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
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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
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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
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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.
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(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.
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(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;
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(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.
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(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.
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(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;
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(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.
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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
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THE CITY F GEORGETOWN:
Gary elon
Mayor