Ordinance No. 10,397ORDINANCE NO. 10.397
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, ORDERING A SPECIAL ELECTION TO BE HELD ON THE 7TH
DAY OF NOVEMBER, 2006, FOR THE PURPOSES OF SUBMITTING THE
PROPOSED INITIATIVE ORDINANCE, WHICH PROHIBITS SMOKING
WITHNN THE CITY OF BAYTOWN IN ALL ENCLOSED PUBLIC PLACES
AND PLACES OF EMPLOYMENT AND WITHIN FIFTEEN FEET OF THEIR
ENTRANCES AND WHICH PROHIBITS SMOKI -NO IN THE SEATING
AREAS OF ALL OUTDOOR ARENAS, STADIUMS AND
AMPMTI- iEATERS, TO THE ELECTORS OF THE CITY OF BAYTOWN,
TEXAS; DESIGNATING -1-FIE MANNER OF HOLDING SAID ELECTION;
PRESCRIBING TFIE HOURS; ESTABLISHING THE CENTRAL COUNTING
STATION; AND PROVIDING FOR THE POSTING AND PUBLICATION OF
NOTICE; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
WHEREAS, on August 10, 2006, pursuant to Article X, Sections 99 and 100 of the
Charter of the City of Baytown and Section 277.002 of the Texas Election Code, the City Clerk
certified to the City Council of the City of Baytown that the initiative petition filed on July 21,
2006, with the following description:
A petition in support of the initiative ordinance, which prohibits smoking within
the City of Baytown in all enclosed public places and places of employment and
within 15 feet of their entrances and which prohibits smoking in the seating areas
of all outdoor arenas, stadiums and amphitheaters.
vas sufficient; and
WHEREAS, on August 10, 2006, pursuant to Section 103 of the Charter of the City of
Baytown. the City Council (i) proceeded to consider the proposed imitative ordinance, (ii) read
the proposed initiative ordinance; and (iii) made provision for a public hearing upon the
proposed initiative ordinance; and
WHEREAS, on August 24, 2006, the City Council held the public hearing upon the
proposed initiative ordinance giving all interested persons the right to speak for or against the
same; and
WHEREAS, after the close of the public hearing, the City Council determined that it
would not pass the proposed initiative ordinance in the form as submitted; and
WHEREAS, pursuant to Section 104 of the Charter of the City of BaytoN %,n. the City
Council herein calls a special election to be held on the 7`h day of November, 2006, for purposes
of submitting the proposed initiative ordinance to the electors; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN.
TEXAS-
Section 1: That a special municipal election of the City of Baytown, as prescribed in
Article X, of the Charter of the City of Baytown and pursuant to Sections 41.001 and 41.031 of
the Texas Election Code, shall be held between the hours of seven o'clock (7:00) a.m. and seven
o'clock (7:00) p.m. on the 7`" day of November, 2006, in the City of Baytown, Texas. for the
purpose of voting for or against Proposition No. 1. which is the proposed initiative ordinance that
is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. If a
proposed ordinance is approved by a majority of the qualified voters voting thereon, it shall take
effect and become part of the Code of Ordinances ten (10) days after the City Council enters an
order declaring the initiative ordinance approved. The election shall be held as a joint election
with Harris County and Chambers County pursuant to the joint election agreement.
Section 2: That the form of the ballot for said election shall be substantially as follows:
OFFICIAL BALLOT
PROPOSITION NO. 1
[ ] FOR The proposed initiative ordinance. which prohibits smoking within the City of Baytown in
all enclosed public places and places of employment and within 15 feet of their entrances
[ ] AGAINST and which prohibits smoking in the seating areas of all outdoor arenas. stadiums and
Section 3: That the City shall use the polling places of Harris County and Chambers
County for the purposes of the election ordered herein. The City shall use the polling places and
election officials for the special election ordered in Section 1 hereof as designated by Harris
County and Chambers County.
Section 4: Direct recording electronic (DRE) equipment shall be used for voting at
the election precincts, and electronic counting devices and equipment shall be used for counting
the ballots at the election.
Section 5: Each qualified voter who desires to cast an early vote shall be entitled to an
official ballot and the right to cast such ballot in accordance with the provisions of the Texas
Election Code. Early voting will be conducted by the Early Voting Clerks at the places
designated by the City and Harris and Chambers Counties. Paper ballots shall be used for early
voting by mail in Harris County and Opti Scan mail ballots shall be used for early voting by mail
in Chambers County. Direct recording electronic (DRE) equipment shall be used for early
voting by personal appearance. Early voting by personal appearance shall commence on October
23, 2006, and end on November 3, 2006, in accordance with the schedules adopted by Harris and
Chambers Counties.:
Section 6: That the special municipal election shall be held in accordance with, and shall
be governed by, the election laws of the State of Texas. In the City election, the Mayor and the
City Clerk of the City Council shall do and perform each act as required to be done and
performed respectively by the County Judge and the County Clerk of the Commissioners' Court.
The notice of proclamation of this election shall be issued and posted on the bulletin board used
2
R',w p')s(ing notices of nwttings not Imer than the twentyANt (2l st) 6y bef'ore the date of die
election ordered herein.
Section I Wit! Central COLUIOng t0ons to receive and ta,bulate voted ballots shall he at
the locations dcslnmvd by 1hrris and CJwmbmm Watim.
Sectiori 8 The Wyor is hereby dhWed to gNe mtke of said elections by publishing a
copy of' the Election Proclama6on and ?%mWe in a newspWer of general circulation within the
Chy of Baytown. "l" Baas; sari d puNicw% to be nmde no earlier Himi die 300 &1( or Issuer than the
tenth day prior to the dwe of said eNcHom.
Section 9: In all nmtters reWing to the ordering, giving notice, and holding the
elections, the CAI WH compb, with the appNeable 1:)iarts cif the Texas ENtion Cod, indudirig
pankthady Chapwr 272 of It! Thus Eder on We perWiNng to bilingtud repdrements, anti the
F'ecleral Voting Rights Aw of 1965� as mnended.
Section ia: This ordinatice shl all take eNut immediately from and after its pamage by
the City Council of the City of B aytown, Texas, Z �
INTRODUCIU), READ and FOSS ED by—Ahe af ry6ative vote of the City Council of the
CRy ofBapown on the Me 20 day of Amph
APPRCA/Ef) AS 'TO FORM:
STE,Pf IFN-W, IN)WARLOS, NOyor.
3
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, REPEALING CHAPTER 42 "HEALTH AND SANITATION,"
ARTICLE III "SMOKING ": ADOPTING A NEW CHAPTER 42 "HEALTH
AND SANITATION." ARTICLE III "SMOKING" WHICH PROHIBITS
SMOKING WITHIN THE CITY OF BAYTOWN IN ALL ENCLOSED
PUBLIC PLACES AND PLACES OF EMPLOYMENT (AND WITHIN 15
FEET OF THEIR ENTRANCES), AND WHICH PROHIBITS SMOKING IN
THE SEATING AREAS OF ALL OUTDOOR ARENAS, STADIUMS, AND
AMPHITHEATERS: CONTAINING A SAVINGS CLAUSE; REPEALING
INCONSISTENT ORDINANCES; ESTABLISHING A PENALTY; AND
PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE TIIEREOF.
WHEREAS. the U.S. Surgeon General has issued a comprehensive report with numerous
conclusions about secondhand smoke, including the following findings: The scientific evidence
is indisputable that secondhand smoke causes premature death and serious diseases in both adults
and children who do not smoke. There is no risk -free level of exposure to secondhand smoke.
Secondhand smoke is a proven cause of lung cancer and heart disease in nonsmoking adults and
of sudden infant death syndrome (SIDS), low birth weight, acute respiratory infections ear
infections and asthma attacks in infants and children. It is responsible for tens of thousands of
deaths in the U.S. each year. Exposure to secondhand smoke has substantial and immediate
adverse effects on the cardiovascular system. Workplaces related to the entertainment and
hospitality industries have notably high potential for secondhand smoke exposure. Smoke -free
policies and regulations do not have an adverse economic impact on the hospitality industry.
Separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot
eliminate exposure. Smoke -free workplace policies are the only effective way to eliminate
secondhand smoke exposure in the workplace. (U.S. Department of Health and Human Services.
The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon
General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease
Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic
Disease Prevention and Health Promotion. Office on Smoking and Health, 2006); and
WHEREAS, numerous studies have found that tobacco smoke is a major contributor to
indoor air pollution, and that breathing secondhand smoke (also known as environmental tobacco
smoke) is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory
disease, and lung cancer. The National Cancer Institute determined in 1999 that secondhand
smoke is responsible for the early deaths of up to 65,000 Americans annually. (National Cancer
Institute (NCI), "Health effects of exposure to environmental tobacco smoke: the report of the
California Environmental Protection Agency. Smoking and Tobacco Control Monograph 10,"
Bethesda, MD: National Institutes of Health, National Cancer Institute (NCI), August 1999.) The
Public Health Service's National Toxicology Program (NTP) has listed secondhand smoke as a
known carcinogen. (Environmental Health Information Service (EHIS), "Environmental tobacco
smoke: first listed in the Ninth Report on Carcinogens," U.S. Department of Health and Human
EXMIT A
Services (DHHS), Public Health Service, NTP, 2000; reaffirmed by the NTP in subsequent
reports on carcinogens, 2003, 2005); and
WHEREAS, a study of hospital admissions for acute myocardial infarction in Helena.
Montana before, during, and after a local law eliminating smoking in workplaces and public
places was in effect, has determined that laws to enforce SMOKE FREE workplaces and public
places may be associated with a reduction in morbidity from heart disease. (Sargent, Richard P.;
Shepard, Robert M.; Glantz, Stanton A., "Reduced incidence of admissions for myocardial
infarction associated with public smoking ban: before and after study," British Medical Journal
328: 977 -980, April 24, 2004); and
WHEREAS, secondhand smoke is particularly hazardous to elderly people, individuals
with cardiovascular disease, and individuals with impaired respiratory function, including
asthmatics and those with obstructive airway disease. Children exposed to secondhand smoke
have an increased risk of asthma, respiratory infections, sudden infant death syndrome.
developmental abnormalities, and cancer. (California Environmental Protection Agency (Cal
EPA), "Health effects of exposure to environmental tobacco smoke ", Tobacco Control 6(4): 346-
353, Winter, 1997); and
WHEREAS, the Americans With Disabilities Act, which requires that disabled persons
have access to public places and workplaces, deems impaired respiratory function to be a
disability. (Daynard, R.A., "Environmental tobacco smoke and the Americans with Disabilities
Act," Nonsmokers' Voice 15(1): 8 -9); and
WHEREAS, the U.S. Surgeon General has determined that the simple separation of
smokers and nonsmokers within the same air space may reduce, but does not eliminate, the
exposure of nonsmokers to secondhand smoke. (Department of Health and Human Services. The
Health Consequences of Involuntary Smoking: A Report of the Surgeon General. Public Health
Service, Centers for Disease Control, 1986.) The Environmental Protection Agency has
determined that secondhand smoke cannot be reduced to safe levels in businesses by high rates
of ventilation. Air cleaners. which are only capable of filtering the particulate matter and odors in
smoke, do not eliminate the known toxins in secondhand smoke. (Environmental Protection
Agency (EPA), "Indoor air facts no. 5: environmental tobacco smoke," Washington, D.C.:
Environmental Protection Agency (EPA), June 1989); and
WHEREAS, the Centers for Disease Control and Prevention has determined that the risk
of acute myocardial infarction and coronary heart disease associated with exposure to tobacco
smoke is non - linear at low doses, increasing rapidly with relatively small doses such as those
received from secondhand smoke or actively smoking one or two cigarettes a day, and has
warned that all patients at increased risk of coronary heart disease or with known coronary artery
disease should avoid all indoor environments that permit smoking. (Pechacek, Terry F.; Babb,
Stephen, "Commentary: How acute and reversible are the cardiovascular risks of secondhand
smoke?" British Medical Journal 328: 980 -983, April 24, 2004): and
WHEREAS, a significant amount of secondhand smoke exposure occurs in the
workplace. Employees who work in smoke - filled businesses suffer a 25 -50% higher risk of heart
attack and higher rates of death from cardiovascular disease and cancer, as well as increased
acute respiratory disease and measurable decrease in lung function. (Pitsavos, C.; Panagiotakos.
D.B.; Chrysohoou, C.; Skoumas, J.; Tzioumis, K.: Stefanadis, C.; Toutouzas, P., "Association
between exposure to environmental tobacco smoke and the development of acute coronary
syndromes: the CARDIO2000 case - control study," Tobacco Control 11(3): 220 -225, September
2002); and
WHEREAS, smoke -filled workplaces result in higher worker absenteeism due to
respiratory disease, lower productivity, higher cleaning and maintenance costs, increased health
insurance rates, and increased liability claims for diseases related to exposure to secondhand
smoke. ( "The high price of cigarette smoking," Business & Health 15(8), Supplement A: 6 -9,
August 1997.) Numerous economic analyses examining restaurant and hotel receipts and
controlling for economic variables have shown either no difference or a positive economic
impact after enactment of laws requiring workplaces to be SMOKE FREE. Creation of SMOKE
FREE workplaces is sound economic policy and provides the maximum level of employee health
and safety. (Glantz, S.A. & Smith, L. The effect of ordinances requiring SMOKE FREE
restaurants on restaurant sales in the United States. American Journal of Public Health, 87:1687-
1693, 1997; Colman, R.; Urbonas, C.M., "The economic impact of smoke -free workplaces: an
assessment for Nova Scotia, prepared for Tobacco Control Unit, Nova Scotia Department of
Health," GPI Atlantic, September 2001): and
WHEREAS, smoking is a potential cause of fires; cigarette and cigar burns and ash stains
on merchandise and fixtures causes economic damage to businesses. ( "The high price of
cigarette smoking," Business & Health 15(8), Supplement A: 6 -9, August 1997); and
WHEREAS, the smoking of tobacco is a form of air pollution, a positive danger to
health, and a material public nuisance. Accordingly, the City Council finds and declares that the
purposes of this ordinance are (1) to protect the public health and welfare by prohibiting smoking
in public places and places of employment; and (2) to guarantee the right of nonsmokers to
breathe SMOKE FREE air, and to recognize that the need to breathe SMOKE FREE air shall
have priority over the desire to smoke; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That Chapter 42 "Health and Sanitation," Article III "Smoking," of the
Code of Ordinances, City of Baytown, Texas, is hereby repealed in its entirety.
Section 2: That a new Chapter 42 "Health and Sanitation," Article III "Smoking," of
the Code of Ordinances, City of Baytown, Texas, is hereby adopted and shall 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:
Bar means an establishment that is devoted to the serving of alcoholic beverages for
consumption by guests on the premises and in which the serving of food is only incidental to the
consumption of those beverages, including but not limited to, taverns, nightclubs, cocktail
lounges, and cabarets.
Business means a sole proprietorship, partnership, joint venture, corporation, trust or
other business entity, either for - profit or not - for - profit, including retail establishments where
goods or services are sold; professional corporations and other entities where legal, medical.
dental, engineering, architectural, or other professional services are delivered; governmental
entities; and private clubs.
Employee means a person who is employed by an employer in consideration for direct or
indirect monetary wages or profit, and a person who volunteers his or her services for a non-
profit entity.
Employer means a person, business, partnership, association, corporation, including a
municipal corporation, or trust, that employs the services of one or more individual persons.
Enclosed Area means all space between a floor and ceiling that is enclosed on all sides by
solid walls or windows (exclusive of doorways), which extend from the floor to the ceiling.
Health Care Facility means an office or institution providing care or treatment of
diseases, whether physical, mental, or emotional, or other medical, physiological, or
psychological conditions, including but not limited to, hospitals, rehabilitation hospitals or other
clinics, including weight control clinics, nursing homes, homes for the aging or chronically ill,
laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, dentists, and
all specialists within these professions. This definition shall include all waiting rooms, hallways,
private rooms, semiprivate rooms, and wards within health care facilities.
Place of Employment means an area under the control of a public or private employer that
employees access during the course of employment, including, but not limited to, work areas,
employee lounges, restrooms, conference rooms, private offices, meeting rooms, classrooms,
employee cafeterias, hallways, and vehicles. A private residence is not a "place of employment"
unless it is used as a child care, adult day care, or health care facility. A private vehicle is not a
place of employment unless it is being used in the course of employment.
Private Club means a non -profit association of persons that: (1) 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 percent 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 an enclosed area to which the public is invited or in which the public
is permitted, including but not limited to, banks, bars, educational facilities, health care facilities,
hotel and motel lobbies, laundromats, public transportation facilities, reception areas, restaurants,
retail food production and marketing establishments, retail service establishments, retail stores,
shopping malls, sports arenas, theaters. and waiting rooms. A private club is a "public place"
when being used for a function to which the general public is invited. A private residence is not a
"public place" unless it is used as a child care, adult day care, or health care facility. A private
vehicle is not a "public place."
Restaurant means an eating establishment, including but not limited to, coffee shops,
cafeterias, sandwich stands. and private and public school cafeterias, which gives or offers for
sale food to the public, guests, or employees, as well as kitchens and catering facilities in which
food is prepared on the premises for serving elsewhere. The term "restaurant" shall include a bar
area within the restaurant.
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. A store
shall be deemed as utilized primarily for the sale of tobacco products and accessories if at least
75% of the gross revenue of the store derives from tobacco products and tobacco accessories.
Service Line means a line in an enclosed area in which one (1) or more persons are
waiting for or receiving service of any kind, whether or not the service involves the exchange of
money.
Shopping Mall means an enclosed public walkway or hall area that serves to connect
retail or professional establishments.
Smoking means lighting, inhaling, exhaling, burning, or carrying any lighted cigar,
cigarette, pipe, or other lighted tobacco product in any manner or in any form.
Sports Arena means sports pavilions, stadiums, gymnasiums, health spas, boxing arenas,
swimming pools, roller and ice rinks, bowling alleys, and other similar places where members of
the general public assemble to engage in physical exercise, participate in athletic competition, or
witness sports or other events.
Sec. 42 -97. Application of Article to City-Owned Facilities
All enclosed areas in city owned facilities, including buildings and vehicles owned,
leased, or operated by the City of Baytown, shall be subject to the provisions of this Article.
Sec. 42 -98. Prohibition of Smoking in Enclosed Public Places
Smoking shall be prohibited in all enclosed areas in public places within the city,
including but not limited to, the following places:
A. Aquariums, galleries, libraries, and museums.
B. Areas available to and customarily used by the general public in businesses and
nonprofit entities patronized by the public, including but not limited to, professional offices,
banks, laundromats, hotels, and motels.
C. Bars.
D. Bingo facilities.
E. Convention facilities.
F. Educational facilities, both public and private.
G. Elevators.
H. Facilities primarily used for exhibiting a motion picture, stage, drama, lecture, musical
recital, or other similar performance.
I. Health care facilities.
J. Hotel and motel lobbies.
K. Licensed child care and adult day care facilities.
L. Lobbies, hallways, and other common areas in apartment buildings, condominiums,
trailer parks, retirement facilities, nursing homes, and other multiple -unit residential facilities.
M. Polling places.
N. Private clubs when being used for a function to which the general public is invited.
O. Public transportation facilities, including buses and taxicabs, under the authority of the
City of Baytown, and ticket, boarding, and waiting areas of public transit depots.
P. Restaurants.
Q. Restrooms, lobbies, reception areas, hallways, and other common -use areas.
R. Retail stores.
S. Rooms, chambers, places of meeting or public assembly, including school buildings,
under the control of an agency, board, commission, committee or council of the City or a
political subdivision of the State, to the extent the place is subject to the jurisdiction of the City.
T. Service lines.
U. Shopping malls.
V. Sports arenas, including enclosed places in outdoor arenas.
Sec. 42 -99. Prohibition of Smoking in Places of Employment
A. Smoking shall be prohibited in all enclosed areas within places of employment
without exception. This includes common work areas, auditoriums, classrooms, conference and
meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee
lounges, stairs, restrooms, vehicles, and all other enclosed facilities.
B. This prohibition on smoking shall be communicated within three weeks of adoption to
all employees and posted conspicuously in all workplaces under the employer's jurisdiction.
Sec. 42 -100. Prohibition of Smoking in Outdoor Arenas and Stadiums
Smoking shall be prohibited in the seating areas of all outdoor arenas, stadiums, and
amphitheaters.
Sec. 42 -101. Reasonable Distance
Smoking is prohibited within a reasonable distance of 15 feet outside an enclosed area
where smoking is prohibited, so as to insure that tobacco smoke does not enter the area through
entrances, windows, ventilation systems, or other means.
Sec. 42 -102. Where Smoking Not Regulated
Notwithstanding any other provision of this Article to the contrary, the following areas
shall be exempt from the provisions of Sections 42 -98 and 42 -99:
A. Private residences, except when used as a licensed child care, adult day care, or health
care facility.
B. Private vehicles, except when being used in the course of employment.
C. Hotel and motel rooms that are rented to guests and are designated as smoking rooms;
provided, however, that not more than twenty percent (20 %) of rooms rented to guests in a hotel
or motel may be so designated. All smoking rooms on the same floor must be contiguous and
smoke from these rooms must not infiltrate into areas where smoking is prohibited under the
provisions of this Article. The status of rooms as smoking or nonsmoking may not be changed,
except to add additional nonsmoking rooms.
D. Retail tobacco stores; provided that smoke from these places does not infiltrate into
areas where smoking is prohibited under the provisions of this Article.
E. Private and semiprivate rooms in nursing homes and long -term care facilities that are
occupied by one (1) or more persons, all of whom are smokers and have requested in writing to
be placed in a room where smoking is permitted; provided that smoke from these places does not
infiltrate into areas where smoking is prohibited under the provisions of this Article.
F. Private clubs that have no employees, except when being used for a function to which
the general public is invited.
G. Outdoor areas of places of employment except those covered by the provisions of
Sections 42 -101, 42 -102.
H. Areas designated within a hospital psychiatric unit.
Sec. 42 -103. Declaration of Establishment as Nonsmoking
Notwithstanding any other provision of this Article, an owner, operator, manager, or
other person in control of an establishment, facility, or outdoor area may declare that entire
establishment, facility, or outdoor area as a nonsmoking area. Smoking shall be prohibited in any
place in which a sign conforming to the requirements of Section 42 -104 is posted.
Sec. 42 -104. Posting of Signs
A. Signs containing the words "No Smoking' and/or the international "No Smoking'
symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle
with a red bar across it) shall be clearly and conspicuously posted in every public place and place
of employment where smoking is prohibited by this Article, by the owner, operator, manager, or
other person in control of that place.
B. Every public place and place of employment where smoking is prohibited by this
Article shall have posted at every entrance a conspicuous sign clearly stating that smoking is
prohibited inside and within 15 feet of the entrance.
C. All signs required under this section must be at least ten inches x 14 inches and shall
include the information required in this section and must be written in contrasting colors with
block letters at least one inch in height.
D. All ashtrays shall be removed from any area where smoking is prohibited by this
Article by the owner, operator, manager, or other person having control of the area.
Sec. 42 -105. Nonretaliation; Nonwaiver of Rights
A. No person or employer shall discharge, refuse to hire, or in any manner retaliate
against an employee, applicant for employment, or customer because that employee, applicant,
or customer exercises any rights afforded by this Article or reports or attempts to prosecute a
violation of this Article.
B. An employee who works in a setting where an employer allows smoking does not
waive or otherwise surrender any legal rights the employee may have against the employer or
any other party.
Sec. 42 -106. Enforcement
A. This Article shall be enforced by the Director of Health or an authorized designee.
B. Any citizen who desires to register a complaint under this Article may initiate
enforcement with the Department of Health.
C. The Health Department, Fire Department, or their designees may, while an
establishment is undergoing otherwise mandated inspections, inspect for compliance with this
Article, or they may inspect at such other times as they may determine at their discretion.
D. An owner, manager, operator, or employee of an establishment regulated by this
Article shall inform persons violating this Article of the appropriate provisions thereof.
E. Notwithstanding any other provision of this Article, an employee or private citizen
may bring legal action to require the city to enforce this Article.
F. In addition to the remedies provided by the provisions of this Section, the City
Manager or the Director of Health may apply for injunctive relief to enforce these provisions in
any court of competent jurisdiction.
Sec. 42 -107. Violations and Penalties
A. A person who smokes in an area where smoking is prohibited by the provisions of this
Article shall be guilty of an infraction, punishable by a fine as provided in section 1 -14 of the
Code of Ordinances of the City of Baytown.
B. A person who owns, manages, operates, or otherwise controls a public place or place
of employment and who fails to comply with the provisions of this Article shall be guilty of an
infraction, punishable by:
1. A fine not exceeding one hundred dollars ($100) for a first violation.
2. A fine not exceeding two hundred dollars ($200) for a second violation within a
period of twelve (12) consecutive months.
3. A fine not exceeding five hundred dollars ($500) for each additional violation
within a period of twelve(12) consecutive months.
C. Violation of this Article is hereby declared to be a public nuisance, which may be
abated by the Director of Health by restraining order, preliminary and permanent injunction, or
other means provided for by law, and the City may take action to recover the costs of the
nuisance abatement.
Sec. 42 -108. Public Education
The Director of Health shall engage in a continuing program to explain and clarify the
purposes and requirements of this Article to citizens affected by it, and to guide owners,
operators, and managers in their compliance with it. The program may include publication of a
brochure for affected businesses and individuals explaining the provisions of this ordinance.
Sec. 42 -109. Other Applicable Laws
This Article shall not be interpreted or construed to permit smoking where it is otherwise
restricted by other applicable laws.
Sec. 42 -110. Liberal Construction
This Article shall be liberally construed so as to further its purposes.
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.
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: 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 Dollars (52,000.00).
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 day of 52006.
STEPHEN DONCARLOS, Mayor
ATTEST:
LORRI COODY, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
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