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HomeMy WebLinkAboutOrdinance - 2001-O0060 - Smoking In Public Places - 07/12/2001First and Final Reading July 12, 2001 Item No. 45 ORDINANCE NO. 2001-00060 AN ORDINANCE AMENDING CHAPTER 12 OF THE CODE OF ORDINANCES OF THE CITY OF LUBBOCK, TEXAS, WITH REGARD TO PUBLIC HEALTH BY AMENDING ARTICLE IX PERTAINING TO SMOKING IN PUBLIC PLACES; REGULATING SMOKING IN WORK PLACES; REGULATING TOBACCO SALES OR SAMPLES TO MINORS; PROVIDING A PENALTY; PROVIDING A SAVINGS CLAUSE; AND PROVIDING FOR PUBLICATION. WHEREAS, the Environmental Protection Agency (EPA) has classified Environmental Tobacco Smoke (ETS) as a Group A (known human) carcinogen, a category reserved for only the most toxic of compounds regulated by the EPA, such as radon, asbestos, and benzene (US EPA, 1992); and WHEREAS, the EPA has determined that ETS is causally associated with between 150,000 to 300,000 cases of lower respiratory tract infections, such as bronchitis and pneumonia, in children up to 18 months of age; and WHEREAS, the U.S. Department of Health and Human Services estimates that more than 90 percent (90%) of the current smokers began smoking as children or adolescents and that each day another 3,000 children begin smoking in the United States; and WHEREAS, the City Council of the City of Lubbock recognizes on the basis of the EPA report and many other sources that Environmental Tobacco Smoke has come to be recognized as a health hazard to the general public, particularly in confined spaces; and WHEREAS, it is the desire of the City Council of the City of Lubbock to balance the interest of smokers against the potential health hazard to non-smokers in a manner that will result in the minimum possible burden on those persons regulated while still meeting the duty to protect the public's health; and WHEREAS, the City Council of the City of Lubbock finds it is in the best interest of the health, safety and welfare of the citizens of the City of Lubbock to maintain and enhance the current restrictions on smoking by limiting smoking in public places to areas specifically designated for smoking and to regulate tobacco products; and WHEREAS, THE City Council of the City of Lubbock finds that the need to protect the public health of the citizens of Lubbock creates an emergency requiring passage of this ordinance as an emergency on one reading as provided by the Charter of the City of Lubbock; NOW THEREFORE: BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: SECTION 1. THAT Article IX of Chapter 12 of the Code of Ordinances of the City of Lubbock, Texas, BE and is hereby amended to read as follows: ARTICLE IX. SMOKING IN PUBLIC PLACES; REGULATION OF TOBACCO PRODUCTS DIVISION 1. IN GENERAL Sec. 12-245. Definitions. For the purpose of this article, the following definitions shall apply: (1) Bar or cocktail lounge means a place where mixed alcoholic beverages are sold for consumption on the premises as the primary business activity as defined by the zoning ordinance of the city. (2) Common traffic area means an area within a building primarily used for the unobstructed passage of pedestrian traffic through the building. (3) Designated smoking area means a designated area, which shall: (a) Be a physically enclosed area as designated in Section 12-245(4), separated from non-smoking areas; and (b) Be ventilated with a separate heating, ventilation, and air conditioning (HVAC) system as defined in Section 12-245(8); and (4) Enclosed or enclosed area means all space between a floor and ceiling, which is enclosed on all sides by solid walls or windows, which extend from the floor to the ceiling, including a door which remains closed at all times, except when used for entry or exit. Spaces screened by partitions, which do not extend to the ceiling or are not solid, office landscaping or similar structures are not considered enclosed areas. (5) Employee means any person who is employed by an employer in consideration for monetary compensation or profit. (6) Employer means any person, partnership, corporation, association or other entity that employs one (1) or more persons. (7) Fast-food restaurant means a food establishment with (a) a limited fast-food only menu; and (b) no waitstaff (counterstaff allowed); and (c) a passout window for delivery of food to be consumed off premises (a passout window is not necessary if the establishment is located within a shopping center as defined in the city zoning ordinance). The term "fast-food restaurant" does not include cafeterias or establishments where beverages must be consumed on premises. 2 (8) HVAC means a separate heating, ventilation, and air conditioning system such that air from the smoking area is exhausting directly to the outside and not circulated within the building or mixed with the general dilution ventilation for the building and that creates a negative pressure away from the door into the room sufficient to prevent any flow of smoke from the smoking area to the non- smoking area. Such system shall supply a minimum of thirty cubic feet per minute (30 CFM) outdoor air exchange per person and be under negative pressure. (9) Place of employment means an enclosed area controlled by any employer, but not used by the general public, and to which employees have access during the course of employment, including but not limited to, work areas, employee lounges, employee restrooms, conference rooms, and employee cafeterias. The term does not include a private residence, unless it is used as a child care, adult care or health care facility. (10) Public meeting means a meeting open to the public and held in an enclosed area of a public space. (11) Public place or public area means an enclosed area that is used by the general public, to which the public is invited or in which the public is permitted and includes, but is not limited to: (a) All enclosed facilities, including buildings and vehicles owned, leased or controlled by the City of Lubbock; (b) All or any part of a building used for local governmental purposes; (c) A retail store, office, service establishment or other commercial establishment; (d) A grocery store; (e) A restaurant, cafeteria, delicatessen, commissary, or mobile food unit; (f) A public primary or secondary school, a public institution of higher education, or any other educational facility; (g) A restroom; (h) An enclosed theater, movie house, auditorium, arena, music hall, lecture hall, or other performing arts venue; (i) An elevator; 0) A library, museum, gallery, or aquarium; Q (k) A health care facility or hospital; (1) A child care nursery; (m) A court room or a jury waiting or deliberation room; (n) A recreational facility; (o) A service line, cashier area, over-the-counter sales area, or common traffic area; (p) Sports arenas, stadiums, and convention halls, including bowling facilities and other indoor recreational facilities; (q) A lobby, hallway or other common area in apartment buildings, condominiums, trailer parks, retirement facilities, adult care facilities, nursing homes or other multiple -unit residential facilities; (r) A polling place; (s) A public plane or train (t) A transit system bus or interstate bus, taxicab, or any other public transport; (u) A public transportation facility, including ticket, boarding and waiting areas of public transit depots; (v) A lobby, reception area, waiting area, hallway, or other common -use area; (w) A retail food production and marketing facility; (x) All areas available to, and customarily used by, the general public in all businesses and non-profit entities patronized by the public, including, but not limited to, attorneys' offices and other offices, not otherwise exempted herein, banks, laundromats, hotels and motels; (y) The public areas of a fast-food restaurant. (12) Restaurant means a food establishment where the primary business is the preparation and sale of food as defined by the zoning ordinance of the city. (13) Retail tobacco store means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental. 0 (14) Service line means any indoor line in which one (1) or more persons are waiting for, or receiving, service of any kind, whether or not such service involves the exchange of money. (15) Single pack means any cigarette, cigar, tobacco or smokeless tobacco product sold in less than carton or equivalent units. (16) Smoke, smokes, or smoking includes: (a) Carrying or holding a lighted pipe, cigar or cigarette of any kind or any other lighted smoking equipment or device; (b) The combustion of any cigar, cigarette, tobacco or any similar article or any other combustible substance in any manner or in any form; (c) Emitting or exhaling the smoke of a pipe, cigar or cigarette of any kind. (17) Sports arena means indoor sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys, and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition or witness sports events. (18) Sports grill means an establishment as defined by the zoning ordinance of the city. Sec. 12-246. Offense; enforcement. (a) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this article to fail to comply with any of its provisions. (b) It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this article. (c) A person commits an offense if, at a public meeting or in a public place at an area not designated as a smoking area, the person smokes and fails or refuses to extinguish smoking materials or move to a designated smoking area upon a request by any person to do so. (d) The proprietor or person in charge of a business or other public place commits an offense if: (1) The proprietor or person in charge allows smoking, but fails to comply with the requirements of this article as to designation of a smoking area, including the posting of signs; or 5 (2) The proprietor or person in charge fails or refuses upon the request of any person to ask a person smoking while not in a designated smoking area to extinguish smoking materials or move to a designated smoking area. (e) This article does not require the owner, operator, manager, or any employee of an establishment to report a violation of this article or to take legal action against any individual violating this article. (f) The Environmental Inspection Services Department shall inspect for compliance with this ordinance. (g) Any owner, manager, operator or employee of any establishment regulated by this article shall inform personnel violating this article of the appropriate provisions thereof. DIVISION 2. SMOKING IN PUBLIC PLACES Sec. 12 —247a. Smoking Prohibited; Permitted in Designated Areas. (a) Smoking is prohibited in all enclosed public places within the City of Lubbock, except in designated smoking areas as defined in Section 12-245(3), and as otherwise allowed in this article. (b) Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility may declare the entire establishment or facility a non-smoking establishment. (c) In the event a public place has common areas not the responsibility of individual tenants, the building owner or his representative shall be responsible for application of this article to such common areas. (d) A smoking area may not be designated in: (1) A facility of a public, primary or secondary school; (2) An elevator; (3) An enclosed theater or movie house, auditorium, music hall, lecture hall, or other performing arts venue; (4) A library, museum, gallery, or aquarium; (5) A hospital; (6) A transit system bus or interstate bus, taxicabs, or any other public transport; ,: (7) A public plane or train; (8) A service line, cashier area, over-the-counter sales area, or other common traffic area; (9) A restroom; (10) A lobby, reception area, waiting room, hallway, or any other common -use area; (11) The ticket, boarding, and waiting areas of public transit depots; (12) Any room, chamber, place of meeting or public assembly under the control of any board, council, commission, committee, including joint committees or agencies of the city or any political subdivision of the State during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the City; (13) Health facilities, including, but not limited to waiting rooms, hallways, wards, and semiprivate rooms, clinics, physical therapy facilities, doctors offices, and dentists offices; (14) The lobbies, hallways and other common areas, in apartment buildings, condominiums, trailer parks, retirement facilities, adult care facilities, nursing homes, and other multiple -unit residential facilities; (15) A polling place; (16) The public areas of a fast-food restaurant; (17) An area within twenty (20) feet of an entrance to any enclosed area where smoking is prohibited; or (18) A place in which smoking is prohibited by the fire marshal or by any other law, ordinance or regulation. Sec. 12-247b. Exceptions. places: The prohibitions against smoking contained herein shall not apply to the following (1) To any facility including, but not limited to, restaurants, hotel, and motel conference or meeting rooms, and public and private assembly rooms in which one or more private functions are being held and which are under the control of the sponsor of the function and not the owner or operator of the facility, so long 7 as the area being used for the private function qualifies as a designated smoking area as defined under Section 12-245(3) hereinabove; (2) To performing arts venues, but only by a performer participating in a theatrical performance; (3) To a bar or cocktail lounge, as defined by the zoning ordinance of the City of Lubbock; (4) To a retail tobacco store, however, this exception shall not apply to an establishment that shares a common HVAC system with any other tenant in the same building in which the retail tobacco store is located; (5) To private clubs, which are owned by their members; (6) To sports grills, as defined in the zoning ordinance of the city; (7) To private residences, except when used as a childcare, adult day care, health care facility, or other place of employment; (8) To designated smoking hotel and motel rooms rented to guests; (9) To outdoor areas or outdoor places of employment; (10) To an outdoor dining area that is at least twenty (20) feet from, or separately walled from, gatherings of non-smokers and which does not require employees or members of the public to walk through it upon entering the restaurant and which is properly posted with signage; (11) To restaurants, as defined in Section 12-245(12); places of employment as defined in Section 12-245(9); or public places as defined in Section 12-245(11) where it is not otherwise prohibited to designate a smoking area. It shall be a requirement for the application of this subsection that the restaurant, public place, or place of employment has designated smoking areas, as defined in Section 12- 245(3), has complied with all requirements for the establishment of a designated smoking area, as provided in this ordinance, and has petitioned the city for, and been granted, a permit to allow smoking. A proprietor or person in charge of a restaurant, public place or place of employment who desires to permit smoking shall designate an area not to exceed thirty percent (30%) of the allowable area as the smoking area. The proprietor or person in charge shall locate the designated smoking area so that non-smokers shall not have to travel through the smoking area to get to the cashier, a restroom or non-smoking area. A proprietor or person in charge shall file a petition with the Environmental Inspection Services Department demonstrating proof of the percentage of the allowable area designated as a smoking area; the petition shall be filed not later than ninety (90) days after the effective date of this ordinance, and annually thereafter. Prior to July 22, 2004, any new or transferred restaurants, places of employment or public places where it is not otherwise prohibited to designate a smoking area, shall be allowed ninety (90) days from the issuance of a certificate of occupancy for a new building or from the date of property transfer to file for a permit to allow smoking. Within three (3) years after the effective date of this ordinance, all restaurants, places of employment, or public places where it is not otherwise prohibited to designate a smoking area, must comply with the requirements of this article. During the interim period until the changes described in Section 12-245(3) are completed, but not later than three years after the effective date of this ordinance, the proprietor or person in charge of a facility with an existing or proposed designated smoking area, which has obtained a permit as prescribed herein, shall separate the designated smoking area, where feasible, from a non- smoking area by a wall or by a minimum of four feet of contiguous floor space. After the three year period, any smoke-free restaurant, place of employment, or public place where it is not otherwise prohibited, may elect to designate a smoking area as defined in Section 12-245(3), if the facility complies with all requirements, as provided in this article, for the establishment of a designated smoking area and petitions the city for, and is granted, a permit to allow smoking. (12) Bingo Parlors for which a certificate of occupancy was issued prior to January 1, 2001; Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment described in this section may declare that entire establishment as a non-smoking establishment. Section 12-247c. Smoking in places of employment. All employers who operate a place of employment are encouraged to develop, implement, and maintain a written policy that accommodates the wishes of employees by designating smoking and non-smoking areas under the same requirements as public areas. (1) Smoking is prohibited in all enclosed facilities within a place of employment within the City of Lubbock, except for designated smoking areas, if such an area is provided to employees, and except as otherwise allowed by this Article. Neither this prohibition nor the signage or permit provisions of this article shall apply to a business that is not primarily open to the public and employs no person other than the owner or operator. (2) If an area that is normally used for employee purposes such as eating or drinking or any other privilege normally available to employees is selected as the "designated smoking area," then an area offering the same services and privileges that is smoke-free shall be made available to non-smoking employees. (3) Any employer may declare the entire place of employment a non-smoking workplace; (4) Any area designated for smoking by an employer shall meet the requirements of a designated smoking area, as provided in Section 12-245(3) and the other provisions of this article. Sec 12-248. Signs. (a) Signs must be displayed at all public and employee entrances to all public places or places of employment where smoking is allowed. Signs shall be posted within ninety (90) days of the effective date of this Ordinance or within ninety (90) days of the opening of a new facility where smoking is allowed. This ninety (90) day period is effective until July 22, 2004; thereafter, any new or transferred restaurant, place of employment or public place that has designated a smoking area shall post signs within five (5) business days of opening the facility. All signs shall have dimensions of at least nine inches by fifteen inches (9" x 15") and shall contain the following language: WARNING, SMOKING ALLOWED IN THIS FACILITY - - THE CITY OF LUBBOCK HEALTH BOARD HAS DETERMINED THAT SECOND HAND SMOKE IS UNSAFE"; (b) Every public place where this article prohibits smoking shall have posted at every public and employee entrance a conspicuous sign clearly stating that smoking is prohibited; (c) All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited by this article by the owner, operator, manager or other person having control of such area; (d) Permit: Any public place, restaurant, or place of employment where smoking is permitted or which wishes to allow smoking in designated areas as defined in this article shall petition the city for a permit to do so within ninety (90) days of the effective date of this Ordinance or within ninety (90) days of the opening of a new or transferred facility. This ninety (90) day period is effective until July 22, 2004. Thereafter, existing smoke-free restaurants, places of employment or public places where it is not otherwise prohibited to designate a smoking area, may apply for a permit upon compliance with the other requirements of this article regarding designation of a smoking area. All permits shall be renewed annually. (e) Permit fee: It is the intent of the City Council to charge for the cost of administering this ordinance. The Environmental Inspection Services Department is directed to conduct a study over the first year to determine said cost and is authorized and directed to establish a fee commensurate with the actual cost of administering the program. Permits issued prior to the establishment of this fee shall be without cost. The fee shall be adjusted annually in accordance with Sec. 1-10 of the Code of Ordinances of the City of Lubbock. 10 DIVISION 3. REGULATING SALES AND SAMPLES TO MINORS Sec. 12-249. Possession of tobacco by minor. (a) A person who is younger than eighteen (18) years of age commits an offense if the person possesses, purchases or accepts receipt of a cigarette or other tobacco product; (b) This section shall not prohibit a person younger than eighteen (18) years of age from possessing a cigarette or other tobacco product while in the presence of a parent or legal guardian. Sec. 12-250. Self-service merchandising. It shall be unlawful for any person, business or tobacco retailer to sell, permit to be sold, offer for sale or display for sale any single -pack tobacco product by means of self-service merchandising in such a manner that an employee does not have a clear view of the tobacco product from the employee's usual place of work. Sec. 12-251. Free samples. Distribution of free samples of tobacco products to minors is prohibited in any public place. Sec. 12-252. Public Education. The Environmental Inspection Services Department shall engage in a continuing program to explain and clarify the purposes and requirements of this ordinance to citizens affected by it, and to guide owners, operators and managers in their compliance with it. Such program may include publication of a brochure for affected businesses and individuals explaining the provisions of this ordinance and appropriate public education about the dangers of secondhand smoke, the existence of the ordinance, and the procedure for reporting violations. Sec. 12-253. Other Applicable Laws. This article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. SECTION 2. THAT Ordinance No. 2001-00042 is hereby repealed and shall be of no further force and effect. SECTION 3. THAT violation of any provision of this Ordinance shall be deemed a Class C misdemeanor and that punishment upon conviction shall be by a fine not to exceed two thousand dollars and no/100 ($2,000.00). 11 SECTION 4. THAT slhould any section, paragraph, sentence, clause, phrase or word of this Ordipance be declared unconstitutional or invalid for any reason, the remainder of this Ordinance shell not be affected thereby. SECTION 5. THAT the City Secretary is hereby authorized and directed to cause publication of the descriptive caption of this Ordinance as an alternative method of publication provided by law. SECTION 6. THAT this Ordinance shall take effect July 22, 2001. AND IT IS SO ORDERED. Passed by the City Council as an emergency on first reading this 12th day of July , 2001. WINDY SITT N, MAYOR ATTEST: 0 '0 Re Pcca Garza, City Secretary APPROVED AS TO CONTENT: Crs ob Cass, City Manager AP ROVED AS TO FORM: Anita Burgess, City Attorney JMK:cp L:\cityatt\John\smoking-2001-Final-LC12-legislative.doe July 10, 2001 12