HomeMy WebLinkAboutOrdinance 23047-12-2017 ORDINANCE NO. 23047-12-2017
AN ORDINANCE AMENDING CHAPTER 29.5, "SMOKING", OF THE
CODE OF THE CITY OF FORT WORTH, (2015) AS AMENDED,
SECTION 29.5-1 BY DELETING THE DEFINITIONS OF BAR, BINGO
PARLOR AND RESTAURANT; AMENDING THE DEFINITIONS OF
PRIVATE CLUB, PUBLIC PLACE, RETAIL TOBACCO STORE AND
SMOKING AND TO NOW INCLUDE A DEFINITION FOR CIGAR
LOUNGE, ELECTRONIC SMOKING DEVICE, AND RETAIL SMOKE
SHOP; AMENDING SECTION 29.5-3 "EXCEPTIONS" TO ELIMINATE
BARS AND BINGO PARLORS AS AN EXCEPTION TO THE SMOKING
PROHIBITION; AND AMENDING SECTION 29.5-14 "DISTRIBUTION
AND SALE OF CIGARETTES OR TOBACCO PRODUCTS" TO
PROHIBIT RETAIL SMOKE SHOPS WITHIN 300 FEET OF CERTAIN
FACILITIES; PROVIDING THAT THIS ORDINANCE SHALL BE
CUMULATIVE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING
A PENALTY CLAUSE; PROVIDING FOR PUBLICATION; AND
PROVIDING AN EFFECTIVE DATE 90 DAYS FROM THE DATE OF
ADOPTION.
WHEREAS, on or about August 21, 2007, the City Council adopted Ordinance No.
17719 to prohibit smoking in public places and to provide some exceptions to the prohibition,
(the Smoking Ordinance);
WHEREAS, exceptions to the prohibition in the current Smoking Ordinance include
bars, bingo parlors and retail tobacco stores, as defined;
WHEREAS, since the adoption of the Smoking Ordinance, most major cities in Texas
have included bars as public places in which smoking is prohibited;
WHEREAS, the City Council has received requests from organizations such as Blue
Zones Project Fort Worth, the American Cancer Society and the American Heart Association to
join in the effort to make the City of Fort Worth "Smoke Free" by prohibiting smoking in bars
and bingo parlors and to revise the definition of smoking to include electronic cigarettes;
WHEREAS, the City Council has expressed a desire to exempt retail tobacco bars, such
as cigar lounges, from the prohibition on smoking;
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WHEREAS, in order to prohibit smoking in bars, and allow the exception for retail
tobacco bars to remain in place for onsite smoking of cigars, an amendment to certain definitions
is necessary in order to provide a distinction from regular bars; and
WHEREAS, the City Council also recognizes a need to address the use of electronic
cigarettes, and other tobacco products near schools, universities and hospitals.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FORT WORTH, TEXAS:
SECTION 1.
Section 29.5-1, "Definitions", of Chapter 29.5 "Smoking," Part II of the Code of the City of Fort
Worth, Texas (2015), shall be amended to delete the definitions of Bar, Bingo Parlor and
Restaurant, change the definition of Public Place and Smoking, rename Retail Tobacco Store to
Retail Smoke Shop and provide an amended definition, and include a definition for Cigar Lounge
and Electronic Smoking Device as follows:
CIGAR LOUNGE. An establishment where onsite sales of cigar products and cigar accessories
for consumption or use on the premises is at least 30% of its gross annual sales and is restricted
to individuals 18 years of age and above.
ELECTRONIC SMOKING DEVICE. Any product containing or delivering nicotine or any
other substance intended for human consumption that can be used by a person in any manner for
the purpose of inhaling vapor or aerosol from the product. The term includes any such device,
whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah,
or vape pen, or under any other product name or descriptor.
PRIVATE CLUB. A building or portion thereof that is owned, leased or otherwise occupied by
an organization, whether incorporated or not, exclusively for use at all times solely for the
recreational, fraternal, social, patriotic, political, benevolent or athletic purpose of the
organization, but not for pecuniary gain, and at which alcoholic beverages are sold only
incidentally in connection with such operations; provided that this term only applies to an
organization (i) whose affairs and management are conducted by a board of directors, executive
committee, or similar body chosen by its members at an annual meeting; (ii) whose activities are
governed by established bylaws, a constitution, or other published articles; and (iii) which has
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been granted an exemption from the payment of federal income tax as a club under 26 U.S.C.
Section 501.
PUBLIC PLACE. Any enclosed area in which the public is invited or permitted, including, but
not limited to, banks, educational facilities, health facilities, laundromats, public transportation
facilities, reception areas, restaurants, bars, bingo parlors, marketing establishments, retail
service establishments, retail stores, theaters, waiting rooms, bowling alleys and billiard halls.
RETAIL SMOKE SHOP. A store that derives 90% or more of its gross annual sales from the
sale of tobacco, cigarettes, smoking and electronic smoking devices, or related products and
accessories and does not sell alcoholic beverages for onsite consumption.
SMOKING. Inhaling, exhaling, burning or carrying any lighted cigar, cigarette, tobacco product,
electronic smoking device, weed, plant or other combustible substance whose smoke is intended
to be inhaled.
SECTION 2.
Section 29.5-3, "Exceptions", of Chapter 29.5 "Smoking", Part II of the Code of the City of Fort
Worth, Texas (2015), shall be amended to delete Bar and Bingo Parlor as exceptions to the
smoking prohibition and include Cigar Lounges and Retail Smoke Shops, as defined herein, and
renumber the subsections as follows:
§ 29.5-3 EXCEPTIONS.
(a) Notwithstanding any other provision of this chapter to the contrary,the following areas
shall not be subject to the smoking prohibitions in § 29.5-2.
(1) Private residences, except when used as a child care, adult day care or health care
facility;
(2) A private or semi-private room in a nursing home or long term health care facility that is
occupied by persons who smoke and have requested in writing to be placed in a room
where smoking is permitted;
(3) Hotel and motel rooms that comply with § 29.5-4;
(4) Retail Smoke Shops and Cigar Lounges in stand alone physical facilities or that operate
an air ventilation system that prevents the migration of smoke into neighboring facilities;
(5) Hotel and motel conference or meeting rooms and public facilities while being used for
a private function. This exception shall not include Restaurants or Bars;
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(6) Private Clubs, as defined in this chapter, as long as the facility is used or operated by the
members and is not open to the general public;
(7) An outdoor dining area and/or patio, as long as the section of the outdoor dining area
and/or patio where smoking is permitted, is more than 20 feet from a primary entrance
or openable window of an enclosed area; and
(8) Any facility which is primarily used for exhibiting any stage, drama, lecture, musical
recital or other similar performance, when smoking is part of a stage production.
(b) Notwithstanding any other provision of this section, any owner, operator, manager or
other person who controls any establishment described in this section may designate the
entire establishment as a non-smoking establishment.
SECTION 3.
Section 29.5-14, "Distribution and Sale of Cigarettes or Tobacco Products," of Chapter 29.5
"Smoking," Part II of the Code of the City of Fort Worth, Texas (2015), shall be amended to
address the location of Retail Smoke Shops and include subsection(c), as follows:
§ 29.5-14 DISTRIBUTION AND SALE OF CIGARETTES OR TOBACCO PRODUCTS.
(a) A person commits an offense if he or she distributes to persons younger than 18 years of
age:
(1) A free sample of a cigarette or tobacco product; or
(2) A coupon or other item that the recipient may use to receive a free or
discounted cigarette or tobacco product or a sample cigarette or tobacco product.
(b) A person commits an offense if the person sells cigarettes in quantities less than an
individual package containing at least 20 cigarettes.
(c) Retail Smoke Shops shall be prohibited within 300 feet of schools, universities and
hospitals.
SECTION 4.
CUMULATIVE PROVISIONS
This ordinance shall be cumulative of all provisions of ordinances and of the Code of the City of
Fort Worth, Texas (2015), as amended, except where the provisions of this ordinance are in direct
conflict with the provisions of such ordinances and such Code, in which event conflicting provisions
of such ordinances and such Code are hereby repealed.
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SECTION 5.
SEVERABILITY CLAUSE
It is hereby declared to be the intention of the City Council that the phrase, clause, sentence,
paragraph or section of this ordinance are severable and, if any phrase, clause, sentence, paragraph
or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any
court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining
phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have
been enacted by the City Council without the incorporation in this ordinance of any such
unconstitutional phrase, clause, sentence,paragraph or section.
SECTION 6.
PENALTY CLAUSE
Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to comply
with or who resists the enforcement of any of the provisions of this ordinance shall be fined not
more than five hundred dollars ($500.00) for each offense. Each day that a violation is permitted
to exist shall constitute a separate offense.
SECTION 7.
RIGHTS AND REMEDIES
All rights and remedies of the City of Fort Worth, Texas, are expressly saved as to any and all
violations of the provisions of the ordinances amended herein, which have accrued at the time of
the effective date of this ordinance and, as to such accrued violations and all pending litigation,
both civil and criminal, whether pending in court or not, under such ordinances, same shall not
be affected by this ordinance but may be prosecuted until final disposition by the courts.
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SECTION 8.
PUBLICATION
The City Secretary of the City of Fort Worth, Texas, is hereby directed to publish the caption of this
ordinance for two (2) days in the official newspaper of the City of Fort Worth, Texas, as authorized
by Section 2, Chapter XXV of the Charter of the City of Fort Worth, Texas and by Section 52.013,
Texas Local Government Code.
SECTION 9.
EFFECTIVE DATE
This Ordinance shall take effect 90 days from the date of adoption provided publication is made as
required by law.
APPROVED AS TO FORM AND LEGALITY: ATTEST:
kris . Lopez-Re olds, Mary J. Ka ty SOcretary
Senior Assistant City Attorney
ADOPTED: December 12, 2017
EFFECTIVE: V�L,=ck-\
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 12112/2017 - Ordinance No. 23047-12.2017
DATE: Tuesday, December 12, 2017 REFERENCE NO.: G-19191
LOG NAME: 12SMOKEORDAMEND17
SUBJECT:
Adopt Ordinance Amending Chapter 29.5, "Smoking," of the City Code to Prohibit Smoking in Bars and
Bingo Parlors, Prohibit Retail Smoke Shops Within 300 Feet of Schools, Universities and Hospitals, and to
Amend and Adopt Certain Definitions and Providing an Effective Date 90 Days from Adoption (ALL
COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council adopt the attached ordinance amending the City Code, Chapter
29.5, "Smoking,"to prohibit smoking in bars and bingo parlors, prohibit retail smoke shops within 300 feet
of schools, universities and hospitals, and to amend and adopt certain definitions, and providing the
ordinance to be effective within 90 days of adoption.
DISCUSSION:
In 2007 (effective 2008), the City Council approved Ordinance No. 17719 prohibiting smoking in most
public places, such as: restaurants, bars in restaurants, business and office buildings, as well as within 20
feet of a primary entrance/exit of a regulated facility.
The 2007 ordinance allowed smoking in the following places with some restrictions:
• Bars —defined as "establishments that are licensed by the State and that have more than 70 percent of
their annual gross sales in alcoholic beverages for consumption by guests on the premises. Calculation of
gross sales shall be made from the combined sale of food and beverages. Restaurants that contain a bar
are not considered a "bar."
• Hotel/Motel Rooms—but only up to 25 percent of the total number of rooms in the Hotel-Motel rented
to guests may be designated as smoking rooms.
• Private Clubs—to mean an associated group of persons that are members governed by a board of
representatives, and the facility which the club owns, leases or rents for the benefit of its members and
guests.
• Private Meeting Rooms in Public Places— as long as the entire room remains private and is not open
to the general public.
• Outdoor Dining Areas— as long as the area is more than 20 feet from the primary entrance or from
operable windows.
• Outdoor Service Lines— more than 20 feet from a primary entrance/exit.
• Retail Tobacco Stores—if the store is a stand-alone facility and its primary business is the sale of
tobacco products and accessories.
Currently, the City of Fort Worth is one of the last major cities in Texas that still allows for smoking in bars
and does not address electronic cigarettes. Stakeholders such as the American Cancer Society, American
Heart Association and Blue Zone Project Fort Worth have requested that the City Council revise the City's
Logname: 12SMOKEORDAMEND17 Page 1 of 2
Smoking regulations, and now staff recommends that the City Council adopt the attached ordinance which
would prohibit smoking in bars and bingo parlors and prohibit retail smoke shops within 300 feet of
schools, universities and hospitals. Furthermore, the ordinance would make the following definition
amendments:
• Delete the definition of Bar, Bingo Parlor and Restaurant to allow for consistency with zoning
regulations.
• Include the words bar and bingo parlors in the list of enclosed areas which are defined as Public
Places.
• Revise Retail Tobacco Store to be Retail Smoke Shop and require that 90% of its gross annual
sales be from tobacco, smoking, e-cigarette or related products and accessories with no onsite
consumption of alcohol allowed.
• Adopt definitions for Electronic Smoking Device and Private Club to be consistent with "Smoke
Free" cities.
• Provide for a definition of Cigar Lounge to be an establishment which 30% of its gross annual sales
come from the onsite consumption of cigars and cigar accessories, and restricted to individuals 18
years of age and above.
• Allow for Retail Smoke Shops and Cigar Lounges to provide for an air ventilation system as an
alternative to being a stand alone facility.
• Clarify that smoking is still allowed in outdoor dining areas or patios of public places provided the
area where smoking is permitted is 20 feet away from entrances and exits.
The new regulations shall be effective 90 days from the date the ordinance is adopted.
This M&C does not request approval of a contract with a business entity.
FISCAL INFORMATION /CERTIFICATION:
The Director of Finance certifies that this action will have no material effect on City funds.
FUND IDENTIFIERS (FIDS):
TO
Fund Department Aci Budget Reference # �mount
ID ID Year . (Chartfield 2)
FROM
Fund Department Accoun Project Program ctivity Budget Reference # moun
ID ID Year (Chartfield 2)
CERTIFICATIONS:
Submitted for City Mananees Office by: Fernando Costa (6122)
Originating Department Head: Sarah Fullenwider (7623)
Christa Lopez-Reynolds (8984)
Additional Information Contact: Elmer Depaula (7251)
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