APPROVED on First Reading on the 14th day of November, 2006. Ordinance No. e ° SMOKING IN PUBLIC PLACES Page 10 of 11 Final PASSED AND APPROVED on Second Reading on the 28th day of November, 2006. ATTEST: f+"... Sandra D. Lee City Secretary APPROVED AS TO FORM: Patricia E. Carls City Attorney Ordinance No. eRO O& —/(/I/ SMOKING IN PUBLIC PLACES Page 11 of 11 Final THE CITY F GEORGETOWN: Gary elon Mayor