Ordinance No. 8,518Published'in the Baytown Sun: 990225 -1
Tuesday, March 2, 1999,:and
Wednesday, March 3, 1999 ORDINANCE NO. 8518
® AN ORDINANCE OF THE CITY OF BAYTOWN, TEXAS, AMENDING THE
CODE OF ORDINANCES, BAYTOWN, TEXAS, CHAPTER 42 "HEALTH
AND SANITATION," ARTICLE III "SMOKING," SECTIONS 42 -96
"DEFINITIONS" TO ADD A DEFINITION OF "PRIVATE CLUB," AND "AIR
VENTILATION SYSTEM," TO EXPAND THE DEFINITION OF "PUBLIC
PLACE" AND TO ADD VARIOUS DEFINITIONS FOR CLARIFICATION;
SECTION 42 -98 "AUTHORITY FOR MORE RESTRICTIVE
REQUIREMENTS" TO ENFORCE THAT 'THIS ARTICLE DOES NOT
EXCUSE NONCOMPLIANCE WITH OTHER MEASURES; SECTION 42 -99
"OFFENSE" TO DESIGNATE CERTAIN CONDUCT AS VIOLATIONS OF
ARTICLE III "SMOKING," SECTION 42 -101 "DESIGNATION OF
DESIGNATED SMOKING AREAS" TO ENUMERATE CRITERIA FOR
SMOKING AREAS TO BE DESIGNATED IN PUBLIC PLACES; SECTION
42 -102 "SIGNS" TO SPECIFY THE CONTENT AND PLACEMENT OF THE
REQUISITE SIGNS; AND SECTION 42 -103 "EFFORT TO PREVENT
SMOKING "; AND ADDING SECTION 42 -105 "NO COMMINGLING OF AIR
TESTING REQUIREMENTS" TO CHAPTER 42 "HEALTH AND
SANITATION," ARTICLE III "SMOKING," OF THE CODE OF
ORDINANCES, BAYTOWN, TEXAS; PROVIDING FOR A PENALTY NOT
EXCEEDING TWO THOUSAND AND NO 1100 DOLLARS ($2,000.00);
PROVIDING A REPEALING CLAUSE; CONTAINING A SAVINGS
CLAUSE; AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE
DATE THEREOF.
WHEREAS, reliable scientific studies, including studies by the Surgeon General of the
United States and studies commissioned and assessed by the U.S. Environmental Protection
Agency, have shown that breathing sidestream or secondhand smoke is a significant health
hazard to nonsmokers, particularly to children, older persons, individuals with cardiovascular
disease and individuals with impaired respiratory function, including asthmatics and those with
obstructive airway disease; and
WHEREAS, health hazards induced by exposure to environmental tobacco smoke
include lung and other forms of cancer, respiratory infection, decreased respiratory function,
decreased exercise tolerance, broncho- construction and broncho - spasm, and the most common
causes of premature death from environmental tobacco smoke is heart disease; and
WHEREAS, reliable scientific studies assessed by the U. S. Environmental Protection
Agency have found that sidestream and secondhand tobacco smoke is a leading cause of
premature death and disability among nonsmokers; and
WHEREAS, air pollution caused by smoking is an offensive annoyance and irritant that
results in serious and significant physical discomfort for nonsmokers in public places and work
places; NOW THEREFORE,
® BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
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Section 1: That the recitals as set forth above are found to be true and correct.
® Section 2: That Chapter 42 "Health and Sanitation," Article III "Smoking" Section
42 -96 "Definitions" of the Code of Ordinances, City of Baytown, Texas, is hereby amended, in
part, to read as follows:
Sec. 42-96. Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Air ventilation system shall mean an HVAC system designed by a licensed professional engineer
to meet the requirements of the city mechanical code and shall utilize an amount of outside
"mixing" air in accordance with industry codes and standards. Such system shall have a negative
pressure on the area designated for smoking to prevent air from a smoking area to be drawn
across or into the nonsmoking area.
Billiard hall means a place of amusement whose chief purpose is providing the use of
billiard /pool tables to the public for a fee.
Bingo parlor means a facility regulated under the Bingo Enabling Act.
Conveyance means any vehicle used as a means of carrying or transporting persons as passengers
to which the public or a substantial group of the public has access.
Day -care center means a child -care facility, as defined in V.T.C.A., Human Resources Code
§42.002, other than a foster home, which is required to be licensed, certified, or registered by the
state and includes, but is not limited to, a day -care center, group day -care home, and a foster
group home.
Designated smoking area means an area which shall not exceed 50 percent of the total number of
seats available in the public place, having a physical barrier between it and the nonsmoking area
and having a separate, functioning air ventilation system.
Dining area means any area of a public place in which meals or entrees are served, but shall not
include areas where the incidental service of hors d'oeuvres, snacks, pretzels, popcorn or similar
items are provided, or where food sales in the area are no more than 25 percent of gross receipts.
Eating establishment means any place where food is served for on- premises consumption and
which is accessible by the public or a substantial group of the public.
Food products establishment shall mean any restaurant, coffee shop, cafeteria, luncheonette,
sandwich stand, soda fountain, private and public school cafeteria or any other eating
establishment and any eating establishment, organization, club, boardinghouse or guesthouse,
which gives or offers for sale food to the public or a substantial group of the public, guests,
patrons or employees as well as kitchens in which food is prepared on the premise for serving
elsewhere, including catering facilities. Other food product establishments include grocery
stores and food markets, not including those outdoors.
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10 Physical barrier means a barrier that will form an effective membrane continuous, exclusive of
doorways, from outside wall to outside wall, from a smoke barrier to a smoke barrier, from floor
to floor or ceiling above, or a combination thereof.
Private club means a non -profit association of persons that:
is organized for the promotion of some common object;
2, is comprised of members who are passed on and elected by a committee or board
made up of members of the club;
3. is composed of members of which at least 50% reside in the county in which the
premises of the club is located;
4. grants membership to an applicant only after a written application has been filed
with the chairman of the membership committee or board and approved by the
chairman;
5. owns, leases, or rents a building, or space in a building of such extent and
character as is suitable and adequate for the club's members and their guests;
6. provides regular food service adequate for its members and their guests;
7. collects annual membership fees, dues, or other income, excluding proceeds from
the disposition of alcoholic beverages but including service charges, which
income must be sufficient to defray the annual rental of its leased or rented
premises or, if the premises are owned by the club, sufficient to meet the taxes,
insurance, and repairs and the interest on any mortgage on the premises;
8. is managed by a board of directors, executive committee, or similar body chosen
by the members at their annual meeting; and
9. does not compensate, directly or indirectly, any member or any officer, agent, or
employee of the club, from the disposition of alcoholic beverages to members of
the club and their guests, other than charges for the service of the beverages.
Public place means:
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(1) an enclosed, indoor area that is used by the public or that serves as a workplace,
and includes, but is not limited to, the following:
(a) all or part of a building used for state or local governmental purposes;
(b) a retail store, office, or other commercial establishment;
(c) an eating establishment, bar, night club, lounge, tavern, adult
entertainment establishment, billiard hall or bingo parlor;
(d) a food products establishment, a retail food store or convenience store;
(e) a public restroom;
(f) a public or private school, or a public or private institution of higher
education;
(g) a school bus;
(h) a hospital, health care facility, nursing home, convalescent home or
government subsidized senior citizen residential facility;
(i) a museum, theater, movie house, auditorium, or arena, or any other
enclosed facility which is open to the public for the primary purpose of
exhibiting any motion picture, stage drama, musical, recital, athletic event
or any other performance or event;
(j) a conveyance or public means of mass transportation, including associated
terminals;
(k) a courtroom;
(1) a jury waiting or deliberation room;
(m) a library;
(n) a place of employment;
(o) a place providing personal services;
(p) a building or facility or portion thereof of a private club, which is open to
the public;
(q) any building or facility or portion thereof owned, occupied and under the
management and control of the City;
(r) a service line, waiting area, cashier area, over - the - counter sales area, or
common traffic area;
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is (s) an elevator;
(t) a room or enclosed place of public assembly in which public business is
conducted when the public business requires or provides an opportunity
for direct participation or observation by the general public;
(u) a day -care center;
(v) a service station or gas station; or
(w) any conference room, meeting room or assembly room of any hotel, motel
or public or private convention center, except when being used for an
event to which the general public is excluded.
(2) a park or recreational area, whether enclosed or unenclosed, owned or operated by
a governmental entity when in use for an athletic league or tournament play or
practice;
(3) a designated seating area of any public or privately owned outdoor theater,
outdoor athletic facility, or amphitheater; or
(4) any public swimming pool as defined in section 18 -1071, inclusive of the entire
area within the pool yard enclosure.
Retail or service establishment means any establishment which sells goods or services to the
general public.
Service line or wailing area means any indoor line or area where one or more persons are
waiting for or receiving service of any kind, whether or not such service involves the exchange
of money. Such service shall include, but not be limited to, sales, restaurant seating, giving of
information, directions, or advice and transfers of money or goods.
Tobacco product means a cigarette; cheroot; stogie; cigar; snuff or other preparations of
pulverized tobacco; smoking tobacco, including granulated, pug -cut, crimp -cut, ready - rubbed,
and any form of tobacco suitable for smoking in a pipe or as a cigarette; chewing tobacco,
including Cavendish, Twist, plug, scrap, and any kind of tobacco suitable for chewing; and any
article product made of tobacco or a tobacco substitute.
Tobacco specialty retail shop means a retail establishment with annual gross revenues of at least
50% from the sale of tobacco products and smoking accessories.
® Section 3: That Chapter 42 "Health and Sanitation," Article III "Smoking" Section
42 -98 "Authority for more restrictive requirements" of the Code of Ordinances, City of
Baytown, Texas, is hereby amended to read as follows:
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® Sec. 42-98. Chapter not to excuse noncompliance with other measures; authority for
more restrictive requirements.
(a) Nothing in this chapter excuses noncompliance with any state or federal law, provisions
of this code or any other applicable ordinance of the city, or any rule or regulation
adopted pursuant thereto which prohibits smoking.
(b) Nothing in this article shall prohibit the owner, lessee, manager, operator or other person
in charge of a public place from adopting nonsmoking requirements that are more
restrictive than those set forth in this article.
Section 4: That Chapter 42 "Health and Sanitation," Article III "Smoking" Section
42 -99 "Offense" of the Code of Ordinances, City of Baytown, Texas, is hereby amended to read
as follows:
Sec. 42 -99. Offense.
(a) A person commits an offense if the person:
(1) smokes at a public meeting or in a public place and the person is not in a
designated smoking area designated under section 42 -101;
(2) smokes within 15 feet of any entrance of a public place through which the public
can gain initial access to the facility;
(3) is the owner, lessee, manager, operator or other person in charge of a public place,
and permits or fails to make reasonable effort to prevent the commission by
another of an offense described within subsection (a)(1) of this section;
(4) is the owner, lessee, manager, operator or other person in charge of the private
property located within 15 feet of any entrance to a public place, and permits or
fails to make reasonable effort to prevent the commission by another of an offense
described within subsection (a)(2) of this section;
(5) is the owner, lessee, manager, operator, or other person in charge of a public place
and fails to post signs as required by section 43 -102;
(6) is the owner, lessee, manager, operator, or other person in charge of a public place
and fails to make a reasonable effort to prevent smoking as required in section 42-
103; and
(7) is the owner, lessee, manager, operator or other person in charge of a public place
and fails to provide facilities to extinguish smoking materials in compliance with
section 42 -104.
(b) It is an exception to the application of subsection (a) of this section that the person is
smoking:
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(1) 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 owner, lessee, manager,
operator or other person in charge of a public place;
(2) in a tobacco specialty retail shop that has an enclosed, separately ventilated
smoking room that exhausts directly to the outside environment;
(3) in a public place for which a waiver has been granted under subsection 42- 97(b);
(4) in hotel and motel rooms rented to guests;
(5) in private residences, except when used as a licensed child car or health care
facility;
(6) in a building or facility or portion thereof of a private club, which is not open to
the public;
(7) as a participant in an authorized theatrical performance; or
(8) in a tavern, bar, or lounge not containing a dining area; or
(9) in designated smoking areas, which have been properly designated in accordance
with this article.
Section 5: That Chapter 42 "Health and Sanitation," Article III "Smoking" Section
42 -101 "Designation of designated smoking areas" of the Code of Ordinances, City of Baytown,
Texas, is hereby amended to read as follows:
See. 42 -101. Designation of designated smoking areas.
(a) In general. Except as otherwise provided in this article, an owner, lessee, manager,
operator or other person in charge of a public place who desires to permit persons in the
public place to smoke shall consistent with this article designate designated smoking
areas as defined in section 42 -96. However, an owner, lessee, manager, operator or other
person in charge of a public place in existence at the time of the passage of this ordinance
who desires to permit persons in the public place to smoke shall make the necessary
renovations on or before April 1, 2000, to ensure that the smoking area designated
qualifies as a designated smoking area as defined in section 42 -96.
(b) In parks. If the public place is a park or recreational area owned or operated by a
governmental entity, the governmental entity may designate with appropriate signage
only the motor vehicle parking areas of the park or recreational area as smoking areas.
® (c) By employers. Each employer, other than the city, who operates a place of employment
shall develop, implement and maintain a written smoking policy that is consistent with
the requirements of this article within three months of adoption of this article or upon
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opening for business. This article does not prohibit an employer from designating a place
of employment in its entirety as a nonsmoking area. However, if smoking is permitted,
the policy shall contain, at a minimum, the following provisions and requirements:
(1) The owner, lessee or other person in charge of a public place may, but is not
required to, designate one or more areas as smoking areas for the use of the
employees as part of the smoking policy provided for in this section. A
designated employee smoking area may. include private enclosed offices.
Designated employee smoking areas may be located in areas to which employees,
but not the general public, except by invitation only, have access during the
course of employment. A common employee work area shall not be designated as
an employee smoking area unless every person who works in that area agrees in
writing to the designation. In no event shall an employee restroom or an area
containing food or drink dispensing facilities be designated as an employee
smoking area.
(2) If such employee smoking area is designated, each smoking area shall:
(A) be in an area set aside for the use of employees, but not accessible to
members of the general public except by specific invitation of the
employee or employee;
(B) be no larger in size than proportionate to the preference of smoking
employees normally requesting a smoking area and such area size can be
determined by the owner, lessee or other person in charge;
(C) be ventilated to prevent the mixing of air from the designated employee
smoking area to other areas or the public areas;
(D) be a physically enclosed area separated from nonsmoking areas;
(E) be designated by appropriate signs which are clearly visible to employees
and members of the public entering the area; and
(F) contain ashtrays, containers or other facilities for the extinguishment of
smoking materials.
(3) The smoking policy shall be communicated within three weeks of adoption to all
employees and posted conspicuously in all workplaces' under the employer's
jurisdiction.
(4) The owner, lessee or other person in charge of a public place that designates one
or more areas as designated smoking areas for the public shall not require
employees to work in a designated smoking area if the employees request to work
in a nonsmoking area.
(d) Restrictions. A smoking area may not be designated in:
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0 (1) a day -care center;
(2) a public or private preschool, primary or secondary school;
(3) an elevator;
(4) a school bus;
(5) an enclosed theater or movie house;
(6) a library;
(7) a museum or gallery;
(8) a hospital, health care facility, nursing home, convalescent home or government
subsidized senior citizen residential facility, including, but not limited to, clinics,
physical therapy facilities, doctor's offices, residential treatment centers, and
dentists offices, without the written orders from the attending physician and the
written approval of the director of health, who shall require the following:
(A) that all patients within the room are smokers and
(B) that the room qualifies as a designated smoking area;
(9) a conveyance or a public means of mass transportation;
(10) a restroom;
(11) a service line, waiting areas, public telephone areas, cashier area, over -the- counter
sales area, or common traffic area, including access thereto;
(12) 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; or
(13) a park or recreational area owned or operated by a governmental entity when in
use for an athletic league or tournament play or practice, except in areas
designated by signage in accordance with subsection (b) of this section; and
(14) any building used for City of Baytown purposes.
(e) Notwithstanding any other provision of this section, any owner, lessee, operator, manager
or other person who controls any public place may declare that the entire public place or
any portion of the public place as a nonsmoking area.
Section 6: That Chapter 42 "Health and Sanitation," Article III "Smoking" Section
42 -102 "Signs" of the Code of Ordinances, City of Baytown, Texas, is hereby amended to read
as follows:
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Sec. 42 -102. Signs.
(a) An owner, lessee, manager, operator or other person in charge of a public place shall
place conspicuous signs visible at each entrance to the premises to notify persons
entering the premises of the following:
(1) smoking is prohibited (1) within 15 feet of the entrance and (ii) inside the public
place; or
(2) smoking is prohibited (i) within 15 feet of the entrance and (ii) inside the public
place except in areas designated as designated smoking areas or areas temporarily
designated for smoking in accordance with the time constraints referenced in
section 42- 101(a).
(b) An owner, lessee, manager, operator or other person in charge of a public place shall post
in a conspicuous place in any area designated as a designated smoking area signs stating
that smoking is permitted in the designated area only.
(c) All signs required under this section must be at least 10" x 14" and shall include the
information required in subsection (a) and must be written in contrasting colors with
block letters at least one inch in height.
Section 7: That the Code of Ordinances, City of Baytown, Texas, is hereby amended
by amending Chapter 42 "Health and Sanitation," Article III "Smoking," Section 42 -103 "Effort
to prevent smoking," to read as follows:
Sec. 42 -103. Effort to prevent smoking.
An owner, lessee, manager, operator or other person in charge of a public place shall make a
reasonable effort to prevent smoking by:
(1) Designating any areas where smoking will be permitted as required by section 42 -101.
(2) Posting signs as required by section 42 -102.
(3) Asking smokers to refrain from smoking in all areas, other than designated smoking
areas, on request of a client, patron or employee suffering discomfort from the smoke.
Section 8: That the Code of Ordinances, City of Baytown, Texas, is hereby amended
by adding a section to Chapter 42 "Health and Sanitation," Article III "Smoking" to be numbered
and entitled Section 42 -105 "No commingling of air testing requirements," which said section
reads as follows:
See. 42 -105. No commingling of air testing requirements.
(a) It is the intent of this article to define distinct and separate areas for smoking and
nonsmoking use to assure a smoke -free atmosphere in nonsmoking areas and prohibit the
commingling of air between such areas.
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(b) All air ventilation systems may be tested at installation and periodically thereafter to
ensure compliance with this article by the director of health.
Section 9: Every person convicted of a violation of any provision of Chapter 42
"Health and Sanitation," Article III "Smoking" shall be punished by a fine not exceeding $2,000.
Each act of violation and each day upon which any such violation shall occur shall constitute a
separate offense. In addition to the penalty prescribed above, the city may pursue other remedies
such as abatement of nuisances, injunctive relief, administrative adjudication and revocation of
licenses or permits.
Section 10: 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 11: If any provision, section, exception, subsection, paragraph, sentence,
clause or phrase of this ordinance or the application of same to any person or the 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.
Section 12: This ordinance shall take effect from and after thirty (30) 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 newspaper 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 25'h day of February, 1999.
/J,� C. ��
PETE C. ALFAR , Mayor
ATTEST:
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
ACIO RAMIRE ., City Attorney
c:klh I451CouncillOrdinancesl SmokingOrdinancelnPublicP lace022599Final .doe