2001H24-HEALTHORDINANCE NO. O/"//'//'''~ ¢
AN ORD~~CE AMENDING cHAPTER 7½ OF THE CODE OF ORDIN~CES
REGARDING SMOKING IN PUBLIC PLACES
WHEREAS, Chapter 7½ of the Code of Ordinances (the "Code of Ordinances") of the City
of Schertz (the "City") relates to public health; and.
WHEREAS, to benefit the public health of the citizens of the City, the City Council has
determined to amend the Code of Ordinances to institute certain restrictions regarding smoking in
public places in the City; and
WHEREAS, it is in the best interests of the citizens of the City that the City Council authorize
the matters set forth in this Ordinance;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS:
Section 1. Amendment of Chapter 7½ 0fthe Code of Ordinances. Chapter 7½ of the Code
of Ordinances is hereby amended, to add. a new Article VI, Smoking in Public Places, to read. as
follows:
"ARTICLE VI. SMOKING IN PUBLIC PLACES
Sec. 7½-80. Definitions.
For the purpose ofthis subchaptcr, the following definitions shall apply unless
the context clearly indicates or requires a different meaning.
"Dining Area" means any area in which meals or entrees are served but shall
not include areas where the incidental service of hors d'oeuvres, snacks, pretzels,
popcorn, or similar items are provided, or where food sales in the area are less than
five percent (5%) of gross receipts.
"Employee" means any person who is employed by an employer in
consideration for monetary compensation or profit.
"Employer" means any person, partnership, corporation, association, or other
entity that employs one or more persons.
system.
"HVAC System' means a single heating, ventilating, and air conditioning
#2065178v5<
"Place of Employment" means any enclosed, indoor area under the control
of an employer 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. A private residence is not a place of
employmem.
"Public Place" means any enclosed indoor area that is used by the general
public, or that is a place of employment, and includes but is not limited to stores,
offices, professional, financial, and other commercial establishments; restaurants;
enclosed, shopping malls; public and private institutions of higher education; the
common areas of health care facilities; and nursing and convalescent homes.
"Smoke" or "Smoking" means the carrying or holding of a lighted, pipe,
cigar, or cigarette of any kind, or any other lighted smoking equipment or device, or
the lighting of, emitting ,or exhaling the smoke of a pipe, cigar, or cigarette of any
kind.
Sec. 71A-81. Subchapter Not to Excuse Noncompliance with Other Measures.
Nothing in this subchapter excuses noncompliance with any state or federal
law, provisions of this Code, or any other applicable ordinance ofthe City, or any role
or regulation adopted, pursuant thereto, which prohibits smoking.
Sec. 7½-82.
Offenses.
Smoking in Public Places Generally Prohibited, and Other
A person commits an offense if he
(I) knowingly smokes in a public place and is not in an area
designated as an employee smoking area or as a smoking area under this subchapter;
or
(2) is the owner, lessee, or other person in charge of a public place
or restaurant and. knowingly or intentionally permits, or fails to make a reasonable
effort to prevent commission, by another, of the offense described within
subsection (1) of this Section; or
(3) fails to have prominently displayed a no-smoking sign, a
designated, employee smoking area sign, or a designated smoking area sign as required
by this subchapter; or
(4) is an employer who operates a place of employment in the City
and. fails to adopt and. implement a smoking policy which is consistent with the
requirements of this subchapter within three months of adoption of this subchapter or
#2065178v5< -2-
upon opening for business, or fails to maintain thereafter a written smoking policy
which is consistent with the requirements of this subchapter; or
(5) is an employer who operates a place of employment in the City
and fails to communicate a smoking policy which is consistent with the requirements
of this subchapter to all employees within three weeks of adoption of the policy or
fails to post the smoking policy conspicuously in all workplaces under the employer' s
jurisdiction.
Sec. 7½-83. Signs Required in Public Places.
The owner, lessee, or other person in charge of a public place shall place a
sign or signs, visible at each entrance to the premises, notifying persons entering the
premises that smoking is prohibited, or that smoking, other than within designated.
smoking areas, is prohibited. The owner, lessee, or other person in charge of a public
place shall post a sign, or signs, in each area designated as smoking.
Sec. 7½-84. Certain Places Exempt.
(A) Smoking may be permitted, in the following areas and if smoking is so
permitted the provisions of Section 7aA-82 shall not apply:
(1)
tobacco specialty retail shops; or
(2)
private residences; or
(3)
hotel and. motel rooms rented to guests; or
(4) enclosed meeting or assembly rooms in restaurants, hotels,
motels, and other public places if the entire room is used for a private function; or
(5) businesses licensed to sell alcoholic beverages on premises or
non-profit commercial facilities, provided, in either case that food sales do not
constitute more than twenty five percent (25%) of such business's or organization's
gross receipts; or
(6) any facility other than a restaurant otherwise described as a
public place which has installed a separate HVAC System and air filtering equipment
for a designated smoking area encompassing not more than twenty five percent (25 %)
of the total seating area; or
(7) a special separate dining area of any restaurant with an area
serving as a dining area in compliance with this subchapter, if the separate dining area
is enclosed on all sides and has a separate HVAC System or if it is enclosed on three
sides, has a separate HVAC System, and is removed by 15 feet from any area in which
#2065178v5< -3-
smoking is not allowed and has air filtering equipment installed by April 1,2002; the
smoking section shall be situated so the ventilation minimizes the effect of smoke in
nonsmoking areas and so that air from the smoking area is not drawn across a
nonsmoking area; or
(8) outdoor seating areas of restaurants if an area encompassing
at least twenty five percent (25%) of the seating is reserved, for nonsmoking.
(B) (1) Notwithstanding any other provisions of this Section, any
owner, operator, manager, or other person who controls any public place described
in this Section may declare that entire public place or any portion of the public place
as a nonsmoking area. The owner, operator, manager, or other person who controls
the public place shall place a sign or signs, visible at each entrance to the premises,
notifying persons entering the premises that smoking is prohibited, or that smoking,
other than within designated smoking areas, is prohibited.
(2) A person commits an offense if he knowingly smokes in any
public place or portion thereof declared a nonsmoking area in accordance with
subsection (B)(1) of this Section.
Sec. 7½-85. Places of Employment.
Each employer, other than the City, who operates a place of employment in
the City shall, within three months of adoption of this subchapter or upon opening for
business, adopt, implement, and maintain a written smoking policy which is consistent
with the requirements of this subehapter. If smoking will be permitted, the policy
shall contain, at a minimum, the following provisions and. requirements:
(A) The owner, lessee, or other person in charge of a public place may, but
is not required to, designate one or more areas as smoking areas for the use of the
employees as part of the smoking policy provided for in this Section. A designated
employee smoking area may include private enclosed, offices. Designated. employee
smoking areas may be located in areas to which employees, but not the general public,
except by invitation only, have access during the course of employment. A common
employee work area shall not be designated as an employee smoking area unless every
person who works in that area agrees in writing to the designation. In no event shall
an employee restroom or an area containing food or drink dispensing facilities be
designated as an employee smoking area.
shall
(B)
If such employee smoking area is designated, each such smoking area
(1) be in an area set aside for the use of employees, but not
accessible to members of the general public except by specific invitation of the
employer or employee;
#2065178v5< -4-
(2) be ventilated to prevent the mixing of air from the designated
employee smoking area to other areas or the public areas;
(3)
be a physically enclosed area separated from nonsmoking areas;
(4) be designated by appropriate signs which are clearly visible to
employees and members of the public entering the area; and
(5) contain ashtrays, containers, or other facilities for the
extinguishment of smoking materials.
(C) The smoking policy shall be communicated within three weeks of
adoption to all employees and shall be posted conspicuously in all workplaces under
the employer's jurisdiction.
(D) The owner, lessee, or other person in charge of a public place that
designates one or more areas as designated smoking areas for the public shall not
require employees to work in a designated smoking area if the employees request to
work in a nonsmoking area.
Sec. 7½-86. Disposition of Filters.
All filters used in HVAC Systems and other air filtration devices under this
subchapter shall be disposed of in compliance with requirements established by the
Texas Natural Resources Conservation Commission.
Sec. 7½-87. Penalties.
Any person who violates any provision of this Article VI shall be subject to
a fine not exceed'rog $200 for each offense."
Section 2. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 3. Inconsistent Provisions. All ordinances and resolutions, or parts thereof, which
are in conflict or inconsistent with any provision of this Ordinance are hereby repealed, to the extent
of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters
ordained herein.
Section 4. Governing Law. This Ordinance shall be construed and enforced in accordance
with the laws of the State of Texas and the United States of America.
Section 5. Severability. If any provision of this Ordinance or the application thereof to any
person or circumstance shall be held. to be invalid, the remainder of this Ordinance and the application
-5-
of such provision to other persons and circumstances shall nevertheless be valid, and the City Council
hereby declares that this Ordinance would have been enacted without such invalid provision.
Section 6. Construction of Terms. If appropriate in the context of this Ordinance, words of
the singular number shall be considered to include the plural, words of the plural number shall be
considered, to include the singular, and words of the masculine, feminine, or neuter gender shall be
considered to include the other genders.
Section 7. Incorporation of Preamble Recitals. The recitals contained in the preamble hereof
are hereby found to be tree, and. such recitals are hereby made a part of this Ordinance for all
purposes and are adopted as a part of the judgment and fmdings of the City Council of the City.
Section 8. Public Meeting. It is officially found, determined, and declared that the meetings
at which this Ordinance is adopted were open to the public and public notice of the time, place, and
subject matter of the public business to be considered, at such meetings, including this Ordinance, was
given, all as required by Chapter 551, as amended, Texas Government Code.
Section 9. Effective Date. This Ordinance shall be in force and effect from and after its final
passage and shall be published and be effective as provided in the City Charter, and it is so ordained.
[The remainder of this page intentionally left blanlc]
#2065178v5< -6-
PASSED AND APPROVED on first reading the~ day of November, 2001.
Mayor
Attest:
City Secretary
PASSED AND APPROVED on final reading the ~~day of November, 2001.
Mayor
Attest:
City Secretary
#2065178v5< -7-
THE STATE OF TEXAS,
PUBLISHER'S AFFIDAVIT
0~ ho or,V-
,.
County of Guadalupe ,,'
Before me, the undersigned authority, on this date personally appeared
, .
Tommy Cz:ow , , known to me, who, being by me duly sworn, on
..
his oath deposes and says thaf' he is the Publisher of The Seguin Gazette-EnterPrise, a
·
newspaper published in said county; that a copy of the within and foregoing notice was
published in said newspaper ~ time(s) before the retum day named therein, such
publications being on the following dates'
and a newspaper copy of which is hereto attached.
~..~,~ and sub~dbed bef°re me this ~ ~-~;- ~~dayOf
. . _ , A. IJ.,ZO01.
~...: ~.::, :.,:. ~, :~,~. ....... ~,~.,::~r,,,,,: ~-~, ~..~ ~ o a~ Public, Guadalupe Count, .~as
THE STATE OF TEXAS,
PUBLISHER'S AFFIDAVIT
,.
county of Guadalupe ,,'
Before me, the undersigned authority, on this date personally appeared
. ,
~'o,~,, 7 c r o ~ , knowfi to me, who, being by me duly sworn, on
..
his oath deposes and says that~ he is the Publisher of The Seguin Gazette-Enterpdse, a
newspaper published in said county; that a copy of the within and foregoing notice was
published in said newspaper ~ time(s) before the retum day named therein, such
publications being on the following dates' ·
and a newspaper copy of which is hereto attached.
IN PUBLIC PLACES.
Approved on the first
reading~ ~~y~'
and suTcribed before me this ,...~d--/~ day of
J~.Z~/z~ ' , A.D., 2001.
Notary Public, Guadalupe County. Texas