Ordinance No. 10,548ORDINANCE NO. 10.548
AN ORDINANCE OF THE CITY COIINCII, OF THE ClTY OF BAYTOWN,
TEXAS. ORDERING A SPECIAL ELECTION TO BE HELD ON THE 12~"
DAY OF MAY. 2007, FOR THE PURPOSES OF CONSIDERING A
I'ROPOSED INITIATIVE ORDlNANCE Wl IICH REPEALS THE CURRENT
SMOKING ORDINANCE AND ADOPTS A NEW CI-IAPTER 42 "NEALTII
AND SANITATION". ARTICLE 111 "SMOKING" OF THE CODE OF
ORDINANCES. BAYTOWN. TEXAS. THAT REINSTATES THE PREVIOUS
SMOKING ORDINANCE: DESIGNATING TI IE PLACES AND MANNER OF
I IOLDING SAID ELECTION; PRESCRIBING THE HOURS: ESTABLISHING
THE CENTRAL COUNTING STATION: PROVIDING FOR AN EARLY
BALLOT BOARD FOR EARLY BALLOTS: ESTABLISHING CERTAIN
PROVISIONS RELATED TI IERETO: AND PROVIDING FOR TI IE
MAILING. POSTING AND PUBLICATION OF NOTICE.
WHEREAS. on February 22. 2006. the City Council of the City of Baytown. Texas.
called its regular municipal election for the purpose of electing the Council Members from
District Numbers 1. 2 and 3: and
WHEREAS, the City Council desires to submit to the voters amendments to Chapter 42
"Health and Sanitation." Article 111 "Smoking" of the Code of Ordinances. Bayto\\-n, Texas; and
WHEREAS, the City Council herein calls a special election to be held on the 12"' day of
May. 2007, for purposes of voting for or against such amendments to Chapter 42 "Health and
Sanitation." Article 111 "Smoking" of the Code of Ordinances, Baytown. Texas: NOW
THEREFORE
BE IT ORDAINED BY THE ClTY COUNCIL OF THE CITY OF BAYTOWN.
TEXAS:
Section 1 : That a special election pursuant to Sections 41 .OO 1 and 4 1.03 1 of the
Texas Election Code. shall be held between the hours of seven o'clock a.m. and sapen o'clock
p.m. on the 12lh day of May. 2007. in the City of Baytown, Texas. for the purpose of voting for
or against the proposed aniendnients set forth herein. If the initiative ordinance is approved by a
~iiajol-ity of the qualified voters voting thereon. it shall take effect and become part of the Code of
Ordinances upon its adoption and the entering of an order by the City Council declaring the
initiative ordinance adopted. The proposed amendments are included as Proposition No. 1 and
affect only the articles and sections listed in Exhibit "A," which is attached hereto and
incorporated heruin for all intents and purposes.
Section 2: That the proposition specified in Section 1 hereof shall be presented to the
City at large and the proposition shall be submitted in accordance with law.
Section 3: That the form of the ballot for this special election shall be substantially as
follo\vs:
OFFICLlL BALLOT
PROPOSITION NO. 1
The ordinance, which reinstates tht. previous snioking ordinalice
[I FOR which was in effect on November 6, 2006, and which, in part, (i)
allows certain establishments, including restaurants. to establish
[ ] AGAINST designated smoking areas: providcd that a separatc ventilation
system is installed thar prevents the conlnlingling of air and (ii)
allo\vs smoking in bars that do not contain a dining area.
Section 4: That the City is hereby divided into Election Precincts, having the follo~ving
polling places and election officials for the purpose of the elections ordered herein:
g Precinct Nos. 12 and 533 within
4901 Fainvay Drivc
Baytoivn, Texas
(Consisting of that portion of Harris County
Voting Precinct No. 102 within the City)
ho. 248
(Consisting of that portion of Harris County
Voting Precinct No. 248 within the City)
No. 219
(Consisting of that portion of Harris County
Voting Precinct No. 249 within the City)
KO. 250
(Consisting of that portion of IIarris County
Voting Precinct No. 250 within the City)
No. 386
(Consisting of that portion of Harris County
Voting I'recinct No. 386 within the City)
No. 387
(Consisting of that portion of Harris County
261 5 Virginia
Bayto~vn, Texas
Cancer Elementary
600 Pruett
Baytown, Texas
DeZavala Elementary
305 Tri-City Beach Road
Baytown, Texas
Harlem Elementary
3333 Interstate I0 East
Haytown, Texas
Gentry Junior School
19 19 Archer Road
Uayto\vn, Texas
Highlands Elementary
200 East Wallisville Road
- -- -
PRECIXCT LOCATION - -.
So. 111 Cedar Bayou Junior School Library
(Consisting of that portion of Harris County
Voting Precinct No. 4 14 within thc City)
Yo. 156/103/710
24 10 Cedar Bayou
Baytown. Texas
Ross S. Sterling High School
(Consisting of that portion of Harris County
Voting Precinct Nos. 103, 740 and 456)
i So. 532
Section 4: The City Council of the City of Baytown, Texas shall appoint a presiding
judge and an alternate judge for each precinct hereinabove designated. Furtl~ermore, the
respective presiding judge for each precinct as herein provided shall be authorized to appoint a
sufficient number of clerks as they may deem necessary to assist them in said election, provided.
however. that the number of clerks appointed by said presiding judge for each polling place shall
not be less than two. including the alternate judge also serving as a clerk. The judges and clerks
shall be conipensated at the rates established by the City Council in its ordinance calling the
regular municipal election on May 12,2007.
300 ~.-~aker
Bayto\vn. Texas
James Bowie Elementary
i
(Consisting of that portion of Harris County
Voting Precinct No. 532 within the City)
Section 5: Direct recording electronic (DRE) equipment shall be used for voting at
the designated election precincts. and electronic counting devices and equipment shall be used
for counting the ballots at the election.
2200 Clayton
Baytown, Texas
Section 6: 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 Office of the City Clerk in the City
Council Chamber of tlie City I-Iall of the City of Baytown, located at 2401 Market Street. Should
the City and the Goose Creek Consolidated Independent School District (the "District") enter
into a joint election agreement and should tlie District hold an election on May 12, 2007, branch
early voting lvill be conducted at the District's Administration Building. The City Clerk is
hereby appointed the early voting clerk. Paper ballots shall be used for early voting by mail and
direct recording electronic (DRE) equipment shall be used for early voting by personal
appearance. Early voting by personal appearance shall commence on April 30, 2007. at seven
o'clocl< (7:OO) a.m.. and end at seven o'clock (7:00) p.111. on May 8. 2007. Early voting by
personal appearance shall be conducted during the regular business hours of the City Clerk's
Officc each weekday from eight o'clock (8:OO) a.m. until five o'clock (5:OO) p.m.; provided.
however, that the City Clerk shall have regular business hours on May 6, 2007, May 7, 2007 and
May 8. 2007, as follows:
....................... May 6, 2007 12:30 p.m. to 5:00 p.m.
......................... May 7. 2007 7:00 a.m. to 7:00 p.m.
......................... May 8. 2007 7:00 a.m. to 7:00 p.m.
Section 7: That thc special election shall be held in accordance with. and shall be
governed by. the election lakvs of the State of Texas. In the special election. the Mayor and the -
City Clerk of the City of Baytown shall do and perforln each act as required to be done and
performed respectively by tlie County Judge and the County Clerk of tlie Comniissioners' Court.
The notice of proclanlation of this election shall be issued and posted on the bulletin board used
for posting notices of meetings not later than the hventy-first (21st) day behre the date of the
election ordered herein.
Section 8: The Board Conference Room of the Administration Building of tlie Goose
Creek Consolidated Independent Scliool District. located at 4544 Interstate 10 East, is hereby
established as the Central Counting Station to receive and tabulate voted ballots. However,
should the Goose Creek Consolidated School District not hold an election on tlie 12"' day of
May. 2007. the Council Clianibers and Hullun~ Conference Rooni of the City I-lall of tlic City of
Baytown. located at 2401 Market Street. shall be the Central Counting Station to receive and
tabulate voted ballots.
Section 9: That the persons authorized and approved as persons employed and
designated to handle the ballots. operate the tabulating equipment. count the ballots, and be
present in the Central Counting Station as designated by tlie City Council for its regular
niunicipal election to be held on May 12. 2007. are hereby authorized and approved for the same
purposes in relation to the special election.
Section 10: That the Early Voting Ballot Board created and appoiuted for the regular
municipal election to be held on May 12. 2007. is hereby created and appointed to the Early
Voting Ballot Board for tlie special election for the purpose of processing early voting results.
Scction 11: That the cornniittee established and the persons appointed to perform
computer accuracy tests in accordance with Section 127.093 ol'tlie Texas Elcction Code for the
regular municipal election to be held on May 12, 2007. are hereby established and appointed to
perfor111 coniputer accuracy tests in accordance with Section 127.093 of the Texas Election Code
for tlic special election.
Section 12: The Mayor is hereby directed to give notice of said elections by publishing a
copy of the Election Proclamation and Notice in a newspaper of general circulation within the
City of Baytown. Texas: said publication to be made no earlier than the 30'" day or later than the
tenth day prior to the date of said elections. The City Clerk is fiu-ther authorized to give or cause
to be given notices required for the election. and to take such other and further action as is
required to conduct the election in conipliance with the Texas Election Code.
Scction 13: In all matters relating to the ordering. giving notice, and holding the
elections, the City shall co~iiply with the applicable parts of the Texas Election Code. including
particularly Chapter 272 of the Texas Election Code pertaining to bilingual recluirements, arid the
Federal Voting Rights Act of 1965. as amended.
Section 14: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytourn. Texas.
INTRODUCED, READ and PASSED by the vote of the City Council of the
City of Baytown on this the theu" day of February, 200
APPROVED AS TO FORM:
&~~ACIO RAMIREZ, ~~.&ity Attorney
Exhibit "A"
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE ClTY OF BAYTOWN,
TEXAS, REPEALING CHAPTER 42 "HEALTH AND SANITATION",
ARTICLE 111 "SMOKMG"; ADOPTING A NEW CHAPTER 42 "HEALTH
AND SANITATION", ARTICLE I11 "SMOKMG" THAT REINSTATES THE
IIREVIOUS SMOKING ORDINANCE; CONTAINING A SAVINGS CLAUSE;
REPEALING INCONSISTANT ORDINANCES; ESTABLISHING A
PENALTY: AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE
DATE THEREOF.
NOW THEREFORE BE IT ORDAlNED BY THE CITY COUNClL OF THE ClTY OF
BAYTOWN, TEXAS:
Section 1: That Cliapter 42 "Health and Sanitation." Article Ill "S~noking:" of the. Code of
Ordinnnces, Cih of Ba>to\vn: Texas. is hcrcby repealed in its entirety.
Section 2: That a nsn- Chapter 42 "Health and Sanitation." Articlc In "Smoking." of the Code of
Ordinances, Cit). of Baytown. Tesas. is liereby adoptcd imd shall read as follons:
ARTICLE 111. ShIOKING*
'"Cross references: Firc prevention and protection, ch. 38.
State Inw references: Smoking, V.T.C.A.. Health and Safety Code S; 382.1 11 ct scq.; snloking
prohibited in certain places, V.T.C.A.. Penal Code $ 48.01.
Sec. 42-96. Definitions.
Thc follotving ~vords. tenns and phrases, when used in this article, shall have the meanings ascribed to
them in this section, escept n-hcrc thc co~ltcst clearly indicates a different meaning:
Air venfilotion system shall mean an WAC system designated designed by a licensed professional
engineer to meet the requirenients of the city mechanical code and shall i~tilizc an amount of outside "mising" air
in acco~.dancc with industq codes slid standards. Such systenl shall havc a negative pressure on the area
designated for smoking to prevent air from a smoking arca to be drawn across or into the nonsmoking arca.
Billiard ha1 means a place of amusement \ithose chief purpose is providing the usc of billiard/pool tables
to the public for a fee.
Bingoporlor means a hcility regulated under the Bingo Enabling Act.
Conveyance means any vehicle used as a meruw of taming or transporting persons as passengers to
\vhich thc public or a substantial group of the public has access.
Day-care crnfer means a child-care facili~. as defined in V.T.C.A.. Human Resources Code $ 42.002.
orher than a foster home. \vhici~ is reqi~ircd to be licensed, certified. or registered by the statc and includes. bur is
not liniitcd to. a day-care center, group day-care home, and a foster group home.
Designated smoki~ig area means that portio~l of a public place in which smoking is authorized
under this article.
(I) For an eating establishrncnt, thc dcsignated smoking area must not exceed 50 percent of the
total number of scats a\.ailablc in the area where food is senled.
(2) For a public placc othcr than an eating establishment, the designated smoking arca shall not
esceed 50 percent of thc net floor area.
A designated snloking area may not includc rcstrooms. senice Imes, ivaiting areas, public telephone areas and
orher common area used by a11 patrons. A designated smolung area must have a physical banier bct~vcen it and
the nonsmoking area and niust have a separate, functioning air ventilation system.
Dining area means any area of a public place in ~vhich meals or cntrces are senred, but shall not include
arcas \vhcrc thc incidental senrice of hors d'oeuvrcs, snacks, pretzels. popconl or similar itens are provided. or
n-here food sales in thc area are no more than 25 percent of gross receipts.
E~ring esroblishmenr means any placc \\.hcrc food is served for on-premises consumption and which is
accessible by the public or a substantial group of the public.
E~nployee mcans a person who is eniployed by an cmploycr in consideration for monetary conlpcnsation
or profit.
Employer means a person, partnership, corporation, association or other entity employing one or
Inore pcrsons.
Food pr0dltcl.s esmhli.shment shall mean any restaurant. coffcc shop, cafeteria. luncheonette,
sandwich stand, soda fountain, private and public school cafeteria or any other eating establishment and any
caring cstablishmcnt, organization. club. boardinghouse or guestllouse. \vhich gives or offcrs for sale food to
the public or a substantial group of the public. guests. patrons or employees as ncll as kitchens in which food
is prepared on the premise for scrving clsc\vhere. including catering facilities. Other food product
establishments include grocery stores and food markets, not including thosc outdoors.
Netfloor area mzans the floor area of the interior of a public place normally utilized and accessible
by patr011s andor the general public.
P/?jlsical barrier meails a barrier that will form an cffcctivc mcnlbranc conti~~uous, esclusivc of
doorways; from outside \tall to outside ivail. fronl a smoke bruricr to a smoke barrier, from floor to floor or
ceiling above, or a combination thercof.
Place oj'enrploj~menr means an enclosed. ir~door area under the control of an employer to whicll
employees have access during the course of emplo\ment and includes work areas. employee lounges,
employee restrooms. conference rooms and employee cafeterias. The term does not includc a private
residence.
Privnfo clzrb means a non-profit associatiorl of persons that:
(1) Is organized for the pro~notion ofsorne common object:
(2) Is comprised of lne~nbcrs who are passed on and elected by a committee or board made
up of ~nenlbers of the club:
(3) is composed of nlembers of ivhich at least 50 percent reside in thc county in which the
premises of the club is located:
(4) Grants membership to an applicant only after n written application has bcen filcd with the
chairman of the menlbcrship conmuttcc or board and approvcd by the chairman;
(5) Owns. leases. or rents a building. or space in a building of such estcnt and character as is
suitable and adcquatc for the club's nlembers and thcir gucsts:
(6) Provides regular food senrice adcquatc for its members and their guests;
(7) Collects annual men~bership fces. dues. or other income. escluding proceeds from the
disposition of alcol~olic beverages but including service charges. ivhich income must be
sufficient to defray the annual rental of its leased or rented premises or, if the prcmises are
owned by the club, sufficient to meet the tases, insurance, and rcpairs and the intcrcst on any
mortgage on the premises;
(8) Is managed by a board of directors. csccutive cornmittce, or similar body chosen by the
members at tlieir annual meeting: and
(9) Does not compensate, directly or indirectly, any nlcmber or any officer, agent. or
employee of the club, from the disposition of alcoholic bcvcrages to members of the club and
their guests. other than charges for the senice of the beverages.
Plrblic nleeting means a mccting open to the public and held in an cnclosed area i~nless the meeting is
held in a private residence.
P~rblic place means:
(1) An enclosed, indoor arca that is used by the public or that senrcs as a workplace. and
includes. but is not limited to, the follo\ving:
a. All or part of a building used for starc or local governmental purposes;
b. A retail storc, office: or other commercial establishment:
c. An eating establishment, bar. night club, loungc, tavern, adult entertainment
establishmzrit. billiard hall or bingo parlor:
d. A food products establishment, a retail food store or convenic~ice 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 faciliry, nursing home. con~alescent home or government
subsidized senior citizen residential facility;
i. A museum, theater, ~iioi~ie house, auditorium. or arena, or any other enclosed
facility which is open to thc 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 jun. ivniting or deliberation room;
m. A library:
n. A place of employment;
o. A place providing persolial services:
p. A building or facility or portion thereof of a private club, 1~~11ich is open to the
public:
q. Any building or facility or portion thereof o~vned, occupied and under the
managenlent and colltrol of thc City:
r. A senlice line, waiting area. cashier arca. over-the-counter sales Area, or
colnmoli traffic arca;
s. An elevator:
t. A room or c~iclosed place of public assembly in ivhicli public business is
conductcd \\hen the public business requires or provides an opportunity for direct
participation or observation by the general public;
u. A day-carc center;
11. A scrvice station or gas station: or
w. Any confercnce room. meeting room or assc~nbly room of any hotel. motel or
public or private convention center, except ~vhcn being used for an cvcnt to which the
general public is cscluded.
(2) A park or recreational arca, whether enclosed or unenclosed, owned or operated by a
governmental entity \\lhen 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 18-107 1. inclusive of the entire area
uithln the pool yard enclosure.
l{clail or service establishment means any estabhhnicnt \vhich sells goods or senices to the general
public.
Service line or \claiti,ig area means any indoor line or area where one or nlorc persons are waiting for or
receiving service of any kind, \vhether or nor such service involves the eschru~ge of money. Such senlice shall
include, but not be limited to. sales, restaurant seating, giving of information. directions, or advice and transfers of
money or goods.
Smoke, smokes or s,,ioking includes:
(1) Carrying or holding a lighted pipe. cigar or cigarette of any kind or any othcr lighted smoking
equipment or device:
(2) Lighting a pipe, cigar or cigarette of any kind or any other stnoking equipincnt or devicc; or
(3) Emitting or eshaling tile sn~okc of a pipe, cigar or cigarette of any kind or any other smoking
equipment or deiice.
Tobacco prod14cr means a cigarette: cheroot: stogie; cigar: snuff or other preparations of pulverized
tobacco; smoking tobacco. includillg granulated, pug-cut. crimp-cut, ready-rubbcd. and any form of tobacco
suitable for snloking iu 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 refoil shop means a retail establishment wit11 annual gross revenucs of at least 50
percent from the sale of tobacco products and smoking accessories.
(Codc 1967. # 17-23(a); Ord. No. 5328, 9 1. 8-24-89; Ord. No. 5473, 6 1.2-22-90; Ord. No. 65 13. 4 1, 1-28-
93: Ord. No. 85 18, 9 2,2-25-99: Ord. No. 8530. 9 I. 3- 11 -99: Ord. No. 9882, 5 1,9-23-04)
Cross references: Definitions generally: 1-2.
Sec. 42-97. Administration.
(a) The director of health shall adopt rules ncccss- under this article and shall implement and dctcrmine
conipliance nith this article.
(b) This article shall be enforced by the director of health. The director of health is authorized
to make ail necessary inspections. issue citations. givc notice, filc applicable charges and othenvisc
coopcrate in the enforcement of this article.
(Codc: 1967, 6 17-23(h): Ord. No. 5328. 9 1.8-24-89: Ord. No. 5473, § 1,2-22-90: Ord. No. 65 13, $ 1, 1-28-93:
Ord. No. 9882, $ 2.9-23-04)
Cross references: Administration, ch. 2.
Sec. 42-98. Chapter not to exc~lse noncompliance with other Ineasures; authority for more restrictive
requirenlents.
(a) Nothing in this chapter escuses noncon~pliance with any state or federal law. provisions of this code or
any other applicable ordinance of the city, or any rule or rcgulation adopted pursuant thereto which
prollibits smoking.
(b) Nothing in this article shall prohibit the owner, lessee. manager, operator or other pcrson in charge of
a public place from adopting nonsmoking requirements that are more restrictive than those set forth in this
article.
(Code 1967. 9 17-23(i); Ord. No. 5328, 5 1. 8-24-89: Ord. No. 5473. 5 1,2-22-90; Ord. No. 6513, 5 1. 1-
28-93: Ord. No. 85 18. $ 3.2-25-99)
Sec. 32-99. Offense.
(a) A person commits an offense if the person:
(1) Snlpkes at a public meeting or in a public placc and the person is not in a designated
smoking area designated under section 42- 10 1 :
(2) Sn~okcs within I5 feet of any entrance of a public place through \\.hich the public can gain
initial access to the facility:
(3) Is the o\\-ncr, lessee: manager. operator or otllcr person in charge of a public placc. and
permits or fails to rnake reasonable effort to prevent the cornmission by another of an offense
described within subsection (a)(I) of this section:
(1) Is the owner. lessee. manager. operator or other person in charge of the private property
located within lj fcct of ally clltrancc to a public place. md pernlits or fails to ~tlake
reasonable effort to prevent the commission by another of an offense described ivithm
subsection (a)(2) of this section:
(5) 1s thc o\\.ner, lessce, manager, operator, or other person in charge of a public place and
fails to post signs as required by section 42-102;
(6) Is the o\vaer: 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. lcssee, manager. operator or other person in charge of a public place and
fails to provide facilities to esringuisll smoking materials in compliance \vith section 42- 104.
(b) It is an esception to the application of subsection (a) of this section that the person is smoking:
(1) In a situation in \vhich 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 onner. 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 eshausts 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, escept when used as a licensed child care 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 pcrfomiance: or
(8) In a tavern. bar, or lounge not containing a dining area; or
(9) In designated smoking areas. nrhiclt have been properly designated in accordance with thus
article.
(Code 1967. Ij 17-23(b); Ord. No. 5328, S 1: 8-24-89; Ord. No. 5473, 5 1,2-22-90; Ord. No. 6513, 9 1.1 -28-
93: Ord. No. 85 18. 9 4.2-25-99: Ord. No. 9453, 6 1,lO-24-02)
Sec. 32- 100. Penalty.
Any person who shall violate any section of this article shall. up011 conl.iction, be punished as
providcd in section 1-14.
(Code 1967, $ 17-230; Ord. No. 5328, 8 I, 8-24-89; Ord. No. 5173. 5 1.2-22-90: Ord. No. 6513. 9 1. l-
28-93)
Sec. 42-101. Designation of designated smoking firens.
(a) In general. Except as othern-ise 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. Icssce, manager, operator or other person in charge of a public place in esistence
at the time of the passage of Ordinance No. 85 18 who desires to permit persolis in tlie public place to
smoke shall make the necessary renovations on or before April 1, 2000. to ensure that thz 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 arca o\kncd or operated by a governmental
entity. the governmental entit!. may designate with appropriate signage only the motor vehicle
parking areas of the park or rccrcational area as smoking areas.
(c) By e~?iplo)lers. Each employer, othcr than the city. who operates a place of emploj.rnent shall
develop, implement and maintain a mitten smoking policy that is consistent with tlie requirements of
this article nithin three months of adoption of this article or upon opening for business. This article
does nor prohibit an employer from designating a place of c~nploymer~t i.11 its entirety as a
ions smoking area. Honever. if smoking is ptrmitted. the policy shall contain, at a minimum. the
folloi\fing pro~risioiis and requirements:
(I) The on-ncr, lcsscc or othcr person ~II 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 tlie
smohng policy provided for in this section. A designated crnploycc smoking arca may
include private enclosed offices. Designated employee smoking areas may be located in areas
to n hich employees. but not the general public, cxcept by inkitation only, have access during
rhe course of employment. A common enlployee work area shall not bc designated as an
employee snloki~ig arca unless every person tvho works in tliat area agrees in ivriting to the
designation. In no cvent shall an employec restroom or an arca containing food or drink
dispensing faciliries bc dcsignarcd as an employee slnolung area.
(2) If such employee smoki~ig arca is designated, cach smoking area shall:
a. Be in an arca set asidc for the use of employees, but not accessible to members of
thc general pi~blic except b!' specific invitation of the employer or employee:
b. Bc rlo 1;lrgcr in size rllar~ proportionate to tllc prcfcrcr~cc of srnoking c~ilployccs normally
rcqucs~ing a s~noking arca and such area size can be dctcrrnir~cd by tltc o\\xcr, lessee or oilier
pcrsoll in chrlrgc:
c. Be vcl~tilated to prevent the mixing of air from tlic dcsiglintcd cn~ployce smoking
area to othcr areas or the public areas:
d. Bc a pllysicslly enclosed area separated from nonsn~oking areas:
c. Bc dcsignatcd by appropriate signs which are clearly visible to cn\ployecs and
mcmbcrs of thc public entering the area: and
f. Cor~tai~l ashtrays. containers or other facilities for thc cstinguisl~mcnt of smoking
materials.
(3) The snlokirig policy shall be cornmunicatcd \vithin thrcc ivcsks of adoption to all
employees and postcd conspicuously in all workplaces under the cniployer's jurisdiction.
(4) The o\vner. lcssee or other person in charge of a public placc that designates onc or Inore
mas as designated smoking areas for the public shall not rcquirc emplo\.ces to work in a
designated smoking arca if the employees request to work in a nonsmoking ma.
(d) I<enricr~otls. A smoking area may not be designated in:
( 1) X day-carc center:
(2) A public or private preschool, primary or secondary school;
(3) AII clcvntor:
(4) A scllool bus:
(5) All ciicloscd tl~catcr or movie house:
(6) A library:
(7) A muscum or gallcry:
(8) X hospital. health care facility, nursing homc, convalescei~t ho~nc or government
subsidized senior citizen residential facility, including. but not limitcd to. clinics. physical
therapy facilities. doctor's offices. residential treatment centers. and dcntists officcs. without
the \witten orders fro111 thc anending physician and the \\.rittcn approval of thc director of
health. \\.ho s11a11 require the following:
a. That all psticnts within the room are smokers and
b. Tliat the room qualifies as a designated smoking arca:
(9) A conveyance or a public means of mass transportation:
( 10) A rcstroorn;
(1 1) A scnicc linc. \vaiting areas. public telephone arcas. cashicr arca. ovcr-the-counter sales
arca, or colnlnon traffic area. including access thercto:
( 12) A placc ill \vhic11 smoking is prohibited by the firc marshal of tl~c statc or a political
subdivision or by otllcr la\\.. ordinance. or rule; or
(13) A park or recrcational arca o\vned or operated by a govcrn~ncntal cr~lity when in use for
all atl~lctic Icagi~c or tournament play or practice, csccpt in arcns desigllntcd by signnge in
nccordn~icc \vitll subsrction (b) of this section: and
(1.1) Ally building used for city purposes.
(c) By o,c.ners. Notwithstanding any other provkion of this section, any owner. lessee. operator.
manager or orher person who controls any public place may declarc that the entire public place or any
portion of thc public place as a nonsmoking area.
(Code 1967. 5 17-23(d); Ord. No. 5328. 8 1.8-24-89; Ord. No. 5473. 9 1,2-22-90: Ord. No. 6513, 9 1, 1-28-
93: Ord. No. 85 18, 5, 2-25-99)
Sec. 12- 102. Signs.
(a) An owner, lessee, manager, operator or other person in charge of a public place shall place
conspicuous signs visible at cach cntralice to rhe premises to notify persons entering the premises of
the folio\\-ing:
(1) Smoking is prohibircd (i) within I5 feet of the elltrance 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 timi: constraints referenced in subsection 42-1 01 (a).
(b) An otvner. 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 smolcll~g is
pern~itred in the designated area only.
(c) All signs required under tllis section must be at least ten inches x 14 inches and shall include the
information required in subsection (a) and [nust be n-ritten in contrasting colors with block letters at
least one inch in height.
(Code 1967, 17-23(e); Ord. No. 5328, 1, 8-24-89; Ord. No. 5473, 5 1: 2-22-90; Ord. No. 6513, 5 1, 1-
28-93: Ord. No. 8518, 5 6,2-25-99)
Sec. 32-103. Effort to prevent smoking.
An onner. lessee, manager. operator or other person in charge of a public place shall make a
reasonable effon to prevent smoking by:
(1) Designating any areas where smoking \\.ill be pernlitted as required by section 42-1 01.
(2) Posting signs as required bj. 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 eon1 thc smoke.
(Code 1967. 5 17-23(f): Ord. No. 5328. tj 1.8-24-89; Ord. No. 5473, tj 1,2-22-90: Ord. No. 6513: tj 1. I-
28-93: Ord. No. 85 18. 3 7, 2-25-99)
Sec. 42-104. Facilities to extinguish srnokir~g ~naterials.
All public conveyances and public places shall be equipped with facilities for extinguishment of
smoking materials. Facilities for estinguishnlent of smoking materials that arc located in areas of public
places other than designated smoki~lg areas shall be accompanied by clearly visible signs stating -'no
smoking..'
(Code 1967, tj 17-23(y); Ord. No. 5328, tj 1,8-24-89: Ord. No. 5473. 9 1 :2-22-90: Ord. No. 65 13, $ I, l-
28-93)
Sec. 42-105. No co~~imingling of sir testing requiren~enls.
(a) It is the intent of thls articlc to dcfine distinct and separate areas for smoking and ilonsrnoking use
to assure a smoke-frce atmosphere in nonsmoking areas and prohibit the commingling of air between
such areas.
(b) All air ventilation systems may be tested at installation and periodically thereafter to ensure
co~npliance with this article by the director of health.
(Ord. No. 85 18: 9 8, 2-25-99)
Sec. 42-106. Variances.
(a) An owner or lcasee of property may request a variance from the provisions of this article wid1 thc
cxccption of the size and/or seating requirerncnrs of a designated smohng 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 direcror of health
within ten calendar days after the decision is rendered by such director.
(b) The construction board of adjustments and appeals, whcn 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 co~npelling 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
alonc, to require a variance.
(c) In granting the variance, the construction board of adjustments and appeais shall prescribe any
condition it deems necessary or dzsirable considering the public health, safety and welfare.
(d) Any variance granted under this section will apply only to the specific property and certificlrrc 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 dcterniincs thc use of the property is diftkrent from the usc described and
submitted in the application for variance.
(c) The decision of the construction board of adjustments and appeals may be appealed to the city
council in accordance with scction 18-61.
(Ord. No. 9882, $ 3. 9-23-01)
Secs. 42-1 07-42-130. Reserved.
SECTION 3: If any provisions, section, exception, subsection, paragraph. sentence, clause or phrase of
this ordinnnce or the application of sane to any person or set of circun~stances, shall for any reason be held
unconstitutional, \.aid or invalid. such invalidity shall not affect thc validity of thc remaining provisions of this
ordinance or their application to othcr persons or sets of circumstances and to this end all provisions of ths
ordinancc arc declared to be severable.
SECTION 4: All ordinances or pats of ordinances inconsistent. with the terms of this ordinance are
hereby ropealcd; provided hottrever, that such repeal shall be only to thc estent of such inconsistency and in all
other respects tlus ordinance shall bc cumulative of other ordinances regulating and governing the subject matter
covered bj. this ordmance.
SECTION 5: Any person \\.I10 sllall violate any provision of this ordinance sllall be deemed guilty of
a misdcmcanor and upon conviction sllall be punished by a he of not luorc than Two Thousand and NoflOO
Dollars ($2,000.00).
SECTION 6: This Ordinance shall take cffcct from and after ten (10) days from its passage by the City
Council. Thc City Clerk is hereby directed to givc notice hereof by causing the caption of this ordinance to be
published in the official newspaper of the Cih of Ba>ro\\n at least t~vice within ten (10) days aftcr passage of
this ordinance.
INTRODUCED. READ . and PASSED, by the affirniative votc of thc
of Bnyto~~n dus the - day of .2007.
ATTEST:
City Clcrk
LORI11 COODY
City Attorncy
IGNAClO IlNvZIWZ S1l