Ord. 1330-1 2019-11-11ORDINANCE NO. 1330-1
An ordinance of the City Council of the City of Pearland, Texas
amending Chapter 20, Offenses and Miscellaneous Provisions,
Section 20-9 Smoking in Public Places, of the City of Pearland Code
of Ordinances; having a savings clause, a severability clause, and a
repealer clause; and providing for codification and an effective date.
Section 1. That Chapter 20, Offenses and Miscellaneous Provisions, Section
20-9 Smoking in Public Places, of the City of Pearland Code of Ordinances, is hereby
amended and adopted to read as follows:
"Sec. 20-9- Smoking in Public Places
(a) Purpose. The purpose of this ordinance is to
(1) improve and protect the public's health by eliminating smoking in public
places and workplaces;
(2) promote the right of nonsmokers to breathe smoke -free air; and
(3) recognize that the need to breathe smoke -free air shall have priority over
the choice to smoke.
(b) Definitions.
Bar means an area 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 such beverages. A "bar" includes those facilities
located within a restaurant, hotel, motel or other similar transient occupancy
establishment and those establishments that allow guests to bring their own alcoholic
beverages for consumption on premises. For purposes of this ordinance, a bar includes
any place where alcohol is consumed, whether purchased on or brought to the
premises.
Business means any sole proprietorship, partnership, joint venture, corporation or other
business entity formed for profit -making purposes, including retail establishments where
goods or services are sold as well as professional corporations and other entities where
legal, medical, dental, engineering, architectural or other professional services are
delivered.
ORDINANCE NO. 1330-1
Electronic Smoking Device means an electronic device that can be used to deliver an
inhaled dose of nicotine, or other substances, including any component, part, or
accessory of such a device, whether or not sold separately. "Electronic Smoking
Device" includes any such device, whether manufactured, distributed, marketed, or sold
as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe,
an electronic hookah, or any other similar 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 nonprofit entity.
Employer means a person, partnership, corporation, including a municipal corporation,
or non-profit entity, which employs the services of one or more persons.
Enclosed Area means a space that is enclosed on all sides by solid walls that extend
from the floor to the ceiling (exclusive of windows, doors or passageways), including all
space therein screened by partitions which do not extend to the ceiling or are not solid.
Fraternal Organization means a non-profit organization that:
(a) Is chartered by a national organization in existence since 1953;
(b) Is tax exempt under Section 501(c)(8), (10), or (19) of the Internal Revenue
Code;
(c) Operates under a lodge system with a representative form of government;
and
(d) Is organized for the exclusive benefit of the members of the organization and
their dependents.
Operator means the owner or person in charge of a public place or workplace, including
an employer.
Private Club means an organization, whether incorporated or not, which is the owner,
lessee, or occupant of a building or portion thereof used exclusively for club purposes at
all times, which is operated solely for a recreational, fraternal, social, patriotic, political,
benevolent, or athletic purpose, but not 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.
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Private Place means any enclosed area to which the public is not invited or in which the
public is not permitted, including but not limited to, personal residences, fraternal clubs
or personal automobiles. A privately -owned business, open to the public, is not a
"private place".
Public Place means an enclosed area to which the public is invited or in which the
public is permitted, including but not limited to, banks, bars, educational facilities, health
care facilities, Laundromats, public transportation facilities, reception areas, restaurants,
retail food 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, or health care
facility.
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.
Retail Tobacco Store means a retail store used primarily for the sale of tobacco
products or Electronic Smoking Devices and accessories, and in which the sale of other
non -tobacco or non-smoking products is incidental.
Service Line means any indoor line at which one (1) or more persons are waiting for or
receiving service of any kind, whether or not such service involves the exchange of
money.
Smoking means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette,
pipe, weed, plant, or other combustible substance in any manner or in any form; or the
use of an Electronic Smoking Device
Sports Arena means sport pavilions, gymnasiums, health spas, boxing arenas,
swimming pools, roller and ice rinks, bowling alleys and other similar places where
members of the general public assemble either to engage in physical exercise,
participate in athletic competition, or witness sports events.
Workplace means an enclosed area under the control of a public or private employer
which employees normally frequent during the course of employment, including, but not
limited to, work areas, employee lounges and restroom, conference and classrooms,
employee cafeterias and hallways. A private residence is a "workplace" if it is used as a
child care, adult day care or health facility.
(c) Prohibition of smoking in public places.
(1) A person commits an offense if the person smokes in an enclosed public place,
as well as those outdoor areas designated in Sec. 3 and 4, including, but not
limited to, the following places:
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ORDINANCE NO. 1330-1
(a) Elevators;
(b) Restrooms, lobbies, reception areas, hallways and any other common -use
areas;
(c) Buses, bus terminals, taxicabs, train stations, airports and other facilities and
means of public transit under the authority of the City of Pearland, as well as
ticket, boarding, and waiting areas of public transportation facilities;
(d) Service lines;
(e) Retail stores, shopping malls and restaurants;
(f) All enclosed areas available to and customarily used by the general public in
all business, including but not limited to, attorneys' offices and other offices,
banks, laundromats, hotels and motels;
(g) Bars;
(h) Bowling alleys, pool halls, and amusement arcades;
(i) Galleries, libraries, and museums;
(j) Any facility which is primarily used for exhibiting any motion picture, stage,
drama, lecture, musical recital or other similar performance, except that
performers may smoke when the smoking is part of a stage production;
(k) Indoor sports arenas and convention halls;
(I) Every room, chamber, place of meeting or public assembly, including school
buildings (public or private), under the control of any board, council, commission,
committee, including joint committees, or agencies of the City of Pearland or any
political subdivision of the State during such time as a public meeting is in
progress;
(m) Waiting rooms, hallways, wards and semiprivate rooms of health facilities,
including, but not limited to, hospitals, clinics, physical therapy facilities,
doctors' offices, and dentists' offices;
(n) Lobbies, hallways, and other common areas in apartment buildings,
condominiums, trailer parks, retirement facilities, nursing homes, and other
multiple -unit residential facilities;
(o) Polling places;
(p) Bingo facilities;
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ORDINANCE NO. 1330-1
(q) Adult entertainment enterprises;
(r) Private clubs when being used for a function to which the general public is
invited;
(2) A person commits an offense if the person smokes in an enclosed area of a
workplace without exception. This includes common work areas, auditoriums,
classrooms, conference and meeting rooms, private offices, elevators, hallways,
medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles, and all
other enclosed facilities.
(3) A person commits an offense if the person smokes within twenty-five (25) feet from
an entrance, operable window, or ventilation system of an enclosed area in which
smoking is prohibited.
(4) The owner or operator of a public place commits an offense if the person fails to take
necessary steps to prevent or stop another person from smoking in an enclosed area in
a public place.
(d) Prohibition of smoking at public outdoor events. A person commits an offense if the
person smokes in the seating area of an outdoor arena, stadium or amphitheater.
(e) Reasonable distance. Smoking is prohibited within a reasonable distance of not less
than twenty-five (25) feet outside entrances, operable windows, and ventilation systems
of enclosed areas where smoking is prohibited.
(f) Application of article to city -owned facilities. All facilities, including zoos, parks,
playgrounds, golf courses, building and vehicles owned, leased or operated by the City
of Pearland, shall be subject to the provisions of this ordinance. City owned facilities
shall not be construed to include private boating on city lakes.
(g)
Exceptions from prohibition. This ordinance does not apply to:
(1) A dwelling unit that is used exclusively for a residential use;
(2) Private vehicles, except when being used in the course of employment;
(3) A hotel or motel room designated as a smoking room and rented to a person,
provided, however, that no more than twenty percent (20%) of hotel and motel rooms
rented to guests 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 ordinance. The status of rooms as smoking or
nonsmoking may not be changed, except to add additional nonsmoking rooms.
(4) Retail tobacco stores:
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ORDINANCE NO. 1330-1
(a) In stand-alone physical facilities or other retail space provided that smoke for
the subject store does not infiltrate areas where smoking is prohibited under the
provisions of this ordinance; and
(b) Where sales of incidental products shall not exceed ten percent (10%) of total
gross sales; sales of incidental products shall not include the sale of alcohol
regardless of percentage of total gross sales; and
(c) Where no alcohol is consumed on the premises.
(5) A private or semi -private room in a nursing home or Tong -term care facility that is
occupied by individuals who smoke 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 ordinance.
(6) An outdoor area of a workplace that is not in the area described by Section 2(B)
(Prohibition of Smoking in Public Places);
(7) Private clubs that have no employees, except when being used for a function to
which the general public is invited. This exemption shall not apply to any organization
that is established for the purpose of avoiding compliance with this ordinance.
(8) Areas designated within a hospital psychiatric unit.
(h) Outdoor distance exceptions. A person may smoke within twenty-five (25) feet of an
entrance to a restricted smoking facility if:
(i)
(1) The entrance is not a primary public pedestrian entrance to the premises; or
(2) The distance between the entrance and the adjacent roadway is less than
twenty-five (25) feet.
Employer responsibilities.
(1) Except as provide in Subsection (2), an employer shall provide a smoke -free
workplace for employees.
(2) If an employer requires employees to work in an area described in Sec. (g) (2)
through (6) (Exceptions from Prohibition), the employer shall make reasonable
accommodations for an employee who requests assignment to a smoke -free area.
(3) Each employer having any enclosed workplace located within the City of Pearland
shall adopt, implement and maintain a written smoke policy, which shall contain the
following requirements:
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ORDINANCE NO. 1330-1
Smoking shall be prohibited in all enclosed facilities within a workplace without
exception. This includes common work areas, auditoriums, classrooms, conference and
meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias,
employee lounges, stairs, restrooms, vehicles, and all other enclosed facilities.
Additionally, smoking is prohibited with a reasonable distance of not less than 25
feet outside entrances, operable windows, and ventilation systems of enclose areas
where smoking is prohibited.
(4) The smoking policy shall be communicated to all employees within four (4) weeks of
its adoption and posted conspicuously in all workplaces under the employer's
jurisdiction.
(5) All employers shall supply a written copy of the smoking policy upon request to any
existing or prospective employees.
(j) Voluntary designation of a nonsmoking facility. Nothing in this ordinance implies that the
operator of an enclosed or outdoor public place is prohibited from designated the entire
facility as non-smoking.
(k) Signs required.
(1) The 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
reasonably prohibit smoking. The signs shall be written in contrasting colors with
bold block lettering of not less than one (1) inch in height and must be posted:
(I)
(a) In each public place and workplace where smoking is prohibited by this
ordinance; and
(b) At each entrance to a public place or workplace.
(2) The operator of a public place shall conspicuously post signs in areas where
smoking is permitted under Sec. 6 (Exceptions from Prohibition).
(3) The operator of a public place and an employer shall remove any ashtray or
other smoking accessory from a place where smoking is prohibited.
(4) It is not a defense to prosecution under this ordinance that an operator failed to
post a sign required under this section.
Retaliation prohibited.
(1) 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 ordinance.
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(m)
(2) An employee who works in a setting where an employer allows smoking does not
waive or otherwise surrender any legal rights the employee may have against the
employer or any other party.
Enforcement.
(1) This section is cumulative of other laws providing enforcement authority.
(2) This ordinance shall be enforced by the Director of Health and Sanitation
Department or any authorized designee, Fire Department, Police Department, Building
Inspections Division or designee, Code Enforcement Officers and the City Manager or
designee.
(3) Any citizen may report a violation of this ordinance to the Director of the Health
and Sanitation Department.
(4) The city manager may authorize a City employee conducting an inspection under
any provision of the ordinance to also inspect for compliance with this ordinance and
issue a citation for a violation of this ordinance.
(5) An owner, manager, operator, or employee of an establishment regulated by this
ordinance shall inform persons violating the ordinance of the appropriate provisions
thereof.
(6) Notwithstanding any other provision of this ordinance, an employee or private citizen
may bring legal action to require the city to enforce this ordinance.
(7) In addition to the remedies provided by the provisions of this Section, the City
Manager or the Director of Health and Sanitation Department may apply for injunctive
relief to enforce these provisions in any court of competent jurisdiction.
(n) Violation and penalties.
(1) A person who violates the provisions of this ordinance commits a Class C
misdemeanor, punishable by a fine not to exceed $2,000. A culpable mental state is not
required for a violation of this ordinance, and need not be proved.
(2) A person who owns, manages, operates, or otherwise controls a public place or
workplace and who fails to comply with the provisions of this ordinance shall be guilty of
an infraction, punishable by:
a. A fine not exceeding two hundred dollars ($200) for a first violation.
b. A fine not exceeding four hundred dollars ($400) for a second violation within a
period of twelve (12) consecutive months.
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ORDINANCE NO. 1330-1
c. A fine not exceeding five hundred dollars ($500) for each additional violation
within a period of twelve (12) consecutive months.
(3) The City Manager may suspend or revoke a permit or license issued to the operator
of a public place or workplace where a violation of this ordinance occurs.
(4) Each day an offense occurs is a separate violation.
(5) Violation of this ordinance is hereby declared to be a public nuisance, which may be
abated by the Director of Health by restraining order, preliminary and permanent
injunction, or other means provided for by law, and the City may take action to recover
the costs of the nuisance abatement.
(o) Public education.
(1) The City Manager shall:
a. Obtain or develop a comprehensive tobacco education program to
educate the public about the harmful effect of tobacco and its addictive qualities.
b. Conduct informational activities to notify and educate businesses and the
public about this ordinance; and
c. Coordinate the City's tobacco education program with other civic or volunteer
groups organized to promote smoking prevention and tobacco education.
(2) To implement this section, the City Manager may publish and distribute educational
materials relating to this ordinance to businesses, their employees, and the public.
(p) Governmental agency cooperation. The City Manager shall annually request that each
federal, state, county, and school district agency with a facility in the City adopt local
operating procedures and update its existing smoking control regulation in compliance
with this ordinance.
(q). Application of other law. This ordinance is cumulative of other laws that regulate
smoking. This ordinance shall not be interpreted or construed to permit smoking where
it is otherwise restricted by other applicable laws."
Section 2. Savings. All rights and remedies which have accrued in favor of
the City under this Ordinance and amendments thereto shall be and are preserved for
the benefit of the City.
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ORDINANCE NO. 1330-1
Section 3. Severability. If any section, subsection, sentence, clause, phrase
or portion of this Ordinance is for any reason held invalid, unconstitutional or otherwise
unenforceable by any court of competent jurisdiction, such portion shall be deemed a
separate, distinct, and independent provision and such holding shall not affect the
validity of the remaining portions thereof.
Section 4. Repealer. All ordinances and parts of ordinances in conflict
herewith are hereby repealed but only to the extent of such conflict.
Section 5. Codification. It is the intent of the City Council of the City of
Pearland, Texas, that the provisions of this Ordinance shall be codified in the City's
Code of Ordinances as provided hereinabove.
Section 6. Effective Date. The City Secretary shall cause this Ordinance, or
its caption and penalty, to be published in the official newspaper of the City of Pearland,
upon passage of such Ordinance. The Ordinance shall then become effective ten (10)
days from and after its passage on the second and final reading.
PASSED and APPROVED on FIRST READING this the 28'h day of October, A.D., 2019.
Yam-/ czc
ATTEST:
MARIA RODRIGUEZ
INTERIM CITY SECRETAR
TOM REID
MAYOR
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ORDINANCE NO. 1330-1
PASSED and APPROVED on SECOND and FINAL READING this the 11th day of
November, A.D., 2019.
ATTEST:
MARIA RODRIGUEZ
INTERIM CITY SECRETARY
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
MAYOR
VOTING RECORD SECOND AND FINAL
READING
November 11, 2019
Voting "Aye" - Councilmembers Carbone, Reed,
Hernandez, Little, and Owens
Voting "No" — Councilmembers Moore and
Perez.
Motion passes 5 to 2.
PUBLICATION DATE November 13, 2019
EFFECTIVE DATE: November 22, 2019
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