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07-078 - OTOWN OF PROSPER, TEXAS ORDINANCE NO. 07-078 AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS REGULATING SMOKING IN PUBLIC PLACES IN THE TOWN OF PROSPER, TEXAS, WITH CERTAIN EXCEPTIONS; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR REPEALING, SAVINGS AND SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE; AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF. WHEREAS, the Town Council of the Town of Prosper, Texas (the "Town Council") has investigated and determined that the smoking of tobacco or weeds or other plant products has been demonstrated to have a detrimental effect on others in close proximity to the smoker; and WHEREAS, the Town Council has investigated and determined that it is the right of all citizens to be able to choose for themselves whether to smoke either actively or passively; and WHEREAS, the Town Council has further investigated and determined that it will be advantageous and beneficial to the Town of Prosper, Texas ("Prosper") and its citizens to provide patrons of retail and service establishments a smoke-free environment; and WHEREAS, the Town Council has further investigated and determined that it will be advantageous and beneficial to Prosper and its inhabitants to regulate smoking in public places in Prosper, with certain exceptions, to reduce detrimental effects on not only the smoker, but others in close proximity to the smoker and to further the health, safety and welfare of Prosper and its citizens. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: Findinu Incorporated. The findings set forth above are incorporated into the body of this Ordinance as if fully set forth herein. SECTION 2: Purpose. The Town Council hereby declares its purpose in enacting this Ordinance is to further the public health, safety and welfare of Prosper and its citizens through the regulation of smoking in public places with certain exceptions. ORDINANCE REGULATING SMOKING Page I of 8 SECTION 3: Definitions. Administrative Area as used herein shall mean the area of an establishment not generally accessible to the public or to a minor, including but not limited to, individual offices, stockrooms, employee lounges or meeting rooms. Bar as used herein means an establishment principally for the sale and consumption of alcoholic beverages on the premises that derives seventy-five percent (75%) or more of its gross revenue on a quarterly (three-month) basis from the sale or service of alcoholic beverages, as defined in the Texas Alcoholic Beverage Code, for on - premises consumption. If an establishment is located in a hotel or motel, the gross revenues of the particular establishment, rather than the gross revenues of the entire hotel or motel, will be used in calculating the percentage of revenues derived from the sale or service of alcoholic beverages. Billiards as used herein means any game played on a cloth -covered table with balls and cue sticks where the balls are struck by the sticks and the balls strike against one another. Billiard Hall as used herein means an establishment that: A. holds a valid billiard hall license issued by Prosper, if required under any ordinance and/or code of Prosper, whether now existing or in the future arising; B. has at least twelve (12) billiard tables that are not coin-operated available for rent to persons desiring to play billiards on the premises; and C. derives seventy percent (70%) or more of its gross revenue on a quarterly (three-month) basis from the sale or service of alcoholic beverages, as defined in the Texas Alcoholic Beverage Code, for on - premises consumption and from the rental of billiard tables and billiard equipment to persons desiring to play billiards on the premises. Code Enforcement Officer as used herein means the Code Enforcement Officer, or his/her designee, of the Town of Prosper designated and authorized to enforce and administer this Ordinance. Eating Establishment as used herein means any establishment that prepares or serves food or beverages, regardless of whether the establishment provides seating or facilities for on -premises consumption. The term includes, but is not limited to, restaurants, coffee shops, cafeterias, short order cafes, fast food establishments, luncheonettes, lunchrooms, soda fountains, food carts, food vending vehicles and catering establishments. ORDINANCE REGULATING SMOKING Page 2 of 8 Employee as used herein means any person who works for hire at a designated indoor area including an independent contractor with an assigned indoor location. Employer as used herein means any person who employs five (5) or more employees. Enclosed as used herein means an area that: A. is closed in overhead by a roof or other covering of any material, whether permanent or temporary; and B. has forty percent (40%) or more of its perimeter closed in by walls or other coverings of any material, whether permanent or temporary. Food products establishment as used herein means any restaurant, coffee shop, cafeteria, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria or eating establishment or any other eating establishment, organization, club, boardinghouse or guesthouse, which gives or offers for sale food to the public, guests, patrons or employees as well as kitchens in which food is prepared on the premises for serving elsewhere, including, but not limited to, catering facilities. Other food product establishments include, but are not limited to, grocery stores and food markets, not including those outdoors. Hospital as used herein means any institution that provides medical, surgical and overnight facilities for patients. Prosper as used herein shall mean the Town of Prosper, Texas Minor as used herein means any individual under eighteen (18) years of age. Person as used herein means an individual, firm, partnership, association or other legal entity. Private Club as used herein shall mean any building, premise or portion thereof which is permitted by the State of Texas and allowed by special use permit by Prosper as a private club for the storing, possession and dispensing for on -premise consumption of alcoholic beverages. Private Club does not include a premise operated by an organization which is not available to and not customarily used by the general public and entry and privileges thereto are established by regulations of that organization distinct from a Texas Alcohol and Beverage private club membership. Public Service Area as used herein means any enclosed, indoor area that is open to or is used by the general public and includes, but is not limited to, retail stores, grocery stores, offices, professional, commercial or financial establishments, restaurants, public and private institutions of education, health care facilities, nursing and ORDINANCE REGULATING SMOKING Page 3 of 8 convalescent homes, residential treatment facilities and buildings owned or occupied by political subdivisions. Retail or Service Establishment as used herein means any establishment that sells goods or services to the general public, including but not limited to, any food products establishment, eating establishment, restaurant, private club, hotel, motel, department store, grocery store, drug store, shopping mall, Laundromat, bingo parlor, bowling center or hair styling salon, including service lines. Retail Tobacco Store as used herein shall mean a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of the other products is merely incidental. Second -Hand Smoke as used herein means ambient smoke resulting from the act of smoking. Service Line as used herein shall mean an indoor line or area where persons await service of any kind, regardless of whether or not such service involves the exchange of money. Such service shall include, but is not limited to, sales, giving of information, directions or advice and transfers of money or goods. Smoke or Smoking as used herein means inhaling, exhaling, possessing, or carrying any lighted or burning cigar or cigarette, or any pipe or other device that contains lighted or burning tobacco or tobacco products. Workplace as used herein means any indoor area where an employee works for an employer, including an administrative area but excluding: A. domestic residence; B. factory or warehouse where smoking is regulated by another Town ordinance or a state or federal law; C. an enclosed room with only one regular occupant; or D. any area that is generally accessible to the public or to a minor and that is regulated under Section 4 of this Ordinance. SECTION 4: Smoking Prohibited in Certain Public Areas. A. A person commits an offense in violation of this Ordinance if he/she smokes or possesses a burning tobacco, weed or other plant product in any of the following indoor and/or enclosed areas: I . a public or private preschool, primary or secondary school; or ORDINANCE REGULATING SMOKING Page 4 of 8 2.. elevators, museums, libraries, galleries, public transportation facilities open to the public and service lines of establishments doing business with the general public used by the public; or 3. hospitals or nursing homes; or 4. any facility owned, operated or managed by Prosper including parks and athletics fields; or 5. any retail or service establishment; or 6. all restrooms open for public use; or 7. within all areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public, including, but not limited to, commercial, financial and professional offices, including banks, hotels and motels; or 8. within ten (10) linear feet of any entrance of any facility where smoking is prohibited; or 9. any establishment or area marked with a no smoking sign complying with Subsection B of this Section by the owner, operator or person in control of the establishment, facility or area. B. The owner, operator or person in charge of a facility in which smoking is regulated shall post signs which designate smoking or no smoking areas established by this Ordinance. The manner of such posting shall be at the discretion of the owner, operator manager or other person having control of such room, building or other place so long as the signs are conspicuous and state that smoking is prohibited and that an offense is punishable by fine not to exceed TWO THOUSAND AND NO/100 DOLLARS ($2,000.00). C. The owner or person in control of a bar qualifying for a defense to prosecution under Subsection D(3) of this Section or a billiard hall qualifying for a defense to prosecution under Subsection D(7) of this Section may designate smoking areas, except that the designated smoking areas may not include: 1. the entire establishment; 2. cashier areas; or 3. restrooms. D. It is a defense to prosecution under Subsection A of this Section if the person was smoking in a location that was: 1. a private residence, except that this defense does not apply when the residence is being used as a child care facility, adult day care facility, or health care facility; 2. an administrative area or office of an establishment described in ORDINANCE REGULATING SMOKING Page 5 of 8 Subsection A(2), A(3) or A(5) of this Section if the administrative area or office is physically separated from those areas of the establishment where smoking is prohibited, except that this defense does not apply if the location was posted as a nonsmoking area under Section 5 of this Ordinance; 3. a bar that does not open into any other establishment in which smoking is prohibited under this Section, except that this defense does not apply if: a. any part of the bar is generally accessible by a minor; b. the bar opens into a hotel or motel; or C. the location was posted as a nonsmoking area by the owner or person in control of the bar with a sign complying with Subsection B of this Section; 4. a retail or service establishment that: a. derives ninety percent (90%) or more of its gross revenue on a quarterly (three-month) basis from the sale of tobacco, tobacco products or smoking implements; and b. does not open into any other establishment in which smoking is prohibited under this Section; 5. an unenclosed outdoor seating area of an eating establishment, except that this defense does not apply if: a. the outdoor seating area is adjacent to a playground or play area for children; or b. the location was posted as a nonsmoking area by the owner or person in control of the establishment with a sign complying with Subsection B of this Section; 6. a billiard hall that does not open into any other establishment in which smoking is prohibited under this Section, except that this defense does not apply if- a. £a. any part of the billiard hall is generally accessible by a minor; or b. the location was posted as a nonsmoking area by the owner or person in control of the billiard hall with a sign complying with Subsection B of this Section. E. It is a defense to prosecution under Subsection B of this Section that the establishment or area is a location for which a defense to prosecution is provided under Subsection D of this Section. SECTION 5: 'Workplace. A. Emolover Workplace Requirements. An employer who, occupies or controls a workplace shall: ORDINANCE REGULATING SMOKING Page 6 of 8 1. have and implement a written policy on smoking that: a. conforms to this Ordinance; K reasonably accommodates the interests of both smokers and nonsmokers, but minimizes the involuntary exposure of nonsmokers to second-hand smoke; C. designates nonsmoking areas so as to use existing structural barriers and ventilation to minimize involuntary exposure of nonsmokers to second-hand smoke; and d. establishes a procedure for addressing employee complaints; 2. provide conspicuous signage indicating nonsmoking areas; 3. not discharge, retaliate or discriminate against any employee who: a. files any complaint or causes any proceeding to be instituted under or related to this Ordinance; b. testifies or will testify in any proceeding instituted under this Ordinance; or C. exercises on his/her own behalf or the behalf of others any right afforded by this Ordinance; and 4. not be responsible for fines assessed against an employee for violation of Subsection C of this Section. B. Workplace Prohibition. Nothing in this Ordinance shall prohibit an employer from designating an entire workplace as nonsmoking. C. Smoking Prohibited. A person commits an offense if he/she smokes in an area designated as nonsmoking pursuant to Section 5(A)(1)(c). SECTION d: Penaltv Provision. Any person, firm, corporation or business entity violating this Ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined a sum not exceeding TWO THOUSAND AND NO/100 DOLLARS ($2,000.00). Each continuing day's violation under this Ordinance shall constitute a separate offense. The penal provisions imposed under this Ordinance shall not preclude Prosper from filing suit to enjoin the violation. Prosper retains all legal rights and remedies available to it pursuant to local, state and federal law. ORDINANCE REGULATING SMOKING Page 7 of 8 SECTION 7: Savinasf Rencalina Clause. All provisions of any ordinance in conflict with this Ordinance are hereby repealed to the extent they are in conflict; but such repeal shall not abate any pending prosecution for violation of the repealed ordinance, nor shall the repeal prevent a prosecution from being commenced for any violation if occurring prior to the repeal of the ordinance. Any remaining portions of said ordinances shall remain in full force and effect. SECTION 8: Severability. Should any section, subsection, sentence, clause or phrase of this Ordinance be declared unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any and all remaining portions of this Ordinance shall remain in full force and effect. Prosper hereby declares that it would have passed this Ordinance, and each section, subsection, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional or invalid. SECTION 9: Effective Date. This Ordinance shall become effective from and after its adoption and publication as required by the Town Charter and by law. DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS on this l lt" day of September 2007, 9ARLES NIS ANGER, Mayor ATTESTED- .. ATTHEW DENTON, TRMC Town Secretary DATE(S) OF PUBLICATION: Sg5'P C M f3C-P-- Dallas Morning News (Collin County Edition) ,�Illlllf��� •�'��� pF P140s'�4r`r s a � o � ORDINANCE REGULATING SMOKING �, v° Page 8 of 8 PIS