HomeMy Public PortalAboutOrd 431 Smoking in Public Places
(First Published in the Ark Valley News on the 3Ac1 day of November, 2005.)
THE CITY OF BEL AIRE, KANSAS
ORDINANCE NO, 431
AN ORDINANCE ELIMINATING SMOKING IN PUBLIC
PLACES AND PLACES OF EMPLOYMENT WITHIN THE
CORPORATE LIMITS OF THE CITY OF BEL AIRE,
KANSAS.
WHEREAS, the Governing Body of the City of Bel Aire, Kansas desires to
improve and protect the public's health by eliminating smoking in public places and
places of employment; and
WHEREAS, the Governing Body of the City of Bel Aire, Kansas desires to
guarantee the right of nonsmokers to breathe smoke-free air; and
WHEREAS, the Governing Body of the City of Bel Aire, Kansas desires to
recognize that the need to breathe smoke-free air shall have priority over the choice to
smoke.
NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE
CITY OF BEL AIRE, KANSAS:
Section 1. Definitions.
The following words and phrases, whenever used in this Ordinance, shall be
construed as defined in this section:
(A) Business means any sole proprietorship, partnership, joint venture,
corporation or other business entity formed for profit-making purposes, including retail
establishments where goods or services are sold as well as professional corporations
and other entities where legal, medical, dental, engineering, architectural or other
professional services are delivered.
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(B) Employee means any person who is employed by an employer in
consideration for direct or indirect monetary wages or profit, and any person who
volunteers his or her services for a non-profit entity.
(C) Employer means any person, partnership, corporation, including a
municipal corporation, or non-profit entity, which employs the services of one or more
individual persons.
(D) Enclosed Area means all space between a floor and ceiling which is
enclosed on all sides by solid walls or windows (exclusive of door or passage ways)
which extend from the floor to the ceiling, including all space therein screened by
partitions which do not extend to the ceiling or are not solid, "office landscaping" or
similar structures.
For the purposes of this Ordinance, the following shall not be considered an
Enclosed Area:
(1) Rooms or areas enclosed by walls or windows having neither a
ceiling nor a roof and which are completely open to the elements
and weather at all times.
(2) Rooms or areas, enclosed by walls or windows and a roof or
ceiling, having an opening at least twenty percent (20%) of the total
perimeter wall area completely and permanently open to the
elements and weather.
(E) Food Service Establishment shall mean any place in which food is served
or is prepared for sale or service on the premises or elsewhere. Such term shall include,
but not be limited to, fixed or mobile restaurant, coffee shop, cafeteria, short-order cafe,
luncheonette, grill, tea room, sandwich shop, soda fountain, tavern, private club,
roadside kitchen, commissary and any other private, public or nonprofit organization or
institution routinely serving food and any other eating or drinking establishment or
operation where food is served or provided for the public with or without charge.
(F) Licensed Premises shall mean any premises where alcoholic liquor or
cereal malt beverages, or both, by the individual drink as defined by K.S.A. Chapter 41,
and amendments thereto, is served or provided for consumption or use on the premises
with or without charge. Such term shall include drinking establishments, Class A Private
Clubs, Class B Private Clubs, and cereal malt beverage retailers, all as defined by
K.S.A. Chapter 41, and amendments thereto.
(G) Place of Employment means any enclosed area under the control of public
or private employer which employees normally frequent during the course of
employment, including, but not limited to, work areas, employee lounges and restrooms,
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conference and classrooms, employee cafeterias and hallways. A private residence is
not a "place of employment" unless it is used as a childcare, adult day care or health
care facility.
(H) Private Place means any enclosed area to which the public is not invited
or in which the public is not permitted, including but not limited to, personal residences
or personal motor vehicles. A privately owned business, open to the public, is not a
"private place."
(I) Public Place means any enclosed area to which the public is invited or in
which the public is permitted, including but not limited to, banks, educational facilities,
health facilities, laundromats, public transportation facilities, reception areas, production
and marketing establishments, retail service establishments, retail stores, theaters, and
waiting rooms. A private residence is not a "public place."
(J) Retail Tobacco Store means a retail store utilized primarily for the sale of
tobacco products and accessories and in which the sale of other products is merely
incidental.
(K) Service Line means any indoor line at which one (1) or more persons are
waiting for or receiving service of any kind, whether or not such service involves the
exchange of money.
(L) Smoking means possession of a cigarette, cigar, or pipe partially or wholly
consisting of or containing burning vegetation, or possession of any other device
containing burning vegetation that is used for the introduction of smoke from the burning
vegetation into the human body. For the purposes of this definition, the term vegetation
includes, but is not limited to, tobacco, but does not include any controlled substance
listed in K.S.A. 65-4105 through K.S.A. 65-4113 inclusive, and amendments thereto.
(M) Sports Arena means sports pavilions, gymnasiums, health spas, boxing
arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places
where members of the general public assemble either to engage in physical exercise,
participate in athletic competition, or witness sports events.
(N) Wall means a side of a room, building or structure connecting the floor and
ceiling or foundation and roof, including temporary, moveable, and retractable sides.
Section 2. Prohibition of Smokinq in Public Places.
Smoking shall be prohibited in all enclosed public places within the City of Bel
Aire, including, but not limited to, the following places:
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(A) Elevators,
(B) Restrooms, lobbies, reception areas, hallways, and any other common-
use areas.
(C) Buses, bus terminals, taxicabs, train stations, airports, and other facilities
and means of public transit under the authority of the City of Bel Aire, as well as ticket,
boarding, and waiting areas of public transit depots.
(D) Vehicle Sales and/or Service facilities including service stations.
(E) Retail stores.
(F) All areas available to and customarily used by the general public in all
businesses and non-profit entities patronized by the public, including, but not limited to,
attorneys' offices, and other offices, banks, laundromats, hotels, and motels.
(G) Food service establishments and licensed premises, excluding areas of a
food service establishment or licensed premises that are not enclosed such as patios,
outdoor dining areas, and courtyards.
(H) Galleries, libraries, and museums.
(I) Any facility which is primarily used for exhibiting any motion picture, stage,
drama, lecture, musical recital or other similar performance, except that performers may
smoke when the smoking is a part of a stage production.
(J) Sports arenas and convention halls, including bowling facilities.
(K) Every room, chamber, place of meeting or public assembly, including
school buildings under the control of any board, council, commission, committee,
including joint committees, or agencies of the City of Bel Aire or any political subdivision
of the State during such time as a public meeting is in progress, to the extent such place
is subject to the jurisdiction of the City of Bel Aire.
(L) Waiting rooms, hallways, wards and semi-private rooms of health facilities,
including, but not limited to, hospitals, clinics, physical therapy facilities, doctors' offices,
and dentists' offices.
(M) Lobbies, hallways, and other common areas in apartment buildings,
condominiums, trailer parks, retirement facilities, nursing homes, and other multiple-unit
residential facilities.
(N) Polling places.
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(0) Private clubs and fraternal organization facilities.
Section 3. Prohibition of SmokinQ in Places of Employment.
(A) Smoking shall be prohibited in all enclosed places of employment within
the City of Bel Aire.
(B) It shall be the responsibility of employers to provide a smoke-free
workplace for all employees.
(C) Each employer having any enclosed place of employment located within
the City of Bel Aire shall adopt, implement, make known and maintain, a written
smoking policy which shall contain the following requirements:
Smoking shall be prohibited in all enclosed facilities within a place of employment
without exception. This includes work areas, auditoriums, classrooms,
conference and meeting rooms, private offices, elevators, hallways, medical
facilities, cafeterias, employee lounges, stairs, restrooms, and all other enclosed
areas. Smoking shall also be prohibited within 10 feet of any public access to
any enclosed place of employment.
(D) The smoking policy shall be communicated to all employees within four (4)
weeks of the adoption of this ordinance.
(E) All employers shall supply a written copy of the smoking policy upon
request to any existing or prospective employee.
Section 4. Additional Declaration of Non-smokinQ Establishment.
Notwithstanding any other provision of this Ordinance, any owner, operator,
manager or other person who controls any establishment described in this Ordinance
may declare that entire establishment as a non-smoking establishment.
Section 5. Application of Ordinance to City-Owned Facilities.
All enclosed facilities owned by the City of Bel Aire shall be non-smoking at all,
times notwithstanding other provisions of this Ordinance.
Section 6. Where SmokinQ Is Not ReQulated: Private and Public Places.
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Notwithstanding any other provIsion of this Ordinance to the contrary, the
following areas shall not be subject to the smoking restrictions of this Ordinance:
(A) Private residences, except when used as a childcare, adult day care or
health care facility;
(B) No more than twenty-five percent (25%) of hotel and motel rooms rented
to guests.
(C) Retail tobacco stores.
(0) Restaurants, hotel and motel conference or meeting rooms and public and
private assembly rooms while such places are being used for private functions except
while contracted food or beverage service functions are taking place (including set-up,
service and clean-up activities or when the room is used for exhibit activities).
(E) Outdoor places of employment except those covered in Section 4 of this
Ordinance.
(F) Private places.
(G) Smoking break rooms and private smoking offices which meet all of the
following requirements:
(1) The room or private office is enclosed on all sides by solid,
impermeable walls or windows extending from the floor to ceiling
with doors; and
(2) Access to the room or private office is restricted to the employees,
customers, clients or vendors of the facility; and
(3) The room or private office maintains a negative air pressure
(meaning more air is exhausted from the room than is directly
supplied by the heating, ventilation, and air conditioning (HVAC)
system); and
(4) The room or private office smoke-contaminated air is exhausted
directly to the outdoors and is not returned to the HVAC system;
and
(5) The room or private office and any equipment contained therein are
maintained and serviced when it is not occupied by smokers; and
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(6) The employer does not require employees, customers, clients or
vendors to enter the room or private office when it is occupied by
smokers; and
(7) The owner, manager or other person having control of such
building or areas shall have a conspicuously posted sign clearly
stating that the room or private office is a smoking break room or
private office; and
(8) A single smoking break room shall not be larger than 1500 square
feet; and
(9) Non-smoking employees and vendors of the business have access
to a separate, enclosed, non-smoking break room accessible only
to the employees and vendors of the business which is of equal or
larger size and has amenities comparable to the smoking break
room; and
(10) The business has registered the indoor smoking area with the
Building Inspector of the City of Bel Aire on registration forms
provided by the City and the City has verified compliance with the
provisions of this Ordinance.
Section 7. Postinq of Siqns.
(A) The owner, manager or other person having control of such building or
other areas where smoking is prohibited by this Ordinance shall have a conspicuously
posted sign clearly stating that smoking is prohibited at each entrance and within the
building or other areas where smoking is prohibited.
(B) Such "No Smoking" signs shall have lettering of not less than one (1) inch
in height. The international "No Smoking" symbol may also be used (consisting of a
pictorial representation of a burning cigarette enclosed in a red circle with red bar
across it).
Section 8. Public Health Education.
The City of Bel Aire shall promote the purposes and requirements of this
Ordinance to the public affected by it, and guide owners, operators and managers in
their compliance with it. Such promotion may include publication of a brochure for
affected businesses and individuals explaining the provisions of this Ordinance.
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Section 9. Enforcement.
(A) The Bel Aire Police Department shall be responsible for enforcing the
provisions of this Ordinance within the City, but nothing in this section shall be
interpreted to prohibit any other person who would otherwise be lawfully entitled to
enforce the provisions of this Ordinance from taking enforcement action under this
Ordinance.
(B) Notice of the provisions set forth in this Ordinance shall be given to all
applicants for a City retail liquor or drinking establishment license.
(C) Any person may register a complaint under this Ordinance to initiate
enforcement with the Bel Aire Police Department.
(D) The Bel Aire Police Department and the Building Inspector of the City of
Bel Aire shall, while an establishment is undergoing otherwise mandated inspections,
inspect for compliance of this Ordinance.
(E) Any owner, manager, operator or employee of any premises regulated by
this Ordinance shall be responsible for informing persons violating this Ordinance of the
provisions through appropriate signage.
Section 10. Non-retaliation.
No person or employer shall discharge, refuse to hire or in any manner retaliate
against any employee, applicant for employment or customer because such employee,
applicant or customer exercises any right to a smoke free environment afforded by this
Ordinance.
Section 11. Violations and Penalties.
(A) It shall be unlawful for any person who owns, manages, operates or
otherwise controls the use of any premises subject to regulation under this Ordinance to
fail to comply with all of its provisions.
(B) It shall be unlawful for any person who owns, manages, operates or
otherwise controls any premises subject to regulation under this Ordinance to allow
smoking to occur where prohibited by this Ordinance. Any such person allows smoking
to occur under this section if he or she:
(1) has knowledge that smoking is occurring, and;
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(2) acquiesces to the smoking under the totality of the circumstances.
(C) It shall be unlawful for any person to smoke in any area where smoking is
prohibited by the provisions of this Ordinance.
(D) Any person who violates any provision of this Ordinance shall be guilty of
a misdemeanor, punishable by:
(1) A fine not exceeding One Hundred Dollars ($100.00) for the first
violation.
(2) A fine not exceeding Two Hundred Dollars ($200.00) for a second
violation within a one (1) year period of the first violation.
(3) A fine not exceeding Five Hundred Dollars ($500.00) for a third or
subsequent violation within a one (1) year period of the first
violation.
(4) For the purposes of this subsection, the number of violations within
a year shall be measured by the date the smoking violations occur.
Section 12. Other Applicable Laws.
This Ordinance shall not be interpreted nor construed to permit smoking where it
is otherwise restricted by other applicable laws.
Section 13. Severabilitv.
If any provision, clause, sentence or paragraph of this Ordinance or the
application thereof to any person or circumstances shall be held invalid, such invalidity
shall not affect the other provisions of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are
declared to be severable.
Section 14. Effective Date.
This Ordinance shall take effect and be in force from and after its publication in
the official city newspaper.
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Passed by the City Council this J~ day of '71~J~1 ,2005.
Approved by the Mayor this /d day of /J tJ-re--...h'1 I 2005.
~/~~-
YOR, BRIAN L. WITHROW PhD
~~I.~
CITY CLER I SHERRYL L. CUTTER
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