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Ordinance No. 10,561ORDINANCE NO. 10,561 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, CONTINGENT UPON A STATE-WIDE ELECTION BEING HELD ON THE 12th DAY OF MAY, 2007, CONCERNING A CONSTITUTIONAL AMENDMENT AS PROPOSED IN SENATE JOINT RESOLUTION NO. 13, REPEALING ORDINANCE NO. 10,548, WHICH CALLED A SPECIAL ELECTION FOR THE INITIATIVE SMOKING ORDINANCE; ORDERING A SPECIAL ELECTION TO BE HELD ON THE 12™ DAY OF MAY, 2007, FOR THE PURPOSES OF SUBMITTING TO THE ELECTORS THE PROPOSED INITIATIVE ORDINANCE, WHICH REPEALS THE CURRENT SMOKING ORDINANCE AND ADOPTS A NEW CHAPTER 42 "HEALTH AND SANITATION," ARTICLE III "SMOKING" OF THE CODE OF ORDINANCES, BAYTOWN, TEXAS, THAT REINSTATES THE PREVIOUS SMOKING ORDINANCE; DESIGNATING THE MANNER OF HOLDING SAID ELECTION; PRESCRIBING THE HOURS; ESTABLISHING THE CENTRAL COUNTING STATION; ESTABLISHING CERTAIN PROVISIONS RELATED THERETO; AND PROVIDING FOR THE POSTING AND PUBLICATION OF NOTICE; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, on February 22, 2007, the City Council of the City of Baytown, Texas, passed Ordinance No. 10,548, which called a special election on the proposed initiative ordinance, which is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes; and WHEREAS, since such time, the a state-wide election has been proposed for May 12, 2007, concerning a constitutional amendment authorizing the legislature to provide for a reduction of the limitation on the total amount of ad valorem taxes that may be imposed for public school purposes on the residence homesteads of the elderly or disabled to reflect any reduction in the rate of those taxes for the 2006 and 2007 tax years; and WHEREAS, due to the high demand on election equipment and personnel and for efficiency in government, the City plans on entering into joint election agreements with Harris and Chambers Counties to conduct its May 12lh special election should a state-wide election be held; and WHEREAS, since the joint election with the counties will affects many of the provisions contained in Ordinance No. 10,548, the City Council desires to repeal such former ordinance and call the special election again pursuant to the terms hereof; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: The provisions of this Ordinance are contingent upon a state-wide election being held May 12, 2007, concerning a constitutional amendment as proposed in Senate Joint Resolution No. 13. Should the State not hold an election on such date, Ordinance No. 10,548 shall remain in full force and effect. Section 2: That the City Council of the City of Baytown, Texas, hereby repeals Ordinance No. 10, 548 adopted on February 22,2007, which ordered a special election to be held on the 12th day of May 2007, for the purpose of considering a proposed initiative ordinance which repeals the current smoking ordinance and adopts a new Chapter 42 "Health and Sanitation," Article III "Smoking" of the Code of Ordinances, Baytown, Texas, that reinstates the previous smoking ordinance. Section 3: That a special 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 12th day of May, 2007, 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 the proposed initiative 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 adopted. Section 4: That the proposition specified in Section 3 hereof shall be presented to the City at large and the proposition shall be submitted in accordance with law. Section 5: That the form of the ballot for this special election shall be substantially as follows: OFFICIAL BALLOT PROPOSITION NO. 1 The ordinance, which reinstates the previous smoking ordinance [ ] 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; provided that a separate ventilation system is installed that prevents the commingling of air and (ii) allows smoking in bars that do not contain a dining area. Section 6: That the election called in Section 3 hereof shall be held as a joint election with Harris County and Chambers County pursuant to the joint election agreements to be entered into with each county. Section 7: 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 3 hereof as designated by Harris County and Chambers County. Section 8: 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. Section 9: 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 April 30, 2007, and end on May 8, 2007, in accordance with the schedules adopted by Harris and Chambers Counties. Section 10: That the special election shall be held in accordance with, and shall be governed by, the election laws of the State of Texas. In the special election, the Mayor and the City Clerk of the City of Baytown 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 for posting notices of meetings not later than the twenty-first (21st) day before the date of the election ordered herein. Section 11: The Central Counting Stations to receive and tabulate voted ballots shall be at the locations designated by Harris and Chambers Counties. 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 30lh day or later than the tenth day prior to the date of said elections. The City Clerk is further 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 compliance with the Texas Election Code. Section 13: In all matters relating to the ordering, giving notice, and holding the elections, the City shall comply with the applicable parts of the Texas Election Code, including particularly Chapter 272 of the Texas Election Code pertaining to bilingual requirements, and 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 Baytown, Texas. INTRODUCED, READ and PASSED by the affi#native vote of the City Council of the City of Baytown on this the 8th day of March, 2007. STEBHETTH. DONCARLOS, Mayor APPROVED AS TO FORM: ^/^t , , , ? <1T3NACIO RAMIREZ, SR.,Cit/Xttorney R:(Karen\Hilcs\riiy Council\OrJinances\2007\March g\CalliingMunicipalSpccialI:lcction May20O7Smoking.doc Exhibit "A" ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, REPEALING CHAPTER 42 "HEALTH AND SANITATION", ARTICLE 111 "SMOKING"; ADOPTING A NEW CHAPTER 42 "HEALTH AND SANITATION", ARTICLE III "SMOKING" THAT REINSTATES THE PREVIOUS 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 ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That Chapter 42 "Health and Sanitation."' Article 111 "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: ARTICLE III. SMOKING* "'Cross references: Fire prevention and protection, ch. 38. State law references: Smoking, V.T.C.A.. Health and Safety Code § 382.111 et scq.; smoking prohibited in certain places, V.T.C.A.. Penal Code § 48.01. 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 designated 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 that portion of a public 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. (2) 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 rcstrooms, 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. 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-prcmises consumption and which is accessible by the public or a substantial group of the public. Employee means a person who is employed by an employer in consideration for monetary compensation or profit. Employer means a person, partnership, corporation, association or other entity employing one or more persons. 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 grocer)' stores and food markets, not including those outdoors. Net floor area means the floor area of the interior of a public place normally utilized and accessible by patrons and/or the general public. 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. Place of employment means an enclosed, indoor area under the control of an employer to which employees have access during the course of employment and includes work areas, employee lounges, employee rest rooms, conference rooms and employee cafeterias. The term does not include a private residence. 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 die 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 meeting means a meeting open to the public and held in an enclosed area unless the meeting is held in a private residence. Public place means: (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; 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 sendees to the general public. Service line or waiting 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. Smoke, smokes or smoking includes: (1) Carrying or holding a lighted pipe, cigar or cigarette of any kind or any other lighted smoking equipment or device; (2) Lighting a pipe, cigar or cigarette of any kind or any other smoking equipment or device; or (3) Emitting or exhaling the smoke of a pipe, cigar or cigarette of any kind or any other smoking equipment or device. 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 percent from the sale of tobacco products and smoking accessories. (Code 1967. § 17-23(a); Ord. No. 5328, § 1. 8-24-89; Ord. No. 5473, § 1.2-22-90; Ord. No. 6513. § 1, 1-28- 93: Ord. No. 8518, § 2,2-25-99: Ord. No. 8530, § I. 3-11-99: Ord. No. 9882, § 1,9-23-04) Cross references: Definitions generally, § 1-2. Sec. 42-97. Administration. (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. (Code 1967, § 17-23(h): Ord. No. 5328. § 1.8-24-89: Ord. No. 5473, § 1,2-22-90: Ord. No. 6513, § 1,1-28-93: Ord. No. 9882, § 2.9-23-04) Cross references: Administration, ch. 2. 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. (Code 1967. § 17-23(i); Ord. No. 5328, § 1, 8-24-89; Ord. No. 5473, § 1,2-22-90; Ord. No. 6513, § I, 1- 28-93: Ord. No. 8518, § 3,2-25-99) Sec. 42-99. Offense. (a) A person commits an offense if the person: (1) Smpkes 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)(l) 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 42-102; (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: (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 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 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. (Code 1967 § 17-23(b); Ord. No. 5328, § 1. 8-24-89; Ord. No. 5473, § 1,2-22-90; Ord. No. 6513, § 1.1-28- 93: Ord. No. 8518. §4,2-25-99; Ord. No. 9453, § 1,10-24-02) Sec. 42-100. Penalty. Any person who shall violate any section of this article shall upon conviction, be punished as provided in section 1-14. (Code 1967, § 17-23©; Ord. No. 5328, § 1, 8-24-89; Ord. No. 5473. § 1,2-22-90; Ord. No. 6513. § 1. I- 28-93) Sec. 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 Ordinance No. 8518 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 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 employer 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; c. 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: (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) Arcstroom; (I I) 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 purposes. (e) By owners. 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. (Code 1967. § 17-23(d); Ord. No. 5328, § 1,8-24-89; Ord. No. 5473. § 1,2-22-90: Ord. No. 6513, § 1, 1-28- 93: Ord. No. 8518, §5,2-25-99) 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 (i) 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 subsection 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 ten inches x 14 inches 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. (Code 1967, § 17-23(e); Ord. No. 5328. § 1, 8-24-89; Ord. No. 5473, § 1, 2-22-90; Ord. No. 6513, § 1, 1- 28-93: Ord. No. 8518, § 6,2-25-99) 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. (Code 1967. § 17-23(f): Ord. No. 5328. § 1,8-24-89; Ord. No. 5473, § 1,2-22-90; Ord. No. 6513, § 1. 1- 28-93; Ord. No. 8518. § 7, 2-25-99) Sec. 42-104. Facilities to extinguish smoking materials. All public conveyances and public places shall be equipped with facilities for extinguishment of smoking materials. Facilities for extinguishment of smoking materials that arc located in areas of public places other than designated smoking areas shall be accompanied by clearly visible signs stating "no smoking." (Code 1967, § l7-23(g); Ord. No. 5328, § 1,8-24-89: Ord. No. 5473. § 1,2-22-90; Ord. No. 6513, § 1, l- 28-93) Sec. 42-1 OS. 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. (b) All air ventilation systems may be tested at installation and periodically thereafter to ensure compliance with this article by the director of health. (Ord. No. 8518, §8, 2-25-99) Sec. 42-106. Variances. (a) An owner or Icasce 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 application 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. (Ord. No. 9882, §3,9-23-04) Sees. 42-107-42-130. Reserved. 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 arc 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/lOO Dollars ($2,000.00). 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 , 2007. Mayor STEPHEN DONCARLOS ATTEST: City Clerk LORRI COODY APPROVED AS TO FORM: City Attorney 1GNACIO RAMIREZ SR