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HomeMy WebLinkAboutPO 6556: AMENDING CHAPTER 39 OF THE CODE OF ORD. AS IT PERTAINS TO REGULATING SMOKING IN PUBLIC PLACES (REQUESTED BY COUNCILMEMBER SWATI) P.O. No. 6556 05/26/16 vrt/gt ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 39 OF THE CODE OF ORDINANCES AS IT PERTAINS TO REGULATING SMOKING IN PUBLIC PLACES (REQUESTED BY COUNCILMEMBER SWATI) WHEREAS, on April 5, 2016, the City Council passed Ordinance No. 16-25 enacting a new Chapter 39 of the Code of Ordinances regulating smoking in public places; and WHEREAS, Ordinance No. 16-25 became effective on May 9, 2016; and WHEREAS, Councilmember Swati has requested that the City Council amend Chapter 39 of the Code or Ordinances, as delineated in Exhibit "A" attached hereto. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR, TEXAS: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That Chapter 39 is hereby amended, as delineated in Exhibit "A". Section 3. That this ordinance shall be effective immediately after the date of publication. Section 4. That all ordinances, resolutions, or parts thereof, that are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provision of this Ordinance shall be and remain controlling as to the matters regulated, herein. s.po6556 Section 5. That should any of the clauses, sentences, paragraphs, sections or parts of this Ordinance be deemed invalid, unconstitutional, or unenforceable by a court of law or administrative agency with jurisdiction over the matter, such action shall not be construed to affect any other valid portion of this Ordinance. Section 6. That the City Secretary is hereby directed to record and publish the attached rules, regulations, and policies in the City's Code of Ordinances as authorized by Section 52.001 of the Texas Local Government Code. Section 7. That a copy of this Ordinance be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of A.D., 2016, at a Regular Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor: , Councilmembers: NOES: . Mayor ATTEST: City Secretary APPROVED AS TO FORM: City Attorney i APPROVED FOR ADMINISTRATION: City Manager EXHIBIT"A" Sec.1.Definitions The following words and phrases,whenever used in this Article,shall be construed as defined in this Section: A. "Bar"means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of those beverages, including but not limited to, taverns,nightclubs, cocktail lounges,and cabarets. The annual alcoholic sales in such establishments shall comprise of 51%of their total annual sales. B. "Business"means a sole proprietorship,partnership,joint venture, corporation,or other business entity, either for-profit or not-for-profit, including retail establishments where goods or services are sold; professional corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered;and private clubs. C. "Electronic Smoking Device" means any product containing or delivering nicotine or any other substance intended for human consumption that can be used by a person to simulate smoking through inhalation of vapor or aerosol from the product.The term includes any such device,whether manufactured, distributed,marketed, or sold as an e-cigarette,e-cigar,e-pipe,e-hookah,or vape pen,or under any other product name or descriptor. D. "Employee"means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit,and a person who volunteers his or her services for a non-profit entity. E. "Employer"means a person,business,partnership,association,corporation,including a municipal corporation, trust,or non-profit entity that employs the services of one or more individual persons. F. "Enclosed Area"means all space between a floor and a ceiling that is bounded on at least two sides by walls, doorways,or windows,whether open or closed. A wall includes any retractable divider,garage door,or other physical barrier,whether temporary or permanent and whether or not containing openings of any kind. G. "Health Care Facility"means an office or institution providing care or treatment of diseases,whether physical, mental,or emotional,or other medical,physiological,or psychological conditions, including but not limited to, hospitals, rehabilitation hospitals or other clinics, including weight control clinics, nursing homes, long-term care facilities, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, psychiatrists, dentists, and all specialists within these professions. This definition shall include all waiting rooms,hallways,private rooms,semiprivate rooms,and wards within health care facilities. H. "Hookah" means a water pipe and any associated products and devices which are used to produce fumes, smoke, and/or vapor from the burning of material including,but not limited to,tobacco, shisha,or other plant matter. I. "Place of Employment" means an area under the control of a public or private employer, including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, construction sites, temporary offices, and vehicles. A private residence is not a"place of employment"unless it is used as a child care,adult day care,or health care facility. J. "Playground"means any park or recreational area designed in part to be used by children that has play or sports equipment installed or that has been designated or landscaped for play or sports activities,or any similar facility located on public or private school grounds or on City of Port Arthur grounds. K. "Private Club"means an organization,whether incorporated or not,which is the owner,lessee,or occupant of a building or portion thereof used exclusively for club purposes at all times, which is operated solely for a recreational,fraternal,social,patriotic,political,benevolent,or athletic purpose,but not for pecuniary gain,and annual meeting. The organization has established bylaws and/or a constitution to govern its activities. The organization has been granted an exemption from the payment of federal income tax as a club under 26 U.S.C. Sec apy building premises or portion thereof which is permitted by the State as a private club for the -_-.- {Formatted:Font:(Default)Times New Roman storing,possession and dispensing for on premise consumption of alcoholic beverages as more so defined in the Alcoholic Beverage Code Sec. 32.03. The term "private club" additionally includes premises operated by an organization which are 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 the State alcoholic beverage code definition of private club membership. L. "Public Event"means an event which is open to and may be attended by the general public, including but not limited to, such events as concerts, fairs, farmers' markets, festivals, parades, performances, and other exhibitions,regardless of any fee or age requirement. M. "Public Place" means an area to which the public is invited or in which the public is permitted, including but not limited to, banks, bars, educational facilities, gambling facilities, health care facilities, hotels and motels, laundromats,parking structures,public transportation vehicles and facilities,reception areas,restaurants,retail food production and marketing establishments,retail service establishments,retail stores,shopping malls,sports arenas,theaters,and waiting rooms.A private residence is not a"public place"unless it is used as a child care, adult day care,or health care facility. N. "Recreational Area"means any public or private area open to the public for recreational purposes, whether or not any fee for admission is charged, including but not limited to, amusement parks, athletic fields, beaches, fairgrounds,gardens,golf courses,parks,plazas,skate parks,swimming pools,trails,and zoos. 0. "Restaurant" means an eating establishment, including but not limited to, coffee shops, cafeterias, sandwich stands, and private and public school cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere.The term"restaurant"shall include a bar area within the restaurant. P. "Service Line"means an indoor or outdoor line in which one(1)or more persons are waiting for or receiving service of any kind,whether or not the service involves the exchange of money, including but not limited to, ATM lines,concert lines,food vendor lines,movie ticket lines,and sporting event lines. Q. "Shopping Mall"means an enclosed or unenclosed public walkway or hall area that serves to connect retail or professional establishments. R. "Smoking"means inhaling,exhaling,burning,or carrying any lighted or heated cigar,cigarette,or pipe,or any other lighted or heated tobacco or plant product intended for inhalation, including hookahs and marijuana, whether natural or synthetic, in any manner or in any form. "Smoking"also includes the use of an electronic smoking device which creates an aerosol or vapor,in any manner or in any form,or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking in this Article. S. "Sports Arena"means a place where people assemble to engage in physical exercise,participate in athletic competition,or witness sports or other events,including sports pavilions,stadiums,gymnasiums,health spas,boxing arenas,swimming pools,roller and ice rinks,and bowling alleys. T. "Fraternal Organizations"A non-profit organization that: (1)Is chartered by a national organization in existence since 1953; - Formatted:Indent:Left: 0.25', No bullets or (2)Is tax exempt under section 501(c)(8),(10),or(19) of the Internal Revenue Code; numbering (3)Operates under a lodge system with a representative form of government;and Formatted:List Paragraph,Indent:Left: i )Is organized for the exclusive benefit of the members of the organization and their dependents. 0.25', No bullets or numbering,Tab stops:Not at 0.28"+ 0.5' fFormatted:Font color:Red 14,_"501(c)(3)Organizations"-is an organization that: ' Formatted:Indent:Left: 0",First line: 0" Is exempt under Section01(c)(3)of the Internal Revenue Coder Formatted:Font:(Default)Times New II Roman,Font color:Red Formatted:Font:(Default)Times New Roman,Font color:Red Sec.2.Application of Article to City-Owned Facilities and Property All enclosed areas, including buildings and vehicles owned, leased, or operated by the City of Port Arthur,as well as all outdoor property adjacent to such buildings and under the control of the City of Port Arthur,shall be subject to the provisions of this Article. • Sec.3.Prohibition of Smoking in Enclosed Public Places Smoking shall be prohibited in all enclosed public places within the City of Port Arthur, including but not limited to,the following places: A. Aquariums,galleries,libraries,and museums. B. Areas available to the general public in businesses and non-profit entities patronized by the public, including but not limited to,banks,laundromats,professional offices,and retail service establishments. C. Bars. IAC. Bingo facilities. ED. Child care and adult day care facilities. lE. Convention facilities. 6.F. Educational facilities,both public and private. ISG. Elevators. LH. Gambling facilities. I_Health care facilities. IBJ. Hotels and motels. L:K. Lobbies, hallways, and other common areas in apartment buildings, condominiums, trailer parks, retirement facilities,nursing homes,and other multiple-unit residential facilities. M L. Parking structures. ISM. Polling places. AN. Public transportation vehicles, including buses and taxicabs, under the authority of the City of Port Arthur, and ticket, boarding, and waiting areas of public transportation facilities, including bus, train, and airport facilities. P O. Restaurants. Q P. Restrooms,lobbies,reception areas,hallways,and other common-use areas. RA). Retail stores. S R. Rooms, chambers,places of meeting or public assembly, including school buildings,under the control of an agency,board,commission,committee or council of the City of Port Arthur or a political subdivision of the State,to the extent the place is subject to the jurisdiction of the City of Port Arthur. Service lines. iT. Shopping malls. Sports arenas,including enclosed places in outdoor arenas. WV. Theaters and other facilities primarily used for exhibiting motion pictures, stage dramas, lectures, musical recitals,or other similar performances. Sec.4.Prohibition of Smoking in Enclosed Places of Employment A. Smoking shall be prohibited in all enclosed areas of places of employment with the exception to the exemptions listed in Section 8 of this Article.out exception. This includes, without limitation, common work areas, auditoriums,classrooms,conference and meeting rooms,private offices,elevators,hallways,medical facilities, cafeterias,employee lounges,stairs,restrooms,vehicles,and all other enclosed facilities. B. This prohibition on smoking shall be communicated to all existing employees by the effective date of this Article and to all prospective employees upon their application for employment. Smoking shall be prohibited in all private clubs. Sec.65.Prohibition of Smoking in Enclosed Residential Facilities Smoking shall be prohibited in the following enclosed residential facilities: A. All private and semi-private rooms in nursing homes. B. All hotel and motel guest rooms. Sec.7.6 Prohibition of Smoking in Outdoor Public Places Smoking shall be prohibited in the following outdoor places: A. Within a reasonable distance of twenty-five (25) feet outside entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited, so as to prevent tobacco smoke from entering those areas. B. In, and within fifteen (15) feet of, outside entrances, operable windows, and ventilation systems of enclosed €B. In outdoor shopping malls,including parking structures. 147C. In all outdoor arenas, stadiums, and amphitheaters. Smoking shall also be prohibited in, and within twenty-five(25)feet of,bleachers and grandstands for use by spectators at sporting and other public events. D. In outdoor recreational areas,including parking lots. F E. In,and within twenty-five(25)feet of,all outdoor playgrounds. fr.F. In,and within twenty-five(25)feet of,all outdoor public events. ISG. In,and within twenty-five(25)feet of,all outdoor public transportation stations,platforms,and shelters under the authority of the City of Port Arthur. I H. In all outdoor service lines, including lines in which service is obtained by persons in vehicles, such as service that is provided by bank tellers, parking lot attendants, and toll takers. In lines in which service is obtained by persons in vehicles, smoking is prohibited by both pedestrians and persons in vehicles, but only within twenty-five(25)feet of the point of service. 34.In outdoor common areas of apartment buildings, condominiums, trailer parks, retirement facilities, nursing homes,and other multiple-unit residential facilities,except in designated smoking areas,not to exceed twenty- five percent (25%) of the total outdoor common area, which must be located at least twenty-five (25) feet outside entrances,operable windows,and ventilation systems of enclosed areas where smoking is prohibited. Sec.87.Where Smoking Is Not Regulated Notwithstanding any other provision of this Article to the contrary, smoking shall not be prohibited in private residences,unless used as a childcare,adult day care,or health care facility. Smoking shall not be prohibited in Bars as defined in Section 1.A; Smoking shall not be prohibited in Private clubs as defined in Section 1.K; A variance may be provided for PRIVATE fundraising.events that are held throughout_the_year for ,..-{Formatted:Font:Italic 501(c)(3)organizations-as defined in Section 1.U. Said organizations are eligible to apply for a permit to be issued by the Health Inspector or Senior Sanitarian. Upon issuance of the permit, smoking shall not be prohibited during the private fundraising event.This variance may only be granted to eligible 501 (c)(3)organizations and is limited to four(4)days per calendar year. Sec.98.Declaration of Establishment or Outdoor Area as Nonsmoking Notwithstanding any other provision of this Article, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility,or outdoor area as a nonsmoking place.Smoking shall be prohibited in any place in which a sign conforming to the requirements of Section 12(A)is posted. Sec.4-09.Posting of Signs and Removal of Ashtrays The owner,operator,manager,or other person in control of a place of employment,public place, private club,or residential facility where smoking is prohibited by this Article shall: A. Clearly and conspicuously post"No Smoking"signs or 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)in that place. B. Clearly and conspicuously post at every entrance to that place a sign stating that smoking is prohibited or,in the case of outdoor places, clearly and conspicuously post "No Smoking" signs in appropriate locations as determined by the City of Port Arthur City Manager,or whom he/she designates as an authorized designee. C. Clearly and conspicuously post on every vehicle that constitutes a place of employment under this Article at least one sign,visible from the exterior of the vehicle,stating that smoking is prohibited. D. Remove all ashtrays from any area where smoking is prohibited by this Article, except for ashtrays displayed for sale and not for use on the premises. E. Posting of signs described in Section 11 must be clearly and conspicuously posted by the sixth (60) day following the date of this Articles adoption. Sec.-1410.Non-retaliation;Non-waiver of Rights No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, customer, or resident of a multiple-unit residential facility because that employee,applicant,customer,or resident exercises any rights afforded by this Article or reports or attempts to prosecute a violation of this Article. A. An employee who works in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other party. Sec. -211.Enforcement A. This Article shall be enforced by the City of Port Arthur City Manager, or whom he/she designates as an authorized designee as it pertains to buildings and facilities owned by the City of Port Arthur. B. Any citizen who desires to register a complaint under this Article may initiate enforcement with the City of Port Arthur City Manager,or whom he/she designates as an authorized designee. C. The Health Department, Fire Department, Inspections Divisions, or other designees shall, while an establishment is undergoing otherwise mandated inspections,inspect for compliance with this Article. D. An owner, manager, operator, or employee of an area regulated by this Article shall direct a person who is smoking in violation of this Article to extinguish or turn off the product being smoked. If the person does not stop smoking, the owner, manager, operator, or employee shall refuse service and shall immediately ask the person to leave the premises. If the person in violation refuses to leave the premises, the owner, manager, operator,or employee shall contact a law enforcement agency. E. Notwithstanding any other provision of this Article, an employee or private citizen may bring legal action to enforce this Article. F. In addition to the remedies provided by the provisions of this Section,the City of Port Arthur City Manager,or whom he/she designates as an authorized designee or any person aggrieved by the failure of the owner, operator, manager, or other person in control of a public place or a place of employment to comply with the provisions of this Article may apply for injunctive relief to enforce those provisions in any court of competent jurisdiction. Sec.1312.Violations and Penalties A. A person who smokes in an area where smoking is prohibited by the provisions of this Article shall be guilty of an infraction,punishable by a fine not exceeding fifty dollars($50). B. Except as otherwise provided in Section 13(A),a person who owns,manages,operates,or otherwise controls a public place or place of employment and who fails to comply with the provisions of this Article shall be guilty of an infraction,punishable by: 1. A fine not exceeding one hundred dollars($100)for a first violation. 2. A fine not exceeding two hundred dollars($200)for a second violation within one(1)year. 3. A fine not exceeding five hundred dollars($500)for each additional violation within one(1)year. C. In addition to the fines established by this Section, violation of this Article by a person who owns, manages, operates,or otherwise controls a public place or place of employment may result in the suspension or revocation of any permit or license issued to the person for the premises on which the violation occurred. D. Violation of this Article is hereby declared to be a public nuisance, which may be abated by the City of Port Arthur City Manager, or whom he/she designates as an authorized designee by restraining order, preliminary and permanent injunction,or other means provided for by law,and the City of Port Arthur may take action to recover the costs of the nuisance abatement. E. Each day on which a violation of this Article occurs shall be considered a separate and distinct violation. Sec.4413.Public Education The City of Port Arthur City Manager, or whom he/she designates as an authorized designee shall engage in a continuing program to explain and clarify the purposes and requirements of this Article to citizens affected by it,and to guide owners,operators,and managers in their compliance with it.The program may include publication of a brochure for affected businesses and individuals explaining the provisions of this ordinance. Sec.4-M4.Governmental Agency Cooperation The City of Port Arthur City Manager, or whom he/she designates as an authorized designee shall annually request other governmental and educational agencies having facilities within the Jefferson County, Texas, preferably within City of Port Arthur to establish local operating procedures in cooperation and compliance with this Article.This includes urging all Federal,State,County,City,and School District agencies to update their existing smoking control regulations to be consistent with the current health findings regarding secondhand smoke.