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2006 12 01 CC Minutes, SpecialMINUTES OF THE SPECIAL SESSION OF THE CITY COUNCIL OF THE CITY OF BAYTOWN December 1, 2006 4:00 p.m. The City Council of the City of Baytown, Texas, met in special session on December 1, 2006, at 4:00 p.m. in the Council Chamber of the City of Baytown with the following in attendance: Brandon Capetillo Council Member Sammy Mahan Council Member Lynn Caskey Council Member Don Murray Council Member Mercedes Renteria III Council Member Scott Sheley Council Member Stephen H. DonCarlos Mayor Gary M. Jackson City Manager Bob Leiper Deputy City Manager Kelvin Knauf Assistant City Manager Ignacio Ramirez City Attorney Lorri Coody City Clerk Council Member Scott Sheley was not present when this meeting was called to order by Mayor DonCarlos with a quorum present. Consideration and possible action regarding the clarification, interpretation and enforcement of the new smoking ordinance. City Manager Jackson gave a review of the information on how the City will implement the new smoking ordinance. He explained that the new ordinance goes into effect on December 1, 2006 and the City will implement an educational period from December 1 through January 1, 2007. During this 30 day period, the City will focus on educating the public on the new ordinance in order to promote compliance. The City will use the following tools to assist with the educational process: • City website • Cable Channel 16 • City Newsletter • Informational Brochures Mr. Jackson summarized the key components of the new ordinance as follows: • Smoking is prohibited in: – Enclosed public places; – Enclosed places of employment; – Seating areas of Outdoor arenas and stadiums; – Enclosed City-owned facilities; – Vehicles while used in the course of employment; and Page 2 of 5 Minutes of the Special Session Meeting— December 1, 2006 – Any establishment, facility, or outdoor area declared as non-smoking by person in control of property where properly signed. • Smoking is allowed in the following places: – Private residences, except when used as a child care, adult day care, or health care facility; – Private vehicles, except when used in the course of employment; – Hotel/motel rooms, designated as smoking rooms (not to exceed 20% of total rooms); – Retail tobacco stores; – Private and semi-private rooms in nursing homes and long-term care facilities; – Private clubs that have no employees; – Outside areas (except within 15’ of a door or in an outdoor arena or stadium); and – Areas designated in a hospital psychiatric unit. • Signs are required as follows: – Signs with “No Smoking” and/or international “No Smoking” symbol clearly and conspicuously posted in every place as required by the ordinance; – Signs must clearly state that smoking is prohibited within 15’ of the entrance as required by ordinance; – Signs must be 10” x 14” and in contrasting colors with block letters at least one inch in height; • Ashtrays must be removed from areas where smoking is prohibited; • Penalties may be assessed as follows: – Person who smokes in a prohibited area shall be guilty of an infraction, punishable by a fine in accordance with Section 1-14 of the Code of Ordinances (currently not to exceed $2000); and – A person who owns, operates, manages, or controls a public place or place of employment who fails to comply (i.e. signage, removal of ash trays, informing patrons and employees) shall be guilty of an infraction, punishable by: • fine not exceeding $100 for 1st violation, • fine not exceeding $200 for 2nd violation within a 12-month, or • fine not exceeding $500 for each additional violation within a 12-month period. Mike Lester, Director of Health and Emergency Medical Services explained that his department is responsible for enforcing the ordinance. The plan for enforcement is as follows: • Use the informational brochures to educate the public during the first 30 days from December 1 through January 1, 2007; • Routine warnings for the period of January 2 through February 1, 2007; and • Upon the filing of complaints, violators will be given a time period to resolve the issue. Mr. Lester explained that the Health Department and Utility Billing will have signs available that comply with the new ordinance. They have been ordered in bulk and will be offered at City’s cost to the public. Page 3 of 5 Minutes of the Special Session Meeting— December 1, 2006 Council asked Mr. Lester several questions of which he answered accordingly. Council engaged in discussion concerning the 15 foot rule and the relationship of same to patios. Mr. Lester explained that the 15 foot rule is the same in this ordinance as it was in the prior ordinance. However, he explained that the arrangement of these patios is important and he suggested that businesses submit designs to the Health Department for approval. He also stated the Health Department will work with all businesses to resolve issues with the new ordinance. Council Member Murray moved that Council endorse the staff Implementation plans for the smoking ordinance. Specifically: • There be no requirements for putting signs on vehicles within which the ordinance prohibits smoking. • There be no prohibition against ashtrays being available for sale in a venue within which the ordinance prohibits smoking. • There be a 30 day period after the implementation date to allow for education of the public. This 30 day period will begin on the ordinance effective date which, per the ordinance, is December 1, 2006. Council Member Capetillo seconded the motion upon which the following comments were made. Council Member Murray stated that he made the motion because it makes sense, represents the legislative history of the ordinance and the authors of the ordinance concur that staffs’ interpretation represents their intent. Council Member Sheley entered the meeting at 4:27 p.m. Council Member Capetillo stated that Council’s duty was to provide direction to staff about how to implement the new ordinance. The decision was not about personal feelings. Rather it is about enforcement of the City’s ordinances. He is not in favor of making an amendment to the ordinance. Council Member Renteria stated that he believes that supporting the motion would be amending the new ordinance. He believes that there are many problems with the new ordinance and he is not in favor of the motion. Council Member Caskey stated that the voters read the ordinance before they voted and they understood that the new ordinance meant it required signs be placed on vehicles. He directed Council’s attention to Section 14.14 of the ordinance where it states “without limitation and without exception”. This means that vehicles are covered and they should have signs. Limited discussion was had by Council about signs being placed on vehicles and the intent of the ordinance. Page 4 of 5 Minutes of the Special Session Meeting— December 1, 2006 With several citizens signing up to speak on this item, Mayor DonCarlos called the first person to address Council as follows: Walter D. Hall, 1001 Kilgore Road, Baytown, Texas (281-422-3018) – Mr. Hall explained to Council that the Municipal Court Judge dismissed a smoking ticket that was issued as a result of a Health Department inspection. The ticket was legitimate and should not have been dismissed. He is concerned that this same kind of activity is going to happen on the new ordinance and he wanted Council to be aware of the situation. Jeff Ackerman, 12918 Tri City Beach Road, Baytown, Texas (281-420-8765) – Dr. Ackerman gave a brief history of the ordinance from its creation through the election to current. The essence of his presentation was that some members of Council while they announced from the onset that the public should decide this issue have indirectly taken measures to undermine the success of the new ordinance at each step in the process. Dr. Ackerman reminded Council that the people have voted. He told Council that there was never intent that vehicles should have signs. James Haarmeyer, 8102 Bayside, Baytown, Texas (281-383-2216) – Mr. Haarmeyer stated that signs are needed on vehicles so that those enforcing the ordinance will know if the vehicle is a commercial vehicle and how to measure the 15 foot requirement. Fred Miccio, Baytown Bingo, Baytown, Texas (281-424-2995) – Mr. Miccio told Council that he did not believe that the new ordinance was well thought out and he wanted a moratorium or grandfather clause for businesses that spent money upgrading systems to comply with the prior smoking ordinance. Reba A. Eickelberg, 1610 James Bowie #101-A, Baytown, Texas (281-428-1242) – Ms. Eickelberg stated the new ordinance is unconstitutional as it provides for selective enforcement. She pointed out that Sections 42-94 and 42-96 states “it shall” yet there are exemptions for special treatment for those in nursing homes and psychiatric facilities. Rocky Strange, 1307 SH 146, Baytown, Texas (281-837-7122) – Mr. Strange has a business that is an open air ice house and wants to know how this type of business will be classified under the new ordinance. Mr. Lester will review the establishment and visit with Mr. Strange about any concerns he may have concerning compliance. John Mayes, 5810 Garth Road, Baytown, Texas (281-507-2223) – Mr. Mayes did not address Council. Upon completion of the Citizen comments, City Manager Jackson commented that there had been many references to other cities ordinances, including the City of Houston. To clarify, he told the Council that the City of Houston’s ordinance is written very similar to that of the City of Baytown’s ordinance and that they will not be requiring signs on vehicles. He went on to say that the City of Pasadena’s ordinance is also similar to that of Baytown’s and they will not be requiring signs on vehicles. Page 5 of 5 Minutes of the Special Session Meeting— December 1, 2006 Mayor DonCarlos stated that the ordinance may have issues of interpretations and enforcement, but it is unfair to put the City’s Health Department and Police Department in a corner by requiring signs on vehicles and signs on every entrance. He suggested that staffs’ implementation plan be adopted. Chief of Police Byron Jones explained to Council that his department will assist the Health Department with enforcing this ordinance when called upon in the following manner: • First – Educational and Compliance • Second – Warnings • Third – Citations and Complaints Council engaged in discussion about enforcement of the ordinance and that the Health Department will take the lead role. Additionally, discussion was had regarding the enforcement of smoking in commercial vehicles. Council Member Sheley – stated the people voted for a smoke free ordinance and he would like to see the ordinance be implemented without change. He sees problems with the enforcement of the ordinance, but if he has to put a sign on his vehicle then he will do so. Council Member Murray restated the motion that Council endorse staffs’ Implementation plans for the smoking ordinance. Specifically: • There be no requirements for putting signs on vehicles within which the ordinance prohibits smoking. • There be no prohibition against ashtrays being available for sale in a venue within which the ordinance prohibits smoking. • There be a 30 day period after the implementation date to allow for education of the public. This 30 day period will begin on the ordinance effective date which, per the ordinance, is December 1, 2006. Council Member Capetillo seconded the motion. The vote follows: Ayes: Council Members Capetillo, Murray, and Mahan Mayor DonCarlos Nays: Council Members Caskey and Renteria Abstain: Council Member Sheley The motion carried. Adjourn With no additional business the meeting adjourned at 5:25 p.m. _______________________ Lorri Coody, City Clerk