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HomeMy WebLinkAboutORD 06-022 ORDINANCE NO. 06-022 ENTITLED AN ORDINANCE ENACTING A NEW CHAPTER FOUR OF THE CODE OF ORDINANCES REGULATING SMOKING IN PUBLIC PLACES; CREATING OFFENSES; PROVIDING PENALTIES; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, numerous studies have found that 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. The National Cancer Institute determined in 1999 that secondhand smoke is responsible forthe early deaths of up to 65,000 Americans annually; and, WHEREAS, the Public Health Service's National Toxicology Program (NTP) has listed secondhand smoke as a known carcinogen; and, WHEREAS, a study of hospital admissions for acute myocardial infarction in Helena Montana, before, during and after a local law eliminating smoking in workplaces and public places was in effect, has determined that laws to enforce smoke-free workplaces and public places may be associated with a reduction in morbidity from heart disease; and, WHEREAS, secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. Children exposed to secondhand smoke have an increased risk of asthma, respiratory infections, sudden infant death syndrome, developmental abnormalities, and cancer; and, WHEREAS, the Americans With Disabilities Act, which requires that disabled persons have access to public places and workplaces,deems impaired respiratory function to be a disability; and, WHEREAS, the U.S. Surgeon General has determined that the simple separation of smokers and nonsmokers within the same airspace may reduce, but does not eliminate, the exposure of nonsmokers to secondhand smoke. The Environmental Protection Agency has determined that secondhand smoke cannot be reduced to safe levels in businesses by high rates of ventilation. Air cleaners, which are only capable of filtering the particulate matter and odors in smoke, do not eliminate the known toxins in secondhand smoke; and, WHEREAS, The 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; and, WHEREAS, a significant amount of secondhand smoke exposure occurs in the workplace. Employees who work in smoke-filled businesses suffer a 25-50% higher risk of heart attack and higher rates of death from cardiovascular disease and cancer, as well as increased acute respiratory disease and measurable decrease in lung function; and, WHEREAS, smoke-filled workplaces result in higher worker absenteeism due to respiratory disease, lower productivity, higher cleaning and maintenance costs, increased health insurance rates, and increased liability claims for diseases related to exposure to secondhand smoke; and, WHEREAS, smoking is a potential cause of fires; cigarette and cigar burns and ash stains on merchandise and fixtures causes economic damage to businesses; and, WHEREAS, the smoking of tobacco is a form of air pollution, a positive danger to health, and a material public nuisance; and, WHEREAS, the purposes of this ordinance are (1) to protect the public health and welfare by prohibiting smoking in public places and places of employment; and, (2) to guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: Section 1. THAT a new Chapter Four be enacted to read as follows: "Chapter 4 SMOKING IN PUBLIC PLACES. ARTICLE I. GENERAL PROVISIONS. Sec. 4-1. Definitions. (1) Employee means any person who is employed in consideration of direct or indirect monetary wages, commissions or profits and any contract employee. Employee includes a person who volunteers for a non-profit entity. (2) Employer means a person that employs the services of one or more individuals. (3) Enclosed Area means a space that is enclosed on all sides by solid impermeable walls that extend from the floor to the ceiling, inclusive of windows and doors. (4) Fraternal Organization means a nonprofit organization that: (a) is chartered by a national organization in existence since 1953; (b) is tax exempt under Section 501(c)(8), (10), or (19) of the Internal Revenue Code; (c) operates under a lodge system with a representative form of government; and, (d) is organized for the exclusive benefit of the members of the organization and their dependents. (5) Operator means the owner or person in charge of a public place or workplace, including an employer. (6) Public Place means an enclosed area or any portion thereof that is accessible by the public or which the public is admitted by general invitation or that is an enclosed workplace. (7) Private Club means any building, premise or portion thereof which is permitted by the state as a private club for the storing, possession an dispensing for on premises consumption of alcoholic beverages. The term "private club" additionally includes a premise operated by an organization which is not available to and not customarily used by the general public and entry and privileges thereto are established by regulations of that organization distinct from a Texas Alcohol and Beverage private club membership. (8) Retail Tobacco Store means a retail store used primarily for the sale of tobacco products and accessories and in which the sale of other non- tobacco products is incidental. (9) Smoke or Smoking means to inhale or exhale smoke from or to light, hold, or carry a lighted tobacco or tobacco like product such as cigarettes, cigars, pipes, or other such device used for smoking. (10) Workplace means an enclosed area under the control of a public or private employer in which employees work or have access during the course of their employment. Sec. 4-2. Smoking Prohibited. (A) A person commits an offense if the person smokes in an enclosed public place within the City of Beaumont. (B) A person commits an offense if the person smokes in an enclosed area in a building or facility owned, leased, or operated by the City. (C) A person commits an offense if the person smokes in an enclosed area of a workplace. (D) Except as provided in Section 4-10 (Outdoor Distance Exception) a person commits an offense if the person smokes within a distance of twenty-five feet(25')from a primary public pedestrian entrance to or an operable window of an enclosed area in which smoking is prohibited. (E) The owner, operator or other person in control of a public place commits an offense if the person fails to take reasonable steps to prevent or stop another person from smoking in an enclosed area in a public place. (F) A person commits an offense if the person smokes in the seating area of an outdoor arena, stadium or amphitheater. Sec. 4-3. Signs Required. (A) The owner, operator, or other person in control of a public place orworkplace where smoking is prohibited shall conspicuously post a sign at each entrance to the premises clearly stating that smoking is prohibited on the premises or is only permitted in designated areas of the premises. (B) The owner, operator, or other person in control of a public place shall conspicuously post signs in areas where smoking is permitted under Article II (Exceptions). (C) A sign posted under this section shall include the telephone number at the Public Health Department where a person may call to make a complaint under this chapter. (D) It is an affirmative defense to prosecution under this chapter that an owner, operator, or other person in control of the premises failed to post a sign required under this section. Sec. 4-4. Employer Responsibilities. (A) Except as provided in Subsection (B), an employer shall provide a smoke- free workplace for employees. (B) If an employer requires employees to work in an area described in Article II (Exceptions), the employer shall make reasonable accommodations for an employee who requests assignment to a smoke-free area. (C) An employer shall notify each employee and applicant for employment in writing that: (1) smoking in the workplace is prohibited; or (2) smoking is only permitted in designated areas of the workplace under Article II (Exceptions). Sec. 4-5. Removal of Ashtray or Smoking Accessory. The owner, operator, or other person in control of a public place and an employer shall remove any ashtray or other smoking accessory from a place where smoking is prohibited. Sec. 4-6. Voluntary Designation of a Non-Smoking Facility. Nothing in this chapter implies that the owner, operator, or other person in control of an outdoor public place is prohibited from designating the entire facility as non-smoking. Smoking shall be prohibited in any place in which a sign conforming to the requirements of Section 4-3 is posted. Sec. 4-7. Public Education. (A) The city manager or his designee shall: (1) develop a comprehensive tobacco education program to educate the public about the harmful effects of tobacco and its addictive qualities; (2) conduct informational activities to notify and educate businesses and the public about this chapter; and, (3) coordinate the City's tobacco education program with other civic or volunteer groups organized to promote smoking prevention and tobacco education. (B) To implement this section, the city manager or his designee may publish and distribute educational materials relating to this chapter to businesses, their employees, and the public. Sec. 4-8. Application of Other Law. This chapter is cumulative of other laws that regulate smoking. ARTICLE II. EXCEPTIONS Sec. 4-9. General Exceptions. This chapter does not apply to: (1) a dwelling unit, as defined in Section 30-4(b)(20), that is used exclusively for private residential use; (2) a hotel or motel room that is ordinarily used for sleeping and is designated as a smoking room, except that no more than twenty-five percent (25%) of the rooms in a hotel or motel rented to guests may be designated as smoking rooms; (3) a retail tobacco store that is mechanically ventilated to prevent smoke from entering a non-smoking area; (4) a facility operated by a fraternal organization for a charitable, benevolent, or educational function if the facility is controlled by the organization and operated exclusively for the benefit of the membership; (5) an outdoor area of a public place that is not in the area described by Subsection 4-2(D) (Smoking Prohibited); (6) private clubs; (7) outdoor areas of workplaces except as provided for by the provisions of Sections 4-2(D) or 4-10; and, (8) participants in an authorized theatrical performance. Sec. 4-10. Outdoor Distance Exception. A person may smoke within twenty-five feet (25') of an entrance to a restricted smoking facility if: (1) the entrance is not a primary public pedestrian entrance to the premises; or (2) the distance between the entrance and the adjacent roadway is less than twenty-five feet (25'). ARTICLE Ill. PENALTIES AND ENFORCEMENT Sec. 4-11. Retaliation Prohibited. A person commits an offense if the person discharges, refuses to hire, or retaliates against a customer, employee, or applicant for employment because the customer, employee, or applicant for employment reports a violation of this chapter. Sec. 4-12. Enforcement. (A) This section is cumulative of other laws providing enforcement authority. (B) A person may report a violation of this chapter to the director of the Public Health Department or his/her designee. (C) The city manager or his designee may authorize a city employee conducting an inspection under any provision of the Code to also inspect for compliance with this chapter and issue a citation for a violation of this chapter. (D) The director of the Public Health Department or his/her designee may enforce this chapter and may seek injunctive relief. Sec. 4-13. Enforcement Guidelines. The city manager or his designee shall adopt enforcement guidelines applicable to this chapter. Sec. 4-14. Violation and Penalty. (A) A person who violates the provisions of this chapter commits a Class C misdemeanor, punishable under Section 1-8 (General Penalty) by a fine not to exceed Five Hundred Dollars ($500). A culpable mental state is not required for a violation of this chapter, and need not be proved. (B) Each day an offense occurs is a separate violation." Section 2. That if any section, subsection, sentence, clause or phrase of this ordinance, or the application of same to a particular set of persons or circumstances should for any reason be held to be invalid, such invalidity shall not affect the remaining portions of this ordinance, and to such end the various portions and provisions of this ordinance are declared to be severable. Section 3. That all ordinances or parts of ordinances in conflict herewith are repealed to the extent of the conflict only. Section 4. This Ordinance shall be effective from and after August 1, 2006. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 25"day of April, 2006. Mayor Guy N. Goodson - IV l - , IcZ w` (P r