HomeMy WebLinkAboutO-2016-3648 Amendment to Chapter 34 of the La Porte Code of Ordinances to Add VapingORDINANCE NO. 2016-3648
AN ORDINANCE AMENDING CHAPTER 34 "ENVIRONMENT" OF THE CODE OF
ORDINANCES OF THE CITY OF LA PORTE, BY AMENDING ARTICLE II "AIR
POLLUTION," DIVISION 2. "SMOKING," RELATING TO THE PROHIBITION OF
SMOKING IN CERTAIN PUBLIC PLACES WITHIN THE CITY LIMITS; PROVIDING
A REPEALING CLAUSE; CONTAINING A SEVERABILITY CLAUSE; FINDING
COMPLIANCE WITH THE OPEN MEETINGS LAW; PROVIDING THAT ANY
PERSON VIOLATING THE TERMS OF THIS ORDINANCE SHALL BE DEEMED
GUILTY OF A MISDEMEANOR AND UPON CONVICTION SHALL BE FINED IN A
SUM NOT TO EXCEED TWO THOUSAND DOLLARS; PROVIDING FOR THE
PUBLICATION OF THE CAPTION HEREOF; AND PROVIDING AN EFFECTIVE
DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE, TEXAS:
Section 1: That Chapter 34, "Environment,", Article Il. "Air Pollution," Division 2.
"Smoking," of the Code of Ordinances, La Porte, Texas, is hereby amended in its entirety and shall
hereinafter read as follows:
"DIVISION 2. SMOKING
Sec. 34-51. - Definitions.
The following words, terms and phrases, whenever used in this division, shall have the meanings
lascribed to them in this section, unless the context of their usage clearly indicates a different meaning:
Bar means an establishment that is devoted to the serving of alcoholic beverages for consumption by
guests on the premises and derives at least 60 percent of annual gross revenues from the sale of alcoholic
beverages for on premise consumption, including, but not limited to, any tavern, nightclub, cocktail lounge,
or cabaret.
Bingo hall means an establishment or facility licensed by the State of Texas for the purpose of
conducting bingo games.
Business means a sole proprietorship, partnership, joint venture, corporation, or other business entity,
either for-profit or not-for-profit, including any retail establishment where goods or services are sold and any
professional corporation or other entity where legal, medical, dental, engineering, architectural, or other
professional services are delivered.
Electronic vaping device means any electronic device composed of a mouthpiece, heating element,
battery and electronic circuits that provides, or is manufactured or intended to provide, a vapor of liquid
nicotine and/or other substances mixed with propylene glycol and/or other substances delivered or deliverable
to the user that he/she can inhale in simulation of smoking. This term shall include every version and type of
such devices whether they are manufactured or marketed as electronic cigarettes, e -cigarettes, electronic
cigars, e -cigars, electronic pipes, e -pipes, electronic hookahs, e -hookahs or under any other product name or
design.
Electronic vaping liquid also known as "e -juice" and "e -liquid" shall mean any liquid product composed
of propylene glycol or other carrier solvent and may contain nicotine and/or any other substance and
manufactured for the use with electronic vaping devices.
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 services for a non-profit entity or provides such
services on a contract basis.
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 individuals.
Enclosed, when used in reference to an area or a building or portion thereof, means closed in on all sides
from floor to ceiling by solid walls, with or without windows and exclusive of doorways.
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, any hospital, rehabilitation hospital or other clinic, including any weight control clinic, nursing
home, home for the aging or chronically ill, laboratory, or the office of any surgeon, chiropractor, physical
therapist, physician, dentist, or specialist within these professions. This definition shall include all waiting
rooms, hallways, private rooms, semiprivate rooms, and wards within a health care facility.
Meeting facility means a building designed, operated and used primarily for private functions.
Physical barrier means a barrier that will form an effective membrane continuous from outside wall to
outside wall, from a smoke barrier to a 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.
Place of employment means an enclosed area under the control of a public or private employer where
employees work or to which employees have access during the course of employment including, but not
limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms,
classrooms, employee cafeterias, hallways, 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.
Private club means a fraternal, social or religious organization that promotes its services to its owners,
members and guests and has been granted an exemption from the payment of federal income tax as a club
under 26 U.S.C. Section 501.
Private function means a gathering of individuals for the purpose of deliberation, education, instruction,
entertainment, amusement, or dining, where specific invitation is a prerequisite to entry and where the event
is not intended to be open to the public.
Public place means an enclosed area to which the public is invited or in which the public is permitted,
including, but not limited to:
(1) Aquariums, galleries, libraries, and museums;
(2) Areas available to and customarily used by the general public in businesses;
(3) Bars;
(4) Bingo facilities;
(5) Child care and adult day care facilities;
(6) Convention facilities;
(7) Educational facilities, both public and private;
(8) Elevators;
(9) Gaming facilities;
(10) Governmental facilities, including buildings and vehicles;
(11) Health care facilities;
(12) Hotels and motels;
(13) Lobbies, hallways, and other common areas in apartment buildings, condominiums, retirement
facilities, nursing homes, and other multiple -unit residential facilities;
(14) Polling places;
(15) Pool and billiard halls;
(16) Public transportation facilities, including buses and taxicabs, and ticket, boarding, and waiting
areas of public transit depots;
(17) Restaurants;
(18) Restrooms, lobbies, reception areas, hallways, and other common -use areas;
(19) Retail establishments;
(20) Service lines;
(21) Shopping malls;
(22) Sports arenas; and
(23) Theaters and other facilities primarily used for exhibiting motion pictures, stage dramas, lectures,
musical recitals, or other similar performances.
A private residence is not a "public place" unless used as a child care, adult day care, or health care facility.
Restaurant means food service establishment, including but not limited to, any coffee shop, cafeteria,
sandwich stand, and private and public school cafeteria, that gives or offers for sale food to the public, guests,
or employees, as well as any kitchen or catering facility in which food is prepared on the premises for serving
elsewhere. The term "restaurant" may include a bar area within the restaurant.
Retail tobacco store means any retail establishment utilized primarily for the sale of tobacco products
and smoking accessories in which the sale of other products, including food and beverages, does not exceed
40 percent of annual gross revenues.
Retail electronic vaping store means a retail store utilized primarily for the sale of electronic vaping
devices, accessories, and/or electronic vaping liquid or any other article or product that is for use in an electronic
vaping device and in which the sale of other products is merely incidental.
Service line means an indoor line in which one or more persons are waiting for or receiving service of
any kind, whether or not the service involves the exchange of money.
Shopping mall means an enclosed public walkway or hall area that serves to connect customer entrances
to two or more retail or other businesses and is used for customer pedestrian traffic.
Smoking or smoke means inhaling, exhaling, burning, possessing or carrying any tobacco product including
but not limited to a lighted cigar, cigarette, pipe, weed, plant or combustible substance in any manner or in any
form and/or vaping or the use of any electronic vaping device.
Sports arena means any sports pavilion, stadium, gymnasium, health spa, boxing arena, swimming pool,
roller and ice rink, bowling alley, pool hall or other similar place where members of the general public
assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events.
Substantial means 50 percent or more.
Tobacco bar means a bar in which the on-site sales or rentals of tobacco products and smoking
accessories for consumption or use on the premises exceeds 20 percent of annual gross revenues and into
which entry is restricted to individuals 18 years of age and above.
Tobacco product means a cigarette; a cigar; smoking tobacco, including granulated, plug -cut, crimp -cut,
ready rubbed and any form of tobacco suitable for smoking in a pipe or as a cigarette; chewing tobacco, including
plug, scrap, and any kind of tobacco suitable for chewing, snuff or other preparations of pulverized tobacco;
nicotine product, or dissolvable nicotine;
Vaping means inhaling or exhaling vapors of electronic vaping liquid from an electronic vaping device.
Sec. 34-52. - Prohibition of smoking in enclosed public places.
Smoking shall be prohibited in all enclosed public places within the city, except as provided in section 34-57
of this Code.
Sec. 34-53. - Prohibition of smoking in places of employment.
(a) Smoking shall be prohibited in all enclosed areas within places of employment, except as provided in
section 34-57 of this Code.
(b) An employer shall communicate this prohibition to all prospective employees upon their application
for employment.
Sec. 34-54. - Prohibition of smoking in seating areas at outdoor events.
Smoking shall be prohibited in the seating areas and covered concourses of all outdoor sports arenas, stadiums,
and amphitheaters, as well as in bleachers and grandstands for use by spectators at sporting and other
public events.
Sec. 34-55. - Prohibition of smoking in covered public transportation facilities.
Smoking shall be prohibited in any covered public transportation facilities, including ticket, boarding, and
waiting areas of public transit depots.
Sec. 34-56. - Reasonable distance.
Smoking is prohibited within 25 feet outside entrances, exits, or wheelchair ramps serving any entrance or
exit, operable windows, and ventilation systems of enclosed areas where smoking is prohibited, so as to
ensure that smoke does not enter those areas. This section shall not apply to restaurant and bar outdoor
seating areas.
Sec. 34-57. - Where smoking is not regulated.
Notwithstanding any other provision of this article to the contrary, the following areas shall be exempt from
the provisions of sections 34-52 and 34-53 of this Code:
(1) Private residences, except when used as a child care, adult day care, or health care facility.
(2) Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided,
however, that not more than 35 percent of rooms rented to guests in a hotel or motel may be so
designated. All smoking rooms on the same floor must be contiguous, and smoke from these rooms
must not infiltrate into areas where smoking is prohibited under the provisions of this article. The
status of rooms as smoking or nonsmoking may not be changed, except to add additional
nonsmoking rooms. Signs shall be placed on the doors of each smoking room and on each no
smoking room showing the designation of each room. Signs shall be in accordance with section 34-
59, Posting of signs.
(3) Retail tobacco stores and retail electronic vaping stores provided that smoke from these
establishments does not infiltrate into areas where smoking is prohibited under the provisions
of this division.
(4) Tobacco bars in operation on or before May 1, 2013 provided that the establishment clearly and
conspicuously post a sign(s) at each entrance, in English, stating "SMOKING PERMITTED" in
letters that shall have a height of not less than one inch.
(5) Private functions and/or private clubs (not otherwise open to the general public) for the sole benefit
of and in facilities owned or operated by a non-profit organization that is tax-exempt under Section
501(c)(3) of the Internal Revenue Code.
(6) Stage areas of enclosed theaters, if smoking is an integral part of a theatrical performance.
(7) Bars, where the serving of alcoholic beverages for consumption by guests on the premises derives at
least 60 percent of annual gross revenues from the sale of alcoholic beverages for on premise
consumption, including, but not limited to, any tavern, nightclub, cocktail lounge, or cabaret; and
a. Entry is limited to anyone who is at least 21 years of age;
b. The establishment is sealed such that smoke from the establishment cannot infiltrate into areas
where smoking is prohibited under the provisions of this division;
c. A sign must be clearly and conspicuously posted at each entrance in English stating
"SMOKING PERMITTED" in letters that shall have a height of not less than one inch.
Sec. 34-58. - Declaration of establishment as nonsmoldng.
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 subsection (a) of section 34-59 of this Code is posted.
Sec. 34-59. - Posting of signs.
j (a) The owner, operator, manager, or other person in control of a public place or place of employment
Ij shall clearly and conspicuously post "No Smoking" signs in English (and, if desired, any other language
such person may choose) 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 every public place and place of
employment where smoking is prohibited by this division.
(b) The owner, operator, manager, or other person in control of a public place or place of
employment shall conspicuously post at every public entrance thereto a sign clearly stating that smoking
is prohibited therein. Such signs shall conform to the requirements set out in paragraph (a) of this section.
Distance requirement language for smoking near entrances shall be included on the signage and in
accordance with section 34-56, Reasonable distance.
(c) The owner, operator, manager, or other person in control shall remove all ashtrays from any area
where smoking is prohibited by this division.
Sec. 34-60. - Enforcement.
(a) Any authority having jurisdiction to enforce city ordinances shall have authority to enforce the
provisions of this division.
(b) Any citizen who desires to register a complaint under this article may initiate enforcement by
contacting the fire marshal's office or by contacting the police department.
(c) The fire marshal or their designee shall, while an establishment is undergoing otherwise mandated
inspections, inspect for compliance with this division.
(d) The fire marshal or their designee, after proper identification, shall be permitted to enter any public
place and place of employment at any reasonable time, for the purpose of making inspections and
examining applicable records of the establishment to determine compliance with this division.
Sec. 34-61. - Rules and regulations.
The fire marshal or their designee is authorized to promulgate rules and regulations for the enforcement of
this division.
Sec. 34-62. - Violations and penalties.
(a) A person commits an offense if he is smoking in an area where smoking is prohibited by the
provisions of this division.
(b) It shall be the duty of every person in control of an area where smoking is prohibited by the
provisions of this division to request any person known to be smoking in such area to extinguish
the burning tobacco product or electronic vaping device. Any knowing or intentional failure to
maintain compliance with such duty shall constitute an offense.
(c) Whenever in this division an act is prohibited or is made or declared to be unlawful or an offense
or misdemeanor, or whenever in this division the doing of anything or act is required or the
failure to do anything or act is prohibited, the violation of the provision shall be and constitute a
misdemeanor punishable, upon conviction, by a fine in an amount established by the city and
listed in Appendix B of this Code. Each violation shall constitute and be punishable as a separate
offense. Prosecution or conviction under this provision is cumulative of and shall never be a bar
to any other civil or administrative remedy provided or allowed in this division or by law.
(d) Neither allegation nor evidence of a culpable mental state is required for the proof of an offense
defined in this division, during the prosecution of such offenses in any criminal proceeding.
Sec. 34-63. - Other applicable laws.
This division shall not be interpreted or construed to permit smoking where it is otherwise restricted by
other applicable laws.
Sec. 34-64. - Reserved."
Section 2: All ordinances or parts of ordinances inconsistent with the terms of this ordinance are
hereby repealed; provided, however, that such repeal shall be only to the extent of such
inconsistency and in all other respects this ordinance shall be cumulative of other ordinances
regulating and governing the subject matter covered by this ordinance.
Section 3: Should any section or part of this ordinance be held unconstitutional, illegal, or invalid,
or the application to any person or circumstance for any reasons thereof ineffective or inapplicable,
such unconstitutionality, illegality, invalidity, or ineffectiveness of such section or part shall in no
way affect, impair or invalidate the remaining portions thereof; but as to such remaining portion
or portions, the same shall be and remain in full force and effect and to this end the provisions of
this ordinance are declared to be severable.
Section 4. Any person, as defined in Section 1.07 (27), Texas Penal Code, who shall violate any
provision of the ordinance, shall be deemed guilty of a misdemeanor and upon conviction shall be
punished by a fine not to exceed TWO THOUSAND DOLLARS ($2,000.00).
Section 5. The City Council officially finds, determines, recites and declares that a sufficient
written notice of the date, hour, place and subject of this meeting of the City Council is posted at
a place convenient to the public at the City Hall of the city for the time required by law preceding
this meeting, as required by Chapter 551, Tx. Gov't Code; and that this meeting has been open to
the public as required by law at all times during which this ordinance and the subject matter thereof
has been discussed, considered and formally acted upon. The City Council further ratifies,
approves and confirms such written notice and the contents and posting thereof.
Section 6. This Ordinance shall be effective fourteen (14) days after its passage and approval.
The City Secretary shall give notice of the passage of this ordinance by causing the caption hereof
to be published in the official newspaper of the City of La Porte at least once within ten (10) days
after passage of this ordinance.
PASSED AND APPROVED this the,�2�'day of 12016.
CITY OF LA POkZTE, TEXAS
R. Riabv( M
ATTEST:
City Secre
APPROVED -
Assistant City Attorney