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HomeMy WebLinkAbout2018-04-8521211034 CITY OF PADUCAH ORDINANCE NO. 2018-4-8521 AN ORDINANCE AMENDING CHAPTER 54, ARTICLE II "SMOKING IN PUBLIC PLACES," DIVISION 2, "PUBLIC BUILDINGS" OF THE CODE OF ORDINANCES OF THE CITY OF PADUCAH, KENTUCKY WHEREAS, the City Commission hereby finds that: (a) Numerous scientific studies have found that tobacco smoke is a major contributor to indoor air pollution. (b) According to the 2014 U.S. Surgeon General's Report, The Health Consequences of Smoking -50 Years of Progress, secondhand smoke exposure causes stroke, heart disease, lung cancer, breast cancer in premenopausal women, and sudden infant death syndrome in nonsmokers. The report also found that since the 1964 Surgeon General's Report on Smoking and Health, 2.5 million nonsmokers have died from diseases caused by tobacco smoke.2 (c) A significant amount of secondhand smoke exposure occurs in the workplace. Employees who work in smoke-filled businesses suffer a 25-50% higher risk of heart attack and higher rates of death from cardiovascular disease and cancer, as well as increased acute respiratory disease and measurable decrease in lung function. 3 Establishing smoke-free workplaces is the only effective way to ensure that secondhand smoke exposure does not occur in the workplace, because ventilation and other air cleaning technologies cannot completely control exposure of nonsmokers to secondhand smoke. (d) Electronic cigarettes produce an aerosol or vapor of undetermined and potentially harmful substances, which may appear similar to the smoke emitted by traditional tobacco products. Their use in workplaces and public places where smoking of traditional tobacco products is prohibited creates concern and confusion and leads to difficulties in enforcing the smoking prohibitions. The World Health Organization (WHO) recommends that electronic smoking devices not be used indoors, especially in smoke-free environments, in order to minimize the risk to bystanders of breathing in the aerosol emitted by the devices and to avoid undermining the enforcement of smoke-free laws.4 (e) During periods of active smoking, peak and average outdoor tobacco smoke (OTS) levels measured in outdoor cafes and restaurant and bar patios near smokers rival indoor tobacco smoke concentrations.5 Nonsmokers who spend six -hour periods in 162 outdoor smoking sections of bars and restaurants experience a significant increase in levels of cotinine when compared to the cotinine levels in a smoke-free outdoor area. 6 Smoking tobacco is a form of air pollution, a positive danger to health, and a material public nuisance. WHEREAS, as a result of the foregoing the City Commission hereby declares that it is in the interest of public health, welfare, and policy to amend Chapter 54, Article II, Division 2 of the Paducah Code of Ordinances to prohibit the smoking of tobacco products in enclosed public places, places of employment, and certain outdoor places. NOW, THEREFORE, be it ordained by the City Commission of the City of Paducah as follows: Section 1. That the heading for Chapter 54, Article II is amended to read as follows: ARTICLE II. - SMOKING4N PUBLIC PLACES Section 2. That the subheading for Chapter 54, Article II, Division 2 is amended to read as follows: DIVISION 2. - PUBLIC BUILDING SENCLOSED PUBLIC PLACES, PLACES OF EMPLOYMENT, AND CERTAIN OUTDOOR PLACES Section 3. That Section 54-51, "Definitions," is hereby amended to read as follows: Section 54-51. - Definitions. A. For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning. 4em the weather-, whether- of net v�zindewsor•7 are aaua4ly left- epen. if .,per -son owns,lease or possesses only . ,.Ftion of building, the+o..m building appliesto the &A%er-ship, leasehold, (1) Bar means an establishment that 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 those beverages including but not limited to, taverns nightclubs cocktail lounges, and cabarets. (2) Business means a sole proprietorship partnership joint venture, corporation, or other business entity, either for- profit or not-for-profit, including retail establishments where goods or services are sold; professional corporations and other entities where legal medical dental en ineeriM 163 and architectural, or other professional services are delivered; and private clubs. (2)(I,Common Area means any area where individuals may congregate such as hallways, lobbies, restrooms, and elevators. (4) Dwelling means any place used primarily for sleeping overnight and conducting activities of daily living; nel,,, ing, .<,;+1 out. limitation, a hotel or- motel -room or suite, or- a hospital, hespiee, vt rg home room This does not include a hotel or motel room or suite. or a hosbital, hosbicse. assisted living facilitv or nursina home. (3)(5) Electronic smoking device means any product containing or delivering nicotine or anv other substance intended for human consumption that can be used by a person in any manner for the purpose of inhaling 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. Enelese,4 area means any place th is elesed ever -head by a roof or- and(40,14e) or- more of its per-ime4er- elesed in by walls or- eth—oof aff materia4,. hether- permanent eT (4)(6)__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. (5)L2LEmployer means a person, business, partnership, association, unincorporated association, limited liability company, corporation, including a municipal corporation, trust, or non-profit entity, that employs the services of one or more individual persons. (8) Enclosed public place means anyplace that: a) is closed overhead by a roof or other covering of any material, whether permanent or temporary b) has fogy percent 40%) or more of its perimeter closed in by walls or other coverings of any material, whether permanent or temporary, but not a screened in gazebo; and c) the public is invited or in which the public is permitted, including but not limited to, banks, bars, educational facilities, gambling facilities, health care facilities, adult day cares, assisted living facilities, hotels and motels, laundromats, public transportation vehicles and facilities, reception areas, restaurants, retail food 164 production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, and waiting rooms. A private residence is not a "public place'' unless it is used as a child care, adult day care, assisted living facility or health care facility. (�-}(9) Hookah means a water pipe and any associated products and devices which are used to produce fumes, smoke, and/or vapor from the heating or burning of material including, but not limited to, tobacco, shisha, or other plant matter. 1( OL_Person shall include the owner, lessee, principal manager, or any individual or corporation, limited liability company, business, partnership, association, unincorporated association, municipal corporation, trust, or any non-profit entity having control of a building, as the term building is defined herein, or the agent or employee of any such owner, lessee, principal manager, individual or corporation. (x}(11) Place ofEmployment means an enclosed area (as defined in Section 2 A. (8) (a) and (b) above) under the control of a public or private employer, including, but not limited to, work areas private offices, employee lounges, restrooms, conference rooms meeting rooms, classrooms, employee cafeterias, hallways common area construction sites, and temporary offices., and ye i nl es. Arip vate residence is not a "place of employment" unless it is used as a child care, adult day care, assisted living facility or health care facility. (12) PZay&ound means any park or recreational area designed inap rt to be used by children that has play or sports equipment installed or that has been designated or landscaped for play or sports activities or any similar facility located on publically orrivately�se l owned grounds or on. municipally owned grounds. &Amed b the, 't D a t, f LID- -Private organization or club means an establishment h maintains seleetiye members, � ,1 b the b l ' .1 aaaw.+La�,sllly vvlvvu♦v iLiv111V VI U, 1J V�/VILLLVII , drink,not provide food, or- !edging fef: pay4e 7 anyone who of n m e 1 b member- ,7 anyone vv11V 1J 1VL K llll.l is net profit o6e to.l whether incorporated or not, which is the owner, lessee or occupant of a building or portion thereof used exclusively for organization purposes at all times which is operated solely for a recreational fraternal social patriotic political benevolent or athletic purpose but not 165 for pecuniary gain, and which only sells alcoholic beverages incidental to its operation. The affairs and.management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting. The organization has established bylaws and/or a constitution to govern its activities. The organization has been granted an exemption from the payment of federal income tax as a club under 26 U.S.C. Section 501. (14) Restaurant means an eating establishment, including but not limited to, coffee shops, cafeterias, sandwich stands, and private and public school cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term "restaurant" shall include a bar area within the re,St.q lr,gnt_ (-&) 15 Retail Tobacco Store means a retail store devoted primarily to the sale of any tobacco product, including, but not limited to, cigarettes, cigars, pipe tobacco and chewing tobacco, and accessories in which the sale of other products is merely incidental. The sale of such other products shall be considered incidental if such sales generate less than one-third of the total annual gross sales_ {-�t 61Smoke or Smoking shall mean the act of possessing, carrying, burning, inhaling or exhaling the smoke of any lighted ^ -e4e cigar-, or- pipe, or ther- eembustible tobaeee tet. any lighted or heated cigarette, cigar, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, including hookahs and marijuana, whether natural or synthetic, in any manner or in any form. Smoking also includes the use of an electronic smoking device which creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking in this Article. (17) Sports Arena means a place open to the public where people assemble to engage in Dhvsical exercise, participate in athletic competition, or witness sports or other events, including sports pavilions, athletic fields, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, tennis courts, pickleball courts, bocce ball courts, and bowling alleys. T. Z, ee Warehouse means any warehouse building ((w� ofes ,-;, '�'obaeco for- pule ase at .],/,x'1e and n l,' ee4i g the deft ifie11 established i KRS 248 010(4) ITO: Section 4. That Section 54-52, "Prohibition," is hereby amended to read as follows: Section 54-52. - Prohibition in Enclosed Public Places and Places of Employment. A. No person shall smoke within any building or enclosed are public place except_in one of the following locations: (1) In any dwelling, unless the dwelling is also used as a childcare facility, adult day care center, assisted livingfacility, hotel/motel guest room, or moots the definition of n eeFmnon area as defined he fe ,,. health care facility. (2) In a private vehicle. in a building room, eF hall being , o l by n K per -sen „ for- n roles, p n+o n nl l;„nefie,.. that ; o L, y open to the p b,l;n „ adm;++nr.ee obtained .i b, 11 of n Vrvll LV L11V 11WV11V LLVl lU Wl.Lllll LLKL1VV VVLKLLIVU l.T� ticket or the making of .lenat,.,r., . used f psyehologie.,l +von+meat of nicotine nddietie b y n licence l 1./J�' V11V 1V �1V Wl LZ \+ llli professional; separate independently � ,-.+,late r n hospital, 1,l.�.piee fae lit- LLL�a.v1JVLLKV11L1,' Y�V11111KLVu 1VV111 111 , , home open to all r cider.+ as a sr-oommoking ,l for- no 11 LirJlll other - (3) In a retail tobacco store. (4) A pel=f6fiiier- as paFt of cn�tcxheatr-iea4 r-odue ien so long as adequate ,notice ; provided to ,tentfo before the p f W�.aV�WW�.v notice 1U 1J1V viILVK LV �/WLl V11J VV B. (4) {5} deo ek4ngSmokina areas provided in state or federal governmental office buildings or workplaces pursuant to KRS 61.165. (5) In all enclosed places owned and occupied by private organizations or clubs.Fnnilities not open o the „,.bilie operated vy B. Smoking shall be prohibited in all places of employment except as otherwise expressly provided in Section 54.52 A above. C. Smoking shall be prohibited in all private and semiprivate rooms in all health care facilities, nursing homes assisted living facilities and hotel and motel guest rooms. D. Nothing in this chapter shall prevent a person in control of any place whatsoever from prohibiting smoking completely in such place, and no person shall fail to abide by such a private prohibition. E. Nothing in this chapter shall authorize smoking in any place where it is otherwise prohibited by statute, ordinance, regulation, or by order of the Fire Marshall. Section 5. That Section 54-52.1, "Prohibition in Certain Outdoor Places" is hereby added to this Article and shall read as follows: 167 Section 54-52.1. — Prohibition in Certain Outdoor Places. Smoking shall be prohibited in the following outdoor1p aces: A. In all municipally -owned and all public or private school -owned outdoor sports arenas and amphitheaters. B. In all public or private owned outdoor playgrounds, shelters, swimming pools, and spM-grounds. a: C. In all municipally -owned outdoor public parks, playgrounds, trails, shelters, swimming_ pools, and spW-grounds, except outdoors at Paxton Park Golf Course. Section 6. That Section 54-53, "Posting Signs," is hereby amended to read as follows: Section 54-53. - Posting Signs. A Not loss than tw) �"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 shall be clearly and conspicuously posted in every building and enclosed areapRblic place. The party responsible for the placement of the signage is the owner, employer, operator, lessee, manager, or other person in control of the building or enclosed areapRblic place. B. Nothing in this chapter shall authorize the removal of no -smoking signs required by other statute, regulation, or ordinance. C. All ashtrays or ash containers shall be removed from buildings and enclosed ar€aspublic places, except for ashtrays for sale and not for use on the premises. Any permanent structure that previously functioned or was used as an ashtray shall be disabled or altered to prevent its use as an ashtray. D. One sign stating that smokina is prohibited shall be hosted on every City -owned vehicle. Section 7. That Section 54-54, "Reasonable Distance," is hereby amended to read as follows: Section 54-54. — Reasonable Distance. A. Smoking is prohibited within a reasonable distance from the outside entrance to any building or enclosed -public place so as to ensure that tobacco — I smoke does not enter the building or enclosed public place through entrances, windows, ventilation systems, or other means. Unless directed otherwise by the City Manager, the distance of fifteen (15) feet shall be deemed reasonable. Section 8. That Section 54-55, "Non -retaliation and Non -waiver," is hereby amended to read as follows: 168 Section 54-53. - Non -Retaliation and Non -Waiver of Rights. A. No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment or customer because that employee, applicant for employment or customer exercises any rights afforded by this Ordinance or reports or attempts to prosecute a violation of this ordinance. B. An employee who works in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee maw against the employer or any other party. Section 9. That Section 54-56, "Enforcement," is hereby amended to read as follows: Section 54-56 - Enforcement. A. It is the legislative intent that Tthis smoke-free ordinance will be enforced primarily by the Citizens of Paducah themselves. It is expected that the first step will be that an offended person will ask people to follow the law and stop smoking or using electronic smoking devices in violation of this ordinance. A -.B. The City Manager's Office shall -may designate the City depa . menu staff responsible for enforcing this Ordinance. C. Written notice of the provisions of this Ordinance shall be given to all applicants for a business license within the City of Paducah. B -Q. Any citizen who desires to register a complaint under this Ordinance may initiate enforcement with a written complaint to the City Manager. QE. The following departments, or their designees, sha44may, while performing otherwise legal inspections, inspect for compliance with this Ordinance: Fire Department —Fire Prevention Division, , Parks and Recreation Department,-Publie WorksDepaftman*,�ee Depart and Police Department. D:F. A person in control of a building or enclosed tea -public place shall inform persons violating this Ordinance of the applicable provisions thereof and report non-compliance to City Manager. shall fail to: &G. No person having control of a building or enclosed ublic place (1) Immediately ask smokers to refrain from smoking in any no smoking area; (2) Use any other legal means which may be appropriate to further the intent of this chapter, including the action required by paragraph F -E., above. F Not„ .4thstand ranyother-pr-sion of - this ,Ordinanee, City, Section 10. That Section 54-57, "Violations and Penalties," is hereby amended to read i., 1�IIpYlq�yli Section 10. That Section 54-57, "Violations and Penalties," is hereby amended to read i., as follows: Section 54-57 - Violations and Penalties. A. A person who smokes in an area where smoking is prohibited by the provisions of this Ordinance shall be guilty of a violation of the same, which violation shall be punishable by a fine not exceeding fifty dollars ($50.00). B. A person in control of a building or enclosed afea-public place who fails to comply with the provisions of this Ordinance shall be guilty of a violation punishable by: (1) A fine not exceeding fifty dollars ($50.00) for a first violation within a twelve month period. (2) A fine not exceeding one -hundred dollars ($100.00) for a second violation within a twelve month period. (3) A fine not exceeding two hundred fifty dollars ($250.00) for each additional violation within a twelve month period. C. Persons who smoke in an area where smoking is prohibited by this Ordinance and who refuse to extinguish their smoking material when asked, may be required to leave the premises, and shall be subject to prosecution for trespass if they do not leave when asked. D. In addition to the fines established by this Section, violation of this Ordinance by a person who controls a building or enclosed tea -public place more than three (3) times in any twelve-month period may result in the suspension or revocation of any permit or business license issued by the City to the person for the premises on which the violation occurred. E. Violation of this Ordinance is declared to be a public nuisance which may be abated by the City or its designated agents by restraining order, preliminary and permanent injunction or other means provided for by law. The City may recover the reasonable costs of any court enforcement action seeking abatement of this nuisance. F. Each calendar day on which a violation of this Ordinance occurs shall be considered a separate and distinct offense. Section 11. That Section 54-58, "Public Education" is hereby added to this Article and shall read as follows: Section 54-58. - Public Education The McCracken CountyAgency for Substance Abuse Polia (ASAP), or other such organizations organized and operated for the education and prevention of substance abuse in regard to tobacco, alcohol and other drugs shall engage in a continuing program to explain and clarify the purposes and requirements of this Article to citizens affected by it, and to guide owners, operators, and managers in their compliance with it. 170 Section 12. Severability. If any section or portion of this ordinance is for any reason held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, that section or portion shall be deemed severable and shall not affect the validity of the remaining sections of the ordinance. Section 13. Effective Date. This Article shall be effective 30 days from the date of its adoption and publication. Section 14. This ordinance shall be read on two separate days and shall be published in accordance with KRS Chapter 424. Brandi Harless, ayor ATTEST: Tammara Sanderson, City Clerk Introduced by the Board of Commissioners, March 27, 2018 Adopted by the Board of Commissioners April 10, 2018 Recorded by Tammara S. Sanderson, City Clerk April 10, 2018 Published by The Paducah Sun on April 13, 2018 \ord\54-smoking ban FINAL VERSION 171 REFERENCES 1.National Cancer Institute (NCI), "Health effects of exposure to environmental tobacco smoke: the report of the California Environmental Protection Agency. Smoking and Tobacco Control Monograph 10," Bethesda, MD: National Institutes of Health, National Cancer Institute (NCI), August 1999. 2.U.S. Department of Health and Human Services. How Tobacco Smoke Causes Disease: The Biology and Behavioral Basis for Smoking -Attributable Disease: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2010. 3.Pitsavos, C.; Panagiotakos, D.B.; Chrysohoou, C.; Skoumas, J.; Tzioumis, K.; Stefanadis, C.; Toutouzas, P., "Association between exposure to environmental tobacco smoke and the development of acute coronary syndromes: the CARDIO2000 case - control study," Tobacco Control 11(3): 220-225, September 2002. 4 World Health Organization (WHO), 'Electronic nicotine delivery systems," World Health Organization (WHO), 2014. 5.Klepeis, N.; Ott, W.R.; Switzer, P., "Real-time measurement of outdoor tobacco smoke particles," Journal of the Air & Waste Management Association 57: 522-534, 2007. 6.Hall, J.C.; Bernert, J.T.; Hall, D.B.; St Helen, G.; Kudon, L.H.; Naeher, L.P., "Assessment of exposure to secondhand smoke at outdoor bars and family restaurants in Athens, Georgia, using salivary cotinine," Journal of Occupational and Environmental Hygiene 6(11): 698-704, November 2009. 172