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Humble passes near-blanket smoking ban

Tuesday, March 06, 2012

Midge Crockett

The Humble City Council voted almost unanimously to prohibit smoking in most public indoor businesses Feb. 23. Councilman Bill Conner was the sole vote against the ordinance, recommending the business owner having the authority to impose a ban.

“I am opposed to anything that infringes on other people’s rights,” Conner said.

In a letter to the council, Conner stated that ultimately, “The right to smoke or not smoke should be left up to the business owner and not the city.”

The ordinance requires that bars, businesses, health care facilities and other public facilities must clearly post prohibition signs and remove all

ashtrays. Disregarding the ban could meet a business with a fine not to exceed $2,000. Humble residents can also register complaints to support enforcement.

The ban comes as a response to the cumulative data suggesting secondhand smoke is dangerous indoors and studies contracted through the City of

Houston by MGT America that found the smoking ban did not have a significantly adverse effect on businesses. Mayor Donnie McMannes said that over a period of time several residents and businesses had requested council action on the matter. McMannes explained that several businesses

already presented a self-enforced ban and several cities across Texas have similar ordinances. Several state legislators recently considered a statewide ban in 2011, but the measures were ultimately defeated.

Conner said he never received any information directly from citizens or business owners requesting council action, but thinks there could be feedback after the council’s action.

“We didn’t have a problem, but this now creates a problem for the city with enforcement,” he said, explaining that more resources would have to be diverted to handling enforcement of the ordinance when many businesses

were already self-regulating.

“The old saying goes, ‘If it ain’t broke, don’t fix it,’” he said.

Despite the new citywide ban, some businesses are exempt. A bar deriving at least 60 percent of its gross revenue from alcohol sales is subject to the ban, but an establishment that exceeds more than 80 percent of alcohol revenues can be exempt as long as a sign is posted that states it allows smoking. Other exceptions are granted to tobacco bars in operation on or before March 1 that provide health coverage to employees, have an air purification system and have obtained a city permit authorized by City Manager Darrell Boeske. The permit fee is scheduled not to exceed $2,000. Other facilities like extended health facilities and motels must also obtain a permit.

**Full Ordinance**

Ordinance no. 12-703

An ordinance amending the code of ordinances of the city of Humble, texas, by adding to chapter 28, Offenses, a new article VII, Smoking; providing it unlawful for any person to smoke tobacco, or to be in possession of a burning tobacco product, in any public place; providing definitions; providing exceptions; PROVIDING A PENALTY of AN AMOUNT NOT to exceed $2,000 FOR VIOLATION OF ANY PROVISION HEREOF; AND PROVIDING FOR SEVERABILITY

WHEREAS, cumulative scientific data indicates that exposure to second-hand smoke in indoor areas is dangerous to human health; and

WHEREAS, studies undertaken across the country, including a study undertaken by MGT of America, Inc., on behalf of the City of Houston, Texas, in September 2006, demonstrate that there is no significant adverse economic impact as a result of indoor smoking bans; and

WHEREAS, given these considerations, the City Council finds and determines that increasing the number of smoke-free indoor areas is necessary to protect the public health and welfare; now therefore,

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HUMBLE, TEXAS:

Section 1. The facts and matters findings set forth in the preamble of this Ordinance are hereby found to be true and correct

Section 2. The Code of Ordinances of the City of Humble, Texas, is hereby amended by adding to Chapter 28, Offenses, a new Article VII to provide as follows:

“ARTICLE VII. SMOKING

Sec. 28-701. Definitions.

The following words, terms and phrases, whenever used in this Article, shall have the meanings ascribed to them in this Section, unless the context of their usage clearly indicates a different meaning:

Bar means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and derives at least 60 percent of gross revenues from the sale of alcoholic beverages for on premise consumption, including, but not limited to, any tavern, nightclub, cocktail lounge, or cabaret.

Business means a sole proprietorship, partnership, joint venture, corporation, or other business entity, either for-profit or not-for-profit, including any retail establishment where goods or services are sold; any professional corporation or other entity where legal, medical, dental, engineering, architectural, or other professional services are delivered.

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 services for a non-profit entity or provides such services on a contract basis.

Employer means a person, business, partnership, association, corporation, including a municipal corporation, trust, or non-profit entity that employs the services of one or more individuals.

Enclosed, when used in reference to an area or a building or portion thereof, means closed in on all sides from floor to ceiling by solid walls, with or without windows and exclusive of doorways.

Health care facility means an office or institution providing care or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including, but not limited to, any hospital, rehabilitation hospital or other clinic, including any weight control clinic, nursing home, home for the aging or chronically ill, laboratory, or the office of any surgeon, chiropractor, physical therapist, physician, dentist, or specialist within these professions. This definition shall include all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within a health care facility.

Meeting facility means a building designed, operated and used primarily for private functions.

Place of employment means an enclosed area under the control of a public or private employer where employees work or to which employees have access during the course of employment including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, and vehicles. A private residence is not a 'place of employment' unless it is used as a child care, adult day care, or health care facility.

Private function means a gathering of individuals for the purpose of deliberation, education, instruction, entertainment, amusement, or dining, where specific invitation is a prerequisite to entry and where the event is not intended to be open to the public.

Public place means an enclosed area to which the public is invited or in which the public is permitted, including, but not limited to:

(1) Aquariums, galleries, libraries, and museums;

(2) Areas available to and customarily used by the general public in businesses;

(3) Bars;

(4) Bingo facilities;

(5) Child care and adult day care facilities;

(6) Convention facilities;

(7) Educational facilities, both public and private;

(8) Elevators;

(9) Gaming facilities;

(10) Governmental facilities, including buildings and vehicles;

(11) Health care facilities; Hotels and motels;

(12) Lobbies, hallways, and other common areas in apartment buildings, condominiums, retirement facilities, nursing homes, and other multiple-unit residential facilities;

(13) Polling places;

(14) Pool and billiard halls;

(15) Public transportation facilities, including buses and taxicabs, and ticket, boarding, and waiting areas of public transit depots;

(16) Restaurants;

(17) Restrooms, lobbies, reception areas, hallways, and other common-use areas;

(18) Restaurants;

(19) Retail establishments

(20) Service lines;

(21) Shopping malls;

(22) Sports arenas; and

(23) Theaters and other facilities primarily used for exhibiting motion pictures, stage dramas, lectures, musical recitals, or other similar performances.

A private residence is not a 'public place' unless used as a child care, adult day care, or health care facility.

Restaurant means food service establishment, including but not limited to, any coffee shop, cafeteria, sandwich stand, and private and public school cafeteria, that gives or offers for sale food to the public, guests, or employees, as well as any kitchen or catering facility in which food is prepared on the premises for serving elsewhere. The term 'restaurant' shall include a bar area within the restaurant.

Retail tobacco store means any retail establishment utilized primarily for the sale of tobacco products and smoking accessories in which the sale of other products, including food and beverages, does not exceed 40 percent of gross revenues.

Service line means an indoor line in which one or more persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of money.

Shopping mall means an enclosed public walkway or hall area that serves to connect customer entrances to two or more retail or other businesses and is used for customer pedestrian traffic.

Smoking means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other lighted tobacco product in any manner or in any form.

Sports arena means any sports pavilion, stadium, gymnasium, health spa, boxing arena, swimming pool, roller and ice rink, bowling alley, pool hall or other similar place where members of the general public assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events.

Tobacco bar means a bar in which the on site sales or rentals of tobacco products and smoking accessories for consumption or use on the premises exceeds 20% of gross revenues and into which entry is restricted to individuals 18 years of age and above.

Sec. 28-702. Prohibition of smoking in enclosed public places.

Smoking shall be prohibited in all enclosed public places within the City, except as provided in §28-707 of this Article.

Sec. 28-703. Prohibition of smoking in places of employment.

(a) Smoking shall be prohibited in all enclosed areas within places of employment, except as provided in §28-707 of this Article.

(b) An employer shall communicate this prohibition to all prospective employees upon their application for employment.

Sec. 28-704. Prohibition of smoking in seating areas at outdoor events.

Smoking shall be prohibited in the seating areas and covered concourses of all outdoor sports arenas, stadiums, and amphitheaters, as well as in bleachers and grandstands for use by spectators at sporting and other public events.

Sec. 28-705. Prohibition of smoking in public transportation facilities.

Smoking shall be prohibited in covered public transportation facilities, including ticket, boarding, and waiting areas of public transit depots.

Sec. 28-706. Reasonable distance.

Smoking is prohibited within 25 feet outside entrances, exits, or wheelchair ramps serving any entrance or exit, operable windows, and ventilation systems of enclosed areas where smoking is prohibited, so as to ensure that tobacco smoke does not enter those areas. This Section shall not apply to restaurant and bar outdoor seating areas.

Sec. 28-707. Where smoking not regulated.

Notwithstanding any other provision of this Article to the contrary, the following areas shall be exempt from the provisions of Sections 28-702 and 28-703 of this Article:

(1) Private residences, except when used as a childcare, adult day care, or health care facility;

(2) Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided, however, that not more than 35 percent of rooms rented to guests in a hotel or motel may be so designated. All smoking rooms on the same floor must be contiguous, and smoke from these rooms must not infiltrate into areas where smoking is prohibited under the provisions of this article. The status of rooms as smoking or nonsmoking may not be changed, except to add additional nonsmoking rooms;

(3) Private and semiprivate rooms in nursing homes and long-term care facilities that are occupied by one or more persons, all of whom are smokers and have requested in writing to be placed in a room where smoking is permitted, provided that smoke from these places does not infiltrate into areas where smoking is prohibited under the provisions of this Article;

(4) Retail tobacco stores, provided that no on-premise consumption of alcoholic beverages is permitted and smoke from these establishments does not infiltrate into areas where smoking is prohibited under the provisions of this Article;

(5) Tobacco bars in operation on or before March 1, 2012; provided that the establishment operates an air ventilation and purification system using best available technology, offers comprehensive health insurance to its employees, including a substantial employer contribution, and obtains a permit from the department. The City Manager is authorized to issue a permit for such establishments that are consistent with rules and regulations developed by the City Manager regarding air ventilation and purification systems and comprehensive health insurance for the purpose of mitigating the effects of secondhand smoke on employees. The City Manager is authorized to require a permit fee, not to exceed $2,000, that reflects the actual cost of processing and issuing said permit;

(6) An existing establishment or facility (a) whose gross receipts for alcohol sales are in excess of 80 per cent of the total gross receipts of the establishment or facility and (b) which posts and maintains a sign conspicuous to ordinary public view at each public entrance to the establishment that contains the words “SMOKING: This Establishment Does Not Provide a Non-Smoking Area.”

(7) Designated enclosed meeting areas in convention centers, hotels, motels, and other meeting facilities, only during times the meeting areas are in actual use for private functions; provided that the owners of such facilities shall designate in writing to the department the meeting areas in which smoking will be permitted. The designated meeting areas shall be separately enclosed from the rest of the facility, and smoke from these areas shall not be allowed to infiltrate into areas where smoking is prohibited under the provisions of this Article; and

(8) Stage areas of enclosed theaters, if smoking is an integral part of a theatrical performance.

Sec. 28-708. Declaration of establishment as nonsmoking.

Notwithstanding any other provision of this Article, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place. Smoking shall be prohibited in any place in which a sign conforming to the requirements of subsection (a) of Section 28-709 of this Article is posted.

Sec. 28-709. Posting of signs.

(a) The owner, operator, manager, or other person in control of a public place or place of employment shall clearly and conspicuously post “No Smoking” signs or the international “No Smoking” symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) in every public place and place of employment where smoking is prohibited by this Article.

(b) The owner, operator, manager, or other person in control of a public place or place of employment place shall conspicuously post at every entrance thereto a sign clearly stating that smoking is prohibited therein.

(c) The owner, operator, manager, or other person in control shall remove all ashtrays from any area where smoking is prohibited by this Article.

Sec. 28-710. Enforcement.

(a) The building department, in addition to any authority having jurisdiction to enforce City ordinances, shall have authority to enforce the provisions of this Article.

(b) Any citizen who desires to register a complaint under this Article may initiate enforcement with the building department.

(c) The health officer and the fire marshal shall, while an establishment is undergoing otherwise mandated inspections, inspect for compliance with this Article.

(d) The health officer, after proper identification, shall be permitted to enter any public place and place of employment at any reasonable time, for the purpose of making inspections and examining applicable records of the establishment to determine compliance with this Article.

Sec. 28-711 Rules and regulations.

The City Manager is authorized to promulgate rules and regulations for the enforcement of this Article.

Sec. 28-712. Violations and penalties.

(a) A person commits an offense if such person smokes in an area where smoking is prohibited by the provisions of this Article.

(b) It shall be the duty of every person in control of an area where smoking is prohibited by the provisions of this Article to request any person known to be smoking in such area to extinguish the burning tobacco product. Any knowing or intentional failure to maintain compliance with such duty shall constitute an offense.

(c) Whenever in this Article an act is prohibited or is made or declared to be unlawful or an offense or misdemeanor, or whenever in this Article the doing of any thing or act is required or the failure to do any thing or act is prohibited, the intentional, knowing, reckless, or criminally negligent violation of the provision shall be and constitute a misdemeanor punishable, upon conviction, by a fine not to exceed $2,000.00. Each day of violation of each such act shall constitute and be punishable as a separate offense. Prosecution or conviction under this provision is cumulative of and shall never be a bar to any other civil or administrative remedy provided or allowed in this Article or by law.

Sec. 28-713. Other applicable laws.

This Article shall not be construed to permit smoking where otherwise restricted or prohibited by other applicable law."

Section 3. All employers shall communicate the prohibition of smoking in places of employment enacted by this Ordinance to all existing employees within 60 days after the effective date of this Ordinance.

Section 4. In the event any clause phrase, provision, sentence, or part of this Ordinance or the application of the same to any person or circumstances shall for any reason be adjudged invalid or held unconstitutional by a court of competent jurisdiction, it shall not affect, impair, or invalidate this Ordinance as a whole or any part or provision hereof other than the part declared to be invalid or unconstitutional; and the City Council of the City of Humble, Texas, declares that it would have passed each and every part of the same notwithstanding the omission of any such part thus declared to be invalid or unconstitutional, whether there be one or more parts.

Section 5. Upon the passage of this ordinance, the City Secretary is directed to publish this Ordinance in accordance with the provisions of Section 13 of the Charter of the City of Humble and to note on this Ordinance and on the record thereof the fact that this Ordinance has been published as required by the Charter, including the date of such publication.

PASSED, APPROVED, AND ADOPTED this 23rd day of February, 2012.

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