Ord. 0534-1 08-24-92ORDINANCE NO. 534-1
AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE
CITY OF PEARLAND, TEXAS, FOR THE PURPOSE OF PROHIBITING
THE SMOKING OF CIGARETTES, CIGARS AND OTHER TOBACCO
PRODUCTS IN CERTAIN PUBLIC PLACES IN THE CITY OF PEAR -
LAND; CALLING FOR THE POSTING OF SIGNS; PROVIDING A
PENALTY FOR VIOLATION; HAVING A SAVINGS CLAUSE; HAVING
A REPEALER CLAUSE; PROVIDING FOR CODIFICATION, PUBLICA-
TION AND AN EFFECTIVE DATE.
WHEREAS, the Surgeon General of the United States has de-
clared that smoking is the number one public health issue of our
time;
WHEREAS, smoking is a detriment to the economic health of a
business; and
WHEREAS, the City of Pearland recognizes the increasing
evidence that smoke creates a danger to the health of some citi-
zens, and is a cause of annoyance and discomfort to those who are
in confined spaces where smoke is present; and
WHEREAS, in order to protect the health and welfare of those
citizens, as well as to protect the rights of smokers and non-
smokers, it is necessary to restrict smoking in public places
except in areas designated as smoking areas; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS:
Section 1. That Section 20-9 of the Code of Ordinances of
City of Pearland, Texas, is hereby amended to read as follows:
Section 20-9. Definitions. The following definitions shall
apply.,
a. "Administrative area" means the area of an establishment
not generally accessible to the public, including but
not limited to individual offices, stockrooms, employee
lounges, or meeting rooms.
b. "Director" means the director of the department desig-
nated by the city manager to enforce and administer this
article or the director's designated representative.
c. "Employee" means any person who is employed by any
employer for direct or indirect monetary wages or prof-
it, or is in a position that would lead one to believe
that such person is so employed.
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d. "Employer" means any person, partnership, corporation,
association or other entity that employs one (1) or more
persons.
e. "Enclosed" means closed in by a roof and walls with
appropriate openings for ingress and egress but may not
include areas commonly described as public lobbies.
f. "Food establishment" means any operation engaged in the
preparation or sale of prepared ready to eat food, if
such operation accounts for more than fifty (50) per
cent of annual gross sales receipts.
g•
"Governmental entity" means a municipality, county,
school district, or appraisal district.
h. "Healthcare facility" means any hospital or institution
that provides medical or surgical services for patients.
i. "Movie theater" means any establishment engaged in the
business of exhibiting motion pictures to the public.
"Smoke or smoking" includes the carrying or holding of a
lighted pipe, cigar or cigarette of any kind, or any
other lighted smoking equipment or device, and the
lighting, emitting or exhaling the smoke of a pipe,
cigar or cigarette of any kind.
Section 2. That the Code of Ordinances of the City of
Pearland, Texas, is further amended by the inclusion of Section
20-10 which shall hereafter read as follows:
Section 20-10. Smoking prohibited in certain public places.
(a) A person commits an offense if he smokes or possesses a
burning tobacco, weed or other plant product, or any lighted or
burning pipe, cigar, cigarette of any kind, orsmoking equipment
or device in any of the following areas:
(1) An elevator used or which may be used by the public;
(2) A healthcare facility;
(3)
Any enclosed building or portion thereof owned, operat-
ed, and under the control of the city or any governmen-
tal entity;
(4) Grocery stores, meat markets, bakeries and similar
establishments selling unpackaged or unprepared food
products, except convenience stores; all public areas
and waiting rooms of public transportation facilities,
including but not limited to, bus, train and airport
facilities;
(5) An area marked with a No Smoking sign in accordance
with subsection (b) by the owner or person in control
of an establishment servicing the general public;
(6) Any indoor or enclosed facility of an enclosed theater,
library, museum, and transportation vehicles, such as
buses and taxicabs, except on chartered buses for
private hire or in taxicabs clearly designated by the
operator to permit smoking.
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(7)
Any property under the jurisdiction of the Pearland
Independent School District at which location the
School Board has determined that the provisions of
Subsection (a) above should apply.
(b) The owner or person in control of an establishment or
area designated in subsection (a) of this section shall post a
"No Smoking" sign, approved by the Fire Marshal, conspicuous to
ordinary public view, at or near each public entrance to the
establishment. The sign shall read as follows:
"NO SMOKING"
BY
CITY ORDINANCE
(EXCEPT IN DESIGNATED AREAS)
Signs displaying the universal symbol for no smoking, or
other language that clearly prohibits smoking, shall also be
posted within the establishment.
(c) Every healthcare facility may allow patients to smoke
in a designated smoking area.
(d) The owner or person in control of an establishment or
area described in subsection (a) of this section may designate an
area, approved by the Fire Marshal, including but not limited to
lobbies, meeting rooms, waiting rooms, or lounges, as a smoking
area; provided that the designated smoking area may not:
(1) Include the entire establishment;
(2) Include cashier areas, over the counter service or
sales areas, or service lines or areas that must be
traversed to reach nonsmoking areas or restrooms;
(3)
Include the viewing area of any theater or motion
picture theater;
(4) Be larger than thirty (30) per cent of the common area
of the establishment.
(e) It is a defense to prosecution under this section if
the person was smoking:
(1) In a location that is a designated smoking area of a
facility or establishment described in subsection (d)
of this section which is posted as a designated smoking
area with appropriate signs;
(2) In a location that is an administrative area or office
area of an establishment described in subsection (a) of
Section 20-9;
(3)
As a participant in an authorized theatrical perform-
ance.
Section 3. That the Code of Ordinances of the City of
Pearland, Texas, is further amended by the inclusion of Section
20-11 which shall hereafter read as follows:
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Section 20-11. Regulation of smoking in food establish-
ments.
(a) A food establishment, excluding convenience stores,
which has indoor or enclosed dining areas shall provide separate
indoor or enclosed dining areas for smoking and non-smoking
patrons.
(b) A nonsmoking area must:
(1) Be constructed and situated so that air from the smok-
ing area is not drawn into or across the non-smoking
area, or the smoking area shall be separately ventilat-
ed;
(2) Be clearly designated by appropriate signs visible to
patrons within the dining area indicating that the area
is designated non-smoking; and
(3) Have ash trays or other approved containers for extin-
guishing smoking materials at the perimeter of the
nonsmoking area.
(c) Each food establishment which has an indoor or enclosed
dining area shall:
(1) Have and implement a written policy on smoking which
conforms to this article;
(2) Make the policy available for inspection by employees
and the director or his authorized representatives; and
(3) Have signs, conspicuous to ordinary view, at each
public entrance to the establishment indicating that
non-smoking seating is available.
(d) Non -dining areas of any food establishments affected by
this section to which patrons have access, including, but not
limited to, food order areas, food service areas and restrooms,
shall be designated as non-smoking areas.
(e) It is a defense to prosecution under this section that
the food establishment is:
(1) An establishment which has indoor seating arrangements
for less than ten (10) patrons;
(2) An establishment which has more than seventy (70) per
cent of its annual gross sales in alcoholic beverages;
A physically separated bar area of a food products
establishment otherwise regulated; or
(4) The establishments covered above in subsection (e)(1)
through (3) shall post a sign conspicuous to ordinary
public view, at each public entrance to the establish-
ment which shall contain the words "This Establishment
Does Not Provide for A Non -Smoking Section.'
(f) A person commits an offense if he smokes or possesses a
burning tobacco, weed, or other plant product, or any lighted or
burning pipe, cigar, cigarette, of any kind, or smoking device in
an area of a food products establishment designated as non-
smoking:
(3)
Section 4. That the Code of Ordinances of the City of
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Pearland, Texas, is further amended by the inclusion of Section
20-12 which shall hereafter read as follows:
Section 20-12. Owner reporting requirements.
This article does not require the owner, operator, employer,
manager or any employee of an establishment to report a violation
of section 20-10 or 20-11.
Section 5. Any person who shall violate the provisions of
this Ordinance shall be deemed guilty of a misdemeanor and shall,
upon conviction by a court of competent jurisdiction, be punished
in accordance with Section 1-11 of the Code of Ordinances.
Section 6. If any section, subsection, sentence, clause,
phrase or portion of this ordinance is for any reason held in-
valid, unconstitutional or otherwise unenforceable by a court of
competent jurisdiction, such part shall be deemed a separate,
distinct and independent provision and such holding shall not
affect the validity of the remaining portions thereof.
Section 7. All Ordinances in conflict herewith are hereby
repealed, but only to the extent of such conflict.
Section 8. All rights and remedies which have accrued in
the favor of the City under this Chapter and amendments thereto
shall be and are preserved for the benefit of the City.
Section 9. It is the intent of the City Council of the City
of Pearland, Texas, that the provisions of this Ordinance shall
be codified within Chapter 20 (Offenses, Miscellaneous Provi-
sions) of the City Code of Ordinances.
Section 10. The City Secretary shall cause this Ordinance,
or its caption and penalty, to be published in the official
newspaper of the City at least once within ten (10) days after
its passage on second and final reading. This Ordinance shall
thereafter become effective ten (10) days from and after its
publication, or the publication of its caption and penalty, in
the official City newspaper.
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PASSED, APPROVED and ADOPTED on first reading this ;Li(
day of
ATTEST:
, A. D., 1992.
PASSED, APPROVED and ADOPTED on second and final reading
this /e,/ day of
ATTEST:
Pat Jones, C t'y Secretary
APPROVED AS TO FORM:
Lester Rorick, City Attorney
, A. D., 1992.
C. V. Cnger, Mayor
VOTING RECORD (FIRST READING) AUGUST 24, 1992
Voting "Aye" - Councilmembers Miller, Frank, Weber, Colson, and Smith.
Voting "No" - None.
Motion passed 5 to 0.
VOTING RECORD (SECOND READING) SEPTEMBER 14, 1992
Voting "Aye" .. Councilmembers Smith, Colson, Weber, Frank, and Miller.
Voting "No" None.
Motion passed 5 to O.
PUBLICATION DATE: SEPTEMBER 18, 1992
EFFECTIVE DATE: SEPTEMBER 28, 1992
PUBLISHED AS REQUIRED BY SECTION 3.10 OF THE CHARTER OF THE CITY OF PEARLAND,
TEXAS.
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