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Ordinance No. 9,882Published in the Baytown Sun Tuesday, September 28, 2004 ORDINANCE NO. 9882 Thursday, September 30, 2004 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AMENDING CHAPTER 42 "HEALTH AND SANITATION," ARTICLE ID "SMOKING," SECTION 42 -96 "DEFINITIONS," AND SECTION 42 -97 "ADMINISTRATION" OF THE CODE OF ORDINANCES, CITY OF BAYTOWN, TEXAS, TO CLARIFY THE DEFINITION OF A DESIGNATED SMOKING AREA AND TO REMOVE THE ABILITY TO GRANT WAIVERS FROM THE DIRECTOR OF HEALTH; AMENDING CHAPTER 42 "HEALTH AND SANITATION," ARTICLE III "SMOKING" OF THE CODE OF ORDINANCES, CITY OF BAYTOWN, TEXAS, TO ADD A NEW SECTION TO BE NUMBERED AND ENTITLED SECTION 42 -106 "VARIANCE" TO PROVIDE A VARIANCE PROCEDURE; PROVIDING A REPEALING CLAUSE; CONTAINING A SAVINGS CLAUSE; AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: 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 to modify the definition of "designated smoking area" to read as follows: CHAPTER 42. HEALTH AND SANITATION ARTICLE III. SMOKING 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: Designated smoking area means that portion of a pub] ic place in which smoking is authorized under this article. (1) For an eating establishment, the designated smoking area must not exceed 50 percent of the total number of seats available in the area where food is served. (ii) For a public place other than an eating establishment, the designated smoking area shall not exceed 50 percent of the net floor area. A designated smoking area may not include restrooms, service lines, waiting areas, public telephone areas and other common areas used by all patrons. A designated smoking area must have a physical barrier between it and the nonsmoking area and must have a separate, functioning air ventilation system. Section 2: That Chapter 42 "Health and Sanitation," Article III "Smoking," Section 42 -97 "Administration" of the Code of Ordinances, City of Baytown, Texas, is hereby amended to modify the definition of "designated smoking area" to read as follows: • on and CHAPTER 42. HEALTH AND SANITATION ® ARTICLE III. SMOKING Sec. 42-97. Administration. El (a) The director of health shall adopt rules necessary under this article and shall implement and determine compliance with this article. (b) This article shall be enforced by the director of health. The director of health is authorized to make all necessary inspections, issue citations, give notice, file applicable charges and otherwise cooperate in the enforcement of this article. Section 3: That Chapter 42 "Health and Sanitation," Article III "Smoking" of the Code of Ordinances, City of Baytown, Texas, is hereby amended to add a new section to be numbered and entitled Section 42 -106 "Variance" to read as follows: CHAPTER 42. HEALTH AND SANITATION ARTICLE III. SMOKING Sec. 42 -106. Variances. (a) An owner or leasee of property may request a variance from the provisions of this article with the exception of the size and/or seating requirements of a designated smoking area, as no variances may be granted from the size requirements of a designated smoking area. A request for a variance shall be in writing on a form prescribed by the director of health and shall be addressed to the construction board of adjustments and appeals. The request for a variance must be filed with the director of health within ten calendar days after the decision is rendered by such director. (b) The construction board of adjustments and appeals, when appealed to and after a hearing, may vary the application of any section of this article, with the exception of the size requirements of a designated smoking area, to any particular case when, in its opinion, it finds that the appellant has presented compelling evidence that each of the conditions referenced in section 18 -60 of the code exist. Pecuniary hardship to the property owner or applicant shall not be sufficient reason, standing alone, to require a variance. (c) In granting the variance, the construction board of adjustments and appeals shall prescribe any condition it deems necessary or desirable considering the public health, safety and welfare. (d) Any variance granted under this section will apply only to the specific property and certificate of occupancy upon which the board of adjustments and appeals was requested to grant a variance by the applicant. All variances granted shall be in writing and may be revoked if the construction board of adjustments and appeals determines the use of the property is different from the use described and submitted in the applicant for variance. (e) The decision of the construction board of adjustments and appeals may be appealed to the city council in accordance with section 18 -61. Section 4: 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 5: 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. Section 6: 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 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 23`d day of September, 2004. CALVIN MUNDINGER, Mayor ATTEST: AR: t W. SMITH, City Clerk APPROVED AS TO FORM: 4dNACIO RAMIREZ, SR., 'ty Attorney 0 \\Bdc2 \IitigationlKaren \Files \City Council\ Ordinances \SmokingVarianceProcedure4.doc