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0537AN ORDINANCE TO PROMOTE THE PUBLIC HEALTH BY ESTABLISHING PUBLIC SMOKING REGULATIONS; PROVIDING FOR DEFINITIONS; PROHIBITING SMOKING IN CERTAIN DESIGNATED AREAS AND PUBLIC PLACES; REGULATING SMOKING IN FOOD PRODUCTS ESTABLISHMENTS; REGULATING SMOKING IN THE WORKPLACE; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY FOR VIOLATIONS HEREOF; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN PAMPHLET FORM; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Southlake, Texas is a home rule city acting under its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS, there is a substantial body of evidence which concludes that the smoking of tobacco may be a danger to health and a health hazard to those who are present in confined spaces; and Wl][EREAS, it is the desire of the City Council of the City of Southlake, Texas, to provide for the regulation and prohibition of the smoking or burning of tobacco products within certain facilities, both private and public, within the City of Southlake, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS: SECTION 1 Definitions The following words and terms when used in this ordinance, unless otherwise defined within, shall be understood to mean: 1.1 "Employee" - means any person who is employed by any employer for direct or indirect monetary wages or profit. 1.2 "Employer" - means any person who employs the services of an individual person. 1.3 1.4 1.5 1.6 1.7 1.8 "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 Products Establishments" - means an operation that sells food for human consumption and includes restaurants of any kind, but does not include grocery stores. "Health Care Facilities" - any office or institution providing individual care or treatment of diseases, whether physical, mental or emotional, or other medical, physiological and psychological conditions. "Person" - shall include associations, firms, partnerships and corporations, as well as individuals or groups of individuals. "Public place" - means any enclosed area to which the public is invited or in which the public is permitted, and includes, but is not limited to: stores, offices, theaters, and other commercial establishments, restaurants, public and private institutions of learning, health care facilities, nursing and convalescent homes, and all public governmental facilities, but does not include the officers or work areas of workplaces not entered by the public in the normal course of business. A private residence is not a public place. "Smoking" - means the possession of, or emitting or exhaling the smoke of, burning tobacco, weed, or other plant product. 1.9 "Workplace" - means any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment. A private residence is not a place of employment. SECTION 2. General Provisions 2.1 The owner, operator, manager, employer, or other person having control of any area where smoking is prohibited shall post notice, as provided herein, in sufficient numbers and at such conspicuous locations, including entrances thereto, so as to be readily observable by a reasonably observant person and shall provide receptacles for the extinguishment of smoking materials within twenty feet (20') of the entrance to such area where smoking is to be prohibited as provided by this ordinance. 2.2 A sign prohibiting smoking shall be sufficient if it contains the words "no smoking, City of Southlake ordinance," the universal symbol for no smoking, or other language that clearly prohibits smoking. Notice shall be deemed sufficient if each entrance to a building is posted with a sign containing the words "smoking permitted in designated areas only." 2.3 Nothing in this ordinance shall require the owner, operator, manager, employer, 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 slakc~smokingor d(101592) Page 2 and conditions of this ordinance. The posting of signs or the equipping of any area with facilities for the extinguishment of smoking materials shall not be construed to be infeasible structural changes. 2.4 Nothing in this ordinance shall be construed to permit smoking where it is othepadse prohibited by law or regulation. 2.5 Nothing in this ordinance shall be construed to preclude any owner or other person having authority to manage and control any public place or place of employment from prohibiting smoking to a greater extent than is provided by this ordinance. SECTION 3 Smoking Prohibited in Certain Designated Areas and Public Places 3.1 An owner, operator, manager, employer, or other person having control of any building or area within a building may designate all or any part of such building area thereof a "no smoking" area wherein smoking shall be prohibited upon compliance with the provisions of this ordinance and the posting of notice as herein required. 3.2 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 areas: (a) an elevator used by the public; (b) any enclosed or indoor public place of any facility owned, operated or managed by the City, including but not limited to any public meeting room, conference room, restroom or public service area; (c) any enclosed or indoor retail, or service establishment serving the general public including, but not limited to, any grocery store, drug store, department store, and the public places within financial institutions; (d) every publicly or privately owned theater, auditorium, or other enclosed facility which is open to the public for the primary purpose of exhibiting any motion picture, performing arts, museum displays, athletic event, or any other performance or event; (e) all areas which have been properly designated by the owner, manager, employer, or other person having control of any building or area as "nonsmoking" areas in accordance with Section 3.1 of this Ordinance; (f) any enclosed or indoor facility of a public primary or secondary school; (g) public spectator seating areas of arenas, stadiums and outdoor events where chairs, benches or similar seating is provided, unless specifically designated as a smoking section; alakeX~moking~or d(101592) Page 3 (h) health care facilities; provided that the owner or other person with authority to manage and control such facility may designate separate rooms, including in-patient sleeping quarters, or areas as places where smoking is permitted, using existing physical barriers and ventilation systems to the greatest extent possible to minimize the smoke in adjacent nonsmoking areas. In no event shall smoking be permitted in any health care facility corridor providing direct access to in-patient sleeping quarters; (i) designated nonsmoking areas of food products establishments as set forth in Section 4 of this Ordinance; designated nonsmoking areas of workplaces as set forth in Section 5 of this Ordinance; 3.3 The owner or person in control of an establishment or area described in section 3.2(c), 3.2(d), 3.2(0 and 3.2(g) may designate an area with the establishment as a smoking area provided that: (a) the area may not include the entire establishment; (b) the area may not include cashier areas or over the counter sales areas; (c) the area may not include the viewing area of any theater or movie theater; (d) the area may not include the entire lobby; (e) the area in which smoking is permitted utilizes existing physical barriers and ventilation systems to the greatest extent possible to minimize the smoke in adjacent nonsmoking areas. 3.4 It is a defense to prosecution under this section if the person was smoking in an area that was: (a) a designated smoking area of a facility or establishment described in section 3.2(c), 3.2(d), 3.2(f), 3.2(g) and 3.2(h) of this section which is posted as a smoking area with appropriate signs. (b) an administrative area or private office of an establishment described in section 3.2(c), 3.2(d), 3.2(f), or 3.2(h), unless such administrative area or private office is posted as a nonsmoking area in accordance with Section 3.1. (c) a retail or service establishment which is primarily engaged in the sale of tobacco products or smoking implements; (d) not posted as a nonsmoking area as required by sections 2.1 and 2.2 of this ordinance. slakcXamokin g~rd(101592) Page 4 SECTION 4 Food Products Establishments 4.1 A food products establishment which has indoor or enclosed dining areas with seating arrangement for fifty (50) or more patrons shall provide separate indoor or enclosed dining areas for nonsmoking patrons. A food products establishment which has outdoor dining areas with seating arrangements for fifty (50) or more patrons shall provide separate outdoor dining areas for nonsmoking patrons. A nonsmoking area must: (a) be separated, where feasible, from smoking areas by a minimum of four feet (4') of contiguous floor space; (b) utilize existing physical barriers and ventilation systems to the greatest extent possible to minimize the smoke in adjacent nonsmoking areas, and be situated where feasible so that air from the smoking area is not drawn into or across the nonsmoking area. (c) be clearly designated by appropriate signs visible to patrons within the dining area indicating that the area is designated nonsmoking; (d) have ash trays or other suitable containers for extinguishing smoking materials at the perimeter of the nonsmoking area. 4.2 A food products establishment may desiguate any portion of an indoor or outdoor dining area with seating arrangement for less than fifty (50) patrons as a nonsmoking area. If the owner or person in control of such a food products establishment does not designate a nonsmoking area, signs stating 'Whis establishment does not provide a[n indoor or outdoor] 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 observable by a reasonably observant person. 4.3 Nothing in this section shall be construed to prevent an owner or person in charge of a food products establishment from designating the entire establishment as nonsmoking. 4.4 Each food products establishment which has indoor or enclosed dining areas with seating arrangement for fifty (50) or more patrons or outdoor dining areas with seating arrangements for fifty (50) or more patrons shall: (a) have and implement a written policy which conforms to this ordinance and is kept on file on the premises; make the policy available for inspection by employees and municipal enforcement personnel; slake~moking.ord(lO1592) Pagc 5 4.5 Nondining areas of any food products establishment affected by this section to which patrons have general access, including, but not limited to, food order areas, food service areas, restrooms and cashier areas shall be designated as nonsmoking areas. 4.6 It is a defense to prosecution under this section that the food products establishment is: (a) an establishment which has more than seventy percent (70%) of its annual gross sales in alcoholic beverages; or, (b) a physically separated bar area of a food products establishment otherwise regulated by this Ordinance. 4.7 It shall be unlawful to operate a food products estabhshment without complying with this Ordinance. SECTION 5 Smoking in the Workplace 5.1 Within three (3) months from the effective date of this ordinance, every employer within the City of Southtake who owns, occupies or controls a workplace shall adopt, implement and enforce a written policy on smoking that: (a) conforms to this Ordinance and Section; (b) reasonably accommodates the interests of both smokers and nonsmokers but minimizes the involuntary exposure of nonsmokers to second-hand smoke; (c) designates nonsmoking areas so as to use ex/sting structural barriers and ventilation to minimize involuntary exposure of nonsmokers to second-hand smoke; and (d) establishes a procedure for addressing employee disputes and objections arising under the no smoking policy; (e) contains a statement that the employer shall not discharge, retaliate, or discriminate against any employee who: O) files any complaint or causes any proceeding to be instituted under or related to this ordinance; (2) testifies or will testify in any proceeding instituted under this ordinance; or, exercises on his own behalf or the behalf of others any right afforded by this ordinance. 5.2 Employers shall provide conspicuous signage indicating nonsmoking areas; slakc~smokiag~r d(101592) Page 6 5.3 Nothing in this Section shall prohibit an employer from designating an entire workplace as nonsmoking. 5.4 Employers shall supply a written copy of the smoking policy to all current employees within three (3) weeks of the date of the adoption of the policy, and to all future employees at the time of their entry into employment. 5.5 It shall be unlawful for an employer to operate a workplace without complying with the requirements of this Ordinance. SECTION 6 Enforcement Any person who violates this ordinance shall be guilty of a Health and Sanitation misdemeanor violation and subject to a fined amount not more than Two Thousand Dollars ($2,000.00). Each day that a violation is permitted to exist shall constitute a separate offense. SECTION 7 This ordinance shall be cumulative of all provisions of ordinances of the City of Southlake, Texas, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances, in which event the conflicting provisions of such ordinances are hereby repealed. SECTION 8 It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs and sections 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 slakcXamoking~ord(101592) Page 7 City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 9 All fights and remedies of the City of Southlake are expressly saved as to any and all violations of the provisions of any ordinances affecting smoking regulations 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. SECTION 10 The City Secretary of the City of Southlake is hereby directed to publish the proposed ordinance or its caption and penalty together with a notice setting out the time and place for a public hearing thereon at least ten (10) days before the second reading of this ordinance, and if this ordinance provides for the imposition of any penalty, fine or forfeiture for any violation of any of its provisions, then the City Secretary shall additionally publish this ordinance in the official City newspaper one time within ten days after passage of this ordinance, as required by Section 3.13 of the Charter of the City of Southlake. The City Secretary of the City of Southlake is hereby authorized to publish this ordinance in book or pamphlet form for general distribution among the public, and the operative provisions of this ordinance as so published shall be admissible in evidence in all courts without further proof than the production thereof. *lakcXamoking.ord(101592) Page 8 SECTION 11 This ordinance shall be in full force and effect from January 1, 1993, after its passage and publication as required by law, and it is so ordained. PASSED AND APPROVED ON FIRST READING ON THIS , 1992. DAY OF gq. .-" /~ '".i :~ A T: .... ........ .... ~'"""',,"'~'"'" C~Y SEC~T~Y PASSED AND APPROVED ON SECOND READING ON THIS d.~ DAY OF _~/dJ.-> ,1992. ~ ~..' . -.~ ~..' ~ '-.~ % ;'"~ ,,, APPROVED AS TO FORM AND LEGALITY: City Attorney Date: // ADOPTED: /f9 EFFECTIVE: slakcXsmokiug.ord(10D92) Page 9 Fort Worth Star-Telegram 400 W.SEVENTH STREET•FORT WORTH,TEXAS 76102 -"E STATE OF TEXAS unty of Tarrant Before me , a Notary Public in and for said County and State , this day personally appeared CAL RILEY Billing Specialist for the Fort Worth Stdr-Telegrdm , published by the Star-Telegram Inc . dt Fort Worth, in Tarrant County, Texas; and who, after being duly sworn, did depose and say that the following clipping of an advertisement was published in the above named paper On tha followina dates : DATE AD INVOICE NO. DESCRIPTION i AD SIZE . A�,� RATE AMOUNT OCT 23 6960765 CL. 358 1X55 L 55 . 40 22 . 00 ORDINANCE NO.537 OCt 23 AN ORDINANCE U P.O. # 537 TABLISHING PUBLIC SMOKING REGULA- TIONS• PROVIDING FOR DEFINITIONS; PROHIBITING SMOK- ING IN CERTAIN DES- IGNATED AREAS AND PUBLIC PLACES; RE- GULATING SMOKING IN THE WORKPLACE,. PROVIDING ORDINANC SHALL BE CUMULA- TIVE OF ALL ORDI- NAN A SE V E R AB IIDITY CLAUSE;A VG CLAUSE. PROVIDING SIGNED DR PUBLICATI N IN 2OVPHLET R$B: AND SWORN TO BEFORE ME , THIS THE 27 H A OF c7 TO R, 1992 CATION IN THE OF- NOTARY PUBLIC EFCIAL NEWSPAPER; -C.. FDECTIOVEIDATE.AN _ �C,�O_� ...: � t' '\ SECTIONsce at TARRANT COUNTY, TEXAS Any person who violates this ordl�nance shall be 9ullty - of a Health and Sanitation o�a o o��� °4ro�misdemeanor violation and -��- a v"-4.subject to a fined amount not morelhanTwoThousandDol- aY `4 SPENCERKATNRYN_1,- lays Each dap.0 at Q P s�1� IRES EacCh day that a violation Is Permltledtoexistshallconstl- �2.' COMMISSION EXP tuts a separate offense. '" lgg5 PASSED AND APPROVED '�i��./\ ��.' CO:R 1AY281 INSECONDREADINGTHIS THE 20th DAY OF OCTO- �j9hE�oF,�=� BER,1992. Gary Flckes, , ,{ V Ma1or of South lake C ATTEST: SSandra L.LeGrand, -TEAR A NG THIS PERFORATION AND RETURN THE LOWER PORTION WITH YOUR PAYMENT—� City SecretarY Approved Ol to form: WayAt or Olson, City Attorney REMIT TO : 400 W . SEVENTH , FW, TX 76102 R'='JI'T IC' 1> XFXCX I(X<X14 46X XOPX1XvX X X MOMX1-2051' Fort tar-Tele ram!çith NUMBERACCOUNT C 1 T 5 7 AMOUNT e d • U O 1 I PAGE OF CITY OF SOUTHLAKE ORIGINAL 667 N CARROLL AVE 22. 00 1 SOUTHLAKE TX 76092-8898 TPLEASE PAY Iii . HIS MOUNT Pm- ATTN : SANDY LEGRAND PLEASE WRITE IN AMOUNT ENCLOSED Fort Worth Star-Telegram 400 W.SEVENTH STREET•FORT WORTH,TEXAS 76102 . THE STATE OF TEXAS unty of Tarrant Before me , a Notary Public in and for said County and State , this day personally appeared CAL RII,FY Billing Specialist for the Fort Worth Star-Telegram, published by the Star-Telegram Inc . at Fort Worth, in Tarrant County, Texas ; and who, after being duly sworn, did depose and say that the following clipping of an advertisement was published in the above named paper on the following dates : DATE AD INVOICE NO. DESCRIPTION AD SIZE TOTAL RATE AMOUNT NCH/LINE SEP 04 6933403 SeptL•P 58 1X57 L 57 . 40 22 . 80 NOTICE ISHEARING given rt NOTICE OF PUBLIC P.O. _ .. ._ ._._. 537 HERE to all interested persons that the City Council of the City of Southlake,Texas,willbehold- ---- m. Ing a publichearingduringthe Regular City Council meeting to be held on September 1.,, 1992,at 7:00 .m.,Southlake City Hall 667 North Carroll - - Avenue,�outhlake,Texas. Purpose of the hearing is to considerthe second readingof .. the following ordinance: - ----�`- ------- - ORDINANCE NO.537 ' AN ORDINANCE TO PROMOTE PUBLIC HEALTHBY ESTAB- - ........ _ .... ....... ...... _._ _.. ............... .... ........... ......_._. . LISHING PUBLIC SMOKING REGULA- TIONS.; PROVIDINGS SIGNS G AREAS; PR VOID- AND SWORWT-O- BEFORE ME, T IS - E Th 3 - OF SEP,.:, I:E 1992 ENTIFICATIONOFR NOTARY PUB I ...._ )N-SMOKING �-��AREAS .. - _.. _...._........ ___..__. •\'. -- PENALTY THEREOF; ��� �\ �„, PROVIDING A SEVER- ABILITY CLAUSE AND xK�� TARRANT COUNTY, TEXA PROVIDING AN EF- ..� Ite% . FECTIVE DATE. - =s t 011 ARTICLE IV. :? "ff7 KATHRYN J. SPENCER $ c+i ENFORCEMENT r/�' COM +f't -- SECTION 1. ./ •. �•/ �' � 111 tV'il,r _ Penalty for Violation tir•. r" n TS•I 1.. t Any person who violates this ''yi 4 JJ ;1Y28, 199 ordinance by smoking in an h oci area designated 'no smok- ""^`` Ing" as herein authorized -- ---- -�-. —y - - - - - --- with notice posted as herein provided shall be guilty of a Health and Sanitation mis- demeanor violation and sub- led to a fined amount not —, more than(S2,000.00). Each day that a violation is -T AR AL G THIS PERFORATION AND RETURN THE LOWER PORTION WITH YOUR PAYMENT-� permlttedtoexistshallconsti- tute a separate offense. City of Southlake L.LeGrand City Secretary REMIT TO : 400 W . SEVENTH, FW , TX 76102 City Se F;E.m f'' �'f 1; ... )(.81.X3141>XM 1M X xn xINII ,XrX>14X MO1-2051 For qyt �h t.., r-Tele g ra m ACCOUNT C I T 5 7 AMOUNT 22 . 80 NUMBER DUE + PAGE OF CITY OF SOUTHLAKE ORIGINAL 667 N CARROLL AVE 22. 80 1 SOUTHLAKE TX 76092-8898 PLEASE PAY ► THIS AMOUNT ATTN : SANDRA LEGRAND PLEASE WRITE IN AMOUNT ENCLOSED