Loading...
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. 1 (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, 2 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: 3 (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. 4 (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. 5 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 6 (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. 7 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; 8 (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. 9 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 10