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11-M-06 Smoking in Public Places (2)ORDINANCE NO. 11-M-06 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AMENDING THE CODE OF ORDINANCES OF THE CITY BY AMENDING CHAPTER 34, HEALTH, ARTICLE IV, SMOHING IN PUBLIC PLACES WHEREAS, the City Council of the City of Schertz, Texas (the "City") desires to protect the public health and welfare of citizens and visitors of the City by prohibiting smoking in specified outdoor areas within the City and to assist nonsmokers in their efforts to breathe smoke-free air. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: SECTION I Chapter 34, Health, Article IV, Smoking in Public Places of the Code of Ordinances, City of Schertz, Texas is hereby amended and restated as follows: "ARTICLE IV SMOHING IN PUBLIC PLACES Sec. 34-89. Definitions. For the purpose of this Article, the following definitions shall apply unless the context clearly indicates or requires a different meaning: (a) City Facility means any building owned or operated by the City of Schertz. (b) Dining Area means any area in which meals or entrees aze 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 5% of gross receipts. (c) Employee means any person who is employed by an employer in consideration for monetary compensation or profit. (d) Employer means any person, partnership, corporation, association, or other entity that employs one or more persons. (e) HVAC System means a single heating, ventilating, and air conditioning system. (f) Place of Employment means any enclosed indoor area under the control of an employer to which employees have access dtuing the course of employment, and includes but is not limited to stores, offices, professional, financial, and other commercial establishments; restaurants; 50413566.2 enclosed shopping malls; public and private institutions of higher education; the common areas of health care facilities, and nursing and convalescent home. (g) Public Plnce means an enclosed area to which the public is invited or in which the public is permitted, including but not limited to banks, bars, bingo facilities, educational facilities, gaming facilities, health care facilities, hotels and motels, Laundromats, recreational facilities, City facilities, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, and waiting rooms. The term "public place" also includes the area within twenty-five feet (25') of the exterior of any public entrance or public exit from any City facility. If any "recreational facility" is fenced or otherwise enclosed, for pulposes of the definition of "public place", such "recreational facility" shall include all areas within twenty-five feet (25') outside of such fence or enclosure. If any "recreational facility" is not fenced or otherwise enclosed, for pulposes of the definition of "public place", such "recreational facility" shall include all areas within twenty-five feet (25') of each item of athletic, play, or recreational equipment. A private residence is a "public place" if it is used as a child care, adult day care, or health care facility. (h) Recrealionnl Facilities means any City owned or operated swimming pools, athletic facilities, athletic fields, playgrounds, or other City owned or operated areas with athletic, play, or recreational equipment. (i) 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. 34-90. Article not to Excuse Noncompliance with Other Measures. Nothing in this Article excuses noncompliance with any state or federal law, provisions of this Code, or any other applicable ordinance of the City, or any rule or regulation adopted pwsuant thereto, which prohibits smoking. Sec. 34-91. Smoking in Public Places Generally Prohibited, and Other Offenses. A person commits an offense if he/she: (a) 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 Article; or (b) 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 (a) of this section; or (c) fails to have prominently displayed a no-smoking sign, a designated smoking area sign as required by this article; or Sd113566.2 - 2 - (d) 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 Article within three months of adoption of this Article or upon opening for business, or fails to maintain thereafter a written smoking policy which is consistent with the requirements of this Article; or (e) 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 Article 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. 34-92. 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. 34-93. Certain Places Exempt. (a) Smoking may be permitted in the following areas and if smoking is so permitted the provisions of Section 34-91 shall not apply: (1) tobacco specialty retail shops; or (2) private residences (unless used as a child care, adult day care, or health care facility); 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 nonprofit 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 Article, if the sepazate 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 fifteen feet (15') from any area in which smoking is not allowed and has air filtrating equipment installed by April 1, 2002; the smoking section shall be 50413566.2 - 3 - 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. 34-94. Places of Employment. Each employer who operates a place of employment in the City shall, within three (3) months of adoption of this Article or upon opening for business, adopt, implement, and maintain a written smoking policy which is consistent with the requirements of this Article. 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 on 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. (b) If such employee smoking area is designated, each such smoking area shall: (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; (2) be ventilated to prevent the mixing of air from the designated employee smoking area to other areas or the public area; (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 W 13566.2 - 4 - (5) contain ashtrays, containers, or other facilities for the extinguishment of smoking materials. (c) The smoking policy shall be communicated within tlu~ee 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 employee request to work in a nonsmoking area. Sec. 34-95. Disposition of Filters. All filter used in HVAC systems and other air filtration devices under this Article shall be disposed of in compliance with requirements established by the Texas Commission on Environmental Quality. Sec. 34-96. Penalties. Any person who violates any provision of this Article shall be subject to a fine not exceeding $200 for each offense. Sec. 34-97. Inconsistent Provisions. All ordinances and resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Article are hereby repealed to the extent of such conflict, and the provisions of this Article shall be and remain controlling as to the matters ordained herein. Sec. 34.98 and Sec. 34.99 Reserved." SECTION II This Ordinance shall be effective from and after its final passage and any publication required by the City of Schertz. [The remainder of this page intentionally left blank] 504135b6.2 - 5 - SECTION III All ordinances or parts of ordinances in conflict with this Ordinance are hereby repealed. PASSED AND APPROVED on first reading this the 12`h day of April, 2011. PASSED, APPROVED, AND ADOPTED on second readin this the 19`h day of April, 2011. yor, City of Schertz, Texas ATTEST: City Secretary, City of Scheirtz, Texas (SEAL OF CITY) Sd113566.2 - 6 -