HomeMy WebLinkAboutO-2013-3475 amending City smoking regulationsORDINANCE NO.
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,"
"Smoking," of the Code of Ordinances, LaPorte,
shall hereinafter read as follows:
"DIVISION 2. SMOKING*
See. 34-51. Definitions.
Article II. "Air Pollution," Division 2.
Texas, is hereby amended in its entirety and
The following words, terms and phrases, whenever used in this division, shall have the meanings
ascribed 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 sixty (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.
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.
Ordinance No. 2013- t_�__� ` Page 2
Employer means a person, business, partnership, association, corporation, including a municipal
corporation, trust, or non-profit entity that employs the services of one (1) 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.
Ordinance No. 2013- t. Page 3
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.
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Ordinance No. 2013- -'' 'K Page 4
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 forty (40) percent of annual gross revenues.
Service line means an indoor 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.
Shopping mall means an enclosed public walkway or hall area that serves to connect customer
entrances to two (2) or more retail or other businesses and is used for customer pedestrian traffic.
Smoking means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or
other lighted tobacco product in any manner or in any form.
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 fifty (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 twenty (20) percent of annual gross
revenues and into which entry is restricted to individuals eighteen (18) years of age and above.
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.
Ordinance No. 2013- .1`� ,C-1 Page 5
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 twenty-five (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 tobacco smoke does not enter those areas. This section
shall not apply to restaurant and bar outdoor seating areas.
Ordinance No. 2013- �1 LJ Page 6
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 childcare, 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 thirty-five (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 Sec. 34-59,
Posting of signs.
(3) Retail tobacco 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 (1) 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 sixty (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 twenty-one (2 1) 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 (1) inch.
Ordinance No. 2013- 1 ! J� Page 7
Sec. 34-58. Declaration of establishment 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 subsection (a) of Section 34-59 of this Code is
posted.
Sec. 34-59. Posting of signs.
(a) The owner, operator, manager, or other person in control of a public place or place of
employment 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 Sec. 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 the provisions of this division.
(b) Any citizen who desires to register
enforcement by contacting the Fire
enforce city ordinances shall have authority to
a complaint under this article may initiate
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.
Ordinance No. 2013- 2M 6 -
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(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. 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.
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."
Ordinance No. 2013- J� Page 9
Section 2: That Appendix -B "Fines", Chapter 34, "Environment," Article Il. "Air Pollution,"
Division 2. "Smoking," of the Code of Ordinances, La Porte, Texas, is hereby amended to read
as follows:
Chapter 34. Environment
Article 11. Air Pollution
Division 2. Smoking
(a)
Fine for violation of division 2, smoking .....
2000.00
34-62
Section 3: 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 4: 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 5. 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 6. 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 7. 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.
Ordinance No. 2013-
PASSED AND APPROVED this therl:�6day of , 2013.
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City Secret
APPROVED:
Assistant City Attorney
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