ORDINANCE NO. 677-2014-22 AN ORDINANCE AMENDING TITLE V OF THE CITY CODE OF WEATHERFORD BY ADDING CHAPTER 1, SMOKING REGULATIONS PROHIBITING SMOKING IN EATING ESTABLISHMENTS AS DEFINED IN THE ORDINANCE; PROVIDING CERTAIN EXCEPTIONS TO THE SMOKING PROHIBITION IN EATING ESTABLISHMENTS; PROVIDING FOR REQUIRED SIGNAGE IN EATING ESTABLISHMENTS; PROVIDING OFFENSES AND PENALTIES; AND PROVIDING FOR THE REPEAL OF ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Weatherford, Texas finds and determines that the 2006 U.S. Surgeon General's Report, The Health Consequences of Involuntary Exposure to Tobacco Smoke, has concluded that (1) secondhand smoke exposure causes disease and premature death in children and adults who do not smoke; (2) children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory problems, ear infections, and asthma attacks, and that smoking by parents causes respiratory symptoms and slows lung growth in their children; (3) exposure of adults to secondhand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer; (4) there is no risk-free level of exposure to secondhand smoke; (5) evidence from peer-reviewed studies shows that smokefree policies and laws do not have an adverse economic impact on the hospitality industry. (U.S. Department of Health and Human Services. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. 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, 2006.) According to the 2010 U.S. Surgeon General's Report, How Tobacco Smoke Causes Disease, even occasional exposure to secondhand smoke is harmful and low levels of exposure to secondhand tobacco smoke lead to a rapid and sharp increase in dysfunction and inflammation of the lining of the blood vessels, which are implicated in heart attacks and stroke. (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.); and WHEREAS, the City Council of the City of Weatherford, Texas finds and determines that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke (also known as environmental tobacco smoke) is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory disease, and lung cancer. The National Cancer Institute determined in 1999 that secondhand smoke is responsible for the early deaths of approximately 53,000 Americans annually. (National Cancer Institute (NCI), "Health effects of exposure to environmental tobacco smoke ); and WHEREAS, the City Council of the City of Weatherford, Texas finds and determines that residual tobacco contamination, or from cigarettes, cigars, and other tobacco products is left behind after smoking occurs and builds up on surfaces and furnishings. This residue can linger in spaces long after smoking has ceased and continue to expose people to tobacco toxins. Sticky, highly toxic particulate matter, including nicotine, can cling to walls and ceilings. Gases can be absorbed into carpets, draperies, and other upholsteries, and then be reemitted (off-gassed) back into the air and recombine to form harmful compounds. (Singer, B.C.; Hodgson, A.T.; Nazaroff, W.W., Effect of sorption on exposures to organic gases from environmental tobacco smoke (ETS)," Proceedings: Indoor Air 2002, 2002.); and 662-2014-07 Page 1 of 5
WHEREAS, the City Council of the City of Weatherford, Texas finds and determines that unregulated high-tech smoking devices, commonly referred to as electronic cigarettes, or e-cigarettes, closely resemble and purposefully mimic the act of smoking by having users inhale vaporized liquid nicotine created by heat through an electronic ignition system. After testing a number of e-cigarettes from two leading manufacturers, the Food and Drug Administration (FDA) determined that various samples tested contained not only nicotine but also detectable levels of known carcinogens and toxic chemicals, including tobacco-specific nitrosamines and diethylene glycol, a toxic chemical used in antifreeze. The FDA s testing also suggested that quality control processes used to manufacture these products are inconsistent or non-existent. ([n.a.], "Summary of results: laboratory analysis of electronic cigarettes conducted by FDA," Food and Drug Administration (FDA), July 22, 2009; http://www.fda.gov/newsevents/publichealthfocus/ucm173146.htm Accessed on: October 22, 2009); and WHEREAS, according to the United States Surgeon General, involuntary exposure to secondhand smoke remains a serious public health hazard that can be prevented (U.S. Department of Health and Human Services. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. Atlanta: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006 [accessed 2014 January 23].). NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEATHERFORD, TEXAS: Findings of Fact. The above and foregoing recitals are hereby found to be true and correct and are incorporated herein as findings of fact. The City Council further finds and determines that the rules, regulations, terms, conditions, provisions and requirements of this ordinance are reasonable and necessary to protect the public health, safety and quality of life in the City. Amendments to Title V, Business Regulations, of the City Code of Weatherford is hereby amended to provide new Chapter 1-Smoking Regulations which shall read as follows: Sec. 5-1-1. Definitions. a. Eating establishment means any enclosed area of an establishment that offers for sale food or beverages for on-premises human consumption. The term includes, but is not limited to, restaurants, coffee shops, cafeterias, short order cafes, fast food establishments, convenience stores with delis, bistros, luncheonettes, lunchrooms, soda fountains, and catering establishments, or any other business of whatever kind that packages, serves, vends, or prepares food or beverage for on-premises consumption. b. Enclosed area means all space in an eating establishment from the floor to the ceiling that is fully enclosed or capable of being fully enclosed on all sides by walls, windows, or doors in any combination. c. Retail tobacco store means a retail store, shop, tavern, bar, lounge, or other establishment used primarily for the sale of tobacco products and accessories and in which the sale of other nontobacco products is incidental. d. E-cigarette means any electronic oral device, such as one composed of a heating element, battery, and/or electronic circuit, which provides a vapor of nicotine or any other substances, and the use or inhalation of which simulates smoking. The term shall include any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, or under any other product name or descriptor. 662-2014-07 Page 2 of 5
e. Smoking means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, in any manner or in any form. Smoking also includes the use of an e-cigarette which creates a 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. f. Vape shop or vapor shop means a store used primarily for the sale of electronic cigarettes or substances used in those or similar devices to produce inhalable vapors and in which the sale of other products is incidental. Sec. 5-1-2. Prohibited conduct: duties of owners, operators of eating establishments. a. Smoking is prohibited in an enclosed area of an eating establishment. b. Smoking is prohibited within 10 linear feet from the primary public entrance or any operable window of an eating establishment. c. The owner or operator of an eating establishment shall take necessary steps to prevent or stop another person from smoking in an enclosed area in an eating establishment. Sec. 5-1-3. Exceptions. a. The provisions of section 5-1-2 above shall not apply to: 1) an outdoor seating area of an eating establishment if signs are posted at each entrance to the outdoor seating area to inform potential patrons that the outdoor area allows smoking; or 2) a retail tobacco store; or 3) a vape shop or vapor shop a vape shop or vapor shop; or 4) an establishment owned or leased as the primary location for a veterans organization as defined in Section 32.11 (2) of the Texas Alcoholic Beverage Code so long as the establishment conspicuously posts signage at the primary public entrance indicating that smoking is permitted inside the establishment. Sec. 5-1-4. Signs required. a. The owner or operator of an eating establishment shall, at each public entrance to the eating establishment, conspicuously post a "No Smoking" sign displaying either the international "no smoking" symbol (depiction of a burning cigarette enclosed in a red circle with a red bar across it) or other words or pictures designed to provide notice to a reasonable person that smoking is prohibited in the eating establishment. b. The owner or operator of an eating establishment shall, if the eating establishment has areas in which smoking is permitted under the provisions of Section 5-1-3 of this ordinance, conspicuously post at each public entrance to such smoking area(s), signs either displaying the words "Smoking Permitted" or other words or pictures designed to provide notice to a reasonable person that smoking is permitted in that area(s) of the eating establishment. Sec. 5-1-5. Enforcement. a. This section is cumulative of other laws providing enforcement authority. b. A person may report a violation of this ordinance to the Consumer Health Department, the Code Enforcement Department, and/or the Police Department. c. The city manager or his/her designee may authorize a City employee conducting an inspection under any other provision of the Weatherford City Code to also inspect for compliance with this ordinance and issue a citation for a violation of this ordinance. d. This ordinance may also be enforced by a suit for injunctive relief. Sec. 5-1-6. Offenses and penalties. a. A person commits an offense if the person smokes in an enclosed area of an eating establishment. 662-2014-07 Page 3 of 5
b. A person commits an offense if the person smokes within 10 linear feet from the primary public entrance or any operable window of an eating establishment. c. The owner or operator of an eating establishment commits an offense if the person fails to take necessary steps to prevent or stop another person from smoking in an enclosed area in an eating establishment. d. A person who violates the provisions of this ordinance shall, upon conviction, be fined in an amount not more than $200.00; provided, however, that in the event a defendant has previously been convicted under this ordinance, such defendant shall be fined in an amount not more than $500.00 for a second conviction hereunder, and shall be fined in an amount not more than $2,000.00 for a third conviction and for each conviction thereafter. A culpable mental state is not required and need not be proved. Each day that a violation is committed or permitted to exist or occur shall constitute a separate offense. e. It is an affirmative defense to prosecution under this ordinance that an owner or operator of an eating establishment failed to post a sign required under this section. Sec. 5-1-7. Application of other law. a. This chapter is cumulative of other laws that regulate smoking. Resolution of Conflicting Ordinances. In the event of a conflict or inconsistency between this ordinance and any other code or ordinance of the City, the provisions of this ordinance shall control. Savings Clause. All rights and remedies of the City of Weatherford are expressly saved as to any and all provisions of any ordinance affecting fees of the City and to any and all violations of the provisions of any prior ordinance pertaining to smoking regulations within the City which have accrued as of the effective date of this ordinance; and as to such accrued fees, collection activity, violations and any pending litigation, both civil and criminal, whether pending in court or not, under such prior ordinances, same shall not be affected by this ordinance but may be prosecuted and pursued until final disposition by the courts. Effective Date. This ordinance shall take effect immediately from and after its passage and publication in accord with the provisions of the Texas Local Government Code. This ordinance shall, upon taking effect, be applicable in its entirety to any and all applications for licensure submitted or pending as of the effective date of this ordinance. Severability. It is the express intent of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable and, if any phrase, sentence, paragraph or section should be declared invalid by the final judgment or decree of any court of competent jurisdiction, such invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance as the same would have been enacted by the City Council without the incorporation in this ordinance of any such invalid phrase, clause, sentence, paragraph or section. If any provision of this ordinance shall be adjudged by a court of competent jurisdiction to be invalid, the invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provision, and to this end the provisions of this ordinance are hereby declared to be severable. Open Meetings. The City Council finds and determines that the meeting at which this ordinance is passed was open to the public as required by law and that public notice of the time, place and purpose of said meeting was duly given as required by the Texas Open Meetings Act. 662-2014-07 Page 4 of 5
PASSED AND APPROVED BY A VOTE OF AYES AND NO ON THE DAY OF, 2014. ATTEST: THE CITY OF WEATHERFORD, TEXAS Malinda Nowell, TRMC, City Secretary Dennis Hooks, Mayor APPROVED AS TO FORM: Zellers & Zellers, City Attorney 662-2014-07 Page 5 of 5