Phone: (940) 761-7800
Lou Kreidler, RN, BSN.
Director of Health
Amy Fagan, MPA,
Assistant Director of Health
CITY COUNCIL AGENDA
June 17, 2014
ITEM/SUBJECT: Ordinance amending the Code of Ordinances of the City of Wichita Falls to modify Article IV of Chapter 58 thereof, which regulates smoking in public places; providing a penalty not to exceed $500 upon conviction; and providing for codification
INITIATING DEPT: Health
COMMENTARY: The Health Coalition of Wichita County was formed two years ago. The Coalition is a 40 member organization that consists of leaders in our health care community including physicians, hospital CEO’s, leaders of allied health organizations and ancillary organizations in our community all interested in the health and wellbeing of our community. The Health Coalition developed a Community Health Improvement Plan (CHIP) and based on the findings of the CHIP, the coalition formed 6 subgroups to work on specific goals. One of those groups was the tobacco subgroup. The subgroup’s goal is to reduce the prevalence of individuals using tobacco products in Wichita County.
As the group began to look at ways to meet the goal, it was determined that the smoking ordinance should be updated. The current ordinance was passed in 1994 and is considered one of the weakest in the state. It allows for separate smoking sections which have been proven to not work. It also allows for smoking in certain other workplaces. Employees who work in these venues often do not have a choice about their work environment and put their health at risk. The Surgeon General’s report states there is no safe level of second hand smoke.
The subgroup met on several occasions and developed the ordinance. The group also obtained a signed letter by the Presidents of the Wichita County Medical Society, Texoma Independent Physicians group, United Regional Physicians group and the Health Authority of Wichita County, supporting a comprehensive smoking ordinance revision. The ordinance was presented to the Health Coalition as a whole and was approved for presentation to our stakeholders.
Stakeholder meetings were held with bars and restaurants, hotels/motels, bingo halls, bowling alleys and taxicabs. Additional smaller focus groups were held with bars and the bingo halls. Based on the feedback at those meetings, certain changes to the ordinance were made and presented to both the Health Coalition and the Board of Health. The Board of Health voted unanimously to present the ordinance to city council, but only if it remained a comprehensive ordinance and applied equally to bars and restaurants.
A compromise was presented to the Health District which would grandfather all bars and current restaurants which have separate smoking sections for a period of two years. Any new bars or restaurants which open after June 17, 2014 will have to be compliant with the ordinance and be 100% smoke free. Staff feels this is a compromise which gives business owners time to make business decisions concerning their facilities while still providing protection for the health of the public. We have worked with our stakeholders and feel the ordinance as presented is in the best interest of our community as a whole.
The Health Coalition and Board of Health were presented the final ordinance revisions and both groups are in support of the proposed ordinance.
ASSOCIATED INFORMATION: Ordinance
Budget Office Review
City Attorney Review
City Manager Approval
Ordinance amending the Code of Ordinances of the City of Wichita Falls to modify Article IV of Chapter 58 thereof, which regulates smoking in public places; providing a penalty not to exceed $500 upon conviction; and providing for codification
WHEREAS, the City Council finds that smoking tobacco products creates nuisances, poses health risks, and causes fires;
WHEREAS, the U.S. Surgeon General has stated that there is no safe level of secondhand smoke, and secondhand smoke is a known cause of lung cancer, heart disease, low birth-weight births, chronic lung ailments (such as bronchitis and asthma) and other health problems;
WHEREAS, the City Council finds that nicotine is a tobacco product and is addictive, and the nuisances, health risks, and fires from burning tobacco products are exacerbated by the behavioral changes that accompany addiction to nicotine;
WHEREAS, the City Council finds the use of nicotine-containing electronic cigarettes can lead to some respiratory changes and dangers similar to those occurring through the use of traditional tobacco products;
WHEREAS, the City Council finds that liquid nicotine cartridges are distributed in flavors, such as cherry, chocolate and vanilla, that are designed to appeal to young people and thereby create a path for nonsmokers to become addicted to smoking, which can lead to the further spread of nuisances, health risks, and fires from smoking; and
WHEREAS, on April 25, 2014, the U.S. Food and Drug Administration proposed regulating electronic cigarettes as tobacco products, due to the presence of tobacco-derived nicotine therein and the dangers posed thereby, with said regulations to be at 21 CFR Parts 1100, 1140, and 1143, published at http://federalregister.gov/a/2014-09491.
NOW, THEREFORE, BE IT BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT:
1. Amending Article IV of Chapter 58 regarding Smoking in Public Places
Article IV of Chapter 58 of the Code of Ordinances of the City of Wichita Falls is hereby amended to read as follows:
Sec. 58-101. - 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 area which 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 such beverages and where minors are not allowed admission. A restaurant that contains a bar is not included, as minors are admitted in these areas.
Director means chief administrative officer of the city-county public health district.
Electronic Smoking Device means any product containing or delivering nicotine or any other similar substance intended for human consumption that can be used by a person to simulate smoking through inhalation of vapor or aerosol from the product. The term includes any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, or vape pen, or under any other product name or descriptor.
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 any person, including a municipal corporation, or nonprofit entity who employs the services of one or more individual persons.
Enclosed area means a space that is enclosed on all sides by solid partitions that extend from the floor to the ceiling, including but not limited to screens, walls, windows, and doors.
Operator means the owner or person in charge of a public place or workplace, including an employer.
Public place means an enclosed area or any portion thereof to which the public is invited or in which the public is permitted or allowed access, including but not limited to: banks, bars, bingo halls, educational facilities, fraternal organizations, health care facilities, hotel and motel rooms, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, waiting rooms, and workplaces. A private residence is not a “public place” unless it is used as a child care, adult day care, or health care facility.
Retail tobacco store or retail electronic cigarette store means a retail store whereby 75% of quarterly sales are from tobacco products and accessories, to include electronic cigarettes, in which the sale of other products is merely incidental.
Smoke means to inhale, to exhale, to burn or to carry any lighted cigar, pipe, cigarette, weed or other plant in any manner or form, or to use an electronic smoking device.
Workplace means an enclosed area under the control of a public or private employer in which employees work or have access to during the course of their employment.
Sec. 58-102. - Smoking prohibited in public places.
(a) A person commits an offense if the person smokes in a public place.
(b) A person commits an offense if the person smokes in an enclosed area in a building or facility owned, leased, or operated by the City.
(c) A person commits an offense if the person smokes in an enclosed area of a workplace.
(d) A person commits an offense if the person smokes within:
(1) 20 feet of an entrance or open window of a public place, if the operator of the public place allows entry to children under the age of 18 years, or
(2) 5 feet of an entrance or open window of a public place, if the operator of the public place does not allow entry to children under the age of 18 years.
(e) The owner or operator of a public place commits an offense if said owner or operator witnesses a person smoking in the public place and:
(1) within 5 minutes of witnessing the smoker, fails to request the smoker to cease smoking,
(2) provides further service to the smoker, or
(3) within 5 minutes of witnessing the smoker, fails to request the smoker to leave the premises if the smoker has been requested to cease smoking and the smoker continues to smoke in the public place.
(f) A person commits an offense if the person smokes in or within 20 feet of:
(1) a playground in a public park,
(2) a festival, concert, or play sponsored by the City on City property,
(3) a pavilion in a public park,
(4) the seating area of any outdoor arena, stadium or amphitheater,
(5) bleachers or grandstands for the use of spectators at sporting and other public events,
(6) a pool or pond in a public park, or
(7) the municipal produce market, which consists of Lots 8, 9 and the south half of Lot 10 of Block 162 of the Original Townsite (also known as 713 Ohio Street) during such time as said market is being utilized for the display or sale of food products.
Sec. 58-103. - Exemptions.
This article does not apply to:
(a) a private residence, except when used as child care, adult day care or health care facility;
(b) a retail tobacco store;
(c) a retail electronic cigarette store;
(d) before July 17, 2015, a building that was designated on October 1, 2014 by the State of Texas as a location authorized to conduct bingo in a license issued pursuant to the Texas Bingo Enabling Act (Texas Government Code § 2001.001, et. seq.);
(e) between July 17, 2015 and July 17, 2017, an enclosed area that is a separately-enclosed, separately-ventilated, smoking room within a building that was designated on June 17, 2014 by the State of Texas as a location authorized to conduct bingo in a license issued pursuant to the Texas Bingo Enabling Act (Texas Government Code § 2001.001, et. seq.);
(f) before June 17, 2016, a public place that was a Bar on October 1, 2014; and
(g) before June 17, 2016, a separately ventilated area of a food establishment that possessed its food establishment permit on June 17, 2014.
Sec. 58-104 - Voluntary designation of a non-smoking campus.
Nothing in this article shall be construed to prohibit the owner or operator of an enclosed or outdoor public place from voluntarily designating his or her property as non-smoking.
Sec. 58-105. - Smoking in taxicabs prohibited.
(a) It shall be an offense for any individual to smoke in a taxicab.
(b) An owner or holder of a taxicab franchise commits an offense if the owner or his designee permits any individual to smoke in a taxicab.
(c) The holder of a taxicab service franchise shall conspicuously post a sign in each taxicab that indicates smoking is prohibited.
Sec. 58-106. - Signs required.
(a) The owner or operator of a public place shall conspicuously post a "No Smoking" sign, the international "No Smoking" symbol (depiction of a burning cigarette enclosed in a red circle with a red bar across it), or other sign containing words or pictures that could reasonably be understood as an intent to prohibit smoking:
(1) in each public place and workplace where smoking is prohibited by this article; and
(2) at each entrance to a public place or workplace where smoking is prohibited by this article.
(b) The operator of a public place shall conspicuously post signs in areas where smoking is permitted through an exemption under this article.
(c) The operator of a public place or an employer shall remove any ashtrays or other smoking accessories from a place where smoking is prohibited.
(d) It is not a defense to prosecution under this article that an operator failed to post a sign required under this section.
Sec. 58-107. - Retaliation prohibited.
(a) A person commits an offense if the person discharges, refuses to hire, or retaliates against a customer, employee, or applicant for employment because the customer, employee or applicant for employment reports a violation of this article.
(b) An employee who works in a setting where an employer permits smoking under this article does not waive or otherwise surrender any legal right the employee may have against the employer or any other party.
Sec. 58-108. - Enforcement
(a) This section is cumulative of other laws providing enforcement authority.
(b) A person may report a violation of this article to the Director of the Health District or his/her designee.
(c) The director or his/her designee may enforce this article and may seek injunctive relief in addition to any civil or criminal penalties associated with a violation.
(d) The director or his/her designee may suspend or revoke a permit or license issued by the director to the operator of a public place or workplace where a violation of this article occurs, in addition to any other available remedies.
Sec. 58-109. - Public education.
(a) The director or his/her designee shall:
(1) obtain or develop a comprehensive tobacco education program to educate the public about the harmful effect of tobacco and its addictive qualities;
(2) conduct informational activities to notify and educate businesses and the public about this chapter; and
(3) coordinate the City's tobacco education program with other civic or volunteer groups organized to promote smoking prevention and tobacco education.
(b) To implement this section, the director or his/her designee may publish and distribute educational materials relating to this article to businesses, their employees, and the public.
Sec. 58-110. - Minor access to tobacco products.
A retail establishment shall only place tobacco products and electronic smoking devices for sale behind a sales counter or in another secure location that prevents minors from accessing the products without the intervention of an employee.
Violations of this ordinance shall be punishable by a penalty of up to $500 per violation and as provided by Section 1-14 of the Wichita Falls Code of Ordinances.
The sections of this ordinance that specify they amend or add to the Code of Ordinances of the City of Wichita Falls are intended to be parts of said Code, and said sections of this ordinance may be renumbered or relettered to accomplish such intention. Those sections of this ordinance that specify they are not to be codified are not intended to be parts of the Code of Ordinances of the City of Wichita Falls, and shall not be codified.
PASSED AND APPROVED this the _____ day of June, 2014.
M A Y O R