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HomeMy WebLinkAboutOrdinance 11285r ~ ~ ~r +. a : i i `~ r ORDINANCE N0. //ate ~~ AN ORDINANCE AMENDING CHAPTER 29.5, "SMOKING", OF THE CODE OF THE CITY OF FORT WORTH (1986), AS AMENDED, BY AMENDING SECTION 29.5-1, "DEFINITIONS", TO DELETE, ADD AND REVISE THE DEFINITIONS OF CERTAIN TERMS THEREIN; BY AMENDING SECTION 29.5-2 TO PROHIBIT SMOKING IN CITY BUILDINGS; BY AMENDING SECTION 29.5-3 TO PROHIBIT SMOKING IN ALL FOOD ESTABLISHMENTS IN CITY BUILDINGS; BY AMENDING SECTION 29.5-4 TO MAKE SUCH SECTION APPLICABLE TO FIRE STATIONS AND TO PROHIBIT SMOKING IN WORKPLACES `~ IN CITY BUILDINGS; BY AMENDING SECTION 29.5-6 TO PROVIDE THAT CERTAIN VIOLATIONS ARE PUNISHABLE BY A FINE OF NOT MORE THAN $500.00; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERA- BILITY CLAUSE; PROVIDING A PENALTY; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWS- PAPER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the surgeon general of the United States has declared that smoking is one of the major public health problems of our time; and WHEREAS, the City of Fort Worth recognizes that increasing • evidence indicates that smoke creates a danger to the health of its citizens and that smoking is a cause of annoyance and discom- fort to those who are in confined space where smoke is present; and WHEREAS, in order to protect the health and welfare of its citizens who utilize City buildings, it is necessary to prohibit all smoking in City buildings; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: SECTION 1. That Chapter 29.5, "Smoking", of the Code of the City of Forty Worth, Texas (1986), as amended, be and is hereby amended as •~~ follows i t i EXHIBIT "A" fM1 r'~ 1. Section 29.5-1, "Definitions", is amended by • .deleting the definition of "Public Service Area"; by adding the following definitions of "Building", "City", "City building" and "Lessee-controlled building"; and by revising the definition of "Workplace", as follows: "'Building' means a structure having a roof supported by columns or walls for the housing or enclosure of persons, animals or chattels. "'City' means the City of Fort Worth. "'City building' means any building which is owned by the City except a fire station or a 'Lessee-controlled building'. "'Lessee-controlled building' means a building that is leased to a person for a term of more than six months under a lease which gives the lessee the right to occupy the entire building. "'Workplace' means any enclosed area of a structure, or portion thereof, intended for occupancy by employees who provide primarily clerical, professional or business services • of a business entity, or which provides pri- marily clerical, professional or business services to other business entities, or to the public, at that location. 'Workplace' shall include any enclosed area in a City fire station." 2. Section 29.5-2, "Smoking prohibited in certain public areas" is amended as follows: a. The title of the section is changed to read "Smoking Prohibited in Certain Public Areas and in City Buildings". b. Subsection (a) is changed to read: "~a) A person commits an offense if he or she smokes or possesses a burning tobacco, weed or other plant product in any of the following indoor or enclosed areas: (1) an elevator used by the public; -2- (2) a hospital or nursing home corridor • providing direct access to patients' rooms; (3) a City building; (4) a retail or service establishment serving the general public, including but not limited to any department store, grocery store, or drug store; (5 ) an area marked with a ' no smoking' sign in accordance with Subsec- tion ( b ) by the owner or person in control of a hospital, nursing home or retail or service establishment serving the general public; or (6) any facility of a public primary or secondary school; or an enclosed theater, movie theater, library, museum or bus." c. Subsection (d) is changed to read: • "(.d) The owner or person in control of an establishment or area which is described in Subsection (a)(4) or {a){6) may designate an area, including but not limited to lobbies, meeting rooms, or waiting rooms, as a smoking area; provided that the designated smoking area may not include: (1) the entire establishment; (2) cashier areas or other over-the- counter sales areas; (3) the viewing area of a theater or movie theater; or (4) any area in a City building." d. Subsection (e) is changed to read: "(e) It is a defense to prosecution under this section if the person was smoking in a location that was not in a City building and that was: (1) a designated smoking area of a facility or establishment described -3- 1 + in Subsection (a)(4) or (a)(6) of • this section which is posted as a smoking area with appropriate signs; (2) an administrative area or office of an establishment described in Sub- section ((a)(4) or (a)(6) of this section; (3) a retail or service establishment serving the general public with less than five hundred (500) square feet of public showroom or service space or having only one (1) employee on duty, unless posted as designated in Subsection (a)(5) of this section; (4) a retail or service establishment which is primarily engaged in the sale of tobacco, tobacco products or smoking implements; or (5) a retail or service establishment which is a food establishment regu- lated by Section 29.5-3." 3. Section 29.5-3, "Regulation of smoking in food establishments", is amended by adding the following new subsection: "(h) This section does not apply to food establishments located in City buildings. Section 29.5-2 prohibits smoking in all areas of City buildings, including food establishments. Desig- Hated smoking areas are not permitted in City buildings." 4. Section 29.5-4, "Smoking in the workplace", is amended by adding the following new subsection. ` "(d) This section shall apply to work- places in the City's fire stations. This section shall not apply to other workplaces in City buildings which shall be subject to the provisions of Section 29.5-2." 5. Section 29.5-6, "Penalties", is amended by changing Subsection (a) to read: -4- "(a) Any person violating Section 29.5- . 2(a), upon conviction, is punishable by a fine of not more than Five Hundred Dollars ($500.00)." SECTION 2. This ordinance shall be cumulative of ail provisions of ordinances and of the Code of the City of Fort Worth, Texas (1986), 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 ordi- nances and such Code are hereby repealed. SECTION 3. It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and, if any phrase, clause, sen- tence, 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 4. 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 -5- 4 _ , G offense. Each day that a violation is permitted to exist shall • cpnstitute a separate offense. SECTION 5. All rights and remedies of the City of Fort Worth, Texas are expressly saved as to any and all violations of the provisions of any other ordinances which have accrued at the time of the effec- tive 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. SECTION 6. The City Secretary of the City of Fort Worth, Texas, is hereby directed to publish the caption, penalty clause and effec- tive date of this ordinance for two (2) days in the official newspaper of the city of Fort Worth, Texas, as authorized by Section 52.0.13, Texas Local Government Code. SECTION 7. This ordinance shall be in full force and effect from and after its passage and publication as required by law, and it is so ordained. APPROVED AS TO FORM AND LEGALITY: City Attorney Date : 3 ` 3 ~ ' `~ 3 ADOPTED: -~ 3 ~-q~ t EFFECTIVE : ~~ ~ ~ - q~ -6- Chapter 29.5 SMOKING Sec. 29.5-1. Definitions. In this chapter: Administrative area means the area of an establishment not generally accessible to the public, including but not limited to individual offices, stockrooms, employee lounges, or meeting rooms. Cashier area means the area immediately adjacent to and extending for a seven-foot radius from any cash register, customer service window, pharmacy area, meat counter or other area where goods or services are paid for or where goods are exchanged. Director means the director of the department of public health or the director's designated representative. Employee means any person who is employed by any employer for direct or indirect monetary wages or profit. Employer means any person who employs the services of an individual person. Enclosed means closed in by a roof and walls with appropriate openings for ingress and egress, but does not include areas commonly described as public lobbies. Food establishment means any operation defined as such in section 16-101 of this Code. EXHIBIT "B" Bus means every motor vehicle designed for carrying more than ten (10) passengers and used for the transportation of persons for hire; and every motor vehicle, other than a taxicab, designed and used for the transportation of persons for compensation. Hospital means any institution that provides medical, surgi- cal, and overnight facilities for patients. Person shall include associations, firms, partnerships and corporations as well as individuals or groups of individuals. . ~3-ie-sir-~iee-a=-~a--mews-a~t~+~-a-r~a-to--~h-i e~? '-'~ = ,.^.... ~ ° , ~tb3~e-~e~tt-a ee~ess--€er-~~-ie-rga~ 7 ----- ^J Retail and service establishment means any establishment which sells goods or services to the general public. Smoking means the possession of a burning tobacco, weed or other plant product. Workplace means any enclosed area of a structure, or portion thereof, intended for occupancy by employees who provide primarily clerical, professional, or business services of a business entity, or which provide primarily clerical, professional, or business services to other business entities, or to the public, at that location. A~~.`;... ~~~r~e~a"~:> %os~(~'~`~+e`~'~~' .- ~r~~a Sec. 29.5-2. Smoking prohibited in certain public areas ~1~ (a) A person commits an offense if he or she smokes or possesses a burning tobacco, weed or other plant .product in any of the following indoor or enclosed areas: {1) An elevator used by the public; (2) A hospital or nursing home corridor providing direct access to patients' rooms; {,3 ) ~~--e~e~r€e~e~es--~ee~-meet-i~g ~ee~t-, er-=-pubis ^_- - -__ ei-t-~;-bed-fees-~e~-iae~ea^r-pew= t#e-~i rhea-te~~sT--e-e~e~ert ~~e-, er ~l~ara= €ae~i~res-- ~a~~t~~' (4) A~ retail or service establishment serving the general public, including, but not limited to, any department store, grocery store, or drug store ae$-s#al' - -^' ••~'^ ~4e a~a}~am--Age rte.-j-t~i'~o r-s-~eme~r~.~-~~ ie~c-T-a~tc~ et~a~#' ae-i~r~ies; (5) An area marked with a no smoking sign in accordance with subsection (b) by the owner or person in control of a hospital, nursing home, or retail or service establish- ment serving the general public; or (6) Any facility of a public primary or secondary school,; or an enclosed theater, movie theater, library, museum, or • bus. -2- (b) The owner or person in control of an establishment or • area designated in subsection (a) of this section shall post a conspicuous sign at the main entrance to the establishment or area. The sign shall contain the words, "No Smoking, city of Fort Worth Ordinance", the universal symbol for no smoking, or other language that clearly prohibits smoking. (c) Every hospital shall: (1) Allow all patients, prior to elective admission, to choose to be in a no smoking patient room; and (2) Adopt a policy which requires that employees or visitors obtain express approval from all patients in a patient room prior to smoking. (d) The owner or person n control of an establishment or area described in subsection (a){4) or (a)(6) may designate an area, including but not limited to lobbies, meeting rooms, or waiting rooms, as a smoking area; provided that the designated smoking area may not include: (i) The entire establishment; (2) Cashier areas or over-the-counter sales areas; or 3 The viewin area of an the M ( ) a r~~ ~ g` ~~J ~ v~ y ~`c ester or movie theater; (4 ) ~~~re~a...~. Yi~~^a:,a~it ~ bui~.ding. (e) It is a defense to prosecution under this section if the person was smoking in a location that was ~not~ `~~ " a=z~~].ty bud ding (1) A designated smoking area of a facility or establishment described in subsection (a)(4) or (a)(6) of this section which is posted as a smoking area with appropriate signs; (2) An administrative area or office of an establishment described in subsection (a)(4) or (a)(6) of this section; (3) A` retail or service establishment serving the general public with less than five hundred (500) square feet of public showroom or service space or having only one {1) employee on duty, unless posted as designated in subsec- tion (a)(5) of this section; (4) A retail or service establishment which is primarily engaged in the sale of tobacco, tobacco products or smoking implements; or -3- (5) A retail or service establishment which is a food estab- lishment regulated by section 29.5-3. Sec. 29.5-3. Regulation of smoking in food establishments. (a) A food establishment which has indoor or enclosed dining areas with seating arrangement for one hundred twenty-five (125) patrons or more shall provide separate indoors or enclosed dining areas of smoking and nonsmoking patrons. (b) A food establishment which has indoor or enclosed dining areas with seating arrangement for less than one hundred twenty- five (125) patrons may provide separate indoor or enclosed dining areas for smoking and nonsmoking patrons. (c) A nonsmoking area must: (i) Be separated, where feasible, from smoking areas by a minimum of four (4) feet of contiguous floor space; (2) Be ventilated, where feasible, and situated so that air from the smoking area is not drawn into or across the nonsmoking area; (3) Have ash trays or other suitable containers for extin- guishing smoking materials at the perimeter of non- smoking areas; and (4) Be clearly designated by appropriate signs visible to patrons within the dining area indicating that the area is designated nonsmoking; provided, however, that in establishments where all patrons are seated by a host or hostess who advises them that separate smoking and nonsmoking areas are available, no such signs shall be required. (d) In food establishments which designate nonsmoking areas pursuant to this section, nondining areas to which patrons have general access, including, but not limited to, food order areas, food service areas, restrooms, and cashier areas, shall be desig- nated as nonsmoking areas. (e) A person commits an offense if he or she smokes or possesses a' burning tobacco, weed, or other plant product in an area of a food establishment designated as a nonsmoking area. (f) If the owner or person in control of a food establish- ment described in subsection (b) hereof does not designate a nonsmoking area, signs stating, "This Establishment Does Not provide a Nonsmoking Area", shall be posted at all exterior entrances to such establishment. Such signs shall be clearly legible and shall be posted conspicuously so as to be readily -4- observable by a reasonably observant person. It shall be an offense for the owner or person in control of such establishment to fail to post the signs required by this subsection. (g) It shall be a defense to prosecution under this section that the food establishment is: (1) An establishment which has seating arrangements for less than one hundred twenty-five (125) patrons, does not provide separate dining areas for smoking and nonsmoking patrons, and has posted signs as provided in subsection (e); or (2) An establishment which has more than seventy (70) per- cent of its annual gross sales in alcoholic beverages; or (3) A physically separated bar area of a food products establishment. (a) Notwithstanding the provisions of sections 29.5-2 and 29.5-3, ail employers shall adopt, maintain and enforce a written smoking policy for the workplace which complies with this section. Such policy shall meet the following minimum standards but may be more stringent than what is required herein. (1) The policy shall provide that a smoke-free workplace shall be available for employees who so desire but shall also exhaust all reasonable means of accommodation for smoking employees. (2) The policy shall designate those areas in which smoking is prohibited or permitted. (3) No designated smoking areas shall be located in common use areas such as conference areas, waiting rooms, meeting rooms, restrooms, halls, stairways, lobbies or areas to which the public routinely has access. An employer amy, however, have a policy which permits smoking in a conference or meeting room if all parties in the room agree that smoking shall be permitted. If only one person does not agree to others smoking in such a conference or meeting room, smoking shall be pro- hibited to everyone in the room. -5- Sec. 29.5-4. Regulation of smoking in the workplace. (4) The employer shall place signs at the entrances to the place of business with the universal symbol and wording to indicate that smoking is prohibited or permitted only in designated areas which must also be posted with appropriate signs. Such signs shall read "No Smoking", "No Smoking, City Code Section 29.5-4", "No Smoking Except in Designated Areas", "Smoking is Prohibited in This Building" or similar wording. (5) The employer shall provide facilities for the extin- guishment of smoking materials in sufficient numbers and at such locations as to be readily accessible. (6) The policy shall be available for inspection by employees and the director or his authorized representa- tive. (7) Any employee who violates the provisions of an employer's smoking policy shall be subject to disci- plinary action in accordance with the employer's usual and customary policies and procedures. (8) All employers shall adopt a written policy concerning smoking in the workplace and shall comply with section 29.5-4(a) not later than August 1, 1989. Employers who require additional time for adoption of a policy and compliance with such section may, for good cause shown, obtain an extension of time, not to exceed twelve (12) months, from the director. (b) It shall be unlawful for any person, other than an employee who is subject to disciplinary actin under section 29.5- 4(a)(7), to violate the provisions of an employer's written smoking policy, adopted and maintained in accordance with section 29.5-4(a). (1) It shall be a defense to prosecution under this section that the workplace does not have prominently displayed reasonably sized signs indicating that smoking is pro- hibited. (2) It shall also be a defense to prosecution under this section that facilities for the extinguishment of smoking materials were not located in said workplace in sufficient numbers and at such locations as to be readily accessible. (c) It shall be unlawful for an employer to fail to adopt, maintain or enforce a written policy for smoking in the workplace in accordance with section 29.5-4(a), or to .fail or refuse to comply with any of the other requirements of section 29.5-4(a). i -6- • (a) This chapter does not require that the owner, operator, manager or any employee of an establishment report a violation or take any action against any individual violating sections 29.5-1 through 29.5-3. No such failure by an owner, operator, manager or employee to report a violation or to take action against an individual for violating sections 29.5-1 through 29.5-3 shall constitute a violation of this chapter. (b) The responsibility of an employer, operator, manager or other person in control of the workplace for enforcement of regulations and reporting violations concerning smoking in the workplace shall be as provided in section 29.5-4(c). No such employer, operator, manager or other person in control of the workplace shall, however, be required to report a violation of section 29.5-4(b) or take any action against a person for vio- lating such section. Sec. 29.5-6. Penalties. (a) Any person violating section 29.5-2(a), upon conviction, is punishable by a fine of not more than twe-~~-r-e~ Qe~a~s t'~n"~re~d~~c~~rs ~( $"50000 (b) Any person violating section 29.5-2(b), 29.5-2(c), 29.5- 3, 29.5-4(b) or 29.5-4(c), upon conviction, is punishable by a fine of not less than twenty-five dollars ($25.00) nor more than two hundred dollars ($200.00); provided, however, in the event a person has previously been convicted of a violation of the same section, such person shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) for a second conviction hereunder, and shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) far a third conviction of a violation of the same section and for each conviction thereafter. Sec. 29.5-7~. Structural modifications not required. Nothing in this chapter shall require the owner, operator, manager, or other persons in control of any building, facility, room, establishment, or structure to incur any expense to make structural or other physical modifications to comply with the terms and conditions of this chapter. The posting of signs or the equipping of any area with facilities for the extinguishment of -7- Sec. 29.5-5. Responsibility for reporting violations and taking action. smoking materials shall not be construed to be structural or other physical modifications. • • -8- ~.. . CITI~o-~r?"'F ~O~' WO1~'; ; TI, TEXAS COUtVCIL PROPOSAL PROPOSAL: It is proposed that the City Council adopt the attached ordinance to prohibit smoking in all City buildings except dwellings on City land which is leased to an individual or individuals. DISCUSSI.ON The United States Surgeon General has reported that smoking is one of the major health problems of our times and creates a danger to those who are exposed to secondary smoke Section 29.5 of the Fort Worth City Code contains provisions regulating smoking in buildings owned or operated by the City of Fort Worth Chapter 29.5 presently permits smoking at the following locations in City buildings: 1 In designated smoking areas at Meacham Airport, the Will Rogers Memorial Complex and common areas of City-owned theatres, concert halls, cultural facilities, libraries or museums 2 In designated smoking areas in the workplace which are established in accordance with a policy issued by the City Manager. To protect the health and welfare of its citizens who utilize City buildings, it is proposed that the City council adopt the attached ordinance, which would: 1. Prohibit smoking in all City-owned or City-managed buildings except dwellings on City land which is leased to an individual or indi- viduals, a g. the Lake Worth properties 2 Prohibit the:~designation of smoking areas in City buildings, including all food service areas and workplace areas. 3. Increase the penalty for violations from a fine of not more than $200 00 to a fine of not more than $500 00 LEGALITY: This proposal is within the powers of the City Council and there is no legal impediment to its adoption. FISCAL NOTE The cost of implementing this proposal is not expected to have any significant financial impact O LEGALITY C FISCAL NOTE D CITY MANAGER'S COMMENTS O CITY POLICIES MANUAL Oate File Number Subject ORDiNANCEAMENDINGCFiAPTER29 5 "SMOKING", 3-11-g3 CP-178 ~~ ,/ Proposed by Councilmembers City Manager's Review /~~ , Chappell, Matson, Silcox ~ Page 1 of 2 ,~. _ . Page 2 of 2 COUNCIL PROPOSAL (Cont'd.) CITY MANAGER'S COMMENTS: The City Manager has no objections to this proposal. Councilman David Chappell District 9 Councilman Chuck Silcox District 3 Councilman Morris Matson District 4 APR©V~D C~~'Y C~U~~~L } M~ ~0 1993 Adopted Qrd~n~anc~~ N~oJ/`~~~ ~~ CFtq s°c~cast~ o(tho ~itp a~ I'vrt Wasth, ?exns • CITY OF FORT WORTH