Ordinance No. 5,328Published In: THE BAYTOWN SUN
Tuesday, August 29, 1989 890824 -1
Wednesday, August 30, 1989
ORDINANCE No. 5328
AN ORDINANCE PROHIBITING SMOKING Iii PUBLIC PLACIES;
REPEALING INCONSISTENT ORDINANCES; CONTAINING A SAVINGS
CLAUSE; AND PROVIDING FOR THE PENALTY AND PUBLICATION
THEREOF.
WHEREAS, the Surgeon General of the United States has
declared that smoking is the number one public health issue of
our time; and
WHEREAS, smoking is a detriment to the economic health of a
business, as well as the health of its employees and customers;
and
WHEREAS, the City of Baytown recognizes the increasing
evidence that smoke creates a danger to the health of some
citizens, and is a cause of annoyance and discomfort to those who
are in confined spaces where smoke is present; and
WHEREAS, in order to protect the health and welfare of those
citizens, as well as to protect the rights of smokers and non-
smokers, it is necessary to restrict smoking in public places
except in areas designated as smoking areas; and
WHEREAS, the unregulated spread of the detrimental effects
of smoking and the potential harm smoking creates to some
citizens of the City is hereby declared a nuisance; NOW
THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the Code of Ordinances, City of Baytown,
Texas, is hereby amended by adding a Section to be numbered
Section 17 -23, which said section reads as follows:
Section 17 -23. Smoking prohibited in public places.
(a) Definitions.
(1) "Public meeting" means a meeting open to the
public and held in an enclosed area unless the
meeting is held in a private residence.
(2) "Public place" means an enclosed, indoor area that
is used by the public or that serves as a
workplace, and includes:
(A) all or part of a building used for state or
local governmental purposes;
(B) a retail store, office, or other commercial
establishment;
(C) a grocery store;
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(D)
a
restaurant or cafeteria;
(E)
public school;
(E)
a
school bus;
(G)
a
health care facility;
(H)
a
theater, movie house, auditorium, or arena;
(I)
a
public means of mass transportation,
including associated terminals;
(J)
a
courtroom;
(K)
a
jury waiting or deliberation room;
(L)
a
library
(M)
a
place of employment;
(N)
a
place providing personal services; or
(0)
a
service line, cashier area, over -the--
counter sales area, or common traffic area.
(3) "Smoke," "smokes," or "smoking" includes:
(A) carrying or holding a lighted pipe, cigar, or
cigarette of any kind or any other lighted
smoking equipment or device;
(B) lighting a pipe, cigar, or cigarette of any
kind or any other smoking equipment or
device; or
(C) emitting or exhaling the smoke of a pipe,
cigar, or cigarette of any kind or any other
smoking equipment or device.
(4) "Employee" means a person who is employed by an
employer in consideration for monetary
compensation or profit.
(5) "Employer" means a person, partnership,
corporation, association, or other entity that
employs one or more persons.
(6) "Place of employment" means an enclosed, indoor
area under the control of an employer to which
employees have access during the course
employment, and includes work areas, employee
lounges, employee rest rooms, conference rooms,
and employee cafeterias. The term does not
include a private residence.
(b) Offense.
(1) A person commits an offense if the person smokes
at a public meeting or in a public place and the
person is not in an area designated as a smoking
area under subsection (d) of this ordinance.
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(2) It is an exception to the application of
sub ;ectior. (1) of this section that the person is
sr;o ki n
(A) in a situation in which the person is present
at an event in which an entire room or hall
is used for a private social function and
seating arrangements are under the control of
the sponsor of the function and not of the
proprietor or person in charge of the place;
(B) in a public place for which a waiver has been
granted under Section h(2) of this ordinance;
or
(C) as a participant in an authorized theatrical
performance.
(c) Penalty. An offense under this section is a
misdemeanor, and any person who shall violate any
provision of this section shall, upon conviction,
be punished by a fine not to exceed two thousand
dollars ($2,000.00).
(d) Designation of smoking areas.
(1) Except as provided by subsection (5) of this
section, a proprietor or person in charge of a
public place who desires to permit persons in the
public place to smoke shall designate areas as
smoking areas. If the public place is a government
building, the governmental entity responsible for
managing and maintaining the building may
designate areas as smoking areas.
(2) The proprietor or person in charge is not required
to make structural or physical modifications to
accommodate the smoking area, but existing
physical barriers and ventilation systems shall be
used to minimize the effect of smoke in adjacent
non - smoking areas.
(3) Each employer who operates a place of employment
shall develop, implement, and maintain a written
smoking policy that accommodates the wishes of
smoking and nonsmoking employees by designating
smoking and nonsmoking areas. This ordinance does
not prohibit an employer from designating a place
of employment in its entirety as a nonsmoking
area.
(4) The proprietor or person in charge of a restaurant
that has a seating capacity for more than 25
persons, and that wants to have smoking and
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890824 -1C
nonsmoking areas shall designate a smoking area
proportionate in size to the number of customers
normally requesting a smoking area. This
ordinance does not prohibit a proprietor or person
in charge from designating a restaurant in its
entirety as either a smoking area or nonsmoking
area.
(5) A smoking area may not be designated in:
( A) an l e l e v a 4 o l ,
(B) a school bus;
(C) a public means of mass transportation;
(D) a rest room;
(E) a service line, cashier area, over -the-
counter sales area, or common traffic area,
unless the public place has been designated
in its entirety as a smoking area; or
(P) a place in which smoking is prohibited by the
fire marshal of the state or a political
subdivision or by other law, ordinance, or
rule.
(6) If the proprietor or person in charge of a public
place designates it as a smoking area in its
entirety, that fact shall be posted conspicuously
at all entrances to the premises. In addition,
signs prohibiting smoking shall be posted in areas
that may not be designated as smoking under
subsection (d) (5) .
(e) Signs.
(1) A proprietor or person in charge of a public place
shall place signs visible at each entrance to the
premise to notify persons entering the premises
that smoking is prohibited or that smoking is
prohibited except in areas designated as smoking
areas.
(2) A proprietor or person in charge of a public place
shall post in a conspicuous place in any area
designated as a smoking area signs stating that
smoking is permitteu in the urea. The proprietor
or person in charge may post signs in the premises
stating "No Smoking" or "No Smoking Except in
Designated Areas" as appropriate.
(f) Reasonable effort to prevent smoking. A
proprietor or person in charge of a public place
shall make a reasonable effort to prevent smoking
by:
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(1) designating any areas where smoking will be
permitted as required by subsection 17- 23(d);
(2) posting signs as required by subsection 17- 23(e);
(3) asking smokers to refrain from smoking in all
other areas on request of a client, patron, or
employee suffering discomfort from the smoke.
(g) Facilities to extinguish smoking materials. All
public conveyances and public places shall be
equipped with facilities for extinguishment of
smoking materials. Facilities for extinguishment
of smoking materials that are located in areas of
public places other than designated smoking areas
shall be accompanied by clearly visible signs
stating "No Smoking."
(h) Administration.
(1) The Director of Health shall adopt rules necessary
under this ordinance and shall implement and
determine compliance with the ordinance.
(2) The Director of Health may, on request of a
proprietor or person in charge of a public place,
waive the requirements of this ordinance if the
Director determines that there are compelling
reasons to do so and the waiver will not
significantly affect the health and comfort of
nonsmokers.
(i) More restrictive requirements. Nothing in this
ordinance shall prohibit the proprietor or person
in charge of a public place from adopting
nonsmoking requirem«nts that are .morc restrictive
than those set forth in this section.
Section 2: All ordinances or parts of ordinances
inconsistent with the terms of this ordinance are hereby
repealed; provided however, that such repeal shall be only to the
extent of such inconsistency and in all other respects this
ordinance shall be cumulative of other ordinances regulating and
governing the subject matter covered by this ordinance.
Section 3: If any provisions, section, exception,
subsection, paragraph, sentence, clause or phrase of this
ordinance or the application of same to any person or set of
circumstances, shall for any reason be held unconstitutional,
void or invalid, such invalidity shall not affect the validity of
the remaining provisions of this ordinance or their application
to other persons or sets of circumstances and to this end all
provisions of this ordinance are declared to be severable.
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Section 4: Any person who shall violate any provision of
this ordinance shall be deemed guilty of a misdemeanor and upon
conviction shall be punished by a fine of not more than Two
Thousand and No /100 ($2000.00) Dollars.
Section 5: This ordinance shall take effect from and after
ten (10) days from its passage by the City Council. The City
Clerk is hereby directed to give notice hereof by causing the
caption of this ordinance to be published in the official
nc;:spaper of the City of Baytown at least twice within ten (10)
days after passage of this ordinance.
INTRODUCED, READ and PASSED by the affirmative vote of the
City Council of the City of Baytown, this the 24th day of August,
1989.
ETT 0. HUTTO, Mayor
ATTEST:
EILEEN P. HALL; City Clerk
J 0/? Ij i- -,-- ----i � - -
ANDALL B. STRO G, Ci ttorney
C :l :4 :16
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